judgement:
ivil Appeal No. 3097 of 1989.
From the Judgment and Order dated 15.3.1989 of the Central Excise and Gold (Control) Appellate Tribunal, New Delhi in Order No. 100/89 C in Appeal No. E/55/87 C. K. Swami and P. Parmeswaran for the Appellant.
The Judgment of the Court was delivered by SABYASACHI MUKHARJI, J.
This is an appeal under section 35L(b) of the Central Excises & Salt Act, 1944 (hereinafter referred to as 'the Act ') against the order dated 15th March, 1989 of the Customs, Excise & Gold (Control) Appel late Tribunal, New Delhi (hereinafter referred to as 'the Tribunal ').
The question for consideration in this appeal is, wheth er the bulb sleeves and tube light sleeves manufactured by the respondent for the purpose of packing the electric bulbs and electric tube lights are 'printed boxes and cartons ' and are subject to excise duty or whether the respondent is entitled to exemption under notification No. 66/82 dated 28th February, 1982, as amended by notification No. 15 1/83 dated 13th May, 1983.
The said amended notification reads as follows: "GSR No.
In exercise of the powers conferred by subrule (1) of rule 8 of the Central Excise Rules, 1944, the Central Government hereby exempts articles of paper or paper board falling under sub item (3) of Item No. 17 of the First Schedule to the (1 of 1944), from the whole of the duty of excise leviable thereon: 125 Provided that no such exemption shall apply to printed boxes and printed cartons (including flattened or folded printed boxes and flattened or folded printed cartons) whether in assembled or unassembled condition.
" The respondent was manufacturing printed bulb carton and printed tube carton falling under erstwhile Tariff Item No. 17(3) of the Central Excise Tariff.
The revenue, it is alleged, ascertained that the sleeve rolls had a width of 17.5 cms.
consisting of corrugated kraft paper on one side and plain paper on the other side having printed thereon the name monograms and so on pertaining to the lamps from the corrugated paper manufacturers.
The rolls are mounted on a packing machine and are cut to adequate length to circum scribe the lamps and the joint is automatically covered by gum tapes.
The sleeves are conveyed automatically to a conveyer on which the lamps are inserted manually.
Further the ends of the above sleeve are folded to prevent lamps from falling out.
The entire machine is operated by means of electric motor.
It is stated that it was further ascertained that for the florescent tubes the sleeves already cut to the proper length are supplied to the factory by outside manu facturers.
The tube lamp is manually put in and the sleeve edges folded over manually and gum tape is also applied manually.
The tube lamp is inserted in the tube and then put in the outside card box packing.
It is the case of the revenue that the respondent manufactured printed cartons for bulbs by way of printing on papers (printed and writing) and pasting the printed paper on the corrugated board and thus converting the said corrugated board to printing cartons.
According to the revenue, this process of manufacture ren ders the carton having printing and paper pasting on the surface to make these manufacture in terms of section 2(f) of the Act and classifiable under Tariff Item 17(3) as aforesaid.
According to the revenue, the exemption contained in the notification No. 66/82 was not applicable as the notification exempted articles of paper and paper board falling under Tariff Item No. 17(3) except printing boxes and cartons from the duty.
According to the revenue, the respondent manufactured and cleared bulb cartons (printed) and tube cartons during the period June, 1985 to 30th April, 1986 of the value of Rs.10,24,461.25 involving central excise duty to the tune of Rs.1,59,817.67 without applying for and obtaining a central excise licence for erstwhile Tariff Item No. 17 and without maintaining any statutory record thus wilfully suppressing and mis stating the facts with the intention to evade central excise duty and thereby contravening provisions of the Act and the rules.
126 A Show Cause notice was issued followed by a corrigendum and demand was made of Rs. 1,59,817.57 under rule 9(2) of the Central Excise Rules, 1944 (hereinafter referred to as 'the said rules ') as to why penalty should not be imposed on them under rule 173Q of the said rules for the various alleged contraventions under the provisions of the Act and the rules.
Written submissions were made.
By an Order dated 24th November, 1986, Additional Collector of Central Ex cise, Chandigarh held that cartons bulb and light were manufactured by the respondents and were classifiable under item 17(3) of the erstwhile Central Excise Tariff Act and thus chargeable to excise duty.
But the duty was liable to be reduced in view of the exemption notification No. 217/86 dated 2nd April, 1986 for the period 2.4.86 to 30.4.86.
The Additional Collector therefore passed an order dated 24th November, 1986 for demand of duty of Rs. 1,44,158.12 from the respondent under rule '9(2) of the said rules and im posed a penalty of Rs.25,000 under rule 173Q.
There was an appeal to the Tribunal.
The Tribunal referred to Tariff Item 17 pertaining to paper and paperboard.
Sub item (4) of the said item reads as follows: "4.
Boxes, cartons, bags and other packing containers (including flattened or folded boxes) and flattened or folded cartons, wheth er or not printed and whether in assembled or unassembled condition.
" Tariff Item 17(4) makes a distinction between boxes, cartons, bags and other packing container.
There can be no doubt, according to the Tribunal, that boxes, cartons and bags would also be packing containers.
Out of the various types of packing containers of paper and paper board, ac cording to the Tribunal, only printed boxes and printed cartons are dutiable if we read notification 66/82 as al ready set out hereinbefore.
The Tribunal was of the view that the boxes and cartons have a definite understanding.
Reference was made to Shorter Oxford English Dictionary Vol.
I where 'box ' has been defined as "a case of a receptacle usually having a lid".
In that view of the matter, according to the Tribunal, the product drums or sleeves manufactured by the respondent could not be called 'box ' or 'carton '.
Therefore, the Tribunal held that these will be exempt from excise duty under the aforesaid notification even assuming that the product is a container.
In that view of the matter, the Tribunal did not go into the question of limitation which had been raised before it.
The Tribunal, however, mentioned in the order that before the adjudicating authori ty, no mention had been made by the respondent regarding the fact that they were undertaking manufacture of drums and sleeves out of paper and 127 paper board sheets purchased by them from the market inas much as,they had not filed any classification list to that effect which they were under an obligation to do under the law.
It was contended on behalf of the respondent that the manufacturing of the drums and sleeves was undertaken in manufacturing bale and, therefore, the revenue knew its manufacturing.
But this factor, the Tribunal held, is of no consequence because in the system of Self Removal Procedure, the respondent is not absolved of the responsibility of bringing the product manufactured by them to the notice of the authorities even if they are using that product for their captive consumption.
The respondent had their respon sibility.
In the light of the Tribunal 's findings on the question of classification, the appeal of the respondent was allowed with consequential relief.
Revenue challenges the same in this appeal.
We have perused the order of the Tribunal.
It is evident that one of the meanings, according to the Shorter Oxford English Dictionary, Vol.
I, which the Tribunal had referred, is that box is 'a case of a receptacle usually having a lid ' and in view of the purpose for which this is used in the transaction, the Tribunal found that drums or sleeves manu factured by the respondent could not be called a 'box ' or a 'carton ' because the box must have a lid.
The Tribunal noted that sleeves by themselves could not contain anything be cause these are open ended from both sides.
In order to consider the question whether the exemption notification was applicable or not in view of the terms of the notification, it is necessary to find out whether these sleeves bulbs or sleeves or tube light sleeves manufactured for the purpose of packing the electric bulbs and tubes are printed box and cartons.
In our opinion, the Tribunal ap proached the question from the literal meaning as well as the functional use of the expressions employed.
As these sleeves and tube sleeves manufactured by the respondent had no independent market as such, and as these were utilised for captive consumption for the end product manufactured by the respondent, in our opinion, in the absence of any posi tive and reliable evidence that there was either a market for these goods manufactured by the respondent and in that market these bulb sleeves and tube.sleeves are known and marketable as corrugated boxes and cartons, a fact of which in the record, there is no positive evidence either way, in our opinion, the Tribunal proceeded on a correct basis.
We have considered the submissions advanced on behalf of the revenue.
But we have not been able to persuade ourselves to accept the contention that Tribunal committed any error either on the principle of law to be applicable or the appreci 128 ation of the facts in this case.
In the aforesaid view of the matter, the conclusion reached by the Tribunal cannot be assailed in this appeal.
The appeal, therefore, fails and is, accordingly, dismissed.
There will, however, be no order as to costs.
T.N.A. Appeal dis missed.

summary/full:
The respondent was manufacturing printed bulb cartons and printed tube cartons for the purpose of packing electric bulbs and electric tube light.
The Additional Collector of Central Excise held that the cartons manufactured by the respondent were classifiable under item No. 17 of the Cen tral Excise Tariff Act and thus chargeable to excise duty.
Accordingly an order was passed for demand of excise duty.
The respondent filed an appeal before the Customs, Excise & Gold (Control) Appellate Tribunal.
The Tribunal allowed the appeal by holding that (i) The product drums or sleeves manufactured by the respondent could not be called 'box ' or 'carton '; (ii) They were exempted from excise duty under the relevant notification.
Hence this appeal by the Revenue.
Dismissing the appeal, this Court, HELD: 1. To consider the question whether the exemption notification was applicable or not in view of its terms, it is necessary to find out whether these sleeves bulbs or sleeves or tube light sleeves manufactured for the purpose of packing the electric bulbs and tubes are printed box and cartons.
[127E] 2.
The Tribunal approached the question from the literal meaning as well as the functional use of the expressions employed.
