judgement:
Appeal No. 92 of 59.
Appeal from the judgment and order dated August 31, 1956, of the Orissa High Court in second appeal No. 1.5.1 of 1951.
A. V. Viswanatha Sastri and T. V. R. Tatachari, for the appellant.
M. section K. Sastri, for respondents.
674 1961.
September 20.
The Judgment of the Court was delivered by GAJENDRAGADKAR, J.
This is an appeal by a certificate granted by the High Court of Orissa and it raises a short question about the scope and effect of the provisions of section 7 (1) of the Orissa Tenants Protection Act, 1948 (Act III of 1948) (hereafter called the Act).
The appellant Magiti Sasamal sued the respondents Pandab Bissoi and others in the Court of the District Munsiff, Berhampur, for a permanent injunction restraining them from entering the suit lands belonging to the appellant.
The appellants case was that the suit lands belonged to him and were in his personal cultivation for many years.
In the year of the suit the appellant had cultivated the said lands as usual, manured and raised paddy crop thereon after spending a large amount in that behalf According to the appellant the respondents had no manner of right or title to the said lands and had never cultivated them.
From the notice given by them to the appellant, however, it appeared that the respondents wanted to enter upon the lands forcibly and to remove the standing crop therefrom.
This they desired to do by setting up a false claim that they were the tenants of the lands and as such were entitled to the protection of the Act.
The appel lant alleged that the respondents were local rowdies and were known for their high handed action in the neighbourhood.
On these allegations the appellant claimed a permanent injunction against the respondents.
The respondents admitted the title of the appellant to the lands in suit but pleaded that they were the tenants in respect of separate portions of the said lands.
Their version was that they had cultivated their holdings and raised the paddy crop thereon in the year in question.
According to them they had been in cultivating possession of their respective holdings as tenants long before September 1, 1947, and so they were entitled to remain in possession as such tenants under the 675 they had filed petitions under the Act before the Sub Collector, Berhampur, claiming appropriate relief against the appellant.
They urged that they were ever ready and willing to pay the Rajabhag as provided by the Act and they contended that the Suit was not maintainable in a civil court.
On these pleadings the learned trial judge framed appropriate issues.
Three issues of law had been framed by him on the pleas raised by the respondents.
These issues were, however, not pressed at the hearing, One of them, namely issue 5, refers to the jurisdiction of the Court to try the suit in view of the provisions of the Act.
Thus, it if; clear that the issue of jurisdiction was not pressed by the respondents at the trial.
On the merits the learned trial judge considered the evidence and held that though the appellant was the owner of the property the respondents had proved that they were the tenants in possession of their respective holdings and that their possession was long before September 1, 1947.
On these findings the learned judge came to the conclusion that the appellant was not entitled to claim an injunction against the respondents and so he dismissed his suit.
The matter was then taken by the appellant before the District Judge, Ganjam, Nayagarh.
The learned District Judge considered the evidence led by the parties and reversed the conclusions of the trial court.
He held that the onus was on the respondents to prove their possession of their respective holdings as tenants on or before the specified date, and according to him they had failed to dis charge that onus.
The question of jurisdiction was not raised before the appellate court by the respondents.
Having held against the respondents on the merits the learned District Judge allowed the appeal, set aside the decree passed by the trial court and directed that an injunction should be issued against the respondents as claimed by the appellant.
676 The respondents then moved the High Court by second appeal ; and the main point which they urged before the High Court was that the learned trial judge had no jurisdiction to entertain the suit having regard to the provisions of section 7 (1) of the Act.
The appellant pointed out to the High Court that this question of jurisdiction bad not been pressed before the trial court and had not been raised before the lower appellate court.
Even so the High Court allowed the point to be raised and decided it in favour of the respondents.
As a result of the finding that the civil court bad no jurisdiction to entertain the suit the second appeal preferred by the respondents has been allowed and the appellant 's suit dismissed with costs throughout.
It is against this decree that the appellant has come to this Court with the certificate granted by the High Court; and the short point which has been raised before us on his behalf by Mr. Viswanatha Sastri is that in holding that the present suit is outside the jurisdiction of the civil court the High Court has misconstrued the scope and effect of the Provisions of section 7(1) of the Act.
The Act received the assent of the Governor General on February 5, 1948 and was published on February 14,194S.
It is a temporary Act and by s.1(4) it has been provided that it shall cease to have effect on April 15, 1949 except is respects things done or omitted to be done before the expiration thereof.
It has been passed in order to provide for temporary protection to certain classes of tenants in the Province of Orissa.
Legislature thought that the said tenants deserved protection and so as a beneficent measure the Act has been passed.
Section 2(c) of the Act defines landlord and section 2(g) defines a tenant.
The main operative provision of the Act is contained in section 3.
This Section provides that not withstanding anything contained in any other law for the time being in force, or any express or implied agreement to the contrary, but subject to the provisions of this Act, 677 a person who, on the first day of September 1947, was cultivating any land as a tenant shall continue to have the right to cultivate such land and it shall not be lawful for the landlord to evict the tenant from the land or interfere in any way with the cultivation of such land by the tenant.
It would thus be seen that the Act purports to provide protection to tenants who were in possession of lands on the appointed day which is September 1, 1947.
The other sub sections of section 3 make material and subsidiary provisions in regard to the said protection.
Section 7(1) reads thus: " 'Any dispute between the tenant and the landlord as regards, (a) tenant 's possession of the land on the 1st day of September, 1947 and his right to the benefits under this Act.
or (b) misuse of the land by the tenant, or (c) failure of the tenant to cultivate the land properly, or (d) failure of the tenant to deliver to the landlord the rent accrued due within two months from the date on which it becomes payable, or (e) the quantity of the produce payable to the landlord as rent, shall be decided by the Collector on the application of either of the parties".
The appellant contends that section 7(1) covers disputes between landlords and tenants which are specified under cls.
(a) to (e) but it does not cover a dispute between the parties as to whether the relationship of landlord and tenant 'exists between them.
It is only where such a relation ship is either admitted or established in a civil court that the specified disputes fall within the exclusive jurisdiction of the Collector on the other hand the respondents ' case is that the dispute as to the status of the tenant is also included under section 7(1).
The High Court has upheld the respondents ' interpretation, and Mr. Viswanatha Sastri contends that this interpretation is based on a misconstruction of the section.
It is true that having regard to the beneficent object which the Legislature had in view in passing the Act its material provisions should be liberally 678 construed.
The Legislature intends that the 'disputes contemplated by the said material provisions should be tried not by ordinary civil courts but by tribunals specially designated by it, and so in dealing with the scope and effect of the jurisdiction of such tribunals the relevant words used in the section should receive not a narrow but a liberal construction.
While bearing this principle in mind we must have regard to another important principle of construction, and that is that if a statute purports to exclude the ordinary jurisdiction of civil courts it must do so either by express terms or by the use of such terms as would necessarily lead to the inference of such exclusion.
As the Privy Council has observed in Secretary of State vs Mask & Co., (1) "it is settled law that the exclusion of the jurisdiction of the civil courts is not to be readily inferred, but that such exclusion must either be explicitly expressed or clearly implied".
There can be no doubt that ordinarily a dispute in regard to the relationship between the parties such as that between a landlord and a tenant would be a dispute of a civil nature and would fall within the competence of the civil court.
If the respondents contend that the jurisdiction of the civil court to deal with such a civil dispute has been taken away by section 7 (1) we must enquire whether section 7(1) expressly takes away the said jurisdiction or whether the material words used in the section lead to such an inference or the scheme of the Act inescapably establishes such an inference.
The relevance and materiality of both these principles are not in dispute.
Let us then revert to section 7.
It would be noticed that a. 7(1) has expressly and specifically provided for five categories of disputes which are within the jurisdiction of the Collector and which must therefore be taken to be excluded from the jurisdiction of the civil court.
On a reasonable construction of section 7(1) a dispute specified by section 7(1)(a) would be a dispute between a tenant and a landlord in regard (1) (1940) L. R. 67 1.
A. 222, 236.
679 to the former 's possession of the land on September 1, 1947.
It is clear that the dispute to which section 7(1)(a) refers is a narrow dispute as to the possession of the tenant on a specific date and his consequential right to the benefits of the Act.
The same is the position with regard to the other categories of the dispute specified by section 7(1).
In none of the said categories is a dispute contemplated as to the relationship of the parties itself.
In other words section 7(1) postulates the relationship of tenant and landlord between the parties and proceeds to provide for the exclusive jurisdiction of the Collector to try the five categories of disputes that may arise between the landlord and the tenant.
The disputes which are the subject matter of section 7(1) must be in regard to the five categories.
That is the plain and obvious construction of the words "any dispute as regards".
On this construction it would be unreasonable to hold that a dispute about the status of the tenant also falls within the purview of the said section.
The scheme of section 7(1) is unambiguous and clear.
It refers to the tenant and landlord as such and it contemplates disputes of the specified character arising between them.
Therefore, in our opinion, even on a liberal construction of section 7(1) it would be difficult to uphold the argument that a dispute as regards the existence of the relationship of landlord and tenant falls to be determined by the Collector under section 7(1).
In this connection it would be relevant to take into consideration the provisions of section 7(2).
This clause provides that the Collector may, after making such enquiries as he may deem necessary, order the tenant, by a notice served in the prescribed manner and specifying the grounds on which the order is made, to cease to cultivate the land.
