judgement:
L APPEAL No. 2029 of 1980 Appeal by Special leave from the judgment and Order dated 603 the 26th July, 1970 of the Kerala High Court in W.A. No. 11 of 1978.
K.R.R. Pillai for the Appellant.
P. Govindan Nair E.M.S. Anm, M.K. Dua and Miss Baby Krishnan for Respondents No. 1, 3 & 4.
For Applicant/Interveners: K.M.K.Nair for Bar Council, Kerala.
R.C. Misra & Vimal Dave for Supreme Court Bar Clerk 's Association.
The Judgment of the Court was delivered by CHANDRACHUD, C.J.
The question which arises for consideration in this appeal is whether a firm of lawyers is a 'commercial establishment ' within the meaning of the Kerala Shops and Commercial Establishments Act, 1960 (referred to herein as 'the Act ').
The appellant, V. Sasidharan, was working as a clerk in a firm of lawyers which is respondent 1 to this appeal.
Respondents 2, 3 and 4 are partners of the firm.
The services of the appellant were terminated by the firm on February 3, 1977, whereupon he preferred an appeal to the Appellate Authority under the Act.
A preliminary objection was raised in that appeal by the firm on the ground that it was not a commercial establishment.
By a judgment dated August 11, 1977, the Appellate Authority upheld the preliminary objection and dismissed the appeal.
Being aggrieved by that judgment, the appellant filed a writ petition (O.P.No. 3380 of 1977 B) in the High Court of Kerala.
A learned single Judge of the High Court dismissed that writ petition, against which the appellant filed Letters Patent appeal (W.A. No. 11 of 1978).
That appeal was dismissed on July 26, 1978.
This appeal by special leave is filed against the judgment of the Division Bench of the Kerala High Court.
The decision of the question whether respondent 1 firm is a commercial establishment, must naturally depend upon the definition of that expression and the definitions of cognate expressions 604 which are contained in the Act.
Section 2 (4) of the Act defines "commercial establishment" as follows: "Commercial establishment ', means a commercial or industrial or trading or banking or insurance establishment, an establishment or administrative service in which the persons employed are mainly engaged in office work, hotel, restaurant, or boarding or eating house, cafe or any other refreshment house, a theatre or any other place of public amusement or entertainment and includes such other establishment as the Government may, by notification in the Gazette declare to be a commercial establishment for the purposes of this Act, but does not include a factory to which all or any of the provisions of the (Central Act 63 of 1948) apply.
" Section 2(8) defines "establishment" to mean a shop or a commercial establishment.
Section 2 (15) defines "shop" as follows: "Shop" means any premises where any trade or business is carried on or where services are rendered to customers, and includes offices, store rooms, godowns or warehouses, whether in the same premises or otherwise, used in connection with such trade or business but does not include a commercial establishment or a shop attached to a factory where the persons employed in the shop are allowed the benefits provided for workers under the (Central Act 63 of 1948)" It is on the basis of these definitions that we shall have to decide whether the office of a lawyer or of a firm of lawyers is a commercial establishment within the meaning of the Act.
The definition contained in section 2 (4) may be simplified by restating it in separate clauses as follows: (1) Commercial Establishment means five different kinds of establishments: commercial, industrial, trading, banking or insurance; (2) Commercial Establishment means an establishment or administrative service in which the persons employed are mainly engaged in office work; (3) Commercial Establishment means a hotel, restaurant, boarding or eating house, a cafe or any other refreshment house; 605 (4) Commercial Establishment means a theatre or any other place of public amusement or entertainment; and (5) Commercial Establishment includes such other establishment as the Government may, by notification in the Gazette, declare to be a commercial establishment for the purposes of the Act.
Commercial Establishment does not include a factory to which any of the provisions of the apply.
A lawyer 's office or the office of a firm of lawyers cannot obviously fall under clauses (3) and (4) above.
Nor has the Government issued any notification as contemplated by section 2 (4).
The question thus narrows itself into whether a lawyer 's office falls under either of the first two clauses.
The expression 'establishment ' is defined by section 2(8) mean a shop or a commercial establishment.
Since by the definition contained in the first clause of Section 2(4).
a commercial establishment means an establishment, a place of work cannot be regarded as a commercial establishment unless the activity is conducted in a 'shop ' or in a commercial establishment, which is really tautological.
The definition of 'shop ' which is contained in section 2(15) shows that in order that an establishment can be regarded as a shop, it is necessary that some 'trade ' or 'business ' must be carried on there or some service must be rendered to 'customers.
The expression 'shop ' also includes offices, warehouses store rooms or godowns which are used in connection with the trade or business.
It does not require any strong argument to justify the conclusion that the office of a lawyer or of a firm of lawyers is not a 'shop ' within the meaning of section 2(15).
Whatever may the popular conception or misconception regarding the role of to day 's lawyers and the alleged narrowing of the gap between a profession on one hand and a trade or business on the other, it is trite that, traditionally, lawyers do not carry on a trade or business nor do they render services to 'customers '.
The context as well the phraseology of the definition in section 2(15) is inapposite in the case of lawyer 's office or the office of a firm of lawyers.
Learned counsel for the appellant argues that a lawyer 's office is a commercial establishment because, persons who are employed in that office are mainly engaged in office work.
This 606 argument overlooks that.
under the second clause of the definition in section 2(4), 'commercial establishment ' means "an establishment or administrative service in which the persons employed are mainly engaged in office work".
Partly, we go back to the same question as to whether a lawyer 's office is an 'establishment ' within the meaning of the Act.
The other aspect which this argument fails to take note of is that a lawyer 's office is not an 'administrative service '.
It seems to us doing violence to the language of the second clause of section 2(4) to hold that a lawyer 's office is an 'administrative service '.
This argument has therefore to be rejected.
The proposition is well established that words which occur in the same context must take their colour from each other.
It is unrealistic to dissect the definition clause in section 2(4) and to catch a word here or there in order to bring a lawyer 's office within the four corners of the definition of 'commercial establishment '.
The various clauses of that definition would show that establishment, far apart from professional offices, were within the contemplation of the legislature.
For these reasons, we are of the opinion that the office of a lawyer or of a firm of lawyer is not a 'commercial establishment ' within the meaning of the Act.
This conclusion is strengthened by the other provisions of the Act.
Chapter I A of the Act provides for registration of establishments, Chapter II for hours of work, Chapter III for holidays and leave, Chapter IV for wages, Chapter V for employment of children and women and Chapter VI for health and safety measures.
Section 6 of the Act provides that no employee in any establishment shall be required or allowed to work for more than eight hours on any day or for more than 48 hours in any week Section 8 requires that, the period or work of an employee in an establishment for each day shall be so fixed that no period shall exceed four hours and that no such person shall work for more than four hours before he has had an interval for rest of at least one hour.
Under section 10, no establishment shall, on any day, be opened earlier than and closed later than such hours as may be fixed by the Government, provided that any customer who is being served or is waiting to be served in any establishment at the hour fixed for its closing may be served during a quarter of an hour 607 immediately following such hour.
These and other cognate provisions of the Act show that a lawyer 's office cannot possibly be comprehended within the meaning of the expression 'commercial establishment ' as defined in section 2(4) of the Act.
We are quite solicitous about the welfare of those who work in the lawyers ' offices.
But, there are many other ways in which their welfare can be ensured.
If the current trends are any indication and if old memories fail not, the earnings of lawyers ' clerks cannot, in reality, bear reasonable comparison with the earnings of employees of commercial establishments, properly so called.
They, undoubtedly, work hard but they do not go without their reward.
They come early in the morning and go late at night, but that is implicit in the very nature of the duties which they are required to perform and the time they spend is not a profitless pastime.
An argument was strongly pressed upon us on the basis of the decision of this Court in Bangalore Water supply and Sewage Board vs A. Rajappa.(1) The High Court has rightly observed that the question which arose in that case was entirely different, namely, the sweep of the meaning of the word 'industry '.
The ratio of that decision is that term 'industry ' covers any activity which is systematically or habitually undertaken for the production or distribution of goods or for rendering material services to the community at large with the help of employees.
The question which arises in this appeal is basically different, namely, whether a lawyer 's office or the office of a firm of lawyers is commercial establishment.
