judgement:
Appeal No. 426 of 1964.
Appeal by special leave from the judgment and order dated February 22, 1962 of the Punjab High Court (Circuit Bench) at Delhi in Civil Revision No. 311 D of 1958.
S.P. Sinha and Inder Sen Sawhney, for the appellant, K. K. Jain and Bishambar Lal, for the respondent.
The Judgment of the Court was delivered by Ramaswami, J.
This appeal is brought, by special leave, from the judgment of the Punjab High Court dated February 22, 1962 in Civil Revision No. 331 D of 1958 whereby the High Court upheld and confirmed the judgment of the Appellate Court and set aside the judgment of the trial court staying proceedings in the suit.
The Uttar Pradesh Co operative Federation Limited (herein after referred to as the 'Society ') was registered under the Cooperative Societies Act No. II of 1912 at Lucknow and was carrying on the business of plying public carriers on Kanpur Delhi route.
The Society had been granted, for this purpose, permits by the Uttar Pradesh Government and Delhi Administration for seven vehicles.
In March, 1954, the Society entered into an agreement with the plaintiffs M/s Sunder Brothers through Bimal Kumar Jain and Dhan Kumar Jain by which they were appointed as Managing Agents for carrying on the business as public carriers.
The terms of the Managing Agency agreement were embodied in a letter dated March 2, 1954 written by the Secretary of the Society.
Clause 28 of the agreement reads as follows: "That in the event of there being any dispute regarding the terms and conditions of this agreement and your appointment hereunder as Managing Agents of the aforesaid business or any matter arising from and relating thereto or the subject matter thereof, such dispute shall be decided by arbitration as provided under Co operative Societies Act II of 1912 and you undertake and agree to be bound by the provisions for arbitration in the said Act".
The agreement was to last for a period of three years but on July 5, 1954 the Society terminated the agreement by its letter dated July 5, 1954, The plaintiffs therefore brought a suit on August 217 18, 1954 in the Court of the Subordinate Judge, First Class, Delhi praying for a declaration that the termination of the Managing Agency agreement by the Society was illegal and the plaintiffs were entitled to continue the business of Managing Agents in accordance with the terms and conditions of the agreement.
The plaintiffs prayed for a mandatory injunction restraining the defendant Society from terminating the agreement.
The Society made an application under section 34 of the Indian before the Subordinate Judge, Delhi, for an order for staying the suit.
It was claimed by the Society that the suit was not main tainable, because under section 51 of the Co operative Societies Act the dispute was to be adjudicated upon by the Registrar of Co operative Societies.
In the alternative it was alleged that by agreement between the parties the dispute was to be referred to arbitration in accordance with the Co operative Societies Act and consequently proceedings should be stayed.
The trial court stayed the proceedings but on the appeal of the plaintiffs the order of the trial court was set aside and the application of the Society under section 34 of the Indian was dismissed.
The Society moved the Punjab High Court in revision but the revision application was dismissed and the order of the lower appellate court was confirmed.
It is necessary at this stage to set out the relevant provisions of the Indian (Act 10 of 1940).
Section 34 of this Act states: "34.
Where any party to an arbitration agreement or any person claiming under him commences any legal proceedings against any other party to the agreement or any person claiming under him in respect of any matter agreed to be referred, any party to such legal proceedings may, at any time before filing a written statement or taking any other steps in the proceedings, apply to the judicial authority before which the proceedings are pending to stay the proceedings, and if satisfied that there is no sufficient reason why the matter should not be referred in accordance with the arbitration agreement and that the applicant was, at the time when the proceedings were commenced, and still remains, ready and willing to do all things necessary to the proper conduct of the arbitration, such authority may make an order staying the proceedings".
Section 46 provides as follows: "46.
The provisions of this Act, except sub section (1) of section 6 and sections 7, 12, 36 and 37, shall apply to every arbitration under any other enactment for the time being in force, as if the arbitration were pursuant to an 5301 16(a) 218 arbitration agreement as if that other enactment were an arbitration agreement, except in so far as this Act is in.
consistent with that other enactment or with any rules, made thereunder".
Section 47 reads as follows: "47.
Subject to the provisions of section 46, and save in so far as is otherwise provided by any law for the time being in force, the provisions of this Act shall apply to all arbitrations and to all proceedings thereunder: Provided that an arbitration award otherwise obtained may with the consent of all the parties interested be taken into consideration as a compromise or adjustment of a suit by any Court before which the suit is pending".
There was some controversy in the lower courts as to whether the arbitration under cl. 28 of the agreement was a statutory arbitration and whether section 46 of the Indian was applicable to the case.
It was argued by Mr. Sinha on behalf of the appellant Society that no statutory arbitration is created by cl. 28 of the agreement but the parties had merely agreed to act in accordance with the provisions of the Co operative Societies Act (Act 11 of 1912) and the Rules made thereunder.
It was contended that the parties had merely incorporated the statutory provisions by reference in their agreement and section 47 of the Indian will, therefore, be applicable to the case.
This legal position was not controverted by Mr. K. K. Jain appearing on behalf of the respondent.
The only question in debate was whether the lower court rightly exercised their jurisdiction under section 34 of the Indian in not granting the stay of the proceedings of the suit.
If the arbitration agreement is not to be treated as a statutory arbitration under section 46 of the but an arbitration agreement under section 47 of the Act, then the procedure to be followed for the arbitration under that agreement will be that provided under the Co operative Societies Act and the Rules framed thereunder.
Under section 47 of the Indian the arbitration will be governed only by such rules of the Co operative Societies Act and rules framed thereunder as are not inconsistent with the provisions of the Indian .
In this con nection it is necessary to refer to Rules 115, 116 and 117 of the Co operative Societies Rules framed under section 43 of the Co operative Societies Act.
Rule 115 states as follows: "Any dispute touching the business of a registered society (i) between members or past members of a society or persons claiming through a member or past member, (ii) or between a member or a past member or persons so claiming and the society or its committee or 219 any officer of the society, (iii) between the society or its committee and any officer of the society, and (iv) between two or more registered societies, shall be decided either by the Registrar or by arbitration and shall for that purpose be referred in writing to the Registrar".
Rule 116 provides: "The Registrar on receipt of a reference shall either decide the dispute himself, or refer it for decision to an arbitrator or to two joint arbitrators appointed by him or to three arbitrators, of whom one shall be nominated, by each of the parties to the dispute and the third by the Registrar who shall also appoint one of the arbitrators to act as chairman".
Rule 117 states: "In case it is decided to appoint three arbitrators (i) The Registrar shall issue a notice calling on each of the parties to nominate one person as its nominee within 15 days of the receipt of the notice.
(ii) if a party consists of more than one person, such persons shall jointly make only one nomination.
(iii) if more than one person is nominated by a party the Registrar shall appoint either one of the nominees or some other person of his own choice as the nominee of that party, (iv) if a party fails to nominate an arbitrator within the appointed time or if its nomination is not valid the Registrar may himself make the nomination, (v) if one of the arbitrators fails to attend or refuses to work as an arbitrator, the remaining arbitrators may decide the dispute.
If two of the arbitrators fail to attend or refuse to work as arbitrators and the claim is not admitted the remaining arbitrator shall refer the case to the Registrar who may authorise him to give an award or appoint one or more arbitrators to proceed, with the reference or he may decide the case himseff".
It has been observed by the High Court that it would be a difficult task for the arbitrator to investigate as to which of the rules made under the Co operative Societies Act are consistent with and which of those rules are not consistent with the provisions of the Indian and therefore it was, a fit case in which discretion of the court under section 34 of the Indian should be exercised in not staying the proceedings of the suit.
In our opinion, the reasoning of the High Court has much substance.
220 There is also another reason why there should not be a stay of the proceedings under section 34 of the Indian .
The suit was filed in 1954 and, though 12 years have elapsed, nothing has been, done in the suit and it will not be in the interest of speedy disposal of the suit between the parties if the proceedings in the suit are further stayed and the parties are referred to arbitration.
There is also another ground why the proceedings in the suit should not be stayed in the present case.
If Rules 11.5 and 116 of the Co operative Societies Rules are applicable then the reference of the dispute has to be made to the Registrar of the Co operative Societies who may either decide the dispute himself or refer the dispute to an arbitrator or two joint arbitrators appointed by him or to three arbitrators, of whom one shall be nominated by each of the parties to the dispute and the third by the Registrar who shall also appoint one of the arbitrators to act as Chairman.
