judgement:
Appeal No. 195 of 1954.
Appeal by special leave from the judgment and order dated the 20th May, 1953 of the CustodianGeneral of Evacuee Property, New Delhi in Revision No. 387 R/Judl/53.
Achhru Ram, (Ganpat Rai, with him) for the appellant.
C. K. Daphtary, Solicitor General of India, (Porus A.Mehta and R. H. Dhebar, with him) for respondents Nos. 1 & 2. 1955.
October 28.
The Judgment of the Court was delivered by JAGANNADHADAS J.
This is an appeal by special leave against the order of the Custodian General of Evacuee Property dated the 20th May, 1953, revising an order of the Additional Custodian of East Punjab, Delhi, dated the 20th March, 1952.
The two questions raised before us on the facts and circum stances, to be stated, are (1) whether the Custodian General had the revisional power which he purported to exercise, and (2) was the order of the Custodian General on its merits such as to call for interference by this Court.
The appellant before us, one Mrs. Indira Sobanlal, is a displaced person from Lahore.
She was the owner of a house.
at Lahore known as 5, Danepur Road.
Malik Sir Firoz Khan Noon of West Pakistan owned 766 bighas of agricultural land in a village called Punjab Khore within the State of Delhi.
An oral exchange is said to have taken place between these two.
, of the said properties, on the 10 th October, 1947.
In pursuance of that exchange Malik Sir Firoz Khan Noon is said to have taken possession of the Danepur Road House.
The appellant is also said to have been put in possession of the said agricultural lands in Punjab Khore presumably by way of attornment 1120 of tenants who were in actual cultivating possession of the lands.
Under section 5 A of the East Punjab Evacuees ' (Administration of Property) Act, 1947 (East Punjab Act XIV of 1947), as amended in 1948 and applied to the State of Delhi, such a transaction required confirmation by the Custodian.
In compliance with this section the appellant made an application on the 23rd February, 1948, to the Additional Custodian of Evacuee Property (Rural), Delhi, for confirmation of the above transaction of exchange and of the consequent transfer to her of the property in agricultural land.
In view of certain rules which came into force later and which prescribed that the application was to be in a set form furnishing certain particulars, the appellant filed an amended application dated the 14th August, 1948, furnishing the required particulars.
This application was not disposed of by the Additional Custodian, for reasons not clear on the record, until the 20th March, 1952.
On that date he passed an order confirming the exchange.
Meanwhile, however, a, proposal was put up to the Additional Custodian by his Revenue Assistant to allot agricultural lands of the village Punjab Khore, including those covered by this exchange, to a number of refugee cultivators.
The proposal was approved by the Additional Custodian on the 12th June, 1949.
In pursuance thereof a detailed allotment was made to twenty six individual allottees on the 27th October, 1949.
There is a report of the Rehabilitation Patwari dated the 27th February 1950, on the record showing that the allottees entered into possession of the land and cultivated their respective lands and settled down in the village.
After the order confirming the exchange was passed by the Additional Custodian on the 20th March, 1952, the appellant filed an application on the 5th May, 1952, asking to be placed in possession, and for a warrant of delivery of possession to be issued against the various allottees and tenants of the land.
The Naib Tehsildar recommended that possession may be given to the appellant and that the Patwari may be informed accordingly to take the necessary action in the matter.
But it does 1121 not appear from the record whether this was done, or whether possession was in fact delivered.
At this stage, a notice under section 27 of the (Central Act XXXI of 1950), appears to have been issued to the appellant by the Custodian General to show cause why the order of the Additional Custodian dated the 20th March, 1952, confirming the exchange and the further orders dated the 20th and 28th July, 1952, sanctioning mutation and other consequential and incidental orders made in connection therewith be not set aside.
This notice appears to have been issued asking the appellant to show cause on the 4th May, 1953.
The case was adjourned to the 12th May, 1953, at the request of counsel for the appellant and thereafter a more detailed notice dated the 14th May, 1953, was issued setting out the various grounds on which the previous orders were sought to be set aside.
The learned Custodian General passed the order now under appeal on the 20th May, 1953, setting aside the order of confirmation.
He directed the Custodian to decide the case after giving notice to all those who might be affected by the confirmation of this transaction.
As the earlier part of his order shows, the reference to the persons affected was to those who were allotted the lands in question by virtue of the order of the Additional Custodian of the year 1949 above referred to.
To appreciate the first question that has been raised as to the validity of the exercise of revisional powers by the Custodian General on the above facts, it is necessary to set out the course of the relevant legislative measures from time to time.
To meet the unprecedented situation of sudden migration of vast sections of population on a large scale from West Punjab to East Punjab and vice versa, leaving most of the properties which they had, moveable and immoveable, agricultural and nonagricultural, the concerned Governments bad to take wide legislative powers to deal with the situation, to set up the necessary administrative machinery, and to evolve and give effect to their policies in regard thereto from time to time.
The earliest of these legislative measures so far as we are concerned, was the East Punjab Evacuees (Administration of Property) Act, 1947 (East Punjab Act XIV of 1947), which came into force on the 12th December, 1947.
This Act was amended by the East Pun jab Evacuees ' (Administration of Property) (Amendment) Ordinance, 1948 (East Punjab Ordinance No. II of 1948) and later by East Punjab Evacuees ' (Administration of Property) (Amendment) Act, 1948, (East Punjab Act XXVI of 1948), which inserted two new sections, 5 A and 5 B I prescribing the requirement of confirmation Of transactions relating to eva cuee property and providing a right of appeal or revision therefrom.
These sections were specifically made applicable to transactions on or after the 15th August, 1947.
The above Punjab Legislative measures were extended to the State of Delhi by Central Government notifications under the Delhi Laws Act, dated the 29th December, 1947, the 28th January, 1948, and the 22nd April, 1948, respectively.
In so far as these measures applied to Chief Commissioners ' Provinces they were repealed by the Administration of Evacuee Property (Chief Commissioners ' Provinces) Ordinance, 1949, (Central Ordinance No. XII of 1949) which came into force so far as Delhi is concerned on the 13th June, 1949.
This Ordinance, in its turn, was repealed and a fresh Central Ordinance came into force in its place, applicable to all the Provinces of India except Assam and West Bengal.
That was Administration of Evacuee Property Ordinance.
, 1949, (Central Ordinance No. XXVII of 1949), which came into force on the 18th October, 1949.
This Central Ordinance in its turn was repealed and replaced by the (Central Act XXXI of 1950) which came into force on the 17th April, 1950.
It is necessary to notice at this stage that until the Central Ordinance XXVII of 1949 was passed, the Evacuee Property law was regulated by the respective Provincial Acts and were under the respective Provincial administrations.
Central Ordinance 1123 No. XXVII of 1949 provided for a centralised law and centralised administration which was continued by Central Act No. XXXI of 1950.
One of the main steps taken for such centralised administration was to create the office of Custodian General with powers of appeal and revision as against the orders of Provincial Custodians.