Considerations which were germane to the determination of the question in the Bangalore Water Supply case are foreign to the decision of the question before us.
In Indian Chambers of Commerce and Industry(2) case, the question was whether the Federation of Indian Chambers of Commerce and Industry is a commercial establishment within the meaning of the Delhi shops and Commercial Establishment Act, 1954.
This Court pointed out that the definition of 'commercial establishment ' in that Act is so wide that the activities of a registered society or a charitable trust would also fall within the purview of that definition.
608 The learned single Judge and the Division Bench of the Kerala High Court have dealt with the questions arising in this appeal with care.
We agree with their reasoning and hold that the office of a lawyer or of a firm of lawyers is not a 'commercial establishment ' within the meaning of section 2(4) of the Act.
The Bar Council of Kerala and Clerks Association of the Supreme Court Bar had intervened in this matter.
We must express our thankfulness to them for the assistance rendered by them.
In the result, the appeal is dismissed but there will be no order as to costs.
M.L.A. Appeal dismissed.

summary/full:
The appellant preferred an appeal to the Appellate Authority under the Kerela Shops and Commercial Establishments Act, 1960 (For short.
the Act) against his dismissal from service by respondent No. 1, a firm of Lawyers.
Respondent No. 1 raised a preliminary objection that the appeal was not maintainable since Respondent No. I firm was not a commercial establishment under the Act.
The Appellate Authority upheld the preliminary objection and dismissed the appeal.
His writ Petition and Letters Patent Appeal in the High Court against the judgment of the Appellate Authority were also dismissed.
Hence this appeal by special leave.
Dismissing the appeal, ^ HELD: (I) The question whether respondent No. I firm is a commercial establishment must naturally depend upon the definition of that expression and the definition of cognate expressions which are contained in the Act.
The definition of "commercial establishment" contained in sec.2(4) of the Act may be simplified by restating it in separate clauses as follows: (I) Commercial, Establishment means five different kinds of establishments; commercial, industrial, trading, banking or insurance; (2) Commercial Establishment means an establishment or administrative service in which the persons employed are mainly engaged in office work; (3) Commercial Establishment means a hotel, restaurant, boarding or eating house, a cafe or any other refreshment house; (4) Commercial Establishment means a theater or any other place of public amusement or entertainment; and (5) Commercial Establishment includes such other establishment as the Government may, by notification in the Gazette.
declare to be a commercial establishment for the purposes of the Act.
Commercial Establishment does not include a factory to which any of the provisions of the apply Section 2(8) defines 'establishment ' to mean a shop or a commercial establishment.
The definition of shop contained in sec.
2(15) shows that in order that an establishment can be regarded as a shop it is necessary that some trade or business must be carried on there or some service must be rendered to 'customers '.
The expression 'shop also includes offices, warehouses.
store rooms or godowns which are used in connection with the trade or business.
[30H; 603H, 605A, D G].
602 (2) A lawyer 's office or the office of a firm of lawyers cannot obviously fall under clauses (3) and (4) of section 2(4).
Nor has the Government issued any notification as contemplated by section 2(4).
The question thus narrows itself into whether a lawyer 's office falls under either of the first two clauses.
Since by the definition contained in the first clause of section 2(4), a 'commercial establishment means an establishment, a place of work cannot be regarded as a commercial establishment unless the activity is conducted in a 'shop ' or in a commercial establishment, which is really tautological.
Whatever may be the popular conception regarding the role of today 's lawyers and the alleged narrowing of the gap between a profession on one hand and a trade or business on the other, it is trite that, traditionally, lawyers do not carry on a trade or business nor do they render services to customers '.
The context as well as the phraseology of the definition in section 2(15) is inapposite in the case of a lawyer 's office or the office of a firm of lawyers.
Therefore, the office of a lawyer or of a firm of lawyers is not a shop within the meaning of sec.
2(15) of the Act.
[605C, F G] (3) The argument, that a lawyer 's office is a commercial establishment because, persons who are employed in that office are mainly engaged in office work, cannot be sustained.
This argument overlooks that (i) under the second clause of the definition in section 2(4), commercial establishment ' means "an establishment or administrative service in which the persons employed are mainly engaged in office work" and thus the same question arises again as to whether a lawyer 's office is an " establishment ' within the meaning of the Act; and (ii) that a lawyer 's office is not an administrative service ' and it will be doing violence to the language of the second clause of sec.
2(4) to hold that a lawyer 's office is an 'administrative service '.
The proposition is well established that words which occur in the same context must take their colour from each other.
It is unrealistic to dissect the definition clause in section 2(4) and to catch a word here or there in order to bring a lawyer 's office within the four corners of the definition of commercial establishment '.
The various clauses of that definition would show that establishments, far apart from professional offices were within the contemplation of the legislature.[606BtoD] (4) Chapters 1 A, II.
III, IV, V and VI as also sections 6,8, 10 and other cognate provisions of the Act also strengthen the conclusion that a lawyer 's office cannot possibly be comprehended within the meaning of the expression 'Commercial establishment ' as defined in section 2(4) of the Act.
[607A B] Bangalore Water Supply and Sewage Board vs A. Rajappa.[1978] 3 SCR 297 and Indian Chambers of Commerce and Industry distinguished.


judgement:
Special Leave Petition (Civil) No. 9395 of 1984.
From the Judgment and order dated the 10th August, 1984 of the Bombay High Court in Appeal No. 721 of 1984.
R. N. Keshwani for the Petitioners.
599 R. Karenjawala for the Respondent.
The Judgment of the Court was delivered by CHINNAPPA REDDY, J.
On an allegation that the petitioners had acted in breach of an undertaking given by them in Suit No. 2308 of 1983 in the High Court of Bombay, a notice was issued to them to show cause why they should not be committed for contempt of court.
Cause was sought to be shown.
A learned Single Judge of the High Court recorded the following finding: "In my judgment the action of defendants Nos 4 and 6 clearly shows utter contempt for the orders of the court and under taking given by them.
I have no hesitation in holding that these defendants have committed gross contempt of Court. in my judgment, there is no circumstance whatsoever to take any lenient view of the gross contempt committed by defendants 4 and 6 and both of them are liable to be punished under the provisions of .
" On those findings the learned Single Judge committed each of the two petitioners to the civil jail for the period of one month.
Against the order of the learned Single Judge, the petitioners preferred an appeal to the Division Bench of the High Court under s 19(1) of the .
The appeal was dismissed by the Division Bench and the present Special Leave Petition has been filed against the judgment of the Division Bench.
Shri Ramesh N. Keswani.
learned counsel for the petitioners submits that though the Petition for Special Leave to Appeal has been filed under Article 136 of the Constitution, the petitioners have, in law, an appeal as of right under section 19(1) of the .
The submission has only to be stated to be rejected as totally lacking in substance.
Section 19(1) of the is as follows: "An appeal shall lie as of right from any order or decision of High Court in exercise of its jurisdiction to punish for contempt (a) where the order or decision is that of a single Judge, to a Bench of not less than two Judges of the Court; (b) where the order or decision is that of a Bench, to the 600 Supreme Court; Provided that where the order or decision is that of the Court of the Judicial Commissioner in any Union Territory, such appeal shall lie to the Supreme Court.
" If the order of committal for contempt or Court is made by a Single Judge of the High Court, there is one statutory right of appeal to a Division Bench of not less than two Judges of the Court If the order of committal for contempt of court is made by a Bench, an appeal lies as of right to the Supreme Court.
Where an appeal is filed against the order of the learned Single Judge to a Division Bench, the statutory right or appeal gets exhausted and there is no further right of appeal to the Supreme Court Shri Keshwani cited to us Purushottam Das Goel vs Hon.
Justice B.S Dhillon.(1) The decision is entirely irrelevant.
On merits, the learned counsel submitted that the undertaking given was not in respect of the property concerned and that in any case the learned Single Judge was not justified in giving certain directions in addition to punishing the petitioners for contempt of court.
We find no substance in the submissions made by the learned counsel.
There was a clear breach of the undertaking given by the petitioners and we are of the opinion that the Single Judge was quite right in giving appropriate directions to close the breach.
The Special Leave Petition is, therefore, dismissed N.V.K. Petition dismissed.

