judgement:
Civil Appeal No. 897 of 1987 From the Judgment and order dated 5.8.1986 of the Central Administrative Tribunal, New Delhi in Regn.
No. T 853 of 1985 (CWP No. 2709 of 1985).
G. Ramaswamy, Additional Solicitor General, P. Parmeshwaran and B. Parthasarthy for the Appellant.
Harish N. Salve, Pramod Dayal and Badri Dass Sharma for the Respondents.
The Judgment of the Court was delivered by VENKATARAMIAH, J.
The short question involved in this case is whether the members of the All India Services who had retired prior to 1.1.1973 are entitled to payment of gratuity as a part of retirement benefits at the rates specified in the Notification No. 33/12/73 AIS (ii) dated 24.1.
This appeal by special leave is filed against the decision of the Central Administrative Tribunal dated August 5, 1986 declaring that rule 28(6) of the All India Services (Death cum Retirement Benefits) Rules, 1958 insofar as it tended to restrict pensioners to retirement benefits to which they were entitled on the date of their retirement and sought to deny them the benefits of the liberalised pension and 700 gratuity in the amended notification No. 33/12/73 AIS (ii) dated 24.1.1975 was violative of Article 16 of the Constitution of India and further directing that all the members of the All India Services would be entitled to liberalised pensionary benefits including gratuity as per the said notification irrespective of whether they had retired prior to 1.1.1973 or thereafter.
The above decision was given by the Central Administrative Tribunal, New Delhi in REGN No. T 853/85 (C.W. No. 2709185) which was a petition filed by the All India Services Pensioners Association (Rajasthan) and one R.D. Mathur, an IAS officer who had retired from service prior to 1.1.1973.
The Union of India, the appellant herein, has not questioned the order of the Central Administrative Tribunal insofar as its liability to pay the pension in accordance with the judgment of the Tribunal is concerned.
This appeal by special leave is confined only to that part of the order of the Tribunal by which the Union of India is directed to pay gratuity in accordance with the aforesaid notification even to those members of the All India Services who had retired prior to 1.1.1973.
The crucial point for consideration in this appeal is whether the members of a service who had retired prior to the date on which there is an upward revision of the gratuity on retirement to the members of such service would also be entitled to claim the difference between the gratuity payable to members of such service on such upward revision and the gratuity which had been actually paid to them on their retirement, even though the Government order revising the gratuity does not either expressly or by necessary implication state that the members of the service who had retired earlier should also be paid gratuity at the revised rates because of the decision of this Court in D.S. Nakara vs Union of lndia; , A similar question came up for consideration before this Court in the State Government Pensioners Association & others vs State of Andhra Pradesh., [1986] 3 S.C.C. 501.
The facts of that case are these The Government of Andhra Pradesh by its order G.O.Ms.
No. 88 dated 26.3.1980 directed that retirement gratuity was payable to the officers to whom the said Government order was applicable as follows: "Retirement gratuity may be 1/3rd of pay drawn at the time of retirement for every six monthly service subject to maximum of 20 months ' pay limited to Rs.30,000. " The said order was made effective from April 1, 1978.
The question which arose for consideration in some writ petitions filed in the High Court of Andhra Pradesh was whether the pensioners who had 701 retired prior to 1.4.1978 would also be entitled to the payment of gratuity in accordance with the provision made in the aforesaid notification.
The High Court of Andhra Pradesh held that the decision of this Court in D.S. Nakara 's case (supra) was not applicable to the payment of gratuity and that pensioners who had retired prior to April 1, 1978 would not be entitled to claim the difference between the gratuity payable under the Government order and the gratuity which they had actually received at the time of their retirement.
In the Special Leave Petitions filed before this Court against the said decision two of the learned Judges of this Court Thakkar and Ray, JJ.
affirmed the view taken by the High Court of Andhra Pradesh and dismissed the petitions.
In the course of their order the learned Judges observed as follows: "We fully concur with the view of the High Court.
The upward revision of gratuity takes effect from the specified date (April 1, 1978) with prospective effect.
The High Court has rightly understood and correctly applied the principle propounded by this Court in Nakara 's case . . . .
An illustration will make it clear.
Improvements in pay scales by the very nature of things can be made prospectively so as to apply to only those who are in the employment on the date of the upward revision.
Those who were in employment say in 1950, 1960 or 1970, lived, spent, and saved, on the basis of the then prevailing cost of living structure and pay scale structure, cannot invoke article 14 in order to claim the higher pay scale brought into force say, in 1980.
If upward pay revision cannot be made prospectively on account of Article 14, perhaps no such revision would ever be made.
Similar is the case with regard to gratuity which has already been paid to the petitioners on the then prevailing basis as it obtained at the time of their respective dates of retirement.
The amount got crystalized on the date of retirement on the basis of the salary drawn by them on the date of retirement.
And it was already paid to them on that footing.
The transaction is completed and closed.
There is no scope for upward or downward revision in the context of upward or downward revision of the formula evolved later on in future unless the provision in this behalf expressly so provides retrospectively (downward revision may not be legally permissible even).
It would be futile to contend that no upward revision of gratuity amount can be made in har 702 mony with Article 14 unless it also provides for payment on the revised basis to all those who have already retired between the date of commencement of the Constitution in 1950, and the date of upward revision.
There is therefor no escape from the conclusion that the High Court was perfectly right in repelling the petitioners ' plea in this behalf.
" When the above decision was brought to the notice of the Tribunal in the case out of which the present appeal arises the Tribunal declined to follow it and gave the following reasons for doing so: "We must, however, observe that the Supreme Court in that case was dismissing Special Leave Petition (Civil) Nos. 14179 and 14180 of 1985 and was not disposing of an appeal.
Further, the Supreme Court, in that case was considering the Andhra Pradesh Pension Rules and not rule 28(6) of the All India Services (Death cum Retirement Benefit) Rules, 1958 and the liberalisation pension scheme of Andhra Pradesh notified on 24.1.1985 and not the notification dated 24.1.1975 amending the All India Services (Death cum Retirement Benefit) Rules, 1958 with which we are now concerned in this application.
Moreover, the Special Leave Petition against the Andhra Pradesh High Court 's judgment was rejected by a Bench of two Judges while the judgment in V.P. Gautam 's case which expressly dealt with Rule 28(6) and the liberalised pension scheme notified on 24.1.1975 in respect of Members of All India Services was the subject matter of an appeal before a bench of three judges of the Supreme Court.
The relevant portion of the judgment of the High Court of Punjab and Haryana which must be deemed to have been affirmed by the three member Bench of the Supreme Court when it dismissed Civil Appeal Nos 2738 and 2739 of 1985 on 12.2.1985 reads as follows: In other words, the provisions of rule 28(6) of the retirement benefits rules, 1958 in so far as they were entitled on the date of their retirement and seeks to deny them liberalised pension under the amended rules referred to above which came into effect subsequent to that date are unconstitutional and are also accordingly struck down.
It follows that the liberalised pensionary benefits including death 703 cum retirement gratuity granted to pensioners by the amendment made in 1975 and 1979 shall be payable to all persons entitled to pensionary benefits under the Retirement benefits rules, 1958 irrespective of the date of the retirement from service.
It has been repeatedly laid down by the Supreme Court that the decision of the larger Bench prevails over the decision of the smaller benches vide Ganapati Sitaram Balvalkar vs Waman Shripad Mage, A.I.R. 1981 S.C. 1956; Mattulala vs
Radhe Lal, A.I R. ; Union of India vs K.S. Subramanian, A.I.R. 1976 S.C. 433.
Even assuming that some aspects have not been taken into account by the Supreme Court, no Court or Tribunal of India can take a view different from that taken by the Supreme Court.
As held by the Supreme Court in T. Govindaraja Mudaliar vs State of Tamilnadu, ; "merely because the aspect presented in the present appeal was not expressly considered or a decision given, that will not take away the binding effect of those decisions of the Supreme Court.
" Vide Somavanti vs State of Punjab; , It may be pertinent to note that even in the Andhra Pradesh State Government Pensions Association case the judgment in V.P. Gautam 's was specifically referred to but the Supreme Court did not state that it was not correctly decided.
Further, in all the above cases special leave applications were rejected following the principle laid down in Nakara 's case.
In Gautam 's case the appeal filed by the Union of India was dismissed applying Nakara 's case.
In dealing with the claim of the other members of the All India Services who like V.P. Gautam had retired prior to 1.1.1973, we cannot hold otherwise in construing rule 28(6 ' in the context of the liberalised pension scheme of 1975, The conflict if any must be resolved by the Supreme Court.
We must follow the decision in V.P. Gautam 's case which is directly in point.
" With great respect to the Tribunal it should be stated that the way in which it has tried to ignore the decision of this Court in the Andhra Pradesh State Government Pensioners Association case 704 (supra) is not correct.
In the above decision the two learned Judges, who decided that case have given reasons for not applying the rule in D.S. Nakara 's case (supra) insofar as the liability of the Government to pay gratuity on retirement is concerned.
The first ground relied on by the Tribunal not to follow the said decision is that it had been rendered by this Court while dismissing some special leave petitions.
This is a wholly untenable ground.
The special leave petitions were not dismissed without reasons.
This Court had given reasons for dismissing the special leave petitions.
When such reasons are given the decision becomes one which attracts Article 141 of the Constitution which provides that the law declared by the Supreme Court shall be binding on all the courts within the territory of India.
