judgement:
Appeal No. 721 of 1976.
(Appeal by Special Leave from the Judgment and Order dated the 27th April 1976 of the Patna High Court in Appeal from Appellate Decree No. 6 of 1974).
Harbans Singh Marwah, for the appellant.
K.K. Sinha, S.K. Sinha and Devi Prasad, for respondents.
The Judgment of the Court was delivered by GOSWAMI, J.
This appeal by special leave is directed against the judgment of the Patna High Court in a second appeal arising out of suit for eviction of the tenant.
Two rooms being shop Nos. 17 and 18 of Modi Building in Commissioner 's Compound, Ranchi, were let out by the plaintiff (respondents herein) on a monthly rental to the. defendant (appellant herein).
We will describe them as the plaintiff and the defendant.
It is common ground that fair rent of Rs. 50/ per month (including water tax) was deter mined for the two, shops by an order of the Rent Control ler under section 5 of the Bihar Buildings (Lease, Rent and Eviction) Control Act, 1947 (briefly the Act) on May 30, 1953.
Later on, certain furniture, such as ' five almirahs and six racks, were also let out by the plaintiff to the defendant on a monthly rental of Rs. 28/ .
A suit was instituted by the plaintiff on April 18, 1966, praying for eviction of the defendant on the ground of non payment of rent of the said two shops and furniture for three months from July to September 1965.
986 The Munsiff, Ranehi, dismissed the suit holding that failure to remit rent for furniture along with rent for the two shops did not amount to default under section 11(1)(d) of the Act.
The Munsiff also held that there was no valid service of notice under section 106 of the Transfer of Property Act.
On appeal the Second Additional Subordinate Judge, Ranchi, reversed the judgment of the trial court and de creed the suit for eviction upholding the ground of default.
The Subordinate Judge held that the plaintiff was entitled to realise rent at the rate of Rs. 78/ per month which included the rent for furniture and hence remittance by the defendant of Rs. 50/ per month was not a valid dis charge of his rental liability and he was a faulter within the meaning of section 11(1)(d) if the Act.
The Subordinate Judge also held that there was no proper service of the notice of eviction.
We are not concerned in this appeal with the question of service of notice.
Since the Subordinate Judge was the final court of facts, it will be appropriate to note the following findings material for our purpose: (1) "I, therefore, decide that the plain tiff was entitled to realise Rs. 50/ as monthly rent.
(2) In view of the evidence of the parties and Ext.
2 I hold that plaintiff had supplied the furniture detailed in Schedule B of the plaint and rent fixed for the same had been Rs. 28/ per month.
(3) The subsequent supply of furniture and that of sufficient value must be construed as a quite independent contract unconnected with the original tenancy . ".
The defendant 's second appeal to the High Court failed. 'The High Court agreed with the first appellate court that the rent for furniture was also lawfully payable under section 11(1)(d) and hence the ground of default of payment of Rs. 78/ per month from July to September 1965 was avail able to the plaintiff.
The High Court also gave an additional reason for sus taining the eviction decree.
There was an order by the Subordinate Judge, in the course of the appeal, under sec tion 11A of the Act directing the defendant to deposit the rent of the premises at the rate of Rs. 50/per month in terms of that Section.
It appears there was some controver sy before the Subordinate Judge as to whether this order under section 11A was complied with or not by the defendant.
The Subordinate Judge, however, repelled the contention of the plaintiff to strike out the defence of the defendant on the ground of non compliance with the court 's order under section 11A in the following terms: "It was argued on behalf of the appel lant (plaintiff) that the defendant had not deposited subsequent rent in spite of direc tion by the court and so this court had to 987 strike out the defence against ejectment.
The defendant had filed the documents to show subsequent deposit in regular way.
So this plea of plaintiff fails".
A second attempt, and this time successfully, was made in the High Court by the plaintiff to.
press the ground under section 11A of the Act to strike out the defendant 's de fence against ejectment.
It is clear from the judgment of the High Court that there was no material, without further enquiry, to reach a conclusion contrary to that of the first appellate court with regard to non compliance with section 11A of the Act.
The High Court, therefore, allowed parties to produce some documentary evidence and relying upon the same held as follows: "Learned Advocate appearing for the appellant (defendant) contended that inasmuch as the delay in depositing the money in the Bank occasioned on account of the default of the officers of the court, no penalty should be imposed on the appellant (defendant).
Learned Advocate, however, failed to produce any material to.
show as to what detracted the appellant (defendant) to deposit the money himself on 15 3 1974 on the passing of the. challan and what caused the 7handing over the money to.
the Nazir".
In a matter where the first appellate court came to a posi tive finding in favour of the defendant with regard to the non compliance with its order under section 11A, we do not consider that the High Court was right in adopting the course.
it did in a rather unsatisfactory manner to reach a contrary conclusion, for the first time, on a vital and clinching fact about handing over the amount of rent to the Nazir in absence of the latter 's oral testimony.
There is no denial even in the written information furnished by the Nazir that the rent was handed over to him on March 14, 1974.
The matter would have been different if the High Court, in the interest of justice, had called for addition al evidence under order 41, rule 28, Civil Procedure Code, so that the parties would have proper and adequate opportu nity to establish their respective versions including the procedure of the particular court regarding acceptance of deposit in a given situation.
It is true that the High Court could itself permit documentary evidence to be produced before it under order 41, rule 27, but, as we have seen, this course has resulted in great prejudice to the defend ant.
Even the counsel were unable to inform us about the procedure of depositing the money in compliance with the order under section 11A in the court of the Subordinate Judge even after entertaining of additional evidence before the High Court.
In view of the fact that the first appellate court held the deposit of the amount sufficient ' under the law being within the statutory period Laid down under section 11A, we are most reluctant to prefer the contrary conclusion of the High Court on the materials produced before it.
This is particularly so since the High Court itself appears to have accepted the position that the amount was handed over to the Nazir on March 14, 1974, in ' the extract from the judgment quoted 15 206SCI/77 988 above.
The only objection of the.
High Court was that the defendant instead of handing over the amount to.
the Nazir should have "himself ' deposited the amount on March 15, 1974.
Since the money was deposited by the Nazir on May 28, 1974, in absence of a proper enquiry into the matter of delay of deposit at the hands of the Nazir and the reasons for it, the High Court was not right, in second appeal, to penalise the defendant by striking out his defence against ejectment.
The second ground relied upon by the High Court for decreeing the plaintiffs eviction suit, therefore, fails.
Further section 11 describes the circumstances under which eviction of tenants can take place.
Under that section a tenant shall not be liable to eviction except in execution of a decree passed by the court on one or more of the grounds specified therein.
Section 11A which was inserted by amendment by Bihar Act 16 of 1955 reads as follows: "Deposit of rent by tenants in suits for ejectment.
If in a suit for recovery of possession of any building the tenant contests the suit, as regards claim for ejectment, the landlord may make an application at any stage of the suit for order on the ten, ant to deposit month by month rent at a rate at which it was last paid and also the arrears of rent, if any; and the Court, after giving an oppor tunity to the parties to be heard, may make an order for deposit of rent at such rate as may he determined month by month and the arrears of rent, if any and on failure of the tenant to deposit the arrears of rent within fifteen days of the date of the order or the.
rent at such rate for any month by the fifteenth day of the next following month, the Court shall order the defence against ejectment to be struck out and the tenant to be placed in the same position as if he had not defended the claim to ejectment.
The landlord may also apply for permission to withdraw the deposited rent without prejudice to his right to claim decree for ejectment and the court may permit him to do so.
The Court may further order recovery of cost of suit and such other com pensation as may be determined by it from the tenant".
It is submitted by the defendant that an order under section 11A can be passed only by the trial court.
We are, however, unable to accept this position, since appeal is a continuation of the suit.
The advantage which is given to the landlord under section 11A for the purpose of realisa tion of the arrears of rent pendente lite which is in the nature of lawful enforcement of the conditions of tenancy, can be secured by the landlord at any stage of the litiga tion, whether in the trial court or in appeals.
The penalty of striking out defence for non compliance of an order under section 11A has to he kept distinct from the grounds of eviction permitted under section 11 of the Act.
The only ground that remains for consideration is wheth er the defendant defaulted m the payment of rent from July to September, 1965.
If it were merely a finding of fact by the first appellate court 989 there would be nothing wrong for the High Court to dismiss the second appeal.
The question, however, assumes a legal complexion even on the findings of facts of the first appel late court.
The first appellate court found that rent for the premises was Rs. 50/. per month and there was no default of that rent at any time.
The first appellate court found that the rent of Rs. 28/ per month for the furniture was a subject matter of "subsequent supply" and "a quite independ ent contract 'unconnected with the original tenancy".
It, however, found that since the same was not paid by the defendant during the months in question along with the rental of Rs. 50J per month for the premises, the defendant was a defaulter within the meaning of section 11 (1)(d) of the Act.
