judgement:
Appeals Nos. 224 and 225 of 1954.
Appeals from the judgment dated December 31, 1947, of the former Nagpur High Court in Misc.
(First) Appeal No. 310 of 1943, arising out of the Award dated March 31, 1943, of the Court of the Arbitrator, Addl.
and Sessions Judge, Khandwa.
Achhru Ram and Naunit Lal, for appellant (In C. A. No. 224/54) and respondent (In C. A. No. 225/54).
C. K. Daphtary, Solicitor General for India, R. Ganapathy Iyer and R. H. Dhebar, for respondent (In C. A. No. 224/54) and appellant (In C. A. No. 225/54).
August 22.
The Judgment of the Court was delivered by VENKATARAMA AIYAR J.
Both these appeals are directed against the judgment of the High Court of Nagpur passed in an appeal under section 19(1) (f) of the Defence of India Act, 1939, hereinafter referred to as the Act.
In exercise of the power conferred by section 75(A) of the Rules framed under the Act, the Central Government requisitioned on February 19, 1941, certain properties belonging to Hanskumar Kishanchand, the appellant in Civil Appeal No. 224 of 1954.
As there was no agreement on the amount of compensation payable to him, the Central Government referred the determination thereof to Mr. Jafry, Additional District Judge, Khandwa, under section 19(1) (b) of the Act.
On March 31, 1943, Mr. Jafry pronounced his award, by which lie awarded a. sum of Rs. 13,000 as annual rent for, the occupation of the premises.
Against this award, there was an appeal to the High Court of Nagpur under section 19(1) (f) of the Act, and that was heard by a Bench consisting of Grille C. J. and Padhve J.
By their judgment dated December 31, 1947, they enhanced the annual rent payable to the appellant by a sum of Its. 3,250, and they also allowed certain other sums as compensation for dislocation of the High School which 150 1180 was being run on the property.
The appellant applied for leave to appeal against this judgment to the Federal Court under sections 109 and I 10 of the Code of Civil Procedure in respect of the amounts disallowed.
A similar application was also filed by the Government with reference to the enhancement of compensation.
On August 25, 1949, both these applications were granted, and a certificate was issued that the appeals fulfilled the requirements of sections 109 and 110 of the Code of Civil Procedure.
That is how the two appeals come before us.
Hanskumar Kishanchand is the appellant in Civil Appeal No. 224 of 1954 and the Union of India, in Civil Appeal No. 225 of 1954.
At the opening of the hearing, a preliminary objection was taken by the learned Solicitor General to the maintainability of Civil Appeal No. 224 of 1954 on the ground that the judgment of the High Court passed in appeal under section 19(1) (f) was an award and not a judgment, decree or order within the meaning of sections 109 and 110 of the Code of Civil Procedure, and that accordingly the appeal was incompetent.
If this contention is right, Civil Appeal No. 225 of 1954 preferred by the Government would also be incompetent.
That, of course, does not preclude the Government from raising the objection as to the maintainability of the appeal, though the result of our upholding it would entail the dismissal of Civil Appeal No. 225 of 1954 as ' well.
We accordingly proceed to dispose of the objection on the merits.
It will be convenient at this stage to refer to the provisions of the Act bearing upon the present, controversy.
Section 19(1) provides that: " Where. any action is taken of the nature decribed in sub section (2) of section 299 of the Government of India Act, 1935, there shall be paid compensation, the amount of which shall be determined in the manner, and in accordance with the principles, hereinafter set out. . " Section 19(1) (a) provides for the amount of compensation being fixed by agreement, and section 19(1) (b) enacts that : " Where no such agreement can be reached, the Central Government shall appoint as arbitrator a 1181 person qualified under sub section (3) of section 220 of the above mentioned Act for appointment as a Judge of a High Court.
" Sub section (c) of section 19(1) provides for the appointment by the Central Government of a person having expert knowledge as to the nature of the property acquired and for the nomination of an assessor by the person to be compensated, for the purpose of assisting the arbitrator.
Sub section (e) of section 19(1) enacts that the arbitrator in making his award shall have regard to the provisions of sub section
(1) of section 23 of the Land Acquisition Act, 1894, so far as the same can be made applicable.
Then comes sub section
(f), which is important for the present purpose, and it is as follows: "An appeal shall lie to the High Court against an award of an arbitrator except in cases where the amount thereof does not exceed an amount prescribed in this behalf by rule made by the Central Government.
" Then we have sub section
(g), which is as follows: " Save as provided in this section and in any rules made thereunder, nothing in any law for the time being in force shall apply to arbitrations under this section.
" On these provisions, the contention on behalf of the Government is that the reference under section 19(1),(b) and the appeal under section 19(1) (f) are all arbitration proceedings, that the decision of the High Court in the appeal is really an award, and that it is, in consequence, not appealable under sections 109 and 110 of the Code of Civil Procedure, as they apply only to judgments, decrees or orders of Courts and not to awards.
Mr. Achbru Ram, learned counsel for the appellant does not dispute that the proceedings under section 19(1) (b) are by way of arbitration, but he contends that when once the matter comes before the High Court by way of appeal under section 19(1)(f), it becomes a civil proceeding under the ordinary jurisdiction of the Court, and that any decision therein is open to appeal under sections 109 and I 10 of the Code of Civil Procedure.
He further contends that even apart from those provisions, the appeal was competent under Cl. 29 of the Letters Patent, and that, 1182 the certificate granted by the High Court is under that provision as well.
Before discussing the authorities cited on either side in support of their respective contentions, it will be useful to state the well_established principles applicable to the determination of the present question.
When parties enter into an agreement to have their dispute settled by arbitration, its effect is to take the lis out of the hands of the ordinary Courts of the land and to entrust it to the decision of what has been termed a private tribunal.
Such an agreement is not hit by section 28 of the Contract Act as being in restraint of legal proceedings, because section 21 of the Specific Relief Act expressly provides that " save as provided by the , no contract to refer present or future differences to arbitration shall be specifically enforced ; but if any person who has made such a contract . and has refused to perform it sues in respect of any subject which he has contracted to refer, the existence of such contract shall bar the suit.
" There is a similar provision in section 28 of the Contract Act which is applicable, where the is not in force.
Where an arbitration is held in pursuance of such an agreement and that results in a decision, that decision takes the place of an adjudication by the ordinary Courts, and the rights of the parties are thereafter regulated by it.
