judgement:
minal Appeal No. 129 of 1970.
Appeal by Special leave from the Judgment and order dated the 24th July, 1969 of the Calcutta High Court in Criminal Misc.
Case No. 179 of 1969.
D. Mukherjee, and DN.
Mukherjee, for the appellant.
S.B. Wad, for the respondent.
The Judgment of the Court was delivered by DWIVEDI, J.
Seemingly it is a small case.
It has not hit the headlines in the news media.
Nor it has gripped the public mind.
The pecuniary stake is trivial.
A tiny sum of Rs. 200/ is payable as costs by the appellant.
However, this case brings in to the flash point an issue of great consequence to liberty of contract: Where to draw the dividing line between the area of contempt of court and the are of opration of contractual rights.
The appellant is the Chairman of the Hindustan Steel Limited (hereinafter referred to as the Company).
The respondent was employed in the Company on a contract of service.
The contract provided for termination of his service by giving three months ' notice or three months ' pay in lieu thereof and without assigning any cause.
On February 21, 1968, the Company gave him this notice : "It is found that your performance and conduct in this plant have not been good and that you have not proved useful for the Company.
You are hereby advised to note this position and also to try for alternative employment elsewhere.
You may be released from this company at your request on payment of the amount required under the bond executed by you on pro rota basis as a very special case taking into account the period of service that may be rendered by you at the time of release.
in other words, if you choose to leave the service of the company before expiry of bond period, you will be required to pay the company a sum not exceeding Rs. 20,000/ reduced by the amount calculated on pro rota basis in respect of the service you may render after completion of your training.
" Soon thereafter he rushed to the Court.
On May 27, 1968 he instituted a suit in the Court of the Second Munsif, Asansol.
The material reliefs claimed in the plaint are: (1) a declaration that the notice dated February 21, 1968 is illegal, bad, mala fide, without jurisdiction, void and inoperative and is not binding on the plaintiff; (2) a declaration that the charge sheet dated July 1, 1966, confidential character report, dated April 27, 1967, are ultra vires, unenforceable, illegal, unsustainable, mala fide and opposed to rules and natural justice and are not binding on the plaintiff; (3) a declaration that the plaintiff is entitled to promotion to the next higher grade, namely, foreman, from October 10, 1966; 652 (4) a mandatory injunction directing the defendant to promote the plaintiff to the grade of foreman; and (5) a permanent injunction restraining the defendant from giving effect to the notice dated February 21, 1968.
He did not ask the Munsif to grant an interim injunction restraining the appellant and the Company from terminating his service during pendency of his suit.
So no such interim injunction was operating at the relevant time.
Nor did the appellant and the Company give an undertaking to refrain from terminating his service during pendency of the suit.
Forgetting the suit for a moment, there was no impediment in their way of terminating his service according to the contract.
And on February 26, 1968, the Company gave him this notice; "(T)he services of the ( respondent) are hereby terminated with effect from the date of service of this order on him and payment of three months ' pay in lieu of notice in terms of clause (vi) of his appointment letter. dated January 29, 1962.
" The Calcutta High Court (R.N. Dutt and B. Banerji JJ.). has held that the act of giving this notice amounts to, contempt of court.
The learned Judges said: "It seems that he (plaintiff) was more or less non suited.
There is no doubt that since his services have been terminated, some of the reliefs which were prayed for in the suit could become infructuous.
On these considerations, we think that the action of the Chairman in terminating the services of the (plaintiff) . does amount to obstruction or interference with due course of justice in the petitioner 's suit before the Munsif . and so it amounts to contempt of the said court.
" When asked, counsel for the respondent could not cite any decision holding a Muslim husband 's act of divorcing his wife during pendency of her suit for future maintenance as contempt of court.
The divorce completely aborts her suit.
It is true that the law of contempt of court is essential for keeping the administration of justice pure and undefiled.
It is also well to remember that our society is also interested in the fulfillment of a man 's expectations under a contract.
To that end we have a law of contract in our country.
Assigning an unlimited and undefined area to either of them would unduly curtail the area of the other.
Each should have a viable area so that ' justice may hold high her head and contract is not cribbed and cramped.
But what is the yardstick to measure their area of operation.
It has been held that 'initiation in good faith ' of a departmental ' enquiry under the Customs Act by the Custom authorities on the basis of facts which are the subject of a criminal prosecution under that Act against the appellant would not amount to contempt as the authorities ' are acting bona fide and discharging their statutory duties. ' (Ruka Ram G. Geokar vs R. N. Shukla.1 see also Jang Bahadur Singh vs Baij Nath Tewari).2 In another case it was held that the issue of a notification under the Abolition of Jagirs Act for resumption of Jagirs during pendency of a jagirdar 's writ petition for restraining such resumption is not contempt, because the Government was acting bona fide in the exercise of its statutory rights.
(See (1) ; (2) ; 653 Malojirao Shitole vs C. G. Matkar)(1) These cases establish that bona fide exercise of a statutory right by a party to a proceeding is not contempt in the absence of an interim injunction against or undertaking by that party.
There appears to be so sound ' reason why this principle should not extend to the exercise of rights under a contract.
The rights of a party under a contract are his legal rights.
In our view bonafide or honest exercise of a right under a contract should be the yardstick for allocating their respective area to contempt and it gives to each its proper sphere.
So where a party to a suit,, as here,.
terminates the service of the adversary party in the honest exercise of his rights under the contract of service and in the absence of any interim injunction or undertaking, his act would not constitute contempt of court.
We are satisfied from a combined reading of the two notices relating to termination of service that the appellant had terminated the service of the respondent in the honest exercise of the right vested in the Company by the contract of service.
So he has not committed contempt of the Munsif 's Court.
The order terminating his service does not threaten the respondent to withdraw the whole or part of his suit.
The mere circumstance that one or more of the reliefs claimed in the plaint have become infructuous on account of the termination order would not establish contumacy.
The respondent is free to amend his plaint and ask for a relief against the termination order.
Counsel for the respondent has relied on Pratap Singh V. Gurbakah Singh(4) and Gobind Sahai vs State of U.P.(5) These cases are clearly distinguishable on facts.
In the first case a Government employee had instituted a suit as well as a writ petition against the Government in respect of his service conditions.
Thereupon the appropriate authority started a departmental proceeding against the employee.
The charge sheet stated that he had gone to a court of law before exhausting all his departmental remedies and that his action was contrary to official propriety and subversive of good discipline.
This charge was framed on the strength of a circular letter issued by the Chief Secretary of the Government on June 25, 1953.
It emphasised that "any attempt by a Government servant to seek a decision on such issues in a court of law without first exhausting the normal official channels of redress could only be regarded as contrary to official propriety and subversive of good discipline and could well justify the initiation of disciplinary action against him.
This Court held that the authorities have committed contempt of court.
In the second case while the respondent 's suit challenging the election of his opponent to a committee of a political party was pending, the appellant letters expelling him from the party on the strength of an earlier resolution of the party which barred reference of such disputes to a law court and provided for summary removal of any member who initiated a suit.
This Court held that the action of expulsion amounted to contempt of court.
It 'should be observed that in both cases the complainant had a right to institute a legal proceeding in a law court for redress of his grievance.
This legal right (1) A.I.R. 1953 MB 245.
(2) [1962] Supp. 2 SCR 838.
(3) [1969] 1 SCR.
654 could be taken away only by a valid law.
But there was no such law in operation.
So neither the officers of the Government nor the political party had a legal right to take any action for punishing the /suitor for his mere 'act of instituting a legal proceeding in a law court.
In our case the appellant had a right under the contract to terminate, the service of the respondent.
Counsel for the respondent has submitted that as the appellant had tendered an unconditional apology.
in the High Court, we should not interfere with the High Court 's order.
We are unable to appreciate the submission.
Apology goes to sentence and may be accepted only upon a finding that contempt has been committed.
The High Court has in fact held that the appellant has committed contempt.
But it has accepted his apology and refrained from awarding any punishment.
Moreover, the appellant has been directed to pay Rs. 200/as costs to the respondent.
So the appellant is entitled to have the order of the High Court set aside.
We allow the appeal and set aside the order of the High Court.
V.P.S. Appeal allowed.
A02SCI/74 2500 28 5 75 GIPP.

summary:
The respondent was employed in a company.
The contract of service Provided for, the termination of service by giving three months notice or three months pay ,in lieu thereof without assigning any cause.
The company gave him a notice that it was found that his performance and conduct have not been good and that he had not proved useful to the company.
He was therefore advised to try for alternative employment.
He was informed that he would be released from the company at his request on payment by him of the amount under a bond executed by him with some concession.
The respondent thereupon filed a suit claiming various reliefs.
He, did not ask for an interim injunction restraining the appellant and the company from terminating his service during the pendency of the suit, nor did the appellant and the company give any such undertaking.
The company gave the respondent notice terminating his service with effect from the date of the service of the notice and granted him three months ' pay.
The High Court hold that the act of giving the second notice amounted to con.
tempt of court because, as a result of the termination some of the reliefs Prayed for would become infructuous and that would amount to obstruction or interference with due course of justice.
Allowing the appeal to this Court, HELD Where a party to a suit terminates the service of the adversary party in the honest exercise of his rights under the contract of service and in the absence of any interim injunction or undertaking,, the act would not constitute contempt of court.
[653 B C] (a) A combined reading of the two notices shows that the appellant had terminated the service in the honest exercise of the right vested in the company by the contract of service.
The order did not threaten the respondent to withdraw the whole or part of the suit.
[653 C] (b)The circumstance that one or more of the reliefs claimed in the plaint had become infructuous on account of the termination would not establish contumacy, because the respondent was free amend his plaint and ask for an appropriate relief.
[653 D] (c) The fact that the appellant had tendered an unconditional apology in the High Court is not a ground for this Court refusing to interfere, because, (i) the High Court had in fact held that appellant has committed contempt though it did not award punishment because of the apology and(ii)the High Court had directed the appellant to pay cost to the respondent.