The High Court has accepted this legal conclusion of the Subordinate Judge.
We are, however, unable to accept the above legal position of the defendant 's default in this case on the finding of facts set out above.
Rent has been always Rs. 50/ per month for the premises after the same was fixed by the Rent Controller under section 5 of the Act as far back as 1953.
The parties having been already before the Rent Controller for fixation of fair rent of the premises, the plaintiff could not alter that fixed rent without order of the Rent Controller.
Section 4 of the Act provides that "notwith standing anything contained in any agreement or law to the contrary, it shall not be lawful for any landlord to.
in crease, or claim 'any increase in, the rent which is payable for the time being, 'in respect of any building except in accordance with the provisions of this Act".
The two shops, which are building for the purpose of section 2(an) of the Act, were rented out as an unfurnished building.
This amount of rent of Rs.50/ was determined by the Rent Con troller as fair rent under section 5 of the Act.
It is the default in the payment of this rent fixed by the Rent Con troller which will furnish a ground for eviction under section 11(1)(d) of the Act.
Default of the furniture rent agreed by the defendant subsequent to the lease cannot be brought within the mis chief of section 11(1)(d) to entitle the landlord to a decree for eviction.
On the findings of the first appellate court the furniture rent remains di vorced from the rent of the building under the original demise.
Even if the furniture be returned, the lease for the building in this case will not be affected.
The plaintiff submits that since the definition of build ing includes furniture the rent becomes consolidated 'and the defendant was liable to pay the total amount of Rs. 78/ and any default for two months to pay the consolidated rent will attract sections 11(1)(d) of the Act.
The plaintiff further submits that since the furniture rent is the rent agreed between the parties there was no occasion nor legal requirement to approach the Rent Controller for redetermina tion of the rent under section 7 of the Act.
We are unable to accept the above submission.
Any alteration of the lair rent fixed by the Rent Controller either by improvement of the building or by addition of furniture to the building will have receive the imprimatur of the Rent Controller.
Section 7, inter alia, 990 provides that if, at.
any time after the fair rent of a building has been determined, it appears to the Rent Con troller that subsequent to such determination some addition or improvement has been made to the building at the land lord 's expense, the Controller may redetermine the .fair rent of the building.
There is no legal impediment if the parties, landlord and tenant, approach the Controller and by consent obtain an order from the Controller fixing the revised rent which is admissible under the Act.
Any other course is bound to lead to mal practices and unholy devices deterimental to the interests of the tenants.
No enhance ment of fair rent fixed by the Rent Controller is legally permissible except in accordance with the provisions of the Act.
Default of payment of any rent, in excess of the fair rent fixed, if without recourse to the procedure under the Act, will not entail a ground for eviction under section 11(1)(d) of the article The High Court, and earlier the Addi tional Subordinate Judge, therefore, committed an error of law in accepting the ground of default under section 11 (1) (d) on a wrong appreciation of the legal position on the facts found by the first appellate court.
There was, there fore, no basis for granting decree for eviction under sec tion 11(1)(d) of the Act.
In the result the judgment of the High Court is set aside and the judgment and the decree of the Munsiff dis missing the suit stand restored.
The appeal is allowed with costs.
P.B.R. Appeal allowed.

summary/full:
Section 11 of the Bihar Buildings (Lease, Rent and Eviction) Control Act.
1947 provides that a tenant shall not be liable to eviction except in execution of a decree passed by the Court on one or more of the grounds specified there in.
Under section 11A, if in a suit for recovery of possession of any building the tenant contests the suit, the Court may make an order for deposit of rent and arrears, if any, and on failure to deposit the arrears within fifteen days of the date of the order, the Court shall order the defence against ejectment to be struck out.
The plaintiff (respondent) let out two rooms of his premises to the defendant (appellant) at a rent fixed by the Rent Controller under section 5 of the Act.
Sometime later, the plaintiff let out some furniture to the defendant at a mutually agreed rent.
The plaintiff 's suit for eviction of the defendant on the ground of non payment of rent for three months was dismissed by the trial Court holding that failure to pay the rent of furniture along with the rent of the premises did not amount to a default under section 11(1)(d) of the Act.
On appeal, the Subordinate Judge held that non payment of rent of furniture along with the rent of the premises was a default within the meaning of section 11(1)(d).
The High Court upheld the decision of the Subordinate Judge.
On the question of deposit of rent under section 11A, the Subor dinate Judge held that the defendant had filed documents to show subsequent deposit in a regular way.
On the other hand, the High Court came to the conclusion that the defend ant failed to produce any material to show as to what de terred him from "depositing the money himself on the passing of the challan and what caused the handing over of the money to the Nazir.
" On this ground, it allowed the plaintiff 's suit.
Allowing the appeal, HELD: The High Court and the Subordinate Judge committed an error of law in accepting the ground of default under section 11(1)(d) on a wrong appreciation of the legal position on the facts found by the first appellate Court.
There was, therefore, no basis for granting a decree for eviction under section 11(1)(d) of the Act.
[990C] 1.
(a) It is the default in the payment of rent fixed by the Rent Controller which will furnish a ground for eviction under section 11(1)(d).
Section 4 of the Act provides that notwithstanding anything contained in any agreement or law to the contrary, it shall not be lawful for any landlord to increase, or claim any increase in, the rent which is pay able for the time being, in respect of any building except in accordance with the provisions of the Act.
[989E F] In the instant case, the Rent Controller having fixed the rent of the premises, the plaintiff could not alter that rent without an order of the Rent Controller.
Default of the payment of furniture rent agreed to by the defendant subse quent to the lease of the premises could not be brought within the mischief of section 11 (1) (d) to entitle the landlord to a decree for eviction.
The furniture rent remains di vorced from the rent of the building under the original demise.
[989D &P] (b) Any alteration of the fair rent fixed by the Rent Controller will have to receive the imprimatur of the Rent Controller under section 7.
There is no legal impediment if the parties approach the Controller and by consent obtain an order from the Controller fixing the revised rent admissible under the Act.
No 985 enhancement of fair rent is legally permissible except in accordance with the provisions of the Act.
Default of payment of any rent in excess of the fair rent fixed, if without recourse to the Procedure under the Act, will not entail a ground for eviction under section 11(1)(d) of the Act.
[990A B] The penalty of striking out the defence for non compli ance of an order under s.11A is district from the grounds of eviction permitted under section 11.
[988H] 2.
The contention of the defendant that an order under s.11A could be passed only by the trial Court is without force because an appeal is a continuation of the suit.
The advantage given to the landlord under section 11A for the purpose of realisation of the arrears of rent pendente lite can be secured by him at any stage of the litigation, whether in the trial Court or in appeal.
[988G] 3.
Where the first appellate court came to a positive finding of fact in favour of the defendant, the High, Court was wrong in adopting a different course to reach a contrary conclusion for the first time on a vital fact.
The matter would have been different if the High Court had called for additional evidence under 0.41, r. 28, C.P.C.
But the course adopted by the High Court has resulted in great prejudice to the defendant.
[987E F] In the instant case the High Court itself had accepted that the amount of rent was handed over to the Nazir but the objection was that the defendant, instead of handing over the amount to the Nazir, should have himself deposited it.
In the absence of a proper enquiry into the matter of delay of deposit by the Nazir the High Court was not right in second appeal to penalise the defendant by striking out his defence against ejectment.
[988B]


judgement:
ivil Appeal No. 1252 of 1976.
Appeal by special Leave from the Judgment and Order dated 13 8 1975 of the Allahabad High Court in Second Appeal No. 179/ 75.
K. Gupta, for the Appellant.
S.T. Desai and R.B. Datar for the Respondent.
SHINGHAL, J.
This appeal, by special leave, is directed against the summary dismissal of defendant Piarey Lal 's second appeal on August 13, 1975.
As the leave has been limited to the question of interpretation of clauses (a) and (b) of section 30 of the U.P. Consolidation of Holdings Act, 1953, (hereinafter referred to as the Act), "for the pur pose of deciding whether the liability of the petitioner to specifically perform the contract of sale of the old hold ing was transferred to the new 'chak ' allotted to him on consolidation," it will be enough to state the facts which bear on it.
916 Respondent Hori Lal raised the suit for specific per formance of an agreement dated March 6, 1966, for the sale of six plote of land measuring nine high and six biswas in village Hathiawali, Tehsil Gannaur.
It was alleged in the plaint that Rs. 3000/ were paid by the plaintiff Hori Lal in advance, and the balance of Rs. 2000/was to be paid at the time of the execution of the sale deed, within one year of the agreement.
It was also pleaded that as defendant Piarey Lal refused to execute the ' sale deed, the plaintiff was driven to the necessity of filing the suit for specific performance of the agreement for sale and, in the alterna tive, for the recovery of Rs. 3000/which had been paid as advance.