It is true that under the law the Courts have the authority to set aside the award, , made by arbitrators on certain grounds such as that they are on matters not referred to arbitration, or that the arbitrators had misconducted themselves, or that there are errors apparently the face of the award.
But where the award is not open to any such objection, the Court has to pass a decree in terms of the award, and under section 17 of the , an appeal lies against such a decree only on the ground that it is in excess of, or not otherwise in accordance with the award.
In other words, it is the decision of the arbitrator where it is not set aside that operates as the real adjudication binding on the parties, and it is with a view to its enforcement that the, Court 'is authorised to pass a decree in terms thereof.
There is thus a sharp distinction between a 1183 decision which is pronounced by a Court in a cause which it hears on the merits, and one which is given by it in a proceeding for the filing of an award.
The former is a judgment, decree or order rendered in the exercise of its normal jurisdiction as a Civil Court, and that is appealable under the general law as for example, under sections 96, 100, 104, 109 and 110 of the Code of Civil Procedure.
The latter is an adjudication of a private tribunal with the imprimatur of the Court stamped on it, and to the extent that the award is within the terms of the reference, it is final and not appealable.
The position in law is the same when the reference to arbitration is made not under agreement of parties but under provisions of a statute.
The result of those provisions again is to withdraw the dispute from the jurisdiction of the ordinary courts and to refer it for the decision of a private tribunal.
That decision is an award, and stands on the same footing as an award made on reference, under agreement of parties.
It is for this reason that section 46 of the X of 1940 enacts that: " The provisions of this Act, except subsection (1) of section 6 and sections 7, 12, 36 and 37 shall apply to every arbitration under any other enactment for the time being in force, as if the arbitration were pursuant to an arbitration agreement and as if that, other enactment were an arbitration agreement; except in so far as this Act is inconsistent with that, other enactment or with any rules made thereunder.
" Nor does it make any difference in the legal position that the reference under the statute is to a Court as arbitrator.
In that case, the Court hears the matter not as a Civil Court but as persona designata, and its decision will be an award not open to appeal under the ordinary law applicable to decisions of Courts.
A statute, however, might provide for the decision of a dispute by a Court as Court and not as arbitrator, in which ease, its decision will be a decree or order of Court in its ordinary civil jurisdiction, and that will attract the normal procedure governing the decision of that Court, and a right of appeal will be comprehended therein.
The position therefore is that if the 1184 reference is to a Court as persona designata, its decision will not be open to appeal except to the extent that the statute so provides; but that if, on the other hand, it is to a Court as Court, its decision will be appealable under the general law, unless there is something in the statute, which abridges or takes away that incident.
It may be a question whether the reference to a Court under a particular statute is to it as a Court or as persona designata ; but when once it is determined that it is to it as persona designata, there call be no question that its decision is not open to appeal under the ordinary law.
We shall now consider the authorities hearing on the question.
On behalf of the Government, the decisions in Rangoon Botatoung Company vs The Collector, Rangoon (1), The Special Officer, Salsette Building Sites vs Dossabhai Bezonji (2), The Special Officer, Salsette Building Sites vs Dassabhai Bozanji Moti.
wala (3), Manavikraman Tirumalpad vs The Collector of the Nilgris (4) and Secretary of State for India in Council vs Hindusthan Co operative Insurance Society Limited (5) were relied on as supporting the contention that the present appeals are incompetent.
In Rangoon Botatoung Company vs The Collector, Rangoon (1), the facts were that certain properties had been acquired tinder the Land Aequistion Act of 1894, and the Collector had determined the amount of compensation payable to the quondam owners.
On their objection as to the quantum of compensation, the matter was referred to the decision of the Chief Court of Burina.
It was heard by a Bench of two Judges, who determined that a sum of Rs. 13,25,720 was payable as compensation.
Dissatisfied with this decision, the owners preferred an appeal to the Privy Council under the provisions of tile Code of Civil Procedure.
A pre limilary objection was taken to the maintainability of the appeal on the ground that the decision sought to be appealed against was not a judgment of Court but an award and was therefore not appealable.
In giving effect to this objection, the Board observed: " Their Lordships cannot accept the argument or (1) (1912) 39 I.A. 197.
(2) Bom.
(3) (4) Mad.
(5) (193I) L.R. 58 I.A. 259.
1185 suggestion that when once the claimant is admitted to the High Court he has all the rights of an ordinary suitor, including the right to carry an award made in an arbitration as to the value of land taken for public purposes up to this Board as if it were a decree of the High Court made in the course of its ordinary jurisdiction.
" Shortly after this judgment was pronounced, the question arose for determination in The special officer, Salsette Building Sites vs Dossabhai Bezonji (1), whether a decision given by the High Court in appeal under section 54 of the Land Acquisition Act was a judgment within Cl.
39 of the Letters Patent, so as to enable a party to appeal to the Privy Council under that provision.
The applicant sought to distinguish the decision in Rangoon Botatoung Company vs The Collector, Rangoon (2) on the ground that there, the decision sought to be appealed against was that of the Chief Court of Burma, and the question of maintainability fell to be decided on the terms of the, Code of Civil Procedure, whereas in the instant case, the party had a right to appeal to the Privy Council under Cl.
39 of the Letters Patent.
In rejecting this contention, the High Court referred to the observations in Rangoon Botatoung Company 's Case (2) already quoted, and observed " This passage shows that it is a mistake to suppose that the award made in such a case by the High Court is a decree within the ordinary jurisdiction to which the Civil Procedure (" 'ode refers; and it seems to me it would be equally erroneous to regard such an award as a final judgment or order within the meaning of clause 39 of the Letters Patent.
" Leave to appeal to the Privy Council was accordingly refused.
There was an application to the Privy Council for special leave in this matter, but that was also rejected, and the report of the proceedings before the Privy Council in The special Officer, salsette Building Sites vs Dassabhai Basanji Motiwala (3)shows that the interpretation put by the Bombay High Court in The Special officer, salsette Building sites vs Dossabhai Bezonji (1) was accepted as correct.
In Manavikraman Tirumalpad vs The Collector of the (1) 130m 506.
(2) (1912) L.R. 39 I.A. 197.
(3) (1913) 17 C.W.N. 42I. 1186 Niligris(1) the question was whether a judgment of the High Court passed in an appeal under the Land Acquisition Act was a judgment within the meaning of Cl. 15 of the Letters Patent so as to entitle a party to file a further appeal to the High Court under that provision, and it was held, on a consideration of the authorities above referred to, that it was not.
