judgement:
Appeal No. 15 of 1974.
From the Judgment and order dated 24.1.1973 of the Punjab and Haryana High Court in Civil Revision No. 147/72.
A.B. Rohtagi, A. Minocha and Mrs. V. Minocha for the Appellants in C.A. No. 15 of 1974 and Respondent in C.A. No. 1875 of 1974.
687 Rajinder Sachhar, K.B. Rohtagi, Praveen Jain, S.K. Dhingra and Baldev Atrey for the Respondents in C.A. No. 15/1974 and Appellant in C.A. No. 1875 of 1974.
R.B. Datar, Kailash Vasdev and Naunit Lal for Respondent No. 2 and 3.
The Judgment of the Court was delivered by KHALID, J.
These two appeals arise from the same suit and can be disposed of by a common Judgment.
The facts necessary to understand the question involved in the appeals can be briefly stated as follows: One Kalu Ram was the owner of 90 kanals of land.
He sold this land in favour of three brothers, Kewal Ram, Chet Ram and Kuldip Ram for a consideration of Rs.65,000 by a regis tered sale deed dated 1 8 1966.
Kewal Ram is residing in Village Badala in Jullunder District.
Chet Ram and Kuldip Ram were residing at 71, Windsor, Road, Forest Gate, London E 7. Smt.
Ram Lubhai, minor daughter of Kalu Ram, the vendor, filed a suit, from which these appeals arise, for possession of the land on the ground that she being the daughter of the vendor had superior fight of pre emption as against the vendees who were strangers.
Kewal Ram alone was served in the suit.
The other two were not served.
Substituted service was, therefore, taken for service on them by publication in a vernacular paper.
The suit was decreed on 31 7 1969 against all the three defendants, ex parte against Chet Ram and Kuldeep Ram.
Kewal Ram filed an appeal against this decree and Judgment.
He made his brothers Chet Ram and Kuldip Ram as proforma respondents giving their village address for service.
In the appeal also they were served by substituted service.
The appeal was heard on 5 1 1971 and was dismissed.
On 24 3 1971, Kuldip Ram and Chet Ram filed an applica tion under Order 9, Rule 13 of C.P.C. in the Trial Court for setting aside the ex parte decree against them on the ground that they were neither served in the Trial Court nor in the Appellate Court.
This application was resisted by the plain tiff on the ground that the application before the Trial Court was incompetent since the decree had merged in the appellate decree.
Evidence was taken and after hearing the parties the Trial Court set aside the entire decree.
The Trial Court held that 688 Kuldip Ram and Chet Ram were residing in England and no attempt was made to serve them personally.
That being so, the application was competent in the Trial Court as they were neither served in the Trial Court nor in the Appellate Court.
Against this order dated 10.1.
1972, the plaintiff filed a revision petition in the High Court of Punjab and Haryana as C.R.P. No. 147 of 1972.
The High Court felt that there was no error of jurisdiction in the order sought to be revised, but held that since Kewal Ram had contested the suit, there was no ground to set aside the decree against him.
On this ground, the petition was partly allowed.
The decree against Kewal Ram was allowed to stand but was set aside against the other two.
Not being satisfied with this order, the plaintiff filed an application for review on the ground that the decree for possession by way of pre emption was joint against all the defendants, that there was neither specification of the shares in the land for the three different vendees not specification of the purchase price paid by them and that as such the order setting aside the decree in part was bad.
For this purpose reliance was placed on a full Bench decision of the Lahore High Court, reported in AIR 1945 Lahore 184.
Reliance was also placed on the proviso to Order 9, Rule 13 C,P.C. This review petition was dismissed by the High Court by order dated May 30, 1973, relying upon the full Bench decision of the Punjab and Haryana High Court in the case of Kartar Singh vs Jagat Singh and Ors., ILR 1971 2 Pun.
& Har. 110.
Hence these appeals by special leave, the earlier (C.A. 15/74) by Kewal Ram and the other (C.A. 1875/74) by the plaintiff.
The learned counsel for the plaintiff contended that the two brothers of Kewal Ram were at all relevant times aware of the pendency of the suit and that the Courts below com mitted an error in setting aside the decree against them.
To reinforce this contention, he brought to our notice the fact that even in the appeal filed by Kewal Ram, the address given of his brothers was the village address.
He further submitted that the application under Order 9, Rule 13 made before the Trial Court was incompetent since the decree passed by the Trial Court had merged in the appellate de cree.
He feebly put forward a case of complicity between the two brothers to defeat the plaintiff.
Kewal Ram who is the appellant in the other appeal contended that the decree was a joint decree and it was impermissible to set aside the decree in part and keep the decree in tact in part.
According to him 689 when the decree was set aside against his two brothers it should have been set aside against him also.
Since the decree in question is one based on the right of preemption it would have been possible for us to get rid of it and dispose of the appeals by a short Judgment relying upon the Constitution Bench decision of this Court in Atam Prakash vs State of Haryana and Ors., ; by which decision the Punjab Pre emption Act, 1913 was struck down except to a small extent.
But that course is not open to us in view of the following observation by this Court in the above said Judgment: "We are told that in some cases suits are pending in various courts and, where decrees have been passed, appeals are pending in appellate courts.
Such suits and appeals will now be disposed of in accordance with the declaration granted by us.
We are told that there are a few cases where suits have been decreed and the decrees have become final, no appeals having been filed against those de crees.
The decrees will be binding inter partes and the declaration granted by us will be of no avail to the parties thereto.
" Since the decree has become final, the principle of the decision is not attracted in this case.
That takes us to the question, whether the application under Order IX, Rule 13 before the Trial Court, when the matter had been decided by the appellate court, is proper.
We proceed on the finding that neither Kuldip Ram nor Chet Ram was served either in the suit or in the appeal.
A feeble contention was put forward that fraud was practised upon these two persons in not getting service effected on them.
We do not propose to consider this aspect of the case since this case was not properly pleaded or proved.
For the purpose of this Judgment, we accept the conclusions arrived at by the court below that these two persons were not served either in the suit or in the appeal.
If so, what is the position.
It is well settled that when a decree of the Trial Court is either confirmed, modified or reversed by the Appellate decree, except when the decree is passed without notice to the parties, the Trial Court decree gets merged in the appellate decree.
But when the decree is passed without notice to a party, that decree will not, in law, be a decree to which he is a party.
Equally so in the case of an appel 690 late decree.
In this case these two persons were not served in the suit.
A decree was passed ex parte against them without giving them notice of the suit.
In law, therefore, there is no decree against them.
In the appeal also they were not served.
If they had been served in the appeal, things would have been different.
They could have put for ward their case in appeal and got appropriate orders passed.
But that is not the case here.
That being so, there is no bar for an application by them before the Trial Court under Order IX, Rule 13, to set aside the ex parte decree against them.
This is the only point that arises in the appeal filed by the plaintiff.
The appeal has to fail and is dismissed.
The appeal by Kewal Ram is based on the plea that the decree passed by the Trial Court and the Appellate Court, against him and his two brothers, was a joint and indivisi ble decree and as such the decree cannot be set aside in part, by allowing the application under Order IX, Rule 13.
He pressed into service a full Bench decision of the Lahore High Court, reported in 1945 Lahore 184.
We do not pause to consider the principle settled in that decision because it has no application to the facts of this case.
Here, the plaintiff has obtained a decree against Kewal Ram, based on the right of pre emption.
That decree has to stand, so far as Kewal Ram 's right in the property is concerned.
She will have to work out here remedies either in execution or by a partition suit to get her share in the properties.
There is no merit in Civil Appeal No. 15 of 1974 either.
This appeal is also dismissed.
The plaintiff will be entitled to get back two thirds share of the amount of consideration paid for the property, from Kuldip Ram and Chet Ram.
The parties are directed to bear their costs.
S.R. Appeals dismissed.

summary/full:
One Kalu Ram was the owner of 90 Kanals of land.
He sold this land in favour of three brothers, Kewal Ram, Chet Ram and Kuldip Ram for a consideration of Rs.65,000 by a regis tered sale deed dated 1.8.1966.
Kewal Ram is residing in Village Badala in Jullunder District.
Chet Ram and Kuldip Ram were residing at 71, Windsor Road, Forest Gate, London.
Ram Lubhai, minor daughter of Kalu Ram filed a suit for possession of the land on the ground that she being the daughter of the vendor had superior right of pre emption as against the vendees who were strangers.
Kewal Ram alone was served in the suit.
The other two were not served.
Substi tuted service was, therefore, taken for service on them by publication in a vernacular paper.
The suit was decreed on 31.7.1969 against all the three defendants, ex parte against Chet Ram and Kuldeep Ram.
Kewal Ram filed an appeal against this decree and judgment.
He made his brothers Chet Ram and Kuldip Ram as proforma respondents giving their village address for service.
In the appeal also they were served by substituted service.
The appeal was heard on 5.1.1971 and was dismissed.
On 24.3.1971, Kuldip Ram and Chet Ram filed an applica tion under Order 9, Rule 13 of C.P.C. in the Trial Court for setting aside the ex parte decree against them on the ground that they were neither served in the Trial Court nor in the Appellate Court.
The Trial Court 786 accepted the application and set aside the decree passed.
