judgement:
Civil Appeal No. 818 of 1978 Appeal by Special Leave from the Judgment and order dated 10 4 1978 of the Punjab and Haryana High Court in Civil Revision No. 458 of 1978 (O & H) G. L. Sanghi, B. Datta, K. K. Manchanda and Ishwar Chand Jain for the Appellant.
P. Govindan Nair and N. Sudhakaran for the Respondent.
The Judgment of the Court was delivered by KRISHNA IYER, J.
The Holmesian homily that the life of the law is not logic but experience directs our humane attention, in this appeal against an order in execution for eviction of an advocate in Chandigarh, affirmed by court after court, to a reading of the textual definition of 'tenant ' [s.2 (i)] in the context of the broad embargo on ejectment of urban dwellings in section 13 of the East Punjab Rent Restriction Act, 1949 (hereinafter referred to as the Act).
Chandigarh, a blossom in the desert, has served as the capital of two States; and, with explosive expansion, thanks to the marvellous human resources of Punjab & Haryana, become a crowded, though not yet chaotic, city with chronic accommodation scarcity.
Consequently, laissez faire law, in the matter of landlord 's right to evict his tenant, was subject to the act with effect from 4 11 1972.
From then on, tenant could be dispossessed except on the ground set out in section 13.
But if a landlord had already obtained a decree for eviction earlier to this dateline, was he to be restrained by section 13 which forbade even execution of decrees against tenants, or was he free from the statutory fetters because the defendant had ceased to be a tenant on the passing of the decree, having forfeited his status by the destructive effect of a com promise, as in this case? An advocate, under this Act, belongs to a 'scheduled ' class of tenants whose dwellings enjoy special protection.
The appellant advocate tenanted a building belonging to the respondent.
The latter sued for possession and the former, with refreshing realism, entered into a compromise and agreed to vacate by a certain date on certain terms regarding rent which do not bear upon the dispute before us, 143 A decree in terms thereof was passed on 9 10 1972.
Then came the Act, which by extension of its operation, applied to Chandigarh with effect from 4 11 1972.
Had the decree been passed but a few days later, the Act would have admittedly interdicted the eviction because of section 13.
Had the decree been made and executed a day before the extension of the Act, the years of litigative procrastination of eviction might have been impossible.
These mystic 'might have beens ' are gambles of time which spill beyond our jurisdiction and statutory cognisance.
The salvation of the appellant is certain if he be a 'tenant ' within the meaning of the Act.
His eviction is certain if the definition of 'tenant ' does not ensconce him in its amplitude.
Decisions of peripheral relevance, but of different kernel, have been cited on both sides, and the one which has tilted the scales in the Chandigarh jurisdiction in favour of decree holder landlord is Subudhi 's case.
Precedents are law 's device to hold the Present prisoner of the Past and must bind only if squarely covered.
Subudhi 's case decided under the Orissa House Rent Control Act, 1958, is not one such.
The key word is 'tenant ' and if under the Act the appellant fills the bill definitionally he is immune from eviction when read with section 13.
Subudhi (supra) turns on a significantly different definition which cuts down the wide connotation by a tail end qualification.
The semantic sweep of section 2 (i) in our Act, by clear contrast takes in a wider group and we have no indication in that judgment whether a provision like section 13 which makes the restriction applicable also to decrees was present in the Act there debated.
Therefore, we side step those rulings and go straight to the two provisions and their meaning in the statutory setting.
It is too platitudinous to preach and too entrenched to shake, the proposition that rent control legislation in a country of terrible accommodation shortage is a beneficial measure whose construction must be liberal enough to fulfil the statutory purpose and not frustrate it.
So construed, the benefit of interpretative doubt belongs to the potential evictee unless the language is plain and provides for eviction.
That intendment must, by interpretation, be effectuated.
This is the essence of rent control jurisprudence.
Section 2(i) reads: "tenant" means any person by whom or on whose account rent is payable for a building or rented land and included a tenant continuing in possession after the termina 144 tion of the tenancy in his favour, but does not include a person placed in occupation of a building or rented land by its tenant, unless with the consent in writing of the land lord, or a person to whom the collection of rent or fees in a public market, cart stand or slaughter house or of rents for shops has been farmed out or leased by a municipal, town or notified area committee: (emphasis added) In this context, we may also read section 13 (1) which is integral to and makes impact upon the meaning of section 2(i) even if there be any marginal obscurity.
Eviction of tenants (1) A tenant in possession of a building or rented land shall not be evicted therefrom in execution of a decree passed before or after the commencement of this Act or otherwise and whether before or after the termination of the tenancy, except in accordance with the provisions of this Section, or in pursuance of an order made under section 13 of the Punjab Urban Rent Restriction Act, 1947, at subsequently amended.
(emphasis added) The expression 'tenant ' includes 'a tenant continuing in possession after the termination of the tenancy in his favour '.
It thus includes, by express provision, a quondam tenant whose nexus with the property is continuance in possession.
The fact that a decree or any other process extinguishes the tenancy under the general law of real property does not terminate the status of a tenant under the Act having regard to the carefully drawn inclusive clause.
Even here, we may mention by way of contrast that Subudh 's case (supra) related to a statute where the definition in section 2 (5) of that Act expressly included "any per son against whom a suit for ejectment is pending in a court of competent jurisdiction" and more pertinent to the point specially excluded "a person against whom a decree or order for eviction has been made by such a court.
