judgement:
Appeal No.350 of 1957.
Appeal by special leave from the judgment and order dated August 6, 1956, of the Calcutta High Court on a notice of motion in Appeal No. 152 of 1955.
N. C. Chatterjee and P. K. Mukherjee, for the appellant.
B. Sen and P. K. Ghosh (for P. K. Bose), for respondent No. 1. 1958.
February 14.
The Judgment of the Court was delivered by VENICATARAMA AIYAR J.
This is an appeal against an order of the High Court of Calcutta dated August 6, 1956, rejecting the application of the appellant to be brought on record as appellant in appeal No. 152 of 1955 pending before it.
The second respondent, Sudhir Kumar Mitter, was the owner of two houses, No. 86/1, Cornwallis Street and No. 7 C, Kirti Mitter Lane, Calcutta.
On May 19, 1934, he executed a mortgage for Rs. 3,000 over the said houses in favour of the first respondent, Sm.
Nirmala Sundari Dassi.
She instituted Suit No. 158 of 1935 on this mortgage, and obtained a pre liminary decree on March 8, 1935.
The matter then came before the Registrar for taking of accounts, and by his report dated July 23, 1935 he found that a sum 1289 of Rs. 3,914 6 6 was due to her, and on that, a final decree was passed on April 20, 1936.
Under r. 27 of ch.
16 of the Original Side Rules of the Calcutta High Court, a person in whose favour a decree is passed has to apply for drawing up of the decree within four days from the date thereof.
The rule then provides that " if such application for drawing up a decree or order is not made within the time aforesaid, the decree or order,shall not be drawn up except under order of Court or a Judge to be obtained, unless otherwise ordered, by a petition ex parte ".
The importance of this provision is that until a decree is drawn up as mentioned therein, no certified copy thereof would be issued to the party and without such a certified copy, no execution proceedings could be taken.
The first respondent who had acted with such alacrity and speed in putting her mortgage in suit and obtaining a decree, took no steps whatsoever to have the decree drawn up, for nearly 18 years.
On May 12, 1952, the second respondent sold both the houses to the appellant herein for a sum of Rs. 60,000 which was, it is stated, utilised largely for discharging prior mortgages on which decrees had been obtained and execution proceedings taken.
The deed of sale recites that the properties were sold free of all encumbrances.
The first respondent who had so far taken no steps to have the decree drawn up now bestirred herself, and on February 17, 1954 obtained an ex parte order under r. 27 aforesaid, granting her leave to draw up and complete the decree.
That having been done pursuant to the order, she filed on April 29, 1954 the final decree, and commenced proceedings for sale of the mortgaged properties.
Coming to know of this, the second respondent appeared before the Registrar, and raised the objection that the execution of the decree was barred by limitation.
The Registrar felt some doubt in the matter, and made a special report under ch. 26, r. 50 seeking the opinion of the Court on the question of limitation, and the first respondent was also directed to take out a notice of motion for directions.
The matter then came before P. B. Mukharji J. and after hearing 1290 counsel for both the respondents, he held that the execution of the decree was not barred.
Vide judgment reported in Nirmala Sundari vs Sudhir Kumar (1).
Against this judgment, the second respondent preferred Appeal No. 152 of 1955, and that is still pending.
We now come to the application, out of which the present appeal arises.
On July 25, 1956 the appellant applied to be brought on record as appellant in Appeal No. 152 of 1955.
The allegations in support of the petition were that she had purchased the properties from the second respondent on May 12, 1952 free of all encumbrances, that the execution proceedings started by the first respondent were not maintainable as the decree had become time barred, that the second respondent, Sudhir Kumar Mitter, had been conducting proceedings in opposition to the execution sale only at her instance and for her benefit, that he had filed Appeal No. 152 of 1955 also oil her behalf, that latterly he had entered into a collusive arrangement with the first respondent with a view to defeat her rights, and that therefore it was necessary that she should be allowed to come on record as appellant so that she might protect her interests.
The prayer in the petition was that she be substituted in the place of the second respondent or in the alternative, be brought on record as additional appellant.
The application was strenuously opposed by both the respondents.
They stated that they had entered into an arrangement settling the amount due to the first respondent at Rs. 17,670, that that settlement was fair and bona fide and binding on the appellant, and that further her application was not maintainable.
This application was heard by Chakravarti C. J. and Lahiri J. and by their order dated August 6, 1956, they dismissed it.
The appellant then applied under article 133 for leave to appeal to this Court, and in rejecting that application, the learned Chief Justice observed that the original application was pressed only under 0. 22, r. 10 of the Civil Procedure Code and it was dismissed, as it was conceded that the applicant, (1) A.I.R. 1955 Cal. 484. 1291 not being a person who had obtained a transfer pending appeal, was not entitled to apply on the terms of that rule, that the prayer in the alternative that the applicant might be brought on record without being substituted under 0. 22, r. 10 which merited favourable consideration bad not been mentioned at the previous hearing, and that no certificate could be granted under article 133 with a view to that point being raised in appeal, as the order sought to be appealed against was not a final order.
The appellant thereafter obtained special leave to appeal under article 136 of the Constitution, and that is how the appeal comes before us.
It is contended OD behalf of the appellant that her application is maintainable under 0. 22, r. 10 of the Civil Procedure Code, because Suit No. 158 of 1935 must be considered to have been pending until the decree therein was drawn up which was in 1954, and the transfer in her favour had been made prior thereto on May 12, 1952.
The decision in Lakshan Chunder Dey vs Sm.
Nikunjamani Dassi (1) is relied on, in support of this position.
But it is contended for the first respondent that even if Suit No. 158 of 1935 is considered as pending when the transfer in favour of the appellant was made, that would not affect the result as no application had been made by her to be brought on record in the original court during the pendency of the suit.
Nor could the application made to the appellate Court be sustained under 0. 22, r. 10, as the transfer in favour of the appellant was made prior to the filing of that appeal and not during its pendency.
This contention appears to be well founded ; but that, however, does not conclude the matter.
In our opinion, the application filed by the appellant falls within section 146 of the Civil Procedure Code, and she is entitled to be brought on record under that section.
Section 146 provides that save as otherwise provided by the Code, any proceeding which can be taken by a person may also be taken by any person claiming under him.