As these 124 sleeves and tube sleeves manufactured by the respondent had no independent market as such, and as these were utilised for captive consumption for the end product manufactured by the respondent, in the absence of any positive and reliable evidence that there was either a market for these goods manufactured by the respondent, and in that market these bulb sleeves and tube sleeves are known and marketable as corrugated boxes and cartons, a fact of which in the record, there is no positive evidence either way, the Tribunal proceeded on a correct basis.
Therefore, the conclusion reached by the Tribunal cannot be assailed in this appeal.
[127F H; 128B]


judgement:
Appeal No. 149 of 1958.
1149 Appeal by special leave from the judgment and order dated September 2, 1957, of the Allahabad High Court in First Appeal No. 474 of 1956, arising out of the judgment and order dated July 30, 1956, of the First Additional Civil Judge, Kanpur, in Civil Suit No. 257 of 1953.
Appellant in person.
C. B. Gupta, 0.
C. Mathur and C. P. Lal, for respondent No.1.
G. C. Mathur and C. P. Lal, for respondent No. 4. 1958.
August 19.
The Judgment of the Court was delivered by BHAGWATI J.
This appeal with special leave under article 136 of the Constitution raises an interesting question of limitation.
The appellant was appointed an Overseer by the Municipal Board, Kanpur, on March 5, 1937, with the approval of the Superintending Engineer, Public Health Department, Lucknow.
He was confirmed by the Board 's special resolution dated July 2, 1938, and continued in employ up to March 19, 1951, when a copy of the resolution No. 1723 passed by the Board on March 5, 1951, purporting to dismiss him from employ was handed over to him.
Against the said resolution dated March 5, 1951, the appellant filed an appeal to the Uttar Pradesh Government on April 7, 1951, but was informed by a G. 0.
dated April 7, 1952, that his appeal had been rejected.
This information was received by him on April 8, 1952.
Thereafter on December 8,1952, the appellant filed the suit out of which the present appeal arises, being Suit No. 257 of 1953 in the Court of the Additional Civil Judge, Kanpur, impleading the Municipal Board, Kanpur, Shri section B. Gupta, Municipal Engineer, Shri Brahmanand Misra, the then Chairman of the Municipal Board and the Government of Uttar Pradesh as defendants and challenged the legality of the dismissal order passed against him on the ground that the previous approval of the Superintending Engineer, Public Health Department was not taken as required by the rules, that the 1150 appellant was denied an opportunity of being heard in person by the Board, that no show cause notice for the proposed punishment of dismissal was issued to him by the Board nor were the charges framed by it, that the dismissal order did not specify the charges, that some of the grounds on which he was dismissed did not form the subject matter of the charges at all, that in any case, the charges framed were false and malicious.
The appellant prayed for a declaration that the order of his dismissal was ultra vires, illegal and void and claimed a total amount of Rs. 10,951 in respect of damages, allowances for doing officiating work, bonus, arrears of salary and provident fund.
The suit was contested mainly by the Board and its defence was to the effect that the order of dismissal was not vitiated on the grounds of illegality or irregularity and in any case the suit was barred by limitation.
The trial court found: (a)that the appellant 's substantive appointment was that of an Overseer and not that of a Drainage Overseer as claimed and the approval of the Superintending Engineer, Public Health Department, Lucknow, for his dismissal was not necessary; (b)that the order of dismissal of the appellant was ultra vires on the ground that he was not given an opportunity of being personally heard by the Board; (c) that no notice to show cause against the proposed punishment was issued by the Board; (d)that the order of dismissal was based on certain grounds which were not the suubject matter of the charge and that the Chairman of the Board was not competent to try the appellant; but (e)that the suit of the appellant was barred by limitation.
The trial court accordingly dismissed the suit with costs.
The appellant carried an appeal.
being First Appeal .No.
474 of 1956 before the High Court of Judicature at Allahabad and contended that the suit filed by him against the Board was within limitation.
The appellant relied upon the provisions of section 326 of the U. P. Municipalities Act (U. P. 11 of 1916) (hereinafter 1151 referred to as "the Act") and contended that the period of six months contemplated by sub section
(3) of section 326 plus the period of two months required for giving notice for filing the suit against the Board under sub section
(1) of section 326, that is, 8 months should be computed from April 8, 1952, on which date the order of the dismissal of his appeal by the U. P. Government was communicated to him and not from March 5, 1951, when the order of his dismissal by the Board was passed or March 19,1951, when that order of dismissal was communicated to him by the Board.
The High Court was of opinion that the Resolution dated March 5, 1951, passed by the Board took effect immediately as it was an order which was complete and effective by itself and its operation was not postponed for any further period nor was its effect suspended until the State Government had passed orders in appeal.
It accordingly came to the conclusion that the appellant 's suit was barred by limitation under section 326 of the Act.
In view of the said finding the High Court did not go into any other questions at issue between the parties but dismissed the appeal with costs.
An application filed by the appellant for a certificate for leave to appeal to this Court proved infructuous, with the result that the appellant applied for and obtained from this Court special leave to appeal against this judgment of the High Court.
The only question that arises for our determination in this appeal is whether the appellant 's suit was barred by limitation, because if that is determined against the appellant it will be conclusive of this appeal.
Section 326 of the Act runs as under: " 326(1) No suit shall be instituted against a Board, or against a member, officer or servant of a board in respect of an act done or purporting to have been done in its or his official capacity, until the expiration of the two months next after notice in writing has been, in the case of a Board, left at its office, and in the case of a member, officer or servant, delivered to him or left at his office or place of abode, 1152 explicitly stating the cause of action, the nature of the relief sought, the amount of compensation claimed and the name and place of abode of the intending plaintiff and the plaint shall contain a statement that such notice has been so delivered or left.
(3) No action such as is described in sub section (1) shall, unless it is an action for the recovery of immoveable property or for a declaration of title thereto, be commenced otherwise than within six months next after the accrual of the cause of action.
Prima facie the period of six months provided in section 326(3) above would commence to run after the accrual of the cause of action and the cause of action on which the appellant came before the Court was his wrongful dismissal from employ by the Board.
Even the extension of this period by two months, the requisite period of the notice under section 326(1) would not save the appellant from the bar of limitation because be instituted his suit more than eight months after the Resolution dated March 5, 1951, dismissing him from employ was communicated to him.
The appellant, therefore, particularly relied upon the provisions of section 58(1) and (2) of the Act and urged that the cause of action accrued to him on April 8, 1952, when the order of dismissal of his appeal by the U. P. Government was communicated to him and the suit which he had filed on December 8, 1952, was therefore within time.
Section 69 of the Act which applied to the appellant read as under: " A board may, by special resolution, punish or dismiss any officer appointed under section 68 subject to the conditions prescribed in section 58 in respect of the punishment or dismissal of an Executive Officer," and Section 58(1) and (2) provide: " section 58(1): A board may punish, dismiss or remove its Executive Officer by a special resolution supported by not less than 2/3rd members constituting the board, subject to his right of appeal to the State Government 1153 within 30 days of the communication to him of the, order of punishment or dismissal.
(2):The State Government may suspend the Executive Officer pending the decision of ail appeal under sub section (1) and may allow, disallow or vary the order of the Board.
" It was argued by the appellant on the strength of these provisions that the special resolution passed by the Board was subject to his right of appeal to the State Government within 30 days of the communication thereof to him and in the event of his filing an appeal against the same within the period specified, the resolution was kept in abeyance and did not come into operation until the decision of the appeal by tile State Government.
If that was so, lie contended, his wrongful dismissal by the Board became operative as from the date when the decision of the State Government was communicated to him and that was the date on which the cause of action in regard to his wrongful dismissal accrued to him, with the result that the suit filed by him within 8 months of such communication (including the period of 2 months ' notice) was well within time.
He also supported this position by relying upon the provisions of section 58(2) which empowered the State Government to suspend an employee pending the decision of the appeal, contending that such power vested in the State Government posited that the order of dismissal every though validly passed in accordance with the conditions specified in section 58(1) was not to become effective until such decision was reached, because only in such event the State Government would be in a position to pass an order of suspension pending the decision of the appeal.
If the order of dismissal passed by the Board was to come into effect immediately on such special resolution being passed, there would be no meaning in the State Government being empowered to suspend the officer who had been already dismissed and the provision in that behalf would then be nugatory.
It was, therefore, argued that such power vested in the State Government necessarily involved the consequence that the order of dismissal could not be operative by its 1154 own force but would continue in abeyance until the decision of the appeal, once an appeal was filed by the employee against the order within the period specified.
On a plain reading of the provisions of section 58(1) and (2), we are of opinion that this contention of the appellant is not tenable.
One condition of the validity of the order of dismissal made by the Board is that the special resolution in that behalf should be supported by not less than 2/3rd members constituting the Board.
Once that condition is fulfilled.
there is nothing more to be done by the Board and the only right which then accrues to the officer thus dealt with by the Board is to appeal to the State Government within 30 days of the communication of that order to him.
He may choose to exercise this right of appeal or without adopting that procedure he may straightaway challenge the validity of the resolution on any of the grounds available to him in law, e.g., the non observance of the principles of natural justice and the like.
There is nothing in the provisions of section 58(1) to prevent him from doing so and if without exercising this right of appeal which is given to him by the statute he filed a suit in the Civil Court to establish the ultra vires or the illegal character of such resolution it could not be urged that such a suit was premature, he not having exhausted the remedies given to him under the statute.
The principle that the superior courts may not in their discretion issue the prerogative writs unless the applicant has exhausted all his remedies under the special Act does not apply to a suit.
