judgement:
Civil Appeal No. 1867 of 1970.
From the judgment and order dated the 18th February, 197() of the Gujarat High Court in Letters Patent Appeal No. 6/60.
section section Sheth, Ravinder Narain, J. B. Dadachanji, O.C. Mathur and Mrs. Anjali K. Verma for the Appellant.
Gautham Philip, P. H. Parekh and Mrs. Vineeta Sen Gupta for the Respondent.
The Judgment of the Court was delivered by MISRA, J.
The present appeal by certificate is directed against the judgment of the High Court of Gujarat at Ahmedabad in 169 Letters Patent Appeal No. 6 of 1966 dated the 18th of February, 1970 decreeing the suit for redemption.
The property in dispute, situated in Baroda City, originally belonged to Motibhai Bapubhai Shibandi Baxi (for short Motibhai).
He created a mortgage with possession of the disputed property in favour of one Nanaji Balwant Pilkhanewala (for short Nanaji) in 1871 for a sum of Rs. 800.
In 1890 a second mortgage was created in favour of the same mortgage and the amount secured by this second mortgage was Rs. 375.
Somewhere between 1890 and 1912 the original mortgagee Nanaji died leaving behind his two sons Hari and Purshottam as his heirs and legal representatives.
The two sons of Nanaji sold the entire mortgagee rights and interest to one Ganpatram Mugutram Vyas (for short Ganpatram) on 4th of July, 1912.
Ganpatram in his turn sold the mortgagee rights in a part of the mortgaged property, viz., common latrine, to one Vamanrao Laxmanrao Nirkhe (for short Vamanrao).
Ganpatram died and his son Chhotelal Ganpatram (for short Chhotelal) sold away his rights as a mortgagee in possession in respect of the rest of the properties which still remained with him, to Chhaganlal Keshavlal Mehta (for short Chhaganlal Mehta.) Mortgagor Motibhai.
also died leaving behind his son Chimanrai Motibhai Baxi (for short Chimanrai).
Chimanrai died leaving behind his widow Chhotiba and a daughter Taralaxmibai.
On September 12, 1950 Taralaxmi sold her right, title and interest in the suit property to one Shantilal Purshottamdas Dalia (for short Shantilal).
Later on Shantilal conveyed his right, title and interest in the property to the plaintiff, Narandas Haribhai Patel (for short Narandas).
It appears that during the life time of Chimanrai Ganpatram the mortgagee had sent a notice, Ext. 77, dated 15th of April, 1913 to Chimanrai informing him that the mortgaged property was in a dilapidated condition and required repairs.
He had already spent some amount towards repairs but still substantial repairs were needed and the same should be got done by him or he should pay the mortgage amount and redeem the property.
On receipt of this letter Chimanrai made the following endorsement: "During the lifetime of my father, I had become separated from him without taking any kind of the moveable or immovable property belonging to him and even 170 after his death, I have not taken any kind of his properties nor have I kept my right over the said properties and so I am not in any way responsible for your any transaction whatsoever in connection with his properties.
Be it known to you.
And while giving you a definite assurance to that effect I have made attestation on the aforesaid document in respect of purchase of the mortgagee 's rights, which may also be known to you." Long after the death of Chimanrai, Chhotelal, son of Ganpatram, gave a similar notice, Ext.
28, dated 6th of October, 1933 to Chhotiba, the widow of Chimanrai calling upon her to Redeem the mortgage in question.
On this notice similar endorsement on behalf of Chhotiba was made on 10th of October, 1933 by Lomeshprasad Hariprasad Desai (for short Lomeshprasad).
her daughter 's son, as had been made by Chimanrai earlier on the notice given by Ganpatram.
Yet another notice, Ext.
78 dated 21st of September, 1933 was sent by Chhotalal to Taralaxmibai, daughter of Chimanrai to the same effect.
In her reply, Ext.
73, dated 3rd of October, 1933 to the notice, Taralaxmibai stated inter alia that her father Chimanrai had foregone all rights whatsoever in the property of his father, Motibhai, during his lifetime and hence she had no concern with the property of Motibhai.
It was further stated that her own mother Chhotiba was alive (in October 1933) and, Therefore, she had no concern whatsoever with the property of Motibhai or the liabilities arising out of the dealings of Motibhai.
Narandas after the purchase of the mortgagor 's rights from Shantilal filed a suit for redemption impleading both the assignees For the mortgagee 's rights, Chhaganlal Keshavlal Mehta, as the 1st defendant, and Vamanrao Laxmanrao Nirkhe, as the 2nd defendant.
The claim was resisted by.
the 1st defendant on grounds that the plaintiff had no right to redeem inasmuch as his predecessor in interest, Chimanrai, his widow Chhotiba and his daughter Taralaxmibai on their own admission had no subsisting right, title and interest in the mortgaged property.
The plaintiff who is only a transferee from Taralaxmibai could not rank higher, that Ganpatram, the predecessor in interest of defendant No. 1 was not in possession of the property as a mortgagee but as an absolute owner thereof.
The defendant No. 1, who claims through Ganpatram 's son Chhotalal, was also an absolute owner and continued to remain in possession from 1933 34 as such.
As an abso 171 lute owner he carried out repairs to the mortgaged property.
He also obtained permission from the municipality and built the house afresh after incurring heavy expenditure and in doing so he had spent about Rs. 3374 2 0.
He also denied that Shantilal, purchaser of the equity of redemption was the plaintiff 's benamidar.
Indeed, the plaintiff had falsely created the evidence of benamidar to bring the present suit, and the suit was barred by limitation and estoppel.
In the alternative he pleaded that he should be paid the sum of Rs. 5099 2 0 if the plaintiff 's suit for redemption was to be decreed.
The trial court came to the conclusion that the plaintiff had no right to redeem the mortgaged property as he had failed to prove that he had purchased the property benami in the name of Shantilal and that afterwards Shantilal had passed deed of conveyance or mutation in his favour.
In view of this finding it was not necessary for the trial court to decide other issues but all the same the trial court recorded findings on the remaining issues also in order to complete the judgment.
It found that Chimanrai, Chhotiba or Taralaxmibai never relinquished their right, title and interest in the suit property, that the suit was within limitation, and that the suit was not barred by estoppel.
As regards the amount spent on repairs the court came to the conclusion that the defendant No. I had spent Rs. 3374 2 O and, therefore, if the plaintiff was to be allowed to redeem the property he would have to pay that amount in addition to the mortgage consideration.
The suit was dismissed by the trial court on the ground that the plaintiff had no right to redeem.
Feeling aggrieved the plaintiff went up in appeal, and the defendant No. 1 filed a cross objection against the finding that went against him.
The appeal and the cross objection were allowed by the Assistant Judge by his judgment dated 31st of March, 1956 on the finding that the plaintiff had purchased the equity of redemption benami in the name of Shantilal and that Shantilal had executed a deed of conveyance, Ext.
66, in favour of the plaintiff and, therefore, he was entitled to redeem the property.
He further found that the endorsements made by Chimanrai, his widow Chhotiba and his daughter Taralaxmibai did not amount to relinquishment of their right, title and interest in the property.