dataset_name: IN-Abs

summary/full:
The two petitioners in the Special Leave Petition were committed to the civil jail for a period of one month by Single Judge of the High Court under the , as they had acted in breach of an undertaking given by them in a suit pending in the High Court.
The appeal preferred by the petitioners under Section 19(1) of the Act to a Division Bench was dismissed.
In the Special Leave Petition it was contended on behalf of the petitioners that : though the petition had been filed under Article 136 the petitioners have, in law, an appeal as of right under Section 19(1), and (2) the Single Judge was not justified in giving directions in addition to punishing the petitioners for contempt of court.
Dismissing the Special Leave Petition, ^ HELD:1.
If the order of committal for contempt of court is made by a Single Judge of the High Court, there is one statutory right of appeal to a Division Bench of not less than two Judges.
If the order of committal of contempt of court is made by a Bench, an appeal lies as of right to the Supreme Court.
Where an appeal is filed against the order of the Single Judge to a Division Bench, the statutory right of appeal gets exhausted and there is no further right of appeal to the Supreme Court.[600B.C] 2.
As there was a clear breach of the undertaking given by the petitioners, the Single Judge was quite right in giving appropriate directions to close the breach.
[600E]


judgement:
N: Criminal Appeal Nos.
407 to 418 of 1979.
Appeals by Special leave from the judgment and order dated the 6th July, 1977 and 12th May, 1978 of the Madhya Pradesh High Court in Crl.
Case Nos. 857, 851, 853, 858, 852, 850 of 1977 and 1394, 1391, 1395, 1392, 1393 & 1387 of 1976.
WITH Criminal Appeal No. 828 of 1981 Appeal by Special leave from the Judgment and order dated the 1st May, 1981 of the Madhya Pradesh High Court in Crl.
Revision No. 187 of 1977 AND Criminal Appeal Nos. 315 317 of 1982 Appeal by Special Leave from the judgment and order dated the 7th September, 1977 of the Madhya Pradesh High Court in Crl.
Revision No. 186, 185 & 184 of 1977 G. L. Sanghi.
Vinod Bobde, Mrs. A. K. Verma, O. C. Mathur and D. N. Misra for the Appellant in Crl.
407 18/79.
Gopal Subramaniam and D.P. Mohanty for Respondents Nos. 1 & 2 in Crl.
407 18 of 1979.
Mrs. Urmila Sirur section N. Kohil and M.P. Jha for the Intervener in Crl.
A. Nos. 407 18/79.
M. K. Ramamurthy and Miss A. Vaiji for A.C. in Crl.
407 18/79.
section Govind Swaminathan and S.K. Gambhir for the appellants Crl.
A. 828/81 and Crl.
A. Nos. 828/81 & 315 17/82.
629 N. C. Taluqdar and Miss A. Subhashini for the Respondents in Crl.
A. Nos.
828/81 & 315 317/82.
The Judgment of the Court was delivered by CHANDRACHUD C.J.
These appeals raise a question of general public importance as to whether failure to pay the employers ' contribution to the Provident Fund is continuing offence.
If it is, no question of limitation can arise.
On the other hand, if it is not a continuing offence, the complaint for non payment of the contribution has to be filed within the stated period.
The facts of these appeals vary from case to case but such variation is inconsequential for our purpose.
We will therefore state the facts of a representative group of these cases which comprises Criminal Appeals Nos.
407 418 of 1979.
On August 22, 1975 the Provident Fund Inspector, Indore, Madhya Pradesh, filed six complaints against the appellants and respondent 2, charging them with non payment of employers ' contribution under the Employees Provident Fund and Family Pension Fund Act 19 of 1952, (referred to herein as "the Act").
Respondent 2 is a Company called M/s Burhanpur Tapti Mills Limited, of which appellants 1 to 3 were Directors and appellant 4 the Factory Manager.
Under section 17 of the Act, the Company was granted exemption from the operation of the Employees Provident Fund Scheme, 1952 which is framed under the Act.
That exemption was granted on the condition that the Company will transfer monthly collections of the Provident Fund of workers, inclusive of the employers ' contribution, to the Board of Trustees of the Fund within 15 days of the close of each month.
The allegation against the accused, about which there is no factual dispute, is that they did not pay the employers ' contribution to the fund from February 1970 to June 1971.
At the commencement of the trial, the accused filed applications contending that since the limitation prescribed by section 468 of the Code of Criminal Procedure, 1973 (referred to herein as "the Code"), had expired before the filing of the complaints, the Court had no jurisdiction to take cognizance of the complaints.
Those applications were rejected by the learned Judicial Magistrate by an order dated November 29, 1976 on the ground that the offences of 630 which the accused were charged are continuing offences and therefore, no question of limitation could arise.
The accused filed revision applications in the High Court of Madhya Pradesh against the order passed by the trial court.
By a judgment dated July 6, 1977 a learned single Judge of the High Court upheld the order of the trial court and dismissed the revision petitions.
The Directors of the company who, along with the company, were arraigned as the accused have filed these appeals by special leave, against the judgment of the High Court.
By a Notification dated April 22, 1971 the Company was declared as a Relief Undertaking under the Industries (Development and Regulation) Act, 1951.
As a result of that notification, the administration and control of the Company are vested in an administrator appointed by the Central Government under that Act.
Later, the Company was notified as a Sick Textile Undertaking under the First Schedule to the Sick Textile Undertakings (Nationalisation) Act, 1974, which came into force on April 1, 1974.
The complaints for non payment of the employer 's contribution to the Provident Fund were filed against the accused under section 14 (2A) of the Act which reads thus: "Section 14.
Penalties.
X X X X (2 A).
Whoever contravenes or makes default in complying with any provision of this Act or of any condition subject to which exemption was granted under Section 17 shall, if no other penalty is elsewhere provided by or under this Act for such contravention or non compliance, be punishable with imprisonment which may extend to three months or with fine which may extend to one thousand rupees, or with both.
" The allegation against the accused is that by not paying their contribution to the Provident Fund, they committed default in complying with the condition subject to which exemption was granted to them under section 17 of the Act from complying with the provisions of the Act.
Stated briefly, section 17 confers upon the appropriate Government the power to exempt any establishment from the operation of all or any of the provisions of the Act, if 631 such establishment has its own scheme of Provident Fund, of which the rules are not less favourable than the rules of the scheme framed under the Act.
The Company, in the instant case, was granted exemption under section 17 on the condition that it shall pay the employer 's contribution within fifteen days of the close of each month.
This condition is the same as the one contained in paragraph 38 (1) of the Employees ' Provident Funds Scheme, 1952.
Paragraph 38 (1) reads as follows, in so far as is relevant; "38.
Mode of payment of contribution (1) The employer shall, before paying the member his wages in respect of any period or part of period for which contributions are payable, deduct the employee 's contribution from his wages which together with his own contribution. he shall, within fifteen days of the close of every month, pay. to the Fund.
" The question as to whether the offence of non payment of the employer 's contribution of the Provident Fund is a continuing offence, arises because of the provisions contained in Chapter XXXVI of the Code which is entitled 'Limitation for taking cognizance of certain offences. ' Sections 468, 472 and 473 which occur in that Chapter and which are relevant for our purpose, read as follows: "468.
(1) Except as otherwise provided elsewhere in this Code, no Court shall take cognizance of an offence of the category specified in sub section (2), after the expiry of the period of limitation.
(2) The period of limitation shall be (a) six months, if the offence is punishable with fine only; (b) one year, if the offence is punishable with imprisonment for a term not exceeding one year; (c) three years, if the offence is punishable with imprisonment for a term exceeding one year but not exceeding three years.
" 632 "472.
In the case of a continuing offence, a fresh period of limitation shall begin to run at every moment of the time during which the offence continues." "473.
Notwithstanding anything contained in the foregoing provisions of this Chapter, any Court may take cognizance of an offence after the expiry of the period of limitation, if it is satisfied on the facts and in the circumstances of the case that the delay has been properly explained or that it is necessary so to do in the interests of justice.
" It is contended by Shri Bobde who appears on behalf of the appellants that, the offence of non payment of the employer 's contribution can be committed once and for all on the expiry of fifteen days after the close of every month and, therefore, prosecution for that offence must be launched within the period of limitation which is mentioned in section 468 of the Code.