Defendant Piarey Lal denied the execution of the agreement for sale and the receipt of Rs. 3,000/ , and pleaded that as new plots had been allotted as a result of the consolidation of his holding under the Act, he could not perform the agreement for sale.
The trial court framed issues, inter alia, on questions relating to the execution of the agreement for sale, payment of Rs. 3000/ to the defendant, and the inability of the defendant to perform the contract.
That court held that the plaintiff had proved the agreement for sale and the payment of Rs. 3000/ ' .
It also held that the agreement for sale could be "enforced for plots allotted to the defendant in lieu of plot mentioned in the agreement in consolidation.
" It therefore decreed the suit for specific performance by its judgment dated August 23, 1973.
The Second Additional District Judge, Badaun, upheld the decree, and as the High Court has dismissed the second appeal as aforesaid, defendant Piarey Lal has come to this Court for a redress of his grievance by special leave.
As has been stated, the limited question for considera tion in  this Court is whether the defendant was liable to specifically perform the contract for sale of his old hold ing even after its consolidation and the allotment of a 'chak ' ?
It appears that there was controversy in the Allahabad High Court on the question whether an agreement for sale, in the circumstances of a case like this, was rendered void under section 56 of the Contract Act because of the order of consolidation allotting new plots for the earlier plots in respect of which the agreement for sale had been executed.
A Single Judge of that Court took the view in Sugna and another vs Kali Ram and others(1) that the agreement became void and impossible of performance, and was not saved by section 30 of the Act.
A different view was however taken by another Single Judge in Chetan Singh and others vs Hira Singh and others(1).
The matter was re ferred to a Division Bench in Shanti Prasad vs Akhtar and another.(2) One of the Judges in the Division Bench was the Judge who had given the decision in Chetan Singh 's case.
The Bench held that the duty of the seller to execute the conveyance of the property agreed to be sold, was a liabil ity recognised by law and was enforceable as the liability "relates to the land mentioned in the agreement" and was "transferred to the new 'chak '" under section 30(b) of the Act.
The decision in Shanti Prasad 's case formed the basis of the decision of the first appellate (1) (2) (3) 917 court in this case, and that appears to be the reason why the High Court has dismissed the second appeal summarily.
The controversy therefore turns on the proper interpretation of section 30 of the Act which deals with the consequences which ensue on exchange of possession as a result of the allotment of a 'chak ' to the tenure holder.
Clauses (a) and (b) of section 30 of the Act provide as follows, "30.Consequences which shall ensue on exchange of possession.
With effect from the date on which a tenure holder enters, or is deemed to have entered into possession of the chak allotted to him, in accordance with the provi sions of this Act, the following consequences shall ensue (a) the rights, title, interests and liabili ties (i) of the tensure holder entering, or deemed to have entered, into possession, and (ii) of the former tenure holder of the plots comprising the chak, in their respective original holdings shall cease; and (b) the tenure holder entering into pos session, or deemed to have entered into pos session, shall have in his chak the same rights, title, interests and liabilities as he had in the original holdings together with such other benefits of irrigation from a private source, till such source exists, as the former tenure holder of the plots compris ing the chak had in regard to them.
" It would thus appear that while clause (a) deals with the rights, title, interests and liabilities of the tenure holder entering into possession of the 'chak ', as well as of the former tenure holder of the plots comprising the 'chak ', in their respective original holdings, and provides that those rights, title, interests and liabilities shall "cease", clause (b) provides that the tenure holder entering into possession of the 'chak ' shall have, in that 'chak ', the same rights, title, interests and liabilities "as he had in the original holdings.
" The expression 'chak ' has been defined in section 3(1 A) of the Act to mean "the parcel of land allotted to a tenure holder on consolidation."
The two clauses therefore are quite simple and clear, and ' do not raise any real problems of interpretation, but the question is whether there is justification for the argument, in the facts and circumstances of this case, that the expression "liabilities" would cover the liability of the seller (i.e. the defendant), under the aforesaid agreement for the sale of his original holding ?
As is obvious, clause (a) of section 30 does not bear on the question in controversy because it only provides for the cessation of the rights, title, interests and liabilities both of the tenure holder to whom the 'chak ' has been allot ted, and of the former tenure holder 918 of the plots comprising the 'chak ' in their respective original holdings".
There is no controversy that this was so in the present case.
It is also no body 's case that the rights, title, and interests of the tenure holder entering into possession of his 'chak ' have any bearing on the con troversy relating to the specified performance of the agree ment for sale, for all that has been urged before us is that the defendant, as the tenure holder of the new holding or 'chak ' had the same "liabilities" in that 'chak ' as he had in the original holding.
What therefore remains for consider ation is whether, on the defendant 's entering into posses sion of his new land or 'chak ', there was the same liability "in" the new land as "in" the original holding.
It there fore to be examined whether, by virtue of the agreement for sale, any liability accrued "in" the original holding ? A cross reference to section 54 of the Transfer of Property Act shows that a contract for the sale of immovable property is a contract that a sale of such property shall take place on terms settled between the parties.
It has however been specifically provided in ' the section that such a contract "does not, of itself, create any interest in or charge on such property.
" It would therefore follow that the agreement for Sale in the present case did not give rise to any interest "in" the original holding of the defendant as the tenure holder.
That being so, there could be no occasion for the transfer of any such "liability in" the new land or 'chak ' of the defendant so aS to attract clause (b) of section 30 of the Act.
In fact what the defendant, was bound to do under section 55(1)(d) of the Transfer ' of Property Act was to execute a proper conveyance of "the property" which was the subject matter of the contract for sale, and not of any other property.
So when he lost that property as a result of the scheme of consolidation and his rights, title, interests ceased in that property by virtue of clause (a) of section 30 of the Act, the agreement for sale became void within the meaning of section 56 of the Contract Act, and it is futile to urge that they were saved by clause (a) or clause (b) of section 30 of the Act.
We have gone through the decision in Shanti Prasad 's case (supra), but we find that while the High Court took note of the fact that the right 's, title, interests and liabilities of the tenure holder "in" his original holdings ceased, and he acquired the same rights, title, interests and liabilities "in" the 'chak ' allotted to him, it lost sight of the significance of the word "in", and the afore said provisions of section 54 of the Transfer of Property Act, and disposed of the controversy before it by raising the other question whether "the tenureholder" was subject to any liability "in respect of" his old holding.
That was why it fell into the error of holding that a liability was created in the original holding of the defendant, and was transferred his 'chak ' on his entering into its possession.
As has been shown, that was an erroneous view which has to be rectified.
It may be mentioned that counsel for the respondent tried to argue that the defendant was bound to execute a proper conveyance of his original holding, which was the subject matter of the agreement of sale, because, that holding had been substituted" by the 'chak '.
919 He also tried to argue that the 'chak ' allotted to the defendant by way of consolidation of his holding was the same as his original holding so that there was no occasion to invoke section 30 of the Act.
Counsel could not however support his argument by reference to the law, or the facts of the case.
Moreover he was unable to show how he could raise any such argument when the special leave had been limited to the interpretation of clauses (a) and (b) of section 30 of the Act.
It would thus appear that the plaintiff respondent 's suit for specific performance of the agreement for sale was liable to dismissal, and the High Court as well as the courts below erred in taking a contrary view.
Counsel for the appellant has however frankly stated at the bar that the appellant would be willing to refund the sum of Rs. 3000/ along with interest at 6 per cent per annum from the date of payment.
The appeal is allowed with costs, the impugned judgment of the High Court is set aside, and the suit of plaintiff respondent Hori Lal is dismissed in so far as it relates to specific performance of the agreement for sale.
It is however ordered that the defendant shall repay Rs. 3000/ to the plaintiff, along with interest at 6 per cent per annum from the date of payment, within three months from today.
M.R. Appeal allowed.

dataset_name: IN-Abs

summary/full:
The appellant Piarey Lal had agreed to sell his original holding to Hori Lal but later refused to do so on the ground that his property which was the subject matter of the con tract had been consolidated under the U.P. Consolidation of Holdings Act, 1953, and it was impossible to perform the agreement.
Hori Lal filed a suit for specific performance contending that the agreement for sale had created a liabil ity for Piarey Lal for the purpose of section 30(b) of the Act, and the same was transferred to the new plot or "chak" allotted to him as a result of the consolidation.
The suit was decreed by the Trial Court and Piarey Lal 's appeals before the District Court and the High Court were dismissed.
Allowing the appeal by Special Leave the Court, HELD: By virtue of section 54 of the Transfer of Property Act, the agreement for sale did not give rise to any inter est "in" the original holding of the defendant as the ten ure holder.
There could thus be no occasion for the transfer of any such , 'liability" in his new land or "chak" so as to attract clause (b) Of section 30 of the Act.
When he lost that property as a result of the scheme of consolida tion, the agreement for sale became void.
[918 C E] Sagna & Anr.
vs Kali Ram & Ors. , approved.