He set aside the decree of the trial court and remanded the case for deciding the remaining points after allowing the parties to lead fresh evidence on those issues.
The defendant No. I challenged the remand order by 172 filing an appeal in the High Court.
His complaint was against the direction given by the appellate court while remanding the case.
The High Court allowed the appeal in part and modified the direction of the lower appellate court asking the trial court to decide other issues afresh after allowing further evidence, except issues Nos. 1 and 4.
Consequent upon the order of remand the Joint Civil Judge, Jr. Division, decided other issues against the plaintiff.
He held that Chimanrai, his widow Chhotiba and his daughter Taralaxmibai had relinquished their right, title and interest in the suit property and, therefore.
Taralaxmibai had no subsisting interest or title to transfer to the plaintiff or his predecessor in interest.
He further held that the suit was barred by time and estoppel, and that defendant No. I had spent a substantial amount on repairs.
On these findings he again dismissed the suit by his judgment dated 21st of August, 1958.
The plaintiff again took up the matter in appeal, It appears that during the pendency of the appeal Vamanrao, defendant No. 2 died in August, 1958.
His heirs were, however, not brought on the record.
A question arose whether the appeal abated as a whole or only as against defendant No. 2.
The District Judge by his separate order dated 25th of September, 1959 held that the appeal abated only so far as defendant No. 2 was concerned but it could proceed as against the surviving defendant No. 1.
The appeal was eventually allowed by the Assistant Judge, Baroda against defendant No. 2 by his judgment dated 12th of November, 1959 holding that the appellant was entitled to redeem the mortgaged property on payment of Rs. 4724 2.0 on account of the mortgage money as well as the expenditure incurred by defendant No. 1 on repairs and that the suit was neither barred by time nor by estoppel.
The appeal was, however, dismissed as against defendant No. 2.
The defendant No. 1 challenged the judgment and decree of the Assistant Judge before the High Court and only two contentions were raised before it: (1) that the mortgage cannot be split up and must be treated as one and indivisible security and since the right to redeem against one of the two co mortgagees had become extinguished because of abatement of the suit against Vamanrao and his heirs, the suit against defendant No. 1, the other co mort 173 gagee, must be dismissed; and (2) that the suit was barred by estoppel inasmuch as Chimanrai, the heir of the original mortgagor and after him his widow Chhotiba and daughter Taralaxmibai having relinquished their right in the disputed property which she could have conveyed to Shantilal by sale.
Consequently, Shantilal in his turn could not pass a better title to the plaintiff.
In the result the plaintiff had no right to file the suit for redemption.
A learned Single Judge who heard the appeal repelled the first contention but accepted the second one.
Accordingly, he allowed the appeal and dismissed the plaintiff 's suit.
The plaintiff undaunted took up the matter in a Letters Patent Appeal and the defendant also filed a cross objection.
A Division Bench of the High Court allowed the appeal and decreed the suit reversing the finding of the learned Single Judge that the plaintiff had no right to sue.
The Division Bench, however, granted a certificate of fitness for appeal to this Court.
The learned counsel for the appellant was raised the same two contentions before us.
We take up the first point first.
The first contention is based on the principle of indivisibility of the mortgage.
Section 60 of the Transfer of Property Act deals with the rights and liabilities of a mortgagor.
It confers a right of redemption.
There is, however, a rider to the right of redemption in the section itself, which provides : "Nothing in this section shall entitle a person interested in a share only of the mortgaged property to redeem his own share only, on payment of a proportionate part of the amount remaining due on the mortgage, except only where a mortgagee or, if there are more mortgagees than one, all such mortgagees, has or have acquired, in whole or in part, the share of a mortgagor." A perusal of this provision indicates that a co mortgagor cannot be permitted to redeem his own share of the mortgaged property only on payment of proportionate part of the amount remaining due.
In other words the integrity of the mortgage cannot be broken.
Order 34, rule I of the Code of Civil Procedure deals with the parties to suits for foreclosure, sale and redemption.
It provides: "Subject to the provisions of this Code, all persons having an interest either in the mortgage security or in the 174 right of redemption shall be joined as parties to any suit relating to the mortgage.
" It has already been pointed out that defendant No. 2 was the purchaser of mortgagee rights in respect of common latrine while defendant No. I is the purchaser of the mortgagee rights in respect of the remaining mortgaged property, viz., the houses.
When the plaintiff filed the suit he impleaded both the mortgagees as defendants Nos. 1 and 2.
Before the Assistant Judge a statement was made on behalf of the original plaintiff that he was prepared to pay the entire mortgage amount for redemption of the mortgaged property to the 1st defendant.
A similar statement was made by Mr. Oza, counsel for the plaintiff in the High Court who further stated that in no event hereafter would the plaintiff seek any relief against the property in possession of defendant No. 2, viz., the right to the common latrine in which mortgagee rights had been transferred to defendant No. 2 by Ganpatram.
Besides, the severance of the two properties by Ganpatram was recognised by the mortgagor and hence the severance was with the implied consent of the mortgagor.
It is a well recognised principle that even if all the mortgagees are not before the court in a suit filed by the mortgagor for redemption of the property, but the mortgagor is prepared to pay the entire amount due at the foot of the mortgage to such mortgagees as are before the court and gives up his right under the mortgage as against those mortgagees who are not before the court, the court can pass a decree for redemption directing that the entire mortgage amount should be paid to the mortgagees who are actually before the court.
This principle was recognised in a Full Bench decision in Motilal Yadav v Samal Bechar.(1) If one of the defendants in a suit dies and his heirs are not brought on record the suit certainly would abate as against that party.
The suit, however, could not abate as against the other surviving defendants.
A question may arise whether the suit is maintainable against the surviving defendants.
In the instant case the suit abated as against defendant No. 2 in respect of the common latrine.
But there is no difficulty in the suit proceeding against the surviving defendant No. 1 if the plaintiff is prepared to pay the entire mortgage consideration.
It may, however, be pointed out that defendant No. 2 never contested the suit.
He was impleaded as a party it was incumbent on the plaintiff to have impleaded all the mortgagees as a party.
But if the defendant did not contest the suit at any stage, 175 will he be a necessary party in an appeal ? A person may be A a necessary party in a suit but he 'may not be a necessary party in the appeal.
The Division Bench of the High Court was fully justified in holding that the suit against the surviving defendant No. I was maintainable despite the abatement of the suit against the 2nd defendant.
We fully endorse the view taken by the Division Bench of the High Court.
This takes us to the second point.
This contention is based on the aforesaid various endorsements made by Chimanrai.
his widow Chhotiba and his daughter Taralaxmibai on the notices sent by the mortgagee.
The question is whether these endorsements amount to relinquishment of their rights and interest so as to estop them from transferring the property in suit ? The notice by Ganpatram to Chimanrai and the notices by his son Chhotalal to Chhotiba and Taralaxmibai and their respective endorsements thereon have been referred to in the earlier part of the judgment.