It has been held in Sitharamaswami vs Lakshmi Narasimha (2) that an appeal is a proceeding for the (1) 164 (2) Mad. 510.
1292 purpose of this section, and that further the expression " claiming under" is wide enough to include cases of devolution and assignment mentioned in 0. 22, r. 10.
This decision was quoted with approval by this Court in Jugalkishore Saraf vs Raw Cotton Co., Ltd. (1), wherein it was hold that a transferee of a debt on which a suit was pending was entitled to execute the decree which was subsequently passed therein, under section 146 of the Civil Procedure Code as a person claiming under the decree holder, even though an application for execution by him would not lie under 0. 21, r. 16, and it was further observed that the words "save as otherwise provided " only barred proceedings, which would be obnoxious to some provision of the Code.
It would follow from the above authorities that whoever is entitled to be but has not been brought oil record under 0. 22, r. 10 in a pending suit or proceeding would be entitled to prefer an appeal against the decree or order passed therein if his assignor could have filed such an appeal, there being no prohibition against it in the Code, and that accordingly the appellant as an assignee of the second respondent of the mortgaged properties would have been entitled to prefer an appeal against the judgment of P. B. Mukharji J.
It is next contended that section 146 authorises only the initiation of any proceeding, and that though it would have been competent to the appellant to have preferred an appeal against the judoment of P. B. Mukharji J. she not having done so was not entitled to be brought on record as an appellant to continue the appeal preferred by the second respondent.
We are not disposed to construe section 146 narrowly in the manner contended for by counsel for the first respondent.
That section was introduced for the first time in the Civil Procedure Code, 1908 with the object of facilitating the exercise of rights by persons in whom they come to be vested by devolution or assignment, and being a beneficent provision should be construed liberally and so as to advance justice and not in a restricted or technical sense.
It has been held by a Full Bench of the Madras High Court in Muthiah Chettiar vs Oovinddoss Krishnadass (2) that the assignee of a part of a (1) [1955] i S.C.R. 1369.
(2) Mad.
1293 decree is entitled to continue an execution application filed by the transferor decree holder.
Vide also Moidin Kutty vs Doraiswami (1).
The right to file an appeal must therefore be held to carry with it the right to continue an appeal which had been filed by the person under whom the applicant claims, and the petition of the appellant to be brought on record as an appellant in Appeal No. 152 of 1955 must be held to be main.
tainable under section 146.
It remains to consider whether, on the merits, there should be an order in favour of the appellant.
Of that, we have no doubt whatsoever.
The proceedings in which she seeks to intervene arise in execution of a mortgage decree.
She has purchased the properties comprised in the decree for Rs. 60,000 under a covenant that they are free from encumbrances.
And after her purchase, the first respondent has started proceedings for sale of the properties, nearly 18 years after the decree had been passed.
The appellant maintains that the execution proceedings are barred by limitation, and desires to be heard on that question.
It is true that P. B. Mukharji J. has rejected this contention, but a reading of his judgment shows and that is what he himself observes that there are substantial questions of law calling for decision.
Even apart from the plea of limitation, there is also a question as to the amount payable in discharge and satisfaction of the decree obtained by the first respondent in Suit No. 158 of 1935.
Both the respondents claim that they have settled it at Rs. 17,670.
But it is stated for the appellant that under the decree which is sought to be executed the amount recoverable for principal and interest will not exceed Rs. 6,000.
In the affidavit of Sanjit Kumar Ghose dated December 20, 1956, filed on behalf of the first respondent, particulars are given as to how the sum of Rs. 17,670 was made up.
It will be seen therefrom that a sum of Rs. 7,200 is claimed for interest up to March 8, 1956, calculating it not at the rate provided in the final decree but at the contract rate.
Then a sum of Rs. 5,000 is included as for costs incurred by the mortgagee in suits other than (1) I.L.R. 1294 Suit No. 158 of 1935 and in proceedings connected therewith.
The appellant contends that the properties in her hands could, under no circumstances, be made liable for this amount.
A sum of Rs. 1,750 is agreed to be paid for costs in the sale reference, in the proceedings before P. B. Mukharji J. and in Appeal No. 152 of 1955.
Asks the appellant, where is the settlement in this, and how can it bind me ? It is obvious that there are several substantial questions arising for determination in which the appellant as purchaser of the properties is vitally interested, and indeed is the only person interested.
As a purchaser pendente lite, she will be bound by the proceedings taken by the first respondent in execution of her decree, and justice requires that she should be given an opportunity to protect her rights.
We accordingly set aside the order of the Court below dated August 6, 1956 and direct that the appellant be brought on record as additional appellant in Appeal No. 152 of 1955.
As Sudhir Kumar Mitter, the appellant now on record, has dropped the fight with the first respondent, we conceive that no embarrassment will result in there being on record two appellants with Conflicting interest.
But, in any event, the Court can, if necessary, take action suo motu either under 0. 1, r. 10 or in its inherent jurisdiction and transpose Sudhir Kumar Mitter as second respondent in the appeal, as was done in In re Mathews.
Oates vs Mooney (1), and Vanjiappa Goundan vs Annamalai Chettiar (2 ).
As for costs, the appellant should, in terms of the order of this Court granting her leave to appeal, pay the contesting respondent her costs in this appeal.
The costs of and incidental to the application in Appeal No. 152 of 1955 in the High Court will abide the result of that appeal.
Appeal allowed.

summary/full:
The second respondent sold the properties to the appellant in ,952 and the deed of sale recited that the properties were sold free of all encumbrances.
The first respondent who had obtained a mortgage decree in respect of the properties in 1935 did not take any steps to have the decree drawn up as required under the Original Side Rules of the Calcutta High Court until 1954, when she commenced proceedings for sale of the mortgaged properties.
The second respondent raised the objection that the execution of the decree was barred by limitation but that was overruled by a single judge of the High Court and an appeal against that order was preferred by the second respondent.
Apprehending that the second respondent might enter into a collusive arrangement with the first respondent with a view to defeat her rights, the appellant made an application in the High Court under 0. 22, r. 10 of the Code of Civil Procedure praying that she might be substituted in the place of the second respondent, or in the alternative, be brought on record as additional appellant.