The second ground given by the Tribunal is that the decision was one rendered in a case involving a notification issued by the Andhra Pradesh Government but not one touching the notification dated 24.1.1975 involved in this case.
This is also not tenable.
The Supreme Court was considering the question of applicability of the principle enunciated in D.S. Nakara 's, case to the case of gratuity.
The views expressed by this Court should, therefore, apply to all cases of gratuity where similar features exist and it should apply to the present case too.
If what the Tribunal has held is correct then D. section Nakaras case will not be applicable to any order of pension passed by any State Government.
That would indeed be a startling proposition with which we do not agree.
As regards the third ground it is no doubt true that the High Court of Punjab & Haryana in its decision in V. P. Gautama vs Union of India and Ors., [1984] Labour and Industrial Cases 154 had observed that "it follows that the liberalised pensionary benefits including death cum retirement gratuity granted to pensioners by the amendment made in 1975 and 1979 shall be payable to all persons entitled to pensionary benefits under the Retirement Benefits Rules, 1958 irrespective of the date of the retirement from service".
But at the end of its decision the High Court passed the following order: "In the result, a writ of mandamus is issued to the Union of India and the other respondents directing them to compute and pay pensionary benefits to the petitioner along with interest on the amounts becoming payable to him in terms of this order.
The petitioner shall also be entitled to the costs of this petition.
" When the Special Leave Petition was filed against the said decision this Court passed the following order: 705 "Special leave to appeal was confined only to two questions (1) whether the enhanced pension under the liberalised pension scheme was payable with effect from 1st October, 1974 and (2) whether the High Court had any jurisdiction to award interest at 12% per annum.
So far as the first question is concerned, it is fully covered by D.S. Nakara & Ors.
vs Union of India.
We are not inclined to go into the second question in the present appeals.
The appeals are therefore, dismissed.
No costs.
" The above decision was rendered by a bench of three Judges of which one of us was a member.
It is seen from the above order that there is no reference to the liability of the Union of India and the State of Haryana to pay the gratuity to the pensioner who was involved in that case.
The first question considered related to the payment of enhanced pension.
It is not known whether the question relating to gratuity was pressed before this Court or not.
There is no reference to the liability to pay gratuity in the said order.
The only point considered by this Court by the above order was the point involved in question No. 1, referred to therein, namely, whether the enhanced pension under the liberalised pension scheme was payable with effect from 1st October, 1974 and insofar as that question was concerned, the view taken by the High Court of Punjab & Haryana was affirmed.
It may be that the decision of the High Court of Punjab and Haryana may be binding on the parties to that petition as res judicata.
But the above order of this Court cannot be considered as a precedent under Article 141 of the Constitution to hold that the liability to pay gratuity was also governed by the decision in D.S. Nakara 's case.
It may be pointed out that in M.L. Abhyankar and others etc.
vs Union of India, (Writ Petition (Civil) Nos.
3531 34 of 1983 and connected cases decided on April 24, 1984) a bench of three Judges of this Court, which consisted of two of the Judges who dismissed the appeal filed against the judgment of the High Court of Punjab & Haryana referred to above, has observed thus: "In view of our decision in D.S. Nakara vs Union of India; , and for the reasons mentioned by the Allahabad High Court in Writ Petition No. 3201 of 1979 dated 21311983 in the case of Bidhubhushan Malik and others vs Union of India which we have accepted as correct in Special Leave Petition No. 9616 of 1983 just now dismissed by us we allow the writ petitions.
The judges of the High Court and of the Supreme Court will be entitled to the pensionary benefits under the amended Act of 1973 706 irrespective of the dates of their retirement.
They will be so entitled with effect from 1.10.1974.
Arrears of pension calculated under the provision of the new Act will be paid to those to whom it is due within four months from today.
In the case of Judges who have died after 1.10.1974 the amounts due will be paid to the legal heirs of the Judges within four months from today.
The family pension due to the widows will be calculated under the provisions of the 1976 Amending Act and paid to them.
Ad hoc payments made, if any, will be adjusted while making such payments.
The writ petitions are disposed of accordingly.
What we have said about pensionary benefits does not apply to payment of gratuity. " (underlining by us) From the foregoing it is clear that this Court has made a distinction between the pension payable on retirement and the gratuity payable on retirement.
While pension is payable periodically as long as the pensioner is alive, gratuity is ordinarily paid only once on retirement.
No other decision of this Court which has taken a view contrary to the decision of Thakkar and Ray, JJ.
in the Andhra Pradesh State Government Pensioners Association 's case (supra) and to the decision in M. L. Abhyankar 's case (supra) has been brought to our notice.
The observations made in these two cases are binding on us insofaras the applicability of the rule in D.S. Nakara 's case (supras to the liability of the Government to pay gratuity on retirement.
We respectfully agree with the views expressed in those decisions.
It is also not shown that the Government notification in question either expressly or by necessary implication directs that those who had retired prior to 1.1.1973 would be entitled to any additional amount by way of gratuity.
The Tribunal was, therefore, in error in upholding that gratuity was payable in accordance with the Government Notification No. 33/12/73 AIS(ii) dated 24.1.1975 to all those members of the All India Services who had retired prior to 1.1.1973.
The Judgment of the Tribunal is set aside to the extent indicated above.
We make a declaration that the members of the All India services who had retired prior to 1.1.1973 are not entitled to claim gratuity on the basis of the Notification referred to above.
The appeal is allowed to the above extent.
There will be no order as to costs.
N.V.K. Appeal allowed.

summary/full:
% In a petition filed by the All India Services Pensioners ' Association, and an I.A.S. Omcer who had retired from service prior to l.1.1973 (respondents in the Appeal) the Central Administrative Tribunal by its decision dated August 5, 1985, declared that Rule 28(6) of the All India Services (Death cum Retirement Benefits) Rules; 1958 insofar as it tended to restrict pensioners to retirement benefits to which they were entitled on the date of their retirement, and sought to deny them the benefit of the Iiberalised pension and gratuity in the amended Notification No. 33/12/73 AIS (ii) dated January 24, 1975 was violative of Article 16 of the Constitution, and directed that all the members of the All India Service would be entitled to liberalised pensionary benefits including gratuity as per the said Notification irrespective of whether they had retired prior to January 1, 1973 or thereafter.
The Appellant Union of India in its appeal by Special Leave to this Court had not questioned the Tribunal 's order insofar as its liabil H 698 ity to pay pension was concerned, but sought leave against the direction to pay gratuity in accordance with the Notification even to those members of the All India Services who had retired prior to January 1, 1973.
On the question: whether the members of the All India Services who had retired prior to January 1, 1973 are entitled to payment of gratuity as a part of retirement benefits at the rates specified in the Notification No. 33;12 73 AIS (ii) dated 24.
1. 1975.
Allowing the appeal, ^ HELD:1.
In the Andhra Pradesh State Government Pensioners ' Association vs State of Andhra Pradesh, [1986] 3 SCC 501 this Court had given reasons for not applying the rule in D.S. Nakara vs Union of India, [1983]2 SCR 165 insofar as the liability of the Government to pay gratuity on retirement is concerned.
[704A B] 2.
The views expressed by this Court apply to all cases of gratuity where similar features exist and it should apply to the instant case too.
[704D] 3.
The way the Tribunal in the instant case, has tried to ignore the decision of this Court in the Andhra Pradesh State Government Pensioners ' Association case is not correct.
The first ground relied on by the Tribunal not to follow the said decision is that it had been rendered by this Court while dismissing some special leave petitions is a wholly untenable ground.
The second ground given by the Tribunal that the decision was one rendered in a case involving a Notification issued by the Andhra Pradesh Government and not one touching the Notification dated January 24, 1975 is also not tenable.
[704C D] 4.
When reasons are given for dismissing Special Leave Petitions the decision becomes one which attracts Article 141 of the Constitution which provides that the law declared by the Supreme Court shall be binding on all the courts within the territory of India.
[704B C] 5.
This Court has made a distinction between the pension payable on retirement and the gratuity payable on retirement.
While pension is payable periodically as long as the pensioner is alive, gratuity is ordinarily paid only once on retirement.
[706C D] 6.
The observation made by this Court in Andhra Pradesh State Government Pensioners ' Association case and in M.L. Abhyankar vs U.O.I, are binding insofar as the applicability of the 699 rule in D.S. Nakara 's case to the liability of the Government to pay gratuity on retirement.
[706D E] 7.(i) The Government Notification No. 33/12/73 AIS (ii) dated January 24, 1975 neither expressly nor by necessary implication directs that those who had retired prior to January 1, 1973 would be entitled to any additional amount by way of gratuity.
[706E F] 7.(ii) The Tribunal was in error in upholding that gratuity was payable in accordance with the Government Notification No. 33/12/73 AIS (ii) dated January 24, 1975 to all those members of the All India Services who had retired prior to January t, 1973.
It is declared that the members of the All India Services who had retired prior to January 1, 1973 are not entitled to claim gratuity on the basis of the said Notification.
[706F G]


judgement:
Civil Appeal No. 131 of 1988.
From the Judgment and order dated 13.3.1986 of the High Court of Karnataka in C.R.P. No. 1821 of 1984.
A.S. Nambiar, R.C. Kaushik and A.K. Sharma for the Appelant.
S.S. Khanduja and Y.P. Dhingra for the Respondents.
The Judgment of the Court was delivered by NATARAJAN, J.
Leave granted.