Secretary of State for India in Council vs Hindusthan Cooperative Insurance Society Limited (2) is a decision under the Calcutta Improvement Act, 1911.
Under that Act, there is a tribunal constituted for determining the amount of compensation payable on acquisition of land, and under the Calcutta Improvement (Appeals) Act, 1911, an appeal is provided in certain cases from the decision of the tribunal to the Calcutta High Court.
The point that arose for determination was whether the decision given by the High Court in appeal under this provision was open to further appeal to the Privy Council.
In answering it ill the negative, the Privy Council observed that in view of the decision in Rangoon Botatoung Company vs The Collector, Rangoon (3), there could be no right of appeal against the decision of the High Court.
It further held that this conclusion was not affected by the amendment of the Land Acquisition Act, 1921, providing for an appeal to the Privy Council against the decision of the High Court under section 54 of that Act, as that amendment could not be held to have been incorporated by reference in the Calcutta Improve ment Act, 1911.
The law as laid down in the above authorities may thus be summed up: It is not every decision given by a Court that could be said to be a judgment, decree or order within the provisions of the Code of Civil Procedure or the Letters Patent.
Whether it is so or not will depend on whether tile proceeding in which it was given came before tile Court in its normal civil jurisdiction, or de hors it as a persona designata.
Where the dispute is referred to the Court for determination by way of arbitration as in Rangoon Botatoung Company vs The Collector, Rangoon (3), or where it comes (1) Mad.
(2) (1931) L.R. 58 I.A. 259.
(3) (1912) L.R. 39 I.A. 197.
1187 by way of appeal against what is statedly an award as in ' The Special Officer, Salsette Building Sites vs Dossabhai Bezonji (1), Manavikraman Tirumalpad vs The Collector of the Nilgris (2) and Secretary of State for India in Council vs Hindusthan Co operative Insurance Society Limited (3) then the decision is not a judgment, decree or order under either the Code of Civil Procedure or the Letters Patent.
Now, Mr. Achhru Ram contests this last proposition, and relies strongly on the decision in National Telephone Company Limited vs Postmaster General (4), as supporting his position.
There, the question arose on the construction of certain provisions of the Telegraph (Arbitration) Act, .1909.
Section I thereof enacted that certain differences between the Postmaster General and any other person should, if the parties agreed, be referred for decision to the Railway and Canal Commission constituted under an Act of 1888 ; and section 2 provided that all enquiries under the reference should be conducted by the Commission in accordance with the Act of 1888.
Pursuant to a reference under these provisions, the Railway and Canal Commission had determined certain disputes, and the question was whether its decision was open to appeal.
Under the Act of 1888, the Commission was constituted a Court of record and an appeal lay against its decision to the Court of Appeal except on questions of fact and locus standi.
It was held by the House of Lords that as under the Act of 1888 the reference to the Commission was to it as a Court, the reference under the Telegraph (Arbitration) Act, 1909, to that tribunal must also be held to be to it as a Court and not as a body of arbitrators, and an appeal against its decision was therefore competent.
The position was thus stated by Viscount Haldane L. C.: " When a question is stated to be referred to an established Court without more, it, iii my opinion, imports that the ordinary incidents of the procedure of that Court are to attach, and also that any general right of appeal from its decision likewise attaches.
" (1) Bom.
(2) Mad.
(3) (1931) L.R. 58 I.A. 259.
(4) 151 1188 It may be noted that it was the use of the word " arbitration " in the title to the Act that furnished the ground for the contention that the proceedings before the Commission were of the nature of arbitration.
But that description, however, could not alter the true character of the reference under the Act, which was in terms to the Commission as a Court of record.
In fact, there was no element of arbitration in the proceedings.
It is true that under that Act there could be a reference only by agreement of parties.
That, however, could not make any difference in the character of the proceedings before the Commission, as a statute can provide for the jurisdiction of the Court being invoked as a Court on the agreement of parties, as for example, on a case stated under Order 36 of the Code of Civil Procedure.
There is thus nothing in National Telephone Company Limited vs Postmaster General (1), which can be said to conflict with the law as laid down in Rangoon Botatoung Company vs The Collector, Rangoon.
(2) that when the reference is to a Court as arbitrator, its decision is not open to appeal.
The distinction between the two classes of cases, where the reference is to court as court and where the reference is to it as arbitrator, was again pointed out by the Privy Council in Secretary of State for India vs Chelikani Rama Rao (3).
There, the question arose with reference to certain provisions of the Madras Forest Act, 1882.
That Act provides that claims to lands which are.
sought to be declared reserved forests by the Government are to be enquired into by the Forest Settlement Officer, and an appeal is provided against his decision to the District Court.
The point for decision was whether the decision of the District Court was open to further appeal under the provisions of the Code of Civil Procedure.
The contention was that the reference to the District Court under the Act was to it not as a Court but as arbitrator, and that therefore its decision was not open to appeal on the principle laid down in Rangoon Botatoung Company 's Case In repelling this contention, (1) (2) (1912) L.R. 39 I.A. 197.
(3) (1916) L.R. 43 I.A, 192.
1189 Lord Shaw observed that under the Land Acquisition Act the proceedings were ,from beginning to end ostensibly and actually arbitration ' proceedings ", but that the proceedings under the Forest Act were essentially different in character.
" The claim was " he said, " the assertion of a legal right to possession of and property in land; and if the ordinary Courts of the country are seized of a dispute of that character, it would require, in the opinion of the Board, a specific limitation to exclude the ordinary incidents of litigation" The principles being thus well settled, we have to see in the present case whether an appeal to the High Court under section 19(1)(f) of the Act comes before it as a Court or as arbitrator.
Under section 19(1)(b), the reference is admittedly to an arbitrator.
He need not even be a Judge of a Court.
It is sufficient that he is qualified to be appointed a Judge of the High Court.
And under the law, no appeal would have lain to the High Court against the decision of such an arbitrator.
Thus, the provision for appeal to the High Court under section 19(1)(f) can only be construed as a reference to it as an authority designated and not as a Court.
The fact that, in the present case, the reference was to a District Judge would not affect the position.
Then again, the decision of the arbitrator appointed under section 19(1)(b) is expressly referred to in section 19(1)(f) as an award.