" We feel no difficulty in holding that the text, rein forced by the context, especially section 13, convincingly includes ex tenants against whom decrees or eviction might have been passed, whether on compromise or otherwise.
The effect of the compromise decree, in counsel 's submission, is that the tenancy has been terminated.
No body has a case that the appellant is not continuously in possession.
The conclusion is inevitable that he remains a tenant and enjoys immunity under section 13(1).
The execution proceedings must, there fore, fail because the statutory road block cannot be removed.
Indeed, an application under the Act was filed by the landlord defendant which 145 was dismissed because the ground required by the Act was not made out.
We have been told by counsel, and supporting citations have been brought to our notice, that the High Court at Chandigarh has taken the contrary view for some time.
It is better to be ultimately right rather than consistency wrong.
The interpretation we have given in section 2(i) is strengthened by our conviction that a beneficial statute intended to quieten a burning issue affecting the economics of the human condition in India should be so interpreted as to subserve the social justice purpose and not to subvert it.
Even apart from this value vision, the construction we have adopted is sustainable.
We have laid down the law on the disputed questions raised before us, but we are not called upon to make any decree pursuant to our decision because, taking the clue from certain observations of the court in the course of the arguments, the parties have come together and reached a fair solution of the problem revolving round the house property.
A conflict is best resolved by the parties pursuading themselves to see the ability of continued dispute and enlightened by the law settled the controversy in a manner that promotes the interests of both.
We find that both sides in the present case have produced an enlighten settlement and put in the court an agreement to sell the property covered by the appeal by the landlord to the tenant.
A copy of the agreement has been put in the record which is annexed as appendix to this Judgment.
In this view we dispose of the appeal by formally dismissing it because there is no longer any relief needed in this appeal.
ORDER The Judgment having been delivered counsel for the respondent represented that the Agreement, which has been made and appendixed to the Judgment be treated as an undertaking mutually between the parties to the Court.
Counsel on both sides have no objection to this course and so we record the Agreement incorporated in the judgment as an undertaking to the Court made by the parties in regard to their respective obligations.

dataset_name: IN-Abs

summary/full:
The appellant, an Advocate, tenanted a ' building belonging to tho respondent.
The respondent sued the appellant for possession of the premises and by a compromise, the Appellant agreed to vacate the premises by a certain date.
A decree in terms thereof was passed.
Then the Act came into being which by extension of its operation applied to Chandigrah with effect from 4 11 1972.
It was contended that (i) had the decree been passed but a few days later, the Act would have admittedly interdicted the eviction because of Section 13 thereof; and had the decree been made and executed a day before the extension of the Act, the years of litigative procrastination of eviction might have been impossible.
The salvation of the appellant is certain if he be a "tenant" within the meaning of the Act and his eviction is certain if the definition of tenant does not cover him in its amplitude and (ii) that the effect of compromise decree is that the tenancy of the appellant has been terminated.
Accepting the appeal, ^ HELD: An advocate, under this Act, enjoys special protection.
lt is too platitudinous to preach and too entrenched to shake the proposition that rent control legislation in a country of terrible accommodation shortage is a beneficial measure whoso construction must be liberal enough to fulfil the statutory purpose and met frustrate it.
So construed, the benefit of interpretative doubt belongs to the potential evictee unless the language is plain and provides for eviction.
That intendment must, by interpretation, be effectuated.
This is the essence of rent control jurisprudence.
[143 E G] The expression 'tenant includes a 'tenant ' continuing in possession after the termination of the tenancy in his favour '.
It thus includes, by express provision, a quondam tenant whose nexus with the property is continuance in possession.
The fact that a decree or any other process extinguishes the tenancy under the general law of real property does not terminate the status of a tenant under the Act having regard to the carefully drawn inclusive clause.
Subudhi 's case ; related to a statute where the definition in section 2(5) of that Act expressly included "any person against whom a suit for ejectment is pending in a court of competent jurisdiction" and more pertinent to the point specially excluded "a person against whom a decree or order for eviction has been made by such a court." [144 E G] (ii) The text, reinforced by the context, especially of section 13, convincingly includes ex tenants against whom decrees for eviction might have been passed, 142 whether on compromise or otherwise.
Nobody has a case that the appellant is not continuously in possession.
The conclusion is inevitable that he remains tenant and enjoys immunity under section 13 (1) of the Act.
The execution proceedings, must therefore fall, because the statutory road block cannot be removed.
[A conflict is best resolved by the parties as both sides in the present case have produced an enlightened settlement by an agreement to sell the property in dispute by the respondent to the appellant.
[144 G H]


judgement:
ION: Criminal Appeal No. 15 of 1955.
Appeal by special leave from the judgment and order dated the 24th March, 1953 of the Calcutta High Court in Criminal Appeal No. 94 of 1952 arising out of the Judgment and order dated the 22nd April 1952 373 of the Court of Sessions Judge, Murshidabad in Sessions Trial No. 1 of 1952.
Jai Gopal Sethi, (C. F. Ali and P. K. Ghosh, with him) for the appellants.
B.Sen, (I. N. Shroff, for P. K. Bose, with them) for the respondent.
April 18.
The Judgment of the Court was delivered by JAGANNADHADAS J.