Shanti Prasad vs Akhtar & Anr.
and Chettan Singh & Ors.
vs Hira Singh & Ors. overruled.


judgement:
: CrimitIal Appeal No. 22 of 1976.
(Appeal by Special Leave from the Judgment and Order dated the 12th September 1975 of the Punjab and Haryana High Court in Criminal Revision No. 314 of 1973).
R.L. Kohli, for the appellant.
O.P. Sharma, for respondent.
The Judgment of the Court was delivered by BHAGWATI, J.
We made an order on 28th January, 1977 immediately after the conclusion of the hearing of the appeal and by that order, we allowed the appeal and set a 'side the order of conviction and sentence recorded against the appellant.
We now proceed to give our reasons for making that order.
The appellant was tried and convicted by the Judicial Magistrate, 1st Class, Ludhiana for offences under sections 468, 411 and 420 read with section 109 of the Indian Penal Code.
He carried an appeal to the Sessions Court but the appeal was unsuccessful.
A further revision application followed but that too was rejected by the High Court.
Hence the present appeal by special leave. 1009 The facts giving rise to the prosecution are set out in great detail in the judgment of the High Court and hence it is not necessary to reiterate them.
It is enough to state that 354 black iron sheets worth Rs. 17,701.91 were des patched by Hindustan Steel Plant from Munda near Bhilai to M/s. Shiv Rattan Mohatta at Bikaner in Wagon No. SEKC 4075.
The Railway Receipt in respect of this consignment was sent to M/s Shiv Rattan Mohatta through the State Bank of Bikaner and M/s Shiv Rattan Mohatta took delivery of the Railway Receipt against payment to the Bank.
The consignment, however, did not reach Bikaner and on enquiries being made, it was found by the Railway authorities that the wagon containing the goods had reached Agra en route Bikaner but at some point of time before it reached Agra, the labels attached to the wagon were either changed or removed and the entry in the vehicle summary guidance was also tempered with and Changed to exhibit LAR indicating that the wagon was des patched from Lalitpur and its destination was Ludhiana.
The result was that wagon, instead of going to Bikaner, was carried to Ludhiana and it reached there on 1st August, 1964.
The prosecution case was that round about this time, one person.
styling himself .as
Umedi Lal, resident of Agra, approached a firm called M/s Jindal Khemka & Co. which was carrying on business as dealers in iron sheets in Ludhi ana.
Umedi Lal produced a Railway Receipt exhibit PW 10/A before Joginder Lal and Ram Nath, partners of this firm and offered to sell the goods covered by this Railway Receipt to M/s Jindal Khemka & Co. This Railway Receipt was a forged document written out on a blank form stolen from the Railway Receipt Book maintained at a railway station called Banmore.
Joginder Lal went to Ludhiana Railway Station with this Railway Receipt on 2nd August, 1964 for taking delivery of the goods and presented the Railway Receipt to Teja Singh Sodhi, who was the Goods Clerk on duty at the goods sheet.
Teja Singh entertained some doubt about the genuineness of the Railway Receipt and he told Joginder Lal that the Rail way Receipt appeared to be defective.
In view of this, Joginder Lal, according to the prosecution, returned the Railway Receipt to Umedi Lal on the following day when he came to enquire about the receipt of the goods.
Umedi Lal then went to the railway station accompanied by one Shoja Ram, who was a Washing Soap dealer in Ludhiana, and present ed the Railway Receipt to Teja Singh Sodhi for taking deliv ery of the goods.
Curiously enough, though only a day before, Teja Singh Sodhi had entertained doubt about the genuineness.
of the Railway Receipt, his doubts suddenly seemed to have vanished and he delivered the consignment of 354 black iron sheets which had come in wagon No. SEKG 40765 to Umedi Lal.
It does not appear from the record us to where this consignment of 354 black iron sheets was kept by Umedi Lal, but out of it, 200/250 iron sheets Were taken to the premises of M/s Jindal Khemka & Co. for sale On commis sion basis.
Joginder Lal and Ram Nath were, however, ac cording to the prosecution, advised by some broker that since iron sheets were controlled items, they should insist on production of a bill showing purchase of these iron sheets by Umedi LaI. Joginder Lal and Ram Nath according asked Umedi Lal to produce 1010 the bill in connection with the purchase of these iron sheets, but Umedi Lal pleaded his inability to do so on the ground that these iron sheets represented 'surplus goods remaining after execution of a works contract by his firm of M/s Bansidhar & Sons of Lalitpur.
When this talk took place between Joginder Lal and Ram Nath on the one hand and Umedi Lal on the other, Umedi Lal was, according to the prosecu tion, accompanied by the appellant who was at the material time employed as a Guard in the Northern Railway.
Since Joginder Lal and Ram Nath refused to purchase the iron sheets, Umedi Lal removed the same in three carts and passed a receipt in, respect of the same in favour of M/s Jindal Khemka & Co. The prosecution case was that at this time also Umedi Lal was accOmpanied by three or four persons who included the appellant.
It appears that since M/s Shiv Rattan Mohatta did not re ceive delivery of the iron sheets consigned to them in Wagon No. SEKC 40765, they lodged a claim with the Railway Admin istration and this led to enquiries being made by the Rail way Administration.
Ultimately, the Railway Administration filed a first information report with the Special Police Establishment, Ambala Branch, and following upon the first information report, the police started investigation.
During the course of investigation, the police entertained suspicion against the appellant and they obtained from 'the appellant specimen handwritings PW 27/37 to PW 27/57 for the purpose of comparing them with the handwriting on the Rail way Receipt exhibit PU 10/A which was a forged document.
The Police also requested the Railway authorities to direct the appellant and one Ameeruddin, who was also an employee of the Railway Administration, to subject themselves to test identification parade at the hands of the Special Railway Magistrate, Patiala.
The appellant and Ameeruddin accord ingly went to Patiala and they were taken to the Central Jail and there, a test identification parade was held, at which Joginder Lal failed to identify the appellant but Ram Nath, after some hesitation, managed to identify him.
The specimen handwritings of the appellant Exs.
PW 27/ 37 to PW 27/57 were sent, along with the Railway Receipt exhibit PW 10, 'A, to B. Lal, Government Examiner of Questioned Docu ments and B. Lal gave his opinion that the writing marked at A1 on the Railway Receipt exhibit PW 10/A and the specimen handwritings PW 27/37 to 27/57 were all by One and the same person.
The appellant was, on the basis of this material, put up for trial before the Judicial Magistrate, 1st Class, Ludhiana.
The learned Magistrate convicted the appellant and his conviction was maintained in appeal as well as revision.
The question is whether the material on record was sufficient to justify the conviction of the appellant.
We have carefully gone through the evidence but we find it difficult to sustain the conviction of the appellant.
The only two pieces of evidence against the appellant are the evidence of B. Lal, the handwriting expert, who identi fied the handwriting on the forged Railway Receipt exhibit PW 10/A as that of the same person who wrote the specimen signatures Exs.
PW 27/37 to PW 27/57 and the evidence show ing the presence of the appellant with Umedi Lal at Ludhiana when the talk took place between Umedi Lal on the one 1011 hand and Joginder Lal and Ram Nath on the other in connec tion with the sale of the iron sheets.
We do not think that these two pieces of evidence are at all satisfactory and in any event on conviction can be rounded on them.
In the first place, it may be noted that the appellant was at the material time a Guard in the employment of the Rail way Administration with his Headquarters at Agra and he had nothing to do with the train by which Wagon No. SEKG .40765 was despatched from Munda to Bikaner, nor with the train which carried that wagon from Agra to Ludhiana.
He was not a Guard on either of these two trains.
There was also no evidence to connect the appellant with the theft of the blank Railway Receipt at Banmore Station.
It is indeed difficult to see how the appellant, who was a small employee in the Railway Administration,. could have possibly come into possession of the blank Railway Receipt from Banmore Station which was not within his jurisdiction at any time.
It is true that B. Lal, the handwriting expert, deposed that the handwriting on the forged Railway Receipt exhibit PW 10/A was that of the same person who wrote the specimen handwrit ings exhibit 27/37 to 27/57, that is the appellant, but we think it would be extremely hazardous to candemn the appel lant merely on the strength of opinion evidence of a hand writing .expert.
It is now well settled that expert opinion must always be received with great caution and perhaps none so with more caution than the opinion of a handwriting expert.
There is a profusion of precendential authority which holds that it is unsafe to base a conviction solely on expert opinion without substantial corroboration.
This rule has been universally acted upon and it has almost become a rule of law.
It was held by this Court in Ram Chandra vs State(1) that it is unsafe to treat expert hand writing opinion as sufficient basis for conviction, but it may be relied upon when supported by other items o[ internal and external evidence.