The limited question falling for our deterrnination in this appeal by special leave is whether a suit for damages already instituted against a counsel has abated or not consequent on the death of the plaintiff.
G We may now scan the facts.
Pursuant to the High Court of Karnataka confirming an order of eviction passed against him in respect of his business premises, a tenant by name Mr. Sequeira wanted to prefer an appeal to the Supreme Court.
For that purpose he met the appellant, who is an advocate practising in the Supreme Court, H 610 on 14.6.197 1 at Mangalore during the latter 's visit to that place and engaged him to file the appeal.
The special leave petition came up for hearing on 22.11.1971 and was "dismissed as withdrawn".
Mr. Sequeira then filed a suit O.S. No. 255 of 1972 in the Court of the District Munsif, Mangalore against the appellant for damages and compensation.
He alleged in the plaint that the appellant had been negligent in rendering professional services and had misconducted himself by filing the appeal after considerable delay and giving misleading information about the filing of the appeal and furthermore in withdrawing the appeal instead of canvassing for its admission.
He further alleged that as a consequence of the appeal being dismissed, he came to be evicted from his business premises and thereby he had incurred loss of income as he had been unable to secure an alternate place for running his business besides suffering mental agony, worry and loss of reputation.
The plaintiff, therefore, claimed that the appellant was liable to compensate him in a sum of Rs.20,000 towards the loss sustained by him but he was however content to restrict the amount to Rs.4,500.
In addition he claimed a sum of Rs. 1,500 under three heads of Rs.500 each viz., (I) refund of Rs.500 paid towards court fee and miscellaneous expenses, (2) reimbursement of Rs.500 expended for engaging another advocate to obtain a certified copy of the order of the Supreme Court in the special leave petition and (3) compensation towards wrongful retention of the case file by the appellant and reimbursement of expenses incurred for telephone and postal charges.
Thus in all the suit was laid against the appellant for a sum of Rs.6,000 by way of damages and compensation besides costs etc.
The appellant entered appearance in the suit and filed a written statement refuting the charges of negligence and mis conduct levelled against him by the plaintiff and also disputing the plaintiff 's right to seek damages or reimbursement of amounts from him under any of the heads set out in the plaint.
During the pendency of the suit the plaintiff died and his legal representatives, who are the respondents herein, filed a petition under order XXII Rule 3(1) of the Code of Civil Procedure seeking their substitution in the suit for prosecuting the suit further.
The appellant opposed the application and contended that as the suit was one for damages for personal injuries alleged to have been sustained by the plaintiff, the suit abated on his death as per the maxim Actio Personalis cum moritur persona.
The District Munsif upheld the objection and dismissed the suit as having abated but the High Court held otherwise and declared the legal representatives to be entitled to 611 get impleaded and continue the suit.
The learned single judge who allowed the Revision has taken the view that Krishna Behari Sen vs Corporation of Calcutta, ILR 31 Calcutta, 993, sets out the correct ratio and hence he was following it in preference to the ratio laid in Rustomji Dorabji vs W.H. Nurse, ILR 44 Madras, 357 and Motilal Satyanarayan and Anr.
vs Harnarain Premsukh & Anr., The said order of the learned single judge is urlder challenge in this appeal.
Even at the threshold of the judgment we may say that the ratio followed by the High Court is not a correct one.
Section 306 of the which corresponds to Section 89 of the Probate and Administration Act, 1881, sets out the rights of Executors and Administrators to continue actions of or against a deceased person.
Section 306 which is almost a re production of Section 89 in the earlier Act reads as follows: "306.
Demands and rights of action of or against deceased survive to and against executor or administrator.
All demands whatsoever and all rights to prosecute or defend any action or special proceeding existing in favour of or against a person at the time of his decease, survive to and against his executors or administrators except causes of action for defamation, assault as defined in the Indian Penal Code, or other personal injuries not causing the death of the party; and except also cases where, after the death of the party, the relief sought could not be enjoyed or if granted it would be nugatory .
" In so far as the rights of a legal representative to proceed with a suit filed by a deceased plaintiff is concerned, order XXII Rules I and 3(1) govern the matter.
They read as under: "1.
The death of a plaintiff or defendant shall not cause the suit to abate if the right to sue survives.
3.(1) Where one of two or more plaintiffs dies and the right to sue does not survive to the surviving plaintiff or plaintiffs alone, or sole plaintiff or sole surviving plaintiff dies and the right to sue survives, the Court on an application made in that behalf, shall cause the legal representative of the deceased plaintiff to be made a party and shall proceed with the suit.
" 612 These provisions of law have come up for consideration in a number of cases before several High Courts.
The controversy in all the cases either under Section 89 of the Probate and Administration Act 1881 or under Section 306 of the centred round the meaning to be given to the words "other personal injuries not causing the death of the party".
Barring the Calcutta High Court and that too in one reported case only and the Rangoon High Court in one decision, other High Courts have uniformly taken the view that the words "personal injuries" do not mean injuries to the body alone but all injuries to a person other than those which cause death and that the relevant words must be read ejusdem generis with the words "defamation and assault" and not with the word "assault" alone.
It would suffice for our purpose if we set out the reasons given in the Full Bench decision of the Madras High Court in Rustomji Dorabji vs W.H. Nurse, (supra) and merely give the citations of the other decisions where the same view has been taken.
In Rustomji Dorabji vs W.H. Nurse, Coutts Trotter, J. speaking for himself and Ayling, J. set out the law as follows.
"We are therefore driven to the conclusion that the Act must be supposed to have envisaged a logically coherent class of causes of action, and that result can only be achieved by construing "personal injuries" as meaning not "injuries to the body" merely, but injuries to the person in Blackstone 's sense, other than those which either cause death or tangible affect the estate of the deceased injured person or cause an accretion to the estate of the deceased wrong doer.
In effect, we think that the words which we have to construe are ejusdem generis not merely with the last preceding word "assault", but with the two preceding words "defamation" and "assault".
(Emphasis supplied.) Kumaraswamy Sastri, J., the third judge in the Full Bench, in his concurring judgment gave his reasons as under: "If the words were simply "all personal injuries not causing the death of the party" and omitted defamation or assault, it may be argued that personal meant only physical and that causes of action for defamation and other similar injuries survived.
The legislature took two types of personal injuries, one physical and the other not, and used them by way of illustration of what it meant to exclude.
In this view, the words "other personal injuries not causing the death of 613 the party" must be read with "defamation" and "assault".
There has been a conflict of authority on the question referred.
In Punjab Singh vs Ramautar Singh, (!) it was held by the Patna High Court that the words "other personal injuries not causing the death of the party ' in Section 89 of the Act are ejusdem generis not only with assault but also with defamation and include malicious prosecution.
The same view has been held by the Madras High Court in Gandhiji Mareppa vs Firm of Marwadi Vannajee, (2) and Marwadi Mothiram vs Samnaji, (3) A contrary view was taken in Krishna Behari Sen vs The Corporation of Calcutta, (4) where the learned Judges differed from Justice Henderson, the trial Judge, and held that to use the words other personal injuries not resulting in death in connexion with an action for defamation or malicious prosecution would be straining the language used by the legislature and placing on it an unnatural and forced construction.
In Punjab Singh vs Ramautar Singh, (I) Das, J., who was a member of the Calcutta Bar for several years observes that in his experience the case has never been followed subsequently in the Calcutta High Court.
I would follow Punjab Singh vs Ramautar Singh, (I) and Marwadi Mothiram vs Samnaji, (2) and hold that a suit for damages for malicious prosecution abates.
" Not only has this view been consistently followed by the Madras High Court in subsequent decisions but the same view has been taken by several other High Courts as may be seen from the following citations: Madras High Court, Palaniappa Chettiar vs Rajah of Ramnad, ILR 49 Madras 208; Irulappa vs Madhava, AIR 1951 Madras 733; Arnuchalam vs Subramanian, AIR 1958 Madras 142; Bombay High Court, Gopal vs Ram Chandra, ILR XXVI Bombay 597; Motilal vs Harnarayan, (supra) Nagpur High Court, Maniramlala vs Mt. Chalti Bai & Anr., ILR 1938 Nagpur 280; Baboo vs Subanshi, ILR 1942 Nagpur 650; Baboolal vs Ramlal, AIR 1952 Nagpur 408; Patna High Court, Punjab Singh vs Ramautar Singh, AIR 1920 Patna 841; Jogindra Kaur vs Jagdish Singh, AIR 1964 Patna 548; Madhya Pradesh High Court, Ratanlal vs Baboolal, AIR 1960 Madhya Pradesh 200; 614 Andhra Pradesh High Court, G. Jayaprakash vs State, AIR 1977 Andhra Pradesh 20.
As against the preponderant view taken by several High Courts, a Full Bench of the Calcutta High Court alone took a contrary view in Krishna Behari Sen vs Corporation of Calcutta, (supra).
Maclean, C.J. speaking for the Bench held that the words. "personal injuries not causing the death of the party" if accorded their natural and ordinary meaning appear to refer to physical injuries to the person which do not cause death.
As has been pointed out by Das, J. in Punjab Singh vs Ramautar Singh, (supra) the ratio in Krishna Behari Sen 's, case had not been followed subsequently by the Calcutta High Court itself in any other case.
The view taken by the Calcutta High Court found solitary acceptance only in a decision of the Rangoon High Court in D.K. Cassim & Sons.
vs Sara Bibi, ILR XIII Rangoon 385.