Against this order dated 10.1.1972, the plaintiff filed a revision petition in the High Court of Punjab and Haryana as C.R.P. No. 147 of 1972.
The High Court felt that there was no error of jurisdiction in the order sought to be revised, but held that since Kewal Ram had contested the suit, there was no ground to set aside the decree against him.
On this around, the petition was partly allowed.
The decree against Kewal Ram was allowed to stand but was set aside against the other two.
The review petition filed by Smt.
Ram Lubhai was dismissed by the High Court.
Hence the appeals by special leave.
Dismissing the appeals, the Court, HELD: It is well settled that when a decree of the Trial Court is either confirmed, modified or reversed but the Appellate decree, except when the decree is passed without notice to the parties, the Trial Court decree gets merged in the appellate decree.
But when the decree is passed without notice to a party, that decree will not, in law, be a decree to which he is a party.
Equally so in the case of an appel late decree.
In this case these two persons were not served in the suit.
A decree was passed ex parte against them without giving them notice of the suit.
In law, therefore, there is no decree against them.
In the appeal also they were not served.
If they had been served in the appeal, things would have been different.
They could have put for ward their case in appeal and got appropriate orders passed.
But that is not the case here.
That being so, there is no bar for an application by them before the Trial Court under Order IX, Rule 13, to set aside the ex parte decree against them.
[689G H; 690A B] There is no error of law in allowing a joint decree to stand against the person who contested throughout while setting aside the ex parte decree passed against others without serving them personally on admitting the application under Order IX Rule 13 C .P.C. [690C]


judgement:
Civil Appeal No. 87 of 1950.
Appeal from the Judgment and Decree dated 8th Febru ary, 1949, of the High Court of Judicature at Patna (Manohar Lall and Mahabir Prasad JJ .) in Appeal No. 38 of 1946 arising out of decree dated the 18th December, 1945, of the Subordinate Judge of Deoghar in Title Suit No. 1 of 1939.
B.C. Dey (S.C. Ghose, with him) for the appellant.
M.C. Setalvad (Kanhaiyaji, with him) for the respondent.
154 1951.
November 29.
The Judgment of Mehr Chand Mahajan and Vivian Bose JJ.
was delivered by Mahajan J. Fazl Ali J. delivered a separate judgment.
MAHAJAN J.
The question involved in the appeal relates to the right of succession to six Birbhum ghatwalis governed by Regulation XXIX of 1814, annexed to Gaddi Pathrol and lying within Tappasarath in the Santhal Parganas.
the genealogy of the contestants appears from the following pedigree table: .
Digbijoy Singh I Gurohari SinghKanhai Singh Bhairo Singh Balram Singh (Ghatwal) I I Pratar Singh I I I I I Banwari Singh Pitambar Katku Singh Bharat Singh (Died (Ghatwal) issueless) I Kharagdhari Singh (Ghatwal) I Ram Chandra Singh (Ghatwal) I I Brijbehari Singh Sarju Prasad Singh (Ghatwal) (Original plaintiff) I I Krishna Prasad Singh Hargobind Prasad Singh (Ghatwal) (Substituted plaintiff) I I Kali Prasad Singh Durga Prasad (Ghatwal) ( Died issueless) I Phaldani Kumari (Defendant) Tikait Kali Prasad Singh, the last gaddidar of Pathrol, died in the year 1935.
He belonged to the Baisi Chaurasi clan.
On the 29th November, 1935, the 155 Commissioner of Bhagalpur Division recognized Smt.
Phaldani Kumari as the next ghatwal and entitled to be maintained in possession of the ghatwali estate on the 30th November, 1936, sarju Prasad Singh brought the suit out of which this appeal arises in forma pauperis in the court of the Subor dinate Judge of Deoghar for possession of the ghatwalis.
In paragraphs 7, 8 and 10 of the plaint it was alleged that the ghatwalis in suit were joint family property and were im partible by custom; that succession to them was governed by the law of lineal primogeniture; that the females and persons claiming through them were altogether excluded from inheritance.
It was claimed that the late Tikait Kali Prasad Singh and the plaintiff were members of a joint Mitakshara family and that he alone as the eldest member of the eldest surviving line of the descendants of the common ancestor was entitled to succeed to them.
The defendant in her written statement denied this claim and contended that Birbhum ghatwalis governed by Regulation XXIX of 1814 are not and cannot be in the nature of joint family property but that the person who succeeds and holds the tenure as ghatwal is the sole proprietor and owner thereof.
It was pleaded that the properties being the exclusive and separate properties of the ghatwal for the time being, the defendant, his widow, was entitled to suc ceed to them in preference to the plaintiff under the Mitak shara school of Hindu law which admittedly governed the family of the parties.
The pleadings of the parties gave rise to the following issues : 1.
Whether succession to the ghatwalis in question is governed by the customs alleged in para 7 of the plaint ? 2.
Did the ghatwalis in question form joint family property of Kali Prasad Singh, his ancestors in the direct line and of Sarju Prasad Singh and the plaintiff? 3.
Did Kali Prasad die in a state of jointness with Sarju Prasad Singh ? 156 4.
Are the ghatwals the sole proprietors of the ghatwalis for the time being as alleged by the defendant ? 5.
Whether the plaintiff or the defendant is entitled to succeed to the properties in suit ? Issues 2, 3 and 4 were found by the trial Judge in favour of the plaintiff and against the defendant.
It was held that Kali Prasad Singh died in a state of jointness with Sarju Prasad Singh and that the ghatwalis in question were their joint family property and that the plaintiff the eldest surviving copartner in the eldest line of Digbijoy Singh 's descendants was entitled to succeed to them in preference to the widow.
It was common ground between the parties that in case the properties were held to be the separate properties of Kali Prasad Singh, the widow was entitled to succeed to them.
As a result of these findings the plaintiff 's suit was decreed with costs.
On appeal by the widow to the High Court, this.
decree was reversed and the plaintiff 's suit was dismissed with costs.
It was held that the character of the ghatwali tenures in question was such that they could not be regarded as joint property of the plaintiff and the last ghatwal and that being so, the defendant was entitled to succeed to them.
The learned counsel for the appellant based his argu ments on the thesis that the ghatwali estates in question were of the same nature and character as joint family im partible estates governed by the Mitakshara law and that the rule of survive applicable to such estates was also applicable to them.
It was contended that the High Court was in error in holding that the suit properties exclusively belonged to Kali Prasad Singh or that there was anything peculiar in these tenures which differentiated them from other ghatwalis in the Santhai Pargangs or from other im partible estates known to Hindu law and which peculiarity incapacitated them from being included within the definition of coparcenary property.
The plea that females were by custom excluded from inheriting ghatwali tenures in Birbhum was 157 dropped in the two courts below and was ' not raised before us; so also the point of custom set out in para.
7 of the plaint and covered by issue 1 was not seriously urged.
The learned Attorney General, while conceding that succession to these tenures was governed by the Mitakshara law, contended that in no sense could they be regarded as joint family property and that their peculiar characteris tics precluded the acquisition of any right by birth by members of a joint Hindu family in them.
He also urged in the alternative that the widow was 'entitled to succeed to them, assuming them to be joint family property under cus tom.
The courts below have given elaborate judgments in the case and reference has been made to a large number of decid ed cases.
In our opinion, the main point that needs decision is whether the suit ghatwalis were to be regarded as joint family or separate properties of the deceased.
For a solu tion of this problem it is necessary to refer first to the nature and main incidents of a ghatwali tenure.
Its origin is now well known.
In Moghul times grants of land were made to selected persons who were appointed guardians of the mountain passes for protecting the countryside against hill invaders and the office held by these persons bore the designation "ghatwal".
These grants were made in some cases directly by the ruling power and in other cases by the zamindar responsible by custom for the maintenance of secu rity and order within the estate as consideration for the performance of the duties.
By efflux of time these grants assumed the form of an actual estate in land, heritable and perpetual, but conditional upon services certain or services to be demanded.
Reference to some of the decided cases relating to Birbhum ghatwali tenures will sufficiently indicate their nature and character.
In Harlal Singh vs Joravan Singh(1), it was held that a ghatwali estate in Birbhum was not divisible (1) 6 Select.
Rep.204.
21 158 on the death of a ghatwal, amongst his heirs but should devolve entirely on the eldest son or the next ghatwal.
It was said that ghatwali lands are grants for particular pur poses, especially of police, and to divide them into small portions amongst the heirs of the ghatwals would defeat the very ends for which the grants were made.
In Satrukchunder Dey vs Bhagat Bharutchunder Singh(1), a decision of the year 1853, it was stated that the ghatwali tenures in Birbhum were not private property of the ghatwals but lands assigned by the State in remuneration for specific police services and were not alienable or attachable for personal debts.
Kustooree Koomaree vs Monohur Deo(2), Loch J. took the view that succession to ghatwalis is regulated by no rule of kulachar or family custom, nor by the Mitakshara law, but solely by the nature of the ghatwali tenure, which descends undivided to the party who succeeds to and holds the tenure as ghatwal and that a female is not incapable of holding a ghatwali tenure.