This Court again pointed out in Ishwari Prasad vs Md. Isa(2) that expert evidence of hand writing can never be conclusive because it is, after all, opinion evidence, and this view was reiterated in Shashi Kumar vs Subodh Kumar (3) where it was pointed out by this Court that expert 's evidence as to handwriting being opinion evidence can rarely, if ever, take the place of substantive evidence and before acting on such evidence, it would be desirable to consider whether it is corroborated either by clear_ direct evidence or by Circumstantial evidence.
This Court had again occasion to consider the evidentiary value o[ expert opinion in regard to handwriting in Fakhruddin vs State(4) and it uttered a note of caution pointing out that it would be risky to found a conviction solely on the evi dence of a handwriting expert and before acting upon such evidence.
the court must always try to see whether it is corroborated by other evidence, direct or circumstantial.
It is interesting to note that the same view is also echoed in the judgments of English and American courts.
Vide Gurney vs Langlands(5) and Matter of Alfred (1) AIR 1957 SC 381.
(2) ; (3) AIR 1964 SC 529 (4) AIR1967 SC 1326 (5) 1822, 5B & Qld 330 1012 Fogter 's Will(1).
The Supreme Court of Michigan pointed out in the last mentioned case: Every one knows how very unsafe it is to rely upon any one 's opinion concerning the nice ties of penmanship Opinions are necessarily evil" and may be valuable, but at best this kind of evidence, vii".
We need not subscribe to the extreme view expressed by the Supreme Court of Michigan, but there can be no doubt that this type of evidence being opinion evidence, is by its very nature, weak and infirm and cannot of itself form and the basis for a conviction.
We must, therefore, try to see whether,in the present case, there is, apart from the evi dence of the hand.
writing expert B. Lal, any other evidence connecting the appellant with the offence.
The only other evidence which was sought to be relied upon on behalf of the prosecution was that showing the presence of the appellant with Umedi Lal at Ludhiana when there was talk between Umedi Lal on the one hand and Jogind er Lal and Ram Nath on the other in regard to the sale of the iron sheets.
But this evidence is wholly unsatisfactory and does not inspire any confidence at all.
In the first place, it is difficult to see why the appellant should have one with Umedi Lal to Ludhiana for the purpose of selling the iron sheets.
The appellant was a mere railway Guard and even if it be assumed for the purpose of argument that his service were utilised for the purpose of forging the railway receipt exhibit PW 10/A, there is no reason why he should have been persuaded to accompany Umedi Lal to Ludhiana.
It is true that the appellant was on leave from 1st August, 1964 to 16th August, 1964 but from that circumstance, it does not follow that he had gone to Ludhiana in connection with the sale of the iron sheets.
Even according to the prosecution, the appellant was in Ludhiana only on 6th August, 1964 and that would not necessitate the appellant taking such a long leave from 1st August, 1964 to 16th August, 1964.
The leave taken by the appellant from 1st August, 1964 to 16th August, 1964would not necessarily support the inference that the appellant was present in Ludhiana on 6th August, 1964.
The appellant might have taken this long leave for some other purpose.
Moreover, it may be noted that Joginder Lal could not identify the appel lant at the rest identification parade held at the Central Jail, PatiaIa.
Ram Nath, of course, did identify the appel lant but that was after some hesitation. 'The Special Rail way Magistrate (PW 39) stated in cross examination that Ram Nath took some time in identifying the appellant.
The appellant in fact raised an objection before the Special Railway Magistrate, prior to the test identification parade, that he had a. doubt that he had been shown to the witnesses by the police.
The identification made by Ram Nath at the test identification parade can therefore.
inspire any confi dence in the mind of the Court.
Moreover, it is diffi cult to imagine how Ram Nath who is supposed to have seen the appellant for the first time on 6th August, 1964 on a stray occasion could identify him at a test identification parade held after about two and a half years on 25th Febru ary, 1967.
It not as if the appellant had any direct talk with Rain Nath on this 1013 solitary occasion.
The appellant was supposed to have merely accompanied Umedi Lal along with one or two other persons and it is impossible to believe that Ram Nath could have remembered his fact after such a long period as two and a half years.
We are not ' at all satisfied that the appel lant was with Umedi Lal when the latter is supposed to have negotiated with Joginder Lal and Ram Nath in connection with the saIe of the iron sheets.
It is indeed strange that the police could not trace Umedi Lal or even Bhoja Ram.
Bhoja Ram, according to the prosecution evidence, was frequently going to the Railway Station for taking delivery of goods on behalf of M/s Jindal Khemka & Co. and yet he could not be caught hold of by the police.
That is indeed a sad commentary on the efficiency of the police.
We fail to understand why the police did not try to find out what happened to the iron sheets where they went from the shop of M/s Jindal Khemka & Co. If the prosecution story is true, these iron sheets were removed by Umedi Lal from the shop of M/s Jindal Khemka & Co. and they must have been removed by some cartmen.
We find it difficult to believe that the police could not have pursued the matter and traced the iron sheets by making enquiries from the cartmen.
It is also intriguing why the police did not try to find out the where.
abouts of Bhoja Ram.
SureIy he could not have disappeared into the thin air.
It is not right for us to speculate but we cannot help feeling that M/s Jindal Khemka & Co. were not absolutely innocent in so far as this transaction is concerned.
Umedi Lal was a stranger to both Joginder Lal and Ram Nath and yet, accord ing to the prosecution case, Umedi Lal handed over the forged Rail.
way Receipt PW 10/A to Joginder Lal for the purpose of taking delivery of the goods without insisting on payment and even without settling the bargain.
The Railway Receipt Ex PW 10/A was found to be defective by Teja Singh Sodhi, Goods Clerk on 2nd August, 1964 and yet on the next day, strangely enough, he was, for some inexplicable reason, persuaded to accept the same Railway Receipt and deIivered the iron sheets against it at the instance of Bhoja Ram, who was a person frequently acting on behalf of M/s Jindal Khemka & Co. Then again, Joginder Lal and Ram Nath are supposed to have returned the iron sheets to Umedi Lal because some broker told them that they should insist on the production of a bill of purchase by Umedi Lal which Umedi Lal was unable to do.
This also appears to be a rather 'ngenuous story made up by Joginder Lal and Ram Nath for the ose of showing as if the iron sheets did not remain with them.
indeed strange why they should have taken a receipt from Umedi ,7hen the latter removed the goods from their shop.
The iron belonged to Umedi Lal and if Umedi Lal took them back from der Lal and Ram Nath, there was no reason why the latter d have insisted on taking a receipt from him.
Presumably the .t was fabricated for the purpose of support ing their case that id not keep the iron sheets with them, because otherwise they have nO account for them.
It does appear to us prima facie edi Lal was a fictitious person and the iron sheets were taken of by M/s Jindal Khemka & Co. for themselves on the 1014 strength of the forged Railway Receipt PW 10/A.
But some how or the other, due to police inaction, they appear to have escaped and a small man like the appellant seems to have been made a scape goat.
We are of the view that the prosecution has totally failed to bring some the charge against the appellant and hence our order dated 28th January, 1977 setting aside the order of conviction and sentence recorded against the appel lant and acquitting him of the offences charged against him.
S.R. Appeal allowed.

summary/full:
A certain consignment of iron sheets despatched by M/s. Hindustan Steel Plant EXBNDM (Banda Bunda, near Bhilai) to Bikaner in wagon No. SEKG 4875 was carried to Ludhiana via.
Agra because at some point of time before it reached Agra, the labels attached to the wagons were either changed or removed and the entry in the vehicle summary guidance was also tampered with and changed to EXLAR to LDH indicating that the wagon was despatched from Lalitpur and its destina tion was Ludhiana.
One Umedi Lal, a resident of Agra, approached a firm called M/s. Jindal Khemka & Co. represent ed by its partners Joginder Lal and Ram Nath with a forged railway receipt exhibit PW 10/A written on a blank form stolen from the Railway Receipt Book maintained at Ban more Railway Station and offered to sell to them the iron sheets covered by the aforesaid consignment sent by M/s. Hindustan Steel Co. Ltd. to Bikaner.
Umedi Lal represented himself as the partner of M/s. Bansi Dhar & Sons.
, Lalitpur_ since the forged RR (to self) bore the name of the consignor as M/s. Bansi Dhar & Sons, Lalitpur.
After negotiations when one of the partners, Mr. Joginder Lal presented the RR and claimed the goods, a goods clerk on duty, by name Teja Singh Sodhi, entertained a doubt and returned the RR as defective.
Thereafter, Umedi Lal accompanied by one Bhoja Ram, a wash ing soap dealer presented exhibit PW10A himself and obtained the delivery of the goods from the very same goods clerk, Teja Singh, who entertained the suspicion about the RR earlier.
Joginder Lal later on refused to purchase the iron sheets being a controlled item, in the absence of bill of purchase, but, however, took a receipt exhibit PW45/A from Umedi Lal to the effect that the latter has taken back the iron sheets brought by him to their godown.
The appellant, a guard working in the Northern Railway, was stated to have accompa nied and been present on the day i.e., 6 8 1964 when Jogind er Lal asked Umedi Lal to produce the original purchase bill.