It is therefore clear that the contrary view taken by the Calcutta High Court is against the weight of judicial pronouncements by other High Courts.
In a slightly different context the matter came to be considered by this Court in Melepurath Sankunni Ezhuthassan vs Thekittil Geopalankutty Nair, A plaintiff 's suit for damages for defamation was decreed by the Appellate Court but dismissed by the High Court in Second Appeal.
There was an appeal to this Court by the plaintiff by special leave and during its pendency the plaintiff died.
This Court declined to allow the legal representatives of the plaintiff to come on record and prosecute the appeal on the ground that by reason of the dismissal of the suit by the High Court, the plaintiff stood relegated to his original position and, therefore, the proceedings abated on his death.
The decision pointed out that the position would have been different if the plaintiff had a subsisting decree in his favour because then the cause of action would get merged in the decree and the decree would form part of the estate of the deceased which his legal representatives are entitled to uphold.
The maxim 'actio personalis cum moritur persona ' has been applied not only to those cases where a plaintiff dies during the pendency of a suit filed by him for damages for personal injuries sustained by him but also to cases where a plaintiff dies during the pendency of an appeal to the Appellate Court, be it the First Appellate Court or the Second Appellate Court against the dismissal of the suit by the Trial Court and/or the First Appellate Court as the case may be.
This is on the footing that by reason of the dismissal of the suit by the 615 Trial Court or the First Appellate Court as the case may be, the plaintiff stands relegated to his original position before the Trial Court.
Vide the decisions in Punjab Singh vs Ramautar Singh, (supra), Irulappa vs Madhva, (supra), Maniramlala vs Mt. Chalti Bai & Anr.
(supra), Baboolal vs Ram Lal, (supra) and Melepurath Sankunni Ezhuthassan vs Thekittil Gopalankutty Nair, (supra).
In Palaniappa Chettiar vs Rajah of Ramnad (supra), and Motilal vs Harnarayan, (supra) it was held that a suit or an action which has abated cannot be continued thereafter even for the limited purpose of recovering the costs suffered by the injured party.
The maxim of actio personalis cum moritur persona has been held inapplicable only in those cases where the injury caused to the deceased person has tangibly affected his estate or has caused an accretion to the estate of the wrong doer vide Rustomji Dorabji vs W.H. Nurse, (supra) and Ratanlal vs Baboolal, (supra) as well as in those cases where a suit for damages for defamaton, assault or other personal injuries sustained by the plaintiff had resulted in a decree in favour of the plaintiff because in such a case the cause of action becomes merged in the decree and the decretal debt forms part of the plaintiff 's estate and the appeal from the decree by the defendant become a question of benefit or detriment to the estate of the plaintiff which his legal representatives are entitled to uphold and defend (vide Gopal vs Ramchandra, (supra) and Melepurath Sankunni vs Thekittil, (supra).
Though Section 306 speaks only of executors and administrators and order XXII Rule 3 Civil Procedure Code sets out the rights of legal representatives to continue the proceedings instituted earlier by a deceased plaintiff if the right to sue survives, the courts have taken the view that the legal representatives stand on par with executors and administrators regarding their right to seek impleadment in order to continue the suit.
We may in this connection only quote the following passage occurring in Melepurath Sankunni 's case (supra).
"Section 306 further speaks only of executors and administrators but on principle the same position must necessarily prevail in the case of other legal representatives, for such legal representatives cannot in law be in better or worse position than executors and administrators and what applies to executors and administrators will apply to other legal representatives also." Thus it may be seen that there is unanimity of view among many High Courts in the country regarding the interpretation to be given to 616 the words "other personal injuries not causing the death of the party" occurring in Section 306 of the and that the contrary view taken by the Calcutta & Rangoon High Courts in the solitary cases referred to above has not commended itself for acceptance to any of the other High Courts.
The preponderant view taken by several High Courts has found acceptance with this Court in its decision in Melepurath Sankunni Ezhuthassan 's case.
It is on account of these factors we have expressed our disapproval at the outset itself of the view taken by the High Court in this case.
What now falls for consideration is whether the suit filed by the plaintiff was founded on torts or on contract.
Mr. Kaushik, learned counsel for the appellant, in all fairness, did not contend that the words "other personal injuries" must be read narrowly i.e., ejusdem generis only with assault and other physical injuries not resulting in the death of the party.
His argument however was that the plaintiff 's suit is wholly founded on torts because it related to the damages sought for by the plaintiff for alleged loss of reputation, mental agony, worry etc.
and hence the suit is based only on the personal injuries of the plaintiff and it inevitably abated on his death.
On the other hand, Mr. Khanduja, counsel for the respondents, contended that the suit is not really founded on torts but is founded on contract and there had been a breach of the conditions of engagement by the appeal being withdrawn contrary to instructions, not to speak of the delay in the filing of the appeal.
By reason of the breach of the conditions of engagenment, the plaintiff had been evicted and put to loss and, therefore, the suit for damages really pertained to the loss suffered by the estate of the plaintiff and the said loss could well be claimed by the legal representatives after the death of the plaintiff.
It was further urged by him that the suit amount consisted of claims under different heads and that while Rs.4,500 had been claimed by way of compensation for the monetary loss sustained by the plaintiff 's estate, the claims relating to Rs.1,500 under three different heads were also amounts due to the estate as expenditure suffered by it and hence it was not open to the appellant to contend that the suit was only for personal injuries sustained by the plaintiff and therefore it abated on his death.
In view of the fact that this aspect of the matter has not been considered by the Trial Court or the High Court, we do not think it proper to express any opinion one way or the other as to whether the suit cause of action is founded on torts or on contract.
Since a copy of the plaint has not been furnished by either party we can only refer to the summary of the plaint contained in the order of the District 617 Munsif.
The relevant portion reads as follows.
A "at a later stage, he filed the petition and withdrew it; the Special Leave Petition was dismissed as withdrawn; defendant did not inform the plaintiff well in time, plaintiff got suspicion over the attitude of the defendant, he engaged another counsel in the Supreme Court and obtained certified copies of the petitioner 's application and order of the Supreme Court on the application filed by the defendant; even after several requests, defendant has not returned the file; defendant incurred Rs.500 to obtain certified copies; on account of the misconduct of the defendant, plaintiff has suffered untold mental worry, agony, and loss of reputation; plaintiff was evicted from the shop premises situated at Hampankatta; he has not been able to secure a similar place for continuing his business; the defendant is liable to pay the plaintiff an amount of Rs.500 being the loss incurred by him to engage the service of another advocate to obtain the certified copies of the petition and application filed by the defendant in the Supreme Court; that apart the defendant is liable to compensate the plaintiff to the extent of another sum of Rs.500 as the defendant has not renurned the records that were entrusted to the defendant by the plaintiff and for the charges incurred by the plaintiff in sending telegrams, or correspondences or for trunk phone calls; for want of suitable place for continuing the business of the plaintiff, the plaintiff has suffered damage or loss of over Rs.20,000 but the plaintiff restricts the claim to Rs.4,500 in this behalf.
The plaintiff is entitled to be compensated by the defendant to the extent of Rs.6,000 as stated above, viz. Rs.500, Rs.500, Rs.500, Rs.4,500 for loss of damage sustained by the plaintiff and the defendant is liable to compensate the plaintiff in this respect as he has not done his duty which he owed towards the plaintiff" (underlining by us) Having regard to the nature of the claim we are not able to comprehend how without any enquiry and recording of evidence the Trial Court and the High Court have proceeded on the basis that the suit claim is based only on tortious liability though the two Courts have reached different conclusions about the abatement of the suit.
The learned counsel for the respondent placed reliance upon the summary of the averments in the plaint set out above and argued that the 618 plaintiff had suffered loss of over Rs.20,000 due to the closure of the business and hence the restricted claim of Rs.4,500 is really towards loss suffered by the estate and not a claim made on the basis of the loss of reputation, mental agony, worry etc.
suffered by the plaintiff.
He further stated that the claim of Rs.1,500 under three heads of Rs.500 each also related to the loss suffered by the estate of the deceased and hence the suit has to proceed for the entire suit claim.
Since no discussion has been made and no finding has been rendered on this question and since we can not render any finding on the basis of the materials on record whether the suit is based on the personal injuries sustained by the plaintiff or upon the loss suffered by the estate, we think the proper course would be to allow the judgment under appeal to stand even though we do not approve the reasoning of the High Court and dismiss the appeal.
We leave the matter open for the Trial Court to decide whether the suit is founded entirely on torts or on contract or partly on torts and partly on contract and deal with the matter according to law.
If the entire suit claim is founded on torts the suit would undoubtedly abate.
If the action is founded partly on torts and partly on contract then such part of the claim as relates to torts would stand abated and the other part would survive.
If the suit claim is founded entirely on contract then the suit has to proceed to trial in its entirety and be adjudicated upon.
Before concluding the judgment, it would not be out of place for us to refer to some English decisions and to the relevant provisions in the and the regarding the liability of counsel to pay damages to their clients for breach of duty or negligence.
In England a distinction was made between barristers and other professional men and for a long time it was in usage that a barrister could not be sued by a client for negligence or breach of duty because a barrister 's services were deemed to be gratuitous and therefore he could not sue or even make a contract for his fees with a client or with a solicitor who represented the client and correspondingly a barrister could not be sued by a client for breach of duty or negligence.