It was said that "the party who succeeds to and holds the tenure as ghatwal must be, and has always been, looked upon as sole proprietor thereof, and, therefore, the other members of the family cannot claim to be coparceners and entitled to share in the profits of the property, though they may, by the permission and goodwill of the incumbent, derive their support, either from some portion of the property which he may have assigned to them, or directly from himself." In Binode Ram Sein vs Deputy Commissioner of Santhai Pargangs(3), (on review it was held that the rents of a ghatwali tenure are not liable for the debts of the former deceased holder of the tenure.
The reason for the decision was that the tenure was held for the purpose of public services and those who perform the services are entitled to the whole of the remuneration.
(1) 9 S.D.R. 900.
(3) (2) 1864 W.R. (Gap Nos.) 39.
159 In Tekait Durga Pershad Singh vs Teketnee Durga Kuari(1), it was urged that a female 's right to inherit was inconsistent with a ghatwali estate.
This contention was negatived and reference was made to the fact that many ghatwali estates were held by females and it was observed that it was difficult to hold that a ghatwali estate must necessarily be held by male heirs.
This case further sug gests that in a case where it is held proved that the family was joint, succession to Birbhum ghatwali may be regulated by the same rule of Hindu law as is applicable to the devo lution of impartible estates.
In Ram Narain Singh vs Ramoon Paurey(2), another Birbhum ghatwali case, it was held that the ghatwal for the time being was only entitled to interest on the compensation money obtained for compulsory acquisition of a part of the ghatwali interest but that he could not spend the corpus of it which had to devolve on the next heir intact.
So far as Birbhum ghatwalis are concerned, it is only the above mentioned cases to which our attention was drawn.
Reference in this connection is also necessary to the terms of Regulation XXIX of 1814.
Sections I and II of the Regulation which are material to this enquiry are in these terms : I.
Whereas the lands held by the class of persons denom inated Ghautwauls, in the district of Beerbhoom, form a peculiar tenure to which the provisions of the existing Regulations are not expressly applicable; and whereas every ground exists to believe that, according to the former usages and constitution of the country, this class of per sons are entitled to hold their lands, generation after generation, in perpetuity, subject nevertheless to the payment of a fixed and established rent to the zemindar of Beerbhoom, and to the performance of certain duties for the maintenance of the public peace and support of the police; and whereas the rents payable by those tenants have been (1) (2) 160 recently adjusted, after a full and minute inquiry made by the proper officers in the revenue department; and whereas it is essential to give stability to the arrangements now established among the Ghautwauls, the following rules have been adopted, to be in force from the period of their pro mulgation in the district of Beerbhoom.
A settlement having lately been made on the part of the Government with the Ghautwauls in the district of Beerb hoom, it is hereby declared that they and their descendants in perpetuity shall be maintained in possession of the lands, so long as they shall respectively pay the revenue at present assessed upon them,. " The result of the decided cases and of the provisions of the regulation is that the grantee of the tenure and his descendants have to be maintained in possession of the land from generation to generation conditional upon services to be rendered.
The tenure is however liable to forfeiture for misconduct or misbehavior of the ghatwal for the time being.
The succession to it is determined by the rule of lineal primogeniture.
It is neither partible nor alienable (except in exceptional cases with the consent of the government or the zamindar, as the case may be).
These two characteristics are inherent in its very nature and have not been annexed to it by any rule of custom.
The estate in the hands of the last holder is not liable either to attachment or sale in execution of a decree against him; nor is it liable in the hands of his successor for payment of his debts.
When the succession opens out, the heir determined according to law has to execute a muchilika in favour of the grantor guaranteeing the performance of the duties annexed to the office and stipulating that in case of misconduct or misbehaviour or non fulfilment of the obligations attaching to the office, as to which the tenure is in the nature of a remuneration, government will have the right to resume it.
In view of these peculiar characteristics of a ghatwali tenure in Birbhum which are so different from other inheri tances, we find it difficult to apply to it the 161 law of Mitakshara to the full extent.
The essence of a coparcenary under the Mitakshara law is unity of ownership.
As observed in Katama Natchir vs The Raja of Sivaganga(1), there has to be community of interest and unity of posses sion between all the, members of the family, and upon the death of any one of them the others may well take by survi vorship that in which they had during the deceased 's life time a common interest and a common possession.
The inci dents attaching to a Birbhum ghatwali tenure rule out the existence of any notion of community of interest and unity of possession of the members of the family with the holder for the time being.
He is entitled to be maintained in exclusive possession of the ghatwali lands and the devolu tion of the property is to him in the status of a sole heir.
This view finds support from the observations of Lord Fitz gerald in Kali Pershad vs Anand Roy(2), though made in respect of a zamindari ghatwali, yet also appositely ap plicable to a government ghatwali.
His Lordship observed as follows : "Where, however, the Mitakshara governs, each son imme diately on his birth takes a share equal to his father in the ancestral immoveable estate.
Having regard to the origin and nature of ghatwali tenures and their purposes and inci dents as established by decided cases, most of which have been referred to in the course of the argument, it is admit ted that such a tenure is in some particulars distinct from, and cannot be governed by, either the general objects of Hindu inheritance as above stated, or by the before quoted rule of the Mitakshara.
It is admitted that a ghatwali estate is impartable that is to say, not subject to partition; that the eldest son succeeds to the whole to the exclusion of his brothers.
These are propositions that seem to exclude the application of the Mitakshara rule that the sons on birth each take an equal estate with the father and are entitled to partition.
" Similar opinion was expressed in Chhalraclhari Singh vs Saraswati Kumari(3), by a Bench of the (1) (1861 3) 9 M.I.A. 543.
(3) Cal.
(2) Cal.
471. 162 Calcutta High Court.
The following passage from that a decision may be quoted with advantage : "The learned pleader for the appellant has however con tended before us ,that, although this ghatwali tenure is impartible, yet according to the decision of their Lordships of the Privy Council in Chintaman Singh vs Nowlukho Koon wari(1), it is not necessarily separate property, and that as their Lordships observe 'whether the general status of a Hindu family be joint or undivided, property which is joint will follow one and property which is separate will follow another course of succession. ' The decision referred to is no doubt an authority for the proposition that there may be impartible joint family property, such as a raj or other estate similar to a raj, but whether such property is to be regarded as joint or separate would appear to depend generally upon the character of the property at its incep tion, such as the nature of the grant, etc.
creating it.
Having regard however to the view we have already expressed as to the status of the family in the present case, and as to the ghatwali tenure having been the exclusive property of Ananta Narain, we think it is unnecessary to determine what was originally the character of this tenure, although, if we were called upon to decide the question, we should be disposed to say, with reference to the peculiar character of these tenures as described in Regulation XXIX of 1814, that they were intended to be the exclusive property of the ghatwalforthe time being, and not joint family property in the proper sense of the In Raja Durga Prashad Singh vs Tribeni Singh(2), again it was said as follows : "It was certainly an advantage to the whole family that one of their members should hold the office and the tenure.
He could put other members of the family into minor offices and grant them subordinate interests commonly called jotes, and he could and would generally provide for the family in the manner (1) (2) (1918) 45 I.A. 251. 163 expected of its head.
But this is a long way off making him a trustee for the family or treating the ghatwali estate as possessed by the family and reducing the ghatwali to the position of karta or managing head of the family.
Their Lordships do not find that the incidents of ghatwali tenure are such as to give the family any rights over the property while it is in the hands of the ghatwal, and they find themselves upon this point in full agreement with the courts in India.
" In Narayan Singh vs Niranjan Chakravarti(1), Lord Sumner made an exhaustive review of the decided cases and examined the whole position of ghatwali tenures generally and ob served that where the tenure is hereditary, a recognized right to be appointed ghatwal takes the place of a formal appointment and a recognized right in the superior to dis miss the ghatwal if he is no longer able and willing to render the service required by his tenure, and to appoint another to the office and the tenure of the lands, then readily suffices to maintain in perpetuity the incidents of the tenure.
In these circumstances it is not possible to hold that the Mitakshara rule that when a person inherits property from any one of his three immediate paternal ancestors, his sons, grandsons and great grandsons acquire an interest in it by birth can have any application to the case of these grants which are in the nature of a remuneration for the performance of certain services by the holder of that of fice.
A ghatwali has to be regarded as something connected with an office and as observed by Lord Sumner in the above mentioned case, the office cannot except by special custom, grant or other arrangement, either run with lands or be served from them.
In other words, just as primogeniture and impartibility are handmaids, similarly the ghatwal 's office and the ghatwali tenure are two inseparables and cannot be lodged in separate compartments.
If the office cannot be in the nature of coparcenary property, the tenure must follow the same way.
Thus it is not easy to conceive that an inter est (1) (1924) 51 I.A. 37.
164 can be acquired at the birth of a member of a joint family in a tenure which is annexed to an office, even if it has descended from three immediate paternal ancestors.
In certain eventualities the selection of the next heir depends on the choice of the ruling authority and in case of miscon duct or misbehaviour of the holder for the time being the ruling power can not only dismiss the ghatwal but even resume the tenure.
This is a feature which places this heritable property in a class by itself as distinguished from other inheritances governed by the Mitakshara law.
The view that in Birbhum, ghatwali tenures are in the nature of separate property or the exclusive property of the ghatwal finds support from the fact that in many instances, whenever succession has opened out in respect of them, it has been determined according to the Mitakshara rule ap plicable to the devolution of separate property irrespective of the circumstance whether the deceased died in joint or separate status with the other members of the family.