The High Court having dismissed the application, the appellant brought the present appeal: Held, that the application could not be sustained under 0. 22, r.10, of the Code of Civil Procedure because (i) assuming that 1288 the suit was considered as having been pending until the decree was drawn up in 954 no application was made to the Court where the suit was pending as provided in 0. 22, r. 10, and (ii) the application made to the appellate Court was also not within 0. 22, r. 10, as the transfer in question was made prior to the filing of the appeal and not during its pendency.
The application, however, falls within section I46 of the Code of Civil Procedure and the appellant is entitled to be brought on record since an appeal is a proceeding within the meaning of that section and the right to file an appeal carries with it the right to continue an appeal which had been filed by the person under whom the appellant claims.
Jugalkishore Sayaf vs Raw Cotton Ltd., [1955] I S.C.R. 1369, Sitharamaswami vs Lakshmi Narasimha, Mad.
51O and Muthia Chettiar vs Govinddoss Kyishnadoss, Mad.
gig, relied on.


judgement:
ivil Appeal No. 2597 of 1988.
From the Judgment and Order dated 17.3.1988 of the Calcutta High Court in Matter No. 2462 of 1987.
Soli J. Sorabji, R. Mahapatra, B.P. Singh and L.P. Agarwala for the Appellant.
S.K. Kapoor, section Dube, Chatterji and Mrs. Indra Sawhney for the Respondent.
The Judgment of the Court was delivered by SABYASACHI MUKHARJI, J.
Special leave granted.
The appeal is disposed of by the judgment herein.
On or about 7th August, 1963 Jayshree Textiles & Industries Ltd. (hereinafter called 'the Jayshree ') was inducted as a tenant in respect of a godown in Calcutta on groundfloor at a monthly rent of Rs. 151 per month payable according to the English calendar month w.e.
f. 1.8. 1963 exclusive of electric charges.
Such induction was by the predecessor in title of the present appellant.
The said rent of Rs.151 p.m. was later enhanced from time to time and the last rent was Rs.225 p.m.
On or about 21st July, 1975, the High Court at Calcutta, in Company Petition No. 161/76 connected with company application No. 70/76 filed by the Jayshree, approved the PG NO 207 scheme of amalgamation whereby the Jayshree merged in the respondent Company.
It is alleged that on or about 4th July, 1985, the appellant for the first time came to know that the said godown was in occupation of Indian Rayon Corporation Ltd and, hence, a notice to quit was issued.
On or about 11th July, 1985, the respondent by its letter intimated the appellant.
that Jayshree was amalgamated with the respondent in accordance with the scheme sanctioned by the High Court at Calcutta on 21st July, 1976.
On 29th August, 1985, a notice under Section 106 of the Transfer of Property Act, read with Section l3(d) of the W.B. Premises Tenancy Act, 1956 (hereinafter called 'the Act '), to quit, vacate and hand over vacant possession on the last date of the following month,was issued to Jayshree.
Thereafter, on lst December, 1985 the appellant filed a suit for eviction in the City Civil Court at Calcutta against the Jayshree and the respondent herein.
On 25th March, 1986, the respondent filed a Title Suit No. 545/86 under Order 39(1) and (2) of the Civil Procedure Code praying for temporary injunction restraining the appellant from disconnecting electricity in, the said premises.
It is alleged and was also alleged before the High Court that the defendant No. 2 in the suit in the City Civil Court, took 15 adjournments to file written statement between March 1986 to May 1987.
On about 6th July, 1987, the appellant filed an application under Clause 13 of the Letters Patent in the High Court at Calcutta, praying for transfer of the two suits on the ground that the respondent had adopted dilatory tactics and had taken several adjournments and.
furthers that the original records relating to amalgamation are available in the High Court.
Rule nisi was issued by the High Court.
On 10th October, 1987 the High Court passed the following order: The Court: By consent of the parties, this application for transfer of the suit under Clause 13 of the Letters Patent is treated as on days ' list and is disposed of by the following order: By consent of the parties the title suit being Title Suit No. 345 of 1986 between Indian Rayon Corporation Ltd. and Abhay Singh Surana pending before the learned Judge 's bench in the City Civil Court and the ejectment suit being Ejectment Suit No. 1088 of 1985 between Abhay Singh Surana and Jayshree Textiles & Industries Ltd. and another pending in the City Civil Court are removed and transferred to this PG NO 208 Court and to be entertained and tried by this Court in its extraordinary original civil jurisdiction, the records be transferred to this Court by 16th September 1987.
The Registrar, Original Side, shall communicate order to the Registrar, City Civil Court.
If necessary, at the cost of the petitioner a special messenger is to be deputed for the purpose of transfer of the records from the City Civil Court to this Court.
Let the two suits appear in the for settlement on 17th September, 1987.
" It appears that the suits appeared before the learned Judge upon mentioning on 15th December, 1987.
It was represented that the suits were transferred to the High Court only on the understanding that the suits would be settled.
It was further represented that the effort settle the suits had failed and, hence, the learned Single judge of the High Court fixed a date for hearing of the two suits.
On 17th February, 1988, the respondent filed an application before the learned Trial Judge in Calcutta for recalling the order of transfer dated 10.10.1987.
On 17th March, 1987, the court passed the following order: "The Court: It appears that on 10th September, 1987, an order was passed directing transfer of the suit to this Court so that the parties could settle the matter in this Court.
It has been stated by Mr. Ranjan Dev, Advocate, that there is no possibility of settlement and the suit should be heard.
In that view of the matter, let the suit be heard by the appropriate Court.
The order dated 10th September, 1987 is hereby recalled.
Let there also be an order in terms of prayer [b] of the petition.
Since the suit is being re trans ferred to the City Civil Court, this Court cannot pass any order as to the prayers made for deposit of rent.
Liberty is given to the parties to make an appropriate application before the appropriate Court for such a direction.
" Aggrieved thereby, the petitioner had filed a special leave petition and leave was granted herein.
That is how,this appeal is here.