There is nothing in section 58(1) which expressly or impliedly bars his right of suit.
The provisions contained in section 58(2) above would also not help him for the simple reason that the power which is vested in the State Government of suspending an employee pending the decision of the appeal can hardly be said to be a condition of the order of the Board.
In any event, that power is given to the State Government for giving relief to the employee who has thus appealed, against the rigour of the order of dismissal passed by the Board against him.
The employee may have been dismissed by the 1155 Board, in which case on looking at the prima facie aspect of the matter the State Government may as well come to the conclusion that the operation of the order of dismissal may be stayed and he be suspended instead, thus entitling him to subsistence allowance during the pendency of the appeal.
If the appeal is eventually dismissed the order of dismmissal by the Board will stand; if the appeal is allowed he will be entitled to continue in the employ and enjoy all the benefits and privileges of such employment, but lie would not have to starve during the period that the appeal was pending before the State Government.
The provisions of section 58(2) have to be read along with those of section 58(1) and it cannot be urged that the power of suspension vested in the State Government is to be exercised in any other case except that of dismissal or removal of the employee by the Board.
In the case of any other punishment an order of suspension passed by the State Government pending the decision of the appeal would only mean that during the pendency of the appeal the State Government is empowered to visit on him a higher punishment than what has been meted out to him already by the Board.
Such an absurd position could never have been thought of by the legislature and the only way in which section 58(1) can be read consistently with section 58(2) is to construe this power of suspension vested in the State Government to apply only to those cases where a higher punishment than suspension has been meted out by Board to the employee.
Section 58(2) merely prescribes the powers which the State Government may exercise in the matter of the appeal which has been filed by the employee against the order of the Board.
The mere filing of an appeal has not the effect of holding the order of the Board in abeyance or postponing the effect thereof until the decision of the appeal.
Such a construction would on the other hand involve that even though a special resolution was passed by the Board dismissing or removing the employee he would continue to function as such and draw his salary pending the decision of his appeal, once he filed an appeal to the, State Government as prescribed.
We do not see any words in 147 1156 section 58(1) and (2 which would suspend the operation of the order passed by the Board or render it ineffective by reason of the filing or the pendency of the appeal.
As a matter of fact the legislature in section 61(3) of the very same Act while dealing with the right of appeal from the order , of the executive officer has expressly provided for such a contingency and enacted that when an appeal was filed within the specified period the order would remain suspended until the appeal was decided.
A comparison of the provisions of section 58(1) and section 61(3) of the Act is thus sufficient) to show that no such consequence was intended by the legislature when it enacted section 58(1) of the Act.
A similar provision enacted in the proviso to section 71 of the U. P. District Boards Act (U. P. X of 1922) may also be referred to in this context.
While dealing with the powers of dismissal or punishment of a Secretary or Superintendent of education by the Board the legislature enacted a proviso thereto that the Secretary or the Superintendent of education of a Board, as the case may be, shall have a right of appeal to the State Government against such resolution within one month from the date of the communication of the resolution to him, and that the resolution shall not take effect until the period of one month has expired or until the State Government has passed orders on any appeal preferred by him.
The absence of any such provision in section 58 of the Act also goes to show that no such consequence was intended by the legislature.
The enactment of section 58(1) in the manner in which it has been done giving to the employee only a right of appeal to the State Government within 30 days of the communication to him of the order of the Board without anything more is enough to show that neither was the suspension of the order nor the postponement of the effect thereof as a result of the filing of an appeal ever in the contemplation of the legislature.
It may be noted in passing that the appellant relied upon a decision of the Allahabad High Court in Dist.
Board, Shahjahanpur vs Kailashi Nath (1), which turned on the construction of section 71 of the U.P. District (1) A I.R. 1948 All.
1157 Boards Act set out above in support of his contention.
The provisions of that section, however, are quite distinct from those of section 58(1) of the Act before us and this case was rightly distinguished by the High Court in the judgment appealed against inasmuch as by the express terms of section 71 under consideration there, the dismissal was not to take effect until the period of one month had expired or until the State Government had passed orders on any appeal preferred by the employee.
It is, therefore, clear that even though the order passed by the Board was subject to the right of appeal given to the employee in the manner aforesaid, the operation of the order was not suspended nor was its effect in any manner postponed till a later date by the mere filing of the appeal and it became effective from the date when it was communicated to the employee.
The cause of action, if any, accrued to the employee on the date of such comunication and the period of limitation commenced to run from that date.
If this is the true position on a plain construction of the provisions of section 58(1) and (2) of the Act what is the other principle which the appellant can call to his aid in order to support his contention ? He tried to equate the special resolution passed by the Board with a decree passed by a trial court and the decision of the appeal by the State Government with a decree passed by an appellate court and urged that in the same manner as a decree of the trial court became merged in the decree passed by the appellate court and no decree of the trial court thereafter survived, the decision of the appeal by the State Government replaced the special resolution passed by the Board and such decision if adverse to him gave him a cause of action and the period of limitation commenced to run against him only from the date of such decree.
The argument was that even though the cause of action in respect of such wrongful dismissal arose on the date when the order of the Board was communicated to him, once an appeal was filed by him against that order within the period prescribed that cause of action was suspended and became merged in the cause of action which 1158 would accrue to him on the decision of his appeal by the State Government.
The special resolution of the Board would then merge into the decision of the State Government on appeal and the only thing which then survived would be the decision of the State Government on which either there would be a resuscitation or revival of the cause of action which had accrued to him on the communication of the order of the Board or the accrual of a fresh cause of action which could be ventilated by him within the period of limitation commencing therefrom.
The initial difficulty in the way of the appellant, however, is that departmental enquiries even though they culminate in decisions on appeals or revision cannot be equated with proceedings before the regular courts of law.
As was observed by this Court in State of Uttar Pradesh vs Mohammad Nooh (1): ". . an order of dismissal passed on a departmental enquiry by an officer in the department and an order passed by another officer next higher in rank dismissing an appeal therefrom and an order rejecting an application for revision by the head of the department ( an hardly be equated with any propriety with decrees made in a civil suit under the Code of Civil Procedure by the court of first instance and the decree dismissing the appeal therefrom by an appeal court and the order dismissing the revision petition by a yet higher court. . . because the departmental tribunals of the first instance or on appeal or revision are not regular courts manned by persons trained in law although they may have the trappings of the courts of law.
The analogy of the decisions of the courts of law would therefore be hardly available to the appellant.
Our attention was drawn in this connection to cases arising tinder section 144 of the Code of Civil Procedure which have held that the period of limitation is to be calculated from the date of the original decree which gave rise to the right of restitution and not from the date of the decision of the last appeal which was filed (1) ; 1159 against it.
Reliance was placed on the following observations of B. K. Mukherjea J. (as he then was) in Bhabarajan Das vs Nibaran Chandra (1): " The question therefore that really falls for determination is as to whether the time for such an application ought to be calculated from the date of the decision of the last appeal, or from the decree which for the first time gave the appellant a right to apply for restitution.
It is conceded by the learned Advocate for the appellant that lie had undoubtedly the right to pray for restitution at the time when the judgment was passed by the Munsif.
His contention is that it was not necessary for him to apply at the first opportunity as there was an appeal taken against that decision of the trial judge and lie could wait till the judgment of the Appellate Court was pronounced.
After the Appellate Court had passed its decision the decree of the trial court would no longer be in existence and lie would be entitled to base his rights to get restitution on the Appellate Court 's decree.
I find myself unable to accept this contention as tenable.
If the right to apply for restitution was available to the appellant as soon as the first court passed its judgment, time would certainly begin to run from that date under article 181 and the mere fact that the judgment was challenged by way of an appeal which might eventually set it aside, does not, in lily opinion, operate to suspend the running of time.
Nor would the appellate Courts decree into which the decree of the trial Court would undoubtedly merge give the party a fresh starting point for limitation.
The analogy.
of the decree of the trial court merging into a decree of the appeal court clearly does not apply to these cases.
The observations of Rankin C.T. in Hari Mohan vs Parameshwar Shau (1) are also in point.
the learned Chief Justice at " But the application to be made under section 144 is an application which must be made to the Court of the first instance whether the decree varied or reversed was passed by that Court or a higher Court.
(1) A.I.R. 1939 Cal.
349, 35. (2) Cal.
61 78.
1160 That Court has to determine whether the applicant is entitled to any and what benefits, by way of restitution or otherwise, by reason of the decree of the appellate court varying or reversing a previous decree.
We have to determine this case under article 181, of the Limitation Act, which directs us, in general language, to find out the date on which the applicant 's right accrued.
In the ordinary and natural meaning of the words, their right accrued immediately the District Judge reversed the decision of the trial court, and reduced the amount of the plaintiff 's claim.
Unless, therefore, we are required by reason of the nature of the matter to ignore the effect of that decision, because it was confirmed on appeal, it seems to me to be wrong to do so.
To refuse so to do does not involve the proposition that two decrees for the same thing may be executed simultaneously.
Nor does it involve, so far as I can see, the affirmance of any other proposition that can be regarded as inconvenient or absurd.
Further, when even if the analogy applies, where the decree of the appeal court only affirms the decree of the trial court, this Court has held in the State Of U. P. vs Mohd. Noolt (1), that the original decree of the trial court remains operative.