Thirteen instances of such practice in the past amongst members of the Bais Chaurasi clan were proved in the case, in all of which the widow succeeded in preference to a male heir.
The learned trial Judge held that in some of these instances the female succeeded because the agnate nearest in line was separate from her husband; as regards the others though he reached the conclusion that the evidence of sepa ration was weak, he thought that these did not establish a custom superseding in cases of joint family property the rule of survivorship.
The High Court was of a different opinion.
It rightly remarked that while numerous instances of female succession to the estates held by Baisi Chaurasi gaddidar 's had been proved, not a single instance of a female having been excluded from the appointment of a ghat wal on the ground of an agnate being entitled to come in as a coparcener of the last holder by survivorship had been proved, and that in these circumstances there was force in the contention that even if the tenures in question were ancestral joint family property, succession thereto was 165 governed by the Mitakshara rule applicable to separate property.
For the reasons given above we held that the Mitakshara rule that the property inherited by a person from his imme diate paternal ancestors becomes ancestral in his hands and in it his sons, grandsons and great grandsons acquire a right at the moment of the birth has no apposite application to Birbhum ghatwali tenures.
The learned counsel for the appellant in support of his contention placed reliance on a number of decisions of their Lordships of the Privy Council concerning impartible estates governed by the Mitakshara law, wherein it was held that the succession to an impartible estate which is the ancestral property of a joint Hindu family governed by the Mitakshara law is governed by the rule of survivorship subject to the custom of impartibility; the eldest member of the senior branch of the family succeeding in preference to the direct lineal senior descendants of the common ancestor, if the latter is more remote in degree.
Particular reference was made to the remarks of Turner L. I. in the Sivaganga case(1), and to the observations in Baijnath Prasad Singh vs Tej Bali Singh (2) and in the case of Shiba Prasad Singh vs Rani Prayag Kumari Debi(3).
Therein it was said that in the case of ordinary joint family property the members Of the family have (1) the right of partition, (2) the right to restrain alienations by the head, (3) the right of mainte nance, and (4) the right of survivorship.
The first of these rights cannot exist in the case of an impartible estate, though ancestral, from the very nature of the estate.
The second and third are incompatible with the custom of impart ibility.
To this extent the general law of the Mitakshara has been superseded by custom and the impartible estate, though ancestral, is clothed with the incidents of self acquired and separate property.
But the right of survivor ship is not inconsistent with the custom of impartibility.
This right (1) (1861 3) 9 M.I.A. 543.
(3) A.I.R. 1932 P.C. 216.
(2) All.
22 166 therefore still remains and to this extent the estate still retain.s its character of joint family property and its devolution is governed by the general Mitakshara law applicable to such property and that though the other rights which a coparcener acquires by birth in joint family proper ty no longer exist, the birthright of the senior member to take by survivorship still remains.
In our view, these observations have no application to the tenures in suit.
As already indicated, it is not possi ble to concede in their case that a member of a joint family governed by the Mitakshara law acquires any right by birth in them.
The general law of Mitakshara creating that right seems to have been superseded in their case not only by peculiarities inherent in the nature of these tenures but by encroachments of custom on it.
Moreover, it appears that the remarks relied upon were made in cases where the impartible estates were admittedly joint family property or the grants were of such a character that they are intended for the benefit of the family as such.
The ratio of these decisions was that even though certain incidents attaching to joint family property may cease to exist by custom, some others which are not affected by custom may survive.
This reasoning can have no application to property which at no stage what ever could be clothed or was clothed with any of the inci dents of coparcenary property.
The learned counsel for the appellant placed considera ble reliance on the observations of Sir Dawson Miller C.J. in Fulbati Kumari vs Maheshwari Prasad(1).
The learned Chief Justice therein dissented from the View urged before him that all ghatwali property is the exclusive separate property of the holder for the time being and that it de volves according to the rules affecting separate property subject again to the circumstance of impartibility.
He observed that the fact that a raj is impartible does not in a case governed by the Mitakshara law make it separate or self acquired property, that it may be self acquired (1) A. I. R. 1923 Pat.
167 property or it may be the property of a joint undivided family and that in the latter case succession will be regu lated according to the rule of survivorship.
In our opinion, these observations have no application to the case of Birb hum ghatwalis because in express terms these were excluded from consideration in that case.
In the judgment it was said : "In our opinion, the estate in the present case is in no way comparable to the Birbhum ghatwali tenures and Regula tion XXIX of 1814 does not apply to it." The decision in the case proceeded on the assumption that Birbhum ghatwalis stood apart from other ghatwalis which stood on the same footing as impartible estates gov erned by Mitakshara law.
The learned Attorney General challenged the correctness of these decisions and contended that the decisions of the Privy Council on this subject were not uniform.
He drew our attention to the observations made in Sartaj Kuari 's case(1), in the Second Pittapur case(2), and in Tipperah case(3).
There may be a seeming conflict between the view expressed in those decisions and the view expressed in Baijnath Prasad Singh vs Tej Bali Singh(4), and in Shiba Prasad Singh vs Rani Prayag Kurnari Debi(5).
It seems to us however that these latter cases have settled the law ap plicable to joint family impartible estates governed by Mitakshara law and it is rather late in the day to reopen a controversy settled by a series of decisions of the Privy Council.
The contention that on the death of the last holder a ghatwali tenure in Birbhum reverts to the grantor and that notionally there is a resumption of it in favour of govern ment and a re grant to the next heir does not impress us.
On the express terms of the regulation these tenures are heritable from generation to generation and the theory of resumption and re grant is inconsistent with their heritable character.
Inheritance can never remain in abeyance and on the (1) (4) All.
(2) (1918) 45 I.A. 148.
(5) A.I.R. 1932 P.C. 216.
(3) (1867 9) 12 M.I.A. 523.
168 death of the last holder the estate immediately vests in the next heir.
The circumstance that the government may in certain events have the power to dismiss a ghatwal or to forfeit the tenure cannot lead to the inference that it terminates and is re granted at every death.
The argument of the learned counsel for the appellant that a widow not being a descendant of the grantee under the terms of Regulation XXIX of 1814, is not entitled to inherit to Birbhum ghatwali tenures also does not impress us.
The regulation does not enact any rule of succession to these tenures, and the devolution with respect to them is admit tedly determined by personal law or custom.
The expression "descendants" used in the regulation cannot deprive females, like a widow or a mother, from taking the inheritance where they are legal heirs under Mitakshara law or under custom.
Females have invariably been allowed to succeed to these tenures in the past.
The appellant 's counsel conceded that if the property was the separate property of Kali Prasad Singh, the defendant was entitled to inherit to it.
We think that the expression "descendants" has been loosely employed in the regulation for the word "heirs".
On this point we are in agreement with the observations made by a Bench of the Calcutta High Court in Chhatradhari Singh vs Saraswyati Kumari(1).
It may further be pointed out that even if the conten tion of the learned counsel for the appellant is to be accepted, by no process could the trial court have passed a decree in favour of the plaintiff in respect of items 4, 5 and 6 of the schedule Admittedly these were acquired by Krishna Prasad Singh, father of Kali Prasad Singh by a decree of court passed in his favour against his collateral Katku Singh who also claimed these properties as an heir to the last male owner Banwari Singh (vide Exhibit 4).
These pro perties having devolved upon Krishna Prasad Singh by obstructed heritage, were in the nature of separate property in his hands and could not fall within the (1) Cal.
156. 169 definition of ancestral property given in Mitakshara.
Sarju Prasad Singh, uncle of Krishna Prasad Singh, could acquire no right or roterest in these properties by birth enabling him to claim them by survivorship.
Kali Prasad Singh who inherited them on the death of his father got them as his separate property as he had no son who could acquire any interest in them by birth.
With regard to this property the widow was certainly an heir after the death of her husband ' and plaintiff could have no claim whatsoever in respect of these items of the schedule.
This aspect of the case seems to have been lost sight of in the two courts below.
The result, therefore, is that this appeal fails and is dismissed with costs.
FAZL ALI J.
While agreeing generally with my learned brother Mahajan J., I wish to say a few words to indicate the main ground on which I would dismiss this appeal.
There are a number of authoritative decisions dealing with the special features of ghatwali property, one of which is said to be that if the ghatwal is a member of a joint family, the family has no right over the property while it is in his hands.
[See Durga Prashad Singh vs Tribeni Singh(1)].
The logical corollary from this characteristic of ghatwali property would seem to be that it is more in the nature of exclusive property of the ghatwal than of joint family property.
Nevertheless, in some cases, succession to such property has been determined with reference to the rules of Hindu law regarding joint property, where the ghatwal was found to be a member of the joint family.
As at present advised I am not prepared to say that those cases were wrongly decided, but I think it will not be incorrect to say that custom and usage are also important factors governing succession to ghatwali property, and it is con ceivable that while in some cases custom may develop on the lines of Hindu law relating to succession owing to repeated instances of (1) (1918) 45 I.A. 251. 170 tacit and unquestioned application of the law, in other i.a cases succession to ghatwali property may be governed not entirely by Hindu law but by such law as modified in certain respects by usage and custom.