[654 B] Taka Qim Goakar vs R. V. Shakla, ; , fang Bahadur Singh vs Baij Nath rewari, Cand Malojirao Shitole vs C. G. Matkar, A.I.R 1953 M. B. 245, referred to.
Pratap ginirh vs Gurbaksh Sinqh, [1962] Supp.
2 S.C.R. 838, and Govind Sahl vs State of U. P. [1969] 1 S.C.R. 176, distinguished.


judgement:
vil Appeal No. 1248 of 1967.
Appeal by certificate from the judgment and order dated April 7, 1966 of the Punjab High Court at Chandigarh in Letters Patent No. 296 of.
section K. Mehta, K. R. Jagaraia and M. Qamaruddin, for the appellants.
H. K. Puri, R. L. Roshan and section K. Dhingra, for respondents Nos.
3 5, 9 & 10.
199 The Judgment of the Court was delivered by ALAGIRISWAMI, J.
This is an appeal by certificate against the judgment of a Division Bench of the Punjab High Court 'in a Letters Patent Appeal.
The question for decision in this appeal depends upon the interpretation of clause (ccc) added to the proviso to sub section (1) of section 60 of the Code of Civil Procedure by Punjab Relief of Indebtedness Act 7 of 1934 as amended by Punjab Acts 12 of 1940 and 6 of 1942 exempting from attachment "One main residential house and other buildings attached to it (with the material and the sites thereof and the land immediately appurtenant thereto and necessary for their enjoyment) belonging to a judgment debtor other than an agriculturist and occupied by him : Provided that the protection afforded by this clause shall not extend to any proper ty specifically charged with the debt sought to be ' recovered.
" The facts giving rise to this appeal are as follows.
The appellants are two brothers and their sons.
They constituted a firm called Jahangiri Mal Kalu Ram.
On 19 11 1956 they were declared insolvents and the Official Receiver took possession of all their properties including the building in dispute.
On 21 11 1956 the appellants filed an objection petition under section 60 of the Code of Civil Procedure read with section 4 of the Provincial Insolvency Act in respect of taking the possession of the building in dispute basing this upon clause (ccc) above referred to.
The Official Receiver contended that the property in dispute is not a residential house but a shop and that the back portion of the building which consists of a kitchen and raised platform etc., for placing water was given in trust to the petitioners for residential purposes at the time of taking the possession of the shop.
The creditors also contended that the property in dispute is a shop and not a residential house, even though the appellants were admitted to be using the back portion of the shop as their residence.
The Trial Court held that ". .the entire building consists; of two distinct units, the one opening in the chowk of themandi being distinct business premises as a shop while theother structure on the back thereof is exclusively a residence hours .
The unit which is a shop has the, main hallwhich has two.
apartments on account of the arched columns 'inthe middle, and the kotha immediately behind the said half.
I consider this kotha to be an integral part of the shop because there is no indication at the spot that it was an essential part of the residen tial house.
To the contrary, the staircase leading from the hall on to the roof of that kotha and the steps from the roof of that kotha leading to the roof of the hall and to the room on a portion thereof, show that the said kotha is an integral part of the shop itself.
The two units being the 200 property of the same persons naturally we would expect connecting doors between these two units.
He, therefore, upheld the objection petition of the appellants in respect of the portion BCDE in the plan and the upper storey thereon, and dismissed it in respect of the rest of the building.
On appeal by the insolvents the learned District Judge of Hissar held that there was no manner of doubt that the building in question is the main residential house of the insolvents and allowed the appeal.
On appeal by the creditors a learned Single Judge observed "Accepting the.
finding of the Insolvency Judge that the shop has a separate access of its own it cannot be denied that the residential portion is connected with it.
The shop is in the ground floor and there is an opening in the Mandi but it is connected with the residential portion on the same floor.
The other portion of the building is entirely devoted to residential purposes.
" In the result he held "It is only a portion of the ground floor which has been used for shops.
In my opinion, the view adopted by the lower appellatecourt is in conformity with the intent and language of theLegislature and is also in accord with the authorities of this Court.
" On a further appeal under the Letters Patent the Division Bench purporting to follow the Full Bench decision of that Court in Ude Bhan & Ors.
vs Kapoor Chand & Ors.
(1), where it was held that if out of the main residential house belonging to a non agriculturist judgment debtor a portion is let out by him to a tenant, the whole house could not be said to be in his occupation, allowed the appeal and set aside the judgments.
of the I earned Single Judge as well as the District Judge and restored the order of the Insolvency Judge.
We have carefully considered the facts of this case and are in agreement with the view of the learned District Judge as well as the learned Single Judge of the High Court that the building is a single one with a portion of it in the down stairs being used as a shop.
That portion opens on the chowk Mandi Dabwali and there is another opening for regular entrance from a public street.
There is no evidence that any portion of the upstairs is being used for the purpose of the shop.
Therefore, there is no warrant for the finding of the Insolvency Judge that the building is in two distinct portions.
Indeed the learned Judges of the Division Bench did not differ from the finding of the first appellate court and the second appellate court on this point.
They seem to accent this finding and proceed on that basis.
Their reasoning was that if a portion of the main residential house of a judgment debtor ceases to enjoy immunity from attachment, in case that portion is let out by the, judgment debtor to a tenant, it (1) I.L.R. 1966 (2) Punjab 400.
201 would necessarily follow that the.
shop portion of a building, the other part of which is being used for residential purpose would not be exempt from attachment.
It appears to us that this conclusion does not follow from the judgment of the Full Bench or from the language of the statute.
It is obvious that what clause (ccc) exempts is the main residential house.
There is no doubt that the building is the main residential house of the insolvents.
The judgment of the Full Bench proceeds on the basis that when a portion of even a main residential house is let out to a tenant by the judgment debtor that portion is not occupied by him and as occupation of the residential house by the judgment debtor is one of the requirements of the statute is order to qualify for exemption from attachment the portion let out cannot be said to be occupied by the judgment debtor and therefore does not qualify for exemption.
Therefore, the decision of the Full Bench gives no guidance in interpreting the question that has to be considered in this case.
The question for decision in this case is whether if a portion of the residential house is occupied by the judgment debtor himself for the purposes of a shop that portion ceases to be part of the residential house.
It appears to us clear that 'it does not.
In the circumstances and social conditions of this country it would be difficult to justify the conclusion that where a part of a residential house is used in connection with the business or profession of the owner of that house that portion ceases to be part of the residential house.
As is well known, very often a lawyer might have his office room in his house, a doctor might have a consulting room in his house, an advocate 's library might occupy one of the rooms of his house.
The room where the lawyer works or his library is located cannot be said to cease to be part of his residential house.
The Punjab Court has taken the same view at least from the year 1951.
In Agha Jafar Ali Khan V. Radha Kishan(1) it was held that "where the whole building is being used for the purposes of residence, the mere fact that there is a shop on the ground floor will not convert the building into something different from a residential house".
The judgment of the Full Bench mentions that it is not clear in that case whether the shop portion of the building was in the possession of the judgment debtor or was rented out by him.
A careful reading of the judgment shows that there was no question in that case of the shop portion of the building being in the possession of anybody except the owner.
In Firm Ganga Ram vs Firm Jai Ram(2) where the ground floor of a building with three floors was being used for commercial purposes and the first and the second floors for residential purposes it was held that the judgment debtor can claim immunity from attachment or sale, with respect to the entire house under the provisions of section 60(1) clause (ccc), where it is the (1) A.I.R. 1951 Punjab 433.
(2) A.I.R. 1957 Punjab 293.
202 only residential house belonging to them and occupied by them It is instructive to refer to a portion of the discussion "The conditions in our country are such which admit of a composite user of the same building.
A part of the same house is used for dwelling, and the other part is meant for commercial or business purpose and sometimes even the later portion, particularly after the business hours, is used for dwelling. ".
Having regard to the mode of living of the people in this country, their habits and customs, it is not possible generally to designate a particular building as one, which is used exclusively for a residential purpose in contradiction to a commercial purpose.
On this basis, residential building of a medical practitioner, will not be exempt from liability to attachment or sale, if in a portion he receives or treats his patient.
_ "Similarly, where in his house, an iron smith works on his forge, a shoes maker maker shoes on his last, a potter turns his wheel, or any other artisan spreads his tools, to make a living, or a petty trader keeps his wares for sale, according to the interpretation, which the learned counsel for the respondent, asks me to put on the words occurring in the Code, the provisions will be powerless in extending any effective protection.
This construction will result in defeating the very purpose of the law.
" We completely agree with the learned Judge 's observations.
It is interesting to note that in Punjab Mercantile Bank Limited (in liquidation) Jullundur City vs Messrs General Typewriter Co., Jullundur City() Tak Chand, J. who gave the above judgment held that where the judgment debtor was residing in the greater part of the house two chabaras on the first floor let out to tenants were not exempt from attachment and sale.
To the same effect is the judgment of the Full Bench relied on by the Division Bench in this case.
Tek Chand, J. has kept clear in his mind the distinction between a case where a portion of the residential house is let out and a portion used by the owner himself, though for a purpose other than residential.
Such use does not make the residential house cease to be a residential house or the portion so used as not part of the residential house.
(1) 8 1.
203 There is no doubt that this was the main residential house of the insolvents and it was occupied by them.
The facts of the case bring it squarely within the scope of the section and the whole building is, therefore, exempt from attachment.
The appeal is, therefore, allowed, the judgment of the Division Bench set aside and the judgments of the learned Single Judge and the learned District Judge are restored.
The respondents will pay the appellants ' costs.
S.B.W. Appeal allowed.

dataset_name: IN-Abs

summary:
The appellants.
two brothers and their sons, constituted a firm.
They were declared insolvent and the Official Receiver took possession of all their properties including the building in dispute.
The appellants filed an objection petition under Sec.