Now, an appeal is essentially a continuation of the original proceedings, and if the proceedings under section 19(1)(b) are arbitration proceedings, it is difficult to see how their character can suffer a change, when they are brought up before an appellate tribunal.
The decisions in The Special Officer, Salsette Building Sites vs Dossabhai Bezonji (1), The Special Officer, Salsette Building Sites vs Dassabhai Basanji Motiwala (2), Manavikraman Tirumalpad vs The Collector of the Nilgris (3) and Secretary of State for India in Council vs Hindusthan Co operative Insurance Society Limited (4) proceed all on the view that an appeal against an award continues to be part of, and a (1) Bom.
(2) (3) Mad.
(5) (1931) L.R. 58 I.A. 259.
1190 further stage of the original arbitration proceedings.
ln our view, a proceeding which is at the inception an arbitration proceeding must retain its character :as arbitration, even when it is taken up in appeal, where that is provided by the statute.
The question whether an appeal under section 19(1)(f) is of the nature of arbitration proceedings, and whether the decision given therein is an award came up directly for consideration in Kollegal Silk Filatures Ltd. vs Province of Madras (1) before a Bench of the Madras High Court consisting of Patanjali Sastri and Chandrasekhara Aiyar JJ.
and it was held by them that the word "arbitration" in section 19(1)(g) of the Act covered the entire proceedings from their com mencement before the arbitrator to their termination in the High Court on appeal where an appeal had been preferred, and the High Court in hearing and deciding the appeal acted essentially as an arbitration tribunal.
We agree with this decision that the appeal under section 19(1) (f) is an arbitration proceeding.
We must therefore hold that the decision of the High Court in the appeal under that provision is not a judgment, decree or order either within sections 109 and I 10 of the Code of Civil Procedure or cl. 29 of the Letters Patent of the Nagpur High Court, which corresponds to cl. 39 of the Letters Patent of the Calcutta, Madras and Bombay High Courts, and that, therefore, the present appeals are incompetent.
Mr. Achbru Ram finally contended that even if no appeal lay under sections 109 and 110 of the Code of Civil Procedure or cl. 29 of the Letters Patent, it was, nevertheless within the competence of this Court to grant leave to appeal, and that this was a fit case for the grant of such leave.
He argued that the Privy Council had the power to grant leave to appeal against the decision of the Nagpur High Court in the appeal under section 19(1) (f), that under section 3(a)(ii) of the Federal Court (En. largement of Jurisdiction) Act I of 1948 that power became vested in the Federal Court, and under article 135 it has devolved on this Court, and that in the exercise of that power we should grant leave to appeal against (1) I.L.R. 1191 the decision now under challenge.
it is sufficient answer to this contention that the Federal Court had power under section 3(a) (ii) to grant leave only when the proposed appeal was against a judgment, and that, under the definition in section 2(b), meant a judgment, decree or order of a High Court in a civil case; and that on our conclusion that the decision in the appeal under section 19(1) (f) is not a judgment, decree or order but an award, no order could have been passed granting special leave under section 3(a) (ii).
In the result, we dismiss both the appeals as incompetent.
The parties will bear their own costs in this Court.
Appeals dismissed.

summary/full:
These two appeals were preferred against the decision of the Nagpur High Court in an appeal under 'section 19(1)(f) of the Defence of India Act, 1939, modifying an award of compensation made 1178 under section 19(i)(b) of that Act in respect of certain premises requisitioned by the Government under 75(A) of the Rules framed under the Act.
Both the parties applied for and obtained leave to appeal to the Federal Court under sections 109 and 110 of the Code of Civil Procedure.
A preliminary objection was taken on behalf of the Government that the decision of the High Court was an award and not a judgment, decree or order within the meaning of sections 109 and 110 of the Code and as such no appeal lay therefrom : Held, that the objection must prevail and both the appeals stand dismissed.
There could be no doubt that an appeal to the High Court under section 19(1)(f) Of the Defence of India Act from an award made under section 19(i)(b) of that Act was essentially an arbitration proceeding and as such the decision in such appeal cold not be a judgment, decree or order either under the Code of civil procedure or under Cl. 29 Of the Letters patent of the Nagpur High Court.
Kollegal Silk Filatures Ltd. vs province, of Madyas, I. I,.
R. , approved.
There is a well recognised distinction between a decision given by the Court in a case which it 'hears on merits and one given by it in a proceeding for the filing of an award.
The former is a judgment, decree or order of the Court appellable under the general law while, the latter is an adjudication of a private individual with the sanction of the Court stamped on it and where it does not exceed the terms of the reference, it is final and not appealable.
There can be no difference in law between an arbitaration by agreement of parties and one under a statute.
A referrence to arbitration under a statute to a court may be to it either as a court or as an arbitrator.
If it is to it as a court, the decision is a judgment, decree or order appealable under the ordinary law unless the statute provides otherwise, while in the latter case the Court functions as a persona designata and its decision is air award not appealable under the ordinary law but only under the statute and to the extent provided by it.
An appeal being essentially a continuation of the original proceedings, what *as at its inception an arbitration proceeding must retain its character as an arbitration proceeding even where the statute provides for an appeal, Rangoon Botatung Company vs The Collecter , Rangoon (1912) L.R. 39 I.A. 197 .The special officer sales the building sites Dassabhai Beznoji, Bom 506 the special officer sales the Building sites vs Dassabhai Bozanji Motiwala Manavikram Tirumalpad vs the Collector of the Nilagrie, Mad 943 and secretary of state for India in council vs Hindustan Co operative Insurance society Limited ,(1931) L.R. 58 I. A 259 relied on.
National Telephone Company Limited vs Postmaster General, , explained.


judgement:
N: Civil Miscellaneous Peti tion No. 1103 of 1989.
IN Special Leave Petition No. 5597 of 1987.
From the Judgment and Order dated 2.4.87 of the Punjab & Haryana High Court in C.R. No. 1095 of 1987.
A.K. Sanghi for the Petitioner.
C.M. Ashri and S.M. Ashri for the Respondents.
The Judgment of the Court was delivered by SABYASACHI MUKHARJI, J.
This application is by Kalu Ram and another, who were the respondents in special leave petition No. 5597/87.
The petitioner in the special leave petition was the firm, namely, Ganpat Ram Rajkumar.