The question with which we are concerned in this case is whether the widow of a deceased ghatwal, who was a member of a joint family and died leaving no issue or direct male descendants, can succeed to the ghatWali property in prefer ence to the nearest male agnate.
On a reference to the plaint, it would appear that what the plaintiff contended was that the clan to which the parties belong was governed by the Mitakshara school of Hindu law "subject to their clan custom", one of which was said to be that females, viz., widow, daughter or mother, and persons claiming through females could not and did not succeed on the death of the ghatwal.
This allegation was controverted in the written statement, and it was claimed that the family was governed by the Mitakshara system of law and "there was no clan custom governing the estate in suit.
" Upon these pleadings, one of the issues framed by the trial court was "whether succession to the ghatwali is governed by custom, as alleged in paragraph 7 of the plaint." In the course of the trial, the plaintiff tried to prove that females were always excluded as alleged by him.
In this, he did not succeed.
The courts below however found that the question which directly affected the present case was a much narrower one, namely, whether females could succeed even when the family was joint.
So far as this question is con cerned, both the courts below are agreed that females cannot be excluded if the property is the separate property of the ghatwal.
But the question which still remains to be decided is what the true legal position would be if the property is deemed to be joint property.
It appears that evidence was adduced at the trial to show that in 13 instances affecting the Baisi Chaurasi clan to whom the Birbhum ghatwals admit tedly belong, the widow of the last ghatwal succeeded in preference to a male agnate.
171 The trial judge however found that in four of these in stances the nearest agnate who claimed the property was separate from the ghatwal or his widow, but, in the other instances, there was no evidence of separation, or "the evidence was weak", which, I take it, is another way of saying that it could not be safely relied on.
It seems to me that these instances lend some support to the view that Hindu law has been modified ' by custom, so far as the Birb hum ghatwalis are concerned, and that among the ghatwals belonging to this class, where the last ghatwal dies leaving a widow but no issue, then she succeeds in preference to the nearest male agnate, even though the family may be joint.
The Birbhum ghatwals form a class by themselves, and they are also subject to a special Regulation Regulation XXIX of 1814.
That Regulation states among other things that this class of ghatwals shall be entitled to hold the ghatwali property generation after generation and that they and their descendants in perpetuity shall be maintained in possession of such property.
Strictly speaking, neither a widow nor a distant agnate will come within the terms of the Regulation, not being a descendant of the last ghatwal, and therefore custom and usage cannot be ruled out in determining succes sion in such cases.
The strongest case which was relied upon by the appellant is Fulbati Kumari vs Maheshwari Pra sad(1) where it was laid down that on the death of a ghat wal, who was a member of a joint family, the ghatwali property would devolve according to the rules of Hindu law affecting joint property, that iS to say, by the rule of survivorship.
But, in this case, Dawson Miller C.J. who delivered the judgment, took care to observe that the ghat wali estate which was the subject of litigation was not comparable to the Birbhum ghatwali 'tenures, which means that the rule laid down in that case may not apply to Birb hum ghatwals.
In the present case, the Commissioner, who represented the Government and who had special means of knowing the usages affecting the Birbhurn ghatwals.
(1) A.I.R. 1923 Pat.
453. 172 appointed the respondent as the ghatwal, stating that he was "following a well established precedent in the case of these ghatwals by recognizing the widow in the absence of a direct heir.
" In my opinion, whatever evidence there is in this case supports the Commissioner 's view, and there is hardly any cogent evidence to rebut it.
In the circumstances, I agree that this appeal ought to be dis missed with costs.
Appeal dismissed.
ADAMJI UMAR DALAL vs THE STATE OF BOMBAY @ November 26, 1951.

dataset_name: IN-Abs

summary/full:
Held by the Full Court Amongst the Birbhum ghatwals, when the holder of a ghatwali dies leaving a widow but no direct lineal descendants, the widow succeeds in prefer ence to the nearest male agnate, even though the family may be a joint family.
Per MAHAJAN and Bose JJ.
The Mitakshara rule that the property inherited by a person from his immediate paternal ancestors becomes ancestral in his hands, and his sons, grandsons and great grandsons acquire a right in it at the moment of their birth has no application to Birbhum ghatwali tenures.
The word "descendants" is used in Regulation XXIX of 1814 loosely in the sense of "heirs" and does not mean lineal descendants.
FAZL ALI J. Custom and usage are important factors governing succession to ghatwali property, and while in some cases custom may develop on the lines of Hind law relating to succession 0wing to repeated instances of tacit and unquestioned application of the law, in other cases succes sion to ghatwali property may be governed not entirely by Hindu law but by such law as modified in certain respects by usage and custom.
Fulbati Kumari vs Maheswari Prasad (A.I.R. 1923 Pat.
453) distinguished.


judgement:
Civil Appeal No. 92 of 1957.
Appeal by special leave from the judgment and order dated May 11, 1956, of the Labour Appellate Tribunal of India, Calcutta, in Misc.
Case No. C 152 of 1955.
B. Sen, section N. Mukherjee and B. N. Ghosh, for the appel lants.
D. L. Sen Gupta (with him Dipak Dutta Choudhri), for the respondent.
September 20.
The following Judgment of the Court was delivered by BHAGWATI J.
This appeal with special leave against the decision of the Labour Appellate Tribunal of India, Calcut ta, arises out of an application made by the appellant under section 22 of the Industrial Disputes 66 516 (Appellate Tribunal) Act, 1950, (hereinafter referred to as "the Act") for permission to discharge the respondent.
The respondent had been appointed as a pay clerk in the appellant 's cash department on April 30.
1945, and had been con and had been confirmed in service with effect from August 1, 1945.
Since the beginning of 1949, the respondent was found to have become negligent and careless in his work and he was also disobedient and slow in the performance of the duties that were allotted to him.
Repeated verbal and written I warnings were given to him but they had no effect whatever.
Consequently the Chief Cashier by his letter dated October 24, 1949, addressed to the Manager of the appellant, complained that he was very negligent and care less in his work, and habitually showed sulkiness, that he was also disobedient, and shirked the duties that were allotted to him an that recently, he was careless enough to keep the Company 's money in an open drawer of a safe, and go home, without locking the same.
The Management thereupon asked for his written explanation which he submitted on October 28, 1949, stating that if there was anything wrong on his part that was due to his ill health, hard work and mental anxiety.
He, therefore, asked to be excused and stated that he would take much more care in future about his work.
On November 17, 1949, the Chief Cashier again com plained against the respondent stating that he had not only registered no improvement but was grossly negligent in his duties, in spite of repeated warnings, and was in the habit of absenting himself on flimsy grounds, and always tried to avoid duties that were entrusted to him and was very inso lent in his behaviour and conduct.
A charge sheet was submitted to him on November 18, 1949, and he was suspended till the final disposal of the enquiry.
On November 19, 1949, the respondent wrote a letter to the Managing Director of the appellant pleading not guilty to the charges framed against him and asking for an interview so that he may have a chance to represent his grievances personally.
The re spondent was granted an interview with the Manager of 517 the appellant who investigated the case of the respondent and found him guilty of the charges framed against him.
The respondent had admitted having been rude to his superior officer in a fit of temper but appeared to be repentant of his conduct and had tendered an apology to the Chief Cash ier.
He also submitted on November 29, 1949, a letter asking to be excused.
Under the circumstances, the manager of the appellant recommended in his report dated November 29, 1949, that the respondent be given one more opportunity to prove himself of good behaviour but having regard to the request made by the respondent in that behalf suggested that he be transferred to the Mechanical Engineering Department.
The Manager also stated at the end of the said report that he had warned the respondent that if he got any further adverse report about his work or conduct, his services would be terminated forthwith.
Following upon that report a letter was addressed by the appellant to the respondent on the same day intimating that the appellant had decided to give him one more chance of working in the organization on the distinct understanding that should there be any further adverse report about his work or conduct his services would be terminated forthwith.
He was directed on that under standing to report to Mr. Hooper of the M. E. Department, where he was being transferred with effect from the next day.
In spite of these chances being given to him the respondent did not improve and he was again found seriously neglecting his work.
There were also complaints from the typists to the effect that the respondent 's chatter interfered with their work.
Mr. Hooper after giving him verbal warnings on several occasions without any effect ultimately gave him a written warning on February 9, 1951, recording the above facts and asking that the respondent should show immediate improvement in his conduct failing which he would take the matter further.
The respondent replied by his letter dated February 16, 195 1, denying the allegations contained in the said letter of Mr. Hooper: He Pleaded that he was not negli gent in his duty inasmuch 518 as he had to discharge the arrears of work which were out standing at the time when he took over the work of writing parcel challans and he was also asked to do other work of the clerks who were absent on leave.
He however admitted that he had occasionally talked with his co workers though he contended that that was not in such a way as would prompt his coworkers to complain against him.
He further asked to be excused for the faults, if any, and gave an assurance that he was trying and would try his level best to improve further.
The respondent however did not show any improvement and again there were complaints against him that his work had not been done properly and also that he had been noisy, causing disturbance to the other clerks ' work and that he had been twice found by his superior officer Mr. Girling with his head on his arms apparently sleeping.
On September 3, 1952, Mr. Girling on behalf of the appellant gave the respondent a warning to which he replied on September 8, 1952, denying all the allegations except that of his being found with his head on his arms but excused himself by stating that he was ill and it was under the advice of Mr. Girhng himself that he consulted the office doctor who had advised him rest.