It is alleged by the respondent that the Registrar of Co operative Societies is ex officio President of the Society and it was with his approval that the agreement in dispute was terminated.
It was also pointed out that the Registrar was the chief controlling and supervising officer of the Society under its bye laws.
It was submitted for the respondent that the Registrar may not, therefore, act fairly in the matter and it is improper that he should be an arbitrator in the dispute between the parties.
In our opinion, there is much validity in this argument.
The legal position is that an order of stay of suit under section 34 of the Indian will not be granted if it can be shown that there is good ground for apprehending that the arbitrator will not act fairly in the matter or that it is for some reason improper that he should arbitrate in the dispute between the parties.
It is, of course, the normal duty of the Court to hold the parties to the contract and to make them present their disputes to the forum of their choice but an order to stay the legal proceedings in a Court of law will not be granted if it is shown that there is good ground for apprehending that the arbitrator will not act fairly in the matter or that it is for some reason improper that he should arbitrate in the dispute.
Reference may be made, in this connection, to the decision of the House of Lords in Bristol Corporation vs John And & Co.(1).
This case was concerned with an application for stay of proceedings under section 4 of the English which is similar to section 34 of the Indian .
Upon the settlement of the final account there arose a bona fide dispute of a substantial character between the contractor and the engineer, who was the arbitrator under the contract, involving a probable conflict of evidence between, them.
The House of Lords held, affirming the decision of the (1)[1913] A,C. 241.
221 Court of appeal, that the fact that the engineer, without any fault of his own, must necessarily be placed in the position of a Judge and a witness is a sufficient reason why the matter should not be referred in accordance with the contract.
At pp.
247 248 of the report Lord Atkinson stated as follows: "Whether it be wise or unwise, prudent or the contrary, he has stipulated that a person who is a servant of the person with whom he contracts shall be the judge to decide upon matters upon which necessarily that arbitrator has himself formed opinions.
But though the contractor is bound by that contract, still he has a right to demand that, notwithstanding those preformed views of the engineer, that gentleman shall listen to argument and determine the matter submitted to him as fairly as he can as an honest man; and if it be shown in fact that there is any reasonable prospect that he will be so biased as to be likely not to decide fairly upon those matters, then the contractor is allowed to escape from his bargain and to have the matters in dispute tried by one of the ordinary tribunals of the land.
But I think he has more than that right.
If, without any fault of his own, the engineer has put himself in such a position that it is not fitting or decorous or proper that he should act as arbitrator in any one or more of those disputes, the contractor has the right to appeal to a Court of law and they are entitled to say, in answer to an application to the Court to exercise the discretion which the 4th section of the vests in them, "We are not satisfied that there is not some reason for not submitting these questions to the arbitrator".
In the present case the question is, has that taken place"? Lord Moulton after tracing the growth of the law of arbitration made the following observations in his speech: "But, My Lords, it must be remembered that these arbitration clauses must be taken to have been inserted with due regard to the existing law of the land, and the law of the land applicable to them is, as I have said, that it does not prevent the parties coming to the Court, but only gives to the Court the power to refuse its assistance in proper cases.
Therefore to say that if we refuse to stay an action we are not carrying out the bargain between the parties does not fairly describe the position.
We are carrying out the bargain between the parties, because that bargain to substitute for the Courts of the land a domestic tribunal was a bargain into which was written, by reason of the existing legislation, the condition that it should only be enforced if the Court thought it a proper case for its being so enforced".
222 Lord ;Parker, after pointing out that section 4 of the ' gave a discretionary power to the Court to be exercised after it was ' satisfied that there was no sufficient reason why the matter should not be referred in accordance with the submission, expressed the ' following views: "In making up its mind on this point the Court must of course give due consideration to the contract between the parties, but it should, I think, always be remembered that the parties may have agreed to the submission precisely because of the discretionary power vested in the Court under the .
They may, very well, for instance, have said to themselves, 'If in any particular case it would be unfair to allow the arbitration we are agreeing to proceed we shall have the protection of the Court".
It is manifest that the strict principle of sanctity of contract is subject to the discretion of the Court under section 34 of the Indian , for there must be read in every such agreement an implied term or condition that it would be enforceable only if the Court, having due regard to the other surrounding circumstances, thinks fit in its discretion to enforce it.
It is obvious that a party may be released from the bargain if he can show that the selected arbitrator is likely to show bias or by sufficient reason to suspect that he will act unfairly or that he has been guilty of continued unreasonable conduct.
As we have already stated, the respondent has alleged in the present case that the Registrar, Co operative Societies has approved the termination of the contract of Managing Agency with the plaintiff and the Registrar was the chairman of the defen dant Society.
We are accordingly of the opinion that the High Court properly exercised its discretion under section 34 of the Indian in not granting a stay of the proceedings in the suit.
It is well established that where the discretion vested in the Court under section 34 of the Indian has been exercised by the lower court the appellate court should be slow to interfere with the exercise of that discretion.
In dealing with the matter raised before it at the appellate stage the appellate court would normally not be justified in interfering with the exercise of the discretion under appeal solely on the ground that if it had considered the matter at the trial stage it may have come to a contrary conclusion.
If the discretion has been exercised by the trial court reasonably and in a judicial manner the fact that the appellate court would have taken a different view may not justify interference with the trial court 's exercise of discretion.
As is often said, it is ordinarily not open to the appellate court to substitute its own exercise of discretion for that of the trial Judge; but if it appears to the, appellate court that in exercising its discretion the trial court has acted unreasonably or capriciously or has ignored relevant facts then it would certainly be open to the appellate court 223 to interfere with the trial court 's exercise of discretion.
This principle is well established; but, as has been observed by Viscount Simon, L. C., in Charles Osenton & Co. vs Johnston(1): "The law as to the reversal by a court of appeal of an order made by a Judge below in the exercise of his discretion is well established, and any difficulty that arises is due only to the application of well settled principles in an individual case".
For these reasons we hold that the appellant has made out no case for our interference with the order of the High Court refusing stay of the proceedings in the suit under section 34 of the Indian .
The appeal accordingly fails and is dismissed with costs.
Appeal dismissed.

summary/full:
The appellant society carried on business as public carriers on the Kanpur Delhi route.
By an agreement in 1954 they appointed the respondents as their Managing Agents for a period of 3 years.
But much before the expiry of that period they terminated the agreement.
Disputes arising between the parties were under the agreement, to be decided by arbitration as provided in the Co operative Societies Act II of 1912.
According to the relevant provisions of the said Act disputes were to be decided by the Registrar of Co operative Societies or by an arbitrator or arbitrators appointed by him.
The respondents however filed a suit against the Society asking for a declaration that the termination of the agreement by the society was illegal and for a mandatory injunction restraining the society from terminating the agreement.
The Society thereupon filed an application under section 34 of the Indian Arbitration Act praying for a stay of the aforesaid suit on the ground that the respondents had agreed to arbitration as provided in the Co operative Societies Act.
The trial Court stayed the suit but the appellate Court set aside the trial Court 's order and dismissed the application under section 34.
The High Court upheld the appellate Court 's order whereupon, by special leave, the society appealed to this Court.
HELD:(i) The High Court rightly refused to stay the suit.
It rightly observed that it would be a difficult task for the arbitrator to investigate as to which of the rules made under the Co operative Societies Act are consistent with and which of those rules are not consistent with the provisions of the Indian Arbitration Act.
The suit, moreover, was filed as far back as 1954 and its stay would not be in the interests of its speedy disposal.
[219 G 220 B] (ii)It is, of course, the normal duty of the court to hold the parties to the contract and to make them present their disputes to the forum of their choice, but the strict principle of sanctity of contract is subject to the discretion of the Court under section 34 of the Indian Arbitration Act.
A party may be released from the bargain if he can show that the selected arbitrator is likely to show bias or there is sufficient reason to suspect that he will act unfairly or that he has been guilty of unreasonable conduct.
[222 D] In the present case the respondent had alleged that the Registrar Co operative Societies had approved the termination of the contract of Managing Agency with the plaintiff and the Registrar was the Chairman of the Defendant Society.
In the circumstances the High Court Trust be held to have Properly exercised its discretion under section 34 of the Indian Arbitration Act in not granting a stay of the proceedings in the suit.