It appears that the applicants had filed proceedings for evic tion against the firm in respect of the property in Narnaul in the State of Haryana under section 13(3)(c) of the Haryana Urban (Control of Rent & Eviction) Act, 1973.
An order of eviction was passed against the said firm.
Ultimately the High Court upheld the said order of eviction.
The said firm came in special leave petition to this Court.
This Court found that there was nothing to interfere with the order of eviction and on August 24, 1987 passed the following order: In view of the finding that the landlord has made out a case for eviction under Section 13(3)(c) of the Haryana Urban (Control of Rent & Eviction) Act, 1973 the Special Leave Peti tion is dismissed.
The order of eviction shall not be executed for a period of six months on the petitioners filing usual undertaking in this Court within four weeks from 226 today.
The dismissal of the Special Leave Petition should also not prevent the petition er to the benefit of putting back into posses sion in the equivalent accommodation in the reconstructed building provided the Court lays down such condition while interpreting the provisions of the Act.
We are informed that the question is pending consideration before this Court in some other cases i.e.W.P. Nos.
13385, 9921 24 of 1983 etc.
" From the aforesaid, it is apparent that the said firm wanted time to vacate the premises within six months from the date of the order and representation must have been made on behalf of the said firm that the 'usual undertaking ' will be filed in this Court.
Upon that, this Court restrained eviction for a period of six months from the date of the said order.
This Court, further preserved the right of the said petitioner to the benefit of being put back in posses sion in the equivalent accommodation in the re constructed building provided the Court laid down such condition while interpreting the provisions of the Act.
This Court recorded that the aforesaid question was pending consideration in this Court.
However, it appears that the said firm did not file any undertaking, usual or otherwise.
The usual undertaking to this Court means, inter alia, a statement that the party giving the undertaking is in possession of the premises and that it will further deliver vacant and peaceful possession to the landlord or the respondent.
As mentioned hereinbefore, the petitioner did not file the undertaking though it had obtained time from this Court on that plea.
Furthermore, the petitioner did not vacate the premises in question.
It appears that Sanjay Kumar and Lala Ram sons of Rajkumar and Ved Prakash who as sons of Ganpat Ram filed a suit in the court of Senior Sub Judge, Narnaul for permanent injunction, re straining the present applicants from ejecting Sanjay Kumar and Lala Ram.
It may be mentioned that Ganpat Ram and Rajku mar are the partners of the petitioner firm M/s Ganpat Ram Rajkumar.
The said firm and the partners thereof were bound in law to comply with the Order dated 24th August, 1987.
In the said suit Sanjay Kumar and Lala Ram obtained an order of temporary injunction dated 3rd November, 1988.
The learned Sr.
Sub Judge, Narnaul, by an order in an application under Order 39 Rules 1 & 2 read with section 151 of the Code of Civil Procedure in civil suit No. 121/88 filed in the Court of Sr.
Sub Judge, Narnaul, by Sanjay Kumar, Lala Ram minor sons of Rajkumar and Ved Prakash, son of Ganpat Ram as partners in the said firm, made the order of injunction.
227 The said suit was instituted against Kalu Ram and Puran Chand sons of Roshan Lal and also against Ganpat Ram.
In the order passed on the 12th February, 1988 in the said suit, the learned Senior Sub Judge, Narnaul had stated that the present plaintiffs had claimed right of tenancy to the premises in question independently and as such the decree of eviction passed by this Court in Special Leave Petition No. 5597 would not bind the plaintiffs therein.
He, therefore, issued an injunction restraining the parties who were Kalu Ram, Puran Chand and Ganpat Ram, partners of the petitioner firm.
As mentioned hereinbefore, both Sanjay Kumar and Lala Ram are sons of Rajkumar and Ved prakash respectively, who is a partner of the firm, Ganpat Ram Rajkumar.
Rajkumar was a partner, Ganpat Ram was a partner and their sons and grandsons were claiming in the suit in Narnaul.
On the date of the order of this Court dated 21st August, 1987 in the said Special Leave Petition, the peti tioner therein had obtained time on the implied assurance and representation that they were in possession of the premises in question and were capable of delivering the vacant possession to the applicants herein The effect of the said order of this Court, as we have set out hereinbefore, is that the applicants would have vacant possession from the firm, Ganpat Ram Rajkumar.
It is not clear from the order of the learned Sr.
Sub Judge, Narnaul dated 3rd November, 1988, how since the order of this Court 'dated 24th August, 1987, the plaintiffs in the suit in Narnaul Court could have in possession of the premises in question.
Having regard to the relationship between the parties and having regard to the undertaking promised to be filed in this Court upon which time was obtained from this Court, it appears to us that there is a clear non compliance of the order.
The order stated that vacant possession was to be given.
In the aforesaid view of the matter, the question that requires consideration is how will this order of eviction passed by the High Court and confirmed by this Court by dismissing the Special Leave Petition on the terms mentioned hereinbefore on 24th August, 1987 is to be enforced or implemented? In our opinion, the said order must be imple mented and cannot be allowed to be defeated by the dubious methods adopted by the partners of the said firm of Ganpat Ram Rajkumar.
The whole conduct betrays a calculated attempt to defeat the order of this Court and to mislead this Court.
If that is the position, in our opinion, parties cannot be allowed to do so and get away by misleading this Court.
This application was made for contempt.
It may or may not be appropriate to pass any order punishing the wrongdoers.
But there is no doubt that the order of this Court dated 24th August, 1987 is being sought to be defeated and frustrated.
Sons and grandsons 228 of the partners or erstwhile partners of the firm cannot be allowed to frustrate the order of this Court.
Mr Ashri, learned counsel for the respondents submitted that the respondents could not be held guilty of contempt of court.
It was further submitted by him that no undertaking had, in fact, been given, as such there is no question of breach of any undertaking by anybody.
Mr. Ashri was right.
In fact, no undertaking was given.
It is also true that the parties who instituted suit in Narnaul and obtained the order of injunction dated 3rd November, 1988 were not par ties before this Court when this Court passed the order on the 24th August, 1987 nor are those parties successors in interest, according to law, of those who were bound by the order dated 24th August, 1987, as such.
As we look at it, the order of this Court is an order of the High Court with a sanction of this Court and the applicants were entitled to have it executed.
It has been interfered, by the firm along with the plaintiffs in the said suit at Narnaul.