Section 5 of the Central Ordinance No. XXVII of 1949 authorised the Central Government to appoint a Custodian General of Evacuee Property in India for the purpose of discharging the duties imposed on him by or under the Ordinance, while the appointment of Provincial Custodians, Additional, Deputy or Assistant Custodians, was still left to the various Provincial Governments.
These provisions were continued by sections 5 and 6 of Central Act XXXI of 1950.
As regards the transactions by evacuees relating to evacuee property, the first legislative interference in East Punjab and Delhi appears to have been by virtue of East Punjab Evacuees (Administration of Property) (Amendment ') Ordinance, 1948 (East Punjab Ordinance No. II of 1948) and the East Punjab Evacuees ' (Administration of Property) (Amendment) Act, 1948 (East Punjab Act XXVI of 1948) which inserted two new sections 5 A and 5 B into the East Punjab Act XIV of 1947.
The said sections were as follows: "5 A. (1) No sale, mortgage, pledge, lease, exchange or other transfer of any interest or right in or over any property made by an evacuee or by any person in anticipation of his becoming an evacuee, or by the agent, assign or attorney of the evacuee or such person, on or after the fifteenth day of August, 1947, shall be effective so as to confer any rights or remedies on the parties to such transfer or on any person claiming under them unless it is confirmed by the Custodian.
(2) An application for confirming such transfer may be made by any person claiming thereunder or by any person lawfully authorised by him.
(3) The Custodian shall reject any application made after the thirty first day of March, 1948 or after 142 1124 the expiration of two months from the date the transaction was entered into, whichever is later.
(4) The Custodian shall hold a summary enquiry into an application, which is not rejected under subsection (3) and may decline to confirm the transaction if it appears to the Custodian that (a) the transaction was not a bona fide one for valuable consideration; or (b) the transaction is in the opinion of the Custodian prejudicial to the prescribed objects; or (c) for any other reason, to be given by the Custodian in writing, the transaction ought not to be confirmed.
(5)If the Custodian confirms the transaction, he may confirm it unconditionally or subject to such conditions and terms as he may consider proper.
(6)The Custodian, if the order is not pronounced in the presence of the applicant, shall forthwith give notice in writing to the applicant of any order passed by him under sub sections (3), (4) or (5).
" 5 B. If the original order under section 5 A is passed by an Assistant or Deputy Custodian of Evacuee Property, any person aggrieved by such order may appeal within sixty days from the date of the order to the Custodian of ]Evacuee Property who may dispose of the appeal himself or make it over for disposal to the Additional Custodian of Evacuee Property; and subject only to the decision on such appeal, if any, the order passed by the Assistant or 'Deputy Custodian of Evacuee Property, or any original or appellate order passed by the Custodian or Additional Custodian of Evacuee Property shall be final and conclusive".
It will be seen that these two sections enjoined that transfers by an evacuee or intending evacuee relating to his property from and after the 15th August, 1947, required confirmation and provided for appeal or revision from the orders passed on applications therefor and subject thereto, such orders were made final and conclusive.
The requirement as to confirmation has been substantially continued in more or less the same form by sections 25, 38 and 40 respectively of 1125 the successive legislative measures with certain modi fications which are not material for this case.
But so far as the appealability or revisability of an order passed on an application for confirmation is concerned.
, there have been changes from: time to time.
It will be seen from section 5 B of the East Punjab Act, XIV of 1947, as quoted above, that any original order passed by the Custodian or Additional Custodian is not subject to appeal or revision and it is specifically declared to be final and conclusive.
Central Ordinance No. XII of 1949 by section 30(1) (b) thereof provided for an appeal to the High Court against an original order of a Custodian or Additional Custodian or authorised Deputy Custodian but there was no provision for revision of such an order.
Under the Central Ordinance No. XXVII of 1949 the position was substantially different.
Section 24 thereof, inter alia, provided that.
any person aggrieved by an order made under section 38 (which corresponds to the previous section 5 A of the East Punjab Act XIV of 1947) may prefer an appeal in ,such manner and within such time as may be prescribed, to the Custodian General where the original order has been passed by the Custodian, Additional Custodian or an Authorised Deputy Custodian.
Section 27 thereof provided for revisional powers of the Custodian General but it was specifically confined to appellate orders and there was no power given thereunder for revision by the Custodian General of an original order passed by the Custodian.
But under Central Act XXXI of 1950 which repealed and replaced this Ordinance the position became different.
The provision for appeal under section 24 thereof was virtually the same as before, in so far as it is relevant here.
But as regards revision, however, section 27 of the Act provided for the revisional powers of the Custodian General in the following terms: "27.
(1) The Custodian General may at any time, either on his own motion or on application made to him in this behalf, call for the record of any proceeding in which any district judge or Custodian has passed an order for the purpose of satisfying him 1126 self as to the legality or propriety of any such order and may pass such order in relation thereto as he thinks fit: Provided that the Custodian General shall not pass an order under this sub section prejudicial to any person without giving him a reasonable opportunity of being heard. . . . . . . " The question relating to the validity of the revisional powers exercised by the Custodian General in the present case arises with reference to the provisions above mentioned.
It is not disputed that Malik Sir Firoz Khan Noon was an evacuee.
Nor is it disputed that this property in Punjab Khore which was the subject matter of the exchange was evacuee property.
Though the exchange in question was alleged to have taken place on the 10th October, 1947, at a time when there was no restriction against any evacuee dealing with the property he left behind, it is indisputable that section 5 A of the East Punjab Act XIV of 1947 which has been specifically made retrospective from the 15th August, 1947, operates in respect of the present transaction also.
It, therefore, requires confirmation under the said section and under the corresponding sections in the subsequent legislative measures in this behalf.
It was in compliance with this requirement that the appellant made an application for confirmation on the 23rd February.
1948, and that a subsequent amended application was filed on the 14th August, 1948.
It is these applications that were disposed of on the 20th March, 1952, by the Additional Custodian, Delhi, by an order confirming the exchange, which has since been revised by the Custodian General on the 20th May, 1953.
The main contention of the learned counsel for the appellant is to the powers which are vested in the Custodian General to revise the original orders of the Custodian or Additional Custodian under section 27 of the Central Act XXXI of 1950 are not applicable to an order passed by the Custodian or Additional 1127 Custodian on an application made long prior to the time when the office of the Custodian General was set up and he was clothed with powers of revision.
It is urged that on the date when the application for confirmation was first made on the 23rd February, 1948, an order passed under section 5 A by the Custodian or Additional Custodian is final and con clusive under section 5 B.
It is strongly urged that the subsequent repeal and re enactment of these provisions cannot affect the right vested in the appellant to obtain a final and conclusive order from the Custodian or Additional Custodian on her application for confirmation.
Section 6 of the General Clauses Act and the Privy Council case in the Colonial Sugar Refining Co. Ltd. vs Irving(1) were relied on in support of this contention.
To determine the validity of this contention, it is necessary to trace the course of the various relevant statutory provisions from time to time which repealed the prior corresponding legislative measures and to determine the effect thereof.
The East Punjab Act XIV of 1947 was replaced by the Central Ordinance No. XII of 1949 relating to Chief Commissioners ' Provinces.