[222 E].
216 Bristol Corporation vs John Aird & Co. , referred to.
(iii)If it appears to the, appellate Court that in exercising its discretion the trial court has acted unreasonably or capriciously or has ignored relevant facts then it would certainly be open to the Appellate Court to interfere with the trial court 's exercise of discretion, [222 H] Charlies Osenton & Co. vs Johnston, , referred to.


judgement:
Appeal No. 386 of 1964.
Appeal by special leave from the judgment and order dated January 10, 1962 of the Gujarat High Court in Civil Revision Application No. 158 of 1960.
section V. Gupte, Solicitor General, section H. Sheth and M. V. Goswami, for the appellants.
G. L. Sanghi and A. G. Ratnaparkhi, for respondent No. 1.
The Judgment of the Court was delivered by Subba Rao, J.
This appeal by special, leave is directed against the order of the Gujarat High Court in Civil Revision Application No. 158 of 1960 confirming that of the District Judge, Kaira, holding that the 1st respondent herein was a debtor and directing the Civil Judge, Kapadvanj, to adjust the debt under the provisions of the Bombay Agricultural Debtors Relief Act.
The relevant facts may be briefly stated.
The father of the first respondent owned three pieces of land bearing Survey Nos. 93, 102/3 and 125/1 in village Chikhlod, Taluka Kapadwanj, District Kaira in the State of Gujarat.
On June 9, 1933, he sold the same by an oral vardi to respondent No. 2 for a sum of Rs. 2,701 / but continued to be in possession thereof.
On April 7, 1934, the 2nd respondent sold the said lands to the 1st appellant by an oral vardi for Rs. 2,521 / and the 1st appellant got possession thereof on the said date.
In a partition that was effected in the joint family of the 1st appellant, survey No. 93 went to the share of the 2nd appellant and the remaining two lands fell to the share of the 1st appellant.
The appellants have been in possession of the said lands from April 7, 1934.
On August 3, 1945, the 1st respondent filed an application before the Debt Adjustment Board under section 17, read with section 18 and section 45 of the Bombay Agricultural Debtors Relief Act, 1939.
To that application only the 2nd respondent was made a party.
His case was that his father had money dealings with the 2nd respondent and in consideration of past debts his father had sold the said lands to the 2nd respondent in 1933 by way of an oral sale with a condition of reconveyance of the said lands to the vendor and, therefore, the said debt was liable to be adjusted under the provisions of the said Act.
The 2nd respondent denied that he had any money dealings with the father of the 1st respondent and stated that the lands were not in his possession.
On December 4, 1945, the respondent made an application before the Debt Adjustment Board for adding the appellants as respondents to the petition.
It appears from the record that only the 1st appellant was made a party respondent to 148 that application.
On April 29, 1947, the said Board held that the sales in favour of the 2nd respondent and the appellants were invalid and directed the 2nd respondent to render the accounts.
Against that order, the 2nd respondent preferred an appeal to the District Judge at Nadiad.
On May 27, 1947, Bombay Agricultural Debtors Relief Act 28 of 1947, hereinafter called the new Act, came into force and under section 56(2) thereof the Bombay Agricultural Debtors Relief Act, 1939, hereinafter called the repealed Act was repealed.
On April 14, 1949 the learned District Judge, Kaira, set aside the order of the Board and remanded the case to the court of the Civil Judge (Junior Division) at Kapadwanj with a direction to decide afresh the question of the nature of the said transaction in accordance with law.
It was remanded to the said Civil Judge as under the new Act the Debt Adjustment Board was dissolved and its jurisdiction was vested on the Civil Judge.
On April 24, 1950, the 1st respondent made an application before the Civil Judge for adding the 2nd appellant as a party respondent and that petition was allowed on August 21, 1950.
On September 29, 1953, the Civil Judge dismissed the petition as not maintainable; but on appeal the District Judge, Kaira, allowed the appeal and remanded the matter to the Civil Judge for disposal according to law.
The appellants and the 2nd respondent preferred a revision to the High Court, but that was summarily rejected.
After the remand, the Civil Judge held that the transaction was not a mortgage and the appellants had acquired title to the lands by adverse possession.
Against that order the 1st respondent preferred an appeal to the District Judge, who, by his order dated October 16, 1958, held that the mortgage subsisted and that the appellants had not acquired title to the said lands by adverse possession.
In hat view, he remanded the case to the Civil Judge for adjustment of the debts.
On revision the High Court of Gujarat accepted the finding of the learned District Judge and dismissed the revision.
Hence the present appeal.
The learned Solicitor General, appearing for the appellants, raised before us the following four points: (1) Under the repealed Act the Board would have jurisdiction to entertain an application for adjustment of debts, if 'it was filed within 18 months from the date of the appointment of the Board under section 4 of the said Act, i.c., on or before October 31, 1945, and, as no such application was filed either against the 1st appellant or against the 2nd appellant before that date, the order of the Board adding the 1st appellant on December 4, 1945, and the order of the Civil Judge adding the 2nd appellant on August 21, 1950 were without jurisdiction and, therefore, void; as the said orders were without jurisdiction, the appellants had acquired a vested interest in the property and the new Act does not affect the said right.
(2) The appellant had acquired a right to the said lands by adverse possession.
(3) The application to the 149 Board to investigate the nature of the transaction was not competent.
And (4) The benefit under section 55(6)(b) of the Transfer of Property Act is available only to a buyer under a valid transaction and not to a buyer under a transaction which is void at the very inception.
At the outset it may be mentioned that the 4th point was sought to be raised before the High Court for the first time and the High Court refused to go into that matter.
We cannot, therefore, allow the appellants to raise that point before us.
The third point was also not raised before the High Court and we do not see any justification for allowing the appellants to press the same before us.
We shall, therefore, confine our judgment to the first two points raised.
To appreciate the rival contentions of the parties it will be convenient to read at this stage the relevant provisions of both the repealed and new Acts.
The Bombay Agricultural Debtors Relief Act, 1939.
Section 17.
(1) Within eighteen months from the date on which a Board is established under section 4, any debtor may make an application to the Board for the adjustment of his debts under this Act as hereinafter provided: .
(3) An application under this section shall be made to the Board established for any local area if the debtor or any of the debtors who is a party to the application ordinarily resides in such area, or to the Board estab lished for the class of debtors, if the debtor or any of the debtors who is a party to the application belongs to the said class.
Section 7.
(1) Subject to the provisions of this Act and any rules, the Board shall have the same powers as are vested in civil courts under the Code of Civil Procedure, 1908, when trying a suit and in particular in respect of the following matters: (a) joining any necessary or proper parties.
The Bombay Agricultral Debtors Relief Act, 1947.
Section 4.
(1) Any debtor ordinarily residing in any local area for which a Board was established under section 4 of the repealed Act on or after the 1st February 1947, or his creditor may make an application before the 1st August 1947 to the Court for the adjustment of his debts.
150 Section 46.
Save as otherwise expressly provided in this Act, the provisions of the Code of Civil Procedure, 1908, shall apply to all proceedings under this Chapter.
*Provided that the Court may in a proper case and on such terms as may appear to it to be just, exercise its powers to add or strike out parties under rule 10 of Order 1 of the said Code in any proceeding pending before it under section 4 or 24, notwithstanding the fact that such addition, or striking out of parties is to be made after the date specified in section 4 or 24, as the case may be, has elapsed.
(*This proviso was added by Bombay Act 37 of 1950, section 9).
Section 56.
(2) The Bombay Agricultural Debtors Relief Act, 1939, is repealed.
All Boards established under section 4 of the repealed Act shall be dissolved: Provided that (a)all proceedings pending before any such Board at the date when this Act comes into force shall be continued and disposed of by the Court under this Act as if an application under section 4 had been made to the Court in respect therefor; (b) all awards made, confirmed or modified under the repealed Act shall be deemed to have been made, confirmed or modified under this Act as if this Act was in force at the date when the said awards were made, confirmed or modified, as the case may be; . .
(c) all appeals pending before any Court under the repealed Act against the decision, order or award of such Board shall be continued and disposed of as if the said appeals were filed under the provisions of this Act; and (d)all appeals which could have been filed under the repealed Act against any decision, order or award of such Board but which could not be filed only by reason of the fact that the said 'Act was repealed by this Act shall when filed before a competent court be deemed to have been filed under the provisions of this Act and shall be disposed of accordingly.