Whether these endorsements amount to relinquishment of their rights and title and if so whether the same amounts to estoppel within the meaning of section 115 of the Evidence Act ? In our opinion the endorsements have to be read not in isolation but with reference to the notices sent.
So read, the endorsement only indicate that the heirs of the mortgagor were not prepared to bear the expenses on repairs of the mortgaged property.
The property cannot remain in vacuum even for a single moment.
It must vest in somebody.
Accordingly, after the death of Motibhai his property vested in his son who was the sole heir.
The endorsement of Chimanrai, his widow Chhotiba and daughter Taralaxmibai on the notices at the most would amount to an admission.
The contention raised on behalf of the defendant appellant is that he would not have purchased the mortgagee rights from Ganpatram if such a statement had not been made by Chimanrai, his widow Chhotiba and his daughter Taralaxmibai and, therefore, they would be estopped from taking up a different stand from the one taken by them earlier.
In substance, the question is whether the endorsements would amount to estoppel.
The difference between admission and estoppel is a marked one.
Admissions being declarations against an interest are good evidence but they are not conclusive and a party is always at liberty to withdraw admissions by proving that they are either mistaken or untrue.
But estoppel creates an absolute bar.
In this state of 176 the legal position, if the endorsement made by Chimanrai or by his widow, Chhotiba or his daughter Taralaxmibai amounts to an estoppel they or their transferees would be prevented from claiming the property.
It may be pointed out that estoppel deals with questions of facts and not of rights.
A man is not estopped from asserting a right which he had said that he will not assert.
It is also a well known principle that there can be no estoppel against a statute.
After the death of Motibhai his son Chimanrai succeeded in law.
To bring the case within the scope of estoppel as defined in section ] I 5 of the Evidence Act: t I ) there must be a representation by a person or his authorised agent to another in any form a declaration, act or omission; (2) the representation must have been of the existence of a fact and not of promises de futuro or intention which might or might not be enforceable in contract; (3) the representation must have been meant to be relied upon; (4) there must have been belief on the part of the other party in its truth; (5) there must have been action on the faith of that declaration, act or omission, that is to say, the declaration, act or omission must have actually caused another to act on the faith of it, and to alter his former position to his prejudice or detriment; (6) the misrepresentation or conduct or omission must have been the proximate cause of leading the other party to act to his prejudice; (7) the person claiming the benefit of an estoppel must show that he was not aware of the true state of things.
If he was aware of the real state of affairs or had means of knowledge, there can be no estoppel; (8) only the person to whom representation was made or for whom it was designed can avail himself of it.
A person is entitled to plead estoppel in his own individual character and not as a representative of his assignee.
None of these conditions have been satisfied in the instant case, for example, no representation was made to defendant No. 1.
Therefore, he cannot plead estoppel.
Secondly, the representation was not regarding a fact but regarding a right of which defendant No. I or his predecessor in interest had full knowledge or could have known if he had cared to know.
It is difficult to say that defendant No. I has moved his position on account of the representation made by the mortgagor or his heirs or assignees.
On the facts and circumstances of this case it is not possible to hold that 177 ingredients of section 115 of the Evidence Act have been fulfilled.
The view taken by the Division Bench of the High Court is fully warranted by law.
For the foregoing discussion we find no force in this appeal.
It is accordingly dismissed with costs.
S.R. Appeal dismissed.

dataset_name: IN-Abs

summary:
Motibhai created two mortgages in respect of the same property in the years 1871 and 1893 in favour of one Nanaji who died somewhere between 1 890 and 1912 leaving behind his two sons Hari and Purushottam as his heirs and legal representatives.
They both sold the entire mortgagee rights and interest to one Ganpatram on 4th July, 1912, who in his turn sold the mortgagee rights in a part of the mortgaged property, namely, common latrine to one Vamanrao.
Ganpatram died and his son Chhotalal sold away his rights as a mortgagee in possession in respect of the rest of the properties which still remained with him, to Chhaganlal Keshavlal Mehta, the appellant defendant No. 1.
Mortgagor Motibhai also died leaving behind his son Chimanrai.
Chimanrai died leaving behind his widow Chhotiba and a daughter Taralaxmibai.
On September 12, 1950 Taralaxmibai sold her right, title and interest in the suit property to one Shantilal who later on conveyed his right, title and interest in the property to the respondent plaintiff Narandas Haribhai Patel.
During the life time of Chimanrai, Ganpatram, the mortgagee had sent a notice, Exhibit 77 dated 15th April, 1913 informing him that the mortgaged property was in a dilapidated condition and required repairs.
He further called upon Chimanrai to pay the amount already spent by him towards the repairs to get further repairs done or in the alternative pay up the mortgage amount and redeem the property.
Chimanrai, denied his responsibility.
After the death of Chimanrai Chhotalal gave a similar notices, Exhibits 68 and 78, dated 21st of September, 1933 and 6th October 1933 to Taralaxmibai daughter of Chimanrai and to Chhotiba, the widow to the same effect.
Both Chhotiba and Taralaxmibai denied their liabilities.
Narandas after the purchase of the mortgagor 's rights from Shantilal filed a suit for redemption impleading both the assignees of the mortgagee 's rights, namely, Chhaganlal Keshavlal Mehta, the appellant as defendant No. I and Vamanrao as defendant No. 2.
The suit was dismissed by the trial court on the ground that the plaintiff had no right to redeem In this view of the matter it was not necessary to decide other issues but the trial court recorded findings on other issues also including the issue of estoppel.
The appeal and the cross objection filed by the parties were 167 allowed by the Assistant Judge holding that plaintiff had purchased the equity of redemption and so he was entitled to redeem and that the suit was not barred by estoppel.
He however remanded the case for deciding the remaining issues.
On remand the Joint Civil Judge held that Chimanrai, his widow Chhotiba and his daughter Taralaxmibai relinquished their right, title and interest in the suit property and, therefore, Taralaxmibai had no subsisting interest or title to transfer to the plaintiff or his predecessor in interest.
He further held that the suit was barred by time and estoppel, and that defendant No. 1 had spent a substantial amount on repairs.
On these findings the suit was dismissed once again.
During the pendency of the appeal by the respondent, Vamanrao died in August, 1958.
His heirs were, however, not brought on the record.
The appeal was allowed as against defendant No. I but dismissed as abated against defendant No. 2 and it was held that the respondent was entitled to redeem the mortgaged property on payment of the mortgaged money as well as the expenditure incurred on repairs, and that the suit was neither barred by time nor by estoppel.
On further appeal to the High Court a learned single Judge reversed the Judgment and decree of the lower appellate Court and dismissed the suit.
The respondent plaintiff took up the matter in the letters patent appeal and the appellant defendant No. 1 also filed a cross objection.
A Division Bench of the High Court allowed the appeal and decreed the suit reversing the finding of the learned Single Judge that the respondent plaintiff had no right to sue.
The Division Bench, however, granted a certificate of fitness of appeal to the Supreme Court.
Dismissing the appeal, the Court ^ HELD: 1.
Under section 60 of the Transfer of Property Act, a co mortgagor cannot be permitted to redeem his own share of the mortgaged property only on payment of proportionate part of the amount remaining due.