This Court has said at p. 611 : " In the next place, while it is true that a decree of a court of first instance may be said to merge in the decree passed on appeal therefrom or even in the order passed in revision, it does so only for certain purposes, namely, for the purposes of computing the period of Limitation for execution of the decree as in Batuk, Nath vs Munni Dei (2), or for computing the period of limitation for an application for final decree in a mortgage suit as in Jowad Hussain vs Gendait Singh (3).
But as pointed by Sir Lawrence Jenkins in delivering the judgment of the Privy Council in Juscurn Boid vs Pirthichand Lal (4), whatever be the theory under other systems of law, under the Indian law and procedure an original decree is not suspended (1) ; (2) 41 I.A. 104.
(3) 53 1. A. 197.
(4) 46 I.A. 52.
1161 by the presentation of an appeal nor is its operation interrupted where the decree on appeal is merely one of dismissal.
There is nothing in the Indian law to warrant the suggestion that the decree or order of the court or tribunal of the first instance becomes final only on the termination of all proceedings by way of appeal or revision.
The filing of the appeal or revision may put the decree or order in jeopardy but until it is reversed or modified it remains effective.
" The original decree being thus operative what we are really concerned with is the commencement of the period of limitation as prescribed in the relevant statuite and if the statute prescribes that it commences from the (late of the accrual of the cause of action there is no getting behind these words in spite of the apparent iniquity of applying the same.
As was pointed out by Seshagiri Ayyar J. in Mathu Korakkai Chetty vs Madar Ammal (1): " Therefore in my opinion, the true rule deducible from these various decisions of the Judicial Committee is this: that subject to the exemptions, exclusion, mode of computationalid.
the excusing of delay, etc., which are provided in the Limitation Act, the language of the third column of the first schedule should be ,go interpreted as to carry out the true intention of the legislature that is to say, by dating the cause of action from a date when the remedy is available to the party.
" The cause of action in the present case accrued to the appellant the moment the resolution of the Board was communicated to him and that was the date of the commencement of the limitation.
The remedy, if any, by way of filing a suit against the Board in respect of his wrongful dismissal was available to him from that date and it was open to him to pursue that remedy within the period of limitation prescribed under section 326 of the Act.
The result is no doubt unfortunate for the appellant, because the trial court found in his favour in regard to his plea of wrongful dismissal.
If he had only brought the suit within the period prescribed by section 326 of the (I) Mad. 185, 213.
1162 Act, he might possibly have got some relief from the Court.
He however chose to wait till the decision of the State Government on his appeal and overstepped the limit of time to his own detriment.
We are unable to come to any other conclusion than the one reached above and the appeal must, therefore, stand dismissed; but in the peculiar circumstances of the case, we make no order " to costs.
The appellant was given leave to proceed as a pauper and he prosecuted this appeal in form a pauperis .
section lie has failed in the appeal and we do order that he shall pay the court fee which would have been paid by him if he had not been permitted to appeal as a pauper.
The Registrar shall send to the AttorneyGeneral for India a memorandum of the court fees payable by him as required by Or.
XIV, r. 12, of the Supreme Court Rules.
Appeal dismissed.

dataset_name: IN-Abs

summary/full:
The appellant was appointed as overseer by the Municipal Board, Kanpur, on March 5, 1937, and continued in its service up to March 19, 1951, when a copy of the resolution passed by the Board on March 5, 1951, purporting to dismiss him from service was handed over to him.
On April 7, 1951, he filed an appeal to the Government against the order of dismissal from service, but he was informed on April 8, 1952, that his appeal was rejected.
Thereafter on December 8, 1952, the appellant instituted a suit challenging the legality of the order of dismissal on various grounds, and the question arose whether the suit was within time.
Sub section (I) Of section 326 of the U. P. Municipalities Act, 1916, provided that no suit shall be instituted against a Municipal Board " until the expiration of the two months next after notice in writing has been left at the office of the Board. explicitly stating the cause of action " ; and sub section
(3) stated that " no action such as is described in sub section
(1) shall. be commenced otherwise than within six months next after the accrual of the cause of action ".
The appellant contended that the cause of action accrued to him on April 8, 1952, when the order of dismissal of his appeal to the Government was communicated to him and the suit, filed within eight months of that date, was within time, and relied on the provisions of section 58 (1) and (2), read with section 69, of the Act, which gave an officer dismissed by the Board a right of appeal to the Government within 30 days of the communication to him of the order dismissal : Held, that though the order passed by the Board on March 5, 1951, was subject to a right of appeal to the Government, the operation of the order was not suspended by the mere filing of the appeal, and the order became effective from March 19, 1951, when it was communicated to the appellant.
The cause of action, therefore, accrued to him on that date, and the suit filed by him on December 8, 1952, was barred by limitation under section 326 of the U. P. Municipalities Act, 1916.


judgement:
ivil Appeal No. 1582 of 1973.
From the Judgment and Order dated 27.3.72 of the Bombay High Court in Appeal No. 983 of 1966.
S.B. Bhasme and V.N. Ganpule for the Appellants.
Mrs. C.K. Sucharita for the Respondents.
The Judgment of the Court was delivered by SAIKIA, J.
This plaintiffs ' appeal by special leave is from the Judgment of the High Court of Bombay in Second Appeal No. 983 of 1966 setting aside the Judgment of the courts below and remanding the case to the trial court for hearing with a direction to refer the issue regarding tenan cy to the tenancy authorities.
The appellants are the owners of land bearing R.S. No. 1442 and 1445, situate at Kasba Karvir, within the municipal limits of Kolhapur.
The said land was leased out to the father of respondent Nos. 1 and 2 and the husband of re spondent Nos. 3 and 4 on October 12, 1950 for a period of ten years.
The appellants had filed Revision Civil Suit No. 298 of 1964 against the respondents for possession thereof, mesne profits and for damages.
It was averred in the plaint that the appellants had earlier initiated proceedings under the Bombay Tenancy and Agricultural Lands Act, 1948, herein after referred to as 'the Act ', and in the said proceedings it was held that the provisions of the Act were not applica ble to the land inasmuch as only grass grew thereon natural ly.
It was further averred that on expiry of the period of lease the 5 appellants terminated the tenancy under the provisions of the Land Revenue Code and filed the aforementioned suit.
The respondent Nos. 1 & 2 contested the suit contending, inter alia, that the civil court had no jurisdiction inasmuch as the Act was applicable to the land; and that they having not been in wrongful possession thereof, the notice of termina tion was invalid.
The learned trial court tried the issues regarding the applicability of the Act, jurisdiction of the civil court, and estoppel, out of the issues framed, as preliminary issues and by order dated March 16, 1965 fixed the date for hearing of the other issues and on that date the respondent Nos. 1 & 2 being absent, after recording the appellants evidence, by Judgment dated July 17, 1965 decreed the suit in favour of the appellants.
The respondents ' appeal therefrom having been dismissed by the District Judge, they took Second Appeal No. 983 of 1966 to the High Court of Bombay, and the learned Single Judge has set aside the Judgment of the trial court as affirmed by the lower appellate court, and remanded the case back to the trial court with a direction that it should raise the necessary issues on the pleadings of the parties and should make a reference to the competent authority under section 85A of the Act with respect to those issues which are required to be decid ed by the competent authority under the Act and on receipt of the findings, dispose of the suit according to law.
The appellants ' application for leave to appeal under the Let ters Patent having been rejected by the High Court, they have obtained special leave to appeal.
Mr. S.B. Bhasme, the learned counsel for the appellants submits, inter alia, that the appellants ' application under section 29(2) read with section 25(2) of the Act, being case No./84 of 1962 63 having been dismissed by the tenancy authorities on the ground that only natural grass grew thereon and there fore the authority had no jurisdiction to deliver possession thereof under section 29(2) of the Act, that finding should act as res judicata, wherefore, remitting of the case by the High Court to the trial court for hearing and deciding after making a reference to the competent authority, under section 85A of the Act with respect to those issues which are required to be decided by the competent authority under the Act, would be barred; and that in the facts and circumstances of the case the civil court itself has jurisdiction to decide the issues which have been directed to be referred to the civil court.
Mrs. C.K. Sucharita, the learned counsel for the re spondents submits that under section 85A in a civil suit involv ing any issues which are required to be decided or dealt with by any authority competent to settle or decide such issues under the Act, the civil court is to settle the 6 issues and refer those to such competent authority for determination; that the High Court 's direction in the im pugned Judgment is consistent with this provision; and that the appellant 's earlier proceedings under the Act before the tenancy authority having been dismissed ex parte, it could not operate as res judicata.
The question to be decided, therefore, is whether the High Court was correct in directing the trial court to refer the issues relating to tenancy to the competent authority under the Act.
To decide it, we may conveniently refer to the relevant provisions of the Act.
The Act has amended the law which governs the relations of landlords and tenants of agricultural lands.
As defined in section 2(8) of the Act, "land" means (a) land which is used for agricultural purposes or which is so used but is left fallow, and includes the sites of farm buildings appurtenant to such land.
This definition is as amended by Bom.
15 of 1957.
The amendment is not material for the purpose of our case.
As defined in section 2(1), "Agriculture" includes horticulture, the raising of crops, grass or garden produce, the use by an agriculturist of the land held by him or a part thereof for the grazing of his cattle, the use of any land, whether or not an appanage to rice or paddy land, for the purpose of rab manure but does not include allied pursuits, or the cutting of wood only.
This definition is after amendments by Bom. 13 and 15 of 1956 and 1957, respectively.
As defined in section 2(2), "Agri culturist" means a person who cultivates land personally.