60 of the Code of Civil Procedure read with Sec. 4 of the Provincial Insolvency Act in respect of taking possession of the building in dispute basing this upon cause (ccc) of the, Proviso, subsection (1).
The Trial Court held that the entire building consists of two distinct units, the one being distinct business premises as a shop, while the other structure, on the back thereof, exclusively used a residential premises, and, therefore, upheld the objection petition of the appellants in respect of the residential portion and the upper storey thereon and dismissed it in respect of the rest of the building on appeal the Dist.
Judge and the Single Judge of the High Court held in favour of the appellants.
On a further appeal under the Letters Patent.
the Division Bench purporting to follow the Full Bench Decision of that Court in Ude Bhan and Ors.
vs Kapoor Chand and Ors.
allowed the appeal and set aside the judgments of the learned single Judge and restored the order of the Insolvency Judge.
On appeal by certificate, allowing the appeal, HELD : (1) If a portion of the residential house is occupied by the Judgment debtor himself for the. purpose of a shop that portion does not cease to be part of the residential house.
In the circumstances and social conditions in this country it would be difficult to justify the conclusion that where a part of a residential house is used in connection with the business or profession of the owner of that house that portion ceases to be part of the residential house.
The Punjab High Court has taken the same view at least from the year 1951.
The contrary view taken by the impugned judgment does not flow form the full bench judgment or the language of the Section [201D] Ude Bhan & Ors.
vs Kapoor Chand & Ors., I.L.R. 1966 (2) Punjab 400, Agha Jafar Ali Khan vs Radha Kishore, A.I.R. 1951 Punjab 433, distinguished.
Firm Ganga Ram vs Firm Jia Ram, A.I.R. 1957 Punjab 293 followed.
Punjab Mercantile Bank Limited (in liquidation) Jullundur City vs Messers General Typewriter Co. Jullundur City, , referred to.
(2) There is no doubt that the building in question was the main residential house of the appellants and it was occupied by them.
The facts of the ' case bring it squarely within the scope of the section and the whole building is, therefore, exempt from attachment.
[2O3A]


judgement:
Appeal No. 1936 of 1967 From the Judgment and Decree dated the 14th October, 1966 of Andhra Pradesh High Court in Appeal No. 239 of 1961 and Memo of Cross Objections therein arising out of the judgment and decree dated 28th March 1958 of the Subordinate Judge, Srikakulam in Original Suit No. 101 of 1954.
M. Natesan, K. Jayaram and R. Chandrasekhar, for the appellant, P. Parmeshwara Rao and T. Satyanarayana, for the respondent.
The Judgment of D. G. PALEKAR, and R. section SARKARIA JJ.
was delivered by SARKARIA, J. V. R. KRISHNA IYER, J. gave a separate Opinion.
658 SARKARIA J.
This appeal by certificate, involves an examination of the, limits, of the respective.
jurisdictions of the Settlement Officer/Tribunal and the Civil Court in relation to an inquiry under section 9(1) of the Madras Estates (Abolition and Conversion into Ryotwari) Act, 1948 (for short, Abolition Act) and the effect of the Amending Acts .17 and 18 of 1957 and Act 20 of 1960 on cases regarding such an inquiry pending in or decided by the, Civil Courts.
It arises out of the following facts : The lands in dispute are situated in village Kadakalla, Taluk Palakonda.
On June 13, 1950, the then State Government issued and published a notification under the, Madras Estates (Reduction of Rent) Act, 1947 (for short, Rent Reduction Act) in respect of this village.
Subsequently, the Settlement Officer of Srikakulam suo motu made an enquiry as to whether this village was an "estate" or not within the contemplation of section 9(2) of the Madras Estates (Abolition and Conversion into Ryotwari) Act, 1948 (for short, called Abolition Act) and by an order, dated September 2, 1950, held that it was not an 'inam estate ' within the meaning of section 2(7) of the Abolition Act.
The Settlement Officer further recorded a finding that village Kadakalla became an estate by virtue of the Madras Estates Land (3rd Amendment) Act, 1936.
Against that order of the Settlement Officer, the appellants herein carried an appeal to the Estates Abolition Tribunal, Vizianagaram.
The 'Tribunal by its order, dated September 16, 1952 dismissed the appeal in limine, with the observation that the decision of the Settlement Officer being in their favour the appellants had no right of appeal, The appellants then instituted O.S. 47 of 1953 in the Court of the Subordinate Judge, Srikakulam against the State Government for a declaration that Kadakalla village was not an 'estate ' under section 3 (2) (d) of 1908 Act, and consequently,_the Rent Reduction Act and the Abolition Act were not applicable to it.
The trial court decreed the suit.
Aggrieved by the decree, the State preferred an appeal (A.S. 668 of 1954) to the High court of Andhra Pradesh.
During the pendency of the said appeal, the appellants instituted Original Suit No. 101 of 1954 (out of which the present appeal has arisen) in the Court of Subordinate Judge Srikakulam, against the respondents herein and others for the recovery of Rs. 15,681/19 as rent or damages for the year 1953 in respect of the lands cultivated by them in the area of village Kadakalla.
The suit was resisted by the respondents inter alia on the ground that the suit village was an 'estate ' as defined in section 3(2) (d) of the 1908 Act, and that it had been so held by the Settlement Officer as per his Order dated September 2, 1950.
It was further averred that the defendants not being parties to O.S. 47 of 1953, were not bound by the decision in that case.
It was added that the question as to whether this village was an estate or not, was pending in the High 'Court of Andhra Pradesh in appeal from the decision in O.S. 47 of 1953, and as such, was sub judice.
The jurisdiction of the Subordinate 659 Judge to try the suit (O.S. 101 of 1954) was also questioned.
The claim for rent or damages was also resisted.
On January 22, 1958, the respondents herein made an application for permission to file an additional written statement for adding the plea that the suit village is an 'inam estate.
On March 17, 1958, the trial court dismissed this application holding that the question %ought to be raised, was already covered by Issue No. 1.
The trial court framed as many as eleven issues, out of which Issues 1, 6 and 8 were as follows : (1) Whether the suit village is an estate within the meaning of Section 3 (2) (d) of the Madras Estates Land Act ? (6) Whether the plaintiffs are barred and estopped to claim rents in view of prior pattas and rent decrees that were previously obtained ? (8) Whether this Court has no jurisdiction to try the suit? On March 26, 1958, the Advocates for the parties filed a joint memo to the effect that "both parties agree to abide by the final decision whether in the High Court or in the Supreme Court, as the case may be, in the appeal or revision, arising out of O.S. No. 47 of 1953 on the file of this Court on the question whether the, suit village Kadakalla is not an estate under section 3(2)(d) of the Madras Estates Land Act, as amended upto date".
As a result of this compromise, it was held that the decision of Issues 1, 6 and 8 would follow the final decision in O.S. 47 of 1953.
The remaining Issues were tried and decided on merits.
On March 28, 1958, the trial court keeping in view the joint memo filed by the parties and its findings on the other Issues, passed a decree in these terms : "In case it is ultimately decided by the High Court or the Supreme Court, as the case may be, in the appeal or revision arising out of O.S. No. 47 of 1953 on the file of this Court that the suit village Kadakalla is not an estate within the meaning of section 3 (2) (d) of the Estates Land Act, the defendants to pay to the plaintiffs the sum of Rs. 3,000/ with in terest at 5 1/2 per cent per annum from 26 3 1958 with interest thereon and for costs, and that otherwise suit should stand dismissed with costs and that the decree should take effect from the date of the final decision of O.S. No. 47 of 1953 referred to above.
" The appeal (A.S. 668 of 1954) arising out of O.S. 47 of 1953 was decided by the High Court on February 12, 1959 whereby the decree of the, trial court declaring that village Kadakalla was not an estate, was confirmed.
The application of the State for issuance of a certificate of fitness for appeal to the Supreme Court was dismissed by the High Court.
The State did not prefer any Special Leave Peti 660 tion in this Court, with the result, that the High Court 's decision in that case became final and the decree, dated March 28, 1958, of the Subordinate Judge in O.S. 101 of 1954 also became effective.
After the disposal of its appeal (A.S. 668 of 1954), the Government issued G.O.R.T. No. 619 Rev. dated June 30, 1966, canceling the earlier notifications in respect of this village notwithstanding the fact that prior to such renotification, section 9 A had been inserted in the Abolition Act by the Amending Act 20 of 1960.
Appellants preferred an appeal (A.S. 239 of 1961) against the said decree, dated March 28, 1958, of the Subordinate Judge, to the High Court.
Though in the Memorandum of Appeal, it was said.
as usual, in general terms, that the "decision of the lower court is against law, weight of evidence and probabilities of the case", and that its decree was "worthless and did not conform to the requirements of section 2(2) of the Civil Procedure Code, yet, in substance, the appeal related only to the extent of the land in the possession of the respondents and the quantum of rent or damages.
The appellants ' claim was that the entire suit land, as alleged in the plaint, was under the cultivation of the respondents, and consequently.
the lower court was wrong in not decreeing the appellants ' claim for Rs. 15,681/19 as rent or damages, in toto.
On April 6. 1962.
the respondents filed cross objections contending that the question as to whether Kadakalla village is or is not an 'estate ' as defined in section 3(2)(d) of the 1908 Act, should have been gone into by the trial court and that the rent should have been decreed only in the sum of Rs. 551/29.
The High Court posted the appeal and the cross objections for hearing in July, 1965.
, At that stage, on July 19, 1965.
an application was made by the respondents praying that Exhts.
B 196 and B 197, being copies of the order, dated September 2, 1950, of the Settlement Officer and the order dated September 16, 1952, of the Estate Abolition Tribunal, respectively, be read as additional evidence.
It was contended that the Amending Act 20 of 1960 had added section 9A to the Abolition Act, as a result of which, the order of the Settlement Officer had acquired 'statutory validity '; and since the appellants did not file an appeal within two months from the commencement of the Amendment Act, the decision of the Settlement Officer became final and binding on all the parties including the appellants.