The impact of the provisions of the new Act on those of the repealed Act in the context of the present enquiry may be stated thus: Under the repealed Act an application could be filed before the appropriate Board for the adjustment of a debt within the time prescribed under section 17 thereof.
Under section 7 thereof the 151 Board had the power to join any necessary or proper parties.
The said power was coterminus with that of a civil court under the Code of Civil Procedure.
Order 1, r. 10, of the Code of Civil Procedure enables the court in a suitable case to strike out or add parties; and under sub section
(5) thereof, subject to the provisions of section 22 of the Indian Limitation Act, 1877, the proceedings as against any person added as defendant shall be deemed to have begun only on the service of the summons.
Under the repealed Act therefore, if a party was added, the proceedings as against him should be deemed to have been taken only on the service of summons.
If a party was added subsequent to the period prescribed under section 17 of the repealed Act, it could be objected that the proceedings against the party so added was beyond the period prescribed under section 17.
But nonetheless if he was added as a necessary party to a petition filed in time, though the said order might be improper, it could not be said that the court acted without jurisdiction.
If it was an illegal order, it could be set aside by an appropriate order in appeal.
Under section 56(2) of the new Act the 1939 Act was repealed and all the Boards established under the repealed Act were dissolved.
The three provisos to sub section
(2) of section 56 of the new Act prescribed for the continuity of the proceedings initiated under the repealed Act.
Under the first proviso, all proceedings pending before any such Board shall be continued before the court as if an application under section 4 of the said Act had been made to the court.
This proviso introduces a fiction; and under that fiction, if an application filed before the Board under section 17 of the repealed Act was pending at the time the new Act came into force, it shall be continued as if it were an application filed under section 4 of the new Act.
Under the third proviso, which deals with pending appeals, appeals pending before any court under the repealed Act shall be continued and disposed of as if they were appeals under the new Act.
This proviso also introduces a fiction, namely, the appeal should be deemed to be an appeal under the new Act.
The expression "under the Act" means under the provisions of the Act.
This expression emphasizes the fact that pending appeals shall be deemed to be appeals under the (new) Act and, therefore, shall be disposed of by applying the provisions thereof.
The fourth proviso deals with appeals to be filed against the orders under the 'repealed Act; under the said, proviso those appeals when presented after the new Act came into force shall be deemed to be appeals from the decision or orders or awards of courts under the new Act and shall be disposed of accordingly.
In short, the old Act was repealed and the proceedings, original or appellate, are all deemed to be proceedings under the new Act and they should be disposed of in accordance with the substantive and procedural sections of the new Act.
If that be the interpretation of section 56 (2) of the new, Act, to such a proceeding section 46 is immediately attracted.
Under L/S5SCI 12 152 section 46 of the new Act, the court is empowered in a suitable case to add parties under Order 1, rule 10, of the Code of Civil Procedure, notwithstanding the fact that the addition of parties is made after the dates specified in section 4 or 24, as the case may be, have expired.
By reason of the aforesaid fiction, a proceeding taken under the repealed Act is deemed to be a proceeding under the new Act and, therefore, a party may be added after the prescribed period.
To summarize: After the new Act was passed there are two types of proceedings, namely, (i) proceedings initiated under the repealed Act but pending at the time the new Act came into force; and (ii) proceedings taken under the new Act.
Both the proceedings will have to be disposed of under the provisions of the new Act, that is to say, both the substantive and the procedural sections of the new Act would equally apply to both classes of proceedings.
Some of the decisions cited at the Bar have a direct bearing on the question raised before us.
A division Bench of the Bombay High Court in Vishwanath Mahadev Adhikari vs Krishnaji Ramchandra Bodas(1) construed the scope of the three provisos to section 56(2) of the new Act.
It was contended before the said Bench that proviso 2 had no retrospective effect and the appeals which were pending should be disposed of according to the repealed Act and not according to the new Act.
Chagla, C. J., adverting to that argument.
speaking for the Court, observed thus: "Further, in our opinion, the language used in proviso 2 is fairly clear and explicit and makes this proviso retrospective in its effect.
What the Legislature says is that the appeals shall be continued and disposed of as if they were appeals under this Act, which clearly means that all the provisions of this Act shall apply to the appeals which are pending.
The appeal Court is asked to treat the appeals as if the new Act was in force and not the old Act, and in disposing of those appeals the appeal Court has to consider the substantive law as well as the procedural law brought into force by Act XXVIII (28) of 1947.
" Another division Bench of that Court in Hiraman Ratan vs Purshottam Deorao(2) expressed the same view.
Therein it held that the language of the provisos to section 56(2) of the new Act clearly gave retrospective effect to all the provisions of the new Act including the substantive provisions and not merely to the procedural provisions thereof.
In Basavanappa Shivappa V. Neelappa Adiveppa(3), Gajendragadkar, J., construed section 46 of the new Act and held that parties could be added in a proper case without considerations of delay.
(1) A.T.R. , 391.
(2) A.I.R. 1953 Bom.
(3) A.I.R. 1956 Bom.
153 The views expressed in these decisions accord with those expressed by us earlier.
With this legal position in mind, let us look at the facts of the present case.
The application was filed by the 1st respondent against the 2nd respondent under section 17 of the repealed Act before the prescribed time, i.e., October 31, 1945.
The 1st appellant was added by the Board itself on December 4, 1945; and the 2nd appellant was added by the Civil Judge on August 21, 1950.
As the appeal against the order of the Board was pending at the time the new Act came into force, under proviso (c) to section 56(2) of the new Act that appeal had to be disposed of under the provisions of the new Act and after remand the application had likewise to be disposed of under the provisions of the new Act.
At that time the civil Court had ample jurisdiction to add the appellants as parties irrespective of the time limit prescribed under the repealed Act.
If so, it cannot be said that the Civil Judge acted without jurisdiction in disposing of the petition as if it was filed under the new Act.
There are, therefore, no merits in the first contention.
There are no merits in the second contention either.
Some relevant facts may be recapitulated.
The father of the 1st respondent sold the lands to the 2nd respondent on June 9, 1933.
The 2nd respondent sold the same to the 1st appellant on April 7, 1934, and he was put in possession on the same day.
From June 9, 1933 to April 7, 1934 the father of the 1st respondent was in possession.
The application for adjustment of the debt was made on August 3, 1945.
From April 7, 1934 to August 3, 1945 the appellants were in possession of the disputed lands and the said period of occupation of the lands by the appellants was less than 12 years.
But it was contended that the 1st respondent was in possession of the lands as a tenant of the 1st appellant between June 9, 1933 to April 7, 1934 and, therefore, the said period should be tacked on to the period of adverse possession by the appellants.
But the High Court found, agreeing with the District Judge, that the appellants failed to prove that the 1st respondent was in possession of the lands as a tenant during that period.
If so, it follows that the appellants had not acquired any title to the suit property by adverse possession.
In the result, the appeal is dismissed with costs.
Appeal dismissed.

dataset_name: IN-Abs

summary/full:
The father of the first respondent sold his lands to the second respondent but continued to be in possession.
The second respondent sold them to the appellants who were put in possession in 1934.
In August 1945, the first respondent filed a petition against the second respondent, before the Debt Adjustment Board, under Ss. 17, 18 and 45 of the Bombay Agricultural Debtors Relief Act, 1939, within the time prescribed by section 17, alleging that the transaction with the second respondent was a mortgage and that the debt was liable to be adjusted under the Act.
The first appellant was impleaded as a party to the petition in December 1945, beyond the time specified in section 17.
No appeal was filed against that order, and in 1947, the Board disposed of the petition for adjustment of debt by directing the second respondent to render accounts.
He appealed and, pending the appeal, the 1939 Art was repealed by the Bombay Agricultural Debtors Relief Act of 1947.
In 1949, the appellate Court set aside the Board 's order and remanded the case to the Civil Judge, for deciding the nature of the transaction, because, under the 1947 Act, the Board was dissolved and its jurisdiction was vested in the Civil Judge.
In 1950, the first respondent 's application to the Civil Judge for impleading the second respondent also as a party to the petition for adjustment of the debt, was allowed, and thereafter, the matter was disposed of on merits.