This is an appeal by special leave against the judgment of the High Court of Calcutta confirming the conviction and sentence of each of the two appellants before us, by the Sessions Judge of Murshidabad.
The appellants were tried on a charge under section 302/34 of the Indian Penal Code by the Sessions Judge with a jury.
The jury returned a unanimous verdict of guilty against each under the first part of section 304 read with section 34 of the Indian Penal Code.
The learned Judge accepted the verdict and convicted them accordingly and sentenced each of the appellants to rigorous imprisonment for ten years.
In order to appreciate the points raised before us, it is desirable to give a brief account of the prosecution case.
The two appellants jointly made a murderous assault on one Saurindra Gopal Roy at about 6 30 p.m. on the 3rd November, 1951.
There was, owing to litigation, previous enmity between the deceased and the appellants.
All of them belonged to a village called Mirzapur which is within the police station Beldanga, district Murshidabad.
The deceased along with two friends of his, of the same village, examined as P.Ws. 1 and 2, attended a foot ball match that evening at Beldanga.
The match was over by 5 p.m. and all the three of them were returning together to their village.
In the course of the return they were passing at about 6 30 p.m. through a field, nearly half a mile away from the village.
The two appellants each having a lathi and a Hashua (sickle) in his hand, emerged from a bush nearby and rushed towards the deceased and his companions.
P.W. 1 49 374 was first struck with a lathi and thereupon both P.Ws. 1 and 2 moved away to a distance.
The appellants assaulted the deceased and inflicted on him a number of serious injuries.
The two companions of the deceased, P.Ws. 1 and 2, ran towards the village and shouted for help whereupon a number of people from the village came and collected at the spot.
Information was also carried to the son as well as to the brother of the deceased.
They also came on the scene.
The brother, by name Radhashyam, proceeded at once to the Beldanga police station and lodged the first information report at about 7 30 p.m.
The police officer came to the scene and recorded a statement from the deceased who was then still alive.
He was thereafter taken to the hospital at Beldanga.
At the hospital the Medical Officer also took a statement from him (exhibit 4).
He died some time thereafter.
P.Ws. 1 and 2, the companions of the deceased, were the only eye witnesses to the murderous assault.
The prosecution relied also on certain statements said to have been made by the deceased after the assault.
The deceased is said to have stated to P.W. 7 one of the villagers who first came on the scene, after hearing the shouts of P. Ws. 1 and 2, that the two appellants were his assailants.
A little later, when his son and his brother, P.W. 3 came there, he is also said to have stated to P.W. 3 that the two appellants were the assailants.
Accordingly the first information report gave the names of the two appellants as the assailants.
Similar statements are said to have been made by the deceased to the police officer when he came on the spot and later to the Medical Officer when he was taken to the hospital.
The evidence, therefore, in support of the prosecution case was mainly, that of the two eye witnesses, P.Ws. 1 and 2, and of the four dying declarations, two of them oral and two written.
There was considerable scope for criticism about the evidence of the two eye witnesses.
The evidence relating to the dying declarations was also open to attack in view of the nature of the injuries inflicted on the deceased.
These included incised wounds on the occipital region and an incised wound 375 in the brain from out of which a piece of metal was removed on dissection.
This, as was urged, indicated the likelihood of the deceased having lost his consciousness almost immediately and hence the improbability of any statements by the deceased.
But the medical evidence on this point was indecisive.
There can be no doubt however that the reliability of the prosecution evidence was open to serious challenge in many respects.
But learned counsel for the appellants has not been able to raise either before the High Court or before us any objection to the verdict, on the ground of misdirection or non direction, of a material nature, in the charge to the jury by the Sessions Judge. 'On the other band, the charge brought out every point in favour of the appellants and against the prosecution evidence.
It erred, if at all.
in that the learned Judge involved himself in a great deal of elaboration.
The only flaw in the charge which, learned counsel for the appellants could attempt to make out, was that the exposition therein of the legal concept underlying section 34 of the Indian Penal Code was obscure and that it would not have been correctly appreciated by the jurors.
It may be that this could have been expressed in more lucid terms.
But we are unable to find that there was any misdirection or non direction therein.
Nor do we see any reason to think that the jury has been misled.
Thus there was no real attack either in the High Court or here as against the learned Judge 's charge to the jury.
Accordingly, the only points urged before us are the following.
1.The circumstances of the case and the nature of the charge to the jury made it incumbent on the learned Judge to disagree with the jury and to refer the case to the High Court under section 307 of the Code of Criminal Procedure.
2.In the alternative, the learned Sessions Judge having expressed himself in his charge to the jury, definitely for acquittal, he should not have accepted its verdict, though unanimous, without giving satisfactory reasons for such acceptance.
The learned Judge having, in his charge speci 376 fically cautioned the jury against communal prejudice in the following terms "your deliberations and verdict should not be influenced by any communal considerations,", should have refused to accept the verdict as having been vitiated by communal bias.
It may be stated that all the jurors were Hindus and that the accused were both Muhammadans.
The suggestion is that in view of the fact that thescene Of occurrence was near the border between West and East Bengal, it should have been appreciated that communal bias was, at the time, almost inevitable.
4.There has been virtually no examination of the accused by the Sessions Judge under section 342 of the Code of Criminal Procedure and the trial has been vitiated thereby.