The position is summarised by Prof. Winfield in all the editions of his book on Torts from 1937 onwards as under: "The reason for this exemption is that in theory his services are gratitous, and although that, by itself, is not a sufficient ground for preventing a legal duty from arising in other circumstances, the rule with regard to a barrister is inveterate, whatever be its justification.
" 619 The assumption, however, suffered a setback when the House of Lords enunciated a general principle in Hedley Byrne & Co. Ltd. vs Heller & Partners, [1963] 2 All E.R. 575.
The principle has been enunciated in the speech of Lord Morris of Borth Y Gest as under: "If someone possessed of a special skill undertakes, quite irrespective of contract, to apply that skill for the assistance of another person who relies on such skill, a duty of care will arise.
By reason of this decision, the Court of Appeals in Rondel vs W., [ and the House of Lords in Rondel vs Worsley, [ 1967]3 All E.R. 993 had to rest the immunity of a barrister from being sued for professional negligence in the conduct of a cause on grounds of public policy.
The facts in Rondel 's case were that he was charged for having caused grievous bodily harm to one Manning.
He was not given legal aid but after the case had proceeded for sometime, he was afforded the facility of a "Dock Brief" and he chose a barrister by name, Mr. Worsley to act for him.
The case eventually ended in conviction and the conviction was confirmed by the Appellate Court and Rondel underwent the sentence.
Nearly six years later he issued a writ against Mr. Worsley claiming damages for alleged professional negligence in the conduct of his duty.
The writ was dismissed on the ground that an action against a barrister cannot be maintained on grounds of public policy for alleged negligence on his part in the conduct of the case especially when the action would amount to seeking a review of the correctness of the conviction awarded to Rondel in the earlier proceedings.
In Heywood vs Wellers, ; the plaintiff was held entitled to recover damages from the defendant firm of solicitors for the mental distress which she had suffered as a result of the molestation suffered by the plaintiff consequent on the solicitor 's negligent failure to enforce the injunction obtained against one Reginald Marrion.
In that case, the plaintiff instructed a firm of solicitors to apply for an injunction to restrain one Reginald Marrion from molesting her.
The solicitors obtained an interim injunction on 27th February but when the defendant again molested the plaintiff on 28th April in breach of the injunction, they failed to enforce the injunction by bringing the defendant before the Court.
As a result of the failure to enforce the injunction, the plaintiff was again molested by Marrion on 25th May and on 8th November.
She suffered mental distress in consequence of the molestation committed on those dates.
In an action 620 brought by her against the firm of solicitors, it was held that she was entitled to recover damages as well as the costs incurred by her from the firm of solicitors In Midland Bank Trust Co. Ltd. & Anr.
vs Hett, Stubbs & Kemp, a firm of solicitors was sued for damages for their failure to register a formal agreement as a consequence of which the plaintiff could, not enforce his option under the agreement to purchase the freehold reversion of a farm at a stated price within a period of ten years as the estate had been conveyed to another.
It was held that the solicitors were liable to the plaintiff in tort as they had failed to exercise due care and skill on which they knew the client would place reliance and because of the duty they owed to the client not to injure him by failing to do that which they had undertaken to do.
Re Bell 's Indenture Ben & Anr.
vs Hickley & ors., [1980] 3 All .
R. 425 is yet another case where a solicitor was held liable to replace the misappropriated money of his client as a constructive trustee.
What happened in that case was that money was paid into the firm 's client account in the name of express trustees.
The express trustees misappropriated the money with the solicitors knowledge.
It was held that the solicitor was liable to replace the money as a constructive trustee.
In India, the matter is governed by the .
In the a legal practitioner has been defined as "an advocate, vakil or attorney of any High Court, a pleader, mukhtar or revenue agent.
" The preamble to the reads as follows: "An Act to define in certain cases the rights of legal practitioners to sue for their fees and their liability to be sued in respect of negligence in the discharge of their professional duties.
" Section 2 to 5 are important and hence they are extracted below: Section 2: For the purposes of this Act, unless there is anything repugnant in the subject or context, (a) "legal practitioner" means a legal practitioner as defined in section 3 of the ; And 621 (b) a legal practitioner shall not be deemed to "act" if he A only pleads, or to "agree to act" if he agrees only to plead.
Any legal practitioner who acts or agrees to act for any person may by private agreement settle with such person the terms of his engagement and the fees to be paid for his professional services.
Any such legal practitioner shall be entitled to institute and maintain legal proceedings for the recovery of any fee due to him under the agreement, or, if no such fee has been settled, a fee computed in accordance with the law for the time being in force in regard to the computation of the costs to be awarded to a party in respect of the fee of his legal practitioner.
No legal practitioner who has acted or agreed to act shall, by reason only of being a legal practitioner, be exempt from liability to be sued in respect of any loss or injury due to any negligence in the conduct of his professional duties.
" reading of these sections would go to show that any legal practitioner who acts or agrees to act for any person may settle with the said person the terms of his engagement and the fee to be paid for his professional services; that the legal practitioner will be entitled under law institute and maintain legal proceedings against his client for the recovery of any fee due to him under the agreement or as per the costs taxed by the Court where there has been no pre settlement of the fee; and that no legal practitioner who has acted or agreed to act shall merely by reason of his status as a legal practitioner be exempt from liability to be sued in respect of any loss or injury due to any negligence in the conduct of his professional duties.
Therefore, a legal practitioner cannot claim exemption from liability to be sued in respect of any loss or injury suffered by the client due to any negligence in the conduct of his professional duties merely by reason of his being a legal practitioner.
As to whether Section 2(B) will afford protection to a legal practitioner from being sued for negligence by a client if he only pleads or agrees to plead is a matter for judicial determination in an appropriate case if an occasion arises for it.
For the present we are not expressing any opinion on the matter except to point out that there is a specific provision in the Legal 622 Practitioner 's (Fees) Act setting out that legal Practitioners would also be liable for being sued by their clients if they have been negligent in the performance of their professional duties.
The nature of the controversy in this appeal, as we have stated at the outset itself, does not pertain to these questions.
In conclusion, since we find that the question whether the suit has abated or not can be answered only after the nature of the suit is determined on the basis of the materials placed and the evidence adduced by the parties, the appeal has to be dismissed.
The suit will stand restored to the file of Trial Court for disposal in accordance with law in the light of the guidelines given by us.
Accordingly the appeal is dismissed.
In the circumstances of the case, the parties are directed to bear their respective costs.
S.L. Appeal dismissed.

dataset_name: IN-Abs

summary/full:
% A tenant, Mr. Sequeira, wanted to prefer an appeal to the Supreme Court against an order of the High Court, confirming an order of eviction passed against him in respect of his business premises, and engaged the appellant, an Advocate of the Supreme Court, to file the appeal.
The Advocate/Appellant filed a petition for Special Leave in the Supreme Court.
The petition came up for hearing on 22.11.1971 and was dismissed as withdrawn.
The tenant thereupon filed a suit in the Court of the District Munsiff against the appellant for damages and compensation on the allegations that the appellant had been negligent in rendering professional service and had misconducted himself by filing the appeal after considerable delay, giving misleading information about the filing of the appeal, and withdrawing the appeal instead of canvassing for its admission, and that as a result of the withdrawal of the appeal, he was evicted from his business premises in consequence whereof he had incurred loss of income and business, besides suffering mental agony, worry and loss of reputation.
The plaintiff claimed compensation under various heads.
The appellant filed a written statement, refuting the charges levelled against him in the plaint and disputing the plaintiff 's right to seek damages.
During the pendency of the suit, the plaintiff died and his legal representatives, the respondents in this appeal, filed a petition under order XXII Rule 3(1) of the Code of Civil Procedure for their substitution in the suit for prosecuting the suit further.
The appellant opposed the petition on the grounds inter alia that the suit abated on the death of the plaintiff as per ahe maxim Actio Personalis cum moritur persona.
The Trial Court upheld the objection and dismissed the suit as having abated, but the High Court held otherwise and declared the legal representatives to be entitled to be impleaded and continue the suit.
This appeal was filed by special leave against the order of the High Court.
Dismissing the appeal, the Court, 607 ^ HElD: The High Court which, in deciding the Revision before it, followed Krishan Behari Sen vs Corporation of Calcutta, I.L.R. 31 Calcutta 993, had not followed the correct ratio.
Section 306 of the , which corresponded to section 89 of the Probate and Administration Act, 1881, set out the rights of the Executors and Administrators to continue actions of or against a deceased person.
Section 306 was almost a re production of section 89.
In so far as the rights of a legal representative to proceed with a suit filed by a deceased plaintiff were concerned, order XXII, Rules I and 3(1) governed the matter.
[611C, F] The maxim 'action personalis cum moritur persona ' had been applied not only to those cases where a plaintiff died during the pendency of a suit filed by him for damages for personal injuries sustained by him but also to cases where a plaintiff died during the pendency of an appeal to the Appellate Court, be it the first Appellate Court or the second Appellate Court against the dismissal of the suit by the Trial Court andlor the first Appellate Court, as the case might be.
This was on the footing that by reason of the dismissal of the suit by the Trial Court or the first Appellate Court, as the case might be, the plaintiff stood relegated to his original position before the Trial Court [614G H; 615A ] Though section 306 spoke only of executors and administrators.
and order XXII, Rule 3, Civil Procedure Code, set out the rights of the legal representatives to continue the proceedings instituted earlier by a deceased plaintiff if the right to sue survived, the Courts had taken the view that the legal representatives stood on par with the executors and administrators regarding their right to seek impleadment to continue the suit.