On the questions: (i) Whether the orders impleading the appellants were without jurisdiction.
and (ii) whether the appellants had acquired title to the lands by adverse possession, HELD: (i) The orders were not without jurisdiction.
Under the repealed Act, if a party was added beyond the period prescribed under section 17 of the Act, if he was added as a necessary party to a petition filed in time, the said order might be improper but not without jurisdiction.
[151 C D] Under section 56 of the 1947 Act, original and appellate proceedings initiated under the repealed Act but pending at the time the 1947 Act came into force will have to be disposed of in accordance with the substantive and procedural sections of the 1947 Act.
Under section 46 of the 1947 Act, the court is empowered.
in a suitable case, to add Parties under 0.1, r. 10, Civil Procedure Code, and they may be added irrespective of the time limit prescribed under the repealed Act, or the time specified in Ss. 4 and 24 of the 1947 Act.
[152 A C] Case law referred to.
(ii) The appellants had not acquired any title by adverse Possession, as the petition for adjustment of debt was filed within 12 years from the date of their occupation of the suit lands.


judgement:
minal Appeals Nos. 102 & 103 of 1965.
Appeals by special leave from the judgments and orders dated October 12, 1964 of the Kerala High Court in Criminal Appeal No. 80 of 1964, and Criminal Appeal No. 70 and Referred Trial No. 13 of 1964 respectively.
Jai Gopal Sethi, C. L. Sareen and R. L. Kohli, for the appellant (in Cr. A. No. 102/65).
Harbans Singh, for the appellant (in Cr. A. No. 103/65).
A. section R. Chari, V. Narayana Menon and M. R. K. Pillai, for the respondent (in both the appeals).
The Judgment of the Court was delivered by Hidayatullah, J.
This judgment will also govern the disposal of Criminal Appeal No. 102 of 1965 (Rajwant Singh vs The State of Kerala).
The appellants in these two appeals have been convicted under sections 302/34, 364, 392, 394 and 447 of the Indian Penal Code.
Unni (appellant in this appeal) has been sentenced to death and Rajwant Singh (appellant in the other appeal) has been sentenced to imprisonment for life.
No separate sentences under the other sections have been imposed on Unni but Rajwant Singh has been sentenced to four years ' rigorous imprisonment under sections 392 and 394, Indian Penal Code, with a direction that the sentences shall run concurrently with the sentence of imprisonment for life.
The High Court of Kerala has dismissed their appeals and confirmed the sentence of death on Unni.
They now appeal by special leave of this Court.
These appellants were tried with three others, of whom two were acquitted.
One Taylor was also convicted of the same offences and was sentenced in the aggregate to imprisonment for life.
He has not appealed to this Court.
We are not concerned with them.
The case relates to the death of one Lt. Commander Menianha of the Naval Base, I.N.S. Vendurthy, Willingdon Island, Cochin Harbour, on the night of March 30, 1963.
Unni was attached as a rating to this Naval Base and at the time of the offence was on leave,.
Taylor, who has not appealed was an ex sailor and Rajwant Singh was attached to I.N.S. Vikrant.
The case of the prosecution was that these persons conspired together to burgle the safe of the Base Supply Office on the eve of the pay day, when a large sum of money was usually kept there for distribution on the pay day.
They collected various articles such as a Naval Officer 's dress, a bottle of chloroform, a hacksaw with spare blades, adhesive plaster, cotton wool and ropes.
On the night in question they decoyed the Lt. Commander from his house on the pretext that he was wanted at the Naval Base, and in a lonely place caught hold of him.
They covered his mouth 233 with the adhesive plaster and tied a handkerchief over the plaster and plugged his nostrils with cotton wool soaked in chloroform.
They tied his hands and legs with rope and deposited him in a shallow drain with his own shirt put under his head as a pillow.
They then went up to the sentry, who was induced to part with his rifle to one of the accused who had dressed himself as an officer, and attacked him.
The sentry would have received the same treatment as his Lt. Commander but he raised a hue and cry and attracted the attention of the watchman.
Fearing detection the assailants released the sentry and took to their heels.
The sentry after escaping informed the Officer on duty at the Base and stated that he had recognised Rajwant Singh as one of his assailants.
Next morning the dead body of the Lt. Commander was discovered in the drain where he had been left by the assailants.
Investigation followed and five persons were placed on trial before the Session Judge, Ernakulam Division, who convicted three and sentenced them as stated above and acquitted the other two.
The appeals of these persons before the High Court failed.
In these appeals the complicity of the appellants in the offence is not challenged but it is argued that the evidence for the prosecution does not establish the offence of murder but of causing grievous hurt or of culpable homicide not amounting to murder.
It is also contended that section 34 of the Indian Penal Code could not be used against any of the accused.
Unni has also contended that the sentence of death was not proper as the case against him was indistinguishable from that of the other two.
We shall deal.
with these arguments.
Our attention has been drawn to the inquest and postmortem reports to establish what was actually done to the Lt. Commander.
From these, it is established that the legs of the victim were tied with rope and his arms were tied behind his back.
A large adhesive plaster was stuck over his mouth and completely sealed it.
A handkerchief was next tied firmly over the adhesive plaster to secure it in position.
The nostrils were plugged with cotton soaked in chloroform.
Counsel for the appellants submit that all this shows that the assailants did not intend to kill the Lt. Commander but to render him unconscious.
It is admitted that the closing of the mouth with the adhesive plaster and the handkerchief was complete and that it must have been impossible for the Lt. Commander to breathe through his mouth.
The description, however, shows that the nostrils were also plugged with cotton wool soaked in chloroform.
This was clearly stated in the inquest report and also in the postmortem report and was established not only by the witnesses proving the inquest report but also by the doctor who performed the autopsy.
In addition the prosecution has exhibited and proved numerous photographs of the dead body from various angles and these things are clearly seen in the L/S5SCI 17 (a) 234 photographs.
According to the doctor death was due to asphyxiation.
In addition to the other evidence establishing the connection of Unni and Rajwant Singh with this crime there is a confession by Rajwant Singh before the Sub Magistrate, Cochin in which he graphically describes the part played by him and Unni.
Rajwant Singh also stated that they only wanted the Lt. Commander and the sentry to remain unconscious while they rifted the safe and took away the money.
It is contended that we must accept the confession as a whole and must hold on its basis that the intention was not to kill, and that the offence of murder is therefore not established.
As this is the most important point in the case we shall consider it first.
This point was argued by Mr. J. G. Sethi on behalf of Rajwant Singh and his arguments were adopted by Mr. Harbans Singh on behalf of Unni.
Mr. Sethi argued that the offence was one of causing grievous hurt or at the worst of culpable homicide not amounting to murder and punishable under section 304 (second part) of the Indian Penal Code.
It is quite plain that the acts of the appellants resulted in the death of the victim and the offence cannot be placed lower than culpable homicide because the appellants must have known that what they were doing was likely to kW. The short question, therefore, is whether the offence was murder or culpable homicide.
Mr. Sethi submits that of the three clauses of section 299.
which define the offence of culpable homicide, the first deals with intentional killing and the second with injuries which are intentionally caused and are likely to cause death.
He submits that these two clauses form the basis of the offence of murder and culpable homicide punishable under he first part of section 304 and the third clause, which involves the causing of death with the knowledge that by his act the offender is likely to cause death, is the foundation of offence of culpable homicide not amounting to murder punish able under the second part of section 304.
He submits that the appellants did not intend causing the death of the Lt. Commander but took action to keep him immobilised and silent while they rifled the safe.
To achieve their purpose they tied the victim and closed his mouth and plugged the nostrils with cotton soaked in chloroform.
Each of these acts denoted a desire to keep the Lt. Commander out of the way for the time being but not to kill him.
Nor can the acts be described as done with the intention of causing such bodily injury as was likely to kill.
At the most, says he, it can be said that the death was caused with the knowledge on the part of the appellants that by their acts they were likely to cause death and that brings the matter within section 304 II, I.P.C. 235 The argument requires close examination.
Two offences in volve the killing of a person.
They are the offence of culpable homicide and the more henious offence of murder.
What distinguishes these two offences is the presence of a special mens rea which consists of four mental attitudes in the presence of any of which the lesser offence becomes greater.
These four mental attitudes are stated in section 300, I.P.C. as distinguishing murder from culpable homicide Unless the offence can be said to involve at least one such mental attitude it cannot be murder.