On this basis coupled with the circumstances, namely, (a) his absence on leave from 1 8 1964 to 16 8 1964; (b) the tally of his handwriting given before the Police during the investigation with that of exhibit PW10/A as opined by the handwritten expert and (c) his identification by Ram Nath, one of the partners of M/s. jindal Khemka & Co. at the identification parade the appellant was put on trial for the offences under sections 109/420, 411,468, 471 but convicted for offences under sections 468, 411, 109/420 I.P.C. and sentenced to 2 years R.I. with a fine of Rs. 1,000/ or in default to undergo further R.I. for six months under section 468 and to R.I. for one year each under section 411 and 109/420 LP.C. the substantive sentences to run concurrently.
The appeals before the Sessions Judge and the revision before the High Court were dismissed.
Allowing the appeal by special leave, the Court, HELD: (1) It is well settled that expert opinion must always be received with great caution and perhaps none so with more caution than the opinion of a handwriting expert.
It is unsafe to base a conviction solely on expert 's opinion without substantial corroboration.
In the instant case, it would be extremely hazrdous to condemn the appellant merely on the strength of opinion 'evidence of a handwriting ' expert.
[1011C D] Ram Chandra vs State AIR 1957 SC 361; Ishwari Prasad vs Md. Isa ; ; Shashi Kumar vs subodh Kumar AIR 1964 SC 529 and Fakhruddin vs State AIR 1967 SC 1326, reiterated.
1008 Curnev vs Langlande (1622) 5 B & AId.
330; Morllar of Alfred Foster 's Will , quoted with approval.
(2) In the instant case, the circumstance that the appellant was on leave from 1st August 1964 to 16th August 1964 does not lead to the inferences that he had gone to Ludhiana in connection with the sale of iron sheets and that he was present in Ludhiana on 6th August 1964.
The identification by Ram Nath after some hesitation, the improbability of identifying after 21/2 years a person who is supposed to have merely accompanied another only once and the inability of Joginder Lal to identify him all these are circum stances, which militate the prosecution theory of the appel lant 's presence.
No conviction can therefore, be founded on such evidence.
[lO12D A, 1013 A B] (3) In the instant case the various facts, namely, inability of the Police to trace Umedi Lal or even Bhoja Ram who was frequently going to the Railway Station for taking delivery of goods on behalf of M/s. Jindal Khemka & Co. and apprehend them, the passing on of the forged exhibit PW10/A to joginder Lal by Umedi Lal, a stranger without insisting on payment and even without settling the bargain, the delivery of the goods the next day to Umedi La1 by Teja Singh who earlier suspected the genuineness of the RR when presented by Joginder Lal,the return of the iron sheets on the advice of some, broker on the non production by Umedi Lal of a bill of purchase, taking a receipt exhibit PW45/A when Umedi Lal removed back his goods etc.
prima facie indicate that Umedi Lal was a fictitious person and M/s. Jindal Khemka & Co. were not absolutely innocent in so far as this transaction was concerned.
This iron sheets appeared to have been taken delivery of by.
M/s. Jindal Khamka & Co. for themselves on the strength of the forged Railway Receipt No. PWIO/A.
But some how or the other, due to police inaction, they appear to have escaped and a small man like the appellant seems to have been made a scape goat.
The prosecution has totally failed to bring home the charge against the appellant.
[1013C H, 1014 A B] [Their Lordships expressed their dissatisfaction in the way the case was investigated and observed that "it was indeed a sad commentary on the efficiency of the Police".] [1013B C]


judgement:
riminal Appeal No. 447 of 1974.
(Appeal by Special Leave from the Judgment and Order dated the 14th March 1974 of the Delhi High Court in Crimi nal Revision Petition No. 61 of 1974.
Mrs. Urmila Kapoor and Miss Kamlesh Bansal, for the appel lant.
V.C. Mahajan and S.L.Aneja, for respondent.
The Judgment of the Court was delivered by SHINGHAL, J.
This appeal by special leave is directed against the judgment of the Delhi High Court dated March 14, 1974, allowing the revision application of.
respondent Dev Raj Vijh and 'dismissing the appellant 's application dated March 18, 1969, under section 488 of the Code of Criminal Procedure, 1898, hereinafter referred to as the Code.
Appellant Raj Kumari Vijh was married 'to respondent Dev Raj Vijh in Delhi, in June 195 '0.
It is the admitted case of the parties that they were living separately from 1953.
The appellant filed her 999 first application for maintenance under section 488 of the Code, in 1955, but it was dismissed.
The respondent filed an application for divorce, or judicial separation, in 1956 in Aligarh (Uttar Pradesh).
It was ultimately dismissed on appeal on March 29, 1968.
In the meantime the appellant filed a suit against the respondent for recovery of her "stridhen" in Delhi in 1956.
It was decreed on appeal by the Delhi High Court in 1967, for Rs. 6,458/ .
The appel lant gave a notice to the respondent on June 24, 1968, claiming maintenance as a 'deserted wife.
Nothing came out of it and she filed the present application under section 488 of the Code in the .Court of the Delhi Magistrate on March 18, 1969.
It was stated in the application that the appellant had lived with the respondent in Delhi and Aligarh as his legally wedded wife, and thereafter at village Lampur, P.S. Narela, Delhi, towards the end of December 1968, because the respondent visited her there for a settle ment and for non execution of the decree which she had obtained for Rs. 6,458/ on account of her "stridhan".
It was stated in the application that the parties lived at Lampur, as husband and wife and there was cohabitation.
The appellant prayed for an order allowing her Rs. 450/ per month for maintenance ' as the respondent had sufficient means but had neglected or refused to maintain her.
The respondent filed a reply on April 29, 1969 in which, according to the Magistrate, there was no specific denial of the averment that the parties last resided together at Lampur.
An objection was however taken that as the earlier application was dismissed on February 2, 1956, the second application was barred on the principle of res judicata.
An objection was taken to the jurisdiction of the Delhi Court on the ground that the respondent never resided, permanently or temporarily in Delhi.
We have not found it possible to go through the reply because it has been stated by counsel for the parties that the original record has been destroyed.
The Magistrate passed an order for production of evidence.
The respondent thereupon prayed that the question of juris diction may be decided before recording the evidence.
That was not agreed to by the magistrate.
He made an order on November 19, 1969 that the question of jurisdiction must await the recording of the evidence on the whole case.
The respondent did not challenge that order or apply for permis sion to file additional reply.
On the other hand, he asked for the holding of an identification parade for the purpose of showing that some of the appellant 's witnesses did not even know him.
Both the parties led their evidence, al though it appears that the respondent did not like to avail of the opportunity which was given to him to lead evidence on the merits.
He did not even apply for permission to file any ,additional reply when the Magistrate recorded the appellant 's evidence on her application for maintenance as a whole.
Ultimately the Magistrate made his final order on May 21, 1973.
He took the view that there was no specific denial of the appellant 's allegation that the parties last resided together, as husband and wife, in village Lampur, in Delhi, towards the end of December in 1968.
1000 He took notice of the fact that the plea of bar against the maintainability of the second application because of the dismissal of the first application, was not pressed by the respondent and after referring to the entire evidence in details, he reached the conclusion that he had the jurisdic tion to entertain the application, and granted maintenance allowance at the rate of Rs. 125/ per month, with effect from March 18, 1969, along with an order regarding the mode of payment of the arrears.
The respondent applied for a revision of that order, and the Additional Sessions Judge referred the case, to the High Court on November 30, 1973, for dismissal of the application (under section 488 of the Code) on the ground that the Delhi Magistrate had no juris diction to entertain it.
As the High Court has allowed the reference, and dismissed the revision application which was filed by the appellant for an increase in the mainte nance allowance, the appellant has come up to this Court by special leave.
In its impugned judgment dated March 14, 1974, the High Court has recorded the finding that the parties did not reside together at village Lampur, and for that reason it took the view that the Delhi Court had no jurisdiction to entertain the appellant 's application under section 488 of the .Code.
Counsel for the appellant has vehemently urged that the finding of the High Court is incorrect, but as it is a finding of fact, we shall proceed on the assumption that does not call for interference in this appeal.
The question however remains whether section 531 of the Code would be applicable to the case? The High Court has held that the section would not be applicable, and that is why it has passed the impugned order for the dismissal of the application of the appellant under section 488 of the Code.
The High Court has taken that view for the following reasons , (i) The objection as to jurisdiction was raised "right at the first instance by the husband".
(ii) The respondent "specifically reserved his right to file a written reply on merits after the question of jurisdiction was decid ed".
(iii) As the respondent had "reserved his right to lead evidence on merits, it is not a case where the husband deliberately gave up his right to lead evidence on merits . . " (iv) There was "obvious prejudice and failure of justice" the respondent as he never led evidence on the merits.