He however promised to endeavour his utmost to give every satisfaction in the discharge of his duties.
In spite of these warnings the respondent showed no improve ment in his work and conduct and continued neglecting his duties and indulging in insubordination with the result that by its letter dated February 9, 1953, the Management of the appellant wrote to him that the only course left to it was to dispense with his services but as a measure of leniency it had decided to give him another chance to show satisfac tory improvement and in doing so it had also decided to stop his annual increment.
The respondent protested against the stopping of his annual increment by his letter dated Febru ary 17, 1953, and contended that the charges levelled against him were absolutely groundless and asked the Manage ment to re consider his case.
The Labour Directorate of the Government of West 519 Bengal was approached on his behalf but that body also refused to intervene.
The Management asked Mr. Hooper to report upon the respondent 's work and conduct by May 31, 1953, and intimated to the respondent that unless definite improvement was reported by that date his services with the appellant would be terminated as from June 30, 1953.
Mr. Hooper observed the respondent 's work and conduct and not finding them satisfactory, by his memo dated August 19, 1953, reported on the same to the Management of the appel lant.
No action was however taken immediately against the respondent and on May 4, 1954, Mr. Hooper made his final report to the Management on the strength of which the appel lant wrote to the respondent its letter dated May 10, 1954, in which it stated that on receipt of the complaint from Mr. Hooper it had made a thorough enquiry into his record of service, had found that he was unsuitable to be retained in its service and had, therefore, decided to terminate his service on payment of full retrenchment compensation.
It asked the respondent to choose one of the two alternatives, viz., that it may forthwith terminate his services if he was agreeable to accept payment of retrenchment compensation or in case he refused to accept the same to make an application before the Fifth Industrial Tribunal for permission to terminate his service.
The respondent failed and neglected to send any reply with the result that by its letter dated June 21, 1954, the appellant intimated to the respondent that it was approaching the Tribunal for permission to terminate his service as per its letter dated May 28, 1954.
The appellant thereafter filed on September 21, 1954, an application before the Fifth Industrial Tribunal, West Bengal.
under section 33 of the , for permission to discharge the respondent.
The Fifth Industrial Tribunal however became functus officio on the expiry of thirty days from the publication of its Award in the dispute which was then pending before it with the result that the said application could not be disposed of and was accordingly struck off.
520 The appellant eventually filed an application under section 22 of the Act before the Labour Appellate Tribunal of India at Calcutta for permission to discharge the respondent from its service.
This step became necessary as there was an appeal being No. Cal. 152 pending before the Labour Appellate Tribunal to which the appellant and the respondent were parties.
The Labour Appellate Tribunal consisting of Shri M.N. Gan (President) and Shri P. R. Mukherji (Member) heard the appellant ex parte and by its order dated October 14, 1955, allowed the said application and granted the permis sion to discharge the respondent holding inter alia that a prima facie case had been made out for permission to dismiss the respondent.
The appellant accordingly on November 11, 1955, wrote a letter to the respondent stating that the necessary permission had been granted by the Labour Appel late Tribunal to discharge him from the appellant 's service and that the decision of the Management of the appellant dated May 28, 1954, to terminate his services was therefore given effect to on the terms communicated to him in that letter.
On December 6, 1955, the respondent filed an affidavit before the Labour Appellate Tribunal, Calcutta, praying for a review of the order dated October 14, 1955, for setting it aside and for restoration of the application under section 22 of the Act.
The Labour Appellate Tribunal presided over by Mr. M. N. Gan and Mr. V. N. Dikshitulu heard the parties concerned and by its order dated March 6, 1956, allowed the respondent 's application and restored the appellant 's case to its file.
On a further hearing of that application the parties adduced evidence and after hearing both the parties the Labour Appellate Tribunal presided over this time by Mr. V. N. Dikshitulu rejected the application under section 22 of the Act by its order dated May 11, 1956, and refused to the appel lant permission to discharge the respondent from its serv ice.
The appellant being aggrieved by the said decision of the Labour Appellate Tribunal of India, Calcutta ' 521 applied for and obtained special leave to appeal to this Court.
Mr. Sen on behalf of the appellant raised two contentions: (i) that the Labour Appellate Tribunal had no jurisdiction to review its own order which it had passed on October 14, 1955, and (ii) that the Labour Appellate Tribunal had ex ceeded its jurisdiction under section 22 of the Act in coming to the conclusion that the appellant had failed to make out a prima facie case to discharge the respondent from its serv ice.
Re:(i) It was contended that once the Labour Appellate Tribunal pronounced its order on October 14, 1955, it had become functus officio and thereafter it had no jurisdiction to review its own order.
The circumstances, moreover, did not bring the application which was made by the respondent on December 6, 1955, strictly within the provisions of 0.
47, r. I of the Code of Civil Procedure and no application for review could therefore be maintained.
It is significant, however, to remember that the application made by the respondent on December 6, 1955, was an omnibus one and was intituled as one under 0.
47, r. I of the Code of Civil Procedure for review under 0.
41, r. 21 of the Civil Procedure Code for restoration and under 0. 9, r. 13 of the Code of Civil Procedure for setting aside the permis sion granted ex parte and to restore the respondent in his original position.
The respondent evidently sought to rely upon one or the other of the provisions above set out in order to obtain the relief which he sought in that.
applica tion.
Whether one or more of these provisions of the Code of Civil Procedure could be availed of by the respondent depends upon what are the powers which are vested in the Labour Appellate Tribunal when hearing the matters which come before it.
The Labour Appellate Tribunal is the creature of the statute and all its powers must be found within the four corners of the statute.
The constitution and functions of the Labour Appellate Tribunal are to be found in Chapter 11 of the Act.
Sections 4 to 6 of the Act lay down the 522 constitution and functions of the Labour Appellate Tribunal and section 7 prescribes its jurisdiction in appeal from awards or decisions of the Industrial Tribunals.
Section 9 lays down the powers and procedure of the Labour Appellate Tribu nal.
The provisions of section 9 so far as they are relevant for the purpose of this appeal may be set out here : Section 9.
Powers and procedure of the Appellate Tribunal.
(1)The Appellate Tribunal shall have the same powers as are vested in a civil court, when hearing an appeal, under the Code of Civil Procedure, 1908 (Act V of 1908).
(10)The Appellate Tribunal shall follow such procedure as may be prescribed, and subject thereto, it may, by order, regulate its practice and procedure and the provisions of the Code of Civil Procedure, 1908 (Act V of 1908), shall, so far as they are not inconsistent with this Act, or the rules or orders made thereunder, apply to all proceedings before the Appellate Tribunal.
It may be noted that the Labour Appellate Tribunal not only exercises appellate jurisdiction by way of hearing appeals from the awards or decisions of the Industrial Tribunals but also exercises original jurisdiction when applications are made to it under section 22 of the Act to obtain its permission in writing to alter the conditions of service applicable to the workman or to discharge or punish whether by dismissal or otherwise any workman concerned in appeals pending before it.
If an employer contravenes the provisions of section 22 during the pendency of the proceedings, before the Labour Appellate Tribunal, it also entertains complaints in writing at the instance of the employees aggrieved by such contra vention and the Labour Appellate Tribunal decides these complaints as if they are appeals pending before it in accordance with the provisions of the Act.
This is also an exercise of original jurisdiction though under the express terms of the section the exercise of that jurisdiction is assimilated to the 523 exercise of appellate jurisdiction by the Labour Appellate Tribunal.
Whatever be the nature of the jurisdiction thus exercised by the Labour Appellate Tribunal whether original or appellate that jurisdiction is exercised by it by virtue of the provisions of the Act: And section 9 of the Act has refer ence to the exercise of the whole of that jurisdiction when it talks of the powers and procedure of the Labour Appellate Tribunal.
In regard to such powers and procedure no dis tinction is made between the exercise of original jurisdic tion and the exercise of appellate jurisdiction by the Labour Appellate Tribunal and these provisions apply equally to the jurisdiction exercised by it whether under sections 7, 22, or section 23 of the Act.
Section 9(1) of the Act invests the Labour Appellate Tribu nal with the same powers as are vested in a civil court, when hearing an appeal, under the Code of Civil Procedure, 1908 (Act V of 1908).
A question was mooted before us whether the words " when hearing an appeal" were to be read with the words "Appellate Tribunal" or with the words "a civil court".
It was argued that these words went with the words "Appellate Tribunal" and, therefore, the powers of a civil court under the Code of Civil Procedure were to be exercised by the Labour Appellate Tribunal only when it was exercising its appellate jurisdiction and hearing matters which fall within the purview of section 7 or section 23 of the Act and not when it was exercising original jurisdiction and hearing applications under section 22 of the Act.
This construc tion of the provisions of section 9(1) of the Act however suf fers from this disability that it takes no count of the fact that the Labour Appellate Tribunal under the provisions of the Act itself exercises both original as well as appellate jurisdiction and if such a construction was put on these provisions the result would be that there would be no provi sion as regards the powers of the Labour Appellate Tribunal when it is exercising original jurisdiction.