Section 40 thereof which repealed the prior Act was as follows: "40.
(1) The East Punjab Evacuees ' (Administration of Property) Act, 1947 (East Punjab Act XIV of 1947), as in force in Ajmer Merwara and Delhi, is hereby repealed.
(2)Notwithstanding such repeal, anything done or any action taken in the exercise of any power conferred by the Act aforesaid shall, in relation to the Provinces of Ajmer Merwara and Delhi, be deemed to have been done or taken in the exercise of the powers conferred by this Ordinance, and any penalty` incurred or proceeding commenced under the said Act shall be deemed to be a penalty incurred, or proceeding commenced under this Ordinance as if this Ordinance were in force on the day when such thing was done, action taken, penalty incurred or proceeding commenced".
When this Ordinance was in turn repealed by (1) 1128 Central Ordinance No. XXVII of 1949, the repealing section 55 was as follows: "55.
(1) The Administration of Evacuee Property Ordinance, 1949 (XII of 1949), as in force in the Chief Commissioners ' Provinces is here by repealed.
(2). . . . . (3)Notwithstanding the repeal by this Ordinance of the Administration of Evacuee Property Ordinance, 1949, or of any corresponding law, anything done or any action taken in the exercise of any power conferred by that Ordinance or law shall be deemed to have been done or taken in the exercise of the powers conferred by this Ordinance, and any penalty incurred or proceeding commenced under that Ordinance or law shall be deemed to be a penalty incurred or proceeding commenced under this Ordinance as if this Ordinance were in force on the day on which such thing was done, action taken, penalty incurred or proceeding commenced".
Ordinance No. XXVII of 1949 was in its turn repealed by Central Act XXXI of 1950.
This Act was amended by an Ordinance and later by an Act of, the same year.
Section 58 is the repealing provision of this Act as so amended.
The material portion thereof is as follows: "58.
(1) The Administration of Evacuee Property Ordinance, 1949 (XXVII of 1949) is hereby repealed.
(2). . . . . . (3)The repeal by this Act of the Administration of Evacuee Property Ordinance, 1949 (XXVII of 1949). . shall not affect the previous operation thereof, and subject thereto, anything done or any action taken in the exercise of any power conferred by or under that Ordinance shall be deemed to have been done or taken in the exercise of the powers conferred by or under this Act, as if this Act were in force on the day on which such thing was done or action was taken".
Thus in the transition of the Evacuee Property law 1129 relating to Delhi, from the East Punjab Act XIV of 1947 to the present Central Act XXXI of 1950, there have been three repeals.
The first two repealing provisions are in almost identical terms but the third is somewhat different.
The difference is in two respects.
(1) The provision in the previous repealing sections that "any penalty incurred or proceeding commenced under the repealed law shall be deemed to be a penalty incurred or proceeding commenced under the new law as if the new law were in force on the day when the penalty was incurred or proceeding commenced" is now omitted.
(2) The provision that "anything done or any action taken in exercise of any power conferred by the previous law shall be deemed to have been done or taken in exercise of the powers conferred by the new law as if the new law were in force on the day when such thing was done or action taken" is continued.
But it is specifically provided that this is subject to the repeal not affecting the "previous operation of the repealed law" which in the context clearly means the previous operation of the repealed law in respect of "anything done or any action taken".
The question thus for consideration is what is the result brought about by these provisions.
Before proceeding to determine it, it is desirable to consider whether section 6 of the General Clauses Act can be relied on.
The position as regards section 6 of the General Clauses Act in the case of repeal and re enactment has been considered by this Court in State of Punjab vs Mohar Singh( ') and laid down as follows at page 899: "Whenever there is a repeal of an enactment, the consequences laid down in section 6 of the General Clauses Act will follow unless, as the section itself says, a different intention appears.
In the case of a simple repeal there is scarcely any room for expression of a contrary opinion.
But when the repeal is followed by fresh legislation on the same subject we would undoubtedly have to look to the provisions of the new Act, but only for the purpose of determining whether they indicate a different intention.
(1) ; , 899.
1130 The line of enquiry would be, not whether the new Act expressly keeps alive old rights and liabilities but whether it manifests an intention to destroy them.
We cannot therefore subscribe to the broad proposition that section 6 of the General Clauses Act is ruled out when there is repeal of an enactment followed by a fresh legislation.
Section 6 would be applicable in such cases also unless the new legislation manifests an intention incompatible with or con trary to the provisions of the section.
Such incom patibility would have to be ascertained from a consideration of all the relevant provisions of the new law. . . ".
In the present case sub section (3) of section 58 of Central Act XXXI of 1950 purports to indicate the effect of that repeal, both in negative and in positive terms.
The negative portion of it relating to "the previous operation" of the prior Ordinance appears to have been taken from section 6(b) of the General Clauses Act, while the positive portion adopts a "deeming" provision quite contrary to what is contemplated under that section.
Under the General Clauses Act the position, in respect of matters covered by it, would have to be determined as if the repealing Act had not been passed, while under section 58 of Central Act XXXI of 1950, the position so far as the positive portion is concerned has to be judged as if the repealing Act were in force at the earlier relevant date.
Therefore where, as in this case, the repealing section which purports to indicate the effect of the repeal on previous matters, provides for the operation of the previous law in part and in negative terms, as also for the operation of the new law in the other part and in positive terms, the said provision may well be taken to be self contained and indicative of the intention to exclude the application of section 6 of the General Clauses Act.
We are, therefore, of the opinion that the said section cannot be called in aid in this case.
Now, as to the meaning of section 58(3) of Central Act XXXI of 1950, it must be admitted that this is not free from difficulty.
This kind of provision in a 1131 repealing Act appears rather unusual.
Learned counsel for the appellant urges that the positive portion of this provision, i.e., "anything done or any action taken in exercise of any power conferred by or under, the Ordinance shall be deemed to have been done or taken in the exercise of the powers conferred by or under this Act as if this Act were in force on the day on which such thing was done or action was taken" applies only to purely administrative matters and that his case falls within the scope of the first portion, viz., "the repeal. . shall not affect the previous operation of the (repealed) Ordinance".
His contention is that the application for, confirmation which was made by the appellant in 1948 and which remained pending until Act XXXI of 1950 came into force and superseded the earlier legislation in this behalf, had to be disposed of in accordance with sections 5 A and 5 B of the East Punjab Act XIV of 1947, as amended in 1948; that the order of confirmation passed by the Additional Custodian in such a pending application was not open to appeal or revision but became final and conclusive.
It is urged that on the filing of the application in 1948, the appellant got a vested right to have it determined under section 5 A with the attribute of finality and conclusiveness under section 5 B attaching to such determination.
According to the learned counsel this follows from the "previous operation" of the repealed law and is in consonance with the principle laid down by the Privy Council in Colonial Sugar Refining Co. Ltd. vs Irving(1).
It appears to us that these contentions are unsustainable.
Colonial Sugar Refining Co. Ltd. vs Irving(1) relates to the case of a right of appeal against an order passed or to be passed in a pending action.