It is common ground that if the offence is non continuing, the period of limitation for filing the complaint will be one year as provided in clause (b) of sub section (2) of section 468 since, the offence in the instant case is punishable with imprisonment which may extend to three months or with fine.
It is impossible to accept Shri Bobde 's contention.
The expression 'continuing offence ' is not defined in the Code but, that is because expressions which do not have a fixed connotation or a static import are difficult to define.
How difficult it is to put the concept of a continuing offence in a strait jacket is illustrated by the decision of this Court in State of Bihar vs Deokaran Nenshi.
In that case, respondents who were owners of a stone quarry in Bombay were required to forward certain annual returns in respect of the preceding year, on or before January 21 in each year.
Failure to forward the returns as required is punishable with fine under section 66 of the .
The respondents having failed to furnish the returns by the due date, which was January 21, 1960 a complaint was filed against them in a Court at Dhanbad on April 12, 1961.
One of the contentions of the respondents was that the complaint was barred by limitation under section 79 of the which provided that no Court shall take cognizance of an offence under that Act unless the complaint was filed within six months of the date of the offence.
The Explanation to section 79 633 provided that if the offence in question was a continuing offence, the period of limitation shall be computed with reference to every part of the time during which the said offence continued.
It was held by this Court that the infringement which occurred on January 21 of the relevant year was complete when the owner failed to furnish the annual returns on that date.
Since, the Regulation did not lay down that the owner would be guilty of an offence if he continued to work the mine without furnishing the returns, the offence was non continuing and, therefore, the complaint was time barred.
While discussing the question as to when an offence could be said to be a continuing offence, the Court made the following observations: "A continuing offence is one which is susceptible of continuance and is distinguishable from the one which is committed once and for all.
It is one of those offences which arises out of a failure to obey or comply with a rule or its requirement and which involves a penalty, the liability for which continues until the rule or its requirement is obeyed or complied with.
On every occasion that such disobedience or non compliance occurs and recurs, there is the offence committed.
The distinction between the two kinds of offences is between an act or omission which constitutes an offence once and for all and an act or omission which continues and therefore, constitutes a fresh offence every time or occasion on which it continues.
In the case of a continuing offence, there is thus the ingredient of continuance of the offence which is absent in the case of an offence which takes place when an act or omission is committed once and for all " (p. 1006) This passage shows that apart from saying that a continuing offence is one which continues and a non continuing offence is one which is committed once and for all, the Court found it difficult to explain as to when an offence can be described as a continuing offence.
Seeing that difficulty, the Court observed that a few illustrative cases would help to bring out the distinction between a continuing offence and a non continuing offence.
The illustrative cases referred to by the Court are three from England, two from Bombay and one from Bihar.
634 In Best vs Butlar and Fitzgibbon, the English Trade Union Act, 1871 made it penal for an officer or a member of a Trade Union to wilfully withhold any money, books, etc.
of the Trade Union.
It was held in that case that the offence of withholding the money was a continuing offence, the basis of the decision evidently being that every day that the moneys were wilfully withheld, the offence was committed.
In Verney vs Mark.
Fletcher & Sons Ltd., section 10 (1) of the Factory and Workshop Act, 1901 provided that every fly wheel directly connected with steam, water or other mechanical power must be securely fenced.
Section 135 provided the penalty for non compliance with section 10 (1), while section 146 provided that information of the offence shall be laid within three months after the date on which the offence comes to the knowledge of the Inspector.
It was held that the breach of section 10 (1) was a continuing breach and therefore the information was in time.
Every day that the fly wheel remained unfenced, the factory was run otherwise than in conformity with the Act of 1901 and, therefore, the offence defined in section 10 was a continuing offence.
The third English case referred to is The London County Council vs Worley, in which section 85 of the Metropolis Management Amendment Act, 1852 prohibited the erection of a building on the side of a new street in certain circumstances, without the consent of the London County Council.
The Court construed section 85 as creating two offences: building to a prohibited height and, continuing such a structure already built after receiving a notice from the County Council.
The Court held that the latter offence was a continuing offence.
In Emperor vs Karandas, section 390 (1) of the Bombay City Municipal Act, 1888 provided that no person shall newly establish in any premises any factory of a certain description without the previous permission of the Commissioner nor shall any person work or allow to be worked any such factory without such permission.
It was held by the High Court that establishing a new factory was an offence committed once and for all but working it without permission was a continuing offence.
635 In The State of Bombay vs Bhiwandiwala.
it was held that the offence of using the premises as a factory without a licence is a continuing offence.
In State of Bihar vs J.P. Singh, the High Court of Patna held that conducting a restaurant without having it registered and without maintaining proper registers were continuing offences.
The decision of this Court in State of Bihar vs Deokaran Nenshi to the effect that failure to furnish returns before the due date is not a continuing offence must be confined to cases of failure to furnish returns.
It cannot be extended to cases like those before us in which, the contravention is not of a procedural or formal nature and goes against the very grain of the statute under consideration.
What is of closer resemblance to the cases before us are the three English cases, the two Bombay cases and the Patna case referred to by this Court as illustrative of cases in which the offences were held to be of a continuing nature.
We adopt the reasoning in those cases as applicable to the circumstances of the instant prosecutions.
The question whether a particular offence is a continuing offence must necessarily depend upon the language of the statute which creates that offence, the nature of the offence and, above all, the purpose which is intended to be achieved by constituting the particular act as an offence.
Turning to the matters before us, the offence of which the appellants are charged is the failure to pay the employer 's contribution before the due date.
Considering the object and purpose of this provision, which is to ensure the welfare of workers, we find it impossible to hold that the offence is not of a continuing nature.
The appellant were unquestionably liable to pay their contribution to the Provident Fund before the due date and it was within their power to pay it, as soon after the due date had expired as they willed.
The late payment could not have absolved them of their original guilt but it would have snapped the recurrence.
Each day that they failed to comply with the obligation to pay their contribution to the fund, they committed a fresh offence.
It is putting an incredible premium on lack of concern for the welfare of workers to hold that the employer who has not paid 636 contribution or the contribution of the employes to the Provident Fund can successfully evade the penal consequences of his act by pleading the law of limitation.
Such offences must be regarded as continuing offences, to which the law of limitation cannot apply.
our attention has been drawn to a judgment of the Bombay High Court in Criminal Revision Applications 337 and 338 of 1976, which were decided by a learned single Judge on November 7,1977.
It was held in that Judgment that the failure to pay the employer 's share of contribution to the Provident Fund is not a continuing offence.
For reasons which we have mentioned above, we dissent from that judgment.
With respect, we are unable to appreciate the reasoning of that judgment that if the failure to pay the employer 's contribution is regarded as a continuing offence, it would be open to the employer to pay the contribution even after the due date has expired, in order to escape punishment.
The concept of continuing offence does not wipe out the original guilt.
It keeps the contravention alive, day by day.
For these reasons, we are of the opinion that the offence of which the appellants are charged, namely, non payment of the employer 's contribution to the Provident Fund before the due date, is a continuing offence and, therefore, the period of limitation prescribed by section 468 of Code cannot have any application.
The offence which is alleged against the appellants will be governed by section 472 of the Code, according to which, a fresh period of limitation begins to run at every moment of the time during which the offence continues.
Before we close, we consider it necessary to draw attention to the provision of section 473 of the Code which we have extracted above.
That section is in the nature of an overriding provision according to which, notwithstanding anything contained in the provisions of Chapter XXXVI of the Code, any Court may take cognizance of an offence after the expiry of the period of limitation if, inter alia, it is satisfied that it is necessary to do so in the interest of justice.
The hair splitting argument as to whether the offence alleged against the appellants is of a continuing or non continuing nature, could have averted by holding that, considering the object and purpose of the Act, the learned Magistrate ought to take cognizance of the offence after the expiry of the period of limitation, if any such period is applicable, because the interest of justice so requires.
We believe that in case of this nature, Courts 637 which are confronted with provisions which lay down a rule of limitation governing prosecutions, will give due weight and consideration to the provisions contained in section 473 of the Code.
We confirm the view of the High Court that in passing the impugned order, the learned Magistrate has not in any manner reviewed his earlier order dated September 20, 1976.
In the result, these appeals are dismissed.