We shall consider the acts of the appellants in relation to each of the clauses of section 300.
The first clause says that culpable homicide is murder if the act by which death is caused is done with the intention of causing death.
An intention to kill a person brings the matter so clearly within the general principle of mens rea as to cause no difficulty.
Once the intention to kill is proved, the offence is murder unless one of the exceptions applies in which case the offence is reduced to culpable homicide not amounting to murder.
As there is no question of any of the exceptions they need not be mentioned.
But it is plain that the appellants did not contemplate killing the Lt. Commander.
No part of their preparations shows an intention to kill.
Had they so desired, they had ample time and opportunity to effectuate that purpose without going to the trouble of using cotton soaked in chloroform to stuff the nostrils.
They had only to hold his nose closed for a few minutes.
The confession to which we have referred also shows that the news of the death of the Lt. Commander came to them with as much surprise as shock.
In these circumstances, the first clause of section 300 cannot apply.
The second clause deals with acts done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom harm is caused.
The mental attitude here is two fold.
There is first the intention to cause bodily harm and next there is the subjective knowledge that death will be the likely consequence of the intended injury.
English Common Law made no clear distinction between intention and recklessness but in our law the foresight of the death must be present.
The mental attitude is thus made of two elements (a) causing an intentional injury and (b) which injury the offender has the foresight to know would cause death.
Here the injury or harm was intended.
The appellants intended tying up the victim, closing his mouth by sticking adhesive plaster and plugging his nose with cotton wool soaked in chloroform.
They intended that the Lt. Commander should be rendered unconscious for some time but they did not intend to do more harm than this.
Can it be said that they had the subjective knowledge of the fatal consequences of the bodily harm they were causing? We think that on the facts the answer cannot be in the affirmative.
To say that the act satisfied the test of subjective knowledge would be really 236 tantamount to saying that the appellants intended to commit the murder of the Lt. Commander which, as said already, was not the case.
The third clause discards the test of subjective knowledge.
It deals with acts done with the intention of causing bodily injury to a person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death.
In this clause the result of the intentionally caused injury must be viewed objectively.
If the injury that the offender intends causing and does cause is sufficient to cause death in the ordinary way of nature the offence is murder whether the offender intended causing death or not and whether the offender had a subjective knowledge of the consequences or not.
As was laid down in Virsa Singh vs The State of Punjab(1) for the application of this clause it must be first established that an injury is caused, next it must be established objectively what the nature of that injury in the ordinary course of nature is.
If the injury is found to be sufficient to cause death one test is satisfied.
Then it must be proved that there was an intention to inflict that very injury and not some other injury and that it was not accidental or unintentional.
If this is also held against the offender the offence of murder is established.
Applying these tests to the acts of the appellants we have to see first what bodily injury has been established.
The bodily injury consisted of tying up the hands and feet of the victim, closing the mouth with adhesive plaster and plugging the nostrils with cotton soaked in chloroform.
All these acts were deliberate acts which had been preplanned and they, therefore, satisfy the subjective test involved in the clause.
The next question is whether these acts considered objectively were sufficient in the ordinary course of nature to cause death.
In our judgment they were.
The victim could only possibly breathe through the nostrils but they were also closed with cotton wool and in addition an asphyxiating agent was infused in the cotton.
All in all it would have been a miracle if the victim had escaped.
Death of the victim took place as a direct result of the acts of his assailants.
Mr. Sethi suggested that the victim must have struggled to free himself and had rolled into the drain and this must have pushed up the cotton further into the nostrils.
This is not correct.
The victim was placed in the drain by his assailants because his folded shirt was placed under his head and had obviously fainted by that time.
No one seems to have been aware of his presence; otherwise discovery would have taken place earlier.
This leads to the only conclusion that there was no change in the circumstances in which the victim was left by the assailants.
The bodily injury proved fatal in the ordinary course of nature.
The ordinary course (1)[1968] S.C.R. 1495.
237 of nature was neither interrupted nor interfered with by any intervening act of another and whatever happened was the result of the acts of the assailants, and their acts alone.
Mr. Sethi argues that the sufficiency of the injury to cause death in the ordinary course of nature is something which must be proved and cannot be inferred from the fact that death has in fact taken place.
This is true of some cases.
If a blow is given by reason of which death ensues, it may be necessary to prove whether it was necessarily fatal or in the language of the Code sufficient in the ordinary course of nature to cause death.
In such a case it may not be open to argue backwards from the death to the blow, to hold that the sufficiency is established because death did result.
As death can take place from other causes the sufficiency is required to be proved by other and separate evidence.
There are, however, cases and cases.
Where the victim is either helpless or rendered helpless and the offender does some act which leads to death in the ordinary course and death takes place from the act of the offender and nothing else, it is hardly necessary to prove more than the acts themselves and the causal connection between the acts and the end result.
Mr. Sethi contends that the concentration of chloroform, the quantity actually used and its effect on the victim ought to have been proved.
Alternatively he argues that the quantity of the cotton wool used to plug the nostrils and the manner of plugging should have been established before a finding can be given that the bodily injury was sufficient in the ordinary course of nature to cause death.
This would, of course, have been necessary if it could at all be thought that not the acts of the assailants but some other intervening circumstance might have led to the death of the victim.
But there was none.
There was no interference by anyone else.
Death was due to asphyxiation whether caused by the mechanical obstruction of the nostrils or by chloroform as an asphyxiating agent, or both.
Whichever way one looks at it, the injury which caused the death was the one inflicted by the assailants.
The sufficiency of the injury was objectively established by the nature and quality of the acts taken with the consequence which was intimately related to the acts.
There was no need to establish more than this in the case.
As was pointed out in Anda vs State of Rajasthan(1) "the emphasis in clause thirdly is on the sufficiency of the injury in the ordinary course of nature to cause death.
The sufficiency is the high probability of death in the ordinary way of nature and when this exists and death ensues, and if the causing of the injury is intended, the offence is murder".
In this case the acts of the appellants were covered by the third clause in section 300.
As we are satisfied that this case falls within clause thirdly we need hardly consider whether it falls also within the fourth clause or not.
That clause comprehends, generally, the commission of (1) A.I. R. at 151.
238 imminently dangerous acts which must in all probability cause death.
To tie a man so that he cannot help himself, to close his mouth completely and plug his nostrils with cotton wool soaked in chloroform is an act imminently dangerous to life, and it may well be said to satisfy the requirements of the last clause also, although that clause is ordinarily applicable to cases in which there is no intention to kill any one in particular.
We need not, however, discuss the point in this case.
We accordingly hold that the offence was murder.
All the acts were done after deliberation by the appellants.
They were of a type which required more than one person to perpetrate.
What was done had already been discussed and the execution of the plan was carried out as contemplated.
That there was a common intention admits of no doubt and as clause 3 of section 300 views the consequence of the act objectively all those who shared the common intention of causing the bodily injury which was sufficient to cause death in the ordinary course of nature must be held responsible for the resulting offence.
Even if the consequence was different from what was actually intended, those who abetted (and the appellants were either offenders principally or abetters) would be equally responsible under section 113 of the Indian Penal Code provided they knew that the act which they were abetting was likely to cause that effect.
On the argument of the appellants that section 304 11 applies, it is obvious that the above provision must be attracted.
In our judgment the appellants were rightly adjudged guilty under section 302/34, Indian Penal Code.
As regards the sentence of death passed on Unni, we see no reason to interfere.
He was the master mind behind the whole affair and the sentence of death was, therefore, appropriate.
We see no force in either appeal.
They will be dismissed.
Appeals dismissed.

summary/full:
The appellants were convicted of murder under section 302 read with section 34 I.P.C. on the allegation that they had laid their victim in a drain after closing his mouth with adhesive tape and plugging his nose with cotton wool soaked in chloroform, as a result of which death was caused.
They appealed to this Court by special leave.
It was contended on their behalf: (i) that their offence did not amount to murder but only to culpable homicide under the second part of section 304, (ii) that it could not be inferred from the mere fact of death that the injury caused by the appellants was sufficient in the ordinary course of nature to cause death; this had to be proved by further evidence and (iii) that the ingredients of section 34 I.P.C. were not satisfied.
HELD : (i) What distinguishes the offences of murder and culpable homicide is the presence of a special, mens rea which consists of four mental attitudes in the presence of any of which the lesser offence becomes the greater.