It is significant that the making of the enquiry and its mode are left to the discretion of the Collector.
If a serious dispute as to the existence of the relationship of landlord and tenant between the parties had been covered by section 7(1) it is difficult to imagine that the 680 Legislature would have left the decision of such an important issue to the Collector giving him full freedom to make such enquiries as he may, deem necessary.
As is well known, a dispute as to the existence of the relationship of landlord and tenant raises serious questions of fact for decision, and if such a serious dispute was intended to be tried by the Collector the Legislature would have provided for an appropriate enquiry in that behalf and would have made the provisions of the Code of Civil Procedure applicable to such an enquiry.
Section 7(2) can be easily explained on the basis that the relationship between the parties is outside section 7(1) and so the disputes that are covered by section 7(1) are not of such a nature as would Justify a formal enquiry in that behalf The provisions of sub sections
(3), (6) and (7) also indicate that the relationship between the parties is not, and cannot be, disputed before the Collector.
The parties arrayed before him are landlord and tenant or vice versa, and it is on the basis of such relationship between them that he proceeds to deal with the disputes entrusted to him by section 7(1).
It is true that when the relationship of landlord and tenant is proved or admitted the disputes falling within the five categories enumerated in section 7(1) will have to be tried by the Collector.
Let us take the present case itself to illustrate how section 7(1) will operate.
In the suit filed by the appellant against the respondents the issue about the status of the respondents was framed and so it had to be tried by the civil court.
In such a suit if the civil court holds that the relationship between the landlord and the tenant had not been established it may proceed to deal with the suit on the merits.
If, however, it holds that the said relationship is established then the civil court cannot deal with the dispute between the parties if it falls within any one of the categories specified by section 7(1).
In such a case, having made the finding about the relationship between the parties the civil court will either dismiss the suit on the ground that it can give no relief to 681 the landlord, or may, if it is permissible to do so, return the plaint for presentation to the Collector.
What course should be adopted in such a case it is unnecessary for us to decide in the present appeal.
All that we wish to emphasise is that the initial dispute between the parties about the relationship subsisting between them will still continue to be tried by the civil court and is outside the purview of section 7(1).
In support of the argument that a dispute as to the existence of relationship as landlord and tenant should be taken to be included under section 7(1) reliance is placed on the provisions of section 8(1) of the Act.
Section 8(1) provides that subject to the provisions of section 7 all disputes arising between landlord and tenant shall be cogniscible by the revenue court and shall not be cogniscible by the civil court.
It must be pointed out that we are really not concerned with section 8(1) in the present appeal because even according to the respondents the present dispute between the parties attracted section 7(1.) and should have been tried by the Collector and not by 'the civil court.
However, the question about the construction of section 8(1) has been incidentally raised before us.
In appreciating the scope and effect of section 8(1) it is necessary to bear in mind the provisions of section 13 of the Act.
The said section provides that the Act shall, as far as may be, read and construed.
as forming part of the Madras Estates Land Act, 1908, or as the case may be, of the Orissa tenancy Act, 1913.
Therefore reading the provisions of section 8(1) and section 13 tog other it follows that all that section 8 (1) provides is that except for the disputes covered by section 7 (1) all disputes arising between landlord and tenant shall be cogniscible by the revenue court and to the trial of such disputes by the revenue court the relevant provisions of the Orissa Tenancy Act, 1913 would apply.
It is true that disputes to which section 8(1) applies are entrusted to the exclusive jurisdiction of the revenue courts and are excluded from the jurisdiction of civil courts, but the effect of this 682 the other relevant provisions of the parent Act of which this temporary Act forms a part.
Now, if we turn to some of the relevant provisions of the, parent Act it would be clear that when the revenue courts are given jurisdiction to try the disputes the enquiry held by them purports to be a formal enquiry to which the provisions of the Code of Civil Procedure may apply (Vide: section 192 of the Orissa Tenancy Act, 1913).
Similarly, the provisions of section 204(1) which provides for appeals contemplate appeals to the District Court and the High Court where questions of title are involved.
These provisions illustrate the point that where serious disputes about title are entrusted to special tribunals usually the Legislature contemplates a formal en quiry and makes the provisions of the Code of Civil Procedure applicable to such an enquiry and provides for appropriate appeals.
Now, in regard to the order passed by the Collector under section 7(1) the only provision about appeals is that made by section 11 which provides that an appeal shall lie to the prescribed superior revenue authority whose decision shall be final, and shall not be subject to any further appeal or revision.
Departure made by the Legislature in providing only one appeal and that too in every case to the prescribed superior revenue authority clearly brings out that the disputes which are entrusted to the Collector under section 7(1) axe the simple disputes specified in the five categories and do not include a serious dispute like that of the relation,ship between the parties as landlord and tenant.
, If such a dispute had been intended to be tried by the Collector the Legislature would have provided for a formal enquiry and would have prescribed appropriate appeals on the lines of sections 192 and 204 of the parent Act.
In this connection we may in passing refer to the provisions of section 126 of the parent Act.
This section deals with the jurisdiction of civil courts in matters relating to rent.
Section 126(3) provides for the institution of suits in civil courts on the 683 grounds specified by cls.
(a) to (g).
Clause (c) deals with the ground that the relationship of landlord and tenant does not exist.
This clause shows that if a dispute arose between the parties as to the existence of the relationship of landlord and tenant a suit in a civil court a.% contemplated is prescribed by section 126(3) (c).
That also has some bearing on the construction of section 7(1); and it is for that limited purpose that we have referred to it.
Therefore, we are satisfied that the High Court was in error in holding that under a. 7(1) of the Act it was competent to the Collector to try the issue between the appellant and the respondents whether or not the Respondents were the tenants of the appellant and that the civil court had no jurisdiction to entertain the said dispute.
In the result, the appeal must be allowed, the order passed by the High Court set aside and that of the District Court restored with.
costs throughout.
Appeal allowed.

summary/full:
The appellant filed in the Civil Court a suit for permanent injunction restraining the respondents from entering the lands in suit on the allegation that the lands belonged to him and were in his cultivatory possession for many years and that the respondents had no right or title to them and had never cultivated them.
The respondents contended that they were tenants of portions of the said lands and were in cultivating possession of the same as tenants.
The question which arose for decision was whether having regard to the provisions of section 7(1) of the Orissa Tenants Protection Act, 1948, the Civil Court had jurisdiction to entertain the suit which involved a dispute as to the relationship of landlord and tenant between the parties.
Held, that even on a liberal construction of section 7(1) of the Act it cannot be held that disputes as regards the existence of the relationship of landlord and tenant fall to be deter mined by the Collector under that section.
Disputes which are entrusted to the Collector under section 7(1) are the simple disputes specified therein in the five categories and do not include a serious dispute as to the relationship between the parties as landlord and tenant.
In the present case the suit was therefore within the jurisdiction of the Civil Court.
Secretary of State vs Mask & Co. (1940) L.R. 67 I.A. 222, referred to.


judgement:
Appeal No. 563 of 1960.
Appeal by special leave from the judgment and decree dated March 20, 1959, of the Patna High Court in Election appeal No. 8 of 1958.
J. C. Sinha, D. P. Singh, M. K. Ramamurthi, R. K. Garg and section C. Agarwala, for the appellant.
B. C. Ohosh and R. C. Datta, for respondent No. 1.
Udaipratap Singh and P. C. Agarwala, for respondent No. 2. 1961.
September 22.
The Judgment of the Court was delivered by RAGHUBAR DAYAL, J.
Badri Narain Singh, the appellant, and four other persons including Kam Deo Prasad, respondents, were candidates to the Bihar Legislative Assembly during the last general election held in 1957.
Two of those candidates withdrew before the relevant date.
The appellant secured the largest number of votes and was declared elected on March 14, 1957.
Respondent No. 2 secured larger number of votes than 761 Kam Deo Prasad, respondent No. 1, who filed an election petition under sections 80 and 81 of the Representation of the People Act, 1951 (Act XLIII of 1951) challenging the election of the appellant, on the ground that the nomination of the appellant and respondent No. 2, who, as Ghatwals, held an office of profit, was against the provisions of section 7 of the Act, and that the appellant had also committed corrupt practices.
Kam Deo Prasad, by his election peti tion, not only prayed for the declaration that the ,election of the appellant was void, but also for the declaration that he himself was duly elected.
The appellant denied the allegations against him.
The Election Tribunal held that Badri Narain Singh, the appellant, was guilty of corrupt practices and that a Ghatwal was not a holder of an office of profit under the State of Bihar.
It therefore set aside the election of the appellant, but did not grant the dec laration that Kam Deo Prasad was a duly elected candidate.
The appellant filed Election Appeal No. 7 of 1958 in the High Court of Judicature at Patna, against the order of the Election Tribunal setting aside his election, and prayed that the order of the Election Tribunal be set aside and that it be held that he had been duly elected.
Kam Deo Prasad also filed Election Appeal No. 8 against the order of the Election Tribunal not declaring him to be the duly elected candidate and prayed for a declaration that he, had been duly elected.
The grounds of appeal questioned the correctness of the finding of the Election Tribunal that Badri Narain Singh and respondent No. 2, as Ghatwals, were not the holders of offices of profit and that Kam Dec) Prasad could not be declared duly elected.
Both these appeals were disposed of by the High Court by one judgment.