In order to appreciate the contentions urged in this case, it is imperative to refer to Clause 13 of the Letters Patent of 1865 of the High Court, which reads as follows: "And we do further ordain, that the said High Court of Judicature at Fort William in Bengal shall have power to PG NO 209 remove, and to tr and determine, as a Court of extra ordinary original jurisdiction of any court, whether within or without the Bengal Division of the Presidency of Fort William.
subject to its superintendence.
when the said High Court shall think proper to do so, either on the agreement of thethe parties to that effect, or for,r purposes of justice.
the reasons for so doing being recorded on the proceeding of the said High Court.
" The aforesaid clause has been the subJect matter of various adjudications and interpretations by the High Court.
It enables the High Court to exercise the extraordinary ' original civil jurisdiction.
The Letters Patent contemplates two contingencies for the High Court to exercise extraordinary jurisdiction.
namely.
on agreement of the parties to that effect.
the suits be transferred and, secondly, for the purpose of justice.
It further stipulates that the reasons for so doing to be recorded on the proceedings in the High Court.
In this case.
apparently the suits were transferred by agreement of the parties.
There is.
however, great deal of difference as to what that agreement was.
On behalf of the appellant, it is contended that there was simply an agreement to have the two suits transferred to the High Court for quick and expeditious disposal.
It was further, asserted that in view of the long delay in filling the written statements, it was, therefore, advisable to have the suits disposed by the High Court.
On the other hand, it is seriously contended that the agreement was that the suits would be settled in the High Court.
It appears that some such representations had been made to the learned Judge that the suits would be settled.
This, however.
the appellant disputes.
The suits have been transferred for settlement.
As the agreement to settle the suits has not fructified, the respondent does not want the suits to be tried in the High Court.
The appellant states that there was no such agreement that the suits would be settled.
There was, undoubtedly, a possibility for the suits being settled and the counsel for the appellant stated that the suits could more easily be settled in the High Court.
On the basis that there was some such kind of agreement and it is desirable that the suits should be tried by an appropriate Court having jurisdiction, the High Court has remitted the suits back to the City Civil Court.
There is no doubt that the City Civil Court is the appropriate Court and that there existed the agreement which, as recorded in the order of the Court, does not indicate that it was on the basis that the suits would be settled.
There PG NO 210 are factors indicating that the purpose of justice would be met if the suits are tried in the High Court.
Undoubtedly, the written statement has been long delayed in the suit in 1985 and the same has not yet been filed.
The disposal ot the suits by the High Court, would serve the purpose of justice.
It would shorten litigation in the sense that there would be lesser number of appeals to the higher Court and the possibility of settlement is there in the High Court more than anywhere else.
Suits are likely to be more expeditiously disposed of under the supervision of the High Court Judge than before the learned City Civil Court or the Court subordinate to High Court.
Hence, even though initially the agreement to transfer might have been on the basis that the suits should be settled but the agreement to transfer was note unequivocal.
The possibility of settlement might have been the motivation.
But the High Court has, undoubtedly, for the purpose of justice rightly power to dispose of the suits and in the facts of this case, in our opinion, having once transferred the suits, it would be just and fair and would also serve the purpose of justice that the suits should continue to be disposed of by the High Court.
The purpose of justice must be determined by reference to the circumstances of each case and the balance of convenience having regard to those circumstances, is one of the matters for consideration.
Counsel for the respondent contended under article 136 of the Constitution that it is not an order which should be interfered with.
We are unab1e to agree.
It is true that the suits are at a preliminary stage but it is also true that for the purpose of justice the Court, if possible, must oversee the administration of justice by the different Courts and the orders passed therein by the High Courts as well as the City Civil Courts.
In that view of the matter we think that the purpose of justice would be served by directing expeditious disposal of these suits by the High Court.
In the premises the order of the High Court is set aside and let these two suits be heard by the High Court one after the other.
The written statement as mentioned hereinbefore, has not been filed.
The written statement, if any, by the respondent may be filed within four weeks from today and further directions for expeditious disposal may be obtained from the learned Judge taking these suits.
Let these suits appear before the appropriate Bench in the High Court of Calcutta.
The appeal is disposed of as aforesaid.
No order as to costs.
N,P.V. Appeal disposed of.

dataset_name: IN-Abs

summary/full:
The appellant let out his godown to a Textile company, which was subsequently amalgamated with the respondent Company, under a scheme of amalgamation approved by the High Court.
On August 29, 1985 the appellant issued a notice to the erstwhile company under section 106 of the Transfer of Property Act read with section 13(6) of West Bengal Premises Tenancy Act, 1956 to quit and hand over vacant possession of the godown.
Thereafter he filed a suit for eviction in the City Civil Court against the erstwhile Company and the respondent Company.
The respondent also filed a suit under Order 39(I) and (2) of the Civil Procedure Code for temporary injunction restraining the appellant from disconnecting electricity in the said premises.
The appellant filed an application in the High Court under clause 13 of the Letters Patent for transfer of the two suits on the ground that the respondent had adopted dilatory tactics and had taken several adjournments to file written statement, and that the original records relating to amalgamation were available in the High Court.
By consent of the parties, the High Court transferred these suits to itself for trying in its extraordinary original civil jurisdiction.
PG NO 205 When the suits appeared before the Single Judge, it was represented that the suits were transferred to the High Court only on the understanding that the suits would be settled and that the efforts to settle the suit had failed.
Hence,the Judge fixed a date for hearing of the two suits.
On February 17, l9S8 the respondent filed an application for recalling the order of transfer.
Accordingly, the High Court recalled its earlier order and retransferred them to the City Civil Court.
Aggrieved, the appellant filed an appeal by special leave, contending that there was simply an agreement to have the suits transferred to the High Court for quick and expeditious disposal, in view of the long delay in filing written statements.
The Respondent, however, contended that the agreement was that the suits would be settled in the High Court.
Disposing of the appeal, HELD: 1.1 Clause 13 of the Letters Patent enables the High Court to exercise the extraordinary original civil jurisdiction.
The Letters Patent contemplates two contingencies for the High Court to exercise extraordinary jurisdiction, namely, on agreement of the parties to that effect, the suits be transferred and, secondly, for the purpose of justice.
It further stipulates that the reasons for so doing to be recorded on the proceedings in the High Court.
[209C D) 1.2 The disposal of the suits by the High Court would serve the purpose of justice.
It would shorten litigation in the sense that there would be lesser number of appeals to the higher Court and the possibility of settlement is there in the High Court more than anywhere else.