In advancing the first two of the above contentions learned counsel for the appellants assumes and asserts that the Sessions Judge in his charge to the jury was unequivocally of the opinion that there was no reliable evidence on which the conviction could be based and that the appellants should be acquitted.
On this assumption, he urges that, when in the circumstances the jury gave a unanimous verdict of guilty, his obvious duty was either to express his dis agreement with the verdict of the jury and refer the whole case for the consideration of the High Court under section 307 of the Code of Criminal Procedure, or, at the least, to have placed on record his reasons why in spite of his clear opinion against the prosecution case, he did not consider it necessary to disagree from the verdict of the jury.
In order to substantiate this point of view, learned counsel took us through various portions of the charge to the jury and we have ourselves perused carefully the entirety of it.
As already stated, the learned Judge undoubtedly pointed out in his charge all the weaknesses of the prosecution evidence in great detail.
It is also likely that be was inclined for an acquittal.
But we are not satisfied that he came to a definite and positive conclusion that there should be acquittal.
While pointing out the weakness of the prosecution evidence with a leaning against its reliability he has not specifically 377 rejected every important item of the prosecution evidence.
It was only in some places that he stated categorically that he would not accept a particular item of evidence and would advise the jurors to reject it.
In other places, while pointing out the infirmities of the evidence, he was not so categorical and positive, as to what his own opinion on that item of evidence was.
For instance, out of the two eye witnesses, P.Ws. 1 and 2, the learned Judge said, so far as P.W. 2 is concerned, as follows: "Personally speaking I am not satisfied with the evidence of recognition of the accused persons as the assailants of Sourindra Gopal furnished by P.W. 2, Satyapada.
You will be advised, gentlemen, not to rely upon the evidence of P.W. 2".
As regards the evidence of the other eye witness, P.W. 1, however he summed it up as follows: "You should take a comprehensive view of all matters and then decide whether you should act upon the evidence of recognition of the accused persons as the assailants of Sourindra furnished by P.W. 1, Bhupati".
There was similar difference in the expression of his opinions with reference to the evidence of the dying declarations of the deceased.
It may be recalled that the evidence of the oral dying declarations is of statements to P.W. 7, Phani, and P.W. 3, Radhashyam.
The evidence of statement to P.W. 7 was given by a number of witnesses, viz. P.Ws. 6, 7, 8, 9, 10, 11) 12 and 13.
Out of these so far as the evidence of P. W. 9 is concerned, the learned Judge specifically stated as follows: "I should tell you that you should not believe P.W. 9 when he stated on being questioned by Phani, Sourindra mentioned Moseb and Sattar as his assailants".
But he did not rule out the evidence of the others on this item in the same manner.
Then again, when he dealt with the question whether the slip of paper, exhibit 4, is genuine the learned Judge noticed that the said paper was shown to have been taken from the medical officer P.W. 17 into the possession of the In 378 vestigating Officer, P.W. 35, about a month later and commented on it as follows: "Personally speaking I see no reasonable explanation as to why the I.O. should not have seized exhibit 4 from P.W. 17 immediately after it was recorded, if it was recorded on 3rd November, 1951, and sent it to the Magistrate forthwith".
All the same, the learned Judge also remarked thus: "You will consider very seriously whether you have any reason to disbelieve the evidence of P. Ws. 17, 32 and 33".
P.Ws. 32 and 33 are witnesses who spoke to the statement of the deceased said to have been taken by the Doctor, P. W. 17.
Taking the charge to the jury, therefore, comprehensively we are unable to find that the learned Judge rejected the prosecution evidence and arrived at a clear and categorical conclusion in his own mind that the appellants were not guilty.
We are, therefore, unable to accept the assumption of learned counsel for the appellants that the Judge agreed with the unanimous verdict of the jury against his own personal conviction, as to the guilt of the accused.
It appears to us, therefore, that there is no foundation, as a fact, for the argument that the learned Judge should have made a reference to the High Court under section 307 of the Code of Criminal Procedure or that, in any case, he should have placed on record his reasons for agreeing with the verdict of the jury notwithstanding his own personal opinion to the contrary.
Assuming however that the charge to the jury in this case can be read as being indicative of a definite opinion reached by the Sessions Judge in favour of the appellants, it does not follow that merely on that account he is obliged to make a reference under section 307 of the Code of Criminal Procedure.
What is required under that section is not merely disagreement with the verdict of the jury but the additional factor that the learned Sessions Judge "is clearly of opinion that it is necessary for the ends of justice to submit the case to the High Court".
It is now well settled, since the decision of the Privy Council in 379 Ramnugrah Singh vs King Emperor(1) that under section 307 of the Code of Criminal Procedure a Session,, Judge, even if he disagrees with the verdict of the jury must normally give effect to that verdict unless he is prepared to hold the further and clear opinion "that no reasonable body of men could have given the verdict which the jury did".
We are certainly not prepared to say that the present case satisfies that test or that the charge to the jury indicated any such clear conclusion.
Indeed it is to be noticed that on intimation by the jury of its unanimous verdict, the learned Judge has recorded that he "agreed with and accepted the verdict".
We have no doubt that it was perfectly competent for him to do so.
Learned counsel urges that this acceptance is a judicial act and that having regard to the whole tenor of the Judge 's charge to the jury, he was at least under a duty to himself and to the appellate court to record his reasons for acceptance of the verdict of the jury.
We are unable to agree with this contention.
