judgement:
N: Writ Petition (Crl.)No. 54 of 1989.
(Under Article 32 of the Constitution of India).
T.U. Mehta and S.C. Patel for the Petitioner.
S.K. Dholakia, M.N. Shroof and Ms. Hemantika Wahi for the Respondents.
The Judgment of the Court was delivered by RANGANATH MISRA, J.
The Commissioner of Police, Ahmedabad by his order dated 26.12.1988, directed the deten tion of the petitioner under section 3(2) of the Gujarat Prevention of AntiSocial Activities Act, 1985 (hereinafter referred to as 'the Act ').
The petitioner was taken into custody under the order on that very day.
The material portion of the order of detention stated: "WHEREAS, I.S.N. Sinha, Commissioner of Police, Ahmedabad City, am empowered in this behalf by the Government of Gujarat by its order, Home Department No. G.G./155/SB IV/PASA/1085/1191 dated 28.5.1985 under sub section (2) of section 3 of the Gujarat Pre vention of Anti Social Activities Act, 1985.
AND WHEREAS, I am satisfied with respect to person known as Shri Ahmed hussain @ Kalio Shaikhhussain Shaikh resident of Dariyapur, Bukhari Mohallo, Ahmedabad City, that with a view to preventing him from acting in any manner prejudicial to the maintenance of public order in the area of Ahmedabad City, it is necessary to make an order directing that the said Shri Ahmedhussain @ Shaikhhus sain Shaikh be detained.
NOW, THEREAFTER, in exercise of the powers conferred by sub section (1) of section 3 of the Gujarat Prevention of Anti Social Activities Act, 1985, I, S.N. 180 Sinha, Commissioner of Police, Ahmedabad City hereby direct that the said Shri Ahmedhussain @ Kalio Shaikhhussain Shaikh be detained.
" The grounds communicated to the petitioner under section 9(1) of the Act alleged that the petitioner was conducting anti social activities of illegally storing indigenous and foreign liquor in his possession and was selling it by himself and through his men in the area of Dariyapur and three prosecutions had been launched against him under the Bombay Prohibition Act of 1949.
From the particulars it appeared that one case was pending in court while the other two were under investigation.
The detaining authority there after stated: "Thus on careful study of the above said complaints and entire papers with the propos al, it is found that you are a prohibition 'bootlegger ' and are conducting anti social activities of selling indigenous and foreign liquor illegally.
You and your companions beat the innocent citizens of the above stated area in public and create an atmosphere of fear and terror for continuing your criminal anti social activities.
Moreover, you and your companions are creating atmosphere of fear by beating the innocent citizens, threaten them to kill while passing through that area by showing dangerous weapons suspecting them to be the informants of the police.
The customers of your adda in drunken condition play mis chief, and beat the persons in open; people residing there have fear and terror is spread in the said area.
Moreover, you beat those who oppose your bringing the quantity of wine and you threaten to kill and you create an atmos phere of fear and terror.
Because of such activities, the citizens residing in the above stated area have fear of damage to their property and the safety for themselves.
Thus you become an obstructionist in the mainte nance of public order.
The citizens residing or doing their trade in the said area have stated the facts corroborating your above stated criminal anti social activities as a result of which you become obstructionist in the maintenance of public order.
Such incidents have been stated in detail.
The copies of the statements thereof are given to you herewith".
Reference was made to a previous order of detention of July 12, 1987, 181 which was set aside by the High Court on 3.12.1987 and to the fact that notwithstanding the previous detention, the petitioner continued to carry on his criminal and anti social activities affecting maintenance of public order.
In the grounds it was further stated: "I had also considered to prevent your anti social activities of selling wine by taking action u/s 93 of the Prohibition Act.
But according to the provision of section 93, only surety for good conduct can be taken.
I am fully satisfied that even if you give the surety for good conduct, you will not obey the same.
Looking to your activities uptil now, I feel that you will not obey the same.
So I do not think it possible to prevent your such anti social activities immediately by taking action against you under section 93 of the Prohibition Act.
I had considered to take action against you u/s 57(c) of the Bombay Police Act for your externment.
But under the provision of section 57(c), three convictions within a period of three years under the Prohibition Act are necessary.
In your case, of the cases which are registered against you under the Prohibition Act, one is pending in the Court and two cases are pending for police investi gation.
In your case there is no such convic tion; so it is not possible under the law to take action against you u/s 57(c) for extern ment.
I had also considered to take pro ceeding against you u/s 56B of the Bombay Police Act for externment: but if the proceed ings u/s 56B of the Bombay Police Act are taken against you, first of all show cause notice is required to be given to you u/s 59(1) of the Bombay Police Act.
Then such order can be passed only after giving you full opportunity to defend by examining your de fence witnesses.
Even if such order is passed against you, you can go in appeal against the externment u/s 60 of the said Act and the possibility of granting stay to you cannot be avoided.
So a long time is taken in the pro ceedings of externment u/s 56B and during this period you may continue your anti social activities and there are all chances that you become obstructionist in the maintenance of public order; so it is not possible to prevent your anti social activities immedia 182 tely by taking action u/s 56B and I do not think proper to take action against you u/s 56B.