Their Lordships treated the right of appeal to a superior tribunal in a pending action as an existing right and held that the suitor cannot be retrospectively deprived of it except by express words or by necessary implication.
This doctrine was affirmed by the Privy Council in Delhi Cloth & General Mills Co. Ltd. (1) 143 1132 vs
Income Tax Commissioner, Delhi(1) in its application to the converse case in the following terms: "Their Lordships can have no doubt that provisions which, if applied retrospectively, would deprive of their existing finality orders which, when the statute came into force, were final, are provisions which touch existing rights".
It may be noticed that in the case in Delhi Cloth & General Mills Co. Ltd. vs Income Tax Commissioner(1), the orders of the High Court from which appeals were sought to be filed to the Privy Council were dated the 6th January, 1926 and 12th January, 1926.
As the Indian Income tax Act stood at the time and according to the interpretation of section 66 thereof by the Privy Council in Tata Iron & Steel Co. vs Chief Revenue Authority, Bombay(2) there was no appeal to the Privy Council.
The legislature by an amendment of the Income tax Act, which came into force on the 1st April, 1926, inserted therein section 66 A and gave a right of appeal against such orders as provided therein.
In this situation the Privy Council repelled the contention that the litigant could avail himself of the new provision by pointing out the finality of the orders fought to be appealed against and referring to it as an existing right.
This is obviously so because finality attached to them.
, the moment orders were passed, prior to the new Act.
In the present case, the position is different.
The action was still pending when Central Act XXXI of 1950 came into force.
No order was passed which could attract the attribute of finality and conclusiveness under section 5 B of the East Punjab Act XIV of 1947.
Further the possibility of such finality was definitely affected by the repealing provision in Central Ordinance No. XII of 1949 and Central Ordinance No. XXVII of 1949, which specifically provided that a pending action was to be deemed to be an action commenced under the new Ordinance as if it were in force at the time and therefore required to be continued under the new Ordinances.
Each of these Ordinances provided for (1) Lahore 284.
(2) (1923] L.R. 50 I.A. 212.
1133 appeal against such an order and the second of them provided for the exercise of revisional power against an appellate order of the Custodian.
Learned counsel for the appellant contends that, even so, the finality and conclusiveness, which would have attached to an order made under section 5 A, if made before Ordinance XII of 1949 was promulgated, was affected only to the extent of its being subject to an appeal and not to revision.
But once the attribute of finality in respect of such an order is affected by subsequent legislation, it does not appear to be of consequence that it was affected first by a provision for appeal and later by provisions for appeal and revision.
It is difficult to see that such provisions, in those cir cumstances, are anything more than alterations in procedure.
However this may be, it appears to be clear that while a right of appeal in respect of a pending action may conceivably be treated as a substantive right vesting in the litigant on the commencement of the action though we do not so decide no such vested right to obtain a determination with the attribute of finality can be predicated in favour of a litigant on the institution of the action.
By the very terms of section 5 B of East Punjab Act XIV of 1947, finality attaches to it on the making of the order.
Even if there be, in law, any such right at all as the right to a determination with the attribute of finality, it can in no sense be a vested or accrued right.
It does not accrue until the determination is in "fact made, when alone the right to finality becomes an existing right as in Delhi Cloth and General Mills Co. Ltd. vs IncomeTax Commissioner(1).
We are, therefore, of the opinion that the principle of Colonial Sugar Refining Co. Ltd. vs Irving(2) cannot be invoked in support of a case of the kind we are dealing with.
Nor can this be brought under the ambit of the phrase "previous operation of the repealed law".
What in effect, learned counsel for the appellant contends for is not the "previous operation of the repealed law" but the "future operation of the previous (1) Lahore 284, (2) 1134 law".
There is no justification for such a construction.
Besides, if in respect of the pending application in the present case, the previous repealed law is to continue to be applicable by virtue of the first portion of section 58(3) the question arises as to who are the authorities that can deal with it.
The application can be dealt with by the Custodian and on appeal by the Custodian General only as functioning under the previous law.
But as such Custodian or Custodian General they have disappeared by virtue of the repeal.
It is only the second portion of section 58(3) which continues them as though the appointments were made under the new Act a position which could scarcely be controverted.
To the extent of the future operation, if any, of the repealed law they can have no function.
Indeed, a comparison of the wording of section 58 of Act XXXI of 1950 with the wording of section 6 of the General Clauses Act would show that if the legislature intended either that pending proceedings were to be continued under the previous law or that anything in the nature of vested right of finality of determination or some right akin thereto was to arise in respect of such pending proceedings, the negative portion of section 58(3) would not have stopped short with saving only the "previous operation" of the repealed law.
It would have borrowed from out of some portions of the remaining sub sections (c), (d) and (e) of section 6 of the General Clauses Act, and provided in express terms for the continuance of the previous law in respect of pending pro ceedings.
Obviously no particular sub section of section 6 of the General Clauses Act could be borrowed in toto as that would contradict the positive portion of section 58(3) of Act XXXI of 1950 and would be inconsistent with the idea underlying it.
We are,therefore, clearly of the view that the appellant cannot call in aid the principle of the case in Colonial Sugar Refining Co. Ltd. V. Irving(1), nor can his case fall within the ambit of the first portion of sub section (3) of section 58 of Act XXXI of 1950.
The next question for consideration is how the (1) 1135 second and positive portion of section 58(3) of Act XXXI of 1950 is to be understood.
This portion says that "anything done or any action taken in exercise of any power conferred by or under the (repealed) Ordinance, shall be deemed to have been done or taken in the exercise of the powers conferred by or under this Act as if this Act were in force on the day on which such thing was done or action was taken".
To appreciate the meaning of this it is desirable to have a general idea of the scheme of the repealed Ordinance, the powers exercisable thereunder, and the nature of the things that may be done, or action that may be taken, thereunder.
The powers exercisable are to be gathered from various sections and broadly speaking fall under the follow ing categories.
To make appointments sections 5 and 6. 2.
To make enquiries sections 7, 16, 19 and 38 and to make declarations or issue notifications as a result thereof.
To make various kinds of consequential or administrative order such as those under sections 9, 10, 11, 12 and 21. 4.
To hear and dispose of appeals, reviews or revisions sections 24, 25, 26 and 27.
5.Power of the Central Government, to exempt, to give directions, to take action with regard to evacuee property, to delegate powers and to make rules sections 49, 50, 51, 52 and 53.
In addition there are provisions which bring about various consequences such as vesting in the Custodian, valid discharge by payment to the Custodian, attachment, and so forth, sections 7 (2), 8, 11, 13, 16 (3), 19 (3), 20 and 22, etc.
The above enumeration is by no means intended to be exhaustive but is merely to illustrate the scheme of the various provisions in the Ordinance with reference to which section 58 of the Act has to be understood.
There are also rules framed by virtue of section 53 of the Ordinance under which various powers may be exercised, things done, and action taken.