It may be that in a case where a Judge in his charge to the jury has clearly and definitely expressed himself for acquittal, it would be very desirable, though not imperative, that he should give his reasons why be changed his view and accepted the verdict of the jury.
But we can find no basis for any such contention in this case.
The two further contentions that remain which are enumerated above as 3 and 4, were not raised before the High Court.
We are reluctant to allow any such contentions to be raised on special leave.
The point relating to the possibility of the verdict having been the result of bias has no serious basis.
It appears to us that the learned Sessions Judge had no justification in this case for imagining the possibility of such bias and giving a warning to the jury in this behalf.
This is not a case which arose out of any incident involving communal tension.
The likelihood of any such bias is not to be assumed merely from the fact of the appellants being Mubammadans and the jurors being Hindus.
Nor is it right to take it (1) [1946] L.R. 73 I.A. 174.
380 for granted merely from the fact of proximity of the place of trial to the border between West and East Bengal.
On the other hand, it is not without some relevance that when the jury was empanelled at the commencement of the trial, there was absolutely no such objection taken.
Nor was the right of challenge to the jurors exercised.
Learned counsel for the appellants has very strenuously argued before us, the point relating to the inadequacy of the examination of the appellants under section 342 of the Code of Criminal Procedure.
Now, it is true that the examination in this case was absolutely perfunctory.
The only questions put to each of the accused in the Sessions Court, and the answers thereto were the following: "Q. You have heard the charges made and the evidence adduced against you.
Now say, what is your defence? What have you got to say? A.
I am innocent.
Will you say anything more? A. No. Q. Will you adduce any evidence in defence? A. No." There can be no doubt that this is very inadequate compliance with the salutary provisions of section 342 of the Code of Criminal Procedure.
It is regrettable that there has occurred in this case such a serious lacuna in procedure notwithstanding repeated insistence of this Court , in various decisions commencing Tara Singh 's case(1) on a due and fair compliance with the terms of section 342 of the Code of Criminal Procedure.
But it is also well recognised that a judgment is not to be set aside merely by reason of inadequate compliance with section 342 of the Code of Criminal Procedure.
It is settled that clear prejudice must be shown.
This court has clarified the position, in relation to cases where accused is represented by counsel at the trial and in appeal.
It is up to the accused or his counsel in such cases to satisfy the Court that such inadequate examination has resulted in miscarriage of justice.
This Court in its judgment (1)[1951] S.C.R. 729.
381 in the latest case on this matter, viz. K. C. Mathew and Others vs The State of Travancore Cochin(1) (delivered on the 15th December, 1955) has laid down that "if the counsel was unable to say that his client had in fact been prejudiced and if all that he could urge was that there was a possibility of prejudice, that was not enough".
Learned counsel could not, before us, make out any clear prejudice.
All that learned counsel for the appellants urges is, that this might be so in a case where the trial was with the assessors and the Judge 's view on the evidence was the main determining factor.
But he contends that the same would not be the case where the trial is with the aid of a jury.
Learned counsel urges that a full and clear questioning in a jury trial does not serve the mere purpose of enabling the accused to put forward his defence or offer his explanation, which may be considered along with the entire evidence in the case.
The jury would, he suggests also, have the opportunity of being impressed one way or the other by the method and the manner of the accused, when giving the explanation and answering the questions and that the same might turn the scale.
Learned counsel urges, therefore, that the non examination or inadequate examination under section 342 of the Code of Criminal Procedure in a jury trial must be presumed to cause prejudice and that a conviction in a jury trial should be set aside and retrial ordered, if there is no adequate examination under section 342 of the Code of Criminal Procedure.
We are not prepared to accept this contention as a matter of law.
The question of prejudice is ultimately one of inference from all the facts and circumstances of each case.
The fact of the trial being with the jury may possibly also be an additional circumstance for consideration in an appropriate case.
But we see no reason to think that in the present case this would have made any difference.
We are, therefore, not Prepared to accept the argument of the learned counsel for the appellants in this behalf.
In any case, an argument of this kind which would, if accepted, (1)[1955] 2 S.C.R. 1057.
50 382 necessitate a retrial, is one that ought to be put forward at the earliest stage and at any rate at the time of the regular appeal in the High Court.
This cannot be entertained for the first time in an appeal on special leave.
For all the above reasons this appeal is dismissed.

summary/full:
A Sessions Judge, even if he disagrees with the verdict of the Jury, must normally give effect to that verdict unless he is clearly of opinion that no reasonable body of men could have given the verdict which the Jury did.
Ramnugrah Singh vs King Emperor, ([1946] L.R. 73 I.A. 174), relied on.
A Sessions Judge need not record his reasons for accepting the verdict of the Jury.
In a case where a Judge in his charge to the Jury, has clearly and definitely expressed himself for acquittal, it would be desirable though not imperative, that he should give his reasons why he changed his view and accepted the verdict of the Jury finding the accused guilty.
Even where the examination of the accused under section 342 Cr.
P.C. is perfunctory the judgment cannot be set aside unless clear prejudice is shown.
Tara Singh 's case, ([1951] S.C.R. 729), referred to.
K.C. Mathew and Others vs The State of Travanore Cochin, ([1955] 2 S.C.R. 1057), relied on.
Prejudice cannot be presumed from the fact that the trial is by a jury though that is a circumstance which may be taken into consideration.