There was unanimity of view among many High Courts regarding the interpretation to be given to the words "other personal injuries not causing the death of the party", occurring in section 306 of the .
Preponderant view taken by several High Courts found acceptance with this Court in Melepurath Sankumari Ezhu Thassan vs Thekittl Geopalankutty Nair, A.l.
It was on account of these factors, the Court expressed its disapproval of the view taken by the High Court in this case.
[615E F, H; 616A B] What now fell for consideration in this case was whether the suit filed by the plaintiff was founded on torts or contract.
In view of the fact that this aspect of the matter had not been considered by the Trial Court, the Court did not think it proper to express any opinion one way or the other as to whether the suit cause of action was founded on torts 608 or contract.
Having regard to the nature of the claim, the Court was not able to comprehend how without any enquiry and recording of evidence the Trial Court and the High Court had proceeded on the basis that the suit claim was based only on tortious liability though the two courts had reached different conclusions about abatment of the suit.
Since no discussion had been made and no finding, rendered on this question and since the Court could not render any finding on the basis of the materials on record whether the suit was based on the personal injuries sustained by the plaintiff or upon the loss suffered by the estate, the Court thought the proper course would be to allow the judgment under appeal to stand even though the Court did not approve the reasoning of the High Court.
The matter was left upon for the trial Court to decide whether the suit was founded entirely on torts or on contract or partly on torts and partly on contract and deal with the matter according to law.
If the entire suit claim was founded on torts, the suit would undoubtedly abate.
If the action was founded partly on torts and partly on contract, then, such part of the claim as related to torts would stand abated and the other part would survive.
If the suit claim was founded entirely on contract, then, the suit had to proceed to trial in its entirety and be adjudicated upon.
[616C; 617G H; 618B d] A legal practitioner could not claim exemption from liability to be sued in respect of any loss or injury suffered by the client due to any negligence in the conduct of his professional duties merely by reason of his being a legal practitioner.
Whether section 2(b) of the , would afford protection to a legal practitioner from being sued for negligence by a client if he only pleaded or agreed to plead, was a matter for judicial determination in an appropriate case.
For the present, the Court did not express any opinion on the matter except pointing out that there was a specific provision in the , saying that the legal practitioners would also be liable to be sued by their clients if they had been negligent in the performance of their professional duties.
In conclusion, since the Court found that the question whether the suit had abated or not could be answered only after the nature of the suit was determined on the basis of the materials placed and the evidence adduced by the parties, the appeal had to be dismissed.
The suit would stand restored to the file of the trial Court for disposal in accordance with law in the light of the guidelines given by the Court in this Judgment.
[621G H;622A C] Krishna Behari Sen vs Corporation of Calcutta, ILR.
31 Calcutta, 993; Rustomji Dorabji vs W.H. Nurse, ILR 44 Madras 357; Motilal 609 Satyanarayan & Anr.
vs Harnarain Premsukh & Anr, ; Palaniappa Chettiar vs Rajah of Ramnad, I.L.R. 49 Madras 208; Irulappa vs Madhava, A.I.R. 1951 Madras 733; Arnuchalam vs Subramanian, A.I.R. 1958 Madras 142; Gopal vs Ram Chandra, ILR XXVI Bombay 597; Maniramlala vs Mtz.
Chalti Bai & Anr., I.L.R. 1938 Nagpur 280; Baboo vs Subanshi, I.L.R. 1942 Nagpur 650; Baboolal vs Ramlal, A.I.R. 1952 Nagpur 408; Punjab Singh vs Ramautar Singh, A.I.R. 1920 Patna 841; Joginder Kaur vs Jagdish Singh, A.I.R. 1964 Patna 548; Ratanlal vs Baboo lal, A.I.R. 1960 Madhya Pradesh 200; G. Jaya Prakash vs State, A.I.R. 1977 Andhra Pradesh 20; D.K. Cassim & Sons vs Sara Bibi, I.L.R. XIII Rangoon 385; Melepurath Sankunni Ezhuthassan vs Thekittil Geopalakutty Nair, ; Hedley Byrne & Co. Ltd. vs Heller & Partners, ; ; Rondel vs W, ; Rondel vs Worsley, [ 1967] 3 All.
E.R. 993; Heywood vs Wellers, [ ; ; Midland Bank Trust Co. Ltd. & Anr vs Hett, Stubles & Kemp, and Re Bell 's Indenture Bell & Anr.
vs Hickley & ors.
, , referred to.


judgement:
Special Leave Petition (Civil) Nos.
12 12A of 1988.
From the Judgment and order dated 18.12.1987 of the Andhra Pradesh High Court in W.A. Nos.
1649 and 1650 of 1987 P.N. Lekhi, M.K. Garg and Lokesh Kumar for the Petitioner.
Kuldeep Singh, Additional Solicitor General and Mrs. A. Subhashini for the Respondents.
The following order of the Court was delivered: O R D E R In response to the queries made by this Court by its order dated January 8, 1988 Shri Kuldeep Singh, learned Additional Solicitor General has furnished the relevant information as under: (1) In the matter of the age of Shri Justice K. Bhaskaran, Chief Justice of the Andhra Pradesh High Court, the advice and comments of the Chief Justice of India were sought in terms of Articles 217(3) of the Constitution of India.
The files containing all the relevant papers were referred to the Chief Justice of India on 28th September, 1987.
(2) The Chief Justice of India on 29th December, 1987 desired to have an opinion as to the effect of the judgment pronounced by the Andhra Pradesh High Court concerning the matter of the age of the Chief Justice Bhaskaran.
The opinion was made available to the Chief Justice of India on 6th January, 1988.
The Chief Justice of India on 11th January, 1988 indicated further course of action in the matter.
The file has been resubmitted to 730 the Chief Justice of India on 16th January, 1988 for his further advice.
(3) A view in the matter will be taken by the President of India after the advice of the Chief Justice of India is made available.
In view of the foregoing, it is clear that the President of India in compliance with Article 217(3) of the Constitution of India has referred the question as to the age of Shri K. Bhaskaran, the Chief Justice of the Andhra Pradesh High Court to the Chief Justice of India for his opinion.
That being so, no writ of mandamus can lie.
The President of India as a constitutional functionary has discharged his duties under Article 217(3) of the Constitution and the decision must rest on the advice of the Chief Justice of India and not the Council of Ministers.
As laid down in the Union of India vs Jyoti Prakash Mitter,.
[1971] 3 SCR at 503 & 504, the matter as to the age of the Chief Justice or a sitting Judge of a High Court is a judicial function of the President of India, which has to be discharged in accordance with the special provisions made under Article 217(3) of the Constitution.
Such a question as to the age of the Chief Justice or a Judge under Article 217(3) of the Constitution is beyond the reach of the Council of Ministers under Article 74 of the Constitution.
J.C. Shah, C.J., speaking for the Constitution Bench has laid down the law in these words: It is necessary to observe that the President in whose name all executive functions of the Union are performed is by article 217(3) invested with judicial power of great significance which has bearing on the independence of the Judges of the Higher Courts.
The President is by article 74 of the Constitution the Constitutional head who acts on the advice of the Council of Ministers. " The question as to the age of Shri K. Bhaskaran, the Chief Justice of the Andhra Pradesh High Court must, therefore, be decided by the President of India on the advice of the Chief Justice of India as enjoined by Article 217(3) of the Constitution in the light of the principles laid down by this Court in Jyoti Prakash Mitter 's, case.
The High Court, in our considered opinion, should have thrown out the petition under article 226 of the Constitution at the very threshold because the President of India was seized with the question under Article 217(3) of the Constitution.
Indeed, it appears from the judgment of the 731 High court that when the learned counsel for the Union of India A informed the Court that the President of India is seized with the question, the counsel for the appellant conceded that the writ of quo warranto is not maintainable.
The special leave petitions are accordingly dismissed.
G.N. Petitions dismissed.

summary/full:
% The appellant raised the question as regards the determination of age of the Chief Justice of Andhra Pradesh High Court, in these Special Leave Petitions filed against the Judgment and order of the Andhra Pradesh High Court dismissing in limine the Writ Appeals against the order of dismissal of the Writ Petitions by a Single Judge of the High Court.
ln the course of the proceedings, this Court, on January 8, 1988, made certain queries to which the Additional Solicitor General furnished information broadly on the following lines: That a view in the matter will be taken by the President of India after the advice of Chief Justice of India is made available, and that all relevant files have been submitted to the Chief Justice of India along with the opinion as to the effect of the judgment pronounced by the Andhra Pradesh High Court.
In view of the information made available, this Court dismissed the Special Leave Petitions and, ^ HELD: 1.
The matter as to the age of the retired Chief Justice or a sitting Judge of a High Court is a judicial function of the President of India, which has to be discharged in accordance with the special provisions made under Article 2l7(3) of the Constitution.
[730C D] 2.
Such a question as to the age of the Chief Justice or a Judge, under Article 217(3) of the Constitution, is beyond the reach of the Council of Ministers under Article 74 of the Constitution.
[730D E] Union of India vs Jyoti Prakosh Mitter, [ 197 l ] 3 SCR 483, followed.
729 3.
Since the President of India, in compliance with Article 2l7(3), has referred the question as to the age of Shri K. Bhaskaran, Chief Justice of Andhra Pradesh High Court, to the Chief Justice of India for his opinion, no Writ of Mandamus can lie.