If section 58 (3) of Central Act XXXI of 1950 which 1136 repealed the prior Ordinance is understood with reference to the above scheme, there is no reason to confine the operation of the second portion of section 58(3) to administrative action as suggested by learned counsel for the appellant.
Broadly speaking, the second portion of section 58(3) refers to the whole range of, things that may be done, or action that may be taken, under the previous Ordinance and the rules framed thereunder, while the first portion of section 58(3) relates to the legal consequences resulting under the Ordinance or the rules from certain facts or from completed acts or things done thereunder.
Without attempting to be meticulously accurate, it may be stated in general terms, that the scheme underlying section 58(3) appears to be that every matter to which the new Act applies has to be treated as arising, and to be dealt with, under the new law except in so far as certain consequences have already ensued or acts have been completed prior thereto to which it is the old law that will apply.
In this view of section 58, the application of the appellant for confirmation pending on the date when Central Act XXXI of 1950 came into force had to be dealt with and disposed of under this Act and the order of confirmation passed in 1952 would clearly be subject to the revisional power of the Custodian General under section 27 of the said Act.
It is next contended that the revisional power cannot be exercised when there was an appeal provided but no appeal was filed, that it was open to the Assistant Custodian who appeared before the Custodian General in support of the notice for revision or to the allottees of the property in whose interest the revisional order appears to have been passed, to file an appeal under the Act as persons aggrieved.
Section 27 however is very wide in its terms and it cannot be construed as being subject to any such limitations.
Nor can the scope of revisional powers be confined only to matters of jurisdiction or illegality as is contended, because under section 27, the Custodian General can exercise revisional powers "for the purpose of satisfying himself as to the legality or 1137 propriety of any order of the Custodian".
We are thus clearly of the opinion that the contention of the learned counsel for the appellant that the exercise of revisional powers in this case by the Custodian General is without jurisdiction or is illegal, must fail.
The next question to be considered is as regards the merits of the revisional order of the Custodian General which is under appeal before us.
Learned counsel for the appellant attacked it on various grounds.
He urged that the ground on which the learned Custodian General set aside the Additional Custodian 's order, viz., absence of notice to the prior allottees is wholly untenable.
He contended that the allottees had no kind of interest in the land which entitled them to contest the application for confirmation, that they were at best only lessees for three years which was due to expire very shortly after the order of confirmation was passed by the Additional Custodian.
He pointed out that as soon as the application for confirmation was filed on the 23rd February, 1948, general notice by beat of drum and affixture in the locality and by publication in the Indian News Chronicle article was given, that the persons in possession at the time were only the previous tenants on the land, who either attorned to the appellant or left the village, that the allottees came into possession much later and pending the disposal of the confirmation proceedings and presumably subject to its result.
He also pointed out that even when the rules in this behalf came into force under Act XXXI of 1950, it was discretionary with the Custodian to give notice to persons other, than the transferor and transferee, if he considered them to be interested, and urged that since the same officer, Shri R. Dayal, made the allotment as also the confirmation, he must be taken to have exercised his discretion properly in not giving any notice to them, in view of the imminent expiry of the three years term for which they were put in possession.
It is strongly urged that having regard to the above considerations and to the categorical findings of the Custodian General himself that the 1138 transaction which was confirmed, was perfectly bona fide, the setting aside of the order of confirmation against which no appeal was filed by any one, and the consequential disturbance of the vested property rights of the appellant, was in the nature of perverse exercise of revisional power.
The learned Solicitor General appearing for the respondent contended that the finding of the CustodianGeneral about the bona fides of the transaction was only tentative, that the allottees, though provisionally placed in possession for three years had, what has come to be recognised as, a quasi permanent interest, that they had a genuine interest in opposing the confirmation sought, which related to a large tract of agricultural land, and which would reduce the pool of agricultural lands available for rehabilitation of displaced agriculturists and that confirmation of transactions relating to such land was opposed to the policy and directives of the Government and that the confirmation should not, in the circumstances, have been lightly granted by the Additional Custodian without notice to the allottees and a proper consideration of the policies and directives in this behalf.
In reply thereto learned counsel for the appellant urged that the alleged policies or directives are not relevant matters for consideration by the Custodian in these proceedings which must be taken to be quasi judicial, if not judicial, unless such policies or directives are embodied in rules made by the Central Government under section 56(2) (q) and that no such rules were prescribed by the relevant dates and that even the Custodian General himself in his order under appeal discounted the usefulness of any reference to notifications and directives for the purposes of this case.
It was also urged that the matters which could be taken into consideration are regulated by section 40(4) of Act XXXI of 1950 and that clause (c) thereof must be construed as referring to matters ejusdem generis with clauses (a) and (b) But in the view we take of the order under appeal and the course we propose to adopt, we do not wish to express any opinion on the merits of the above arguments.
1139 The order under appeal is one passed by virtue of the wide powers of revision vested in the Custodian General under section 27 of the Act.
The jurisdiction which has been challenged having been found in favour of the Custodian General, this Court would normally be slow to interfere with the order on its merits.
But with respect to the learned CustodianGeneral, his order is such that it is difficult to maintain it.
The learned Solicitor General himself has been obliged to put forward arguments in support of it which cannot be clearly gathered from the order itself.
It is also difficult together from it whether the remand to the Additional Custodian for reconsideration, after notice was a general and open remand where all questions on the merits are to be reconsidered or was only a limited remand and if so what the limitations are.
If it was meant to be an open general remand, as the concluding portion of his order seems to indicate, his definite findings on points (1) and (2) which he formulated for himself and the doubt he has expressed in his order about the usefulness of examining afresh the various notifications and directives to which his attention was drawn by the Assistant ,Custodian, would render it difficult for any Custodian on remand to consider any of those matters.
If so, the remand would appear to serve no substantial purpose.
In the circumstances, and in fairness to the learned Custodian General, the only proper course would be to set aside his order under appeal and to remit the matter back to him for fresh consideration.
On such fresh consideration he will give full opportunity to both sides for presentation of their respective points of view.
If on the rehearing, he decides to remand the case to the Custodian, he will clearly indicate what are the matters to be considered by him.
The learned Custodian General may also consider the feasibility of his dealing with the matter finally by himself, calling for a report, if need be, from the Custodian on specified matters, in order to obviate any further delay by appeal and revision in this already protracted matter.

summary/full:
The appellant, a displaced person from Lahore, was the owner of a house there and on the 10th of October, 1947, she arranged to have it exchanged with certain lands in a village in the State of Delhi, belonging to M, an evacuee.
On the 23rd of February, 1948, she made an application to the Additional Custodian of Evacuee Property (Rural), Delhi, for confirmation of the transaction of ex 1118 change under section 5 A of the East Punjab Evacuees ' (Administration of Property) Act, 1947, as amended in 1948 and applied to the State of Delhi.
Under section 5 B of the Act an order if passed by the Custodian or Additional Custodian would not be subject to appeal or revision, and would become final and conclusive.
But the application was not disposed of until the 20th of March, 1952, and on that date the Additional Custodian passed an order confirming the exchange.