In other words, the integrity of the mortgage cannot be broken.
[173 G] 2.
It is, however, a well recognised principle that even if all the mortgagees are not before the court in a suit filed by the mortgagor for redemption of the property, but the mortgagor is prepared to pay the entire amount due at the foot of the mortgage to such mortgagees as are before the court and gives up his right under the mortgage as against those mortgagees who are not before the court, The court can pass a decree for redemption directing that the entire mortgage amount should be paid to the mortgagees who are actually before the court.
[174 D F] Motilal Yadav vs Samal Bechar , approved.
If one of the defendants in a suit dies and his heirs are not brought on record, the suit certainly would abate as against that party.
The suit, however, G could not abate as against the other surviving defendants.
A question may arise whether the suit is maintainable against the surviving defendants.
In the instant case, the Suit abated as against defendant No. 2 in respect of the common latrine.
But the suit may proceed against the surviving appellant defendant No. 1 if the respondent plaintiff is prepared to pay the entire mortgage consideration.
[174 F G] 3:2.
A person may be a necessary party in a suit but he may not be a necessary party in the appeal.
[175 A] 168 4:1.
To bring the case within the scope of estoppel as defined in section 115 of the Evidence Act: (i) there must be a representation by a person or his authorised agent to another in any form a declaration, act or omission; (ii) the representation must have been of the existence of a fact and not of promises de futuro or intention which might or might not be enforceable in contract: (iii) the representation must have been meant to be relied upon; (iv) there must have been belief on the part of the other party in its truth; (v) there must have been action on the faith of that declaration, act or omission, that is lo say, the declaration, act or omission must have actually caused another to act on the faith of it, and to alter his former position to his prejudice or detriment; (vi) the mis representation or conduct or omission must have been the proximate cause of leading the other party to act to his prejudice; (vii) the person claiming the benefit of an estoppel must show that he was not aware of the true state of things.
If he was aware of the real state of affair or had means of knowledge, there can be no estoppel; (viii) only the person to whom representation was made or for whom it was designed can avail himself of it.
A person is entitled to plead estoppel in his own individual character and not as a representative of his assignee.
[176 C F] 4:2.
The difference between an admission and estoppel is a marked one.
Admissions being declarations against an interest are good evidence but they are not conclusive and a party is always at liberty to withdraw admissions by proving that they are either mistaken or untrue.
But estoppel creates an absolute bar.
Estoppel deals with questions of facts and not of rights.
A man is not estopped from asserting a right which he had said he would not assert It is also a well known principle that there can be no estoppel against a statute.
[175G, H 176 B] 4:3.
In the instant case (i) the ingredients of section 115 of the Evidence Act have not been fulfilled.
No representation was made to defendant No. 1, therefore, estoppel cannot be pleaded; (ii) the representation was not regarding a fact but regarding a right of which defendant No. I or his predecessor in interest had full knowledge or could have known if he had cared to know lt is difficult to say that defendant No. ] has moved his position on account of the representation made by The mortgagor or his heirs or assignees, [176 G H]


judgement:
ivil Appeals Nos.
423 of 1979 & 2084 to 2090 of 1977.
Appeals by special leave from the judgment and order dated the 24th September, 1976 of the Patna High Court in C.W.J.C. Nos 1631, 1614, 1618, 1617, 1594, 1616, 1615 & 1593 of 1976 respectively.
P. R. Mridul, R. K Jain, B. P. Singh and Pankaj Kalra for the Appellant in CA.
423/79.
Soli J. Sorabjee, R. P. Singh and R.K. Jain for the Appellant in CA.
2085 of 1977.
M. C. Bhandare and R. P. Singh for the Appellant in CA.
2086/77.
D. P. Singh, R. K Jain and R. P. Singh for the Appellant in CA.
2089 2090/77.
D. Goburdhan and R. lV. Poddar for the Respondent.
180 The Judgment of the Court was delivered by MISRA, J.
These eight appeals by special leave raise a common question of law regarding the scope of order 41, rule 22 and order 41, rule 33 of the Code of Civil Procedure.
We, therefore, propose to dispose of these appeals by a common judgment.
Since these appeals raise similar questions, we will refer to the facts of civil appeal No. 2084 of 1977 only.
The appellant in this appeal is a land holder in terms of the Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) Act, 1961 (hereinafter referred to as the Act).
A notice under section 8(1) of the Act was issued to the petitioner calling upon him to submit return with all the particulars of the lands held by him.
The petitioner in response to the said notice filed his return.
On the basis of the verification report the Additional Collector came to the conclusion that the petitioner was entitled to five units and accordingly ordered for the publication of the draft statement under section 10 of the Act.
The petitioner was again served with a notice under section 10(2) of the Act.
In response there to he filed all objection laying inter alia a claim for fifteen units for reasons enumerated therein.
The Collector considered the objections filed by the petitioner and by his order dated 23rd of February, 1975 ordered allotment of twelve units to the petitioner.
The petitioner feeling aggrieved went up in appeal before the Commissioner of the Division.
The State of Bihar submitted to the order and did not go up in appeal.
Notices were issued to the respondents who, however, failed to appear on the date fixed.
The appeal was heard on 27th of April, 1976 and a final order was passed by the Commissioner on 14th of May. 1976.
He allowed the appeal and set aside the order of the Collector and remanded the case to him for disposal according to law.
It may be pointed out that the appellant had challenged the order of the Collector on various grounds.
He, however, did not challenge the finding recorded by the Collector regarding the units allowed to him.
The Commissioner, however, set aside the finding of the Collector even regarding the units allotted to the appellant in spite of the fact that no appeal had been filed by the State of Bihar before the Commissioner.
The appellant filed a petition under Article 226 of the Constitution to challenge the order of the Commissioner but the High Court dismissed the petition and confirmed the order of the Commissioner on the basis of the provisions of order 41 rule 22.
181 The sole contention raised on behalf of the appellants in the various appeals is that in the absence of any appeal or cross objection filed by the State of Bihar the Commissioner was not justified in reversing the finding in favour of the appellant 's namely, the finding on the question of allotment of units or regarding the classification of land.
This contention, as observed earlier, was raised before the High Court in the writ petition as well.
The High 1 Court, however, repelled the contention by applying the provisions of order 41, rule 22.
Reliance has also been placed by the State of Bihar on the provisions of order 41, rule 33 C.P.C. in support of the order of the Commissioner.
The High Court, however, did not rely upon order 41, rule 33 and rest content by relying on provision of order 41, rule 22, By rule 49 of the Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) Rules, 1963, order 41 of the Civil Procedure Code has been made applicable in disposing of the appeals under the Act.
We will first refer to the provisions of order 41, rule 22 Insofar as it is material for the purposes of this case, it reads: "22(1) Any respondent, though he may not have appealed from any part of the decree, may not only support the decree on any of the grounds decided against him in the Court below, but take any cross objection to the decree which he could have taken by way of appeal, provided he has filed such objection in the Appellate Court within one month from the date of service on him or his pleader of notice of the day fixed for hearing the appeal, or within such further time as the Appellate Court may see fit to allow.