In spite of opposition by the, appellants, the High Court by its order, dated August 23, 1956, allowed this additional evidence and the setting up of the new plea.
The appeal and the cross objections were heard together in August.
The respondents raised a preliminary objection that the suit itself was incompetent as the Civil Court had no jurisdiction to decide whether the suit village is an estate, or not and, therefore, any decision given by the High Court in appeal (A.S. 668 of 1954) would not bind the parties and the decree in the present suit (O.S. 101 of 1954) on the, basis of the judgment and decree in A.S. 668 661 of 1954.
would be without jurisdiction rendering it null and void, .that the Settlement Officer was the competent authority to decide the tenure of the village and his decision had become final in view of the introduction of Section 9A by Act 20 of 1960.
The preliminary objection of the respondents was upheld, The contention of the appellants, that since section 9A was inserted by an amendment which came into force on June 23, 1960, it could not affect the compromise decree of the Court passed earlier on March 28.
1958 or the decree of the High Court whereby both the parties agreed to abide, by the decision of the High Court or the Supreme Court in appeal or revision arising out of O.S. 47 of 1953, was rejected in these terms "We see no force in this contention as Section 9A is designed to meet such of the decisions where it has been held that the village is not an inam estate as it stood after the 1936 Act and certainly the respondents can take advantage of change.
in statute,, if it is to their benefit and there could be no estoppel against a statute and the rights accrued under a statute.
It cannot reasonably be contended that the suit filed by the appellants and the decree obtained have reached any finality as an appeal is only the continuation of the proceedings instituted by the plaintiffs.
" In the result.
it dismissed the appeal holding that the Civil Court was not the forum for the suit as framed by the appellants and the questions raised in the suit including the claim ' for arrears of rent or damages.
were outside the Jurisdiction of the Civil Court.
Before dealing with the contentions canvassed, it will be useful to have a clear idea of the relevant statutory provisions, including the expressions "inam village", "inam estate" and "estate" as defined therein.
section 3(2)(d) of the Madras Estates Land Act.
1908, as it originally stood, defined "estate" as "any village of which the land revenue alone (i.e. melwaram alone) has been granted in inam to a person not owing the kudiwaram (rights in soil) thereof, provided the grant has been made, confirmed or recognised by the British Government or as separated part of such village.
" In this definition, it was not clear whether the inamdar had the melwaram alone or both melwaram and kudiwaram.
To remove this obscurity, the Madras Estates Land (Third Amendment) Act, (18 of 1936), substituted for the original sub clause (d) in section 3(2), this new clause "(d) any inam village of which the grant has been made, confirmed or recognised by the Government 'notwithstanding that subsequent to the grant, the village has been partitioned among the grantees or the successors in title of the grantee or grantees." ' Section 3(2)(d) was further amended by Madras Estates Land Amendment Act II of 1945 with retrospective effect from the date 662 on which the Third Amendment Act 18 of 1936 came into force.
It inserted (among others) Explanation 1, to this clause, which reads "Where a grant as an inam is expressed to be of a named village.
the area which forms the subject matter of the grant shall be deemed to be an estate notwithstanding that it did not include certain lands in the village of that name would have already been granted on service or other tenure or been reserved for communal purposes." Explanation I makes it clear that (apart from being made, confirmed, or recognised by the Government), an inam grant in order to come within the purview of "estate" under section 3(2) (d) has to be a grant expressly made of a named village or whole Village, and not only of a part of the village or of some defined area in a village.
However, it remains and is 'deemed to be a grant of a whole village notwithstanding the exclusion of certain lands already granted on service ,or other tenure or reserved for communal purposes; nor does it cease to be a grant of an entire village merely because the village has been subsequently ' partitioned amongst the grantees or their successors.
The interpretation of "estate" has behind it the authority of a bedroll of decisions, including that of this Court in District Board, Tanjore, vs Noor Mohammed(1) Next, in chronological order, is the Madras Estates (Abolition and Conversion into Ryotwari).
Act, (XXVI of 1948).
Section 1(3) thereof provided that "it applies to all estates as defined in section 3, clause (2) of the Madras Estates Land Act.
1908 (except inam villages which became estates by virtue of the Madras Estates Land (Third Amendment) Act, 1936.
The material part of section 2 of this Act says (3) "Estate" means a zamindari or an under tenure or an under tenure of an inam estate.
(7) "Inam Estate" means an estate within the meaning of section 3.
clause (2) (d), of the Estates Land Act, but does not include an inam village which became an estate by virtue of the Madras Estates Land (Third Amendment) Act, 1936".
Thus, to begin with, this Act did not take in its fold post 1936 inam estates.
Its operation remained confined to pre 1936 inam estates till the commencement of Act 18 of 1957, which we shall presently notice.
Section 9 of the Abolition Act indicates the authorities empowered to determine Inam estate.
It says "(1) As soon as may be after the passing of this Act, the Settlement Officer may suo motu and shall, on application enquire and determine whether an inam village in his jurisdiction is an inam estate or not.
(1) (1952) 2 M. J 586 (section C.) 663 (2) Before holding the inquiry, the Settlement Officer shall cause to be published in the village in the prescribed manner, a notice requiring all persons claiming an in terest in any land in the village to file before, him statements bearing on the question whether the village is an inam estate or not.
(3) The Settlement Officer shall then hear the parties and afford to them a reasonable opportunity of adducing all such evidence either oral or documentary as they may desire to examine all such documents as he has reason to believe are in the possession of the Government and have a bearing on the question before him and give him decision in writing.
(4) (a) Any person deeming himself aggrieved by a decision of the Settlement Officer under sub section (3) may within two months from the date of the decision or such further time as the Tribunal may in its discretion allow, appeal to the Tribunal.
(b) Where any such appeal is preferred, the Tribunal shall cause to.
be Publisher in the village in the prescribed manner a notice requiring all persons who have applied to the Settlement Officer under sub section (1) or filed before him before it, and after giving them a reasonable opportunity of being heard, give its decision.
(c) The decision of the Tribunal under this sub section shall be final and not be liable to be questioned in any court of law.
(5) No decision of the Settlement Officer under sub section (3) or of the Tribunal under sub section (4) shall be invalid by reason of any defect in the form of the notice referred to in sub section (2) or sub section (4) as the case may be, or the manner of its publication.
(6) Every decision of the Tribunal and subject to such decision, every decision of the Settlement Officer under this section shall be binding on all persons claiming an interest in any law in the village.
notwithstanding that any such person has not preferred any application or filed any statement or adduced any evidence or appeared or participated in the proceedings before the Settlement Officer or the Tribunal as the case may be.
(7) In the absence of evidence to the contrary the Settlement Officer and the Tribunal may Presume that an inam village is an inam estate".
Madras Amendment Act 17 of 1951, introduced section 64 A, which runs thus: "64 A.(1) The decision of a Tribunal or Special Tribunal in any proceeding under this Act, or of a Judge of the 664 High Court hearing a case under Section 51 (2), on any matter falling within its or his Jurisdiction shall be binding on the parties thereto, ' and persons claiming under them, in any suit of.
proceeding in a Civil Court in so far as such matter is in issue between the parties or persons aforesaid in such suit or proceeding.
(2) The decision of a Civil Court (not being ;he Court of Small Causes) on any matter within its jurisdiction shall be binding on the parties thereto and persons claiming under them in any proceeding under this Act before a Tribunal or Special Tribunal, or a Judge of the High Court under section 5 1 (2) in so far as such matter is in issue between the parties or persons aforesaid in such proceeding.
" In 1957, two Amending Acts both of which came into force on December 23, 1957, were passed.
One was Andhra Pradesh Act 17 of 1957, which substituted the following clause for clause (a) in subsection (4) of section 9 of the Abolition Act, 1948 : (a) (i) Against a decision of the Settlement Officer under subsection (3), the Government may, within one year from the date of the decision or if such decision was given before the commencement of the Madras Estates (Abolition and Conversion into Ryotwari) (Andhra Pradesh Amendment) Act, 1957, within one year from such commencement and any persons aggrieved by such decision may within two months from the date of the decision or such further time as the Tribunal may in its discretion allow, appeal to the Tribunal.
(ii) If,, before the commencement of the Madras Estates (Abolition and Conversion into Ryotwari) (Andhra Pradesh Amendment) Act, 1957, any order has been passed by the Government against a decision of the Settlement Officer on the ground that the Government were not competent to file an appeal under this clause or that such appeal was time barred, the Tribunal shall on an application filed by the Government within one year from the commencement of the Amendment Act aforesaid, vacate the order already passed by it and pass a fresh order on merits.
" In clause (b) of s.9(4) of the Abolition Act, after the words where such appeal is preferred", the words "by an aggrieved person, the Tribunal shall give notice to the Government and in the case of all appeals whether by the ;Government or by an aggrieved person" were inserted.
The second Amending Act was Andhra Pradesh Act 18 of 1957, section 2 of which substituted the following section for sub section (3) of section 1 of the Abolition Act 665 "It applies to all estates as defined in section 3, clause (2), of the Madras Estates Land Act, 1908, (Madras Act 1 of 1908).
" This Act further substituted the following clause for clause (7) of s.2 of the principal Act: "In an estate" means an estate within the meaning of section 3, clause (2) (d) of the Madras Estates Land Act, 1908 (Madras Act 1 of 1908)".
In s.9 of the principal Act, after the words "Inam village" or "the village", wherever they occurred the words "or hamlet or khandriga granted as inam" were inserted.
It will be seen that Act 18 of 1957, made the Abolition Act applicable even to villages that became estates under the 1936 Amendment of the 1908 Act.
For the purpose of the Abolition Act that distinction between pre 1936 and post 1936 inam grants disappeared, and this Act became applicable to all estates falling under the definition ill section 3 (2) of the 1908 Act.