An argument which would, if accepted, necessitate a retrial, ought to be put forward at the earliest stage and at any rate before the High Court in appeal and cannot be entertained for the first time in an appeal on special leave.


judgement:
Civil Appeal No. 3530 of 1 979.
Appeal by Special Leave from the Judgment and order dated 2 2 1979 of the Madras High Court in A.S. No. 924/74.
K. section Ramamurthy, P. N. Ramalingam and A. T. M. Sampath for the Appellant.
K. Rant Kumar and K. Jayaram for the Respondent.
309 The Judgment of the Court was delivered by KAILASAM, J.
The appellants in the appeal by special leave are plaintiffs 1 to 5 in the suit.
The plaintiffs 1 to 5 are sisters and defendants 1 to 2 are their brothers.
The third defendant is their unmarried sister.
They are the children of the late Muthukumaraswamy Gounder who died intestate on 20 12 1962 leaving his father Vanavaraya Gounder who was managing all the ancestral joint family property as the head of the Hindu Undivided Joint Family till his death on 5 3 1972.
The plaintiffs claimed that on the death of Muthukumaraswamy Gounder his 1/3rd share in the joint family property devolved on his sons and daughters, his sons, defendants 1 and 2 taking 1/3rd share each in l/3rd share of the family property by birth and in the balance all the sons and daughters of Muthukumaraswamy Gounder taking an equal share each.
The plaintiffs claimed to have been in joint possession of the properties alongwith Vanavaraya Gounder and his other sons.
Similarly on the death of Vanavaraya Gounder, his 1/3rd share in the family properties devolved upon his heirs, the plaintiffs and defendants 1 to 3 being entitled to certain shares.
The claim in the plaint is that each of the plaintiffs is entitled to a share in the suit properties as heirs to Late Muthukumaraswamy Gounder and also as heirs to late Vanavaraya Gounder, their grand father.
Each plaintiff claimed that she was entitled to 1/72 share in the suit properties as heirs to their father Muthukumaraswamy Gounder and also to 1/96 share as heirs to their grand father Vanavaraya Gounder.
It was alleged in the plaint that since the death of Vanavaraya Gounder, defendants nos.
1 to 6 failed to give the plaintiffs their share of income and the plaintiffs could not remain in joint possession.
The plaintiffs repeatedly demanded partition and the defendants 1 to 6 were evading.
The plaintiffs claimed that each of the plaintiffs as co owners are in joint possession of the suit properties and this action was laid to convert the joint possession into separate possession so far as the shares of the plaintiffs are concerned.
For the purposes of court fee and jurisdiction, the plaintiffs valued their share of the property and paid court fee of Rs. 200 under section 37(2) of the Tamil Nadu Court Fees and Suits Valuation Act.
The relief prayed for was for partition of the properties and for allotment of their separate share, for accounts and for other reliefs.
In the written statement, the defendants 1 to 2, the brothers, con tended that the properties were divided in the year 1946 during the life time of Muthukumaraswamy Gounder and that Muthukumaraswamy was enjoying the properties separately.
Regarding possession of 310 the plaintiffs, defendants l to 3 the contesting defendants alleged in paragraph 18 of the written statement as follows : "The suit as framed is not maintainable in law.
The plaintiffs have framed the suit as though they are in joint possession and enjoyment of the suit properties.
The plaintiffs are out of possession and they are living in different villages.
While it is so the allegation that they are in joint possession v of the suit properties is not correct.
The plaintiff ought to J have paid court fee under section 37(i) of the Court Fees Act and not under 37(ii) of the Act.
They ought to have paid the court fee at the market value of the suit properties and unless the court fee at the market rate is paid they arc not entitled to claim any share." The Subordinate Judge who tried the suit did not frame any preliminary issue regarding court fee as required under section 12 of the Court Fees Act but proceeded to try all the issues together.
The Subordinate Judge granted preliminary decree for partition and possession of the plaintiffs ' 1/72 share in B. Schedule properties, and to certain shares in deposit in State Bank of India at Pollachi, and to the share in the Gnanambika Mills, on payment of court fees by the plaintiffs under section 37(i) of the Court Fees Act.
The Court granted time for payment of court fee till 15 2 1973.
As the court fee was not paid, the Trial Court dismissed the suit, by its judgment dated 7 2 1974.
The plaintiffs filed two appeals A.S. No. 811 of 1975 against the decision of the Subordinate Judge holding that the plaintiffs are liable to pay court fee on the market value of the property under section 37(1) of the Court Fees Act and A.S. No. 924 of 1974 against the order dismissing the suit.
The High Court heard both the appeals together and disposed them of by a common judgement.
When the appeals were taken up, the defendants/respondents contended that the court fee ought to have been paid on the plaint under section 37(1) and also on the memorandum of appeal before the High Court and as the proper court fee has not keen paid, the appeals ought to be dismissed.
The High Court accepted the contention raised by the defendants and held that the plaintiffs arc liable to pay court fee under S.37(1) of the Tamil Nadu Court Fees Act.
In coming to its conclusion, the High Court mainly relied on .
paragraph 12 of the plaint which reads as follows: "Since the death of Vanavaraya Gounder the defendants 1 to 6 failed to give the plaintiffs their share of income and 311 the plaintiffs could not remain in joint possession.
Therefore, the plaintiffs repeatedly demanded partition and the defendants 1 to 6 were evading.