Suits are likely to be more expeditiously disposed of under the supervision of the High Court Judge than before the City Civil Court or the Court subordinate to High Court.
[2l0B] 1.3 The purpose of justice must be determined by reference to the circumstances of each case and the balance of convenience having regard to those circumstances, is one of the matters for consideration.
[2l0D] In the instant case, even though initially the agreement to transfer might have been on the basis that the suits would be settled but the agreement to transfer was not PG NO 206 unequivocal.
The possibility of settlement might have been the motivation.
But the High Court has, undoubtedly, for the purpose of justice, rightly power to dispose of the suits.
Having once transferred the suits, it would be just and fair and would also serve the purpose of justice that the suits should continue to be disposed of by the High Court.
[210C D] Though the suits are at a preliminary stage, but for the purpose of justice, the Court must oversee the administration of justice by different Courts and orders passed High Court as well as City Civil Courts.
[210E] Therefore, the purpose of justice would be served by directing expeditious disposal of the suits by the High Court.
[210F]


judgement:
Criminal Appeal E No. 289 of 1978 were Cri.
Appeal No. 403 of 1978.
From the Judgment and Order dated 10.5.1978 of the Allahabad High Court in Criminal Appeal No. 213 of 1973.
S.K. Dhingra and K. B. Rohtagi of the Appellant inn Crl.
A. No. 289 of 1978.
R.K. Jain, Rakesh Khanna and R.P. Singh for the Appellant in Crl.
A. No. 403 of 1978.
Prithvi Raj Singh and Dalveer Bhandari for the Respondent.
PG NO 247 The Judgment of the Court was delivered by JAGANNATHh SHETTY, J.
This appeal by Special leave is from a Judgment of the Allahabad High Court dated 10 May 1978 dismissing Criminal Appeal No. 1 13 of 1973.
The appellants were convicted and sentenced under Section 302,364 and 210 IPC by the trial Judge.
On appeal, the High Court maintained the said conviction and sentence of appellant No. (1), but reduced the same of appellant No. (2) to one under Section 201.
The prosecution case in brief is as follows: lslam, the deceased, is the younger brother of Shabbir (PW 1).
They were not living together.
The former used to live with his mother.
Islam had his own share of lands measuring 16 Bighas.
He was separately cultivating the same.
The appellants were once his close associates.
They were of bad character.
So mother and brother advised lslam to part company with them.
So lslam did and went on minding his own work.
He was unmarried.
The appellants had an evil eye on the property of Islam.
They got executed a fraudulent sale deed (exhibit Ka. 12).
The deed Was dated 15 February.
One Ahsan who has been examined as PW 1 ' has impersonated Islam before the Sub Registrar.
They deed purports to transfer that agricultural land of Islam in favour of the wife of appellant No. ( 1).
It is said that the appellants in order to eliminate the possibility of this fraud being detected.
murdered Islam.
Shabbir suspecting foul play of the appellants lodged a report on 21 April, 1971.
Zakir Ali appellant No, (1) was first arrested.
He pointed out a dead body on IX July, 1971.
It wits recovered from a place deeply burried in a water logged pond.
However, it was said to be identified as that of islam.
The identification was based on a shirt (exhibit 1) and a tahmad (exhibit 2.).
Upon the post mortem.
the Doctor was unable to give his opinion regarding the cause of death or its duration.
The evidence against appellants is purely circumstantial: (i) motive for the crime (ii) the evidence as to last seen (iii) recovery of the body at the instance of Appellant No. (2), and (iv) identification of the clothes with which the dead body was found.
PG NO 248 We will first examine whether the motive which is of course relevant in this case has been satisfactorily established.
exhibit Ka.
12 is the sale deed by which the properties belonging to Islam were said to have been sold to the wife of Sardar Hussain, appellant No. (1).
Usman Ali (PW 11), who is the scribe of the sale deed, has deposed to its contents.
He has stated that one Sarfaraz (PW 20) along with the accused came to him with a request to draft the sale deed.
They gave the particulars.
He has written the sale deed of which the executant was Islam.
In the Court, he has identified Ahsan (PW 12) as the person who impersonated Islam and put his thumb impression.
He has also identified Zakir Ali appellant No. (2) who affixed his thumb impression to the sale deed as a witness.
But when Sarfaraz Hussain was examined as PW 20 in the Court.
nothing was elicited about the sale deed or the persons who accompanied him to PW 1 1.
No question was put to him as to the contents of sale deed exhibit Ka. 12 or to the identification of persons who affixed the thumb impressions thereon.
PW 12 has, no doubt deposed that he had put his thumb impression on exhibit Ka.
But the prosecution has not sent the thumb impression of the executant of exhibit Ka.
12 with the admitted thumb impression of PW 12 for expert opinion.
There is, therefore, no satisfactory evidence that the sale deed exhibit Ka. 12 was executed by somebody impersonating Islam.
As to identification of the dead body, the evidence on record is equally unsatisfactory.
Shabbir (PW 1) has deposed that about 14 months before, Islam was taken by Sardar Hussain and Yasin.
Yasin is the father in law of Sardar Hussain.
He has also stated when Islam went with them, he was wearing a Shirt of green check and a black striped tahmad.
Islam was taken on the pretext that they would get him married.
He has further stated that Mian Jan (PW 1) and,Sadiq (PW 3) and one other person called Majid had seen Islam going with the Sardar Hussain and Yasin.
But Main Jan (PW 2) and Sadiq (PW 3) did not speak anything about the dress which Islam was wearing when he was taken by Sardar Hussain and Yasin.
Secondly, how could Shabbir see all that he had stated.
Islam and Shabbir were living separately.
Islam was not taken after a meeting with Shabbir.
It is not the case of Shabbir that Islam came to him and told him about the purpose of his going with the accused.
If the purpose was to get Islam married.
why did he allow Islam to go with the accused.
Islam had by then parted company with them at the instance of Shabhir and mother, because they were of bad character.
Is it understandable that such bad characters should arrange the marriage without the assistance or approval of Shabbir and mother? It is difficult to believe Shabbir in the circumstances.
PG NO 249 Islam was said to have disappeared on 12 Aprial, 1971.