These four mental attitudes are stated in the four clauses of section 300 I.P.C. [235 B] (ii)The first clause of section 300 says that culpable homicide is murder if the act by which death is caused is done with the intention of causing death.
An intention to kill a person brings the matter so clearly within the general principle of mens rea as to cause no difficulty.
Once the intention to kill is proved, the offence is murder unless one of the exceptions applies, in which case the offence is reduced to culpable hominid not amounting to murder.
On the facts of the present case an intention to cause death was not proved against the appellants and the clause therefore did not apply.
[235 C] (iii)The second clause of the section deals with acts done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom harm is caused.
The mental attitude here is two fold.
There is first the intention to cause bodily harm and next there is the subjective knowledge that death will be the likely consequence.
English Common Law made no clear distinction between intention and recklessness but in our law the foresight of the death must be Present.
The mental attitude is thus made of two elements (a) causing an intentional injury and (b) which injury the offender has the foresight to know would cause death.
The Present case could not fall under this clause either.
because, it could not be said that the appellants who only wanted to make their victim unconscious had the Subjective knowledge of the fatal consequences of the boil harm they were causing.
(iv) The appellants were however guilty of murder under the third clause of section 300.
[237 G H) The third clause discards the test of subjective knowledge.
It deals with acts done with the intention of causing bodily injury to a person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death.
In this clause the result of the intentionally caused injury must be viewed objectively.
If the injury that the offender intends causing and does cause is sufficient to cause death in the ordinary way of nature the offence is murder whether the offender intended causing death or not and whether the offender had a subjective knowledge of the consequences or not.
[236 B] For the application of this clause it must be first established that an injury is caused, next it must be established objectively what the nature of that injury in the ordinary course of nature is.
If the injury is found to be sufficient to cause death one test is satisfied.
Then it must be proved that there was an intention to inflict that very injury and not some other injury and that it was not accidental or unintentional.
[236 C D] Virsa Singh vs State of Punjab ; , referred to.
The bodily injury caused by the appellants was deliberate and preplanned and the subjective test involved in the clause was therefore satisfied.
The other test namely whether the injury was sufficient in the ordinary course of nature to cause death was also satisfied in the case as in the circumstances it would have been a miracle if the victim had escaped.
Death of the victim took place as a direct result of the acts of his assailants.
[236 E F] (v)The fourth clause of section 300 comprehends generally, the commission of imminently dangerous acts which must in all probability cause death.
What the appellants did may well be said to satisfy the requirements of this clause also, although it is ordinarily applicable to cases in which there is no intention to kill anybody in particular.
(Obiter).
[238 A] (vi)The sufficiency of an injury to cause death in the ordinary course of nature in the terms of el. 3 need not in every case be required to be proved by separate evidence in that regard.
Where the victim is either helpless or rendered helpless and the offender does some act which leads to death in the ordinary course and death takes place from the act of the offender and nothing else it is hardly necessary to prove more than the acts themselves and the causal connection between the acts and the end result.
The sufficiency of the injury in the present case was objectively established by the nature and quality of the acts taken with the consequence which was intimately related to the acts.
There was no need to establish more than this in the case.
[237 B G] Anda vs 9tate of Rajasthan, A.I.R. 1965 S.C. 148 referred to.
(vii)All the acts were done after deliberation by the appellants.
They were of a type which required more than one person to perpetrate.
That there was a common intention admits of no doubt and as clause 3 of section 300 views the consequence of the act objectively all those who shared the common intention of causing the bodily injury which was sufficient to cause death in the ordinary course of nature must be held responsible for the resulting offence.
[238 C] 232


judgement:
Appeals Nos. 1062 and 1063 of 1966.
Appeals by special leave from the judgment and order dated February 15, 1965 of the Calcutta High Court in matters Nos. 231 ,in,] 232 of 1964.
R. M. Hazarnavis, K. D. Karkhanis, R. H. Dhebar and R. N. Sachthey, for the appellant.
A. K. Sen, T. A. Rancachandran, J. B. Dadachanji, O. C. Mathur and Ravinder Narain, for the respondent.
The judgment of the Court was delivered by Wanchoo, J.
These two appeals by special leave arise out of two applications by the appellant to the Income tax Appellate 175 Tribunal for reference to the High Court of a question of law, which was formulated as follows: "Whether on the facts and in the circumstances of the case, the Tribunal was right in holding that the reassessment proceedings under section 17(b) of the Wealth Tax Act were not validly initiated and in setting aside the same.
" The facts which led to the applications for reference are briefly these.
The respondent submitted wealth tax returns for the years 1957 58 and 1958 59.
For the year 1957 58 the respondent claimed that an amount of Rs. 51 lakhs and odd being provision for taxation and another amount of Rs. 37 lakhs and odd being provision for contingencies, being ascertained liability, should be allowed as deduction from the total wealth.
For the year 1958 59, the respondent claimed Rs. 31 lakhs and odd being provision for contingencies as ascertained liability as deduction from the total wealth.
Assessment for the year 1957 58 was completed on December 30, 1957 and the Wealth tax Officer accepted the contention of the respondent and allowed the claim for deduction.
Subsequently the Commissioner of Wealth tax by his order dated December 29, 1958 passed under section 25(2) of the Wealth Tax Act, No. XXXVII of 1957, (hereinafter referred to as the Act) disallowed the deduction of Rs. 51 lakhs and odd being the provision for taxation for the assessment year 1957 58.
The order of the Wealth tax Officer allowing deduction for contingencies for the assessment year 1957 58 however stood.
The assessment for the year 1958 59 was completed on December 9, 1958 and deduction was allowed for contingencies only.
It may be added that we are not concerned in the present appeals so far as deduction for provision for taxa tion is concerned.
On March 22, 1960, the Wealth tax Officer completed the assessment of the respondent for the year 1959 60 and disallowed the claim for deduction of the provision for contingencies.
On June 2, 1960, the Wealth tax Officer issued two notices under section 17(b) of the Act for reassessment of net wealth for the years 1957 58 and 1958 59.
On September 24, 1961 orders of reassessment under section 16(3) read with section 17(b) of the Act were passed in respect of the assessment years 1957 58 and 1958 59 and by these orders the amounts which had been formerly allowed as deduction with respect to contingencies were included in the total wealth of the respondent.
The respondent then went in appeal against the two reassessment orders and the Appellate Assistant Commissioner sustained the decision of the Wealth tax Officer with respect to the reassessments in question.
The case of the respondent was that the Wealth tax Officer had no information on the basis of which he could proceed to reassess the net wealth of the respondent and in this connection reliance was placed on the words "in consequence of any information in his possession" appearing in section 17(b) of the Act.
176 The respondent then went in appeal to the Appellate Tribunal and his contention there was that the issue of notices under section 17(b) of the Act was invalid as it was based on a mere change of opinion on the part of the Wealth tax Officer, as at that time there was no information in the possession of the Wealth tax Officer which could lead him to believe that the net wealth chargeable to tax had escaped assessment.
It was contended that such information must be information which came into possession of the Wealth tax Officer subsequent to the making of the original assessment and that the information must lead him to believe that income chargeable to tax had escaped assessment.
The Tribunal accepted this contention of the respondent.
It may be pointed out that the assessment made by the Wealth tax Officer for the year 1959 60 was taken in appeal to the Appellate Assistant Commissioner by the respondent and the respondent 's appeal was dismissed in November 1960.
The Tribunal pointed out that if the Wealth tax Officer had waited till after the decision of the Appellate Assistant Commissioner about the assessment for the year 1959 60 and then issued notices there would have been sufficient information for the purpose of section 17(b) with the Wealth tax Officer to authorise him to issue notice thereunder , but as the Wealth tax Officer issued the notices in June 1960 before that appeal was decided, it was only a case of change 'of opinion by the Wealth tax Officer which did not justify issue of notices under section 17(b).
The Tribunal also pointed out that the departmental representative was specifically asked what the information was upon which the Wealth tax Officer came to the conclusion that taxable wealth had escaped assessment.
The departmental representative was unable to point to any specific information which came into the possession of the Wealth tax Officer and which could lead him to issue the notices in question.
The Tribunal therefore held that the reassessment proceedings under section 17(b) for the years 1957 58 and 1958 59 were not validly initiated and set them aside.