" The first part of this rule authorises the respondent to support the decree not only on the grounds decided in his favour but also on any of the grounds decided against him in the court below.
The first part thus authorises the respondent only to support the decree.
It does not authorise him to challenge the decree.
If he wants to challenge the decree, he has to take recourse to the second part, that is, he has to file a cross objection if he has not already filed an appeal against the decree.
Admittedly, the State of Bihar had neither filed any appeal nor cross objection.
Obviously, therefore, on the strength of the first part of sub clause (I) of rule 22 of order 41 the State of Bihar could only support the decree not only 182 on the grounds decided in its favour but also on the grounds decided against it.
The Commissioner however, has not aside the finding in favour of the appellant on the strength of order 41, rule 22(1).
In our opinion this he could not do.
The only other order on which the State cf Bihar could rely upon is order 41, rule 33 C.P.C.
The High Court did not consider the provisions of order 41, rule 33 as in its opinion the order of the Commissioner could be supported on the strength of order 41, rule 22.
In the view that we have taken regarding the applicability of order 41, rule 22 it becomes pertinent to consider the applicability of order 41, rule 33 of the Code of Civil Procedure.
Insofar as material, it reads: "33.
The Appellate Court shall have power to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require, and this power may be exercised by the Court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection.
Illustration: A claims a sum of money as due to him from X or Y, and in a suit against both, obtains a decree against X. X appeals and A and Y are respondents.
The Appellate Court decides in favour of X. It has power to pass a degree against Y." This rule is widely expressed and it must be applied with great caution.
The object of this rule is to empower the Appellate Court to do complete justice between the parties.
Under this rule the Court has power to make a proper decree notwithstanding that the appeal is as to part only of the decree and such power may be exercised in favour of all or any of the parties even though they may not have filed an appeal or objection.
Reliance has been placed on Nirmala Balai Ghosh & Anr.
vs Balai Chand Ghose & Ors.(1) This Court dealing with the scope of order 41, rule 33, observed as follows: 183 "The rule is undoubtedly expressed in ter ns which are wide, but it has to be applied with discretion, and to cases where interference in favour of the appellant necessitates interference also with a decree which has by acceptance or acquiescence become final so as to enable the Court to adjust the rights of the parties.
Where in an appeal the Court reaches a conclusion which is inconsistent with the opinion of the Court appealed from and in adjusting the right claimed by the appellant it is necessary to grant relief to a person who has not appealed, the power conferred by o. 41, r. 33 may properly be invoked.
The rule, however, does not confer an unrestricted right to re open decrees which have become final merely because the appellate Court does not agree with the opinion of the Court appealed from.
" In the case cited above, there were two sets of defendants in the suit and in substance two decrees, though co related, were passed.
One of the decrees could stand apart from the other.
One set of defendants were two deities.
The suit was decreed against them.
They did not go up in appeal nor did they take part in the proceedings either before the High Court or before the Supreme Court, although they were impleded as respondents.
The other set of defendants, Nirmala, sought to invoke the powers of the Appellate Court under order 41, rule 33 to pass a decree in favour of a party not appealing so as to give the latter a benefit which she had not claimed.
In such a situation this Court observed: When a party allows a decree of the Court of First Instance to become final, by not appealing against the decree, it would not be open to another party to the litigation, whose rights are otherwise not affected by the decree, to invoke the powers of the appellate court under O. 41, r. 33, to pass a decree in favour of the party not appealing so as to give the latter a benefit which he has not claimed.
Order 41, r. 33 is primarily intended to confer power upon the appellate court to do justice by granting relief to a party who has not appealed, when refusing to do so, would result in making inconsistent, contradictory or unworkable orders." 184 Counsel for the State of Bihar, on the other 'hand, referred to Giani Ram & Ors.
vs Ramiji Lal & Ors.(1) while construing the provisions of order 41, rule 33, this Court observed: ". the expression 'which ought to have been passed ' means 'what ought in law to have been passed '.
If the Appellate Court is of the view that any decree which ought in law to have been passed was in fact not passed by the subordinate court, if may pass or make such further or other decree or order as the justice of the case may require " The object of this rule is to avoid contradictory and inconsistent decisions on the same questions in the same suit.
As the power under this rule is in derogation of the general principle that a party cannot avoid a decree against him without filing an appeal or cross objection, it must be exercised with care and caution.
The rule does not confer an unrestricted right to re open decrees which have become final merely because the Appellate Court does not agree with the opinion of the court appealed from.
Ordinarily, the power conferred by this rule will be confined to those cases where as a result of interference in favour of the appellant further interference with the decree of the lower court is rendered necessary in order to adjust the rights of the parties according to justice, equity and good conscience.
While exercising the power under this rule the Court should not lose sight of the other provisions of the Code itself nor the provisions of other laws, viz., the Law of the Limitation or the Law of Court Fees etc.
In these appeals the Collector on the basis of the material placed before him allowed certain units to the various appellants.
In the absence of any appeal by the State of Bihar, there was no justification for the Commissioner to have interfered with that finding in favour of the appellants.
The facts and circumstances of these appeals are not such in which it would be appropriate to exercise the power under order 41, rule 33.
The Commissioner as well as the High Court committed a manifest error in reversing the finding regarding allotment of units to the various appellants in the absence of any appeal by the State of Bihar when the same had become final and rights of the State of Bihar had come to an end 185 to that extent by not filing any appeal or cross objection within the period of limitation.
For the reasons given above all the appeals are allowed and the order of the High Court and that of the Commissioner is set aside insofar as it relates to finding of the Collector in favour of the appellants.
The remand order will, however, remain intact insofar as other points are concerned.
In the circumstances of the case, the parties shall bear their own costs.
S.R. Appeals allowed.

summary:
The appellant is a land owner in terms of the Bihar Land Reforms Fixation of Ceiling Area and Acquisition of Surplus Land) Act, 1961.
While considering the objection of the appellant in response to the notice issued under section 10(2) of the Act, the Collector, by his order dated 23rd of February, 1975 ordered allotment of twelve units of lands.
By Rule 49 of the Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) Rules.
1963, order XLI of the Civil Procedure Code has been made applicable in disposing of the appeals under the Act.
The appellant, feeling aggrieved by the Collector 's order went up in appeal before the Commissioner of the Division.
The respondent State submitted to the order, did not go in appeal and allowed the appeal to be decided ex parte.
The appellant, who challenged the order of the Collector on various grounds did not challenge the finding recorded by The Collector regarding The twelve units allotted to him as against fifteen prayed for.
The Commissioner heard the appeal on 27th of April, 1976, allowed the appeal by its order dated 14th of May, 1976, set aside the Collector 's order in toto and remanded the case to him for disposal according to law.
The appellant filed a Petition under Article 226 of the Constitution to challenge the order of the Commissioner but the High Court dismissed the petition and confirmed the order of the Commissioner on the basis of the provisions of order XLI, Rule 22.
Hence the appeals by special leave.
Allowing the appeals, the Court ^ HELD: 1.