(v) It was necessary for the appellant to.
prove that the respondent had refused and neglected to maintain her, and that "obviously requires an opportunity to be given to the husband to prove his case,, if it be one, that he has not refused or refuses or neglected to maintain his wife or what his income and means is".
1001 (vi) "Before a decision on merits can be given the husband has the undoubted request (sic) to lead evidence on merits".
(vii) A proceeding cannot be entertained in a court which has jurisdiction by simply taking recourse to section 531 of the Code, when an objection has been taken against main tainability, for otherwise the provision relating to jurisdiction would become nuga tory.
Section 531 "can cure the infirmity after the case has been fought on merits.
" We have examined these grounds, but we are constrained to say that they are not tenable in the facts and circumstances of this case.
Section 531 of the Code reads an follows, "531.
No finding, sentence or order of any Criminal Court shah be set aside merely on the ground that the inquiry, trial or other proceeding in the course of which it was arrived at or passed, took place in a wrong sessions division, district, sub division or other local area, unless it appears that such error has in fact occasioned a failure of justice.
" The section therefore relates to a defect of jurisdiction.
As has been stated by this Court in Purushottamdas Dalmia vs The State of West Bengal(1) those are two types of jurisdic tion of a criminal court, namely, (1) the jurisdiction with respect to the power of the court to try particular kinds of offences, and (2) its territorial jurisdiction.
While the former goes to the root of the matter and any transgression of it makes the entire trial voild, the latter is not of a peremptory character and is curable under section 531 of the Code.
Territorial jurisdiction is provided "just as a matter of convenience, keeping in mind the administrative point of view with respect to the work of a particular court, the convenience of the accused who will have to meet the charge levelled against him and the convenience of the witnesses who have to appear before the Court '.
Sub section (8) of section 488 in fact provides that proceedings under the section "may be taken against any person in any district where he resides or is, or where he last resided with his wife or, as the case may be, the mother of the illegitimate child.
" This therefore is ordinarily the requirement as to the fling of an application under section 488 within the limits of the jurisdiction of the magistrate concerned.
So where a magistrate has the "power ' to try a particu lar.
application under section 488, and the controversy relates solely to his territorial jurisdiction, there should, ordinarily, be no reason why section 5 31 of the Code should not be applicable to the order made by him.
It has therefore to be examined whether there were any such circumstances in this case for which the High Court could justifiably refuse to apply the provisions of section 531.
(1) ; 1002 The first reason why the High Court .has not given the benefit of section 531 to the appellant is that an objection as to the jurisdiction of the Delhi Court was raised by the respondent "right at the first instance.
" Counsel for the respondent has strenuously argued that such.
a benefit will not be available in a case where the magistrate knew that he had no jurisdiction, and persisted in proceeding with the trial under the, impression that section 531 of the Code, would, at any rate, validate his order.
That, according to the counsel, amounted to an order by the magistrate giving the jurisdiction to himself by virtue of section 531.
Reliance in this connection has been placed on Radharani vs Rahim Sardar(1), Sakuntala vs Thirumalayya(2), State vs Tavara Naika(3), Sultan Chand vs Yogindra Nath Bar (4), and Satwant Singh vs Smt.
jaswant Kaur (5).
As is apparent, section 531 does not entitle a magis trate, who is not a magistrate of the class referred to in sub section (1) of section 488, to proceed with an applica tion for maintenance.
In fact even a District Magistrate, a Sub Divisional Magistrate or a Magistrate of the first class will not be entitled to proceed with such an application if he knows that the proceedings do not fall within his juris diction under sub section (8) of section 488.
The true meaning of section 531 is that while it will not uphold an order passed in proceedings wilfully taken in a wrong place, or enable a magistrate to confer jurisdiction on himself when he knows that he has no such jurisdiction, there is no reason why a magistrate, who is otherwise duly empowered to make an order under sub section (1 ) of section 488 of the Code, cannot proceed with an application under that subsec tion for the purpose of deciding whether he has the territo rial jurisdiction to entertain the application and to decide the application on the merits if he finds that he has the territorial jurisdiction.
Section 531 cannot thus be said to be inapplicable to a case where there is a controversy as to the district where the proceeding should be held, the parties lead evidence in support of their respective contention about the correct place of the pro ceeding, and the magistrate finds it necessary (after taking note of the entire evidence on the controversy) to arrive at a decision on the basis of the balance of probabilities.
In other words, there is no reason why, in such a case, section 531 should not be applicable merely because the magistrate, while considering the evidence relating to jurisdiction, unwittingly makes a reference to section 531 in passing and not for the purpose of assuming jurisdiction under it.
If the magistrate,in this case, had thought of assuming juris diction under section 531, he would not have proceeded to record the evidence of the parties, on the question of the territorial jurisdiction, or referred to it at length in his order and arrived at the decision that he had the jurisdic tion.
We have gone through the cases which have been cited by the counsel for the respondent.
Radharani and another vs Rahim Sardar (supra) was a case where the magistrate pro ceeded with the trial (1) A.I.R. 1946 Calcutta 459.
(2) (3) A.I.R. (4) A.I.R. 1944 Peshawar 25.
(5) 1003 in the wrong local area with his eyes open to the fact that he had no territorial jurisdiction, and the Calcutta High Court had to observe that the section does not confer any jurisdiction.
This is however not so in the present case, because the Magistrate recorded the evidence on the question of territorial jurisdiction, and he went to the extent of making 'a reference to the entire evidence which was led on the point.
Moreover he took note of the fact that the re spondent had not specifically dened that he lived at village Lampur with the appellant.
This is therefore not a case where the Magistrate proceeded with the application even though he had the knowledge that it did not fail within his jurisdiction.
The same is the position in regard to Sakunlala vs Thirumalayya (supra) and it also cannot avail the respondent.
We have gone through State vs Tavara Naika (supra).
It was not a case under section 488 of the Code.
What has been said there is that the curative provisions of section 531 should not be an excuse for overlooking a mate rial irregularity pertaining to jurisdiction when it is brought to the notice of the Court before the commencement of the trial.
It does not therefore lay down anything different from what has been stated in Radharani vs Rahim Sardar (supra).
It was a case where the accused was commit ted to a wrong sessions division, and the mistake was cor rected because the trial had not commenced.
Sultan Chand & another vs Yogindra Nath Baz (supra) was also not a case under section 488 of the Code.
It has been held in that case that when the question of jurisdiction has been raised before the trial magistrate, it is his duty to determine the point, otherwise the provisions 'as regards jurisdiction would never be enforced and that section 531 cannot be applied to such a case.
As has been stated, the Magistrate in the present case addressed himself to the question of jurisdiction, recorded detailed evidence on it, considered the evidence in his order and reached the conclusion that the application was maintainable in his court.
This is therefore a different case.
Satwant Singh vs Smt.
Jaswant Kaur (supra) was a case under section 488 of the Code.
It has been held there that where the question of jurisdiction had been raised before the trial magistrate, it wa.s his duty to determine the point, and that he cannot proceed with the trial in a wrong local area with his eyes open to the fact that he has no territorial jurisdiction.
As has been shown, this was not so in the present case.
It would thus appear that the High Court erred in taking the view that section 531 would not be applicable to this case merely because an objection as to jurisdiction was raised by the respondent "right at the first instance.
" The second ground mentioned by the High Court is that section 531 would not be applicable because the respondent had specifically reserved his right to file a written reply on merits after the question of jurisdiction had been decid ed,.
We find that this is clearly a misstatement of the facts, for counsel for the respondent was not able to refer to anything on the record to show that the respondent re served any such right to file a written reply on the merits at a later stage, after the question of jurisdiction was decided against him.
On the other hand, we find that the Magistrate specifically overruled the objection of the respondent, and made an order directing the parties adduce their evidence on the whole case and specifically rejected 16 206SCI/77 1004 the respondent 's application for deciding the question of jurisdiction in the first instance.
The Magistrate has clearly stated that an order was made.
by him for the pro duction of evidence "in the case", and that he decided to defer a decision of the question of jurisdiction until after the evidence had been recorded as a whole.
The Magis trate has further stated that the respondent did not file his further or additional reply even then.
The High Court therefore undoubtedly erred in thinking that the respondent specifically reserved his right to file a written reply on the merits later on.
As has been shown, no such reservation was permitted by the magistrate, and counsel for the re spondent was not able to show how the respondent could unilaterally make such a reservation for himself.
It may be that, in a given case, it may be advisable for a magistrate to confine the evidence of the parties, in the first in stance, to any preliminary objection relating to jurisdic tion, and to decide the controversy on the merits thereaf ter, but as this was not so in the present case, we arc unable to find any justification for the second ground mentioned.
by the High Court.
The third ground of the High Court is also untenable, for it has refused to apply section 531 on the ground of prejudice for the reason that the respondent had reserved his right to lead evidence on the merits and did not delib erately give up that right. 'Here again, counsel for the respondent was unable to show how it could be said that the respondent made any such reservation, or was entitled to it when, as has been stated, the Magistrate had rejected his application for deciding the question of jurisdiction as a preliminary question and had passed an ,order for the pro duction of all the evidence in the case.