Mr. Ashri referred to certain observations of this Court in Babu Ram Gupta vs Sudhir Bhasin & Anr., ; , wherein pending decision of a dispute between the parties referred to an arbitrator, the High Court passed with the agreement of the parties a consent order appointing a receiver.
The Court directed that the receiver should take charge of the property forthwith from the appellant therein and submit periodical reports to the Court regarding the running of the business.
Without making an express direction to the appel lant, that the properties in its possession should be handed over to the receiver, the High Court directed the appellant not to interfere with the receiver in the running of the business and that the appellant should give the receiver all cooperation that the receiver might require.
In the petition filed before the High Court in that case, the respondent alleged that by failing to hand over possession of the property to the receiver, in terms of the consent order the appellant had committed breach of the undertaking given to the court and hereby committed an offence punishable under section 2(b) of the (hereinafter referred to as 'the Act ').
The High Court held the appellant to be guilty of contempt of court and sentenced him to undergo civil imprisonment.
This Court held that the act of the appellant in not complying with the terms of the consent order did not amount to an offence under section 2(b) of the Act, however improper or reprehensible his conduct might be.
It was further held that when a person appearing before a court files an application or affidavit giving an undertaking to the court or when he clearly and expressly gives an oral undertaking which is incorporated by the court in its order and fails to honour that undertaking then a wilful breach of 229 the undertaking would amount to an offence punishable under the Act.
An undertaking given by one of the parties should be carefully construed by the Court to find out the nature and extent of the undertaking given by the person concerned.
It is not open to the court to assume an implied undertaking when there was none of the record, this Court said.
As mentioned hereinbefore, the facts of that decision are significantly different from the facts in this case.
The parties by no conduct, overt or otherwise, herein misled this Court.
Indubitably, in the instant case, the decree of eviction was passed by the learned St. Sub Judge, Narnaul and upheld by the High Court of Punjab & Haryana.
This Court dismissed the Special Leave Petition and granted time of six months on the plea that the petitioner firm would file an undertaking.
All this could not have happened if the present plaintiffs in the Narnaul suit had not consented or allowed it to be passed or stood by.
It is difficult to accept the position that they did not know.
In the facts of this case, we are of the opinion that they deliberately did not object to this Court passing the order and thereby allowed the firm to mislead this Court.
They are, therefore, bound to see that the order of this Court is complied with.
Though, contempt is a serious matter and it interferes with the right of those who are found guilty of contempt, no court should allow any party to mislead the court and thereby frustrate its order.
In the aforesaid view of the matter, we are of the opinion that though perhaps the petitioner firm could not be found guilty of violating any undertaking as there was none, in the facts and circumstances of the case, this Court should ensure compliance with its order dated 24th August, 1987 and see that vacant and peaceful posses sion is given to the applicant in the interest of justice.
Mr. Sanghi, learned counsel for the applicant drew our attention to an order of this Court in Thackar Harirarn Motirarn vs Balkrishan Chatrathu Thacker & Ors., [1988] 3 JT SC 18.
That decision was, however, on the question of enter taining a Special Leave Petition or not.
Special leave was not entertained in that case because the petitioner therein had obtained time from the High Court in respect of decree of eviction.
In this case, also the Special Leave Petition was dismissed but out of consideration for the difficulties of the petitioner firm in the said petition, this Court was induced to grant some time on certain considerations.
It appears that this Court was mislead.
It further appears that the respondents, all of them, were guilty of acts which led to the situation and thereby frustrate the order of this Court.
Another point was taken about limitation of this appli cation under section 20 of the Act.
section 20 states that no court shall initiate any proceedings for contempt, either on its own motion or otherwise, after 230 the expiry of a period of one year from the date on which the contempt is alleged to have been committed.
In this case, the present application was filed on or about 3rd November, 1988 as appears from the affidavit in support of the application.
The contempt considered, inter alia, of the act of not giving the possession by force of the order of the learned Sr.
Sub Judge, Narnaul dated 12th February, 1988.
Therefore, the application was well within the period of one year.
Failure to give possession, if it amounts to a contempt in a situation of this nature is a continuing wrong.
There was no scope for application of s: 20 of the Act.
In the aforesaid view of the matter, we direct the learned St. Sub Judge, Narnaul (Haryana) to cause deliver up the vacant possession of the shop situated at Sabji Mandi, Narnanl.
Distt.
Mohindergarb (Haryana), if necessary with the help of police forthwith.
The learned Sr, Sub Judge, Narnaul is also directed to report compliance immediately.
Save as aforesaid, there will be no order on this applica tion, but we direct that the respondents, namely, firm Ganpat Ram Rajkumar, Ganpat Ram Rajkumar, Sanjay Kumar, lala Ram and Ved Prakash should pay and bear the costs of this application to the applicant, which is quantified and as sessed at Rs.2,500 (Rupees two thousand five hundred only).
Save as aforesaid, there will be no further orders on this application.
This order will not prevent or prejudice the applicants from taking any step for recovery of arrears of rent and mesne profit as they are entitled to in accordance with law.
Y. Lal Petition dis posed of.

dataset_name: IN-Abs

summary/full:
The Respondent filed proceedings for eviction against the Petitioner firm in respect of a property situated at Narnaul under the Haryana Urban (Control of Rent and Evic tion) Act, 1973 and obtained a decree of eviction.
Petition er 's appeal against that decree failed in the High Court and the Special Leave Petition filed by it in this Court was also dismissed on 24.8.87.
While dismissing the Special Leave Petition this Court inter alia directed that the order of eviction shall not be executed for a period of six months on the Petitioner 's filing usual undertaking in this Court within four weeks.
Usual under taking implied that the Petitioner was in possession of the property and that it would deliver vacant possession of the property by the time granted to it by the Court.
The Petitioner did not file any undertaking in this Court.
Instead three of Sanjay Kumar and Lala Ram sons of Rajkumar and Ved Prakash who are sons of Ganpat Ram (a partner in the petitioner 's firm) filed a suit in the Court of senior Sub Judge, Narnaul for permanent injunction restraining the decree holders from ejecting Sanjay Kumar & Lala Ram.
In the said suit the said plain tiffs obtained an order of temporary injunction dated 3.11.
The said suit was filed against Kalu Ram and Puran Chand son of Roshan Lal and also against Ganpat Rai.
The learned Senior Subordinate Judge in his order dated 12.2.88 granting injunction to the plaintiffs took the view that the plaintiffs had claimed a right of tenancy to the premises in question independently and as such the decree of eviction passed by this Court in Special Leave Petition No. 5597 of 1987 would not bind the plaintiffs.