[730B] 4.
The President of India as a constitutional functionary has discharged his duties under Article 217(3) and the decision must rest on the advice of the Chief Justice of India and not the Council of Ministers.
[730C]


judgement:
N: Criminal Appeal No. 368 of 1986.
From the Judgment and order dated 11.4.1986 of the Calcutta High Court in Crl .
No . 1181 of 1985 .
WITH Criminal Appeals Nos. 251 252 of 1986.
From the Judgment and order dated 26.7.1975 of the Calcutta High Court in Crl.
222 and 448 of 1985.
Dr. Y.S. Chitale and H.K. Puri for the Appellant.
Parijat Sinha for the Respondent in Crl.
A. No. 368 of 1986.
S.K. Kapur, Ranjan Dev and Mrs. Indra Sawhney for the Respondents in Crl.
A. No. 251 252 of 1986.
Tapas Roy and D.K. Sinha for the State of West Bengal.
D.K. Sinha, K.R. Nambiar, Ms. Reba Roy, K.K. Lahitri and Ms Apsi Ditta for the Interveners.
The following order of the Court was delivered O R D E R After hearing Shri S.K. Kapoor, learned counsel appearing for respondent No. 1 in Criminal Appeals Nos.
251 252 of 1986 at quite some length, we are not persuaded to take a view different from the one expressed by this Court in the recent judgment in Baldev Krishna Sahi vs Shipping Corporation of India Ltd. & Anr., [ 1987] 4 SCC 361 overruling the judgment of the Calcutta High Court in Amrit Lal Chum vs Devi Ranjan Jha, as to the scope and effect of sub section
(1) of section 630 of the .
The Court in Baldev Krishna Sahi 's case has placed a beneficent construction on the provisions contained in sub section
(1) of section 630 of the Act 785 and according to it the term 'officer or employee ' in sub section
(1) of section 630 must be interpreted to mean not only the present officers and employees of a company but also to include the past officers and employees of the Company.
It has also taken the view that the words 'any such property ' in cl.
(b) thereof qualify the words 'any property of a company ' appearing in cl.
As observed in Baldev Krishna Sahi 's case, section 630 of the Act plainly makes it an offence if an officer or employee of a company who was permitted to use the property of the company during his employment, wrongfully retains or occupies the same after the termination of his employment.
It is the wrongful withholding of such property, meaning the property of the company after termination of the employment, which is an offence under section 630(l)(b) of the Act.
The construction placed by this Court in Baldev Krishna Sahi 's case is the only construction possible.
There is therefore no warrant to give a restrictive meaning to the term 'officer or employee ' appearing in sub section
(1) of section 630 of the Act as meaning only the existing officers and employees and not those whose employment have been terminated.
The Court in Baldev Krishna Sahi 's case has expressly overruled the judgment of the Calcutta High Court in Amrit Lal Chum vs Devi Ranjan Jha, supra, against which these appeals have been filed and upheld the consistent view to the contrary taken by the High Court of Bombay in a series of cases.
[See Harkishin Lakhimal Gidwani vs Achyut Kashinath Wagh, and Govind T. Jagtiani vs Sirajuddin section Kazi, Accordingly, these appeals must succeed and are allowed with costs.
The judgment of the High Court allowing the applications under section 482 of the Code of Criminal Procedure, 1973 are set aside.
Shri S.K. Kapoor, learned counsel appearing for respondent No. 1 in Criminal Appeals Nos. 251 252 of 1986 and Shri Parijat Sinha, learned counsel for respondent No. 1 in Criminal Appeal No. 368 of 1986 pray for time to vacate the premises in their occupation.
We grant the respondents time till June 30, 1988 to vacate the premises subject to their furnishing the usual undertaking in this Court within four weeks from today.
If there is a failure on the part of the respondents to comply with these conditions, namely, failure to file the said undertaking and/or to vacate the premises within the time allowed, the cases against them i.e. Complaint Case No. 1053/83 in the Court of IIIrd Additional Judicial Magistrate, Alipore, 24 Paraganas and Complaint Case No. 2788/84 in the Court of Special Divisional Judicial Magistrate, Alipore, 24 Paraganas shall continue.
In the event of respondents ' failure to file the undertaking and/or vacate the premises within 786 the time specified, the learned Magistrates shall proceed with the trial of these cases and dispose them of as expeditiously as possible and in any event, not later than October 31, 1988.
The intervention application filed by Tata Iron and Steel Company Limited is not pressed.
N. P.V. Appeals allowed.

summary/full:
% Section 630 of the empowers the court, on the complaint of the Company, or any creditor or contributory thereof, to punish an officer or employee of such company, by levy of fine, if such officer or employee wrongfully obtains possession of, or having obtained possession, wrongfully withholds or knowingly misapplies, the property of the company, and also order him to deliver up or refund, within a stipulated time, such property or, in default, to suffer imprisonment.
In these appeals against the Judgment of the High Court, the question for consideration was as to the scope and interpretation of this provision.
E Allowing the appeals, ^ HELD: Section 630 of the plainly makes it an offence if an officer or employee of a company who was permitted to use the property of the company during his employment, wrongfully retains or occupies the same after the termination of his employment.
It is the wrongful withholding of such property, meaning the property of the company after termination of the employment, which is an offence under section 630(l) of the Act.
[785B C] There is, therefore, no warrant to give a restrictive meaning to the term "officer or employee" appearing in sub section (1) of section 630 of the Act as meaning only the existing officers and employees and not those whose employment has been terminated.
[785C D] Baldev Krishna Sahi vs Shipping Corporation of India Ltd. & Anr., [ 1987} 4 SCC 361, followed.
H 784 [Time granted to respondents till June 30, 1988 to vacate the premises subject to the furnishing of usual undertaking.
In the event of failure to furnish the undertaking and/or vacate the premises within the time stipulated, the cases against the respondents to continue and the trial court to proceed with the trial and dispose them of expeditiously, but not later than 31.10.88.] [785G H; 786A]


judgement:
Civil Appeal No. 2720 of 1972.
From the Judgment and order dated 29/30 8 72 of the Gujarat High Court in Special Civil Appeal No. 315 of 1971.
T.U. Mehta and M.N. Goswami for the Appellant.
Vimal Dave, M.N. Shroff and KMM Khan for the Respondents.
The Judgment of the Court was delivered by KANIA, J.
This is an Appeal against the judgment of a Division Bench of the Gujarat High Court dismissing a writ petition filed by the Appellant herein.
The Appeal has been filed on a certificate of fitness granted by the Gujarat High Court under Article 133(1)(c) of the Constitution.
The main challenge in the writ petition was to the vires of sections 4 and 6 respectively of the Land Acquisition Act, 1894.
That challenge no longer survives in view of the validity of the sections having been upheld by this Court in Manubhai Jehtalal Patel and Anr.
vs State of Gujarat and others, The lands in question are situated at village Bhairav, Taluka Kamrege, District Surat, Gujarat.
The said lands are situated on the bank of the river Tapti which is known for its frequent floods and the lands are covered in Survey No. 2.
The said lands admeasure 1 acre and 39 gunthas.
We propose to refer to the said lands in the aggregate as "the said land".
The said land is also known as the "Maksheshwar Mahadev Land".
The Appellant claims to be the occupant and owner of the entire land comprising in Survey No. 2 which includes the said land.
It may be mentioned that the claim of the Appellant to be the owner and 779 Occupier of the said land is based on his being the senior member of his family but we are not concerned with that question as we propose to proceed on the footing that he is in actual occupation of the said land.
The preliminary notification declaring the intention to acquire the said land was issued under section 4 of the Land Acquisition Act, 1894 and published in the Government Gazette of the State of Gujarat on April 30, 1970.
It was notified that the proposed acquisition was for a public purpose, namely, for extension of the village site of the village Bhairav.
It is common ground that the extension of the village site was required for the purpose of housing 12 families who had been rendered homeless because of floods in Tapti river.
An individual notice under section 4 of the Land Acquisition Act was served on the Appellant on May 2, 1970.
The Appellant filed his objections against the proposed acquisition on May 12, 1970 and filed additional objections on June 20, 1970 and July 6, 1970 respectively.
After consideration and rejection of the said objections, the notification for acquisition of the lands under section 6 of the Land Acquisition Act was issued on December 8, 1970.
Notices under section 9 of the Land Acquisition Act were issued on January 8, 1971.
The said acquisition was challenged by the Appellant in the writ petition on various grounds.
The main ground on which the said acquisition was challenged in the writ petition was that the provisions of sections 4 and 6 respectively of the Land Acquisition Act were ultra vires the Constitution of India.
That challenge, as we have already pointed out, has been finally negatived by this Court.
In view of this, Mr. Mehta fairly conceded that the vires of sections 4 and 6 of the Land Acquisition Act could no longer be called in question before us.
It was, however, pointed out by him that the said notification was also challenged on some other grounds.
It was contended by Mr. Mehta that under the provisions of the Bombay Land Revenue Code, 1879, it must be established that the lands in the existing village site are insufficient for the extension of the village site before any acquisition can be resorted to.
It was submitted by Mr. Mehta that before the said land could be acquired for the afforested public purpose, the revenue authorities should have satisfied themselves that there were no unoccupied lands in the village which were suitable, appropriate and available for the extension of the village site or abadi and since that has not been done, the acquisition could not said to be for a public purpose.