If therefore the respondent persisted in refusing to produce his evidence in spite of that order of the Magistrate, he alone was to blame for it, and the High Court erred in taking the view that he had reserved the right to lead evidence at a later stage.
The High Court has taken the view that this is a case where there was obvious prejudice to the respondent and a failure of justice as he never led evidence on the merits.
But the High Court failed to appreciate that the respondent had to thank himself for that predicament.
He knew that the Magistrate had passed an order refusing to try the question of jurisdiction in the first instance and had rejected his application to that effect.
He also knew that the Magis trate had called upon the parties to lead all their evi dence.
The appellant obeyed that order and examined her witnesses.
The respondent persisted in thinking that the Magistrate had no jurisdiction, and he refused to examine the witnesses on the merits and thought it sufficient to confine his evidence to the question of jurisdiction.
if he deliberately refrained from producing his evidence on the merits, there can be no justification for him to raise the question of prejudice or failure of justice.
As it is, Counsel for the respondent has not been able to refer to any application of the respondent.
whether oral or documentary, expressing a desire to lead his evidence on the merits.
The fact of the matter therefore is that the respondent had decided that he would not lead any evidence on the merits, and confined his evidence to the question of jurisdiction.
It may be that, as 1005 has been argued by the Counsel for the appellant, he did so because he realised that he had no defence to make on the merits of the claim for maintenance.
The fifth ground mentioned by the High Court is that before an order could be passed under section 488(1) it was necessary to prove that the husband had refused or neglected to maintain his wife, and that required an oppor tunity to be given to the husband to prove, his case.
But the argument is futile because the respondent did not set up any defence on the merits.
On the other hand, the Magis trate.
found that there was no controversy about the facts that the appellant was the lawfully wedded wife of the respondent and that she had been living separately for the last many years and was entitled to maintenance as the respondent had neglected her or had refused to maintain her.
In its sixth ground the High Court has stated that before a decision could be given on the merits, the husband could make a request for permission to lead evidence on merits.
It would be sufficient to say that Counsel for the respondent was unable to point out when and how any such request was made but was refused by the Magistrate.
Lastly, the High Court has taken the view that a pro ceeding cannot be maintained by a court which has no juris diction by simply taking recourse to section 531 of the Code when an objection has been taken against its maintenance, for otherwise the provision relating to jurisdiction would become nugatory.
This point has already been considered earlier and need not be re examined.
It is thus quite clear that the High Court committed a serious error of law in refusing to.
invoke section 531 in the facts and circumstances of this case.
It is not in controversy that the Magistrate who took the proceedings, on the appellant 's application under subsection (1) of section 488, was one of the magistrates mentioned in that sub sec tion.
The respondent raised a controversy as to his local jurisdiction, and the Magistrate ordered the parties to lead all their evidence.
He specifically rejected the applica tion for confining the evidence to the question of jurisdic tion, or to try that as a preliminary issue.
It is there fore futile to contend that the Magistrate gave himself jurisdiction by recourse to section 531 of the Code.
On the other hand in his final order, he set out the points which arose for consideration on the question of jurisdic tion, made a mention, at length, of the entire evidence on that question and took into consideration the conduct of the respondent and the ease law as well as the respondent 's reply.
All that led him to the conclusion that he had jurisdiction to try the application.
There is therefore no reason why section 531 should not be held to be applicable to this case.
As has been shown, it is futile for Counsel for the respondent to raise the question of prejudice, or to say that there was a failure of justice, because the respondent did not lend his evidence on the merits.
As we have pointed out, he did So deliberately and in 1006 defiance of the order of the Magistrate calling upon him to lead his evidence on the whole case.
The respondent cannot in fact be heard to raise the question of prejudice when on the uncontroverted and well established facts the Magistrate found that the respondent was a person who had sufficient means and had neglected to maintain his wife, and made an order that he shall make a monthly allowance of Rs. 125/ per mensem for her maintenance.
The appeal is allowed and the impugned order of the High Court dated March 14, 1974, is set aside, with costs.
P.B.R. Appeal allowed.

summary/full:
Section 531 of the Criminal Procedure Code, 1898 provides that no finding, sentence or order of any criminal Court shall be set aside merely on the ground that the enquiry, trial or other proceeding in the course of which it was arrived at or passed, took place in a wrong sessions divi sion, district, subdivision or other local area, unless it appears that such error has in Tact occasioned a failure of justice.
In her claim for maintenance from the respondent, who was her husband, the appellant filed a petition under section 488 Cr.
P.C. in the Court of a Magistrate.
The respondent took objection to the Court 's jurisdiction to try the case on the ground that the parties did not reside within its jurisdic tion.
The Magistrate passed an order that the decision on the question of jurisdiction must await the recording of evidence on the whole case.
The respondent did not chal lenge that order.
Ultimately the Magistrate held that he had the jurisdiction to entertain the application and decided it on the merits.
The Sessions Judge referred the respond ent 's revision application to the High Court.
The High Court heard that by taking recourse to section 531, proceedings could not be entertained in a Court which had no jurisdic tion more so when an objection had been taken against its maintainability and that section 531 could cure the infirmity only if the case had been fought on merits.
Allowing the appeal, HELD: The High Court erred in taking the view that section 531 would not be applicable to this case merely because the objection as to the jurisdiction was raised by the respond ent right at the first instance.
[1003 F] 1.
(a) Territorial jurisdiction is provided as a matter of convenience for the Court, the accused and the witnesses.
Under section 488(8) a proceeding may be taken against any person m any district where he resides or is or where he last resided with his wife.
[1001 F G] (b) Where a Magistrate has the power to try a particular application under section 488 and the controversy relates solely to his territorial jurisdiction, there should, Ordinari ly, be no reason why section 531 should not be applicable to the order made by him.
[1001 H] (c) The true meaning_of section 531 is that while it will not uphold an order passed in proceedings wilfully taken in a wrong place, or enable a Magistrate to confer jurisdiction on himself when he knows that he has no such jurisdiction, there is no reason why a Magistrate, who is otherwise duly empowered to make an order under section 488(1), cannot proceed with an application under that subsection for the purpose of deciding whether he has the territorial jurisdiction to entertain the application and to decide the application on the merits if he fin ds that he has the territorial juris diction.
Section 531 cannot be said to be in applicable to a case where there is a controversy as to the district where the proceeding should be held, the parties lead evidence in support of their respective contentions about the correct place of the proceeding, and the Magistrate finds it neces sary (after taking note of the entire evidence on the con troversy) to arrive at a decision on the basis of the bal ance of probabilities.
There is no reason why, in such a case, section 531 should not be applicable merely because the Magistrate, while considering the evidence relating to jurisdiction, unwittingly 998 makes a reference to section 531 in passing and not for the purpose of assuming jurisdiction under it If the Magistrate in this case, had thought of assuming jurisdiction under section 531, he would not have proceeded to record the evidence of the parties, on the question of the territorial jurisdic tion, or referred to it at length in his order and arrived at the decision that he had the jurisdiction.
[1002 D G] Purushottamdas Dalmia vs The State of West Bengal ; followed.
Radharani vs Rahim Sardar.
A.I.R. 1.946 Calcutta 459.
Sakuntala vs Thirumalyya , State vs Tavara Naika A.I.R. , Sultan Chand vs Yogin dra Nath Baz.
A.I.R. 1944.
Peshawar 25 and Satwant Singh vs Smt.
Jaswant Kaur, , held inapplicable.
In the instant case, the Magistrate was one of the Magistrates mentioned in section 488( 1 ).
He had specifically rejected the respondent 's application for confirming the evidence to the question of jurisdiction or to try that as a preliminary issue.
It cannot therefore be said that he had given himself jurisdiction by recourse to section 531.
The Magistrate had set out the point that arose for considera tion, discussed the entire evidence and taken into consider ation the conduct of the respondent all of which led to the conclusion that he had the jurisdiction to try the applica tion.
There is therefore no reason why section 531 should not be held to be applicable to this case.
[1005F H] (d) The High Court erred in holding that section 531 would not be applicable because the respondent had reserved a right to file a written reply on merits after the question of jurisdiction had been decided.
The Magistrate had spe cifically overruled the respondent 's objection, and directed the parties to adduce evidence, and deferred the decision on the question of jurisdiction until after the evidence had been recorded.
The respondent did not file his reply on the merits.
[1003G H] (e) The High Court erred in holding that there was failure of justice because the respondent never led evi dence.
The Magistrate called upon the parties to lead evidence.
While the appellant obeyed the order, the re spondent persisted in thinking that the Magistrate had no jurisdiction, refused to examine his witnesses on merits, and chose to confine his evidence to the question of juris diction.
[lOO4F H]