On this reason ing he issued the injunction.
Being unable to obtain possession of the property in question, Kalu Ram and Ant.
who were respondents in Special Leave Petition (decree holders) have filed this Petition praying for initiation of Contempt of Court proceedings against the Petitioner firm.
224 Disposing of the Petition with some directions this Court, HELD: On the date of the order of this Court dated 21st August 1987, in the Special Leave Petition, the Petitioner therein had obtained time on the implied assurance and representation that they were in possession of the premises in question and were capable of delivering the vacant pos session to the applicants.
The effect of the said order of this Court, is that the applicants would have vacant posses sion from the firm, Ganpat Ram Rajkumar.
[227C D] Having regard to the relationship between the parties and having regard to the undertaking promised to be filed in this Court, upon which time was obtained from this Court, it appears, there is a clear non compliance of the order.
[227E] The said order must be implemented and cannot be allowed to be defeated by the dubious methods adopted by the part ners of the said firm of Ganpat Ram Raj Kumar.
The whole conduct betrays a calculated attempt to defeat the order of this Court and to mislead the Court.
Sons and grandsons of the partners or erstwhile partners of the firm cannot be allowed to frustrate the order of this Court.
[227G H; 228A] The Respondents, all of them, were guilty of acts which had to the situation and thereby frustrate the order of this Court.
Though perhaps the respondents could not be found guilty of violating any undertaking as there was none, in the facts and circumstances of the case, this Court should ensure compliance with its order dated 24th August 1987 and see that vacant and peaceful possession is given to the applicant in the interest of Justice.
[229D E] Failure to give possession, if it amounts to contempt in a situation of this nature is a continuing wrong.
There was no scope for application of section 20 of the Act.
[230B] The Court accordingly directed the learned Senior Sub Judge.
Narnaul (Haryana) to cause, deliver up the vacant possession of the shop situated at Sabji Mandi Narnaul Distt.
Mohindergarh (Haryana), if necessary with the help of police forthwith.
The learned Senior Sub Judge is also di rected to report compliance immediately.
Save as aforesaid, the Court passed no order on this application.
Respondents viz., firm Ganpat Ram, Rajkumar, Ganpat Ram, Rajkumar, Sanjay Kumar, Lalu Ram and Ved Prakash are directed to pay to the applicants the costs of this Application, quantified at Rs.2,500.
This order will 225 not prevent or prejudice the applicants from taking any step for recovery of arrears of rent and mesne profits as they are entitled to in accordance with law.
[230C E] Babu Ram Gupta vs Sudhir Bhasin & Anr., ; and Thackar Hariram Motiram vs Balkrishan Chatrathu Thacker


judgement:
tion (Criminal) No. 296 of 1989.
(Under Article 32 of the Constitution of India).
U.R. Lalit, Mrs. Rani Chhabra and Ms. Meera Chhiba for the Petitioner.
B. Dutta, Additional Solicitor General, Yogeshwar Pd., Ms. Sucharita, Ms. A Subhashini, Dalveer Bhandari, Ms. Rachna Joshi and Rachna Gupta for the Respondents.
The Judgment of the Court was delivered by DUTT, J.
In this writ petition under Article 32 of the Constitution of India, the mother of the detenu, Shri Pra veen Kumar Gupta, has prayed for the quashing of the deten tion order of her son dated May 6, 1989 passed under sub section (2) read with sub section (3) of section 3 of the , as confirmed by the order dated May 11, 1989 of the State of U.P. on the report of the Advisory Board.
There is also a prayer for issuance of an appropriate writ in the nature of habeas corpus directing the respondents to release the said Praveen Kumar Gupta forthwith.
The grounds of detention, as communicated to the detenu by the District Magistrate, Meerut, are as follows: 243 "That on 30.4.89 at about 9.15 P.M. at Delhi Road, Kesarganj, P.S. Delhi Gate, Meerut, you along with your other accomplice with the common intention to kill Babli showing your wrath gave him a gun injury and also threat ened to give gun shot to those persons who came in his rescue.
On the basis of informa tion given by Mohd. Bhura a Crime Case No. 12 1 was registered against you u/s 307 IPC in P.S. Delhi Gate, Meerut, which is pending.
By your above misdeed fear and terror was spread in the hearts of public in the markets, Mela Manchandi and in the city of Meerut.
Thus you have committed an act which is prejudicial to the maintenance of public order.
You are at present in jail and are trying to be released on bail and there is every possibility of releasing you on bail.
On the basis of above grounds and reasons 1 am satisfied that you are likely to indulge in the activities prejudicial to the public order and public life and with a view to prevent you from acting in any manner prejudicial to the public order and public life, it has become necessary to detain you.
" It is apparent from the grounds of detention that a crime case was registered against him under section 307 IPC and he was arrested and detained in jail.
Along with the grounds of detention, a copy of the report of the Inspector in Charge, P.S. Delhi Gate, Meerut, was also supplied to the detenu in jail.
The relevant por tion of the report is extracted below: "On 30.4.89 at busy road (Delhi Road) at about 21.15 P.M. he without any reasons gave a gun shot to one Babli S/o Sh.
Bhura R/o Mohalla Purwa Hamidnagar who had come for reading Namaz, as a result of which he was seriously injured.
At present he is in serious condition in the hospital.
This site is the most sensi tive area of the city for communal point of view.
On receiving the information of the gun injury to Babli by the Muslim community on the pious occasion of Ramzan there spread great excitement.
Thousands of people from community gathered.
There was 244 an apprehension of communal threat in the city and area.
People closed their shops feeling threat of communal riots and the road became quiet due to fear and terror.
Above all, on receiving the news of this incident the people of famous Manchandi Mela started running to their houses.
This news of fear and terror created due to this incident was also pub lished in the newspaper Amar Ujala on 1.5.89.
Bhura S/o Dilsad R/o 29, Purwa Hamid Hussain got lodged one report in the Police Station Delhi Gate and a Crime Case No. 12 1 of 89 under section 307 IPC is pending consid eration.
Praveen Kumar is in jail for commission of this offence.
Praveen Kumar has given application for bail in the above matter and there is every possibility of his release on bail.
He is a man of strong means.
After release on bail he would again commit such serious act which would be prejudicial to communal harmony and cause adverse reaction in general public especially in Muslim community.