Andhra Pradesh Act No. 20 of 1960, which came into force on the 23rd of June, 1960 inserted in the Abolition Act, s.9 A, which, provides : " Inquiry under section 9 not necessary in certain cases If before the commencement of the Madras Estates (Abolition and Conversion into Ryotwari) (Andhra Pradesh Second Amendment) Act, 1957 (Andhra Pradesh Act XVIII of 1957) (any decision was given under section 9 in respect of any village that it was not an inam estate as it stood defined before such commencement, and that decision was based on the finding that the inam village became an estate by virtue of the Madras Estates Land ( 'third Amendment) Act, 1936 (Madras Act XVIII of 1936) then: (a) if the decision based on the finding aforesaid was given by the Tribunal under sub section(4) of section 9, no fresh inquiry under that section shall be necessary for taking any, proceedings tinder this Act on the basis of that finding; and (b) if the decision based on the finding aforesaid was given by the Settlement Officer, and no appeal was filed to the Tribunal, the Government or any person aggrieved, may appeal to the Tribunal against the decision and finding within two months from the com mencement of the Madras Estates (Abolition and ment).
Act, 1960 and if no such appeal is filed, the finding of the Settlement Officer shall be final and no fresh inquiry shall be necessary for taking any proceedings under this Act on the basis of that finding.
" 666 The same Act 20 of 1960 introduced this section in the present Act : "12(1) No notification issued under sub section (4) of section 1 of the principal Act during the period between the 23rd December, 1957, and the commencement of this Act, on the basis of finding recorded in any decision given before the said date by the Settlement Officer, or the Tribunal under section 9 of the principal Act (such finding being to the effect that the inam village become an estate by virtue of the Madras Estates Land (Third Amendment) Act, 1936 (Madras Act XVIII of 1936), shall be deemed to be invalid or ever .to have been invalid merely on the ground (a) that before issuing the notification no fresh inquiry was made by the Settlement Officer under the said section 9 after the said date; or (b) that the landholder or other person aggrieved had No. occasion to appeal to the Tribunal against the decision and finding of the Settlement Officer; and all such notifications issued and actions taken in pursuance thereof during the period aforesaid shall be deemed always to have been validly issued and taken in accordance with law.
(2) No suit or other proceeding challenging the validity of any such notification or action or for any relief on the ground that such notification or action was not validly issued or taken shall be maintained or conti nued in any court, and no court shall enforce any decree or other holding any such notification or action to be invalid or grant any relief to any person.
" The first question that falls for decision is : To what extent and in what circumstances the Civil Court is competent in a suit to go into the question whether a particular village is an "estate"? By virtue of section 9 of the Code of Civil Procedure, the Civil Courts 'have jurisdiction to decide all suits of a civil nature excepting those of which their cognizance,, is either expressly or impliedly barred.
The exclusion of the civil court 's jurisdiction, therefore, is not to be readily assumed unless the relevant statute expressly or by inevitable implication does so.
The question thus further resolves itself into the :issue : How far s.9(1) of the Abolition Act confers exclusive jurisdiction on the Settlement Officer to determine inam estates? This matter is not res Integra.
In Addenki Tiruvenkata Thata Desika Charyulu vs State of Andhra Pradesh, (1) this Court held that there is an express bar to the jurisdiction of the civil court to adjudicate upon the question, whether "any inam village" is an "inam 1.
A.I.R. 1964 section C. 807 667 estate" or not, and that ,to the extent of the question stated in section 9(1), the jurisdiction of the Settlement Officer and of the Tribunal are exclusive ".
It was pertinently added that this exclusion of the jurisdiction of the civil court would be subject to two limitations.
First, the civil courts have jurisdiction to examine into cases where the provisions of the Act have not been complied with or the statutory tribunal has not acted in conformity with the fundamental principles of judicial procedure.
The second is as regards the exact extent to which, the, powers of statutory tribunals are exclusive.
The question as to whether any particular case falls under the first or the second of the above categories would depend on the purpose of the statute.
and its general scheme, taken in conjunction with the scope of the enquiry entrusted to the tribunal set up and other relevant factors.
Applying the above principles, the Court clarified the limits of the respective jurisdictions of the Settlement Officer/Tribunal and the civil.
court, thus : the object of the Act is to abolish only "inam estates".
This determination involves two distinct matters in view of the circumstances that every "inam village" is not necessarily "an inam estate" viz., (1) whether a particular property is or is not an "inam village" and (2) whether such a village is "an inam estate" within the definition of section 2(7).
The first of these questions whether the grant is of an "inam village" is referred to in section 9(1) itself as some extrinsic fact which must preexist before the Settlement Officer can embark on the enquiry contemplated by that provision and the Abolition Act as it stood at the date relevant to this appeal, makes no provision for this being the subject of enquiry by the Settlement Officer .
Where therefore persons appearing in opposition to the proceedings initiated before the Settlement Officer under section 9 question the character of the property as not falling within the description of an "inam village", he has of necessity to decide the Issue, for until he holds that this condition is satisfied he cannot enter on the further enquiry which is the one which by section 9(1) of the Act he is directed to conduct.
On the terms of section 9 (1), the property in question being an "inam village" is assumed as a fact on the existence of which the competency of the Settlement Officer to determine the matter within his jurisdiction rests and as there are no words in the statute empowering him to decide finally the former be cannot confer jurisdiction on himself by a wrong decision on this preliminary condition to his jurisdiction.
Any determination by him of this question, therefore, is (subject to the result of an appeal to the Tribunal) binding on the parties only for the purposes of the proceedings under the Act, but no further.
The correctness of that finding may be questioned in any subsequent legal proceeding in the ordinary courts of the land where the question might arise for decision.
" 668 Now let us approach the problem in hand in the light of the principles enunciated in Desika Charyulu 's case (supra).
Mr. Natesan, learned Counsel for the appellants, contends that in the instant case, the decision, dated September 2, 1950, of the Settlement Officer fell within the second category of cases pointed out in Desika Charyulu 's case (supra) which could be challenged in the civil court, because, firstly, Kadakalla village was not an "inam village" as the, ,grant was not of the whole village, and the Settlement Officer had grievously erred in assuming it to be so; secondly, as soon as the Settlement Officer reached the finding that the village was not an "inam estate" within the then extant definition in section 2(7) of the Abolition Act, he became functus officio and had no further jurisdiction under section 9(1) to proceed with the enquiry and hold that it was an estate" under section 3(2)(d) of the Estates Land Act, 1908.
In reply, Mr. P. Rameshwara Rao, learned Counsel for the respondents, maintains that under section 9(1), the Settlement Officer had the jurisdiction to determine all the three facts, namely : (1) whether Kadakalla was an 'inam village '; (2) if so, whether it was a pre 1936 'inam estate ' falling under the definition in section 2(7) of the Abolition Act, or (3) a post 1936 'inam estate ' under section 3(2)(d), of the 1908 Act.
The decision of the Settlement Officer, according to the learned Counsel, as to fact No. (1) was conclusive and operated as res judicata under section 64 A, of the Abolition Act, between the parties, be,cause before the Settlement Officer, it was no body 's case that Kadakalla was not an "inam village".
In these circumstances, the decision of the Settlement Officer not being in excess of his jurisdiction, could not be questioned in a civil court.
The argument, though seemingly attractive, does not stand a close examination and we are unable to accept it.
On the other hand, we find force in what has been contended from the appellants ' side.
Under the Abolition Act, as it stood at the material date, the enquiry by the Settlement Officer could legitimately be confined to the ascertainment of only two issues of fact, viz.(1) Was Kadakalla an "inam village" ? (2) if so, was it an 'inam estate ' as defined in section 2 (7) of the Abolition Act? Once issue (2) was determined, the enquiry would be complete and the limits of his exclusive jurisdiction ,circumscribed by section 9(1) reached; and, if he went beyond those limits to investigate and determine further something which was unnecessary or merely incidental or remotely related to issue (2), then such incidental or unnecessary determination, could be questioned in the civil court.
Again, any finding recorded by the Settlement Officer regarding the property in question being an 'inam village ' or not, is not final or conclusive it being a finding of a jurisdictional fact, only, the preexistence of which is a sine qua non to the exercise of his exclusive jurisdiction by the Settlement Officer.
Investigation as to the existence or otherwise of this preliminary fact is done by the Settlement Officer to ascertain whether or not he has jurisdiction to determine that the particular property is an 'inam estate '.
If upon such investigation, he 669 finds that the property is 'an 'inam village ', the foundation for the exercise of his exclusive jurisdiction is laid, and he can then, and then only, embark upon the enquiry envisaged by the statute.
If such investigation reveals that the property is not an 'inam village ', the con dition precedent to the exercise of such jurisdiction by him, would be lacking.
The Legislature must have visualised that under the cloak of an erroneous finding as to the existence or nonexistence of this prerequisite, the Settlement Officer may illegally clutch at jurisdiction not conferred on him, or, refuse to exercise jurisdiction vesting in him.
Perhaps, that is why the statute does not leave the final determination of this preliminary fact to the Settlement Officer/Tribunal and his erroneous finding on that fact is liable to be question in civil court.
The contention of Mr. Rao that before the Settlement Officer the fact of Kadakalla village being an "inam village" was not disputed, does not appear to be home out by the record.
A perusal of the.
Settlement Officer 's order dated September 2, 1950, would show that it was contended before him on behalf of the Inamdars "that there was no village at all at the time of grant" and "that there were more than one grant as Inam in the village".
Assuming for the sake of argument that the appellants had failed to contest or adduce proof before the Settlement Officer that Kadakalla was not an 'inam village ', then also, we fail to appreciate how, on Principle that would make the case any different so as to preclude the appellants from reagitating that matter in the civil court.
Once it is held that determination of this fact is not a matter of the exclusive jurisdiction of the Settlement Officer, the appellants cannot be debarred on the basis of any doctrine, of res judicata from getting the matter fully and finally adjudicated by a court of competent jurisdiction.