The powers of the Labour Appellate Tribunal which are sought to be provid ed in section 9(1) of the Act are not limited only to the exer cise 67 524 of appellate jurisdiction by it but have reference to the whole of the jurisdiction which is vested in the Labour Appellate Tribunal under the provisions of the Act.
The words " when hearing an appeal" have, moreover, been used between the words "a civil court" and "under the Code of Civil Procedure, 1908" which in the context in which they have been used could only have been meant to refer to a civil court.
Whatever the jurisdiction the Labour Appellate Tribunal is exercising whether original or appellate it is vested with the powers as are vested in a civil court under the Code of Civil Procedure, 1908, when it is hearing an appeal.
The very juxtaposition of the words " when hearing an appeal " with the words " a civil court ", is sufficient, in our opinion, to invest the Labour Appellate Tribunal while exercising its jurisdiction whether original or appel late with the same powers as are vested in a civil court Under the Code of Civil Procedure when it is exercising its appellate jurisdiction, and hearing appeals.
(See Burmah Shell Oil Storage Case(,) and the New Union Mills Ltd. Case (2).
If this is the true construction to be put on the provisions of section 9(1) of the Act, the provisions of 0.
41 r. 21 of the Code of Civil Procedure are attracted forthwith.
Order 41 r. 21 provides: Where an appeal is heard ex parte and judgment is pronounced against the respondent, he may apply to the appellate court to rehear the appeal; and, if he satisfies the Court that the notice was not duly served or that he was prevented by sufficient cause from appearing when the appeal was called on for hearing, the Court shall rehear the appeal on such terms as to costs or otherwise as it thinks fit to impose upon him.
When the Labour Appellate Tribunal heard the application under section 22 of the Act ex parte on October 14, 1955, the summons had not been served on the respondent owing to its being addressed to hi in at a wrong place.
There was suffi cient cause therefore for the respondent not appearing when the application was called on for hearing and on this (1) (2) 525 circumstance being established he was entitled to a re hearing of the application and setting aside of the ex parte order made against him.
The Labour Appellate Tribunal was, therefore, right in making the order which it did on March 6, 1956.
There is also another aspect of the question which may be dealt with at this stage and it is that under the provisions of section 9, sub section
(10) of the Act the Labour Appellate Tribu nal is enjoined to follow such procedure as may be pre scribed, and subject thereto it may, by order, regulate its practice and procedure and the provisions of the Code of Civil Procedure, 1908 (Act V of 1908), shall, so far as they are not inconsistent with the Act or the rules or orders made thereunder, apply to all proceedings before it.
Pursu ant to the powers conferred upon it by this sub section the Labour Appellate Tribunal has made orders to regulate its practice and procedure and 0.
3 r. 4 provides : " Nothing in these rules shall be deemed to limit or other wise affect the inherent power of the Tribunal to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the Court.
" This provision is analogous to that which is contained in section 151 of the Code of Civil Procedure which relates to the inherent powers of the Court and even apart from the ap plicability of 0.
41 r. 21 of the Code of Civil Procedure as hereinbefore set out it was open to the Labour Appellate Tribunal to pass the order which it did on March 6, 1956, as it was evidently necessary for the ends of justice or to prevent the abuse of the process of the Court.
We are, therefore, of opinion that the Labour Appellate Tribunal had jurisdiction to set aside the ex parte order dated October 14, 1955, and restore the appellant 's applica tion under section 22 of the Act to its file.
This contention of the appellant therefore is without any substance and must be negatived.
Re:(ii) It was next contended that even though the Labour Appellate Tribunal had jurisdiction to hear an application under section 22 of the Act it misconceived 526 its jurisdiction and in the exercise of it, launched into an inquiry which it was not competent to do and erroneously came to the conclusion that the appellant had failed to make out a prima facie case for terminating the service of the respondent.
The nature and scope of the enquiry before the Labour Appel late Tribunal under section 22 of the Act has been the subject matter of decisions of this Court in Atherton West & Co. Ltd. vs Suti Mill Mazdoor Union and others (1), The Automo bile Products of India Ltd. vs Rukmaji Bala & others(2) and Lakshmi Devi Sugar Mills Limited vs Pt.
Ram Sarup(3).
In the last mentioned case this Court succinctly laid down the principles governing such enquiry and observed at p. 935: " The Tribunal before whom an application is made under that section has not to adjudicate upon any industrial dispute arising between the employer and the workman but has only got to consider whether the ban which is imposed on the employer in the matter of altering the condition of employ ment to the prejudice of the workman or his discharge or punishment whether by dismissal or otherwise during the pendency of the proceedings therein referred to should be lifted.
A prima facie case has to be made out by the em ployer for the lifting of such ban and the only jurisdiction which the Tribunl has is either to give such permission or to refuse it provided the employer is not acting mala fide or is not resorting to any unfair practice or victimization.
" We have, therefore, got to consider whether in the instant case a prima facie case was made out by the appellant for terminating the service of the respondent and whether in giving the notice dated November 1 1, 1955, terminating the respondent 's service the appellant was motivated by any unfair labour practice or victimisation.
The facts as they appear from the narration of events in the earlier part of this judgment go to establish that the respondent was grossly negligent in (1) ; (3) ; (2) [1955] i S.C.R. 1241.
527 the performance of his duties, was in the habit of absenting himself on flimsy grounds, was also insolent in his beha viour and conduct and in spite of repeated warnings, oral as well as written, addressed to him by the Management of the appellant did not show any signs of improvement.
The inci dents of 1949, 195 1, and 1952 culminating in the stoppage of his annual increment in February, 1953, were sufficient to demonstrate that the Management of the appellant dealt with the respondent very leniently in spite of his work and conduct not being at all satisfactory.
The appellant would have been well within its rights if it had taken action against the respondent on each of the several occasions above referred to, but out of sheer compassion went on giving him one opportunity after the other so that he would register an improvement in his work and conduct.
The re spondent however, presisted in his behaviour and the two reports made by Mr. Hooper One on August 19, 1953, and the other on May 4, 1954, were considered by the Management and it came to the conclusion that the respondent was unsuitable to be retained in the appellant 's service and even then instead of deciding to dismiss him without anything more, it offered him the choice of one of the two alternatives, viz., that it may forthwith terminate his service if he was agree able to accept the term of full retrenchment compensation or if he refused to accept the same to make an application before the Fifth Industrial Tribunal for permission to terminate his service.
The whole of the correspondence ending with the respondent 's letter dated February 17, 1953, was sufficient to prove with.
out anything more the unsatis factory nature of his work and conduct and the, appellant was evidently of the opinion that the records of the re spondent taken along with the reports made by Mr. Hooper afforded sufficient material to justify it in taking the step which it ultimately decided to do.
It was under these circumstances that the appellant did not consider it neces sary to furnish to the respondent a chargesheet and to hold a formal enquiry into the work and conduct of the respond ent.
528 This circumstance was considered by the Labour Appellate Tribunal as sufficient to entitle it to determine for itself whether a prima facie case for the termination of the respondent 's service was made out by the appellant.
It was open to the appellant to submit a charge sheet to the re spondent and institute a formal inquiry into his work and conduct.
If that had been done and the appellant had, after holding such formal enquiry, come to the conclusion that the respondent was guilty of the charges which were levelled against him and had then decided to terminate his service, the Tribunal could not have intervened and on its coming to the conclusion that a prima facie case for the termination of the service of the respondent was thus made out, it would.
have granted the appellant the permission asked for.
Unfortunately for the appellant, in spite of the work and conduct of the respondent being demonstrably unsatisfactory and, therefore, justifying the conclusion that he was un suitable to be retained in its service, the appellant did not hold any formal enquiry of the nature indicated above and did not afford to the respondent an opportunity to have his say in the matter of the charges levelled against him.
The Labour Appellate Tribunal therefore rightly took upon itself the burden of determining whether on the material submitted before it by the appellant a prima facie case for the termination of the respondent 's service was made out by the appellant.
The evidence led by the parties before the Labour Appellate Tribunal consisting as it did of the affidavit and oral evidence was not such as would enable it to come to the conclusion that a prima facie case for the termination of the respondent 's service was made out by the appellant.
In paragraphs 8 and 9 of the application the appellant had pointed out that after receipt of Mr. Hooper 's report dated May 4, 1954, to the effect that there will be no improvement of work in the department unless the respondent was removed from the same, the matter was further investigated and the old records of the respondent were carefully considered and the appellant found that enough consideration 529 had been shown to the respondent but without any effect and in the interest of discipline and good work it was necessary that he should be discharged from service.
These allega tions were denied by the respondent in his affidavit in reply and he contended that on no occasion whatever the warnings, letters, suspension or stoppage of increment resorted to by the appellant were done after establishing his guilt or by following the usual methods, viz., by issu ing a charge sheet with specific allegations and on enquiry based on such a charge sheet and explanations rendered by him.
He contended that the whole thing was arbitrary, without any basis and in violation of the principles of natural justice and was by way of unfair labour practice or victimization.
An affidavit in rejoinder was filed on behalf of the appellant by Shri Ramani Ranjan Dhar, a Senior Assistant of the appellant.
He denied these allegations of the respondent and affirmed that the application of the appellant sufficiently disclosed the offences for which it sought the permission of the Labour Appellate Tribunal to dismiss the respondent.