The first part of Rule 22 of order XLI of the Civil Procedure Code authorises the respondent to support the decree not only on the grounds decided in his favour but also on any of the grounds decided against him in the court below.
The first part thus authorises the respondent only to support the decree.
It does not authorise him to challenge the decree.
If he wants to challenge the decree, he has to take recourse to the second part, that is, he has to file a cross objection if he has not filed an appeal against the decree.
[181 G] In the instant case, admittedly the State of Bihar had neither filed any appeal or cross objection.
Obviously, therefore, on the strength of the first part of sub clause (1) of Rule 22 of order XLI, the State of Bihar could only support the decree not only on the grounds decided in its favour but also on the grounds 179 decided against it.
The Commissioner could not set aside the finding in favour A of the appellant on the strength of order XLI, Rule 22(1) C.P.C. [181 H 182A] 2:1.
The facts and circumstances of these appeals are not such in which it would be appropriate to exercise the power under order XLI, Rule 33.
Rule 33 of order XLI Civil Procedure Code is widely expressed and it must be applied with caution.
The objects of this rule re: (i) to empower the Appellate Court to do complete justice between the parties.
Under this rule the Court has power to make a proper decree notwithstanding that the appeal is as to part only of the decree and such power may be exercised in favour of all or any of the parties even though they may not have filed an appeal or objection; (ii) to avoid contradictory and inconsistent decisions on the same questions in the same suit.
As the power under this rule is in derogation of the general principle that a party cannot avoid a decree against him without filing an appeal or cross objection, it must be exercised with care and caution.
[184 G, 182 G, 184 C] 2:2.
The rule does not confer an unrestricted right to re open decrees which have become final merely because the Appellate Court does not agree with the opinion of the court appealed from.
Ordinarily, the power conferred by this rule will be confined to those cases where as a result of interference in favour of the appellant further interference with the decree of the lower court is rendered necessary in order to adjust the rights of the parties according to justice, equity and good conscience.
While exercising the power under this rule the Court should not lose sight of the other provisions of the Code itself nor the provisions of other laws, viz., the Law of Limitation or the Law of Court Fees etc.
[184D F] Nirmala Bala Ghose & Anr.
vs Balai Chand Ghose & Ors., ; and Giani Ram & Ors.
vs Ramji Lal & Ors., ; , followed.


judgement:
Civil Appeal No. 495 of 1979.
Appeal by special leave from the judgment and order dated the 18th October, 1978 of the Delhi High Court in Civil Writ Petition No. 1292 of 1975.
R.R. Garg, U.R. Lalit and Randhir Jain for the Appellant.
M.C. Bhandare, S.A. Shroff, S.S. Shroff and Miss C.K Sachurita for Respondent No. 1.
The Judgment of the Court was delivered by BAHARUL ISLAM J.
This appeal by special leave is by the appellant, J.D. Jain.
who was a workman and whose services have been terminated by the management of the State Bank of India (hereinafter called the respondent).
230 2.
The material facts are these.
The appellant was working as a cashier in the Meerut City Branch of the State Bank of India.
On June 21, 1971, one Dishan Prakash Kansal ( 'Kansal ' for short) who had a Savings Bank account with the said branch of the State Bank came to the Bank to receive 3 his Pass Book.
On receipt of the Pass Book from the counter clerk, Kansal complained to Wadhera who was the Ledger keeper, that on February 8, 1971, he had withdrawn only Rs. 500 but a debit entry of Rs. 1,500 had been shown in the Pass Book.
Wadhera thereupon took Kansal to the the Supervisor, R.P. Gupta, before whom Kansal repeated his complaint.
Necessary documents pertaining to the said withdrawal were then examined and it was found that Kansal had given a 'letter of authority ' (which expression means, we are told, the withdrawal application form) to the appellant on February 8, 1971 authorising him to withdraw the amount from his account.
The letter of authority showed that it was for withdrawal of Rs. 1,500 though there appeared to be some interpolation suggesting that the figure of Rs. 500 had been altered to the figure of Rs. 1,500.
The matter was then brought to the notice of M. Ramzan, the Agent of the State Bank, before whom also Kansal is said to have repeated his complaint.
Eventually on September 18, 1972, a memorandum of charges was served on the appellant by the respondent stating, inter alia that in the letter of authority, the appellant altered in his own handwriting with different ink the amount of Rs. 500 to Rs. 1,500 and thus received Rs. 1,000 in excess, passing only Rs. 500 to the pass book holder, and that he subsequently, on June 24, 1971, deposited Rs 250 in the account of Kansal to liquidate a part or the amount misappropriated by him.
The appellant replied to the charges.
He denied the allegations.
Thereupon the respondent appointed one Rajendra Prasad as an Enquiry officer and a formal disciplinary enquiry was held against the appellant.
The Enquiry Officer submitted his report to the respondent on February 13, 1973.
The findings of the Enquiry officer were that The appellant had fraudulently altered the amount in the letter of authority given to him by Kansal, withdrew Rs. 1,500 from Kansal 's account and paid Rs. 500 only to Kansal and misappropriated Rs. 1000.
The disciplinary authority on receipt of the report of the Enquiry officer passed the following order (material portion only): 231 "2.
Although, the charges against you are of a serious nature which would, in normal course, warrant your dismissal from the service of the Bank, yet keeping in view your past record, I am inclined to take a lenient view in the matter.
Upon consideration of the matter, I have tentatively come to the decision that your misconduct be condoned and you be merely discharged of in terms of paragraphs 521 (5) (e) of the Sastry Award read with para graph 18.28 of the Desai Award and paragraph 1.1 of the Agreement dated the 31st March 1967 entered into between the Bank and the State Bank of India Staff Federation.
Before, however, I take a final decision in the matter I would like to give you a hearing as to why the proposed punishment should not be imposed upon you.
To enable you to do so, I enclose copies of the proceedings of the enquiry and findings of the Enquiry officer.
You may ask for a hearing or if you so prefer show cause in writing within one week of receipt by you thereof.
If you fail therein, I will conclude that you have no cause to show in this behalf.
" The appellant then submitted a representation to Shri V.B. Chadha, the Regional Manager of the State Bank of India on June 15, 1973.
Shri Chadha after perusing the representation of the appellant and hearing him in person, recommended that the proposed punishment should not be imposed upon the appellant, on the grounds that Kansal had not been examined as a witness and that there had been no written complaint against the appellant.
The respondent, however, did not accept the recommendation, and, by its memorandum of December 7, 1973, discharged the appellant from service with effect from the close of the business on December 22, 1973.
The appellant then having raised an industrial dispute, the Central Government, by its order dated January 17, 1975, referred the following issue to the Central Government Industrial Tribunal at Delhi for adjudication: "Is the management of State Bank of India justified in discharging from service Shri J.D. Jain, Cashier of Meerut Branch, with effect from 22nd December, 1973? If not to what relief is he entitled ?" 232 5.
Before the Tribunal, the appellant denied the charges, He inter alia, pleaded that as Kansal was not examined in the enquiry, there was no legal evidence before the inquiry officer for a finding that he was guilty.