In view of the above discussion, it is clear that under the law in force at the material time, a suit for a declaration that the decision of the Settlement Officer/Tribunal holding certain properties to be an 'estate ' under section 3 (2) (a) of the, 1908 Act was void, was maintainable on the ground that the suit property was not an 'inam village '.
There can be no dispute that Suit No. 47 of 1953 is of that category and falls well nigh within the ratio of Gosukonda Venkata.
Narasayya vs State of Madras,(1) which was approved by this Court in Desika Charyulu 's case (supra).
The main contention of the appellants in this suit was that the village Kadakalla was not in 'inam village ' as the grant did not comprise the whole village and consequently, it is not an 'estate ' within the definition in s.3 (2) (d) of the 1908 Act.
The trial court accepted this contention and decreed the suit.
The High Court confirmed that decision, holding that when the grant was made (in 1774), it was neither of the whole village nor of a named village within the meaning of Explanation 1 to s.3 (2) (d) of the 1908 Act.
In Original Suit 101 of 1954, also, the relief of rent or damages (1) A. I. R. 670 is conditional and dependent upon and linked up (by an agreement between the parties) with the determination of the main question involved in the former suit.
We have, therefore, no hesitation in coming to the conclusion that the common question in both these suits regarding Kadakalla being an estate or not, on the ground that it was not an inam village, was within the competence of the civil court.
Further point to be considered is : whether the jurisdiction of the civil courts to proceed with and determine the aforesaid suits 'was, in any way, affected by the enactment of Amending Acts 17 and 18 of 1957.
For reasons that follow, the answer to this question, in our opinion, must be in the negative.
It is well settled that ordinarily, when the substantive law is altered during the pendency of an action, rights of the parties are decided according to law, as it existed when the action was begun unless the new statute shows a clear intention to vary such rights (Maxwell on Interpretation, 12th Edn. 220).
That is to say, in the absence of anything in the Act, to say that it is to have retrospective operation, it cannot be so construed as to have the effect of altering the law applicable to a claim in litigation at the time when the Act is passed.
Let us, therefore, see whether there is anything in the Amending Acts 17 and 18 of 1957 which in clear language gives them a retrospective effect.
A plain reading of these Amending Acts would show that there is nothing of this kind in them, which, expressly or by necessary intendment, affects pending actions.
The only major change introduced by Act 17 of 1957 was that it gave to the Government a right to file an appeal to the Tribunal, if it felt aggrieved against the decision of Settlement Officer under sub section
(3) of s.9 of the Abolition Act, within one year from the date of the decision, or, if such decision was rendered before December 23, 1957 i.e. the commencement of Act 17 of 1957, within one year from such date.
It further entitled the Government to get its appeal, if any, dismissed, as incompetent, by the Tribunal restored within one year of the commencement of the Amending Act.
Likewise, the only effect of the Amending Act 18 of 1957 was that it enlarged the definition of 'inam estate ' for the purpose of Abolition Act by taking in post 1936 Inams.
There is no non obstante clause in.
these Amending Acts of 1957 with reference to pending or closed civil actions.
Nor is there anything in the scheme, setting or provisions of these Amending Acts which fundamentally alters the conditions on which such actions were founded.
No back date or dates of their commencement have been specified in the body of these statutes as was done in Madras Estates Land Amendment Act 11 of 1945 which was expressly enforced with effect from the date of the commencement of Act 18 of 1936.
These Amending Acts were published in the Government Gazette on December 23, 1957, and will therefore be deemed to have come into force 671 from that date only.
The provisions, of these Amending Statutes are not merely Procedural but affect substantive rights,, and impose.
new obligation ' and disabilities.
In them, the Legislature has not spoken in clear language that they would unsettle, settled claims or take away or abridge rights already accrued, or cause abatement of pending actions.
These Amending Acts, 'therefore, can be construed as having a prospective operation only.
They cannot be interpreted as taking away the rights of the litigants in Suits O.S. 47 of 1953 and O.S. 101 of 1954 (which were at the commencement of these Amendments pending at the appellate or original stage) to have their respective claims determined in, accordance with the law in force at the time of the institution of the actions.
Before we come to the Amending Act 20 of 1960, it is necessary to examine whether the decrees in O.S. 47 of 1953 and O.S. 101 of 1954 had attained finality.
And, if so, when and to what extent ? So far as the decree of the High Court (in A.S. 668 of 1954 arising out of O.S. 47 of 1953) is concerned, there is no dispute that it had become final and conclusive between the parti es to that action, namely, the State Government and the present appellants on February 12, 1954.
Learned Counsel are, however, not agreed as to whether the decree, dated March 28, 1958, passed by the civil court in Suit No. 101 of 1954 had also assumed such a character.
Mr. Natesan.
vehemently contended that this decree in so far as it, pursuant to the agreement between the parties, incorporated in it, the final determination of the High Court in A.S. 668 of 1954 that Kadakalla was not an estate was a consent decree, and as such, was final and non appealable in view of section 96(3) of the Code of Civil Pro cedure.
On the respondents ' side Mr. Rao argued that no part of this decree was final and conclusive between the parties on the ground of estoppel or otherwise, because (a) the appellants had in grounds 1 and 2 of the Memo of Appeal presented in the High Court, challenged the decree in its entirety; (b) the joint memo filed by the Advocates, concerned legal issues, including that of jurisdiction.
and as such the agreement was not lawful that would bind the parties; (c) the respondents were not a party to the proceedings in A. section 668 of 1954 and (d) the arrangement arrived at by the Advocates, being dependent on the happening of a future event, did not amount to a lawful adjustment of the claim, and the decree based on it, was inchoate.
None of the points urged by Mr. Rao appears to hold water.
The allegations in grounds 1 and 2 of the Memo of Appeal (which have been referred to in a foregoing part of this judgment) are too vague and general to amount to an averment.
They appear to have been introduced just as a matter of form and habit by the draftsman.
From the Memo of Appeal, read as a whole, it is clear that, in substance and truth,, the challenge was directed only against that part of 3 L748SCI/74 672 the decree which fixed the quantum of rent and damages.
In fact, before the, High Court it was vigorously contended on behalf of the ,appellants that , part of the decree, which, in effect, declared that the village is not an estate ' under section 3 (2) (d), having been imported with the consent of the parties, was not appealable under section 96(3), Code of Civil Proce dure, and, in reality, had not been appealed against.
In support of this contention, reliance was placed on the, Division Bench ,decision in Srinivasa vs Tathachariar(1).
The High Court did not discuss or distinguish this decision.
Nor did it say in so many words that the whole of the decree including the part based on compromise, was under challenge in the appeal.
It rejeited the contention with the remark that it had already "observed that the appeal is but a continuation of the, suit and there could be no estoppel against a statute".
Perhaps, it was assumed that in the Memo of Appeal, every bit of the decree was being challenged by the appellants.
We think, with all respect, that such an assumption was contrary to the well established principle that in construing a pleading or a like petition, in this ,country, the court should not look merely to its form, or pick out from it isolated words or sentences; it must read the petition as a whole, gather the real intention of the party and reach at the substance of the matter.
Thus construed, the Memo of Appeal in this, case could not be said to contain a challenge to that part of the decree which was in terms of the compromise agreement between the parties.
Order 23, Rule 3, Code of Civil Procedure, not only permits a partial compromise and adjustment of a suit by a lawful agreement, but further gives a mandate to the court to record it and pass a decree, in terms of such compromise or adjustment in so far as it relates to the suit.
If the compromise agreement was lawful and, as we shall presently discuss, it was so the decree to the extent it was a consent decree, was not appealable,because of the express bar in section 96,(3) of the Code.
Next point is, whether this agreement was lawful ? We have already discussed that the Amending Acts of 1957 did not affect pending actions in which a declaration is sought that a particular property is not an estate, on the ground that it is not an 'inam village '.
This issue which was intertwined with that of jurisdiction, was very largely a question of fact.
It follows therefrom that in any such suit, the parties in order to avoid unnecessary expense and botheration, could legitimately make an agreement to abide by a determination on the same point in issue in another pending action in an advanced stage.
There was nothing unlawful and improper in such an arrangement particularly when the interests at the respondents were sufficiently safeguarded by the State which was hotly controverting the decree of the trial court regarding Kadakalla being an estate.
By no stretch of reasoning it could be said that this agreement was collusive or was an attempt to contract out of the statute.
There can be no doubt that as soon as the Court accepted the compromise agreement between the parties, and, acting on it, passed a (1) A. I. R. 673 decree in terms thereof, the compromise, to the extent of the matter covered by it, was complete.
Nothing further remained to be done by the parties in pursuance of that agreement.
The decree had become absolute and immediately executable on February 12, 1959 when the High Court in A.S. 668 of 1954 finally decided that Kadakalla was not an estate.
Be that as it may,, the bar to an appeal against a consent decree, in sub section
(3) of section 96 of the Code is based on the broad principle of estoppel.
It presupposes that the parties to an action can, expressly or by implication, waive or forego their right of appeal by any lawful ,agreement or compromise, or even by conduct.
Therefore, as soon as the parties made the agreement to abide by the determination in the ,appeal (A.S. 668) and induced the court to pass a decree in terms of that agreement, the principle of estoppel underlying 196(3) became operative and the decree to the extent it was in terms of that agreement, became final and binding between the parties.
And it was as effective in creating an estoppel between the parties as a judgment on ,contest.
Thus, the determination in A.S. 668 that Kadakalla was not an 'estate ' became as much binding on the respondents, as on the parties in that appeal.
In the view we take, we can derive support from the ratio of this Court 's decision in Raja Sri Sailendra Narayan Bhanja Deo vs State of Orissa(1).
In that case, there was a compromise decree between the predecessors in title of the appellant therein on the one hand, and the Secretary of State on the other, that Kanika Raj was an 'estate ' as defined by Orissa Estates Abolition Act of 1951.
This Court held that the appellant was estopped by the compromise decree from denying that the Raj was not such an 'estate '.