It did not accept the finding of the Election Tribunal that Badri Narain Singh had committed any corrupt practice and accepted the contention for respondent No. 1 that Badri Narain Singh and respondent No. 2 held 762 offices of profit under the Bihar Government as they were Ghatwals.
It was in this view of the matter that it confirmed the order of the Election Tribunal setting aside the election of the appellant and allowing the appeal of respondent No. 1, declared him duly elected.
The concluding portion of the judgment of the High Court may be usefully quoted here : "To conclude, the election of the returned candidate is not valid, and the order of the Tribunal is, therefore, right, though on different grounds.
Further, there, was only one seat, and three persons contested it, namely, the petitioner and the two respondents.
The two respondents were disqualified for being chosen as, and for being, members of Legislative Assembly or Legislative Council of the State, and, therefore, their nomination papers were not validly accepted.
If their nomination papers are rejected, and it cannot but be rejected, the only person left in the field was the petitioner Kam Deo Prasad Singh, and, therefore, be must be declared to be duly elected.
In the result, Election Appeal No. 7 of 1958 is dismissed, and Election Appeal No. 8 of 1958 is allowed, and Kam Deo Prasad Singh is declared to be duly elected to Bihar Legis lative Assembly from the Sarnath State Assembly Constituency in the district of Santal Parganas.
" As a result of this order, separate decrees were As a result of this order, separate decrees were As a result of this order, separate decrees were prepared in the two appeals.
Decree in Election Appeal No. 7 said, 'It is ordered and decreed that this appeal be and the same is hereby dismissed '.
The decree in appeal No. 8 said, 'It is ordered and decreed that this appeal be and the same is hereby allowed and Kam Deo Prasad Singh is declared to be duly elected to the Bihar Legislative Assembly from the Sarnath State Assembly constituency in the District of Santhal Parganas '.
763 The appellant has filed this appeal by special leave against the order in Election Appeal No. 8 of 1958.
All the grounds of appeal relate to the finding of the High Court that the office of a Ghatwal is an office of profit.
The petition for special leave to appeal does not mention the relief the appellant seeks from this Court.
Presumably, he prays for the setting aside of the order in Appeal No. 7 confirming the order of the Election Tribunal setting 'aside his election and also the order in Appeal No. 8.
A preliminary objection has been taken on behalf of respondent Kam Deo Prasad Singh that this appeal is incompetent as barred by the principle of res judicata inasmuch as the appellant did not appeal against the order of the High Court in Appeal No. 7 whose dismissal by the High Court confirmed the order of the Election Tribunal setting aside the election of the appellant.
It is urged that the order setting aside the appellant 's election having become final, it cannot be set aside and that the finding arrived at in that appeal about a Ghatwal being a holder of an office of profit operates as res judicata in this appeal and therefore no appeal against the order in Appeal No. 8 declaring respondent No. 1 to be the duly elected candidate can be pressed on the ground that the view of the High Court about the appellant 's holding an office of profit is wrong.
If the correctness of that view cannot be challenged, the correctness of the declaration in favour of respondent No. 1 cannot be challenged in this appeal on any other ground when no other ground had been taken in the application for special leave.
The contention in effect, therefore, is that it is not open to the appellant in this appeal to question the correctness of the finding that he held an office of profit under the Bihar Government, a finding which formed the basis of the dismissal of Appeal No. 7 and the confirmation of the order setting aside his election.
764 The learned counsel for the appellant relied on the judgment of this Court in Narhari vs Shankar(1) in support of his contention that the judgment in Election Appeal No. 7 cannot operate as res judicata in this appeal.
That case is distinguishable on facts and is with respect to the interpretation of section 11 of the Code of Civil Procedure.
In the suit.
, in that case, the plaintiffs claimed possession over 2/3rds of the plot No. 214.
They claimed 1/3rd which was in the possession of ' one set of defendants, namely, defendants ,Nos. 1 to 4 and the other 1/3rd was in possession of another set of defendants, namely, defendants Nos. 5 to 8.
Each set of defendants claimed that they were entitled to the land in their possession as their share of the family property and denied the allegations of the plaintiffs that the senior branch was under custom entitled to exclusive possession of the plot which was Inamland.
The suit was decreed by the trial Court.
Each set of defendants then filed an appeal claiming 1/3rd of the plot.
The first appellate Court allowed both the appeals and dismissed the plaintiffs suit by one judgment and ordered a copy of the judgment to be placed on the file of the other connected appeal.
Naturally, it decided the one point of contention common to both the appeals, namely, that the senior branch was not entitled to exclusive possession of the plot.
This was the finding in each of the appeals.
The plaintiffs thereafter filed two appeals to the High Court, one against the decree in the appeal filed by defendants Nos. 1 to 4 and the other against the decree in the appeal filed by defendants Nos.
5 to 8.
The latter appeal was filed beyond limitation and the High Court refused to condone the delay.
It was contended at the hear ing of the appeal that the second appeal was filed (1) ; 765 beyond the period of limitation and was not maintainable and that when it was dismissed as not maintainable the first appeal would we barred by the principle of res judicata.
The High Court agreed with the contention, dismissed the second appeal as time barred and the first on the ground that the judgment in the appeal by the defendants Nos. 5 to 8 operated as res judicata.
The plaintiffs then filed two appeals to the Judicial Committee of the Hyderabad State and, ultimately, they were disposed of by this Court in view of article 374(4) of the Constitution.
The plaintiffs had impleaded all the defendants as respondents in their first appeal to the High Court.
They had paid the full court fee necessary for an appeal against the dismissal of the entire suit.
Their prayer covered both the appeals.
This indicated that it was sought to be an appeal against the dismissal of the entire suit.
It is not clear whether the common judgment passed by the first appellate Court specifically stated that ,it dismissed the plaintiffs suit with respect to one third of the plot by its order allowing one appeal and dismissed the suit with respect to the other one third by its order allowing the second appeal.
Possibly it just said that as a result of its finding the appeals are allowed and the plaintiffs ' suit is dismissed and that such an order led the plaintiffs to actually file one appeal against all the defendants and against the dismissal of the entire suit.
The prayer in the first appeal covered the subject matter of both the appeals.
Thus the first appeal was really a consolidated appeal against the decrees in both the appeals and could have been split up for the purposes of record into two separate appeals.
This Court itself felt that the circumstances of the case were such that the High Court should have allowed the benefit of section 5 of the Limitation Act to the appellant.
766 It was in these circumstances that this Court observed, at page 757 : "It is now well settled that where there has been one trial, one finding, and one decision, there need not be two appeals even though two decrees may have been drawn up.
" This does not mean that whenever there be more than one appeal arising out of one suit, only one appeal is competent against the order in Any.
of those appeals irrespective of the fact whether the issues for decision in those appeals were all common or some were common and others raised different points for determination.
The existence of one finding and one decision mentioned in this observation simply contemplates the presence of common points in all the appeals and the absence of any different point in those appeals, and consequently of one decision on those common points in all the appeals.
This Court, further observed at page 758: "The question of res judicata arises only when these are two suits.
Even when there are two suits it has been held that a decision given simultaneously cannot be a decision in the former suit.
When there is only one suit, the question of res judicata does not arise at all and in the present case, both the decrees are in the same case and based on the same judgment, and the matter decided concerns the entire suit.
As such there is no question of the application of the principle of res judicata.
" These observations do not apply to cases which are governed by the general principles of res judicata which rest on the principle that a judgment is conclusive regarding the points decided between the same parties and that the parties should not be vexed twice over for the same cause.
We are therefore of opinion that both in view of the facts of the case and the provision of law 767 applicable to that case, that case can be no guide for determining the question before us in this appeal.
It is true that both the appeals Nos. 7 and 8 before the High Court arose out of one proceeding, before the Election Tribunal.
The subject matter of each appeal was, however, different.
The subject matter of appeal No. 7 filed by the appellant related to the question of his election being bad or good, in view of the pleadings raised before the Election Tribunal.
had nothing to do with the question of right of respondent No. 1 to be declared as duly elected candidate.
The claim on such a right is to follow the decision of the question in appeal No. 7 in case the appeal was dismissed.
If appeal No. 7 was allowed, the question in appeal No. 8 would not arise for consideration.
The subject matter of appeal No. 8 simply did not relate to the validity or otherwise of the election of the appellant.
It related to the further action to be taken in case the election of the appellant was bad, on the ground that a Ghatwal holds an office of profit.
The decision of the High Court in the two appeals, though stated in one judgment, really amounted to two decisions and not to one decision common to both the appeals.
It is true that in his appeal No. 8, the respondent No. 1 had referred to the rejection of his contention by the Election Tribunal about the appellant and respondent No. 2 being holders of an office of profit.
He had to challenge the finding on this point because if he did not succeed on it, he could not have got a declaration in his favour when respondent No. 2 was also in the field and had secured a larger number of votes.
He could, however, rely on the same contention in supporting the order of the Election Tribunal setting aside the election of the appellant and which was the subject matter of Appeal No. 7.
This contention was considered by the High Court in Appeal No. 7 in that context and it was therefore that even though the 768 High Court did not agree with the Election Tribunal about the appellant 's committing a corrupt practice, it confirmed the setting aside of his election on the ground that he held an office of profit.
The finding about his holding an office of profit served the purpose of both the appeals, but merely because of this the decision of the High Court in each appeal cannot be said to be one decision.