In the meanwhile, there were changes in the law relating to evacuee property by which the East Punjab Act as applied to the State of Delhi witness repealed and re enacted, and ultimately Central Act XXXI of 1950 was passed which, among other things, conferred by section 27 revisional powers on the Custodian General.
The Custodian General issued a notice under section 27 to the appellant and, after hearing her, set aside the order of confirmation and directed the matter to be reconsidered by the Custodian.
It was contended for the appellant that the order of confirmation by the Additional Custodian was not open to revision, on the ground that on the filing of the application in 1948 the appellant got a vested right to have it determined under section 5 A, with the attribute of finality and conclusiveness under section 5 B attaching to such determination, and that the subsequent repeal and re enactment of these provisions cannot affect such a right, in view of section 6 of the General Clauses Act, and section 58(3) of Act XXXI of 1950.
Held (i) that section 6 of the General Clauses Act (X of 1897) was not applicable to the case, as section 58(3) of Act XXXI of 1950 was a self contained provision indicative of the intention to exclude the operation of section 6; (ii)that the right to a determination with the attribute of finality, assuming that such a right exist,.
;, is not a vested right and it does not accrue until the determination is in fact made, when alone it becomes an existing right.
Colonial Sugar Refining Co. Ltd. vs Irving ([1905] A.C. 369) and Delhi Cloth & General Mills Co. Ltd. vs Income Tax Com missioner ([1927] I.L.R. ; 54 I.A. 421), distinguished; (iii)that the words "the repeal shall not affect the previous operation of the repealed law" in section 58(3) of Act XXXI of 1950 cannot be construed as meaning "the repeal shall not affect the future operation of the previous law"; and (iv)that the scheme underlying section 58(3) is that every matter to which the new Act applies has to be treated as arising, and to be dealt with, under the now law except in so far as certain consequences have already ensued or acts have been completed prior to the new Act, to which it is the old law that will apply.
In view of section 58, the application of the appellant for con firmation pending on the date when Act XXXI of 1950 came into force, had to be dealt with and disposed of under this Act and the order of confirmation passed in 1952 was subject to the revisions power of the Custodian General under s, 27 of the said Act, 1119 Quaere.
Whether a right of appeal in respect of a pending action can be treated as a substantive right vesting in the litigant on the commencement of the action.


judgement:
Civil Appeal No. 1815 1975.
(Appeal by Special Leave from the Judgment and Order dated 22 8 74 of the Kerala High Court in Appeal Suit No. 165/71).
T.C. Raghavan, N. Sudhakaran and K. Rewal Kumar, for the Appellant.
T.S. Krishnamurthy Iyer, T. Rajandra Choudhury and Mrs. V.D. Khanna, for the Respondents.
The Judgment of the Court was delivered by GOSWAMI, J.
This appeal by special leave is directed against the judgment of the Kerala High Court out of a proceeding for opportionment of compensation under the Land Acquisition Act.
Certain property measuring 2 acres 21 cents in R.S. 299/1 of Chevayur village was acquired by the Government.
The compensation which was awarded was a sum of Rs. 2859.88 including the solatium.
There were five claimants clamour ing for the compensation.
While the first claimant (herein after to be described as the appellant) claimed the entire compensation after making allowance for a small sum of Rs. 437.50 in favour of the claimants 2to 4 (hereinafter to be described as the respondents) the latter, on the other hand, claimed the entire amount minus a sum of Rs. 350/ which, according to them, was the entitlement of the appel lant.
The acquired property originally belonged in janman (freehold right) to one Vakeri Thannanone Raman Nair.
After his death the same was inherited by his heirs and legal representatives.
They assigned their Janmam right on Janu ary 14, 1967.
in favour of the appellant.
Based on such a right the appellant is now claiming the aforementioned compensation.
The earlier history of the property shows that the 'otti ' right in the land had been transferred to the Prede cessors in interest of the appellant and to those of the respondents by the daughter of Vakeri Thannanone Raman Nair and other heirs by a registered document of December 30, 1894, for a consideration of Rs. 650/ .
The document is marked as exhibit A 2.
The entire controversy between 698 the parties will turn on the construction of the above deed (exhibit A 2) as to whether it is a mortgage fir a lease.
Although, prior to the assignment of the Janman right in favour of the appellant the parties, naturally, would have been sailing on the same boat as to theft status under ' the deed, the acquisition of Janmam right by the appellant in 1967 gave, him an opportunity to part company with the respondents and to claim almost the entire compensation to the deprivation of the respondents on the acquisition of the larger estate into which the lesser estate had merged.
The respondents, therefore, threw down their gauntlet taking the position that the document exhibit A 2 evidenced a transaction of lease and they acquired tenant rights in the land.
If they succeed in this: plea, they will be entitled to almost the entire amount of compensation under the Kerala Land Reforms Act 1963 (Act 1 of 1964) and the appellant even with the Janmam right will only get a pittance.
It may be noted that the appellant, had already got his 14th share of the otti right by partition some time in 1936 and there was a partition suit in 1949 when the appellant and the respondents divided this property by metes and bounds in the course of execution of a partition decree in O.S. 32 of 1949.
We are required to construe the deed executed in the year 1894.
The deed was not drafted by a lawyer conversant with the legal implications of a mortgage or a lease but by a bond writer as perhaps was the usual practice in the fall of the last century and continuing even upto the present times.
The deed was written in Malayalam and we have an agreed translation of the document before us.
The learned Judge of the High Court being conversant with the language was natu rally in a better position to appreciate the significance in the original document placed side by side with the translat ed exhibit.
In construing a document like the one before us it is always necessary to find the intention of the party execut ing it.
The intention has to be gathered from the recitals and the terms in the entire document and from the surround ing circumstances.
How the parties or even their represen tatives in interest treated the deed in question may also be relevant.
It is also well settled that the nomenclature given to a document by the scribe or even by the parties is not always conclusive.
The word "otti", as such, used in the document, is not, therefore, of much consequence.
Before we proceed further we may turn to the contents in the document.
The deed is described as an "otti deed" executed by Nani Amma, Janmam holder and manager and several other co sharers in favour of Kesavan Nambudiri.
Next the document recites the various debts including the kanom of Rs. 100/ in respect of seven items of nilams (wet lands).
The debt owed by the executants on that date was Rs. 650/ covering all the outstanding dues upto that date and Rs. 8910 cash received on that date from the transferee.
Having recited the consideration in the deed as above the document concludes as follows : The "Mambakkad paramba (dry land).
described in the Schedule under, belonging to us in jenm (absolute) 699 right, with all the improvements therein has been demised and given to your possession for a period of 72 years, you may enjoy the paramba (dry land) with all the improvements on otti right and after adjusting the interest on otti consideration pay the purappad Rs. 3155 fixed to be paid annually and also pay the revenue in our jema and obtain receipt therefor.
On the expiry of the said period, when the otti amount is paid and the otti is redeemed, we shall pay the value of improvements then found and fixed.
We hereby assure you that to our knowledge and belief there is no other charge or liability on this property".
Apart from the document neither party adduced any evidence before the court.