As defined in section 2(5), "to cultivate" with its grammatical variations and cognate expressions means to till or husband the land for the purpose of raising or improving agricultur al produce, whether by manual labour or by means of cattle or machinery, or to carry on any agricultural operations thereon; and the expression "un cultivated" shall be con strued correspondingly.
The explanation thereunder says: A person who takes up a contract to cut grass, or to gather the fruits or other produce of trees on any land, shall not on that account only be deemed to cultivate such land.
This definition is as substituted by Bom.
13 of 1956.
As defined in section 2(17), "Tenancy" means the relationship of landlord and tenant; and as defined in section 2(18), "tenant" means a person who holds land on lease and includes (a) a person who is deemed to be a tenant under section 4; (b) a person who is a protected tenant; and (c) a person who is a permanent ten ant; and the word "landlord" shall be construed accordingly.
This definition is as substituted by Bom.
13 of 1956.
The High Court has found that the appellants had leased out the land on October 12, 1950 for a period of 10 years under a Kabulayat at 7 an annual rental of Rs. 1000 and that period expired on October 11, 1960.
The appellants submitted an application under section 29(2) of the Act, being case No. 2068 of 1957 but that application was dismissed.
Thereafter, they moved another application under section 88C of the Act being case No. 285 of 1961 and that application was also dismissed on the ground that the lands were governed by section 43C of the Act, but the Act did not apply as the lands were within the limits of the municipal borough.
Thereafter, they started the third proceeding being application under section 29(2) read with section 25(2) of the Act being case No. 184 of 1962 63.
That application also came to be dismissed by the tenancy author ities on the ground that the lands in dispute were lands growing natural grass and, therefore, the authority under the Act had no jurisdiction to deliver possession under section 29(2) of the Act.
The High Court noticed that the applica tion was decided ex parte but the Court did not know under what circumstances, the competent authority proceeded ex parte.
The effect of that decision was that the application filed by the appellants as landlords for possession of the lands treating the opponents thereof as tenants was dis missed.
It was only thereafter that the appellants served the respondents with a notice terminating the tenancy and demanding possession, and the defendants having not complied with the notice, the appellants filled the instant suit, Considered in the light of the above definitions and the provisions of section 85A of the Act there arises no doubt that some of the issues involved in the suit may be such as have necessarily to be decided by the competent authority under the Act and to that extent the jurisdiction of the civil court to decide those issues may be excluded.
In Shivappa Satawappa Ashtekar vs Gajanan Chintaman Desh Pande, [1953] 55 Bombay Law Reporter Bombay 107, in the landlord 's suit for possession of lands filed in civil court, the defendants having contended that the lands were agricultural lands and that the defendants were pro tected tenants, interpreting the then section 85(1) it was held: "Ex facie, by the operation of section 70 and section 85 of the Bombay Tenancy and Agricultural Lands Act, 1948, the jurisdiction of the civil court to decide whether the defendants were tenants or protected tenants must be regarded as excluded and the Mamlatdar alone must be regarded as competent to decide that question.
That is the view which has been taken by a division bench of this Court in Dhondi Tukaram vs Dadoo Piraji, 8 Section 70(b) of the Act then provided: "For the purposes of this Act the following shall be the duties and functions to be performed by the Mamlatdar: (a) . . . (b) to decide whether a person is a tenant or a protected tenant." Section 85(1) provided: "No Civil Court shall have jurisdiction to settle, decide or deal with any question which is by or under this Act required to be set tled, decided or dealt with by the Mamlatdar or Tribunal, a Manager, the Collector or the Bombay Revenue Tribunal in appeal or revision or the State Government in exercise of their powers of control.
" This Court in Bhimaji Shanker Kulkarni vs Dundappa Vithappa Udapudi and Anr., ; , considering the decision in Dhondi Tukaram 's case (supra) which held that the Mamlatdar had exclusive jurisdiction to decide those issues though they arose for decision in a suit properly cognisable by a civil court, observed: "The result was somewhat startling, for nor mally the Civil Court has jurisdiction to try all the issues arising in a suit properly cognisable by it.
But having regard to the fact that the Bombay Legislature approved of Dhondi Tukaram 's case and gave effect to it by introducing section 85A, we must hold that the decision correctly interpreted the law as it stood before the enactment of section 85A.
It follows that independently of section 85A and under the law as it stood before section 85A came into force, the courts below were bound to refer to the Mamlatdar the decision of the issue wheth er the defendant is a tenant.
" Section 70 of the Act now provides: "For the purposes of this Act the following shall be the duties and functions to be per formed by the Mamlatdar: (a) to decide whether a person is an agricul turist; 9 (b) to decide whether a person is, or was at any time in the past, a tenant or a protected tenant or a permanent tenant; XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX (n) to take measures for putting the tenant or landlord or the agricultural labour er or artisan or person carrying on as allied pursuit into the possession of the land or dwelling house under this Act; (o) to decide such other matters as may be referred to him by or under this Act." The words "person is, or was at any time in the past, a tenant", and the words "or a permanent tenant" were substi tuted for the words "person is a tenant" by Mah. 49 of 1969.
Section 85 and section 85A as inserted by Bombay Act 13 of 1956 provide: 85.
(1) No Civil Court shall have jurisdiction to settle, decide or deal with any question including a question whether a person is or was at any time in the past a tenant and whether any such tenant is or should be deemed to have purchased from his landlord the land held by him which is by or under this Act required to be settled, decided or dealt with by the Mamlatdar or Tribunal, a Manager, the Collector or the Maharashtra Revenue Tribunal in appeal or revision or the State Government in exercise of their powers of control.
(2) No order of the Mamlatdar, the Tribunal, the Collector or the Maharashtra Revenue Tribunal or the State Government made under this Act shall be questioned in any Civil or Criminal Court.
Explanation For the purposes of this section a Civil Court shall include a Mamlatdar 's Court constituted under the Mamlatdar 's Courts Act, 1906." "85A. (1) If any suit instituted in any Civil Court involves any issues which are required to be settled, decided or dealt 10 with by any authority competent to settle, decide or deal with such issues under this Act (hereinafter referred to as the "competent authority") the Civil Court shall stay the suit and refer such issues to such competent authority for determination.
(2) On receipt of such reference from the Civil Court, the competent authority shall deal with and decide such issues in accordance with the provisions of this Act and shall communicate its decision to the Civil Court and such court shall thereupon dispose of the suit in accordance with the procedure applica ble thereto.
Explanation For the purpose of this section a Civil Court shall include a Mamlatdar 's Court constituted under the Mamlatdar 's Courts Act, 1906.
" This section was inserted by Bombay Act 13 of 1956.
Before the amendment of section 70(b) by Maharashtra Act 49 of 1969, when the question as to whether a party was in the past tenant or not for the purpose of acquiring some other right, that is, not as main issue but as a subsidiary issue, Civil Court 's jurisdiction to decide such subsidiary issue could not be said to be barred.
Section 70(b) of the Act imposed a duty on the Mamlatdar to decide "whether a person is a tenant" and not "whether a person was or was not a tenant in the past".
In Mussamiya Imam Haider Bax Razvi vs Rabari Govindhai Ratnabhai & Ors., ; , the appellant filed a suit on July 11, 1958 for recovery of possession of the suit lands and mesne profits averring that the lease was fraudulently obtained by the respondents.
The respondents contended that they became statutory owners section 32 or section 88 of the Act and the Civil Court had no jurisdic tion to decide the suit.
The trial court decreed the suit and on appeal the High Court held that fraud was not proved; the respondents failed to prove that they were statutory owners before the date of the suit; that the Civil Court had jurisdiction to decide whether defendants were tenants on the relevant dates namely, July 28, 1956 or May 11, 1958; and that the Civil Court had no jurisdiction to decide whether the defendants were tenants on date of the suit and that question was to be referred to the Mamlatdar.
This Court on consideration of the provisions of section 70 and section 85A with other relevant provisions held at page 797: "We are accordingly of the opinion that section 85 read with 11 section 70 of the Act does not bar the jurisdiction of the Civil Court to examine and decide the question whether the defendants had acquired the title of statutory owners to the disputed lands under the new Act.
In this context, it is necessary to bear in mind the important principle of construction which is that if a statute purports to exclude the ordinary jurisdiction of a Civil Court it must do so either by express terms or by the use of such terms as would necessarily lead to the infer ence of such exclusion.
As the Judicial Com mittee observed in Secretary of State vs Mask & Co., 671.A. 222,236. 'It is settled law that the exclusion of the jurisdiction of the civil courts is not to be readily inferred, but that such exclusion must either be explicitly expressed or clearly implied. ' In our opinion, there is nothing in the lan guage or context of section 70 or section 85 of the Act to suggest that the jurisdiction of the Civil Court is expressly or by necessary implication barred with regard to the question whether the defendants had become statutory owners of the land and to decide in that connection whether the defendants had been in the past tenants in relation to the land on particular past dates.
We are also of the opinion that the jurisdic tion of the Civil Court is not barred in considering the question whether the provi sions of the Act are applicable or not ap plicable to the disputed land during a partic ular period.
" It may be noted that after the amendment of section 70(b) of the Act by inserting the words "or was at any time in the past, a tenant", the position has changed.
The Civil Court has now no jurisdiction to decide an issue arising inciden tally in a civil suit which is to be specifically decided by a competent authority under the Act.
Civil Court in such a case shall refer the issue to that authority and dispose of the suit in accordance with the decision of the authority.