The Tribunal framed the following two issues: "1.
Whether a proper and valid domestic enquiry was held by the Bank and its effect ? 2.
Is the management of State Bank of India justified in discharging from service Shri J.D. Jain, Cashier of Meerut Branch with effect from 22nd December, 1973 ? If not to what relief is he entitled ?" Before the Tribunal, the Management examined no witnesses but produced certain documents and relied on them.
The appellant also did not adduce any evidence.
On a perusal of the evidence recorded by the Enquiry officer, the Tribunal held that on the evidence before it, the appellant could not be held guilty as, according to it, in the absence of the evidence of Kansal, the evidence recorded was hearsay, with the result that it directed reinstatement of the appellant with full back wages from 22nd December, 1973.
The respondent moved the High Court under Article 226 and 227 of the Constitution of India for quashing the award of the Tribunal.
The High Court held that the charges against the appellant had been established and quashed the award of the Tribunal.
It is against this judgment of the High Court that the present appeal by special leave is directed.
Mr. R.K. Garg, learned counsel appearing for the appellant makes three submissions before us: (1) That the Tribunal exercised its powers under Section 11 A of the and the High , Court, exercising powers under Article 2261227 of the Constitution, had no jurisdiction to interfere with the award of the Tribunal; (2) The Tribunal in the perspective of the broad contours of the case rightly refused to rely on the evidence which was hearsay? Kansal not having been examined; 233 (3) Assuming the evidence could be relied on, the High Court committed error in not considering the receipt executed by Kansal showing payment of Rs. 1000 to Kansal and its judgment is vitiated.
In an application for a Writ of Certiorari under Article 226 of the Constitution for quashing an award of an Industrial Tribunal, the jurisdiction of the High Court is limited.
It can quash the award, inter alia, when the Tribunal has committed an error of law apparent on the face of the record or when the finding of facts of the Tribunal is perverse.
In the case before us, according to the Tribunal, as Kansal was not examined, the evidence before it was hearsay and as such on the basis thereof the appellant could not be legally found guilty.
Before the Enquiry officer, the respondent examined the following witnesses: Gupta (Witness 1), Wadhera, the Ledger Keeper (Witness 2), Mahesh Chander who was incharge of Savings Bank account on 8.2.1971 (Witness 3), M. Ramzan, Agent of the Bank (Witness 4), Sarkar (Witness 5), and Bhardwaj (Witness 6).
Bhardwaj was a leader of the employees ' union of the respondent.
He did not support the case of the respondent.
The other witnesses supported the case of the respondent.
Witnesses Nos. 1, 2, 4 and 5 depose that a verbal complaint was made by Kansal in their presence to the effect that he had authorised the appellant to withdraw Rs. 500 which sum was paid to him, but the entries showed that Kansal had withdrawn Rs. 1,500.
Witnesses Vadhera, Ramzan and Sarkar also deposed that the appellant had confessed before them that he had made the alterations in the figure and in words of the sum.
The Tribunal after having made detailed references to the evidence of the above witnesses in fact found, "All that this evidence thus, proves is that a complaint was made by Shri Kansal and that the workmen confessed that he had altered the debit authority.
(emphasis added).
Curiously, however, it held, "This evidence, by no means prove that the workman altered the debit authority to defraud or that he actually defrauded or that he mis.
appropriated the amount of Rs. 1,000 after paying Rs. 500 only to Mr. Kansal from the amount of Rs. 1,500 withdrawn from the bank by him as it was not direct evidence but was in the nature of 234 hearsay evidence since it was learnt through the medium of a third person and that person was not available.
" It further held, "There can be no hesitation, therefore, that the enquiry officer relied on hearsay evidence in arriving at his findings and it vitiated the enquiry.
" It went on, "All this could be enough for raising a suspicion only.
In order to be called 'proved ' it needed evidence which was not there.
" It further observed, "But the question was whether it was done without the consent or knowledge of Mr. Kansal.
There was no evidence on the record to prove it.
The only person who could speak about it was Mr. Kansal.
He did not appear before the inquiry officer, therefore, there was no direct evidence that the change that was admittedly made by the workman in the debit authority was without Mr. Kansal 's consent or knowledge or that it was designed to defraud " (emphasis added) The positive findings of the Tribunal are: (i) Kansal made the complaint as alleged by the management.
(ii) The appellant confessed that he had made the alterations charged with, as alleged by the management, (iii) By implication it has also found that Rs. 1,000 in excess of the original amount of Rs. 500 was received by the appellant as a result of the alternations.
But it has held that as Kansal was not examined, fraud and misappropriation on the part of the appellant cannot be held to be proved, as the evidence was 'hearsay '.
The learned Tribunal, it appears, was obvious of the fact that it was examining the evidence in a domestic enquiry, and not the evidence in a criminal prosecution entailing conviction and sentence.
In a case like the one before us, three kinds of proceedings against the delinquent are possible .
(i) departmental proceedings and action, (ii) original prosecution for forgery and misappropriation, (iii) civil proceedings for, recovery of the amount alleged to be misappropriated.
235 The respondent herein adopted course (i) and instituted the domestic enquiry in which the principle applied by the Tribunal is not applicable; in such an enquiry guilt need not be established beyond reasonable doubt, proof of misconduct may be sufficient.
The learned Tribunal has committed another error in holding that the finding of the domestic enquiry was based on "hearsay" evidence.
The law is well settled that the strict rules of evidence are not applicable in a domestic enquiry.
This Court in the case of State of Haryana & Anr.
vs Rattan Singh held: "It is well settled that in a domestic enquiry the strict and sophisticated rules of evidence under the Indian Evidence Act may not apply.
All materials which are logically probative for a prudent mind are permissible.
There is no allergy to hearsay evidence provided it has reasonable nexus and credibility.
The next question is, is the evidence in the domestic enquiry really hearsay, as held by the Tribunal ? The word 'hearsay ' is used in various senses.
Some times it means whatever a person is heard to say; some times it means whatever a person declares on information given by someone else.
(See Stephen on Law of Evidence).
The Privy Council it the case of Subramaniam v/s.
Public Prosecutor, observed: "Evidence of a statement made to a witness who is not himself called as a witness may or may not be hearsay.
It is hearsay and inadmissible when the object of the evidence is to establish the truth of that is contained in the statement.
lt is not hearsay and is admissible when it is proposed to establish by the evidence, not the truth of the statement but the fact that it was made.
The fact that it was made quite apart from its truth, is frequently relevant in considering the mental state and conduct thereafter of the witness or some other persons in whose presence these statements are made." 236 11.
In the instant case, the alleged misconduct of the appellant was that he forged documents, withdrew Rs. 1,500.
1,000 in excess of the amount he was authorised to do and misappropriated the excess amount of Rs. 1,000.
With regard to the fact whether the appellant manipulated the documents, withdrew excess amount and misappropriated it, there is, of course, no direct evidence of any eye witness except the appellant 's 'confession ' referred to above.
The evidence on which reliance has been taken by the respondent is the confession and circumstantial evidence, namely, the authority letter containing the admitted interpolations by the appellant in his own handwriting in different ink, and the addition of the digit "I" before 500.