The High Court came to two decisions.
It came to one decision in respect of the invalidity of the appellants election in Appeal No. 7.
It came to another decision in Appeal No. 8 with respect to the justification of the claim of respondent No. 1 to be declared as a duly elected candidate, a decision which had to follow the decision that the election of the appellant was invalid and also the finding that respondent No. 2, as Ghatwal, was not a properly nominated candidate.
We are therefore of opinion that so long as the order in the appellant 's appeal No. 7 confirming the order setting aside his election on the ground that he was a holder of an office of profit under the Bihar Government and therefore could not have been a properly nominated candidate stands, he cannot question the finding about his holding an office of profit, in the present appeal, which is founded on the contention that finding is incorrect.
We therefore accept the preliminary objection and dismiss the appeal with costs.
Appeal dismissed.

dataset_name: IN-Abs

summary/full:
The Election Tribunal on the petition of the first res pondent set aside the election of the appellant holding that the appellant as a Ghatwal, was not a holder of office of profit, and t hat he was guilty of corrupt practices.
The Election Tribunal however did not entertain the first respondent 's prayer to declare him as duly elected.
The ' appellant and the first respondent, both went up in appeal to the High Court.
Appellants appeal being No ' 7 was against the order setting aside his election.
The first respondent 's appeal being No. 8 was against the order not declaring him to be duly elected.
Both the appeals were disposed of by the High Court by one judgment.
The appellant 's appeal No. 7 was dismissed holding that the appellant was not guilty of corrupt practices and that be, as a Ghatwal, held an office of profit.
The respondent 's appeal No. 8 was allowed declaring him as duly elected.
Two separate decrees were prepared in the two appeals.
The appellant filed this appeal by special leave from the order in Appeal No. 8 by the first respondent.
All the grounds of the appeal related to the finding of the High Court that the office of Ghatwal was an office of profit.
A preliminary objection was taken on behalf of the first respondent that this appeal was incompetent as barred by the principle of res judicata inasmuch as the appellant did not appeal against the order of the High Court in Appeal No. 7 whose dismissal by the High Court confirmed the order of the Election Tribunal setting aside the election of the appellant; and that it was not open to the appellant to question the correctness of the finding that he held an office of profit, which was the basis of the dismissal of appeal No. 7.
Held, that where two appeals arose out of one proceeding, but the subject matter of each, appeal was different, the 760 decision of the High Court in the appeals though stated in one judgment, really amounted to two decisions and not to one derision common to both the appeals.
The subject matter of Appeal No 7 filed by the appellant related to the question of his election being bad or good.
The subject matter on appeal No. 8 did not relate to the validity or otherwise of the election of the appellant.
It related to the further action to be taken in case the election of the appellant was bad, on the ground that ' a Ghatwal holds an office of profit.
The High Court came to two decisions, one in respect of the invalidity of the appellant 's election in appeal No. 7.
It came to another decision in appeal No. 8 with respect to the justification of the claim of the first respondent to be declared as a duly elected candidate.
That so long as the order in the appellant 's appeal No. 7 confirming the order setting aside his election on the ground that he was a holder of an off ice of profit stands, he cannot question that finding in the present appeal, preferred against the decree in the first respondent 's appeal No. 8.
Narhari vs Shankar ; , distinguished.


judgement:
Appeal No. 328 of 1961.
Appeal by special leave from 'the judgment and order dated February 2, 1961, of the Punjab High Court (Circuit Bench), at Delhi 'in Civil Revision Application No. 135 D of 1957.
Din Dayal Sharma and N, N. Keswami, for the appellant.
K. Daphtary, Solioitor General of India, V. D. Mahajan and T.M. Sen, for the respondent.
September 25.
The Judgment of the Court was delivered by GAJENDRAGADKAR, J.
The principal point which this appeal by special leave raises for our decision relates to the construction of sections 32 and 33 of the (10 of 1940) (hereafter called the Act).
That question arises in this way.
The respondent, Union of India, filed a petition in the Court of the First Class Sub Judge at Delhi against the appellant M/s J. Burman & Co., through its proprietor Jawahar Lal Burman under sections 33 and 28 of the Act.
The respondent alleged that a concluded contract had been entered into between the parties on August 31, 1949 for supply of 170 1/2 Cwt.
of cocoanut oil by the appellant to the respondent.
The respondent had advertised in the Indian Trade Journal for the said supply and the appellant had submitted its tender No. SM I/1104524.
772 This tender was accepted by the respondent which concluded a contract between the parties.
The respondent 's case 'was that the said contract was governed by general conditions of contract Form W. 'S.B. 133.
, These conditions included an arbitration 'agreement, 'Disputes arose between the parties regarding the said contract, and so in pursuance of the arbitration agreement they were referred to the two arbitrators appointed by the parties.
After ,the arbitration propeedings had gone.
on for, a considerable time before the arbitrators the appellant objected to their jurisdiction to , deal.
with the disputes on the ground: that there was No. concluded contract between the parties.
This plea made it necessary for the respondent to move the Court for a decision of the question about the; existence and validity of the arbitration 'agreement.
It, was on these allegations that the respondent in its petition claimed 'that it may, be held that there was a concluded contract between ': the parties containing a valid arbitration agreement.
The petition having been made under section 28 along with section 33 the respondent prayed that suitable extension of time be granted to the Arbitrators for making the, award.
The appellant pleaded in defence that no concluded contract had been made between the parties and that there was no jurisdiction: in the Court to grant extension under s 28.
The, other allegations made by the respondent in its petition were also traversed.
On these pleadings the learned trial judge framed, appropriate issues.
He found that a concluded contract had been proved, between the parties as alleged by the respodent.
that there was a valid arbitration agreement in the said contract and that the Court had jurisdiction, to.
try the petition.
Incidentally, it may be pointed out at this stage that no specific point had been raised in the pleadings of the appellant that, the Court had no jurisdiction to entertain the petition under section 33 or.
section 32 of the Act,.
In fact the trial judge has observed that it was not shown to him how the 773 application was incompetent.
Consistently with the findings recorded by him the learned trial judge declared that there was a concluded contract between the parties under which the matter was duly referred to arbitration through an arbitration agreement clause in the contract.
As a result of the declaration he held that there was a valid reference to arbitration between the parties.
Consequently he granted a month 's time to the arbitrators to make their award.
This decision was challenged by the appellant by its revision petition preferred in.
the High Court of Punjab at Chandigarh.
The High Court has confirmed the finding of the trial court that there was a concluded contract which contained an arbitration agreement.
The question of 'jurisdiction under section 33 of the Act was argued before the High Court and its attention was drawn to the conflict of judicial decisions on.
the point.
The High Court, however, held that since the petition has been filed as a composite application under sections 28 and 33 it was open to the Court under a. 28 to enter upon the question of the existence or validity of the contract and so there was no substance in the point of 'jurisdiction raised by the appellant.
In the result the appellant 's revision application was dismissed.
It is against this decision that the appellant has come to this Court by special leave ; and on his behalf Mr. Din Dayal has raised the same two points for our decision.
He contends that the High Court was in error in holding that the trial court bad jurisdiction to entertain the respondent 's petition, and he argues that even if the point of jurisdiction raised by him fails it should be held that there was no concluded contract between the parties and so.
there was no scop or room for making any reference to arbitration.
The first of these two contentions has been seriously pressed before us.
Before dealing with, the question of jurisdiction it is necessary to recall the material facts which 774 have led to the present dispute.
The appellant and the respondent nominated their arbitrators.
The arbitrators heard the matter at length and the proceedings bad reached a stage when an award might have been pronounced.
It was then that the appellant chose to obstruct the further progress of the proceedings by raising the plea that there was no concluded contract.
Even then he refused to apply under section 33 and so a stalemate issued because the arbitrators ' were not entitled to proceed further with the arbitration proceedings in view of the point raised by the appellant.
It is necessary to bear in mind this background of the dispute in considering the point of jurisdiction.
The question of jurisdiction raised by the appellant has to be answered in the light of the construction which can be reasonably placed on the material provisions of sections 32 and 33 of the Act.
It may be conceded at the outset that the question thus raised presents some difficulty.
Sections 32 and 33 read thus: "32.
Notwithstanding any law for the time being in force, no suit shall lie on any ground whatsoever for a decision upon the existence, effect or validity of an arbitration agreement or award, nor shall any arbitration agreement or award be set aside, amended, modified or in any way affected otherwise than as provided in this Act.
Any party to an arbitration agreement or any person claiming under him desiring to challenge the existence or validity of an arbitration agreement or an award or to have the effect of either determined shall apply to the Court and the Court shall decide the question on affidavits: Provided that where the Court deems it just and expedient, ' it may set down the application for hearing on other evidence 775 also, and it may pass such orders for dis covery and particulars as it may do in a suit.
" In appreciating the effect of these two provisions it would be relevant to remember that the object of the Legislature in enacting the two sections quite clearly was to prevent the abuse of the process of the Court.
Before the present Act was passed experience showed that unscrupulous and dishonest parties to the arbitration agreements frequently chose to deny the existence of the said agreements even after the arbitration proceedings had concluded and ended in awards and that tended to make all arbitration proceedings futile.
More often than not these pleas ultimately failed but it meant considerable delay and waste of time and substantial expense.
That is why sections 32 and 33 have been enacted with the object of bringing the relevant disputes for decision before the specified Courts in the form of petitions.