PW 1 lodged the report on 21 April, 1971.
The dead body was recovered on 18 July, 1971.
The post mortem was done on 20 July, 1971.
It was more than three months from the date of alleged disapearance of Islam.
Dr. D.P. Manchanda (CW 1) who conducted the post mortem was not able to give the cause of death.
He has stated that it was a skeleton of a young adult male.
According to him, it would be difficult to tell correctly as to when the death of the deceased had taken place.
There was no flesh left in the body.
The eye balls were missing.
The Vertabrae was not found attached to the skull.
With this condition of the skeleton the Doctor could not have given any better opinion.
Gulab Singh (PW 7) is a Panch witness for the recovery of the dead body.
He has deposed that when the body was removed, the tahmad and shirt were intact and they were taken out by Sub Inspector.
Man Singh (PW 8) is another Panch witness.
He has also stated that the shirt and tahmad were removed by the Sub Inspector.
washed, packed and sealed.
The Panch witnesses could not identify the shirt and tahmad as belonging to the deceased.
That clothes are said to have been identified by Shabbir and his wife Smt.
Bhoori (PW 13) .
The identification was conducted by Ramakant Dube (PW 9).
He had mixed up the said clothes with five like clothes resembling with each other.
He has stated that Shabbir and Smt.
Bhoori correctly identified them and did not commit mistake.
But if one carefully peruses his evidence, the identification was nothing but farce.
The dead body was not recovered in the presence of Shabbir.
He was called to tbe Court of the Magistrate only for the identification of the clothes and the body.
He has stated that the dead body by appearance looked like that of his brother.
We have earlier seen that the Sub Inspector had removed the clothes, washed dried and packed them separately with the seal of the panchas.
Shabbir could not have seen the dead body with the clothes.
The shirt (exhibit 1) and tahmad (exhibit 2) were no doubt mixed up with other similar clothes for the purpose of identification as deposed by PW 9.
But the witness identified exhibit 1 because there was paper chit pasted on it.
He identified exhibit 2 because it had a knot.
That is why we said earlier that the identification was a farce.
We are surprised that the Courts below should rely upon this kind of evidence.
The circumstantial evidence in the case thus falls short of the required standard on all material particulars.
We are, therefore, unable to sustain the conviction of the appellants.
PG NO 250 In the result, these appeals are allowed.
The conviction and sentence passed against the appellants are set aside.
They are acquitted of all the charges.
They be set at liberty if they are in custody, and if they are not required in any other case.
N.P.V. Appeals allowed.

summary/full:
The prosecution case was: the appellants, who were of bad character, had an evil eye on the lands belonging to the younger brother of PW 1, in furtherance of which they got a fraudulent sale deed executed and murdered him in order to eliminate the possibility of the fraud being detected.
Suspecting foul play of the appellants, PW 1 lodged an FIR.
At the instance of appellant No. 2, who was first arrested, a dead body was recovered from a water logged pond and was identified to be that of PW 1 's younger brother, on the basis of a shirt and a tahmad.
The doctor; who conducted the post mortem.
could not give the cause of death or its duration.
The appellants were convicted and sentenced under sections 302, 364 and 210 IPC by the trial Judge.
On appeal, the High Court maintained the conviction and sentence of appellant No. I but reduced the same of appellant No. 2 to one under section 201.
Allowing the appeals, HELD: The evidence against the appellants is purely circumstantial.
But the circumstantial evidence falls short of the required standard on all material particulars.
The conviction of the appellants cannot.
therefore, be sustained.
[247H, 2490A] There is no satisfactory evidence that the sale deed in question was executed by somebody impersonating the deceased.
Though PW 12, who was identified by PW 11, scribe of the sale deed, as the person who impersonated the deceased, deposed that he had put his thumb impression an the sale deed, the thumb impression of the executant and the admitted thumb impression of pW 12 were not sent for expert opinion.
Nothing could be elicited from, nor any question was put to PW 20 to corroborate the version of PW II, as to PG NO 245 PG NO 246 the contents of the sale deed or the identity of the persons who accompanied him to PW 11 or those who put the thumb impression on the sale deed.
[248B D] The evidence on record is equally unsatisfactory as to identification of the dead body.
Post mortem was done more than three months from the date of alleged disappearance of the deceased.
The doctor who conducted the post mortem stated that it was skeleton of a young adult male and was unable to give the cause of death or when the death took place owing to the condition of the body.
The two panch witnesses for the recovery of the dead body could not identity the clothes recovered from the dead body as belonging to the deceased.
Though clothes were said to have been identified by PW 1 and his wife, a perusal of PW 1 's evidence would indicate that the identification was nothing but farce.
The body was not recovered at his instance.
He could not have seen the dead body with the clothes, as these were removed, washed, dried and packed separately with the seal of the panchas.
He was called to the Court only for the identification of the clothes and body.
lie stated that the dead body by appearance looked like that of his brother.
He could identify the clothes by a chit and a knot on them.
The witnesses, who were stated to have seen the deceased going with the appellant No. 1 and his father in law did not speak anything about the dress which the deceased was wearing at that time.
PVI: Is evidence could not be believed since he and the deceased were living separately and he could not have seen all that he had stated in evidence.
[24E, G H,249A B, D H] Conviction and sentence of appellants set aside.
They are acquitted of all charges.
[250A]


judgement:
ivil Appeal No. 258 of 1982.
From the Judgment and Order dated 3.11.1981 of the Bombay High Court in Spl.
Civil Appln.
No. 2598 of 1978.
S.B. Bhasme and V.N. Ganpule for the Appellants.
PG NO 298 Dr. Y.S. Chitale.
R.F. Nariman, B.H. Antia and Mrs. A.K. Verma for the Respondents.
The Judgment of the Court was delivered by SABYASACHI MUKHARJI, J.
This is an appeal by the tenant.
It arises out of an order of eviction passed by the Civil Judge, Thane and confirmed by the learned Assistant Judge of Thane on or about 24th July, 1976.
The High Court of Bombay on or about 3rd November, 1981 dismissed an application under Article 227 of the Constitution challenging the said decision.
Civil Suit No. 176 of 1974 was filed by the respondent landlord against the appellants for possession of the building called Jamshed Villa at Thane.