From the contents of the docu ment it is clear that the consideration was predominantly past debt and only a small sum of cash was received on the date of its execution.
Possession of the land was made over to the transferee giving him the right to "enjoy" the land.
The transferee was required to appropriate the income of the property to the interest on the amount ad vanced.
The transferee was also to pay the land revenue to the credit of the transferor.
A fixed amount of Rs. 3155 was to be paid by the transfered to the transferor annually as "purappad".
This word "purappad" means "the net produce or net rent payable to the janmi after deducting interest on advances made by the tenant and the Government tax*".
The debt of Rs. 650/ will remain unpaid even after the expiry of 72 years when the said otti amount has to be repaid.
There is also an indication in the recitals that the proper ty will return to the transferor who "shall pay the value of improvements then found and fixed".
The is nothing in the recitals to show that the land was given as security for the amount of loan.
There is no right of sale of the land delivered to the transferee in case the debt is not dis charged.
On the other hand, there is a clear recital about the payment of annual rent by the transferee to the trans feror.
The trial court held the document to be a mortgage whereas the High Court held it to be a lease.
It is enough to point out that the trial court was wrong in holding that the transferee was to utilise the amount of Rs. 3 15 5 for paying the land revenue.
On the other hand, the document stated that this amount of fixed rent was to be paid annual ly in addition to the Government revenue which the transfer ee was required to pay.
This feature of payment of rent, in this case, flits the balance in favour of construing the document as a lease, coupled with the fact that the essence of a mortgage being the transfer of immovable property as security for the debt is conspicuous by its absence in the detailed enumeration of the terms.
Further, as stated earli er, there is no right to sell the property in case the debt is not repaid.
There is also nothing to show that the enjoyment of the usufruct was intended to wipe out the debt in the long period of occupation.
We find that after the expiry of the period of 72 years mentioned in the document the appellant purchased the Janmam right of the * Aiyar 's Law Lexicon of British India, 1940, page 1050.
13 1234SCI/76 700 entire property in 1967 for a sum of Rs. 1000/ which in cluded the sum of Rs. 650/ which was the consideration in exhibit A 2.
The Kerala Land Reforms Act, 1963 (Act 1 of 1964) had already been passed, by then.
It would, therefore, appear crystal clear that whoever be the janmi would be able to get only an infinitesimal sum of compensation for the property acquired and the major share, would go to the tenants in possession under the aforesaid Act.
It is not disputed that the appellant got his 1/4th share of compensa tion of the acquired property in terms of the earlier parti tion to which we have already adverted.
It was therefore, a clever act1 on the ' part of the appellant to manage to the Janmam right of the transferor in the year 1967, when per haps the proposal for acquisition of the land had already been in the air, in order that he was able to claim the remaining 3/4th share of compensation to which he would otherwise be not entitled except to an insignificant extent.
The transferors, themselves, would be in no better position after the Kerala Land Reforms Act.
When, therefore, the appellant offered to the transferors some money which the latter would not otherwise have obtained, in view of the provisions of law, the assignment of the Japnam right was made in favour of the appellant.
The transferors thus walked out of the field leaving the future contest amongst the transferees out of whom the appellant came to be the Janmi.
It is apparent that after the partition the appel lant would not stand to gain with regard to the 3/4th share of the property, which is in dispute, by accepting the document ,rs a lease since the respondents are the transfer ees in possession of this particular property.
The appel lant, therefore had cast his lot in a gamble by purchasing the Janmam right from the transferors in 1967.
There is sufficient force in the contention of the respondents that the transferors themselves treated this document as a lease for else it cannot be explained why they would have parted with their Janmam right of the entire property for Rs.1000/ , inclusive of the otti debt, if they themselves had regarded this document as an instrument of mortgage.
There is another significant feature that while there was arrangement to pay a fixed annual "purappad" to the transferor, such a sum was not intended to be utilised towards reduction of the principal debt.
It is, therefore, not possible to say that the High Court is wrong in holding that the consideration of Rs. 650/ in the deed was intended as a premium for the lease.
There is also no evidence whatsoever to indicate as to what the price of the land was to determine the proportion between the amount advanced and the value of the property.
The document taken as a whole lacks the most essential ingredient of a mortgage, namely, that the transfer of the property has to be made as a secu rity for the debt.
The High Court has also noted that since the document was of a composite character disclosing features of both mortgage and lease it must be taken as a lease.
We do not think that the High Court is correct in this view.
Indeed the High Court in a later Full Bench.
decision has not accepted this view.
(See Velayudhan Vivekanandan vs Ayyap pan Sadasivan).
(1) (1) I.L.R. [1975] 1 Kerala 166.
701 We are of opinion that when there are some mixed ele ments in an instrument disclosing features of mortgage as well as of lease, the court will have to find out the pre dominant intention of the parties executing the document viewed from the essential aspect of the reality of the transaction.
Human transactions cannot be tied to textual defini tions.
They have to respond to variable requirements under different situations and often to the dictates of the party at an advantage in the bargain.
Mortgages are not always simple, English, or usufructuary or such other types as defined in the Transfer of Property Act.
They are anomalous too and sometimes more anomalous than what is defined in the said Act.
Even so, there is one most essential feature in a mortgage which is absent in a lease, that is, that the property transferred is a security for the repayment of debt in a mortgage whereas in a lease it is a transfer of a right to enjoy the property.
We have seen that this essential feature of a mortgage is missing in the document in ques tion.
We are, therefore, unable to come to the conclusion that it is a mortgage and not a lease.
In view of the foregoing discussion, we are not able to hold that the High Court is not right in holding that the document in question is a lease and not a mortgage.
In the result the appeal is dismissed.
We will, however, make no order as to costs.
P.B.R. Appeal dis missed.

dataset_name: IN-Abs

summary/full:
By a registered deed described as "otti deed" the otti right in a piece of land had been transferred in 1894 to the predecessors in interest of the appellant and of the re spondents by the janmi for a period of 72 years for a cer tain consideration.
The document recited various debts in respect of wet lands.
the debt owed by the executants and cash received from the transferee on that date.
Possession of the land was made over to the transferee giving him the right to enjoy the land.
The other terms of the deed were that the transferee was required to appropriate the income of the property to the interest on the amount advanced, to pay land revenue; and a fixed amount to be paid by the transferee to the transferor annually as "purappad", that is, the net produce or net rent payable to the janmi after deducting interest on advances made by the tenant and the Government tax.
In 1949 the appellant and the respondents divided the property among themselves by metes and hounds and in 1967 the appellant purchased Janman rights in the entire land from the transferors for a small sum including the otti debt with a view to become the owner and therefore a mortgagor and thus get compensation with respect to the 3/4th share also.
When the land was acquired by the Govern ment the appellant claimed the entire compensation, while the respondents contended that the otti deed wan really a lease deed and that as tenants in possession of the land they would be entitled to the entire compensation under the Kerala Land Reforms Act, 1963.
The trial court held that the document was a mortgage while the High Court held it to be a lease.