The prosecutions will proceed and be disposed of expeditiously in accordance with law.
The learned Magistrate will dispose of these cases by considering all the points together, that is to say, without treating any particular point as a preliminary point.
N.V.K. Appeals dismissed.

summary/full:
The Provident Fund Inspector filed complaints against the appellants Directors and Factory Manager and respondent No.2 Company charging them with non payment of employers contribution under the Employees ' Provident Fund and Family Pension Fund Act, 19 of 1952, alleging that the accused did not pay the employers contribution to the Fund from February 1970 to June 1971.
At the commencement of the trial, the accused filed applications contending that since the limitation prescribed by section 468 of the Code of Criminal Procedure, 1973 had expired before the filing of the complaints, the Court had no jurisdiction to take cognizance of the complaints.
These applications were rejected by the Judicial Magistrate on the ground that the offences of which the accused were charged are 'continuing offences ' and therefore, no question of limitation could arise.
This order was upheld by the High Court in the revision applications filed by the appellants.
In the appeals to this Court filed by the Directors of the Company it was contended that the offence of non payment of the employers contribution can be committed once and for all on the expiry of fifteen days after the close of every month and, therefore, prosecution for that offence must be launched within the period of limitation provided in section 468 of the Code.
627 Dismissing the appeals, ^ HELD 1.
The offence of which the appellants are charged, namely non payment of the employer 's contribution to the Provident Fund before the due date, is a 'continuing offence ' and, therefore, the period of limitation prescribed by section 468 of the Code cannot have any application.
The offence which is alleged against the appellants will be governed by section 472 of the Code, according to which, a fresh period of limitation begins to run at every moment of the time during which the offence continues.
[636 D E] 2.
The concept of 'continuing offence ' does not wipe out the original guilt.
It keeps the contravention alive, day by day.
[636 D] S.V. Lachwani vs Kanchanlal C. Parikh and others, , over ruled.
Courts when confronted with provisions which lay down a rule of limitation governing prosecutions, in cases of this nature will give due weight and consideration to the provisions contained in section 473 of the Code.
That section is in the nature of an overriding provision according to which, notwithstanding anything contained in the provisions of Chapter XXXVI of the Code, any Court may take cognizance of an offence after the expiry of the period of limitation if, inter alia, it is satisfied that it is necessary to do so in the interest of justice.
[636 F G] 4.
The expression 'continuing offence ' is not defined in the Code but that is because expressions which do not have a fixed connotation or static import are difficult to define.
The question whether a particular offence is a 'continuing offence ' must necessarily depend upon the language of the statute which creates that offence, the nature of the offence and, above all, the purpose which is intended to be achieved by constituting the particular act as an offence.
[632 E, 635E] State of Bihar vs Deokaran Nanshi, [1973]1 SCR 1004, explained.
The offence of which the appellants is charged is the failure to pay the employers contribution before the due date.
Considering the object and purpose of this provision, which is to ensure the welfare of workers, it is impossible to hold that the offence is not of a continuing nature.
The appellants were unquestionably liable to pay their contribution to the Provident Fund before the due date and it was within their power to pay as soon after the due date had expired as they willed.
The late payment could not have absolved them of their original guilt but it would have snapped the recurrence.
Each day that they failed to comply with the obligation to pay their contribution to the Fund, they committed a fresh offence.[635 F G] 628 6.
To hold that the employer who has not paid his contribution or the contribution of the employees to the Provident Fund can successfully evade the penal consequences of his act by pleading the law of limitation, would be putting an incredible premium on lack of concern for the welfare of workers.
Such offences must be regarded as continuing offences to which the law of limitation cannot apply.
[635 G 636 A]


judgement:
Civil Appeal No. 1339 of 1977.
Appeal by Special leave from the Judgment and order dated the 16th September, 1976 of the Andhra Pradesh High Court in L.P.A., No. 199 of 1975.
K. Ram Kumar for the Appellant.
A. V. Rangam for the Respondent.
The Judgement of the Court was delivered by TULZAPURKAR, J.
The short question involved in this appeal is whether upon redemption of a usufructuary mortagage a tenant mortgagee could be directed to deliver actual or physical possession of the mortgaged property to the lessor mortgagor? By reason of the grant of a limited special leave the appeal has been confined to that question.
Facts relevant to the question may be stated: One Behara Audinarayana Patro, the original owner of suit property executed two usufructuary mortgage deeds dated 30.8.1939 and 25.8.1942 in favour of the first defendant Sambangi Thavitinaidu, who was then a sitting tenant of that property.
In 1951 the mortgagor filed a suit for redemption of the mortgages and obtained a preliminary decree on 31.12.1952.
Subsequently, the mortgagor died and the respondents were brought on record as his legal representatives.
On 21.10.1963 the respondents filed an application for passing a final decree by way of ascertainment of the amount due and for delivery of possession upon deposit of entire dues so ascertained.
The application was resisted by the first defendant and other defendants (the appellants before us) on several grounds.
Inter alia the appellants contended that even after depositing the entire amount found due to them no decree directing delivery of actual or physical possession in favour of the respondents should be passed but delivery of symbolical possession alone should be ordered insomuch as the appellants ' possession of the suit property as a tenant or lessee could not be disturbed.
In other words, the appellants contended that on redemption the original relationship of landlord and tenant would revive which needed to be protected.
The learned District Munsif, Parvatipuram took the view that the relationship 654 of landlord and tenant had ceased to subsist after the mortgages came into existence, that the mortgage bonds did not provide that the said relationship would be restored or revived upon redemption and that therefore the respondents were entitled to delivery of physical possession upon their depositing the entire dues payable to the appellants.
The tenant mortagees (the defendants) preferred an appeal against the order of the learned District Munsif and the learned Additional District Judge Srikakulam who heard the appeal took the contrary view relying upon a decision of Andhra Pradesh High Court in Varada Bangar Raju vs Kirthali Avatharam & others and held that the defendants mortgagees were sitting tenants of the mortgaged property at the time of the execution of the mortgage deeds, that there was nothing in those deeds to suggest that their rights as lessees were extinguished either by merger or implied surrender, that the landlord tenant relationship continued to exist after termination of mortgagor mortgagee relationship and therefore the respondents were not entitled to delivery of physical possession; he, therefore, allowed the appeal.
The respondents preferred a second appeal to the Andhra Pradesh High Court and the learned Single Judge relying upon a subsequent decision in P. Satyanarayana vs Janardhan Chetty which had distinguished the earlier decision, reversed the view of the learned Addl.
District Judge and restored the decree passed by the District Munsif.
The learned Judge took the view that the question whether the relationship of landlord and tenant would subsist even after the execution of the usufructuary mortgage depended upon the intention of the parties to be gathered from the terms of the mortgage transaction and held that on the terms of mortgage deeds there was no doubt that the landlord tenant relationship had ceased to exist after the relationship of mortgagor and mortgagee came into existence and the mortgage bonds had not specifically provided that the landlord and tenant relationship would be restored after the redemption of the mortgages.
A Letters Patent Appeal preferred by the tenant mortgagees to the Division Bench of the High Court failed and hence this appeal to this Court.
Counsel for the appellants urged upon us to accept the view taken by the learned District Judge that the two transactions 655 namely a lease and a usufructuary mortgage could co exist and there was nothing in the two mortgage deeds to suggest that the appellants ' rights as lessee were extinguished either by merger or by implied surrender and in that behalf strong reliance was placed upon the earlier decision of the Andhra Pradesh High Court in Varada Bangar Raju 's ease (supra), while counsel for the respondents contended that the High Court, both in second appeal as well as Letters Patent Appeal, was right in restoring the learned District Munsif 's decision by relying upon the later decision in P. Satyanarayana 's case (supra) and prayed for dismissal of this appeal.
In our view there can be no merger of a lease and a mortgage, even where the two transactions are in respect of the same property.
It is well settled that for a merger to arise, it is necessary that lesser estate and a higher estate should merge in one person at one and the same time and in the same right and no interest in the property should remain outstanding.
In the case of a lease, the estate that is outstanding in the lessor is the reversion; in the case of a mortgage, the estate that is outstanding is the equity of redemption of the mortgagor.