In G.S. Shinde vs R.B. Joshi, ; , the appel lant filed the suit for specific performance of a contract for sale of land dated December 15, 1965 coupled with a supplementary agreement dated April 26, 1966 for sale of agricultural land.
The suit was resisted by the defendant, contending, inter alia, that the provisions of the Act were applicable to the land and the appellant not being an agri culturist, section 63 of the Act was a bar to his purchase of the land, and the agreement being contrary to law could not be specifically enforced.
The plaintiff (appellant) sought 12 to repel that contention by producing a certificate, Ext.
78, issued by the Mamlatdar certifying that the plaintiff was an agricultural labourer and the bar of section 63 was not operative.
If that Ext.
78 was not taken note of, the issue would arise whether the plaintiff was an agriculturist and in view of the provisions section 70(a) read with section 85 and section 85A of the Act, the issue would have to be referred to the Mamlatdar for decision as the civil court would have no jurisdiction to decide the issue.
The trial court and the High Court held that Ext.
78 had no evidentiary value and the issue whether the plaintiff was an agriculturist being an incidental issue, main issue being that of specific performance, Civil Court had jurisdiction.
Allowing the appeal therefrom and remanding the suit to the trial court this Court speaking through Desai, 3.
held at para 10: "Now, if Section 85 bars the jurisdiction of the Civil Court to decide or deal with an issue arising under the Tenancy Act and if Section 85A imposes an obligation on the Civil Court to refer such issue to the competent authority under the Tenancy Act, it would be no answer to the provisions to say that the issue is an incidental issue in a properly constituted civil suit before a Civil Court having jurisdiction to entertain the same.
In fact Section 85A comprehends civil suits which Civil Courts are competent to decide but takes note of the situation where upon a contest an issue may arise therein which would be re quired to be settled, decided or dealt with by the competent authority under the Tenancy Act, and, therefore, it is made obligatory for the Civil Court not only not to arrogate jurisdic tion to itself to decide the same treating it as a subsidiary or incidental issue, but to refer the same to the competent authority under the Tenancy Act.
This is an inescapable legal position that emerges from a combined reading of Sections 85 and 85A . . . .
In a civil suit nomenclature of the issue as principal or subsidiary or substantial or incidental issue is hardly helpful because each issue, if it arises, has to be determined to mould the final relief.
Further, Sections 85 and 85A oust jurisdiction of Civil Court not in re spect of civil suit but in respect of ques tions and issues arising therein and Section 85A mandates the reference of such issues as are within the competence of the competent authority.
If there is an issue which had to be settled, decide or dealt with by competent authority under the Tenancy Act, the jurisdic tion of the Civil Court, 13 notwithstanding the fact that it arises in an incidental manner in a civil suit, will be barred and it will have to be referred to the competent authority under the Tenancy Act.
By such camouflage of treating issues arising in a suit as substantial or incidental or princi pal or subsidiary, Civil Court cannot arrogate to itself jurisdiction which is statutorily ousted.
This unassailable legal position emerges from the relevant provisions of the Tenancy Act." After considering the precedents in Trimbak Sopana Girme vs Gangaram Mhatarba Yadav, 1953 Bom. 241; Dhondi Tukaram Mali, (supra); Bhimaji Shanker Kulkarni, (supra); Ishwerlal Thakorelal Almaula vs Motibhai Nagjibhai, [1966] 1 SCR 367=AIR 1966 SC 459; Pandurang Hari Jadhav vs Shankar Maruti Todkar, ; Kalicharan Bhajan lal Bhayya vs Rai Mahalaxmi, ; Neminath Appayya Hanammannaver vs Jambu Rao Satappa Kocheri, AIR ; Jarnbu Rao Satappa Kocheri vs Neminath Appayya Hanamrnannaver, ; 1968 SC 1358; Mussamiya Imam, (supra) and Noor Mohd; Khan Ghouse Khan Soudagar vs Fakirappa Bharmappa Machenahalli. ; 3 SCR 789, their Lordships observed at para 19: "Thus, both on principle and on authority there is no escape from the conclusion that where in a suit properly constituted and cognizable by the Civil Court upon a contest an issue arises which is required to be set tled, decided or dealt with by a competent authority under the Tenancy Act, the jurisdic tion of the Civil Court to settle, decide or deal with the same is not only ousted but the Civil Court is under a statutory obligation to refer the issue to the competent authority under the Tenancy Act to decide the same and upon the reference being answered back, to dispose of the suit in accordance with the decision of the competent authority under the Tenancy Act.
" In the instant case, applying the settled law as enunciated above, and in view of the certainty of the questions in volved, we are of the view that the High Court has rightly sent back the suit to the trial court with the direction to refer issues, if raised any, to be determined exclusively by the competent authority, to that authority.
We now deal with the submission of Mr. Bhasme that the order 14 of the tenancy authority in case No. 184 of 1962 63 dismiss ing his application under section 29(2) read with section 25(2) of the Act holding that it had no jurisdiction to deliver posses sion of the land on the ground that the natural grass grew thereon, should act as res judicata, wherefore, referring of issues to the Mamlatdar in the suit remitted by the High Court would be barred.
Counsel submits that the Mamlatdar in deciding the aforesaid application acted under the Mamlat dar 's Courts Act, 1906 (Bom.
Act No. II of 1906) and would be a Court competent to determine the issue as to whether the act was applicable to the appellants ' land under the lease, and it already decided that the Act was not applica ble as on that land only natural grass grew, which meant that it was not 'land ' and the defendants were not 'tenants ' as defined in the Act.
Section 11 of the C.P.C. which deals with res judicata provides: "No Court shall try any suit or issue in which the matter.
directly and substantially in issue has been directly and substantially in issue in a former suit between the same par ties, or between parties under whom they or any of them claim, litigating under the same title, in a Court competent to try such subse quent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such Court." (Explanations I to VIII are not so relevant for the purpose of this case) In Duchess of Kingston 's case Sir William de Grey said: "From the variety of cases relative to judg ments being given in evidence in civil suits, these two deductions seem to follow as gener ally true: first that judgment of a court of concurrent jurisdiction, directly upon the point, is, as a plea, a bar, or as evidence conclusive between the same parties, upon the same matter, directly in question in another Court; secondly that the judgment of a Court of exclusive jurisdiction, directly on the point, is, in like manner, conclusive upon the same matter, between the same parties, coming incidentally in question in another Court, for a different purpose.
But neither the judgment of a Court, of concurrent or exclusive juris diction is evidence of any matter which came collaterally in question, though within their jurisdiction nor of any matter incidentally 15 cognizable, nor of any matter to be inferred by argument from the judgment.
" Section 11 bars the trial of a suit or issue in which the matter directly and substantially in issue has already been adjudicated upon in a previous suit.
This Section applies in terms to cases where the matter in issue in a subsequent 'suit ' was an issue in a "former suit".
A 'suit ' is a proceeding which is commenced by a plaint.
As provided in Section 26 of the C.P.C. every suit shall be instituted by the presentation of a plaint or in such other manner as may be prescribed.
In the instant case admittedly the appel lants submitted an application to the Mamlatdar under section 29(2) read with section 25(2) of the Act.
Sub section (2) of section 29 provides: "Save as otherwise provided in sub section (3A), no landlord shall obtain possession of any land or dwelling house held by a tenant except under an order of the Mamlatdar.
For obtaining such order he shall make an applica tion in the prescribed form and within a period of two years from the date on which the right to obtain possession of the land or dwelling house, as the case may be, is deemed to have accrued to him." This sub section is as amended by Mah. 39 of 1964.
It does not speak of a plaint, a suit or a decree.
The appellants did not call its application a plaint or the case a suit.
If a matter directly and substantially in issue in a former suit has been adjudicated upon by a Court of exclu sive jurisdiction, the adjudication will bar the trial of the same matter in a subsequent suit.
In the instant case the Mamlatdar having decided the appellants ' application for possession, the appellants themselves went to the Civil Court and filed the suit.
It does not now lie in their mouth to say that the decision of the Mamlatdar would act as res judicata for the trial court.
We have seen that now the Mamlatdar 's Court is a Civil Court for the purpose of section 85A of the Act.
It is true that section 11 is now made applicable by the Explanations and interpretation to certain proceedings giving more extensive meaning to the word 'suit '.
In its comprehensive sense the word 'suit ' is understood to apply to any proceeding in a court of justice by which an individ ual pursues that remedy which the law affords.
The modes of proceedings may be various but that if a right is litigated between 16 parties in a court of justice the proceeding by which the decision of the Court is sought may be a suit.
But if the proceeding is of a summary nature not failing within the definition of a suit, it may not be so treated for the purpose of section 11.
In the absence of the details of the proceeding concerned in the instant case, it has not been possible for us to hold that it was of the nature of a suit and not a summary proceeding.
Besides, assuming the Mamlat dar in deciding the application in 1962 63 to have been a court of exclusive jurisdiction for the purpose of section 11 C.P.C., its decision rejecting the application would not be an evidence on the question of tenancy merely because it could be inferred from that decision.
Admittedly the appellants ' application was decided ex parte.
It is true that ex parte decrees operate to render the matter decided res judicata, and the defendants ' failure to appear will not deprive the plaintiff of the benefit of his decree.
But in the case of a suit in which a decree is passed ex parte, the only matter that can be 'directly and substantially in issue ' is the matter in respect of which relief has been claimed by the plaintiff in the plaint.
A matter in respect of which no relief is claimed cannot be 'directly and substantially in issue ' in a suit in which a decree is passed ex parte though the Court may have gone out of its way and declare the plaintiff to be entitled to relief in respect of such matter.