Dismissing the appeal to this Court, HELD: (1)(a) When there are some mixed elements in an instrument disclosing features of mortgage as well as of lease.
the Court will have to find out the predominant intention of the parties executing the document viewed from the essential aspect of the reality of the transaction.
[701 A] (b) In construing a document it is always necessary to find the intention of the party executing it.
The intention has to be gathered from the recitals and the terms in the entire document and from the surrounding circumstances and how the parties or even their representatives in interest treated the deed in question.
The nomenclature given to a document by the scribe or even by the parties is not always conclusive.
The word 'otti ', used in the document, is not, therefore, of much consequence.
[698 F] In the instant case the document taken as a whole lacks the most essential ingredient of a mortgage, namely, that the transfer of the property has to be made as a security for the debt.
The document stated that fixed rent was to be paid annually in addition to the Government revenue which the transferee was required to pay.
This feature of payment of rent tilts the balance in favour of construing the docu ment as a lease, coupled with the fact that the essence of a mortgage being the transfer of immovable property as securi ty for the debt is absent.
There is no right to sell the property in ease the debt is not repaid.
There is nothing to show that the enjoyment of the usufract was intended to wive out the debt in the long period of occupation.
While there was arrangement to pay a fixed annual "purappad" to the transferor, such a sum was not 697 intended to be utilised towards reduction of the principal debt.
There is sufficient force in the contention of the respondents that the transferors themselves treated this document as a lease, for else, it could not be explained why they would have parted with their Janmam right of the entire property inclusive of the otti debt if they themselves regarded this document as an instrument of mortgage.
(2) The High Court was, however, wrong in holding that where the document was of a composite character disclosing features of both mortgage and lease it must be taken as a lease.
[700 H] Later Full Bench decision in Velayudhan Vivekanandan vs Ayyappan Sadasivan, I.L.R. [1975] 1 Kerala 166, approved.


judgement:
Appeal No. 190 of.1976.
Appeal by special leave from the judgment and order dated 8 8 1975 of the Allahabad High Court in Civil Revision No. 1004/74.
S.C. Manchanda and M.L. Jain, for the appellants.
O.P. Malhotra, N.S. Das Bahl, Y.P. Chadha and Sat Pal, for the respondent.
The Judgment of the Court was delivered by RAY, C.J.
This appeal is by Special Leave from the judgment dated 8 August, 1975 of the High Court of Allaha bad.
The appellants are defendants and the respondent is the plaintiff in suit out of which this appeal arises.
The plaintiff 's suit is for a decree for Rs. 1,30,000/ on the cause of action as laid in the plaint.
The suit was instituted sometime in the month of May, 1971.
The defendants filed written statement.
Two paragraphs of the written statement contained addi tional pleas.
Paragraph 25 states that the agreement dated 7 April, 1967 is appli 729 cable to the transactions in which the plaintiff works as stockist cumdistributor of the defendants.
The defendants further allege in paragraph 25 that the agreement is not applicable to transactions in which the plaintiff acts as a principal, In paragraph 26 the defendants/appellants in the alternative allege that even if agreement dated 7 April, 1967 is applied to the dealings in suit, plaintiff 's posi tion is merely that of an agent of the defendants and as such plaintiff is not entitled to claim any damages from the defendants for non supply of its own goods for sale through the plaintiff.
The defendants/appellants approximately 3 years after the filing of the written statement made an application for amendment of the written statement.
The proposed amendments were for deletion of paragraphs 25 and 26 and for substitu tion of two new paragraph 25 and 26.
The proposed amendment in para 25 was that by virtue of the agreement the plaintiff was appointed a mercantile agent and the plaintiff acted in that capacity in placing orders on the defendants.
The defendants further denied the allegation of the plaintiff that the plaintiff placed orders with the defendants in the plaintiff 's capacity as a purchaser.
The defendants also alleged that the plaintiff throughout acted as an agent of the defendants.
In paragraph 26 of the proposed amendment it was alleged by the defendants that being a mercantile agent and an agent of the defendants in accordance with the terms of the agreement, the plaintiff has no locus standi to file the suit.
The trial court rejected the application of the defend ants for amendment.
One of the reasons given by the trial court is that the defendants wanted to resile from admis sions made in paragraph 25 of the written statement.
The trial court said that "the repudiation of the clear admis sion is motivated to deprive the plaintiff of the valuable right accrued to him and it is against law." The trial court held the application for amendment to be not bonafide.
The High Court on revision affirmed the judgment of the trial court and said that by means of amendment the defend ants wanted to introduce an entirely different case and if such amendments were permitted it would prejudice the other side.
The decision of the trial court is correct.
The defend ants cannot be allowed to change completely the case made in paragraphs 25 and 26 of the written statement and substitute an entirely different and new case.
It is true that inconsistent pleas can be made in plead ings but the effect of substitution of paragraphs 25 and 26 is not making inconsistent and alternative pleadings but it is seeking to displace the plaintiff completely from the admissions made by the defendants in the written statement.
If such amendments are allowed the plaintiff will be irre trievably prejudiced by being denied the opportunity of extracting the admission from the defendants.
The High Court rightly rejected the application for amendment and agreed with the trial court.
We are told that the defendants proposed amendments to two other paragraphs of written statement.
These are para graphs 4 and l 9 730 of the written statement.
These amendments were also rightly rejected.
For the forgoing reasons the appeal must fail.
The defendants, appellants cannot be allowed to amend the writ ten statement in the manner suggested.
The two alternative pleas of the defendants as alleged in paragraphs 25 and 26 of the written statement are there.
The parties will be able to make their rival contentions on the pleadings as to the issues to be raised.
The defendants wish to raise issues on those paragraph 25 and 26.
Counsel for the plaintiff states that it is open to the defendants to apply for the framing of the issues.
They will be at liberty to do so.
The costs of this appeal will be paid by the appel lants to the respondent.
Record can be sent back to the trial court as early as possible.
S.R. Appeal dismissed.

summary/full:
In a suit for decree for Rs. 1,30,000/ instituted by the respondent/plaintiff in May, 1971, the appellants/de fendants filed their written statement admitting that by virtue of an agreement dated April 7, 1967, the plaintiff worked as their Stockist cum Distributor.
After three years the defendants filed an interlocutory application under Order VI, Rule 17 to amend the written statement by substi tuting paragraphs 25 and 26 with a new paragraph in which they took the fresh plea that the plaintiff was a mercantile agent cum purchaser.
The trial court rejected the said application and the High Court, in revision, affirmed the judgment of the trial court.
Dismissing the appeal by special leave the Court, HELD: It is true that inconsistent pleas can be made in pleadings.
The defendants cannot be allowed to change completely the case and substitute an entirely different and new case.
In the instant case, the effect of substitution of paragraphs 25 and 26 is not making inconsistent and alternative pleadings.
but it is seeking to displace the plaintiff completely from the admissions made by the defend ants in the written statement.
If such amendments are allowed, the plaintiff will be irretrievably prejudiced by being denied the opportunity of extracting the admission from the defendants.
[729 G]