He stated that the appellant was thoroughly satisfied, after full enquiry and investigation and after the respondent was given more than ample opportu nity to explain the charges levelled against him, and after he was given more than one chance at his own prayer to improve his conduct on various occasions that the respondent was guilty of the charges brought against him.
This affida vit evidence was followed by the oral evidence of Mr. Hooper led on behalf of the appellant.
Mr. Hooper, however, did not carry the case of the appellant any further.
Even though the appellant had an opportunity when Mr. Hooper was in the witness box to produce his reports dated August 19, 1953, and May 4, 1954, and have them proved through him, or, in any event, if the absence or loss of those reports was satisfactorily accounted for to lead oral evidence as to their contents the appellant did not do so and beyond a bare reference to his report of May 4, 1954, without disclosing.
the contents thereof there was nothing in the deposition of Mr. Hooper which would 530 even go to show that the contents of that report were preju dicial to the respondent.
In cross examination also he admitted that before reporting on May 4, 1954, against the respondent he did not draw up a chargesheet as it was for the appellant to do so.
The Labour Appellate Tribunal bad to determine on these materials whether a prima facie case had been made out by the appellant for the termination of the respondent 's serv ice.
A prima facie case does not mean a case proved to the hilt but a case which can be said to be established if the evidence which is led in support of the same were believed.
While determining whether a prima facie case had been made out the relevant consideration is whether on the evidence led it was possible to arrive at the conclusion in question and not whether that was the only conclusion which could be arrived at on that evidence.
It may be that the Tribunal considering this question may itself have arrived at a different conclusion.
It has, however, not to substitute its own judgment for the judgment in question.
It has only got to consider whether the view taken is a possible view on the evidence on the record.
(See Buckingham and Carnatic Co., Ltd. Case (1).
The Labour Appellate Tribunal in the instant case discussed the evidence led before it in meticulous detail and came to the conclusion that no prima facie case was made out by the appellant for the termination of the service of the respond ent.
It applied a standard of proof which having regard to the observations made above was not strictly justifiable.
If the matter had rested there it may have been possible to upset the finding of the Labour Appellate Tribunal.
But if regard be had to the evidence which was actually led before it, there is such a lacuna in that evidence that it is impossible to come to the conclusion that even if the evi dence was taken at its face value a prima, ' facie case was made out by the appellant.
Mr. Hooper 's evidence did not go to show what were the contents of his report dated May 4, 1954, and it contained only a bare reference to that report (1) 531 without anything more.
This was not enough to prove the contents of that report, much less to give the respondent an opportunity of controverting the ' allegations made against him.
If, therefore, these essential ingredients were want ing, it cannot be said that the evidence led by the appel lant before the Labour Appellate Tribunal was sufficient to establish a prima facie case for the termination of the respondent 's service.
This contention also does not there fore avail the appellant.
Mr. Sen endeavoured to draw a distinction between discharge on the one hand and punishment by way of dismissal or other wise on the other, in clause (b) of section 22 of the Act.
He contended that no prima facie case need be made out when an employee was sought to be discharged simpliciter by the employer.
A charge sheet was required to be submitted to the workman and an enquiry thereon required to be made in conformity with the principles of natural justice only in those cases where the workman was sought to be punished by dismissal or otherwise.
That was not the case when the workman was sought to be discharged without assigning any reason whatever and such a case did not fall within the category of punishment at all.
For the purpose of the present case we need not dilate upon this; it is sufficient to point out that Shri Raniani Ranjan Dhar in his affidavit in rejoinder filed on behalf of the appellant categorically stated that the respondent was sought to be " dismissed " by reason of his having been found guilty of the various charges which had been levelled against him.
Even at the exparte hearing of the application under section 22 of the Act before the Labour Appellate Tribunal the case of the appel lant was that it had made out a prima facie case for permis sion to " dismiss " the respondent.
This distinction sought to be drawn by Mr. Sen is therefore of no consequence what ever and need not detain us any further.
Mr. Sen also relied upon the circumstance that after the Labour Appellate Tribunal had on the exparte hearing of the application under section 22 of the Act granted to the appellant permission to terminate the 68 532 service of the respondent on October 14, 1955, the appellant had implemented the same and by its notice 'dated November, 11, 1955, actually terminated the service of the respondent offering him full retrenchment compensation.
In so far as the appellant had acted upon such permission and implemented the same, it was contended, that the respondent 's service was irrevocably terminated and nothing more was to be done thereafter, except the possible raising of an industrial dispute by the respondent on the score of his service having been wrongfully terminated.
It was submitted that after such an irrevocable step had been taken by the appellant terminating the respondent 's service, the Labour Appellate Tribunal ought not to have reconsidered its decision and restored the application under section 22 of the Act to its file and that the further decision of the Labour Appellate Tribu nal had no effect so far as the actual termination of the service of the respondent was concerned.
We do not propose to go into these interesting questions for the simple reason that the only question which arises for our consideration in this appeal is whether on the evidence led before it the decision of the Labour Appellate Tribunal dated May 11, 1956, dismissing the appellant 's application under section 22 of the Act was correct.
As a matter of fact no such contention had been urged by the appellant before the Labour Appellate Tribunal when it finally heard the application under section 22 of the Act and the only point to which the attention of the Labour Appellate Tribunal was invited was whether the appel lant had made out a prima facie case for the termination of the respondent 's service.
Whatever rights and remedies are available to the appellant by reason of these circumstances may just as well be asserted by the appellant in appropriate proceedings which may be taken hereafter either at the instance of the appellant or the respondent.
We are not at present concerned with the same.
Under the circumstances, we are of opinion that the decision arrived at by the Labour Appellate Tribunal 533 which is the subject matter of appeal before us was correct.
It is no doubt true that the Labour Appellate Tribunal recorded a finding in favour of the appellant that in termi nating the service of the respondent as it did, the appel lant was not, guilty of any unfair labour practice nor was it actuated by any motive of victimisation against the respondent.
That finding, however, cannot help the appel lant in so far as the Labour Appellate Tribunal held that the appellant had failed to make out a prima facie case for terminating the service of the respondent.
We, therefore, hold that the decision of the Labour Appel late Tribunal refusing permission to the appellant under section 22 of the Act was correct and this appeal is liable to be dismissed.
It will accordingly be dismissed with costs.
Appeal dismissed.

summary/full:
The respondent was employed by the appellant company, but later on his work and conduct became very unsatisfactory and repeated warnings, both oral and written, did not show any improvement.
A thorough inquiry into his record of service was made and a report was submitted which showed that he was unsuitable to be retained in its service.
No formal enquiry, however, was held by submitting a charge sheet to the respondent and giving him an opportunity to rebut those chares.
The appellant gave him a choice either to terminate his services on payment of full retrenchment compensation, or if he refused to accept the same, to make an application for permission to terminate his services.
Eventually, the appellant filed an application before the Labour Appellate Tribunal under section 22 Of the Industrial Disputes (Appellate Tribunal) Act, 1950, for permission to discharge the respondent from its service.
The application was originally heard ex parte, the respondent not appearing, and the Tribunal, by order dated October 14, 1955, allowed the application.
Subsequently the respondent made an appli cation for a review of the order under Or.
47, R. I, for setting it aside under Or. 9, R. 13 and for restoration of the application under Or. 41, R. 21, Of the Code of Civil Procedure.
The Tribunal found that there was sufficient cause for the respondent not appearing when the application was called on for hearing, and set aside the ex parte order and restored the appellant 's application.
On a further hearing of the application, the parties adduced evidence and the Tribunal, after hearing them, rejected the application on the, ground that a prima facie case had not been made out for permission to discharge the respondent.
On appeal to the Supreme Court it was contended for the appellant (1) that the Labour Appellate Tribunal had no jurisdiction to review its own order and (2) that it exceeded its jurisdic tion under section 22 Of the Act, in discussing the evidence led before it in meticulous detail and coming to the conclu sion that the appellant failed to make out a prima facie case to discharge the respondent from its service.
Held: (1) that under section 9, sub sections
(1) and (10) of the Act the Labour Appellate Tribunal had jurisdiction to set aside the 515 ex parte order dated October 14, 1955, and restore the application to its file.
(2) that under section 22 of the Act, the jurisdiction of the Labour Appellate Tribunal in considering whether a prima facie case has been made out by the employer, is to see whether the employer is acting mala fide or is resorting to any unfair labour practice or victimisation, and whether on the evidence led it is possible to arrive at the conclusion in question.
Though the Tribunal may itself have arrived at a different conclusion it has not to substitute its own judgment for the judgment in question.
Atherton West & Co. Ltd. vs Suti Mill Mazdoor Union and Others, , The Automobile Products of India Ltd. vs Rukmaji Bala & others; , and Laksh mi Devi Sugar Mills Limited vs Pt.
Ram Sarup, (1956) S.C.R. 916, relied on.
In the instant case, though the appellant was justified in making the application for permission to discharge the respondent on account of his work and conduct being demon strably unsatisfactory, and the standard of proof which the Tribunal ];ad applied for finding whether there was a Prima facie case was not strictly justifiable, in view of the fact that no formal inquiry into the charges against the respond ent was held and the evidence on behalf of the appellant did not show that the respondent was given an opportunity to controvert the allegations made against him, the decision of the Tribunal was upheld.