Accordingly, there cannot be a merger of a lease and a mortgage in respect of the same property since neither of them is a higher or lesser estate than the other.
Even, if the rights of the lessee and the rights of the mortgagee in respect of a property were to be united in one person the reversion in regard to the lease and the equity of redemption in regard to the mortgage, would be outstanding in the owner of the property and accordingly, there would not be a complete fusion of all the rights of ownership in one person.
This position in law as explained by the Bombay High Court in Narayana Dogra Shetty vs Ramchandra Shivram Hingne, has been fully approved by this Court in Shah Mathuradas Maganlal & Co. vs Nagappa Shankarappa & Ors.
In our view the answer to the question raised in this appeal must depend upon whether there was an implied surrender of the lessee 's rights when the usufructuary mortgage was executed in his favour by the lessor mortgagor.
And this obviously depends upon what was the intention of the parties at the time of the execution 656 of the mortgage deed in favour of the sitting tenant to be gathered from the terms and conditions of the mortgage transaction in light of the surrounding circumstances of the case.
It may be stated that in both the decisions of the Andhra Pradesh High Court on which reliance was placed by the respective counsel of the parties in support of his own contention the question was ultimately decided on proper construction of the terms and conditions of the mortgage transactions; in the earlier decision the court took the view that there was nothing in the mortgage deed to suggest that there was an implied surrender of the lessee 's rights while in the later case the court held that the terms of the mortgage deed showed that the lessee had impliedly surrendered his rights.
In other words, it all depends upon whether by executing a possessory or usufructuary mortgage in favour of a sitting tenant the parties intended that there should be a surrender of lessee 's rights or not, and only if an implied surrender of lessee 's rights could be inferred then the mortgagor would be entitled to have delivery of physical possession upon redemption but not otherwise.
In the instant case the earlier usufructuary mortgage deed of 1939 is not on record before us but the parties have produced a copy of Exhibit A 3 which is the later usufructuary mortgage deed dated 23.8.1942, the terms thereof are required to be construed.
It runs thus: Exhibit A 3 "Deed of mortgage of land accompanied by delivery of possession of land for Rs. 250 (in words two hundred and fifty rupees) executed on 23rd August, 1942 in favour of Sambangi Taviti Naidu, son of late Jogi Naidu ' of Koppula Velama Caste, living by cultivation, resident of Dathivalasa village, hamlet of Tummalavalasa of Parvatipuram Sub District by Behara Adinarayana Patro, son of late Behera Narayana Patro Sista Karnam, Inamdar resident of Markonduputti village of the same Sub District.
The amount of principal and interest due on the promissory note executed by me in your favour previously on 24th April, 1940 for my necessity, the amount paid by you on my behalf to the Estate towards the cist etc., due on this land and the amounts borrowed from you by 657 me in instalments subsequent thereto all those amounts are found to be Rs. 200 and I have found due to you in this sum.
The amount borrowed now for paying the cist to the Estate and for my own maintenance is Rs. 50.
In all, Rs. 250 (in words two hundred and fifty rupees).
I shall pay interest at the rate of Rs. 0 4 0 (four anna) per cent per mensum and shall discharge the principal and interest.
For this, the produce of all kinds of crops raised on the half share of the lands previously being cultivated by you as my sub tenant on condition of paying 1/4 (?) share out of the Jarayathi dry and wet lands bearing No. 1 and know as "Tummulamanu Polam" which passed to me as my self acquired property, which has been in my possession and enjoyment till this day, which is situate in Tummalavalasa village and the boundaries etc.
of which are given hereunder, shall be utilised for paying interest due on this deed and the interest due on the deed executed previously on 30th August, 1939 and get registered in the office of the Sub Registrar of Parvatipuram as No. 1148/39 and for paying the cist due to the Govt.
on my behalf and obtaining receipt in my name.
The remaining amount shall be paid to me by 15th January of every year and the receipt obtained from me.
When the above mentioned principal and interest are paid to you in full, payment shall be endorsed on this deed and this deed shall be returned and the land mentioned herein shall be delivered possession of to me.
" Three or four things become amply clear on a fair reading of the aforesaid document (1) that though the deed commences by reciting that possession of the land has been delivered thereunder it refers to the fact that the original mortgage (Ist defendant) was actually cultivating the lands as a tenant of the mortgagor on crop share basis; that is to say the rental was payable by the tenant in the shape of a crop share; (2) that the mortgagor had agreed to pay interest at the specified rate on the total loan of Rs. 250 and had undertaken to discharge the principal and interest; (3) that the rental of the land payable by the Ist defendant was to be adjusted against the interest payable by the mortgagor under this deed as well as the earlier deed and the cist payable by him to the Government; and excess, if any, to be paid to mortgagor; (4) that when the principal and interest are fully repaid such payment was to be endorsed on this deed and the deed as also the land shall be "delivered to the 658 possession of mortgagor".
It may be noted that the last portion of the document is equivocal in that it does not mention whether on redemption physical possession is to be delivered or symbolical possession is to be delivered to the mortgagor.
But under the terms of the deed one thing is clear that during the currency of the mortgage the liability to pay rent to the lessor mortgagor (albeit to be discharged by adjustment) is kept alive.
If anything such a term clearly runs counter to any implied surrender of the lessee 's rights.
Secondly, there is no term fixed for redemption of mortgage property which means that it was open to the mortgagor to redeem the mortgage at any time that is to say even within a very short time and if that be so, would a sitting tenant cultivating the lands under a lease, who has obliged his lessor by advancing monies to him to tide over his financial difficulties give up his rights as a lessee no sooner redemption takes place? In our view, it does not stand to reason that he would do so.
This circumstance coupled with a fact that the mortgage deed keeps alive the lessee 's liability to pay rent during the currency of the mortgage clearly suggests that no implied surrender was intended by the parties.
In the result, we are of the view that the only effect of the execution of usufructuary mortgage deeds in this case was that the lessee 's rights were kept in abeyance and they revived upon the redemption of mortgage.
We therefore, allow the appeal, set aside the impugned judgments of the High Court and restore the direction given by the learned Additional District Judge that the respondents are not entitled to delivery of physical possession.
Respondents will pay the cost of the appeal to the appellants.
S.R. Appeal allowed.

summary/full:
Respondents, predecessor Behara Venkataramanayya Patro executed two deeds dated 30 8 1939 and 25 8 1942 in favour of one Sambangi Thavitinaidue, who was then a sitting tenant of the property.
In 1951 the mortgagor filed a suit for redemption of the mortgages and obtained a preliminary decree on 31 12 1952.
Subsequently, the mortgagor died and the present respondents were brought on record as his legal representatives.
On 21 10 1963 the respondent filed an application for passing a final decree by way of ascertainment of the amount due and for delivery of possession upon deposit of entire dues so ascertained.
The application was resisted by the appellants on several grounds.
According to them, on redemption, relationship of landlord and tenant would revive which needed to be protected and the delivery should be of symbolical possession only.
The learned trial judge allowed the application but on an appeal preferred, the Additional District Judge Srikakulam took a contrary view relying upon Varada Bangar Raju 's case AIR (1965) A.P. 86 The respondents, therefore, preferred a second appeal and the learned Single Judge of the A.P. High Court relying upon a subsequent decision in P. Satyanarayana 's case ILR set aside the decision of the first Appellate Court.
Letters Patent Appeal preferred by the tenant mortgagees to the Division Bench of the High Court failed and hence this appeal by Special Leave to this Court.
Allowing the appeal, the Court ^ HELD:1: 1 There can be no merger of a lease and a mortgage, even where the two transactions are in respect of the same property.
[655C] 1:2 It is well settled that for a merger to arise, it is necessary that lesser estate and a higher estate should merge in one person at one and the same time and in the same right and no interest in the property should remain 652 outstanding.
In the case of a lease, the estate that is outstanding in the lessor is the reversion, in the case of a mortgage, the estate that is outstanding is the equity of redemption of the mortgagor.
Accordingly, there cannot be a merger of a lease and a mortgage in respect of the same property since neither of them is a higher or lesser estate than the other.
Even, if the rights of the lessee and the rights of the mortgagee in respect of a property were to be united in one person the reversion in regard to the lease and the equity of redemption in regard to the mortgage, would be outstanding in the owner of the property and accordingly, there would not be a complete fusion of all the rights of ownership in one person.