The evidence of Kansal would have been primary and material, if the fact in issue were whether Kansal authorised the appellant to make the alterations in the authority letter.
But Kansal 's complaint was to the contrary.
For the purpose of a departmental enquiry complaint certainly not frivolous, but substantiated by circumstantial evidence, is enough.
What the respondent sought to establish in the domestic enquiry was that Kansal had made a verbal complaint with regard to 1) the withdrawal of excess money by the appellant in presence of the four witnesses, namely, Wadhera, Gupta, Ramzan and Sarkar, aforesaid, against his advice.
On the complaint of Kansal, the evidence of these four witnesses is direct as the complaint is said to have been made by Kansal in their presence and hearing; it is therefore, not hearsay.
As the respondent has succeeded in proving that a come plaint was made by Kansal on the evidence of the above named four witnesses, the respondent has succeeded.
No rule of law enjoins that complaint has to be in writing as insisted by the Tribunal.
The learned Tribunal has committed yet another grevious error, in failing to appreciate the confessions made by the appellant "in the presence of witnesses and to the higher officer who appeared as witness" (as found by itself) namely, Wadhera, Ramzan, Gupta and Sarkar, aforesaid.
The confessions of the appellant before the said witnesses were to the effect that he had altered the amount in figure and words in his own hand.
The award of the Tribunal, therefore, has been vitiated by misconception of the law involved in the case.
The last submission of Mr. Garg that the judgment of the High Court had been vitiated as it had not taken into consideration the receipt executed by Kansal showing payment by the appellant of Rs. 1000 to the former is destructive of the appellant 's defence.
In 237 Our opinion, this payment on the contrary, proves the respondent 's case and destroys the appellant 's defence which was that he had withdrawn Rs. 1,500 as advised by Kansal and paid the full amount to Kansal.
In our opinion the High Court was fully in its jurisdiction in quashing the award of the Tribunal.
This appeal has no merit and is dismissed.
We, however, leave the parties to bear their own costs.
N.V.K. Appeal dismissed.

summary:
The Appellant was working as a Cashier in a Bank.
A depositor who had a Savings Bank Account with the Bank came to the Bank to receive his Pass Book.
On receipt of his Pass Book from the Counter Clerk he complained to the ledger keeper that, on a certain date he had withdrawn only Rs. 500 but a debit entry of Rs, 1,500 had been shown in the Pass Book.
The Ledger keeper took the depositor to the Supervisor and The Agent and his complaint was recorded.
When the documents pertaining to the withdrawal were examined it was found that the depositor had given a letter of authority to the appellant authorising withdrawal from his account.
The letter of authority showed that it was for withdrawal of Rs. 1500 though there appeared to be some interpolation suggesting that the figure of Rs. 500 had been altered lo the figure of Rs. 1500.
A memorandum of charge was served on the appellant by the Management respondent No. I and a disciplinary enquiry was held.
The Enquiry Officer submitted his report and his findings were that the appellant had fraudulently altered the amount in the letter of authority given by the depositor, withdrew Rs. 1500 from the depositor 's account and paid Rs. 500 only to the depositor and 228 misappropriated Rs. 1500.
In pursuance of the enquiry the appellant was discharged from service.
The appellant having raised an industrial dispute the matter was referred to the Industrial Tribunal.
Before the Tribunal the appellant denied the charges and pleaded that as the depositor was not examined in the disciplinary enquiry there was no legal evidence before the Enquiry officer for finding that he was guilty.
Before the Tribunal the Management examined no witnesses but produced documents and relied on them.
The Tribunal held that on the evidence before it the appellant could not be held guilty as in the absence of the evidence of the depositor, the evidence recorded was 'hearsay ' and directed reinstatement to the appellant with full back wages.
The respondent moved the High Court under Article 226 and 227 which held that the charge against the appellant had been established and quashed the award of the Tribunal.
In the appeal to this Court it was contended on behalf of the appellant: (1) that the Tribunal exercised its powers under Section 11 A of the and the High Court exercising powers under Article 226/227 had no jurisdiction to interfere with the award; (2) the Tribunal rightly refused to rely on the evidence which was hearsay; the depositor not having been examined, and (3) the High Court committed an error in not considering the receipt executed by the depositor showing payment of Rs. 1000 to the depositor.
Dismissing the appeal, ^ HELD: The award of the Tribunal is vitiated by misconception of the law involved.
It erred in holding that as Kansal (depositor) was not examined, fraud and misappropriation on the part of appellant cannot be held to be proved and in failing to appreciate the confession made by the appellant to the higher officer that he had altered the amount in figures and words in his own hand.
[236 G] 1.
In an application for a writ of certiorari under Article 226 for quashing the award of an Industrial Tribunal the jurisdiction of the High Court is limited.
It can quash the award when the Tribunal has committed an error of law apparent on the face of the record or when the finding of facts of the Tribunal is perverse.
[233 B] In the instant case, three kinds of proceedings against the delinquent were possible: (i) departmental proceedings and action, (ii) Criminal prosecution for the alleged misappropriation of the amount, and (iii) civil proceedings for recovery of the amount alleged to be misappropriated.
The respondent adopted the first course and instituted the domestic enquiry.
In such an enquiry guilt need not be established beyond reasonable doubt; proof of misconduct may be sufficient.
[234 G 235 A] State of Haryana & Anr.
vs Rattan Singh , referred to 229 2.
The word 'hearsay ' is used in various senses.
Sometimes it means whatever a person declares on information given by someone else.
[235 E] In the instant case, the Tribunal after having made a detailed reference to the evidence of the witnesses found that a complaint was made by Kansal and that the appellant confessed that he had altered the debit authority, but held That as Kansal was not examined, this was not direct evidence but was of the nature of 'hearsay ' evidence, with regard to the fact whether the appellant manipulated the documents, withdrew the excess amount and misappropriated it, there is no direct evidence of any of the witnesses except the appellant 's confession.
The evidence on which reliance has been taken by the respondent is the confession and circumstantial evidence.
The evidence of Kansal would have been primary and material.
if the fact in issue were whether Kansal authorised the appellant to make the alterations in the authority letter.
But Kansal 's complaint was to the contrary.
No rule of law enjoins that a complaint has to be in writing as insisted by the Tribunal.
For the purpose of a departmental enquiry, complaint substantiated by circumstantial evidence is enough.
What the respondent sought to establish in the domestic enquiry was that Kansal had made a verbal complaint with regard to the withdrawal of excess money by the appellant.
On the factum of complaint of Kansal the evidence of these four witnessess is direct as the complaint is said to have been made by Kansal in their presence and hearing.
It is not therefore 'hearsay '.
The respondent has succeeded in proving that a complaint was made by Kansal on the evidence of these four witnesses.
[236 A E] Subramaniam v Public Prosecutor [1956]1 W.L.R. 965, referred to 3.
The receipt executed by Kansal showing payment by the appellant of Rs. 1000 to the former is destructive of the appellant 's defence and on the contrary proves the respondent 's case.
[236 H 237A]