In the instant case apply ing the above principle the order having been passed ex parte, assuming the doctrine of res judicata applied, it could be only to the extent of the appellants having been not entitled to possession at the relevant time; and it could not be extended logically to the issue whether the defendants were tenants under the Act.
The expression 'heard and finally decided ' in section 11 means a matter on which the court has exercised its judicial mind and has after argument and consideration come to a decision on a contested matter.
It is essential that it should have been heard and finally decided.
What operates as res judicata is the ratio of what is fundamental to the decision but it cannot be ramified or expanded by logical extension.
In Vithal Yaswant vs Shikandar Khan Mutumukhtan, ; , it has been held by this Court that when a court bases its decision on more than one point, each of which would by itself be sufficient for the ultimate deci sion, the decision on each one of those points would be res judicata.
In the instant case what were the points specifi cally urged and decided are not clear.
In Pandurang Mahadeo Kavade & Ors.
vs Annaji Balwant Bokil & Ors., it was held that in order to operate as res judicata it must be established that the previous 17 decision was given by a court which had jurisdiction to try the present suit, and there would be no res judicata if the previous decision was by a court having no jurisdiction.
Of course that was a case of pecuniary jurisdiction, but there is no reason why the same principle should not apply in other cases of courts without jurisdiction.
The law is well settled that a court which had no jurisdiction to try a cause cannot by its own erroneous decision confer on itself competence to decide it and its decision on the question of jurisdiction cannot operate as res judicata.
Conversely the decision relating to jurisdiction cannot be said to consti tute the bar of res judicata where by an erroneous interpre tation of a statute it holds that it has no jurisdiction.
It is stated that there was no appeal filed by the defendants from the order of the Mamlatdar.
That is not material.
In Ramchandra Rao vs Ramchandra Rao, [1922] 49 I.A. 129, the Privy Council decided that where the suit as to the title for compensation had been referred to the Court, a decree thereon was not appealed from, the question of title would be res judicata in a suit between the parties to the dis pute.
In Bhagwan Dayal vs Mst.
Reoti Devi, ; , a dispute arose as to proprietary title.
A suit was filed in a Revenue Court under the U.P. Tenancy Act.
The Revenue Court framed an issue thereon and referred it to the Civil Court as required by the Act.
The Civil Court held that the re spondent had a half share in the villages and on the basis of this finding the Revenue Court decreed his suit.
Thereaf ter, the appellant filed a suit in Civil Court for a decla ration that he was the absolute owner of all the property in the suit.
The defendants contended that the suit was barred by res judicata.
This Court held that a subsequent suit was not barred by res judicata by the Judgment of the Revenue Court, as it was not within the exclusive jurisdiction of the Revenue Court and suit was maintainable in the Civil Court.
The Judgment of the Revenue Court on the issue of proprietary title could not operate as res judicata as a Revenue Court was not competent to try the subsequent suit.
In the instant case, the Mamlatdar declined to exercise jurisdiction holding that the Act did not apply.
If an issue is referred to it by the trial court under the Act, the question of jurisdiction would not arise and there could be no question of res judicata as to jurisdiction of the Mam latdar on reference.
Bearing in mind the above provisions and the principles of law, we are of the view that there could arise no ques tion of res judicata in the instant case.
Section 11 would not be a bar to the trial court in 18 referring issues which are to be exclusively determined by a competent authority under the Act, to that authority.
Nor should arise any such question of res judicata in the compe tent authority deciding those issues when referred to by the trial court.
In the result, we find no merit in this appeal which is accordingly dismissed, but without any order as to costs.
Y. Lal Appeal dismissed.

summary/full:
The appellants landlords leased out their land, situate at Kolhapur, to respondents Nos. 1 and 2 and the husband of respondents Nos. 3 and 4 on 12.10.1950 for a period of ten years.
After the expiry of the lease period, they initiated proceedings under the Bombay Tenancy and Agricultural Lands Act, 1948, for obtaining possession of the lands but the application was dismissed ex parte, as it was held that the provisions of the Act were not applicable to the land inas much as only grass grew thereon naturally.
Thereupon the appellants terminated the tenancy under the provisions of the Land Revenue Code and filed a Civil Suit against the respondents for possession mesne profits and for damages.
Respondents 1 and 2 contested the suit contending inter alia that the civil court had no jurisdiction to try the suit inasmuch as the Act was applicable to the land and that they having been in rightful possession, the notice of termina tion of tenancy was invalid.
The trial court tried the issues amongst others relating to the applicability of the Act, jurisdiction of the civil court and estoppel and after going through the evidence led by the parties, decreed the suit.
The respondents appeal against the said decree having failed before the first appellate court, they preferred Second Appeal to the High Court of Bombay.
The High Court set aside the judgment and order of the trial court as affirmed by the first appellate court and remanded the case back to the trial court with a direction that it should raise the necessary issues on the pleadings of the parties and should make a reference to the competent authority under Section 85A of the Act in regard to the issues which are required 2 to be determined by the competent authority under the Act and on receipt of findings, dispose of the suit according to law.
Being dissatisfied with the said order, the appellants moved application for leave to appeal under the Letters Patent but the same having been dismissed they have filed this appeal after obtaining special leave.
The appellants ' principal contention, amongst others, before this court is that the appellants ' application under Section 29(2) read with section 25(2) of the Act having been dismissed on the ground that the Act was not applicable and thus the authority had no jurisdiction to deliver possession is a finding which would operate as res judicata; hence the High Court 's direction making a reference to the competent authority under section 85A of the Act, now would be barred.
According to them the civil court itself has jurisdiction to decide the issues.
Respondents ' contention is that the direction of the High Court is consistent with the provi sions of the Act and that the earlier proceedings under the Act initiated by the appellants having been determined ex parte, it could not operate as res judicata.
Dismissing the appeal, this Court, HELD: After the amendment of section 70(b) of the Act by insert ing words 'or was at any time in the past, a tenant ' the position has changed.
The Civil Court has now no jurisdic tion to decide an issue arising incidentally in a civil suit which is to be specifically decided by a competent authority under the Act.
Civil Court in such a case shall refer the issue to that authority and dispose of the suit in accord ance with the decision of the authority.
[11F] (See G.S. Shinde vs R.B. Joshi, ; ;) The High Court in the instant case has rightly sent back the suit to the trial court with the direction to refer issues, if raised to be determined exclusively by the compe tent authority, to that authority.
[13G] If a matter directly and substantially in issue in a former suit has been adjudicated upon by a court of exclu sive jurisdiction, the adjudication will bar the trial of the same matter in a subsequent suit.
[15E] In the instant case, the Mamlatdar having decided the appellants ' application for possession, the appellants themselves went to the Civil Court and filed the suit.
It does not now lie in their mouth to say that 3 the decision of the Mamlatdar would act as res judicata for the trial court.[15F] The Mamlatdar 's Court is a civil court for the purpose of Section 85A of the Act.
[15F] In its comprehensive sense the word 'suit is understood to apply to any proceeding in a court of justice by which an individual pursues that remedy which the law affords.
The modes of proceedings may be various but if a right is liti gated between parties in a court of justice the proceeding by which the decision of the court is sought may be a suit.
But if the proceeding is of a summary nature not falling within the definition of a suit it may not be so treated for the purpose of Sec. 11.
[15H; 16A] Besides, assuming the Mamlatdar in deciding the applica tion in 1962 63 to have been a court of exclusive jurisdic tion for the purpose of section 11 C.P.C., its decision rejecting the application would not be an evidence on the question of tenancy merely because it could be inferred from that deci sion.
[16B] The expression 'heard and finally decided ', in section 11 means a matter on which the court has exercised its judicial mind and has after argument and consideration come to a decision on a contested matter.
It is essential that it should have been heard and finally decided.
What operates as res judicata is the ratio of what is fundamental to the decision but it cannot be ramified or expanded by logical extension.
[16F G] (See Vithal Yaswant vs Shikander Khan Mutumukhtan, ; The law is well settled that a court which had no juris diction to try a cause cannot by its own erroneous decision confer on itself competence to decide it and its decision on the question of jurisdiction cannot operate as res judicata.
Conversely the decision relating to jurisdiction cannot be said to constitute the bar of res judicata where by an erroneous interpretation of a statute it holds that it has no jurisdiction.
[17B] (See Pandurang Mahadeo Kavade & Ors.
vs Annaji Balwant Bokil & Ors., ;) Shivappa Satawappa Ashtekar vs Gajanan Chintaman Desh Pande, [1953] 55 Bom.
Law Reporter.
843; Dhondi Tukaram vs Dadoo Piraji, ; Bhimaji Shanker Kulkarni vs Dundappa Vithappa Udapudi and Anr., ; ; Mussamiya 4 Imam Haidar Bax Razvi vs Rabari Govindhai Ratnabhai & Ors., ; ; Trimbak Sopana Girme vs Gangararn Mhatarba Yadav, ; Ishverlal Thakorelal Almaula vs Motibhai Nagjibhai, [1966] 1 SCR 367; Pandurang Hari Jadhav vs Shankar Maruti Todkar, ; Kalicharan Bhajanlal Bhayya vs Rai Mahalaxmi, ; Neminath Appayya Hanammannaver vs Jambu Rao Satappa Kocheri, AIR 1966 Mys.