The 3rd plaintiff sent a notice through her counsel to defendants 1, 2 and 5 to which the 3rd plaintiff received replies containing false and untenable allegations.
" The High Court proceeded to observe that while the statement that The plaintiffs were in joint possession with the defendants occurring in other paragraphs of the plaint is merely a formal statement repeating the statutory language, the statement contained in paragraph 12 of the plaint constitutes a statement of fact in the context in which paragraph 12 occurs and consequently paragraph 12 of the plaint contains a clear averment that the plaintiffs could not remain in joint possession and that was the reason why they repeatedly demanded partition.
If so, on the date of the suit, the plaintiffs were not in possession.
The High Court held that court fee is payable under section 37(1) of the Court Fees Act.
D On reading of the plaint as a whole, we arc unable to agree with the view taken by the High Court.
It is settled law that the question of court fee must be considered hl the light of the allegation made in the plaint and its decision cannot be the either by the pleas in the written statement or by the final decision of the suit on merits.
All the material allegations contained in the plaint should should be construed and taken as a whole vide section Rm .
section Sp.
Sathappa Chettiar vs section Ram Ar.
Ramanathan Chettiar.
The plaint in paragraph 5 states that Muthukumaraswamy Gounder died intestate and undivided and Muthukumaraswamy 's father Vanavaraya Gounder was managing all the ancestral joint family property as the head of the Hindu undivided joint family till his death.
In paragraph 8 the plaintiffs stated that on the death of Muthukumaraswamy Gounder his 1/3rd share in the joint family properties devolved upon his sons and daughters.
It further alleged that the plaintiffs were in joint possession of the properties alongwith Vanavaraya Gounder and his other sons.
In paragraph 9, it is stated that each of the plaintiffs is entitled to a share in the suit properties as heirs of the late Muthukumaraswamy Gounder and also as heir of the late Vanavaraya Gounder.
In paragraph 11, it is stated that since the death of Vanavaraya Gounder defendants 1 to 6 are receiving the income from the properties and are liable to account to the plaintiffs.
In paragraph 12, it is stated that since the death of Vanavaraya Gounder defendants 1 to 6 failed to give the 312 plaintiff their share of income and the plaintiffs could not remain in joint possession.
Therefore the plaintiffs demanded partition and the defendants 1 to 6 were evading.
Again in paragraph 13, it is claimed that each of the plaintiff as co owners is in joint possession of the suit properties? and this action is laid to convert the joint possession into separate possession so far as the shares of the plaintiffs are concerned.
Throughout the plaint, the plaintiffs have asserted that they are in joint possession.
We are unable to agree with the High Court that recitals in all the paragraphs is merely a formal statement repeating.
the statutory language.
The plea in paragraph 12 which was relied on by the High Court states that the defendants 1 to 6 failed to give the plaintiffs their share of the income and the plaintiffs could not remain in joint possession.
The plea that they were not given their due share would not amount to dispossession.
Reading the plaint at its worst against the plaintiffs, all that could be discerned is that as the plaintiffs were not given their share of the income, they could not remain in joint possession.
The statement that they arc not being paid their income, would not amount to having been excluded from possession.
The averment in the plaint cannot be understood as stating that the plaintiffs were not in possession.
In fact, the defendants understood the plaint as stating that the plaintiffs are in joint possession of the suit properties.
In paragraph 18 of the written statement the defendants plaintiff that the plaintiffs have framed the suit as though they are in joint possession and enjoyment of the suit properties.
Asserting that the plaintiffs were out of possession, the defendants stated: "While it is so the allegation that they are in joint possession of the suit properties, is not correct." The Trial Court has not placed any reliance on the recitals in para 12 of the plaint on which the judgment of the High Court is based.
The Trial Court found on evidence that the plaintiffs never enjoyed the suit properties at any time.
This finding is not enough for, the mere fact that the plaintiffs were not paid their share of the income or were not in actual physical possession, would not amount to the plaintiff.; having been excluded from joint possession to which they arc in law entitled.
On a consideration of the plaint as a whole and giving it its natural meaning, we are unable to agree with the conclusion arrived at by the High Court.
section 37 of the Tamil Nadu Court Fees and Suit Valuation Act n relates to Partition Suits.
section 37 provides as follows: 37(1) In a suit for partition and separate possession of a share of joint family property or of property owned, jointly 313 or in common, by a plaintiff who has been excluded from possession of such property, fee shall be computed on the market value of the plaintiff 's share.
37(2) In a suit for partition and separate possession of joint family property or property owned, jointly or in common by a plaintiff who is in joint possession of such property, fee shall be paid at the rates prescribed.
It will be seen that the court fee is payable under section 37(1) if the plaintiff is 'excluded" from possession of the property.
The plaintiffs who are sisters of the defendants, claimed to be members of the Joint Family, and prayed for partition alleging that they are in joint possession Under the proviso to S.6 of the (Act 30 of 1956) the plaintiffs being the daughters of the male Hindu who died after the commencement of the Act, having at the time of the death an interest in the Mitakshara coparcenary property, acquired an interest by devolution under the Act.
It is not in dispute that the plaintiffs are entitled to a share.
The property to which the plaintiffs are entitled is undivided 'joint family property! '; though not in the strict sense of the term.
The general principle of law is that in the case of co owners, the possession of one is in law possession of all, unless ouster or exclusion is proved.