Therefore the detention under Na tional Security Act is recommended to above Praveen.
" At this stage, it may be mentioned that the detenu has since been granted bail, but in view of the order of deten tion, he is not released.
Mr. Lalit, learned Counsel appear ing on behalf of the petitioner, has strongly urged that as the grounds of detention does not disclose any past history of commission of any crime by the detenu and the incident that has been referred to in the grounds being the solitary incident and there having been no materials on record to show that such an incident would be repeated in future, the order of detention is illegal and should be quashed.
Counsel submits that the only ground on which the detaining authori ty had placed.reliance for making the order of detention was that there 'was a chance of the detenu being released on bail by the criminal court and, in that event, it was appre hended that he would act prejudicially to the interest of public order.
It is submitted that such apprehension is not supported by any material on record and, accordingly, the detention order should be quashed.
In support of the above contention, learned Counsel has placed much reliance upon a decision of this Court in Smt.
Shashi Aggarwal vs State of U.P. and others; , In that case, this Court observed as follows: 245 "Every citizen in this country has the right to have recourse to law.
He has the right to move the court for bail when he is arrested under the ordinary law of the land.
If the State thinks that he does not deserve bail the State could oppose the grant of bail.
He cannot, however, be interdicted from moving the court for bail by clamping an order of detention.
The possibility of the court grant ing bail may not be sufficient.
Nor a bald statement that the person would repeat his criminal activities would be enough.
There must also be credible information or cogent reasons apparent on the record that the dete nu, if enlarged on bail, would act prejudi cially to the interest of public order.
" In laying down the above proposition of law, this Court has placed reliance upon its two earlier decisions in Alijan Mian vs District Magistrate, Dhanbad, ; and in Ramesh Yadav vs District Magistrate, Etah, It is true that the incident on April 13, 1989 was a solitary one so far as the detenu was concerned, but the question is whether the incident had prejudicially affected the public order.
In other words, whether it had affected the even tempo of life of the community.
As observed in Alijan Mian 's case (supra), it is for the detaining authori ty to have the subjective satisfaction about the apprehen sion of the breach of the public order and that even one incident may be sufficient to satisfy the detaining authori ty in that regard depending upon the nature of the incident.
It is not disputed by Mr. Lalit that a single incident may disturb the tranquility and the even tempo of life of the community.
In the grounds of detention, it has been stated "By your above misdeed, fear and terror was spread in the hearts of public in the markets, Mela Manchandi and in the city of Meerut.
Thus you have committed an act which is prejudicial to the maintenance of public order.
" This is not a mere bald statement of the detaining authority without any material in support of the same.
We have already extracted above the report of the Inspector in Charge, P.S. Delhi Gate, Meerut, which has been taken into account by the detaining authority at the time he passed the order of detention.
It has been already noticed that a copy of the said report was served on the detenu along with the grounds of detention.
A situation that emerged as a result of the incident, as stated in the said report, was grave and serious and prejudicially affect ed public order.
It may be a solitary incident, but it gave 256 rise to communal tension and there was apprehension of a communal riot as alleged in the report.
The report, in our opinion, is a sufficient material for the subjective satis faction of the detaining authority that there was disturb ance of ,tranquility and harmony of public life.
It is not correct to say that there is no material for the apprehension that if released on bail, the detenu will indulge in such criminal acts affecting public order.
Real ly, the detaining authority had taken into consideration all the circumstances including the! grave and serious situation that emerged as a result of the incident.
In our opinion, when an incident was such that it created communal tension and the authorities were apprehensive of the breaking of a communal riot, such incident in itself may be sufficient and may afford justification for the satisfaction of the detain ing authority for the detention of the detenu in order to prevent him from indulging in such activity prejudicial to public order even though, as submitted by the learned Coun sel, there is no antecedent acts of similar nature or past history of commission of crime by the detenu.
In this con nection, we may refer to a recent decision of this Court in Ayya vs State of U.P. and Another, ; In that case, this Court observed as follows: "Even a single instance of activity tending to harm "public order" might, in the circum stances of its commission, reasonably supply justification for the satisfaction as to a legislative apprehension of a future repeti tion of similar activity to the detriment of "public order".
" The above observation fully supports the view we have taken.
In our opinion, there were cogent reasons apparent on the face of the record justifying the order of detention.
In the circumstances, we are of the view that the deten tion of the petitioner was justified.
The rule nisi is dis charged and the writ petition is dismissed.
N.P.V. Petition dis missed.

summary/full:
A detention order under sub section (2) read with sub section (3) of Section 3 of the was passed against the detenu on the ground that the detenu, who was in jail in a case registered under Section 307 IPC was trying for release on bail, and there was every possi bility of his being released, and that he was likely to indulge in activities prejudicial to public order and public life.
The order was confirmed by the State Government on the report of the Advisory Board.
In a Writ Petition filed in this Court it was contended that as the grounds of detention did not disclose any past history of any crime by the detenu, nor was there any mate rial on record to show that the incident referred to in the grounds would be repeated in future, the detention order based on a solitary incident and on an apprehension that the detenu was likely to act prejudicially to the interest of public order, in the event of his being released on bail, was illegal.
Dismissing the writ Petition, the Court, HELD: When an incident was such that it created communal tension and the authorities were apprehensive of the break ing of a communal riot, such incident in itself may be sufficient, and may afford justification for the satisfac tion of the detaining authority for the detention of the detenu in order to prevent him from indulging in such activ ity prejudicial to public order even though there is no antecedent act of similar nature or past history of commis sion of crime by the detenu.
[246C D] In the instant case, the situation that emerged as a result of the incident was grave and serious and prejudi cially affected public order.
242 It may be a solitary incident but it gave rise to communal tension and there was apprehension of a communal riot.
The police report on the incident is a sufficient material for the subjective satisfaction of the detaining authority that there was disturbance of tranquility and harmony of public life.
The detaining authority had taken into consideration all the circumstances including the grave and serious situa tion that emerged as a result of the incident.
There were cogent reasons apparent on the face of the record for justi fying the order of detention.
[245H; 246A B] Alijan Mian vs District Magistrate, Dhanbad, ; and Ayya vs State of U.P. and another; , , relied on.
Ramesh Yadav vs District Magistrate, Etah, and Smt.
Shashi Aggarwal vs State of U.P. and others; , , referred to.