[655D F] Shah Mathurdas Maganial & Co, vs Naogappa Shankarappa & ors A.I.R followed.
Narayana Dogra Shetty vs Ramchandra Shivram Hingne , approved.
Whether upon redemption of usufructuary mortgage a tenant mortgagee could be directed to deliver actual or physical possession of the mortgaged property to the lessor mortgagor and whether the original relationship of landlord and tenant would revive upon redemption of usufructuary mortgage by a tenant mortgagee in possession of the mortgaged property by delivering possession to the lessor mortgagor, will depend upon whether there was an implied surrender of the lessee 's right when the usufructuary mortgage was executed which in turn depends upon what was the intention of the parties at the time of the execution of the mortgage deed in favour of the sitting tenant to be gathered from the terms of and conditions of the mortgage transaction in light of the surrounding circumstance of the case.
[656C D 655G H; 656A] 2:2 In the instant case, the only effect of the execution of usufractutary mortgage deeds was that the lessee 's right were kept in abeyance and they revive upon redemption of the mortgage.
[658E] The mortgage deed does not mention whether on redemption physical possession is, to be delivered or symbolical possession is to be delivered to the mortgagor.
[657H] During the currency of the mortgage the liability to pay rent to the lessor mortgagor (albeit to be discharged by adjustment) is kept alive.
If any thing such a term clearly runs counter to any implied surrender of the lessee 's right.
There is no term fixed for redemption of mortgage property which mean that it was open to the mortgagor to redeem the mortgagor at any time that is to say even within a very short time and if that be so a sitting tenant cultivating the lands under a lease, who has obliged his lessor by advancing monies to him to tide over his financial difficulties would not give up his right as a lessee no sooner redemption takes place, coupled with a fact that the mortgage deed keeps alive the lessee 's liability to pay rent during the currency of the mortgage clearly suggests that no implied surrender was intended by the parties.


judgement:
il Appeal No. 2293 of 1978 From the Order dated 21.4.77 of the Punjab and Haryana High Court in Civil Misc.
No. 508 C 1/77.
Ramlal for the Appellants.
The Order of the Court was delivered by PATHAK, J.
This appeal by special leave is directed against the order dated April 21, 1977 of the High Court of Punjab and Haryana determining the interest payable on the compensation awarded to the appellants for the acquisition of their land by the State Government.
A notification under Section 4 of the land Acquisition Act was made on August 31, 1961 in respect of land belonging to the appellants and in the proceedings which followed the land Acquisition officer determined a sum of Rs. 27,992.84 as compensation payable therefor.
Possession of the land was taken thereafter.
On reference made at the instance of the appellants, the learned District Judge held by his judgment dated November 30, 1963 that the appellants were entitled to a further sum of Rs. 11,307.10 as compensation.
Dissatisfied with that determination, the appellants proceeded in appeal to the High Court, and on March 8, 1977 the High Court held that the appellants were entitled to a further amount of Rs. 17,919.30 as compensation.
The High Court also held that the appellants were entitled to interest at the rate of 4 per cent per annum on the enhanced amount of compensation awarded by it, the interest to run from the date possession of the land was taken.
The appellants then applied to the High Court for a review of its order in so far as it had determined the rate of interest.
The appellants pointed out that section 28 and section 34 of the Land Acquisition Act, 1894 had been amended by the Haryana Act No. 8 of 1967 in consequence of which the rate of interest payable on the compensa 684 tion was awarded for acquisition of land had been enhanced from 4 per cent to 6 per cent per annum from the date possession was taken to the date of payment.
The claim was resisted by the State, which contended that the Haryana Act No. 8 of 1967 had been brought into force with effect from July 1, 1967 and proceedings for the determination of compensation initiated before the enforcement of that Act were liable to be governed by the original rate of interest at 4 per cent per annum, and no advantage could be taken of the higher rate enacted later.
By its order dated April 21, 1977 the High Court ruled in favour of the appellants and held that the higher rate of interest should be available to the appellants even though the proceedings for determination of compensation were already pending before the amending Act was brought into force.
A curious inconsistency, however, entered thereafter in the judgment of the High Court.
On the amount determined as compensation by the Land Acquisition Officer and the learned District Judge the High Court held that the higher rate of interest at 6 per cent per annum was attracted, and interest at that rate ruled from the date possession was taken to the date of payment.
But on the amount of Rs. 17,919.30 representing the enhancement by it the High Court applied the rate of 4 per cent per annum from the date possession was taken and 6 per cent per annum from the date of its judgment awarding that amount.
The High Court seems to have proceeded on the view that the right to this amount of Rs. 17,919.30 as compensation arose to the appellants only from date of its judgment.
We are of opinion that the High Court has erred.
It is apparent from the impugned order of the High Court that it has found the appellants entitled to interest at the rate of 4 per cent per annum on the sum of Rs. 17,919.30 from the date possession was taken.
In so far that the High Court recognises the appellants ' claim to interest from that date the High Court is right, because the right to compensation arises when the land is acquired, and the judgment of the High Court merely represents a stage in the process of quantifying the compensation.
The right to compensation and the quantification thereof are two distinct concepts.
The right to compensation arises when the land vests in the State while its quantification may be concluded much later.
Although the process of quantification may pass through several stages, from the Land Acquisition Officer to the District Judge and thereafter to the High 685 Court, the process of quantification is merely one of computing the value of the land, on the principles enacted in the Land Acquisition Act.
All along, however, the right to the compensation so quantified refers back to the date of acquisition.
The additional amount of compensation awarded by the District Judge or by the High Court represents the difference between the true value of the land on the one hand and the actual amount awarded on the other which fell short of the true value.
The owner of the land is entitled to be paid the true value of the land on the date of taking over of possession.
Since, however, the true value is usually determined only after it is computed through a multi tiered process passing through different levels of a hierarchical judicial structure by the very nature of things it take sometime before the true value can be finally determined.
The fact that it is determined later does not mean that the right to the amount comes into existence at a later date.
And if, as the High Court has held, interest at 6 per cent per annum rules from the date procession was taken in the case of compensation determined by the learned District Judge, there is no reason why the same rate should not be applied from the date possession was taken in the case of the enhancement effected by the High Court.
We hold that the appellants are entitled to interest at 6 per cent per annum on the amount of Rs. 17,919.30 for the entire period from the date possession of the land was taken to the date of payment.
The appeal is allowed, and the order dated April 21, 1977 passed by the High Court is modified accordingly.
The respondents will pay the costs of the appellants.

summary/full:
The appellants were awarded certain amount of compensation by the Land Acquisition Officer which was later enhanced by the District Judge and the High Court.
On being pointed out that sections 28 and 34 of the Land Acquisition Act had been amended by the Haryana Act No. 8 of 1967 which enhanced the rate of interest payable on the amount of compensation from 4 to 6 per cent per annum, the High Court awarded interest at the rate of 4 per cent per annum on the amount of compensation awarded by the Land Acquisition Officer and enhanced by the District Judge from the date possession was taken and 6 per cent per annum on the amount of compensation enhanced by it from the date of its judgment.
In this appeal the appellants challenged the rate of interest as determined by the High Court.
Allowing the appeal, ^ HELD: The right to compensation arises when the land is acquired, and the judgment of the High Court merely represents a stage in the process of quantifying the compensation.
The right to compensation and the quantification thereof are two distinct concepts.
Although the process of quantification may pass though several stages, the process of quantification is merely one of computing the value of the land, on the principles enacted in the Land Acquisition Act.
All along, however, the right to the compensation so quantified refers back to the date of acquisition.
The additional amount of compensation awarded by the District Judge or by the High Court represents the difference between the true value of the land on the one hand and the actual amount awarded on the other which fell short of the true value.
The owner of the land is entitled to be paid the true value of the land on the date of taking over of possession.
The fact that the true value is determined later does not mean that the right to the amount comes into existence at a later 683 date.
And if, as the High Court has held, interest at 6 per cent per annum from the date possession was taken in the case of compensation determined by the learned District Judge, there is no reason why the same rate should not be applied from the date possession was taken in the case of the enhancement effected by the High Court.