To continue to be in joint possession in law, it is not necessary that the plaintiff should be in actual possession of the whole or part of the property.
Equally it is not necessary that.
he should be getting a share or some income from the property.
So long as his right to a share and the nature of the property as joint is not disputed the law presumes that he is in joint possession unless he is excluded from such possession.
Before the plaintiffs could be called upon to pay court fee under section 37(1) of the Act on the ground that they had been excluded from possession, it is necessary that on a reading of the plaint, there should be a clear and specific averment in the plaint that they had been "excluded" from joint possession to which they are entitled in law.
The averments in the plant that the plaintiff could not remain in joint possession as he was not given any income from the joint family property would not amount to his exclusion from possession.
We are unable to read into the plaint a clear and specific admission that the plaintiff had been excluded from possession.
In the result the appeal is allowed with cost.
As we have found that the Trial Court was in error in directing the plaintiffs to pay the court fee under section 37(1), the preliminary decree for partition and possession of 1/72 share in the B. Schedule properties and the shares in 314 deposit in State Bank of India at Pollachi, and in the share in the Gnanambika Mills, is confirmed.
The direction by the Trial Court as to payment of Court Fee under section 37(1) of the Court Fees Act and the judgment of the High Court in A.S. No. 924/1974 and A.S. 811 /75 are set aside.
S.R. Appeal allowed.

summary/full:
The plaintiffs, appellants filed a suit for partition and separate possession of their individual share as per law and paid a court fee at the rates prescribed under section 37 (ii) of the Tamil Nadu Court Fees and Suit Valuation Act.
There was a specific allegation that they were in joint possession.
The Trial Court decreed the suit but directed the plaintiffs appellants to pay the court fec under Section 37 (ii) of the Act.
As the difference in court fee was not paid the trial Court dismissed the suit.
Two appeals were filed by the appellants in the High Court, one against the decision that they were liable to pay court fee (m the market value of the property under section 37 (1) and another against the order dismissing the suit.
The High Court heard the two appeals together and disposed of the appeals accepting the contention of the respondents/defendants that the Court fees are payable both on the plaint and on the memorandum of appeals under Section 37 (I ) of the Act.
Allowing the appeal by special leave, the Court ^ HELD: 1.
It is settled law that the question of Court fee must be considered in the light of the allegation made in the plaint and its decision cannot be influenced either by the pleas in the written statement or by the final decision of the suit on merits.
All the material allegations contained in the plaint should be construed and taken as a whole.
[311 D E] In the instant case: (a) on reading of the plaint as a whole, it is clear that throughout the plaint, the plaintiffs/appellants have asserted that they were in joint possession and therefore the observation of the High Court that recite in all the paragraphs is merely a formal statement repeating the statutory language is not correct.
(b) the plea that they were not given their due share would not amount to dispossession.
Reading the plaint at its worst against the plaintiffs, all that could be discerned is that as the plaintiffs were not given their share of the income, they could not remain in joint possession.
The statement that they are not being paid their income.
would not amount to having been excluded from possession.
The averment in the plaint cannot be understood as stating that the plaintiffs were not in possession.
In fact, the defendants understood the plaint as stating that the plaintiffs are in joint possession of the suit properties.
In paragraph 18 of the written statement the defendants pleaded 308 that the plaintiffs have framed the suit as though they are in joint possession and enjoyment of the suit properties.
Asserting that the plaintiffs were out of possession, the defendants stated: "while it is so, the allegation that they arc in joint possession of the suit properties, is not correct." The mere fact that the plaintiffs were not paid their share of the income or were not in actual possession would not amount to the plaintiffs having been excluded from joint possession to which they are in law entitled.[1311D, 312 B F] section Rm.
section Sri Cathanna Chettiar vs section RM.
Ramanathen Chettiar, @ PP 1031 32; followed.
Under section 37(1) of the Tamil Nadu Court Fees and Suit Valuation Act, relating to partition suits, the Court fee is payable, if the plaintiff is "excluded" from possession of the property.
The general principle of law is that in the case of co owners, the possession of one is in law possession of all, unless ouster or exclusion is proved.
To continue to be in joint possession in law it is not necessary that the plaintiff should be in actual possession of the whole or part of the property.
Equally it is not necessary that he should be getting a share or some income from the property.
So long as his right to a share and the nature of the property as joint is not disputed the law presumes that he is in joint possession unless he is excluded from such possession Before the plaintiffs could be Called upon to pay court fee under section 37 (1) of the Act on the ground that they had been excluded from possession it is necessary that there should be a clear and specific averment in the plaint that they had been "excluded" from joint possession to which they are entitled in law [1313 B. D F] In the instant case: (a) The averments in the plaint that the plaintiff could not remain in joint possession as he was not given any income from the joint family property would not amount to his exclusion from possession.
[313 F G] (b) The plaintiffs who are sisters of the defendants claimed to be members of the joint family and prayed for partition alleging that they are in joint possession.
Under the proviso to section 6 of the (Act 30 of 1956), the plaintiffs being the daughters of the male Hindu who died after the commencement of the Act, having at the time of the death an interest in the Mitakshara coparcenary property, acquired interest by devolution under the Act.
The property to which the plaintiffs are entitled is undivided 'joint family property ', though not in the strict sense of the term.
[313 C D]