It is significant that under s.31(2) of the Act all questions regarding the validity, effect or existence of an award or an arbitration agreement between the parties to the agreement or persons claiming under them shall be decided by the Court in which the award under the agreement has been, or may be, filed, and by no other Court.
Indeed, s.2(c) defines a Court as meaning a Civil Court having jurisdiction to decide the questions forming the subject matter of the reference if the same had been the subject matter of a suit, but does not, except for the purpose of arbitration proceedings under section 21, include a Small Cause Court.
Therefore, stated broadly, it would be correct to assume that the main object of introducing the new provisions of sections 31, 32 and 33 was to entrust the decision of the relevant disputes to the specified Court and to require the parties to bring the ,said disputes for the decision of the said Court in the form of petitions.
Remedy by a regular suit is intended to be excluded.
776 Section 32 creates a bar against the institution of suits, and it provides that if the existence effect or validity of an arbitration agreement or award is in dispute on any ground whatsoever no suit shall lie for the adjudication of the said dispute.
It also provides that no suit shall lie to set aside, amend or modify or in any way affect an arbitration ' agreement or an award.
It would be noticed that the clause "on any ground whatsoever" is very wide and it denotes, inter alia, that if the existence or validity of an arbitration agreement is questioned on any ground whatever it cannot be the subject matter of a suit; the said dispute shall be tried as provided in this Act.
Thus there can be no doubt, that if a party affirms the existence of an arbitration agreement or its validity it is not open to the party to file a suit for the purpose of obtaining a declaration about the existence of the said agreement or its validity.
Such a suit in terms is barred by section 32.
This position is.
not disputed.
The bar to the suit thus created by section 32 inevitably raises the question as to what remedy it is open to a party to adopt in order to obtain an appropriate declaration about the existence or validity of an arbitration agreement; and it is on the decision of this question that the parties are at issue before us.
Before answering this question we may conveniently consider the scope of section 33 and its effect.
Section 33 consists of two parts.
The first deals with a challenge to the existence or validity of an arbitration agreement or an award, and it provides that the persons there in specified can apply to the Court to have a decision on its challenge to the existence or validity of an arbitration agreement or an award.
In other words, there is no doubt that it is only persons who challenge the existence of the arbitration agreement that can apply under the first part of section 33.
This position is also not disputed.
The second part of the section refers to applications made to have the effect of either the arbitration agreement or the award determined.
The question 777 which we have to consider is whether a person affirming an arbitration agreement can apply under the latter part of section 33.
Even assuming that the requirement that an application can be made under the first part of section 33 only by persons desiring to challenge the arbitration agreement does not apply to its latter part, it is difficult to hold that an application to have the effect of the arbitration agreement determined can legitimately cover the dispute as to the existence of the said arbitration agreement.
It is clear that the first part of section 33 refers to the existence or validity in terms and sections 31 and 32 also refer separately to the existence effect or validity.
Therefore, the effect of an arbitration agreement is treated as distinct from the existence of the agreement, and where it was intended to refer to the existence as well as the effect of such an agreement both the words "existence and effect" have been specifically used.
Thus, under the latter part of section 33 an application can be made to have the effect or purport of the agreement determined but not its existence.
That means that an application to have the effect of the agreement can be made provided the existence of the agreement is not in dispute.
Besides, if a person affirming the existence of an agreement is held entitled to apply to the Court under the latter part of s.33 for getting a declaration about the said existing agreement then the first part of section 33 would be wholly superfluous.
Therefore, it seems to us that a party affirming the existence of an arbitration agreement cannot apply under section 33 for obtaining a decision that the agreement in question exists.
In fairness we ought to add that the learned Solicitor General, who appeared for the respondent, did not dispute this position.
If the party affirming the existence of an arbitration agreement cannot apply under s.33 what is the remedy open to him? This question takes us back to section 32.
If section 32 has created a bar against the institution of a suit for obtaining 778 a declaration about the existence of an arbitration agreement, unless it is held that the creation of the said absolute bar itself involves the right to make an application under the Act it would lead to the anomalous result that a party is given no remedy to enforce the right ; and it is an ordinary rule of construction that such an unreasonable and unconscionable result should as far as possible be avoided because the Legislature could not have intended such a result.
In our opinion, having regard to the scheme of sections 31, 32 and 33 it would not be unreasonable to hold that in matters which fall within the bar created by s.32 if a suit cannot be filed it 119 necessarily intended that an application can be made and such an application can be made under the Court 's powers provided for by s.31 and impliedly recognised by section 32.
On this construction section 33 cannot be treated as exhaustive of all cases where applications can be made.
The Legislature has provided for the said cases under section 33 because it was thought that they represented the usual type of cases which arise under the arbitration agreements. 'A contrary view would lead either to a stalemate or would in substance compel the party affirming the existence of an agreement to forego the procedure prescribed by the said agreement and sue on the, contract itself.
We are satisfied that a fair construction of sections 31, 32 and 33 does not lead to such an anomalous position.
Mr, Din Dayal contends that there is really a lacuna in the Act inasmuch as having created a bar by section 32 the Legislature has failed to provide a remedy by way of an application.
On reading sections 31, 32 and 33 together we do not think the Court is driven to the conclusion that there is a lacuna in the Act.
In this connection it is material to remember that even in dealing with applications under the first part of section 33 the Court may accept the opponent 's plea and hold that the arbitration agreement exists if the challenge to the said existence set out in the petition is rejected.
In other words, in many 779 cases applications made under the first part of a. 33 may end in the finding that the arbitration agreement exists.
Similarly, in applications made under s.20 of the Act, if a dispute arose as to the existence of the arbitration agreement the Court may find in favour of the existence and make an order of reference as contemplated by a. 24.
Thus, it is clear that in the applications expressly provided for by these two sections a party affirming the existence of the agreement would be entitled to prove the said existence, and if he succeeds he would obtain a decision to that effect.
Therefore, in holding that section 32 impliedly recognises the inherent jurisdiction of the Court to entertain applications made by the parties affirming the existence of arbitration agreements we are bringing the provisions of s.32 in line with the provisions of sections 33 and 20.
Indeed, section 33 is a corollary of section 32 and in a sense deals by way of illustration with the most usual type of cases arising in arbitration proceedings.
Section 28 of the Act has no material bearing on the decision of this point.
The power to enlarge time for making the award which is the subject matter of the provisions of section 28 cannot be hold to include a power to entertain petitions like the present.
Indeed, the learned Solicitor General has not attempted to justify the conclusion of the High Court that s.28 confers such a power.
Even if it is held that there is inherent jurisdiction in the Court to entertain an application in support of the existence of an arbitration agreement the question still remains whether an application can be made under such inherent jurisdiction for a declaration that the contract which includes the arbitration agreement as defined by section 2(a) includes cases where the arbitration agreement is made a part of the contract itself.
The argument is that though an application may be made under the inherent jurisdiction of the Court to obtain a declaration about the existence or validity of an arbitration agreement, no such application can be 780 made to obtain a declaration about the existence or validity of the main contract itself.
In dealing with this argument it would be necessary to have regard to the substance rather than the form of the matter.
In the present case the respondent claims that there is a concluded contract between the parties and that the said contract contained a valid arbitration agreement.
Looking *at the substance of the matter the prayer was first in regard to the existence and the validity of the main contract leading upto the second and principal prayer that there was a valid arbitration agreement.
Quite clearly the decision of this question cannot depend merely on the words used in the petition.
Where the challenge to the contract made by the appellant in defence to the claim of the respondent is a challenge common to both the contract and the arbitration agreement, the petition, like the One made by the respondent, must in substance be held to be a petition for a declaration as to the existence of a valid arbitration agreement; and a suit to obtain such a declaration is clearly barred by section 32.
Therefore, in our opinion, the fact that an incidental declaration is claimed about the existence and validity of the main contract does not affect the essential character of the application.
It is an application for obtaining a declaration about the existence and validity of an arbitration agreement.
It is true that an arbitration agreement included in the contract itself is in one sense an integral part of the contract and in another sense it may be distinct from it.
As observed by Lord Macmillan in Hayman vs Darwins, Ltd.(1), "the arbitration clause is quite distinct from the other clauses.
The other clauses set out the obligations which the parties undertake towards each other hinc inde; but the arbitration clause does not impose on one of the parties an obligation in favour of the other.
It embodies the agreement on both the parties that, if any dispute arises with regard to (1) section C. at p. 347.
781 the obligations which the one party has undertaken to the other, such dispute shall be settled by a tribunal of their own constitution.
Moreover, there is this very material difference that whereas in any ordinary.
contract the obligations of the parties to each other cannot in general be specifically enforced and breach of them results only in damages, the arbitration clause can be specifically enforced by the machinery of the Arbitration Acts".
It is, therefore, theoretically possible that a contract may come to an end and the arbitration agreement may not.
It is also theoretically possible that the arbitration agreement may be void and yet the contract may be valid; and in that sense there is a distinction between the arbitration agreement and the contract of which it forms a part; but, as we have already pointed out, in the present case, the challenge to the contract itself involves a challenge to the arbitration agreement; if there is a concluded contract the arbitration agreement is valid.
If there is not a concluded contract the arbitration agreement is invalid.
In such a case a prayer for a declaration of the existence of the contract and its validity inevitably leads to the consequential prayer about the existence and validity of the arbitration agreement.