In the light of the above discussion, we would hold that part of the decree in Suit No. 101 of 1954 which was in terms of the compromise agreement had become, final between the parties, and, the appeal from that decree could not be said to be a continuation of that part of the claim which had been settled by agreement.
The combined effect of the two integrated decrees in Suit No. 47 and Suit No. 101, in so far as they, declared that Kadakalla, not being an. 'inam village, was not an estate under section 3(2)(d) of the 1908 Act, was to completely vacate and render non est the decision dated September 2, 1950 of the Settlement Officer.
Against the above background, we have to consider whether the Amending Act 20 of 1960 operates retrospectively to nullify final decrees of civil courts which had before its commencement, declared such decisions of Settlement Officer totally void and nonexistent ? Does the 'Act expressly or by necessary intendment bring into life again all such dead decisions of the Settlement Officer ? In approaching these questions, two fundamental principles of interpretation have to be kept in view.
The first is, that if the Legislature, (1) ; 674 acting within its legislative competence, wants to neutralise or reopen a court 's decision, "it is not sufficient" to use the words of Hidaytullah C.J. in Shri Prithvi Cotton Mills Ltd. vs Broach Borough Municipality(1) "to declare merely that the decision of the Court shall not bind, for that is tantamount to reversing the decision in exercise of judicial power which the Legislature does not possess or exercise.
A court 's decision must always bind unless the conditions on which it is based are so fundamentally altered that the decision could not have been given in the altered circumstances.
" Thus, the first test to be applied is, whether the Amending Act 20 of 1960 has so radically altered the conditions on which the said decrees proceed, that they would not have been passed in the altered circumstances ? The point is that the law which was the basis of the decision must be altered and then, the foundation failing, the binding value of the decision fails when the non obstante clause is superadded.
As shall be presently seen, by this test, the answer to this question must be in the negative.
The second principle to recall the words of Bowen L.J. in Reid vs Reid(2) is, that in construing a statute or "a section in a statute which is to a certain extent retrospective, we ought nevertheless to bear in mind the maxim (that is, except in special cases, the new law ought to be construed so as to interfere as little as possible with vested eights as applicable whenever we reach the line at which the words of the section cease to be plain.
That is a necessary and logical corollary of the, general proposition that you ought not to give a larger retrospective power to a section, even in an Act which is to some extent intended to be retrospective, than you can plainly see the Legislature meant.
" With the above principle in mind, let us now examine the provisions of the Amending Act 20 of 1960.
In this Act, also no back date for its commencement has been mentioned.
It will, therefore, be deemed to have commenced on June 23, 1960, which is the date on which it was published in the Govt.
Gazette.
It does not say (excepting in section 12 inserted by it which obviously does not apply to the facts of this case) that the amendment would have effect and would be deemed always to have had effect from the inception of the parent Act, nor does it use any equivalent expressions or similar words which are usually found in Amending Acts intended to have retrospective operation without any limit. ' Section 9 A inserted by this Amending Act in the parent Act, does not begin with any non obstante cause, whatever having reference to decrees or orders of civil courts.
In terms, it concern,s itself only with a certain category of decisions given before the commencement of Act 18 of 1957 by the Settlement Officer/Tribunal, under section 9 of the Abolition Act.
Such decisions are those which were based on the finding that a particular Inam village had become estateby virtue of the.
Madras Estates Land (Third Amendment) Act, 1936.
The Order, dated September 2, 1950, of the Settlement Officer in the instant case, was a decision of this category, inasmuch as he held that.
Kadakalla was not an 'inam estate ' because it was a post 1936 (1) L19701 1 S.C.R. 388.
(2) at 408.
675 inam, and as such, was not covered by the definition in section 2 (7) of the Abolition Act.
But, before the commencement of the Amending Act, 1960, this decision as a result of the High Court 's decree, stood finally vacated.
It is not at all clear from the language of this Amending Act, that the intention was to revive even such legally non existent decisions of the Settlement Officer.
On The contrary, definite indications ire available that the section was not intended to have unlimited retrospective operation.
The first of such indications is available from the marginal heading of section 9 A, itself " which is to the effect : "Inquiry under section 9.
not necessary in certain cases", The heading discloses the purpose as well as the extent of the new provision.
it envisages only such cases in which the decision of the Settlement Officer was not successfully challenged in the civil court on the ground that the parti cular property was not an inam village; for, it would be pointless, only in such cases, to hold a further inquiry into the matter.
The second hint of legislative intent is available in section 64 A (2) which has not been touched by the Amending Act.
Section 64 A(2) provides that the decision of the civil court on any matter within its jurisdiction shall be binding on the parties thereto and persons claiming under them in any proceeding under the Abolition Act before the Tribunal or the Special Tribunal.
If the intention was to exclude the Jurisdiction of the civil court altogether, s.64 A(2) would either have been deleted or drastically amended so as to alter the basic conditions with effect from the very inception of the parent Act, that in the altered Conditions those decisions could not have been rendered by the civil courts.
For instance, it could say that the decision of the Settlement Officer on the question whether a particular property is an 'inam village ' or not, would be conclusive and final and would always be deemed to have been so." In view, of what has been said above, we are of the opinion that s.9 A takes in its retrospective sweep only those decisions of the settlement Officer or the Tribunal which at the commencement of the Amending Act 20 of 1960 were subsisting and had not been totally vacated or rendered non est by a decree of a competent court.
The decision dated September 2, 1950 of the Settlement Officer in the instant case, was not such a decision.
It had ceased to exist as 'a result of the inter linked decree in O.S. 47 of 1953 and O.S. 101 of 1954, passed before the enactment of this Amending Act.
The Amending Act of 1960, therefore, does not in any way, affect the finality or the binding effect.
of those decrees.
Quite, a number of authorities were cited by the learned Counsel on both sides, but it is not necessary to notice all of them because in lost of them the facts were materially different.
Only one of those cases in which the interpretation of sections 9 A and 64 A was involved reserves to be noticed.
It is reported in Yeliseth Satyanarayana vs Aditha agannadharab and ors.(1) (1) [1966] I.L.R. A.P. 729.
676 The writ petitioners in that case had challenged the order of the Estates Abolition Tribunal which had held (1) that the previous order of the Civil Court holding the suit lands to be an estate, by virtue of the Amending Act XVIII of 1936 to the Madras Estates Land Act, 1908, was not res judicata under section 64 A of the Abolition Act and (2) that the land holder had a right of appeal under section 9 A of the said Act, and that the inam was not of the whole village and, conse quently, was not an 'estate '.
The first question for consideration by the High Court was, whether the appeal filed by the land holder before the Estates Abolition Tribunal was maintainable, notwithstanding the fact that such an appeal was not entertained earlier by the Tribunal on the ground of its being incompetent.
On the construction of section 9 A(b), this question was answered in the affirmative.
The second question before the High Court was, whether the previous judgments of the Civil Court were res judicata under section 64 A.
The Bench analysed and explained the circumstances in which the first or the second sub s of section 64 A operates.
It will be useful to extract those observations here "The bar under section 64 A is applicable in two sets of circumstances; one, where the decision was of a Tribunal or Special Tribunal or of a Judge of the High Court hearing a case under section 51; (2) the other, where it is a decision of a Civil Court on any matter falling within its jurisdiction.
The decisions mentioned in the first category are binding on the Civil Courts and the decisions mentioned in the second category are binding on the Tribunal or Special Tribunal or a Judge of the High Court when he hears a case under section 51 (2).
In so far as the facts of this case are concerned, it is sub section (2) of section 64 A that is applicable." On the second question, the learned Judges held that the previous decisions of the Civil Court could not operate as res judicata because the issue as to whether the suit property was an estate under the Amending Act of 1957, was not under contest.
Both the parties as a matter of concession, had conceded that fact and the Government.
was not a party to the proceeding.
In these peculiar circum stances, it was held that the 'concession or assumption made in the previous proceedings, was not a 'decision ' within the meaning of section 64 A(2).
In the case before us, as already observed, the State had contested this issue regarding Kadakalla being an estate or not, right upto the High Court.
It would, therefore, operate as res judicata between the State and the land owners.
The same binding effect is produced by estoppel raised by the consent decree in the suit out of which the present appeal has arisen.
Thus, this ruling does not, advance the case of the respondents.
For all the foregoing reasons, we allow this appeal, reverse the judgment of the High Court and send the case back to it for decision 677 on the remaining issues in accordance with law.
We make no orders as to the costs of this Court.
KRISHNA IYER, J.
The judgment just delivered has my concurrence.
But a certain juristic thought expressed therein and consecrated in an authoritative passage which has fallen from Bowen, L.J., in Reid vs Reid(1) persuades me to break my silence not so much in dissent but in explanatory divagation.
The proposition there expressed and here followed relates to the presumption against vested rights being affected by subsequent legislation.
Certainly this legal creed of Anglo Indian vintage has the support of learned pronouncements, English and Indian.
But when we apply it in all its sternness and sweep, we err.
Precedents should not be petrified nor judicial dicta divorced from the socioeconomic mores of the age.
Judges are not prophets and only interpret laws in the light of the contemporary ethos.
To regard them otherwise is unscientific.
My thesis is that while applying the policy of statutory construction we should not forget the conditions and concepts which moved the judges whose rulings are cited, nor be obsessed by respect at the expense of reason.
Justice Gardozo(2) has in felicitous words made the same point : "There should be greater readiness to abandon an untenable position . when in its origin it was the product of institutions or conditions which have gained a new signifi cance or development with the progress of the years.
In such circumstances, the words of Wheeler, J., in Dwy vs Connecticut Co., , 99,.
express the tone and temper in which problems should be met : "That court best serves the law which recognizes that the rules of law which grew up in a remote generation may, in the fullness of experience, be found to serve another generation badly, and which discards the old rule when it finds that another rule of law represents what should be according to the established and settled judgment of society, Ind no considerable property rights have be come vested in reliance upon the old rule.
It is thus great writers upon the common law have discovered the source and method of its growth, and in its growth found its health and life.