Thereupon the appellant applied to the Tribunal for making references under section 27(1) of the Act.
The Tribunal rejected the applications.
The appellant then applied to the High Court under section 27(3) of the Act for direction to the Tribunal to state a case.
The High Court however rejected the applications summarily.
Thereupon the appellant applied to this Court for special leave which was granted; and that is how the matter has come before us.
The main contention that has been urged on behalf of the appellant before us is that there is divergence of opinion among the High Courts on the question as to what constitutes "information" for the purpose of section 34(1)(b) of the Indian Income tax Act.
No. IT of 1922, (hereinafter referred to as the Income tax Act).
That section is in pari materia with section 17(b) of the Act and therefore a question of law did arise which should have been referred to the 177 High Court for its decision on the question raised by the appellant.
Reliance in this connection is placed on the decision of this Court in Maharajkumar Kamal Singh vs Commissioner of Income tax Bihar(1) where this Court held that "the word 'information ' in section 34(1)(b) included information as to the true and correct state of the law, and so would cover information as to relevant judicial decisions".
A further question was raised in that case, namely, "whether it would be open to the Income tax Officer to take action under section 34(1) on the ground that he thinks that his original decision in making the order of assessment was wrong without any fresh information from an external source or whether the successor of the Income tax Officer can act under section 34 on the ground that the order of assessment passed by his predecessor was erroneous".
That question was not decided by this Court in that case, though this Court pointed out that in construing the scope and effect of section 34, the High Courts had expressed divergent views on the point.
It is urged on behalf of the appellant that the precise question left undecided by this Court in Maharajkumar Kamalsingh 's case(1) arises in the present case, and as there are divergent views taken by the High Courts on that question, a question of law did arise on the order of the Appellate Tribunal and therefore the Tribunal should have made a reference.
In Commissioner of Income tax Bombay vs Sir Mohomed Yusuf Ismail(1) it was held by the Bombay High Court as far back as 1943 that under section 34 a mere change of opinion on the same facts or on a question of law or the mere discovery of a mistake of law is not sufficient information within the meaning of section 34 and that in order to take action under section 34 there must be some information as a fact which leads the Income tax Officer to discover that income has escaped or has been under assessed.
The same view was taken in a later case by the Nagpur High Court in Income tax Appellate Tribunal Bombay vs B. P. Byramji & Co.(1) where it was again emphasised that a mere change of opinion by the Income tax Officer is no ground for taking action under section 34, Further in Bhimraj Pannalal vs Commissioner of Income tax Bihar(1) it was held by the Patna High Court that "an order of assessment made after investigation by a particular officer should Jr not at his sweet will and pleasure be allowed to be revised merely because he changed his opinion and that there must exist something either suppressed by the assessee or a fact or a point of law which was inadvertently or otherwise omitted to be considered by the Income tax Officer, before he can proceed to act under section 34; and a mere change of opinion on the same facts and law is not covered by that section." (1) [1959] supp.
1 S.C.R. 10: (2) (1944) 12 T.T.R. section (3) (4) 178 The appellant on the other hand relies on some recent deci sions which show that there is some divergence of opinion in the High Courts on this question.
In Salem Provident Fund Society Limited vs Commissioner of Income tax Madras(1) the Madras High Court held that "information for the purpose of section 34 need not be wholly extraneous to the record of the original assessment.
A mistake apparent on the face of the order of assessment would itself constitute 'information '; whether someone else gave that information to the Income tax Officer or whether he informed himself was immaterial.
" In Commissioner of Income tax vs Rathinasabhapathy Muda liar(1) the Madras High Court again held that "the discovery of the Income tax Officer after he had made the assessments that he had committed an error in not including the minor 's income in the father 's assessment was 'information ' obtained after the assessment, and even though all the facts were in the original records, the case was covered by section 34(1)(b) of the Income tax Act and the reassessment was not invalid, and this was not a case of mere change of opinion on the same facts but a case of getting information that income had escaped assessment.
" In Canara Industrial and Banking Syndicate Limited vs Com missioner of Income tax, Mysore,(1) the Mysore High Court held that "if income had escaped assessment owing to the failure of the Income tax Officer to understand the true implication of a notification, and the Income tax Officer later on finds that on a correct interpretation of the notification the income was liable to be assessed, he can take proceedings under section 34 for assessment of such income; the word 'information ' in section 34 is wide enough to apply to such a case." The last case to which reference is made is Asghar Ali Mohammad Ali vs Commissioner of Income tax(1) wherein the Allahabad High Court held that "the word 'information ' used in the provision covers all kinds of information received from any person whatsoever or in any manner whatsoever; all that is required is that the Income tax Officer should learn something i.e. he should know something which he did not know previously.
" It was further held that "if there is information leading to the belief that income has escaped assessment, the mere fact that this information has resulted in a change of opinion will not make section 34 inapplicable.
A change of opinion is not sufficient for initiating proceedings under section 34, only when such change of opinion is the result of a different method of reasoning, and not based on 'information ' (1) (2) (3) (4) 179 It does appear that some High Courts at any rate are taking the view that a change of opinion by the Income tax Officer in certain circumstances will be sufficient for the purpose of section 34(1) (b) and will justify the issue of a notice thereunder.
It may be added that after the decision of this Court in Maharajkumar Kamal Sigh 's case(1) it is now settled that "information in section 34(1)(b) included information as to the true and correct state of law, and so would cover information as to relevant judicial decisions" and that such information for the purpose of section 34(1)(b) of the Income tax Act need not be confined only to cases where the Income tax Officer discovers as a fact that income has escaped assessment.
To that extent the decision of the Bombay High Court in Sir Mohanmed Yusuf Ismail(1) has been overruled.
That is why the Appellate Tribunal stated in its decision that if the notices in the present case had been issued after the decision of the Appellate Assistant Commissioner in the appeal from the assessment for the year 1959 60, there would have been information in possession of the Wealth tax Officer to justify him in issuing notices under section 17(b) of the Act.
But in the present case the Wealth tax Officer issued notices before that decision was known to him and the question is whether in the circumstances, in view of the later decisions of the High Courts to which we have referred, a question of law arose or not.
The language of section 17(b) of the Act is in pari materia with the language of section 34(1)(b) of the Income tax Act and therefore the decisions under section 34(1)(b) of the latter Act would be relevant in construing the scope and effect of section 17(b) of the Act.
There does appear to be divergence of opinion among the High Courts as to the meaning of the word "information" in section 34(1)(b) of the Income tax Act, and in view of that divergence we are of opinion that a question of law did arise in the present case as to the interpretation of the word "information" in section 17(b) of the Act and should have been referred by the Tribunal.
We therefore allow the appeals, set aside the order of the High Court and direct the Tribunal to state a case referring the question of law arising in these cases in the form suggested by the appellant.
The Tribunal will be free to decide whether to refer the matter to the High Court under section 27(1) or to this Court under section 27 (3A) of the Act.
Costs of this Court will abide the result of the reference.
Appeals allowed.
(1) [1959] Supp. 1 S.C.R. 10.

summary/full:
Orders of reassessment under section 16(3) read with section 17(b) of the Wealth Tax Act were, passed by the Wealth Tax Officer in respect of two assessment years, and by those orders, amounts which had been formerly allowed as deduction were included in the total wealth of the respondent.
The orders were set aside by the Tribunal on the ground that the reassessment was based on a mere change or opinion on the part of the Officer, because, there was no "information" in his Possession, as required by section 17(b), which could lead him to believe that chargeable wealth of the respondent had escaped assessment.
The appellant 's applications to the Tribunal and the High Court, for a reference to the High Court, were dismissed.
In appeal to this Court, HELD: The Tribunal should be directed to make a reference either to the High Court under section 27(1) or to this Court under section 27 (3A) of the Wealth Tax Act.
[179 G].
There is a divergence of opinion among the High Courts as to the meaning of the word "information" in.
section 34(1) (b) of the Income tax Act, and some High Courts have taken the view that a change of opinion by the Income tax Officer, in certain circumstances, will justify the issue of notice under section 34 (1)(b) of the Income tax Act.
Since that section is in pari materia with section 17(b) of the Wealth Tax Act, a question of law did irises a,; to the interpretation of the word "information" in section 17(b) of the Wealth Tax Act and it should have been referred by the Tribunal to the High Court.
[179 E]