If that is so, a suit cannot lie for a declaration that the arbitration agreement is valid because the prayers that the respondent has made in the present case fall directly within the clause ",on any ground whatsoever".
Indeed, we apprehend that in a very largo majority of cases where the arbitration agreement is a part of the main contract itself, challenge to the existence or validity of one would mean a challenge to the existence or validity of the other.
We would accordingly hold, though for different reasons, that the High Court was right in coming to the conclusion that the petition made by the respondent was competent under section 32 of the Act and has been properly entertained by the trial Court.
782 This question has been the subject matter of some judicial decisions to which reference may now be made.
In Messrs. M. Grulamali Abdulhussain & Co. vs Messrs. Vishwambharlal Ruiya(1) a petition had been filed for a declaration that the respondents had entered into the contract with the petitioners for purchase of 500 bars of silver on or about January 30, 1948 according to the rules and regulations of the Marwari Chamber of Commerce, Ltd., and that the respondents were bound to have all disputes in connection with the same contract decided by the arbitrators as provided by the said rules and regulations.
The competence of this petition and the jurisdiction of the Court to enter tain it were disputed.
Both the learned trial judge and the Court of Appeal rejected the respondents ' contention and held that there was an inherent jurisdiction in the Court to entertain petitions in respect of matters covered by the bar raised by 32.
On the other hand, in Bajranglal Laduram vs Agarwal Brothers(2) as well as in State of Bombay vs Adamjee Hajee Dawood & Co., a contrary view has been accepted.
In the latter case, a suit had been filed on the Original Side of the Calcutta High Court claiming a declaration that a certain contract was not made between the parties and was not binding on the plaintiff.
A further claim was also made that it should be declared that the defendant was not entitled to make any claim in respect of the said contract and that the contract be adjudged void and delivered up as cancelled.
The learned trial judge construed the plaint as one for declaration that the arbitration agreement contained in the contract was invalid and on that view he held that under sections 32 and 33 of the Act the suit was not maintainable.
On appeal it was held that the suit was not one for challenging the validity of the arbitration agreement merely; it (1) 1. L. R. (2) A. I. R. (3) 1.
L. R. 783 covered other reliefs and so bar of sections 32 and 33 could not be pleaded.
We are inclined to think that the decision of the Bombay High Court is substantially correct.
That takes us to the next question as to whether there was a concluded contract between the parties or not.
We have already noticed that in response to the advertisement published by the respondent in the Indian Trade Journal the appellant submitted its tender.
It is common ground that the tender thus submitted was subject to the conditions of contract governing the Department of Supply Contracts which were set out in the Government Publication Form W. section B. 133.
Clauses 4(a) and (b) of these conditions are relevant.
They deal with the security deposit.
Clause 4(a) provides that on acceptance of the tender the contractor shall at the option of the Secretary, Department of Supply and within the period specified by him deposit with him a security deposit therein specified.
Clause 4 (b) provides that "if the contractor is called upon by the purchaser to deposit security and the contractor fails to provide the security within the period, such failure will constitute a breach of the contractor and the Secretary, Department of Supply, shall be entitled to make other arrangements at the risk and acceptance of the contractor".
It is thus obvious that, the tender offered by the appellant submitted to these terms and that on these terms security deposit is a condition subsequent and not a condition precedent.
Clause 4(b) makes it clear that the failure to make the deposit would be a breach of the contract itself.
This position is not disputed; but Mr. Din Dayal contends that this position has been substantially varied by the Form in which the appellant 's tender was accepted by the respondent.
His argument is that the material words used in the acceptance letter changed the preexisting position and made the security deposit a condition.
precedent to the acceptance itself.
If this contention is right it would necessarily mean 784 that there was no concluded contract.
Thus the decision of this point depends upon the construction of the letter of acceptance issued by the respondent to the appellant after receiving its tender.
In this letter written on August 31, 1949 the respondent stated as follows: "Dear Sirs, Ref : Your tender No. and date Nil.
Your offer is hereby accepted for a quantity of 1704 Cwts.
and 2 qrs.
(One thousand seven hundred and four hundred weights and two quarters only) of Oil Cocoanut conforming to specification No. IM.
1370 (d) at Rs. 89/6/ (Rupees eighty nine and annas six only) per Cwt.
packed in non returnable sound, strong 45 gallon drums, delivery ex godown at Calcutta, by 30 9 49 or earlier if possible subject to your depositing 10% as security.
The security money which comes to Rs. 15,230/ (Rupees fifteen thousand two hundred and thirty only) should please be deposited immediately into a Government Treasury in favour of the Deputy Accountant General, I and section, Akbar Road, New Delhi and the Treasury Receipt forwarded to this office.
This security money will be refunded to you after the completion of the contract.
The contract is concluded by this acceptance and formal acceptance of Tender will follow immediately on receipt of Treasury Receipt.
Kindly acknowledge receipt.
Yours etc.
" The whole argument is founded on the use of the clause " 'Subject to your depositing.
10% as security.
" Prima facie this clause may justify the argument that it is intended to make the security deposit a condition precedent; but in construing the true 785 effect of this clause we must look at the whole of the letter bearing in mind the fact that it has been written not by a lawyer or in consultation with a lawyer but by a Government officer in the ordinary course of the discharge of his duties.
The first sentence in the first paragraph clearly shows that the offer was accepted for the quantity therein specified.
The second paragraph calls upon the appellant to see that the specified amount is deposited immediately into the Government Treassury.
This paragraph is more consistent with clause 4(a) of the general conditions.
It reads as if having accepted the tender the appellant is reminded that it has to deposit the amount under the relevant condition, and the letter ends with the categorical statement that the contract is concluded by this acceptance.
Mr. Din Dayal is right when he contends that section 7 of the Contract Act requires that the acceptance of the offer must be absolute and unqualified, it cannot be conditional; but reading the letter as a whole we do not think that the Courts below have erred in Coming to the conclusion that this letter amounts to an absolute and unqualified acceptance of the tender or offer made by the appellant.
While dealing with this question it may be pertinent to recall that the general conditions of the contract prescribed by Form W.S.B. 133 are made a part of the tender, and the contract itself was intended to be executed expeditiously.
The tender shows that the appellant represented that the earliest date by which delivery could be effected would be within twenty days from the date of the receipt of the order and it also said that full quantity of cocoanut oil required was held by it.
Therefore, to begin with the tender treated the security deposit as a subsequent condition, the contract was for the immediate supply of goods and the acceptance purports to be in accordance with the relevant government rules and uses the expression that the contract was concluded by the said acceptance.
Therefore, in our opinion, reading the letter as a whole it would not be possible to 786 accept the appellant 's argument that the letter was intended to make a substantial variation in the contract by making the deposit of security a condition precedent instead of a condition subsequent.
In the result the appeal fails and is dismissed with costs.
Appeal dismissed.

summary/full:
The appellant and the, respondent nominated their arbitrator who heard the matter at length and the proceedings had reached a stage when an award might have been pronounced.
It was then that the appellant chose to obstruct the further progress of the proceedings by raising the plea that there was no, concluded contract.
The appellant refused to apply under section 33 and so a stalemate issued because the arbi trators were, not entitled to proceed further, with the arbitration proceedings.
, The respondent moved the court under section 28 along with section 33, for a decision of the question about the existence and validity of the. arbitration agreement and also prayed that extension of time be granted to ' the arbitrators for.
making the award.
The appellant pleaded in defence that ' there was no concluded contract, and there was no jurisdiction in the court to, grant extension under section 28 of the Act.
The High Court confirmed the finding of the trial court that there was a concluded contract which contained a valid arbitration agreement.
As for jurisdiction it held that since the petition had been filed as composit application under sections 28 and 33, it was open to the court under section 28 to enter upon the question of the existence or validity of the contract and so there was no substance in the point of jurisdiction raised by the appellant.
It is against this decision that the appellant came up by special leave.
Section 33 of the Arbitration, Act, :1940 consists of two parts the first part deals with a challenge to the existence or validity.
of an arbitration agreement or an award and it provides that only persons who challenge the existence of the arbitration agreement that; can. apply under the first part of the section.
The second.
part of the section refers to the application made to have the effect of either the arbitra 770 an application can be made to have the effect or purport of the agreement determined but not its existence.
That means that an application to have the effect of the agreement can be made provided the existence of the agreement is not disputed.
The question is whether a person affirming an arbitration agreement can apply under the latter part of section 33 about the existence of the agreement or its validity.
Held, that a party affirming the existence of an arbitration agreement cannot apply under section 33 for obtaining a decision that the agreement in question exists.
An application to have the effect of the arbitration agreement determined can however, legitimately cover the dispute as to the existence of the said arbitration agreement.
Section 32 of the Act creates a bar against the institution of suits with regard to an arbitration agreement or award on any ground whatsoever.
Thus if a party affirms the existence of an arbitration agreement or its validity it is not open to the party to file a suit for the purpose of obtaining a declaration about the existence of the said agreement or its validity.
The bar to the suit thus created by section 32.
inevitably raises the question as to what remedy is open to a party to adopt in order to obtain a appropriate declaration about the existence or validity of an arbitration agreement.
Held, that having regard to the scheme of sections 31, 32, 33 of the Act in matters which fall within the bar created by section 32, if a suit cannot be filed it is necessarily intended that an application can be made under the court 's powers provided for by section 31 and impliedly recognised by section 32 of the Act.