It is not and it should not be stationary, Change of this character should not be left to the,, legislature.
" If judges have woefully misinterpreted the mores of their day, or if the mores of their day are no longer those of ours, they ought not to tie , in helpless submission, the hands of their successors.
" The Indian Constitution, adopting the fighting faith of equal_protection of the laws to all citizens, necessarily contemplates a new jurisprudence where vested rights may be, and often times are, extensively interfered with for achieving the founding fathers ' social goals.
(1) [1886] 31 Ch.
D.402;408.
(2) Cardozo The Nature of Judicial Process; PP.
151 52.
678 Legislative exercises directed towards distributive justice, as in the present case, cannot be considered in the light of a dated value system, though sanctified by bygone decisions of Courts.
However, in the present case, let me hasten to repeat, the Act in question is clear about its intent and its application gives little difficulty.
I have said these words only to enter a mild caveat, on the lines indicated, so as to obviate future misapprehensions about the,rule,of interpretation not to add a new element of judicial sub jectvism.
Speaking generally, courts have to be anchored to well known canons of statutory construction and if they are out of time with the law makers ' meaning and purpose the legitimate means of setting things right is to enact a new Interpretation Act.
P.B.R. Appeal allowed.

summary:
The Settlement Officer under the Madras Estates (Abolition and Conversion into Ryotwari) Act, 1948 suo motu made an inquiry as to whether a particular village notified by the State Government was an estate or not within the contemplation of section 9(2) of the Act and held that it was not an "inam estate" within the meaning of section 2(7) of the Abolition Act but that the village became an estate by virtue of Madras Estates Land (3rd Amendment) Act, 1936.
Ther appellants unsuccessfully appealed to the Estate Abolition Tribunal.
The appellant then instituted a suit (O.S. 47 of 1953) against the State Government for a declaration that the village was not an "estate" under section 3(2)(d) of them Madras Estates Land Act, 1908 and consequently Madras Estate (Reduction of Rent) Act, 1947 and the Abolition Act were not applicable to it.
The trial court decreed the suit.
The State Preferred an appeal.
During the pendency of the appeal the appellant filed a suit (O.S. No. 101 of 1954) against the respondents for recovery of certain amount as rent or damages in respect of lands cultivated by them in the village in dispute.
The respondents contended that the village was an estate within the meaning of the Act and that it had been so held by the Settlement Officer.
Ultimately both the parties filed a joint memo on 26th March, 1958 that they would abide by the decision of the High Court or the Supreme Court in the appeal or revision arising out of the suit (O.S. 47/53) on the question whether the village was or was not an "estate" under, section 3(2)(d) of the Madras Estates Land Act.
The High Court (in A.S. No. 668 of 1954 which was an appeal arising out of O.S. 47 of 1953) confirmed the decree of the trial court that the village in dispute was not an 'estate '.
The State did not appeal, with the result that the High Court 's decision became final and the decree dated 28th March, 1958 became, effective.
Against the decree of 28th March, 1958 the appellants preferred an appeal (A.S. 239 of 1961) to the High Court.
The appeal related only to the extent of the land in the possession of the respondents and the quantum of rent or damages.
The appellants ' claim was that the entire land was under cultivation of the respondents and so the lower court was wrong in not decreeing the appellants ' claim for rent or damages in toto.
The respondents raised a preliminary objection at the time of hearing of the appeal that the suit itself was incompetent as the Civil Court had no jurisdiction to decide whether the suit village was an estate or not and, therefore, any (decision given by the High Court would not bind the parties and the decree in O.S. 101 of 1954 would be without Jurisdiction rendering it null and void and that the Settlement Officer was the competent authority to decide the tenure of the village and his deci sion had become final in view of the introduction of section 9A by Act 20 of 1960.
The High Court upheld the preliminary objection of the respondents and rejected the contentions of the appellants that since section 9A was inserted by an amendment which came into force on 23rd June, 1960, it could not affect the compromise decree of the court passed on March 28, 1958 or the decree of the High Court by which both the parties agreed to abide by the decision of the High Court or the Supreme Court in appeal or revision arising out of O.S. 47 of 1953.
The High Court held that the Civil Court was not the forum for the suit as framed by the appellants and the questions raised in the suit L748SuP CI/74 656 including the claim for arrears of rent or damages, were outside the jurisdiction of the Civil Court, and so dismissed the appeal.
Allowing the appeal, HELD:1 (a) There is no doubt that the question was within the competence of the Civil Court.
Under the Abolition Act, as it stood at the material date, the inquiry of the Settlement Officer could legitimately be confined to the ascertainment of only two disputes of fact, viz., (i) Was the village an "inam village"? (ii) If so, was it an 'Inam Estate ' as defined in section 2(7) of the Abolition Act ? Once issue (ii) was determined, the inquiry would be complete and the limits of his exclusive jurisdiction circumscribed by section 9(1) reached; if he went beyond those limits to investigate and determine something which is unnecessary or merely incidental or remotely related to issue No. (ii), 'then such incidental or unnecessary determination could be questioned in a Civil Court.
[668FG] (b) Any finding recorded by the Settlement Officer regarding the property in question being an 'inam village ' or not, ' is not final or conclusive it being a finding of a jurisdictional fact only, the Preexistence of which is a sine qua non to the exercise of his exclusive jurisdiction by the Settlement Officer.
[668H] (c) The legislature must have visualised that under the cloak of an erroneous finding as to the existence or nonexistence of this prerequisite, the Settlement Officer may illegally clutch at jurisdiction not conferred on him or refuse to exercise jurisdiction vesting in him.
Perhaps that is why the statute does not leave the final determination of this preliminary fact to the Settlement Officer/Tribunal and his erroneous finding on that fact is liable to be questioned in a Civil Court.
Once it is held that determination of this fact is not a matter of the exclusive jurisdiction of the Settlement Officer, the appellants cannot be debarred on the basis of any doctrine of res judicata from getting the matter fully and finally adjudicated by a court of competent jurisdiction.
[669B C; E] Addanki Tiruvenkata Tata Desika Charyulu vs State of Andhra Pradesh A.I.R. 1964 S.C. 807 followed.
District Board, Tanjore vs Noor Mohammed, (1952) 2 MJ.
586 (S.C.) referred to.
(2) It is well settled that ordinarily when the substantive law is altered during the pendency of an action, rights of the parties are decided according to law, as it existed when the action was taken unless the new statute shows a clear intention to vary such rights.
A plain reading of the impugned Act would show that there was nothing of this kind which expressly or by necessary intendment affects pending actions.
[67OC D] (b) There is no non obstante clause in the amending Acts 17 and 18 of 1957 with reference to pending or closed civil actions.
These amending Acts ' were published in the government gazette of December 23, 1957 and will therefore be deemed to have come into force from that date only.
They could therefore be construed as having prospective operation only.
[67OG H] (c) In the Amending Act 20 of 1960 also no back date for its commencement has been mentioned.
It will, therefore, be deemed to have commenced on June 23, 1960 which is the date on which it was published in the Government gazette.
[674E] Section 9A takes in its retrospective sweep only those decisions of the Settlement Officer or the Tribunal which at the commencement of 'the Amending Act 20 of 1960 were subsisting and had not been totally vacated or rendered non est by a decree of a competent court.
[675 F] In the instant case the decision of the Settlement Officer dated September 2, 1950 was not such a decision.
It had ceased to exist as a ' result of the inter linked decree in O.S. 47 of 1953 and O. section 101 of 1954 passed before the enactment of the Amending Act.
The Amending Act of 1960, therefore, does not in any way affect the finality or the binding effect of those decrees.
[675G] 657 (d) Order 23 rule 3 C.P.C. not only permits a partial compromise and adjustment of a suit by a lawful agreement, but further gives a mandate to the court to record it and pass a decree in terms of such compromise or adjustment in so far as it relates to the suit.
If the compromise agreement was lawful the decree to the extent it was a consent decree was not appealable because of the express bar in section 96(3) of the Code.
[672E] Raja Sri Sailendra Narayan Bhanja Deo vs State of Orissa ; , Shri Prithvi Cotton Mills Ltd. vs Broach Borough Municipality and Reid vs Reid at 408, followed.
(e) In any suit the parties, in order to avoid unnecessary expenses and botheration, could legitimately make an agreement to abide by a determination on the same point in issue in another pending action in an advanced stage There was nothing unlawful and improper in such an arrangement particularly when the interests,of the respondents were sufficiently safeguarded by the State.
By no stretch of reasoning it could be said that the agreement was collusive or was an attempt, to contract out of the statute.
In the instant case as soon as the parties made the agreement to abide by the determination in the appeal (A. section 668) and induced the court to pass a decree in terms of that agreement the principle of estoppel underlying section 96(3) C.P.C. became operative and the decree to the extent it was in terms of that agreement became final and binding between the parties.
It was as effective in creating an estoppel between the Parties as a judgment on contest.
[672F C & 673C] In the instant case that part of the decree in suit No. 101 of 1954 and the appeal from that decree could not be said to be a continuation of that part of the claim which had been settled by agreement.
The combined effect of the two integrated decrees was to completely vacate and render non est decision dated September 2, 1950 of the Settlement Officer.
[673F] Raja Sri Sailendra Narayan Bhanja Deo vs State of Orissa ; applied.
Per Krishna Iyer, J. concurring Courts have to be anchored to well known canons of statu tory construction and if they are out of tune With the law maker 's meaning and purpose the legitimate means of setting things right is to enact a new Interpretation Act.
[678B] The Indian Constitution, adopting the fighting faith of equal I protection of the laws to all citizens, necessarily contemplates a new jurisprudence where vested rights may be, and often times are, extensively interfered.
with for achieving the founding fathers ' social goals.
Legislative exercises directed towards distributive justice as in the present case, cannot be considered in the light of dated value system, though sanctified by bygone decisions of Courts.
[677H] In the present case the Act in question is clear about its intent and its application gives little difficulty.