[684H;685 A D]


judgement:
Civil Appeal No. 843 of 1984 Appeal by Special leave from the Judgment and Order dated the 23rd September, 1981 of the Madhya Pradesh High Court in Civil Second Appeal No. 10 of 1971.
S.S. Khanduja for the Appellant.
G.D. Gupta and R.N. Poddar for Respondents.
The Order of the Court was delivered by DESAI, J. One Shri Sital Prasad Saxena filed Civil No. 46A of 1969 against (1) Union of India (2) Comptroller and Auditor General of India and (3) Accountant General Madhya Pradesh for a declaration about the status of his post and arrears of salary in respect of the post in which he was entitled to continue.
The suit came up for hearing before the 5th Civil Judge Class II, Gwalior who by his judgment and decree dated July 7, 1969 dismissed the suit.
Plaintiff Sital Prasad Saxena preferred civil appeal No. 36A of 1970 against that judgment and decree of the trial court in the District Court at Gwalior.
The appeal came up for hearing before the learned First Additional District Judge who agreed with the findings recorded by the trial court and accordingly by his judgment and order dated August 4, 1970 dismissed the appeal.
Plaintiff Sital Prasad Saxena preferred second appeal No. 10 of 1971 in the High Court of Madhya Pradesh Jabalpur Bench.
During the pendency of the appeal in the High Court, plaintiff appellant Sital Prasad Saxena expired on February 25, 1976.
One Mahendra Kumar Saxena claiming to be one of the sons of late Sital Prasad Saxena moved an application being I.A. No. 5582 of 1978 under Order XXII, rule 3 of the Code of Civil Procedure for 661 substitution of heirs and legal representatives of the deceased appellant with a view to prosecuting the appeal.
He simultaneously moved another application being I.A. No. 5744 of 1978 under Order XXII rule, 9 CPC requesting the Court that if the appeal has abated for failure to seek substitution within the prescribed period of limitation, the abatement of the appeal may be set aside.
He also moved another application being I.A. No. 5745 of 1978 for seeking condonation of delay under section 5 of the .
A learned Single Judge of the High Court by his order dated January 29, 1981 directed that all the three miscellaneous applications be transmitted to the trial Court for enquiry and report regarding the date of death of Sital Prasad Saxena and knowledge about the pendency of the appeal of the heirs and legal representatives in order to as certain whether the applicant had made out sufficient, cause for condoning the delay which if permitted, would enable the Court to set aside the abatement.
The trial Court after recording the evidence of the parties submitted the report which in terms included a finding that Mahendra Kumar Saxena had knowledge about the pendency of the second appeal before October 7, 1978, the date on which he moved the aforementioned applications.
It appears that on the receipt of the report of the trial Court Mahendra Kumar Saxena and other legal representatives of the deceased appellant move an application being I.A. No. 2722 of 1981 praying for an opportunity to examine another son of the deceased appellant, viz., Shailendra Kumar Saxena.
They also filed objections controverting the finding recorded by the trial Court.
It appears that the Union of India resisted the applications contending that the petitioner has failed to make out sufficient cause for the delay in seeking substitution and therefore no case is made out for condoning the delay and setting aside abatement.
The position adopted by Union of India is a bit surprising for us.
The High Court after minutely examining the rival contentions held that the conclusion reached by the trial Court is such that the learned Judge would not like to take a different view of the matter.
The approach of the High Court suggests that it was exercising revisional jurisdiction while examining the report of the trial Court.
This approach does not commend to us.
Accordingly the learned Judge rejected the various applications thereby declining to condone the delay which alone would permit him to set aside the abatement with 662 the result that appeal was disposed of as having abated.
Hence this appeal by special leave.
We heard Mr. S.S. Khanduja, learned counsel for the appellants and Mr. G.D. Gupta, learned counsel for the respondents Approach to the applications seeking condonation of delay in moving the application for substitution of parties who died during the pendency of civil appeal in the High Court has to be as observed by this Court in Bhagwan Swaroop vs Moolchand and Hans Raj vs Sunder Lal Aggarwal.
In the present case the High Court unfortunately committed an error in rejecting the application for condoning the delay.
It is the High Court which had to satisfy itself that the petitioner made out sufficient cause which prevented him from moving the application for substitution in time and not the trial Court.
The High Court may call for report of the trial Court but then cannot adopt the approach of a court exercising revisional jurisdiction.
It must examine the material collected by the trial Court and come to its own conclusion.
In this case the High Court observed that it was not persuaded to take a view different from the one taken by the trial Court.
This is impermissible.
The second error was that once an appeal is pending in the High Court, the heirs are not expected to keep a constant watch on the continued existence of parties to the appeal before the High Court which has a seat far away from where parties in rural areas may be residing.
And in a traditional rural family the father may not have informed his son about the litigation in which he was involved and was a party.
Let it be recalled what has been said umpteen times that rules of procedure are designed to advance justice and should be so interpreted and not to make them penal statutes for punishing erring parties.
The deceased appellant has left behind him his sons.
It is a moot point whether the father acquainted his son/sons about his litigation for seeking relief in respect of his service.
If this is the nature of litigation, we are not inclined to draw the inference drawn by the trial court that son/sons knew about the pendency of appeal.
Having heard learned counsel on either side we are satisfied that both the trial court as well as the High Court were in error in not condoning the delay in seeking substitution of heirs and legal representatives of the deceased/appellant in time.
Cause for delay as urged 663 appears to us to be sufficient which prevented them from moving the petition for substitution.
We are satisfied that sufficient cause was made for condoning the delay.
Accordingly, we first set aside the order passed in I.A. No. 5745 of 1978 under section 5 of the seeking condonation of delay and grant the same.
We set aside the order disposing of the appeal having abated and set aside the abatement.
We condone the delay in seeking substitution and grant substitution.
Accordingly, the heirs and legal representatives who applied for substitution in place of the deceased appellant are directed to be brought on record.
The appeal succeeds to this extent and is allowed and the orders of the High Court herein above set out are set aside and the matter is remitted to the High Court for disposal in the light of the observations made herein.
Since the matter is an old one the High Court may dispose of it as expeditiously as possible.
There will be no order as to costs.
The appeal is disposed of accordingly.
M.L.A Appeal allowed.

summary/full:
One Mahendra Kumar Saxena moved three applications in the High Court one under O.XXII Rule 3, C.P.C. for substitution of heirs and legal representatives of the deceased appellant, the other under O.XXII rule 9, C.P.C. for setting aside abatement of the appeal if it has abated for failure to seek substitution within the prescribed period of limitation and the third one for condonation of delay section 5 of the .
The High Court transmitted these applications to the trial court for enquiry and report regarding the date of death of the deceased appellant and knowledge about the pendency of the appeal of the heirs and legal representatives in order to ascertain whether the applicant had made out sufficient cause for condoning the delay.
The trial court submitted its report which in terms included a finding that Mahendra Kumar Saxena had knowledge about the pendency of the second appeal before moving the aforementioned applications.
The High Court held that the conclusion reached by the trial court is such that it would not like to take a different view of the matter and therefore rejected the various applications and disposed of the appeal as having abated.
Hence this appeal by special leave.
Allowing the appeal and remitting the matter to the High Court for early disposal.
^ HELD : (1) The approach of the High Court that it was not pursuaded to take a view different from the one taken by the trial court is not permissible.
It is the High Court which had to satisfy itself that the petitioner made out sufficient cause which prevented him from moving the application for substitution in time and not the trial court.
The High Court may call for a report of the trial court but then cannot adopt the approach of a court exercising revisional jurisdiction.
It must examine the material collected by the trial court and come to its own conclusion.
[662 C D,] 660 Bhagwan Swaroop vs Mool Chand and Hans Raj vs Sunder Lal Aggarwal (1982) 1 sec.
476 followed.
(2) Once an appeal is pending in the High Court, the heirs are not expected to keep a constant watch on the continued existence of parties to the appeal before the High Court which has a seat far away from where parties in rural areas may be residing.
In the instant case, it is a moot point whether the father acquainted his son/sons about his litigation for seeking relief in respect of his service.
If this is the nature of litigation, this Court is not inclined to draw the inference drawn by the trial court that son/sons knew about the pendency of second appeal.
Therefore, sufficient cause was made for condoning the delay.
[622 D E, 622 F]