Held, further that in holding that section 32 impliedly recogniscs the inherent jurisdiction of the court to entertain an application made by parties affirming the existence of an arbitration agreement the provisions of section 32 is brought it line with the provisions of sections 33 and 20 of the Act.
Indeed section 33 is a corollary of section 32 and in a sense deals with the most usual type of cases arising in arbitration proceedings.
A question arises whether an application ran be made under such inherent jurisdiction for declaration that the contract which includes the arbitration agreement includes cases where the arbitration agreement is made a part of the contract itself.
Held, that where the challenge to the contract made in defence to the claim, is a challenge common to both the contract and the arbitration agreement, the petition in substance is a petition for a declaration as to the existence of a valid arbitration agreement and a suit to obtain such a declaration is clearly barred by section 32.
The fact that an incidental declaration is claimed about the existence and validity of the main contract does not affect the essential 771 character of the application.
It is an application for obtaining a declaration about the existence and validity of an arbitration agreement.
Held, also that the powers to enlarge time for making the award which is the subject matter of section 28 does not include a power to entertain a petition for declaration that there was a concluded contract between the parties containing a valid arbitration agreement.
Hayman vs Darwins.
Ltd., , referred to.
Messrs. M. Gulamali Abdulhussain & Co. vs Messrs. Vishwambharlal Buiya, I.L.R. , approved.
Bajranglal Laduram vs Agarwal Brothers, A.I.R. 1950 Cal.
267 and State of Bombay vs Adamjeee Hajee Dawood & Co. Ltd. I.L.R. (1 952) , disapproved.


judgement:
Appeal No. 13 of 1952.
Appeal from the Judgment and Order dated 18th January, 1950, of the High Court of Judicature at Madras (Satyanarayana Rao and Viswanaths Sastri JJ.) in Case Referred No. 28 of 1947.
O. T. G. Nambiar (section N. Mukherjee, with him) for the appellant.
M. C. Setalvad, Attorney General of India, and C.K. Daphtary, Solicitor General for India (G. N. Joshi and P. A. Mehta, with them) for the respondent.
December 22.
The Judgment of the Court was delivered by BOSE J.
The following question was referred to the High Court of Madras by the Income tax Appellate Tribunal under section 66 (1) of the Indian Income tax Act, 1922 Whether on the facts and in the circumstances of the case when an assessment has been made under section 23 (1) of the Indian Income tax Act, determining the assessee company 's income as 'nil ' and when proceedings under section 34 were subsequently started to assess the income which the 450 Income tax Officer believed to have escaped assessment the assessee company is entitled to claim that the loss of profits and gains (including depreciation allowance) sustained by it in the previous year should be determined in the course of such proceedings.
" We are concerned in this case with the assessment year 1941 42.
The assessee is the Anglo French Textile Company, a company which is incorporated in the United Kingdom.
It owns spinning and weaving mills at Pondicherry in French India and manufactures yarn and cloth there.
The raw materials necessary for the manufacture, or at any rate much of it, such as cotton, used to be purchased in what was then the British India, through its agents Best & Company Ltd. of Madras.
The bulk of its manufactured goods 'was ' also sold in British India, the rest being sold elsewhere.
But in the year material to this case it did no business in British India and accordingly it submitted no return to the Income tax authorities.
On 26th April, 1941, the Income tax Officer issued a notice to the assessee and called for a return.
The assessee replied on 9th June, 1941, that it had ",at all times material to the assessment year no business in British India " and consequently no profits arose or accrued or were received in British India and therefore the assessee "was not liable to comply with the provisions of the Indian.
Income tax Act.
" The assessee added.
In the Circumstances the company is not liable to make a return but with a view to preserve the right of the company to appeal against any order that may be passed by you, if necessary, we submit herewith without prejudice a nil return receipt of which kindly acknowledge.
" Appended to the letter was a piece of paper which has been called a " nil" return.
It is the usual printed form in which returns are, normally made but the only entry.in the whole form is the word " nil The following declaration was also added: 451 "I further declare that the company was not resident in British India during the previous year etc. " On 25th March, 1942, the Income tax Officer made the following order which he called an Assessment Order: "The company made a nil return of income obviously for the reason that it is not carrying on any business in British India .
I accept the return of income filed by the company and declare it is not liable to tax for the year 1941 42.
" A year later, namely, on 9th March, 1943, the Income tax Officer sent the assessee a notice under section 34 (1) (b) in the following terms: Whereas in consequence of the definite information which has come into my possession I have discovered that your income assessable to income tax for the year ending 31st March, 1942 has (a) escaped assessment.
I therefore propose to assess the said income that has (a) escaped assessment.
I hereby require you to deliver to me not later than . a return in the attached form of your total income and total world income assessable for the said year. " In reply to this the assessee again submitted the same CC nil " return and filed a statement showing a loss of Rs. 3,92,357 on its total world income.
This was on 31st May, 1944.
The Income tax Officer passed orders on this on 2nd June, 1944.
He stated that the assessee was a non resident company and that during the year no sales were effected in British India and concluded as follows: As the net result for the world business is only a loss, there can be no question of profits attributable 452 co operations in British India under section 42 (1) and 42 (3) in respect of cotton purchases.
The nil ' return filed is therefore accepted, Hence there is no assessment for 1941 42.
As this is a non resident company, the loss need not be carried forward under section 24 (2) as that section in terms does not apply to non residents.
" The last portion of the order is the one which occasions the assessee 'B grievance.
It claims that the Income tax Officer having accepted its statement of loss was bound to record it and carry it forward.
Appeals followed to the Appellate Assistant Commissioner of Income tax and the Income tax Appellate Tribunal and ultimately there was a reference to the High Court.
The assessee has failed throughout.and now appeals here.
The assessee 's contention is based on the following provision of section 34.
The first sub section states that when a notice is issued under that section the Income tax Officer may proceed to assess or re assess such income, profits or gains or recompute the loss or depreciation allowance and that " the provisions of this Act shall, so far as may be, apply, accordingly as if the notice were a notice issued under [sub section (2) of section 22].
" This it is said attracts section 24 (2).
We need not decide whether this contention is well founded, namely, whether the assessee can claim to reopen the proceedings, because, even if he can, we are of opinion that he cannot get what he asks for.
There is no provision in the Act which entitles the assesses to have a loss recorded or computed, unless something is to be done with the loss.
Thus, under section 24 (1) a loss can be set off against an income, profit or gain and under sub section (2) the balance of a loss can be carried forward to a following year on the conditions set out there.
Except for this there is nothing else that can be called in aid.
But under ' sub section (2) the loss can be carried forward when 453 "the loss cannot be wholly set.
off under subsection (1) and in that event only the "portion not so set off " can be carried forward.
We are therefore.
thrown back o sub section (1).
Sub section (1) provides that where an assessee sustains a loss of profits or gains in any year under any of the heads mentioned in section 6 he shall be entitled to have the amount of the loss " set off against his income, profits or gains under any other head in that year." Therefore, before any question of set off can arise, there must be (1) a loss under one or more of the heads mentioned in section 6, and (2) an income, profit or gain under some other head.
It follows that when there is no income under any head at all, there is nothing against which the loss can be set off in that year and unless that can be done sub section (2) does not come into play.
Next, a set off Under section 24 (1) can only be claimed when the loss arises under one head and the profit against which it is sought to be set off arises under a different head.
When the two arise under the same head, of course the loss can be deducted but that is done under section 10 and not under section 24 (1).
See the decision of the Privy Council in Rm.
Arunachalam Chettiar vs Commissioner of Income tax, Madras (1).
In the present case, the loss is computed by striking a balance in the profit and loss account of just the one business and con sequently no question of different heads arises.
On both these grounds, therefore, the assessee 's contention must fail because, unless the loss can be set off under sub section (1) of section 24, it cannot be carried forward under sub section (2) and if it cannot be carried forward the question of its determination and computation becomes irrelevant.
The High Court proceeds on the ground that when proceedings are taken under section 34 the assesses (1) at 178 and 179.
454 is not entitled to reopen the whole proceedings as the further proceedings are limited to assessing that portion of the income which has escaped assessment.
We need not express any opinion on this.
The question we have to answer is confined to the facts and circumstances of this case and those circumstances are (1) that no return was filed at any stage of the case disclosing any income, profits or gains at all, (2) that proceedings were later taken under section 34, and (3) in the course of these proceedings the assessee claimed that a certain loss should be determined and recorded.
Our answer is that cannot be done for the reasons we have given and that consequently the question referred was rightly answered in the negative by the High Court.
The appeal fails and is dismissed with costs.
Appeal dismissed.

summary/full:
An assessee submitted a return showing the income as "nil" and this return was accepted by the Income tax Officer, In the 449 next year the Income tax Officer sent a notice to the assessee under section 34 (1) (b) calling for a fresh return,.
, The assesses submitted a return showing the income as nil " and a loss of Rs. 3,92,357 and claimed that the loss should be recorded and carried forward under section 24 (2) of the Income tax Act.
The loss was arrived at by striking a balance in the profit and loss account of just one business: Held, that the assessee was not entitled to 'have the loss determined and carried forward for two reasons, first, because when there is no income under any head at all there is nothing against which the loss can be set off in that year under section 24 (1) and unless that can be done sub section
(2) of section 24 does not come into play ; secondly, a set off under section 24 (2) can only be claimed when the loss arises under one head and the profit against which it is sought to be set off under a different head.