The ground floor of the building consists of one hall, tow bed rooms, two side rooms and a kitchen.
The said premises was let out to one Shri S.H. Kulkarni the deceased father of the appellants some years ago by the respondent on the rent of Rs. 50 per month.
The former owner, it is stated, terminated the tenancy of the appellants on 20th June, 1976, and the deceased Shri Kulkarni continued to occupy it as a statutory tenant.
On the sale of the suit property the tenancy of Shri S.H. Kulkarni was duty attorned to the present plaintiff.
Shri S.H. Kulkarni then expired.
On 11th January, 1973 the respondents served the notice upon the appellants requiring them to vacate the suit premises on various grounds.
By the said notice the respondent also called upon the appellants to pay the arrears of rent for the period from 1st September, 1971 to 31st December, 1972 at the rate of Rs. 50 per month.
The total arrears came to Rs. 800.
Indubitably, the amount claimed in this notice was not paid by the appellants to the respondent.
The appellants replied to the notice.
In that reply, several contentions were urged.
It may be mentioned that the suit was filed on various grounds, namely, that the appellants have created a nuisance and they are irregular in paying the rent and further it was stated that the respondent required the suit premises reasonably and bona fide for his personal use and occupation.
The learned trial Judge after framing the issues, on all issues held in favour of the tenant except the issue of the arrears of rent.
The learned trial Judge held that the appellants had failed and neglected to pay the arrears of rent within the statutory period in spite of the notice under Section 12(2) of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 (hereinafter called 'the Act ').
The trial court, however, on the question whether the appellants have raised a substantial plea that the rent is excessive, did not go into this aspect in view of the decision of this Court in Harbanslal Jagmohandas & Anr.
vs Prabhudas Shivlal, ; PG NO 299 Accordingly.
the trial Judge decreed the suit on the ground that the are in arrears of rent.
There was an appeal from the said.
decision of the trial Judge to the learned Assistant Judge, Thane.
The learned Assistant Judge affirmed the order of the learned trial Judge but reiterated that the tenant could claim protection from the operation of Section l2(3)(a) of the Act, only if the tenant had made an application within one month from the service of the notice under Section I,?(i)) of the Act terminating the tenancy wherein a dispute was raised regarding the standard rent.
It is common ground that the appellants in this case did not make any application within one month from the service of the notice under Section 12(2) of the Act terminating the tenancy wherein a dispute was raised regarding the standard rent.
The learned Assistant Judge, therefore, confirmed the order for eviction.
The appellants moved the Bombay High Court.
The Bombay High Court by the judgment under appeal on 3rd November,1981 dismissed that application holding that neglect on the part of the appellants in making payment as mentioned in Section I2(3)(a) of the Act has to be decided on the facts of each case.
The High Court reiterated that after considering all the facts and circumstances both the Courts below had rightly come to the conclusion that there was on the part of the appellants within the meaning of Section l2(3)(a) of the Act, meriting a decree for eviction.
Shri Bhasme appearing for the appellants concluded before us the High Court was wrong and did not properly consider the conduct of the respondent in not giving receipts.
Before we consider this contention, it may be appropriate to refer to the provisions of Section 12 of the Act.
It provides that the landlord shall not be entitled to the recovery of possession of any premises a, long as the tenant days, or is ready and willing to pay, the amount of the standard rent permitted increases, it any.
and observes and performs the other of the tenancy, in so far as they are consistent with the of the Act.
Sub section (2) of Section 12 of also stipulate that no suit for recovery of possession shall be instituted by a landlord a tenant on the ground of non payment of the standard rent or permitted increases due, until the expiration of one month next after notice in writing of the demand of the standard rent or permitted has been served upon the tenant in the manner provided in 106 of the Transfer or Property Act, 1882.
Sub section (3)(a) and (b) of Section 12 of the Act are important and set our here under: "(3)(a) Where the rent is payable by the month and there is no dispute regarding the amount of standard rent or PG NO 300 permitted increases, if such rent or increases are in arrears for a period of six months or more and the tenant neglects to make payment thereof until the expiration of the period of one month after notice referred to in sub section (2), the Court shall pass u decree for eviction in any such suit for recovery of ' possession.
(b) In any other case no decree for eviction shall be passed in any such suit if, on the first day of Hearing of the suit or on or before such other date as the Court may fix, the tenant pays or tenders in Court the standard rent and permitted increases then due and thereafter continues to pay or tender in Court regular l4 ' such rent and permitted increases till the suit is finally decided and also pay costs of the suit as directed by the Court. " .
(Emphasis supplied) This question.
as to how a payment to be made under Section 12(3)(a) and (b), had been considered by this Court in Harbanslal Jagmohandas and Anr.(supra).
There, both the appeal raised a common question as to whether a tenant in order to resist passing of a decree of eviction under the provisions contained in Section 12 (3)(a)of the Act must dispute the standard rent within one month from the date of receipt of the notice from the landlord terminating the tenancy on the ground of arrears of rent or whether a tenant can raise such .
dispute in the written statement.
There was difference of opinion between Bombay and Gujarat High Courts.
The Gujarat High Court took,the view that the dispute as to Standard rent had to be raised within one month from the service of the notice on the tenant.
The Bombay High Court had taken a contrary view and held that the tenant could raise a dispute as to standard rent in his written statement in answer to the suit and in such a case the provisions of Section 12 (3)(a) of the act would apply.
In the Gujarat case, the High Court found that the tenant did not raise the dispute within one month of the service of the notice terminating the tenancy.
inter alia, on the ground of arrears of rent for more than 6 months.
In the Bombay appeal the dispute was not raised within one month from the date of the receipt of the notice.
It was, however.
raised in the written statement.
Under Section 11 of the the Court had power to determine standard rent when there was a dispute between landlord and tenant regarding the amount of standard rent.
It was held by this Court that under Section 12 of the Act the landlord is not untitled to recover possession of the premises so long as the tenant pays or is PG NO 301 ready and willing to pay the amount of standard rent and permitted increases.
Section 12(2) provides that no suit for recovery of possession shall be instituted by a landlord against a tenant on the ground of non payment of the standard rent until the expiration of one month next after notice in writing of the payment of the standard rent.
This Court held that the view of the Bombay High Court was erroneous and the view of the (Gujarat High Court was correct.