154; Jambu Rao Satappa Kocheri vs Neminath Appayya Hanammannaver, ; ; Noor Mohd. Khan Ghouse Khan Soudagar vs Fakirappa Bharmappa Machenahalli, ; ; Ramchandra Rao vs Ramchandra Rao, [1922] 49 I.A. 129 and Bhagwan Dayal vs Mst.
Reoti Devi, ; , referred to.


judgement:
ivil Appeal No. 3982 of 1989.
From the Judgment and Order dated 20.4.1988 of the Bihar High Court in C.W.J.C. No. 1749 of 1988.
B.R.L. Iyengar, Govind Mukhoty, K.K. Gupta and Hari Narain Ojha for the Appellant.
Anil Dev Singh, A.K. Sen, D. Goburdhan, T.C. Sharma, Mrs. Sushma Suri and D .P.
Mukherjee for the Respondents.
The Judgment of the Court was delivered by OJHA, J.
Special leave granted.
203 This appeal has been preferred against the judgment dated 20th April 1988 of the Patna High Court dismissing a writ petition filed by the appellant challenging a seniority list.
Necessary facts in brief are these: The appellant and respondents 7 to 13 are Assistant Conservators of Forest in Bihar Forest Service.
Their serv ice conditions are governed by the Bihar Forest Service Rules, 1953 (hereinafter referred to as the Rules) made by the Government of Bihar in exercise of the powers conferred on it by the proviso to Article 309 of the Constitution of India.
According to Rule 2(vii) of the Rules "the service" means the Bihar Forest Service.
Rule 3 provides that the appointments of the service shall ordinarily be made by (a) direct recruitment in accordance with the Rules in Part II of these Rules by competitive examination to be held by the Commission; and (b) by promotion in accordance with the Rules contained in Part V of selected rangers specified therein.
The appellant and respondents 7 to 12 were selected rangers and were appointed as Assistant Conservator of Forest by promotion under Rule 3(b).
As is apparent from the counter affidavit on behalf of respondents 8 to 10, respond ent No. 11 was promoted as Assistant Conservator of Forest on 21st December 1976, respondent Nos. 7, 8, 9 & 12 on 29th November 1977 and respondent No. 10 on 15th December 1978.
In so far as the appellant is concerned, even though, he was appointed subsequently, his appointment was made effective retrospective from 29th November 1977.
Respondent No. 13, on the other hand, as is apparent from the seniority list which was challenged by the appellant, was appointed under Rule 3(a) of the Rule by direct recruitment on 3rd May 1978.
The counter affidavit further indicates that respondent No. 13 was confirmed as Assistant Conservator of Forest on 30th June 1983.
Respondents 7 to 11 were confirmed on 30th August 1983 and respondent No. 12 was confirmed on 5th August 1983 whereas the appellant was confirmed on 31st December 1986.
In the said counter affidavit, the dates of appointment as rangers of respondents 11, 7, 8, 9, 10, 12 and the appellant respectively are stated as 3rd April 1958, 4th April 1958, 5th April 1958, 9th April 1958, 7th April 1959, 1st April 1966 and 2nd April 1967.
Even though a rejoinder has been filed by the appellant, the correctness of the aforesaid facts has not been denied therein nor has it been urged by the learned counsel for the appellant before us that these facts are inaccurate.
It is on the basis of these facts, therefore, that the respective submissions made by learned counsel for the parties have to be considered.
204 It has been urged by learned counsel for the appellant mainly relying on a memorandum to the Cabinet dated 24th November 1977 which contains a note that if the appellant was found fit for promotion by the selection committee, his place will be above 10 general category rank officers men tioned therein, that in the seniority list the name of the appellant should have been placed above those officers.
According to the learned counsel for the appellant the memorandum was approved by the Cabinet on the same date and yet in the impugned seniority list the aforesaid direction was not carried out.
For the respondents, it was urged that the Cabinet had not approved the memorandum in its entirety.
In our opinion, however, it is not necessary to go into this controversy.
It was on the above premise that the writ petition challenging the seniority list was filed by the appellant in the High Court and according to his learned counsel, the High Court committed an error in dismissing the same.
Having heard learned counsel for the parties, we find it difficult to agree with the submission made by the learned counsel for the appellant.
As seen above, the serv ice conditions of Assistant Conservators of Forest who are members of the Bihar Forest Service, are governed by the Rules.
Rule 35 which specifically deals with the matter of seniority reads as hereunder: "35.
Seniority of officers appointed to the Service shall be determined with reference to the date of their substantive appointment to the Service.
Provided that (i) in the case of members of the Service appointed by direct recruitment at the same time, their seniority inter se shall be in the order of merit in which their names are placed in the list of successful candidates at the Final Examination of the Indian Forest Col lege, Dehra Dun; (ii) in case where appointments are made to the Service both by direct recruitment and promotion of selected Rangers at the same time, the promoted members of the service shall be senior to the members directly re cruited; and (iii) the seniority inter se of Rangers on substantive appointment to the Service by promotion at the same time 205 shall be their seniority inter se held as Rangers." In the instant case we are not concerned with Clause (i) of the proviso.
Even Clause (ii) is not attracted inasmuch as respondent No. 13 even though was appointed by direct recruitment, was not appointed "at the same time" as the appellant and respondents 7 to 12, as already indicated above.
That is clause (iii) of the proviso, therefore, which is relevant for the determination of the seniority inter se of the appellant and respondents 7 to 12.
On a plain reading of this Clause it is apparent that on substantive appoint ment of rangers to the service by promotion, their seniority inter se in the service is to be governed by "their seniori ty" inter se held as rangers".
As seen above, the appellant as well as respondents 7 to 12 have already been confirmed as Assistant Conservator of Forest and meet the requirement of "substantive appointment to the service by promotion".
In order to determine their inter se seniority as Assistant Conservator of Forest, therefore, their seniority inter se held as rangers shall be the determining factor.
The respec tive dates of appointment as rangers of the appellant and respondents 7 to 12 have already been given above.
Its perusal indicates that respondents 7 to 12 had been appoint ed as rangers much before 2nd April 1967 which was the date on which the appellant was appointed as a ranger.
The dates of appointment and confirmation of respondent No. 13 who is a direct recruit, have been noted earlier.
In this view of the matter the claim of seniority as made by the appellant has no substance.
It is settled law that the provisions of statutory rules cannot be modified or altered by executive instructions and it is only in the absence of statutory rules that executive instructions have relevance.
As such even if for the sake of argument it may be accepted that on account of the memoran dum to the Cabinet or any other executive instruction the appellant was to be given seniority as claimed by him, it could not be done as in case of a conflict the statutory provisions contained in this behalf in proviso (iii) of Rule 35 of the Rules shah prevail.
In the result this appeal fails and is dismissed but in the circumstances of the case there shall be no order as to costs.
Appeal dismissed.

summary/full:
The appellant and respondents 7 to 13 are Assistant Conservators of Forest and are governed by the Bihar Forest Service Rules, 1953.
As per Rule 3 thereof appointment to the said post is made either by direct recruitment or by promotion of selected Rangers.
The appellant and respondents 7 to 12 were promoters and respondent 13 was a direct recruit.
Though the appellant was promoted subsequent to the promotion of respondents 7 to 12, his appointment was made retrospective.
The appellant was the last to be confirmed as Assistant Conservator of Forest.
As a Ranger also the appellant was appointed much later to respondents 7 to 12.
On the basis of confirmation seniority has been determined.
The appellant challenged the seniority of respondents 7 to 13 over him, by way of a Writ Petition in the High Court.
He relied on a memorandum to the Cabinet which contained a note that if the appellant was found fit for promotion his place would be above 10 general category officers and since the memorandum was approved by the Cabi net his name in the seniority list should have been placed above those officers.
The respondents resisted the claim stating that the Cabinet had not approved the memorandum in its entirety.
The High Court dismissed the Writ Petition and this appeal, by special leave, is against the said judgment.
The contentions raised before the High Court were reiterated in this appeal, this appeal.
Dismissing the appeal, 202 HELD: 1.1.
Rule 35 of the Bihar Forest Service Rules, 1953 specifically deals with seniority.
In the instant case, Clause (i) of the proviso is not attracted.
Even Clause (ii) is not attracted inasmuch as respondent No. 13 even though was appointed by direct recruitment, was not appointed "at the same time" as the appellant and respondents7 to 12.
It is Clause (iii) which is relevant for the determination of the seniority inter se of the appellant and respondents 7 to 12.
On a plain reading of this Clause it is apparent that on substantive appointment of Rangers to the service by promo tion, their seniority inter se in the service is to be governed by "their seniority inter se held as Rangers".
The appellant as well as respondents 7 to 12 have already been confirmed as Assistant Conservator of Forest and meet the requirement of "substantive appointment to the service by promotion".
In order to determine their inter se seniority as Assistant Conservator of Forest, therefore, their senior ity inter se as Rangers shall be the determining factor.
Respondents 7 to 12 had been appointed as Rangers much before the date on which the appellant was appointed as a Ranger.
Hence the claim of seniority as made by the appel lant has no substance.
[204D; 205B E] 1.2.
It is settled law that the provisions of statutory rules cannot be modified or altered by executive instruc tions, and it is only in the absence of statutory rules that executive instructions have relevance.
As such even if for the sake of argument it may be accepted that on account of the memorandum to the Cabinet or any other executive in struction the appellant was to be given seniority as claimed by him, it could not be done, as in case of a conflict, the statutory provisions contained in proviso (iii) of Rule 35 of the Rules shall prevail.
[205E F]