Quaere: Whether when proceedings are taken under section 34 for the assessment of income which has escaped assessment, the assesses is entitled to re open the whole proceedings.


judgement:
the matter of Mr. 'A ' an Advocate.
The Advocate in person.
H. N. Sanyal, Additional Solicitor General of India and T. M. Sen, for the Attorney General of India.
September 25 and November 2.
The Judgment of the Court was delivered by SINHA, C. J.
The Advocate proceeded against for professional misconduct was enrolled as an advocate of the Allahabad High Court in December 1958.
In January 1961, he was enrolled as an advocate of this Court.
The proceedings against him were taken in accordance with the procedure laid down in O. IV A of the Supreme Court Rules.
In March this year the Registrar of this Court received a letter, marked 'Secret ', from Secretary to the Government of Maharashtra, in the Department of law & Judiciary, to the effect that the "Advocate on Record" of the Supreme Court had addressed a post card, dated January 1, 1961, to the Minister of Law of the State of Maharashtra, which "constitutes a gross case of advertisement and solicitation for work.
" The original post card was enclosed with the letter, with the request that the matter may be placed before the Chief Justice and the other Judges of the Supreme Court for such action as to their Lordships may seem fit and proper.
The post card, which was marked as exhibit A in the proceedings which followed, is in these terms: Mr. 'A '.
Advocate on Record.
Supreme Court, Office and Residence B.9, Model Town, Delhi 9.
Dated 19 1 61.
290 Dear Sir, Jai Hind.
Your attention is drawn to the rule 20 of order IV of the Supreme Court Rules 1950 (as amended upto date) to appoint an Advocate on Record in the Supreme Court as according to this rule 'no advocate other than an advocate on Record shall appear and plead in any matter unless he is instructed by an Advocate on Record. ' You might have got an Advocate on Record in this court but I would like to place my services at your disposal if you so wish and agree.
Hoping to be favoured.
Thanks, Yours sincerely, Sd: 'A ' To The Minister of Law, Government of Maharashtra, Bombay.
" When the matter was placed before the Chief Justice, he directed the Registrar informally to enquire from the Advocate concerned whether the post card in question had been written by him and bore his rubber stamp and signature.
The Registrar called him, and in answer to his queries, the Advocate admitted that the post card bore his rubber stamp and signature and that it bad in fact been dispatched by him.
He also informed the Registrar that he had addressed similar post cards to other parties.
The Advocate added that he did not realise that in addressing those post cards he was committing any wrong or breach of etiquette.
The Chief Justice, on receiving the aforesaid information, placed the matter before a Committee of three Judges of this Court, under r. 2, O. IV A. The Committee considered the matter referred to it, and 291 on receiving its opinion, the Chief Justice constituted a Tribunal of three members of the Bar, Shri Bishan Narain and Shri A. Ranganadham Chetty, Senior Advocates, and Shri I. N. Shroff, Advocate, with Shri Bishan Narain as its President, for holding the necessary enquiry into the alleged conduct of the Advocate proceeded against.
In reply to the notice served on the Advocate, he chose to behave in a most irresponsible way by alleging that the complaint in question by the Government of Maharashtra "is false, mala fide and misconceived".
He denied that he had written the letter in question, which he characterised as "the work of any miscreant".
He added further that even if it were proved that the letter in question had been written by him, a mere perusal of it would show that there was nothing unprofessional or otherwise objectionable in it, and he added further that certainly it is not solicitation of work if one inquires from any person whether it requires or wishes and agrees to have the services of another advocate".
The Advocate was examined as witness on his own behalf and the Tribunal put the post card to him.
The following questions by the Tribunal and answers by the Advocate will show the determined way in which he denied what he had admitted to the Registrar.
"Tribunal: This post card which has been brought to the notice of the court purports to be from you.
Is this the post card which you have written ? Witness: No. Tribunal: Has it not gone from your office ? Witness: No.
There is no doubt it bears the seal of my office, but it has not been affixed by me.
292 Tribunal: You say it does bear your name and that the rubber stamp which appears is of your office but that it has not been affixed by you.
Witness: Yes.
Tribunal: Is the hand writing which one find on this Postcard your hand writing ? Witness: No. Tribunal: And the signature which is at the foot of the letter, you say, is not your signature.
Witness: No, it is not mine" The Tribunal pursued the matter further to find out as to how the post card had purported to emanate from his office, and then certain documents, marked Exs.
B to E, were brought on the record with a view to comparing his admitted hand writing in those documents with that of the post card in question.
The Tribunal also made him write a letter in the very terms in which the postcard is written, with a view to making a comparison of the handwriting on the post card with his admitted writing in identical terms, given by him in Court.
The Tribunal then confronted him with his admissions made to the Registrar, as aforesaid, before the proceedings started.
The following questions and answers will further indicate his attitude; "Tribunal: In what respects do you find any difference between your normal signature and this signature (signature on the post card is shown to him).
Witness: It appears to be like my signature, but it is not my signature.
Signature on exhibit A is not my signature.
293 Tribunal: In connection with this post card did you see the Registrar (Supreme Court) ? Witness: Yes, he called me.
Tribunal: When? Do you know the date ? Witness: I do not remember.
Tribunal: Did you say anything to him ? Witness: I did not make any statement.
He showed me the post card.
I told him, as I said here, that I held not written it; somebody else might have written it.
Tribunal: Did you admit before the Registrar that this letter was written by you ? Witness: I did not admit it, but he told me that if I admitted it, the matter might be hushed up.
Tribunal: Did you say to the Registrar that you did not realise that in so doing you were doing any thing wrong ? Witness: No.
I did not say anything.
Tribunal: Do you want to produce any evidence ? Witness: No, because I have not done anything; so, I do not want to produce any evidence.
Even if it is found that I have written the post card, even then on merits, there is nothing in this Case".
Finding that the Advocate was adamant in his denial that he wrote the post card or that he had made any statement before the Registrar, the Tribunal called the Registrar as a witness and examined him on solemn affirmation.
The Registrar are his evidence and fully supported his previous 294 report that the Advocate had made those admissions before him.
After recording the evidence, oral and documentary, the tribunal made the report that inspite of stout denial by the Advocate concerned, the Tribunal was satisfied that the post card in question had been written by him.
The Tribunal was also of opinion that the Advocate did not realise that in writing the post card he was committing a breach of professional etiquette and of professional ethics.
It also remarked that it was unfortunate that the Advocate chose to deny the authorship of the post card.
The findings of the Tribunal, along with the evidence and record of the case, have been placed before us. 'the Advocate, on notice, has appeared before us and we have heard him.
Before us also the Advocate first took up the same attitude as he had adopted before the Tribunal, but on being pressed by the Court to make a true statement as to whether he had written the post card and had admitted before the Registrar that he had done so, he answered in the affirmative.
It is clear beyond any shadow of doubt that the Advocate had addressed the letter aforesaid to the Government of Maharashtra, soliciting their briefs; that he had admitted to the Registrar of` this Court that he had written the post card and other such post cards to other parties, and that he did so in utter disregard of his position as an Advocate of this Court.
It is equally clear that his denial of having written the post card, and of having subsequently admitted it to the Registrar, was again in utter disregard of truth.
He has, in this Court, condemned himself as a liar and as one who is either ignorant of the elementary rules of professional ethics or has no regard for them.
In our opinion, the Advocate has mischosen his profession.
Apparently he is a man of very weak moral fibre.
If he is ignorant of the elementary 295 rules of professional.
ethics, he has demonstrated the inadequacy of his training and education befitting a member of the profession of law.
If he M knew that it was highly improper to solicit a brief and even then wrote the post card in question, he is a very unworthy member of the learned profession.
In any view of the matter, he does not appear to be possessed of a high moral calibre, which is essential for a member of the legal profession.
If anything, by adopting the attitude of denial which has been demonstrated to he false in the course of the proceedings before the Tribunal, he has not deserved well of the Court even in the matter of amount of punishment to be meted to him for his proved misconduct.
In our opinion, he fully deserves the punishment of suspension from practice for five years.
This punishment will give him enough time and opportunity for deciding for himself, after deep deliberation and introspection, whether he is fit to continue to be a member of the legal profession.
In our view he is not.
Let him learn that a lawyer must never be a liar.

summary/full:
Mr. A, an Advocate on Record of this Court, wrote letters soliciting clients.
One of such letters, a post card was addressed to the Law Minister of Maharashtra and ended as follows, "You might have got an Advocate on Record in this Court but I would like to place my services at your disposal is you so wish and agree".
To the Registrar of this Court he admitted having written the post card, but before the Tribunal stoutly denied having done so.
The Tribunal found on evidence that the Advocate had written the post card.
When the matter came up before the court, the Advocate at first denied having written the post card but on being pressed by the court to make a true statement admitted that he had written the postcard and had admitted that before the Registrar.
^ Held, that it is against the etiquette of the Bar and its professional ethics to solicit briefs from clients and an Advocate who does so must be guilty of grossly unprofessional conduct.
There can be no doubt in the instant case that the Advocate concerned had written the post card soliciting briefs.
It makes no difference whether he did so in ignorance of this elementary rule of the profession or in disregard of it, since his conduct in court showed that he had no regard for truth and, consequently, he deserved no sympathy of the court and must be suspended.