Sub section 3(a) of section 12 categorically provided that where the rent was payable by the month and there was no dispute regarding the amount of standard rent or permitted increases, if such rent or increases were in arrears for a period of six months or more and the tenant neglected to make payment thereof until the expiration of the period of one month after notice referred to in sub section (2), the Court shall pass a decree for eviction in any such suit for recovery of possession.
In the instant case, as has been found by the Court.
the rent is payable month by month.
There is no dispute regarding the amount of standard rent or permitted increases.
Such rent or increase are in arrears for a period of six months or more.
The tenant had neglected to make payment until the expiration of the period of one month after notice referred to in sub section (2).
The Court was bound to pass a decree for eviction in any such suit for recovery or possession In terms of the decision of this Court in Harbanslal Jagmohandas supra), the eviction order had to follow by operation of law.
Shri Bhasme, however, submitted before us that here there was no question of negligence in proper light because he drew our attention to several letters whereby the tenant to pay then rent of the landlord. 'The tenant 's case was that the landlord Was not granting receipts.
The landlord was not demanding ``rent but was demanding. ' ``compensation" for use and occupation.
He drew our attention to several decision and urged that the tenant was willing to pay the rent provided receipts were granted to him.
Shri Bhasme urged that the landlord did not comply with the request to give written receipts.
He was punishable with fine which might extend to one hundred rupee under sub section (2) of Section 26 of the Act.
Shri Bhasme submitted that in this case.
the landlord was mala fide and by his mala fide act he was preventing the tenant from performing his obligation.
He further urged that this was not a case of bona fide need.
The landlord was.
affluent and the tenant was a poor.
There was a great shortage of accommodation.
In view of the decision of this Court in Harbanslal jagmohandas and Anr.
V. Prabhudas Shivlal (supra) and the provisions.
of Section l2(3 (a) and (b) and in the Court below were right.
circumstances of the case, we must hold that the Courts below were right.
PG NO 302 Our attention was drawn to a decision of this Court in Mohan Laxman Hede vs Noormohamed Adam Shaikh, ; , where this Court reiterated that to take advantage of protection from eviction under Section l2(3)(b) of the Act, it cannot be said that exact or mathematical punctuality was required in the deposit of rent by a tenant.
The tenant had been depositing the rents in that case in Court for two or three months at a time.
There the Court was concerned with the expression "regularly" as contemplated in clause (b) of sub section (3) of Section 12 of the Act.
It was not concerned with clause (a) of sub section (3) of Section 12 of the Act.
It was not concerned with the question of total failure or neglect on the part of the tenant to pay the rent.
It may be instructive in this connection to note that in sub section (3)(a) of Sec. 12 of the Act, the expression "Court shall pass a decree" was substituted for the words "Court may pass a decree" by an amendment passed in 1963, making it mandatory to pass the decree.
When the Legislature had made its intention clear in specific terms, there was no scope for Shri Bhasme 's appeal to `the spirit of the law ' and not to the strict letter of the law.
In the aforesaid view of the matter, this appeal fails and is accordingly dismissed.
But in the facts and circumstances of the case.
the parties will pay and bear their own costs.
Furthermore, in order to cause less hardship in the situation, we direct that the appellant will have six months time to vacate the premises in question, provided they file an undertaking within six weeks from this date to this Court that they will deliver vacant possession of the premises to the landlord after the expiry of six months from this date and to go on paving rent compensation until possession is given and not to induct or let anybody in the premises in question.
in the usual terms.
P.S.S Appeal dismissed.

summary/full:
Section 12(2) of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 bars suits for recovery of possession against the tenant on the ground of non payment of the standard rent until the expiration of one month next after notice in writing.
Section 12(3)(a) provides for passing of a decree for eviction of the tenant who is in arrears for a period of six months and neglects to make payment until the expiration of the notice period provided there is no dispute regarding the standard rent.
Section 12(3)(b) interdicts passing of the decree if the tenant pays or renders in the court the standard rent and permitted increases then due.
The appellants were served with a notice under section 12(2) of the Act terminating the tenancy and calling upon them to pay arrears of rent from 1st September, 1971 to 31st December, 1972.
They did not pay the amount claimed.
No dispute was raised regarding the standard rent.
The trial court and the appellate court came to the conclusion that there was neglect on the part of the appellants within the meaning of section 12(3)(a) of the Act meriting, a decree for eviction.
The High Court dismissed the appeal.
In the appeal by special leave, it was contended for the appellants that the landlord was not granting receipts, that he was not demanding rent but compensation for use and occupation, that the landlord was acting mala fide and preventing the tenant from performing his obligation, that this was not a case of bona_fide need and that the landlord was affluent and the tenant was poor.
Dismissing the appeal, PG NO 296 PG NO 297 HELD: 1.1 In view of the provisions of section 12(3)(a) and (b) of the Act and in the background of the facts and circumstances of the case, the courts below were right.
The eviction order had to follow by operation of law.
[301H D] 1.2 Sub section 3(a) of section 12 categorically provided that where the rent was payable by the month and there was no dispute regarding the amount of standard rent or permitted increases, if such rent or increases were in arrears for a period of six months or more and the tenant neglected to make payment thereof until the expiration of the period of one month after notice referred to in sub section
(2), the court shall pass a decree for eviction in any such suit for recovery of possession.
[301B] 1.3 In the instant case, the rent was payable month by month.
There was no dispute regarding the amount of standard rent or permitted increases.
Such rent or increases were in arrears for a period of six months or more.
The tenant had neglected to make payment until the expiration of the period of one month after notice referred to in sub section
The court was bound to pass a decree for eviction in, any such suit for recovery of possession.
[301C] Harbanslal Jagmohandas & Anr.
vs Prabhudas Shivlal, ; referred to.
Mohan Laxman Hede vs Noormohamed Adam Shaikh, AIR 1988 SC.
IIII distinguished.
The expression "court shall pass a decree" in sub section 3(a), of section 12 was substituted for the words "court may pass a decree" by an amendment passed in 1963, making it mandatory to pass the decree.
When the legislature has made its intention clear in specific terms, there was no scope for appeal to the "spirit of the law" and not to the strict letter of the law.
[302C D]