Mr. Mehta sought support for these submissions from the decision of a Division Bench of the Nagpur Bench of the Bombay High Court in Chandrabhagabai Undha 780 orao and others vs Commissioner, Nagpur Division, Nagpur & Ors.
,[1962] Nagpur Law Journal, Vol.
XLV at p. 466.
It was held in that case that the provisions of section 226 of the Madhya Pradesh Land Revenue Code require that the Deputy Commissioner of the District or any other person authorised under law by him must record a finding that the village abadi is insufficient and that there is no other unoccupied land suitable for the purpose of extension of the village abadi before land could be compulsorily acquired for that purpose.
The decision as to the sufficiency or otherwise of the land in the abadi must be taken by the Deputy Commissioner.
The Land Acquisition officer cannot substitute his opinion for that of the Deputy Commissioner in purporting to comply with the provisions of section 226.
Reliance was also placed by Mr. Mehta on the decision of a Division Bench (Nagpur) of the Bombay High Court, in Sitaram Maroti vs State of Maharashtra, [1963] 65 Bombay Law Reporter, 241 which is to the same effect as the aforesaid decision and, in fact, follows it.
It was submitted by Mr. Mehta that the provisions of section 226 of the Madhya Pradesh Land Revenue Code were substantially similar to the provisions of section 126 of the Bombay Land Revenue Code which is really the provision applicable to the lands in question before us.
We are totally unable to accept the submission of Mr Mehta that the provisions referred to above are in pari materia.
Section 226 of the Madhya Pradesh Land Revenue Code provides as follows: "226.
(1) Where the area reserved for abadi is in the opinion of the Deputy Commissioner insufficient, he may reserve such further area from the unoccupied land in the village as he may think fit.
(2) Where unoccupied land for purposes of abadi is not available, the State Government may acquire any land for the extension of abadi and the Deputy Commissioner shall dispose of such land on such terms and conditions as may be prescribed.
(3) The provisions of the Land Acquisition Act, 1894 shall apply to such acquisition and compensation shall be payable for the acquisition of such land in accordance with the provisions in that Act." A perusal of the said section shows that before the State Government 781 acquires any land for extension of abadi, the Deputy Commissioner has to give his opinion that the area reserved for abadi in the village in question in insufficient.
A reading of sub section (2) of the said section shows that it is only where unoccupied land for the purpose of abadi is not available, that the State can acquire any land for extension of abadi.
Sub section (3) merely makes the provisions of the Land Acquisition Act applicable to the procedure for acquisition and for determining the compensation.
The provisions of section 126 of the Bombay Land Revenue Code, 1879 read altogether differently.
The said section runs as follows: "126.
Limits of sites of villages, towns and cities how to be fixed.
It shall be lawful for the Collector or for a survey officer, acting under the general or special orders of the State Government, to determine what lands are included within the site of any village, town, or city, and to fix, and from time to time to vary the limits of the same, respect being had to all subsisting rights of landholders.
" A perusal of section 126 of the Bombay Land Revenue Code shows that unlike section 226 of the Madhya Pradesh Land Revenue Code, there is nothing in section 126 which indicates that the Collector or a Survey officer acting under his orders has to first decide to enlarge or vary the site of any village, town or city before acquisition is resorted to for enlarging or varying such site under the Act.
Section 126 merely deals with the limits of the site of any village, town or city and prescribes the procedure for fixing the limits of such sites.
There is nothing in the Bombay Land Revenue Code or the Land Acquisition Act which would suggest that before acquisition can be resorted to for enlarging a village site, the Collector or a Survey officer or Revenue Authority must decide upon such enlargement.
Great emphasis was laid by Mr. Mehta on the last part of section 126 which shows that the enlargement of the site has to be made, keeping in mind the rights of the landholders.
However, in our opinion, this factor is of no relevance in the present case as there is nothing on record to establish that such rights have not been taken into account.
The next submission of Mr. Mehta was that the land acquisition authorities have failed to consider what were the other lands available which could have been more conveniently acquired for the public purpose referred to earlier.
It was pointed out by him that in the writ petition, the Appellant (petitioner) has alleged that he could have 782 pointed out certain other lands and open spaces where the twelve families rendered homeless by the floods of Tapti river could have been housed.
With reference to these allegations, the Respondents in their counter affidavit filed before the Gujarat High Court have rightly pointed out that the Appellant had not given any details regarding other more suitable lands available for acquisition and hence it was not open to him to make a grievance on that score.
Moreover, in paragraph 29 of the counter affidavit, the Respondents have pointed out that the lands referred to by the Appellant in his petition were not suitable for housing the victims of the floods because they were lowlying lands lands and not suitable for residential purposes.
The assessment of suitability of the land proposed to be acquired for the concerned public purpose is primarily for the Land Acquisition officer consider and no good reason has been shown to us which could warrant interference with his decision.
Moreover, we are satisfied that the Appellant had not even given proper particulars of the other lands which, according to him, were available for acquisition and were more suitable for acquisition and hence he can make no grievance on the score of proper consideration not having been given to the question of acquiring such lands.
It was lastly submitted by Mr. Mehta that since several years had passed from the date of the Notification under section 4, the victims of the floods must have been housed and rehabilitated elsewhere and hence the public purpose for which the lands were sought to be acquired does not survive.
We are a little surprised at this argument.
The delay has taken place on account of the legal proceedings adopted by the Appellant himself and by reason of the interim orders obtained by him.
He cannot take advantage of this delay and claim that the public purpose no longer survives.
Moreover, the public purpose stated in the Notification is the extension of a village site or goathan of the village Bhairav and there is nothing to show that this public purpose has exhausted itself.
In fact, we presume, on account of the increasing population, it will be more necessary today that the village site should be extended even then it was the time when the notification was issued.
This submission must also fail.
The other controversies sought to be raised by the Appellant are factual in nature and we do not consider it necessary to go into the same.
In the result, the Appeal fails and is dismissed with costs.
N.V.K Appeal dismissed.

summary/full:
% The lands of the appellant were situated on the banks of the river Tapti known for its frequent floods.
They were sought to be acquired under the Land Acquisition Act, 1894.
The preliminary notification declaring the intention to acquire the said land was issued under section 4 of the act and published in the Government Gazette on April 30, 1970.
It was notified that the proposed acquisition was for the public purpose for extension of the village site for the purpose of housing 12 families who had been rendered homeless because of floods in the Tapti river.
An individual notice under section 4 of the Act was served on the Appellant on May 2, 1970.
He filed his objections against the proposed acquisition on May 12, 1970 and filed additional objections on June 20, 1970 and July 6, 1970 respectively.
After the consideration and rejection of the said objections, the notification of the lands under section 6 was issued on December 8, 1970.
Notices under section 9 were issued on January 8, 1971.
The appellant challenged the aforesaid acquisition in a writ petition in the High Court on various grounds, the main ground being that the provisions of sections 4 and 6 of the Act were ultra vires the Constitution.
The High Court dismissed the petition, but granted a certificate of fitness under Article 133(t)(c) of the Constitution. 777 In the appeal to this Court on behalf of the appellant it was conceded: (1) that the vires of sections 4 and 6 could no longer be called in question, but it was submitted that (t) under the provisions of the Bombay Land Revenue Code, 1879 it must be established that the lands in the existing village site are insufficient for the extension of the village site before any acquisition can be resorted to, (2) the land acquisition authorities had failed to consider what were the other lands available which could have been more conveniently acquired, and (3) since several years have passed from the date of the Notification under section 4, the victims of the floods must have been housed and rehabilitated elsewhere and hence the public purpose for which the lands were sought to be acquired does not survive.
Dismissing the Appeal the Court, ^ HELD: t.
The challenge to the vires of sections 4 and 6 of the Land Acquisition Act, 1894 no longer survive in view of the validity of the sections having been upheld by this Court in Manubhai Jehtalal Patel and Anr.
vs State of Gujarat and others, ]983 4 SCC 553.
[778F] 2.
Section 126 of the Bombay Land Revenue Code merely deals with the limits of the site of any village, town or city and prescribes the procedure for fixing the limits of such sites.
There is nothing in the Bombay Land Revenue Code or the Land Acquisition Act which would suggest that before acquisition can be resorted to for enlarging a village site, the Collector or a Survey officer or Revenue Authority must decide upon such enlargement.
[781E F] Chandrabhagabai Udhaorao and others vs Commissioner, Nagpur Division, Nagpur Ors., [1962] Nagpur Law Journal, Vol.
XLV at p. 466 and Sitaram Maroti vs State of Maharashtra, [1963] 65 Bombay Law Reporter, 241 distinguished.
The assessment of suitability of the land proposed to be acquired for the concerned public purpose is primarily for the Land Acquisition officer to consider, and no good reason has been shown on behalf of the appellant which could warrant interference with his decision.
Moreover, the appellant had not even given proper particulars of the other lands which, according to him, were available and were more suitable for acquisition and hence he can make no grievance on the score of proper consideration not having been given to the question of acquiring such lands.
[782BC D] 778 4.
The delay in the acquisition has taken place on account of the legal proceedings adopted by the Appellant himself and by reason of the interim orders obtained by him.
He cannot take advantage of this delay and claim that the public purpose no longer survives.
Moreover, the public purpose stated in the Notification is the extension of a village site or goathan of the village Bhairav and there is nothing to show that the public purpose has exhausted itself.
In fact, on account of increasing population, it would be more necessary today that the village site should be extended even then it was at the time when the notification was issued.[782E F]