You and your companions of Dariyapur Kalupur are keeping dangerous weapons and making conspiracy to beat the innocent persons and because of your activi ties an atmosphere of fear and terror is spread in the said area and people have fear of safety for themselves and damage to their property.
Because of your such activities you have become obstructionist to the maintenance of public order and because of your such activities the atmosphere of public order has been disturbed.
Thus considering all the above facts, I am fully satisfied that you are a prohibition boot legger and you are conducting anti social activities of selling indigenous and foreign liquor and you are creating an atmosphere of fear and terror by beating innocent persons in public and threaten them to kill by keeping dangerous weapons in the above stated area and you are conducting activity of selling the wine in person or through your persons.
Action under the ordi nary law has been taken for preventing your such activities.
At present you are in jail under the Prohibition Act . .
There is every possibility that you will be bailed out by giving surety by the Court because this offence is bailable.
It is quite possible that you may continue your criminal anti social activities after release on bail from court . .
As it has become necessary to prevent your anti social activities to prevent the same as there is no other alternative and as the last alternate I pass the order to take you in detention under the said Act.
" A list of documents relied upon by the detaining author ity was appended to the grounds and the said list is Annex ure D to the petition.
The detaining authority has filed his affidavit in support of the order of detention.
In paragraph 7 of such affidavit the deponent has stated: "With reference to paragraph 7 of the peti tion, I submit that the averments made therein are absolutely wrong in view of the fact that the petitioner has not 'been wrongly involved by me under the P.A.S.A. Act.
It is only on 183 perusal of the relevant record which has been supplied to the petitioner and after consider ing the prognosis about the futuristic activi ties of the petitioner, I was subjectively satisfied that it is necessary to detain the petitioner preventively under the provisions of the P.A.S.A. Act with a view to preventing him from indulging in like activities and, therefore, the impugned order was passed by me".
In paragraph 8(c)of the counter affidavit the detaining authority has further stated: "I further submit that so far as the petition er 's detention in the year 1987 is concerned, it is true that the Hon 'ble Gujarat High Court had directed the authorities to release the petitioner and the said fact has already been clearly mentioned in the grounds of detention.
I further submit that since the Hon 'ble Guja rat High Court had passed the order, the order being judicial one, I have nothing to comment on it.
However, I submit that there is no nexus between the order of the Hon 'ble High Court in that petition and the facts of the present case and, therefore, the judicial pronouncement by the Hon 'ble Gujarat High Court has no application whatsoever to the facts of the present case.
Since the present order is passed on totally fresh grounds which are sufficient enough to give subjective satisfaction to me for the purpose of passing the order of detention . .
I further submit that the fact that the petitioner was earlier detained and the fact that the order of detention was quashed by the Hon 'ble Guja rat High Court was considered by me and that has also been mentioned in the grounds of detention . . " The Bombay Prohibition Act of 1949 is in force in the State of Gujarat and prohibition is in force in this State.
We have extracted a substantial portion of the grounds of detention communicated to the petitioner to show how helpless the authorities feel in the matter of enforcing prohibition within the State.
Obviously neither the Prohibi tion Act nor the other statutes referred to by the detaining authority could be called in aid to meet the requirements of the situation.
On his own showing, afraid of the petitioner being released on bail and resorting to anti social activi ties, and with a view to ensuring his detention in jail the impugned order has been made.
184 The satisfaction of the detaining authority is not open to judicial review but as has been pointed out by several Constitution Bench decisions of this Court a citizen is entitled to protection within the meaning of Article 22(5) of the Constitution of the procedural guarantees envisaged by law.
The Court frowns upon any deviation or infraction of the procedural requirements.
That in fact is the only guar antee to the citizen against the State 's action of preven tive detention.
The fact that the detenu was in jail at the time the order of detention was made and the possibility of his release from jail being made a ground of detention was not approved of by this Court in Rarnesh Yadav vs District Magistrate, Etah & Ors., and Binod Singh vs District Magistrate, Dhanbad, Bihar & Ors., ; In Smt.
Shashi Aggarwal vs State of U.P. & Ors., A.I.R. , this Court pointed out: "Every citizen in this country has the right to have recourse to law.
He has the right to move the court for bail when he is arrested under the ordinary law of the land.
If the State thinks that he does not deserve bail the State could oppose the grant of bail.
He cannot, however, be interdicted from moving the court for bail by clamping an order of detention.
The possibility of the court grant ing bail may not be sufficient.
Nor a bald statement that the person would repeat his criminal activities would be enough.
There must also be credible information or cogent reasons apparent on the record that the dete nu, if enlarged on bail, would act prejudi cially to the interest of public order.
" We may now refer to two decisions of this Court under the present Act.
In the case of Abdul Razak Abdul.
Wahib Sheikh vs Shri S.N. Sinha, 'Commissioner of Police, Ahmeda bad & Anr., J.T. it has been held that the detaining authority must disclose in a case where the detenu is already in jail that there is cogent and relevant materi al constituting fresh facts to necessitate making of an order of detention.
In that case, as here, the detenu was in jail in connection with a criminal case and the order of detention was served on him in jail.
The detenu 's mere complicity in earlier incidents was not considered adequate and the detention under the Act was set aside.
In the case of Ramesh vs State of Gujarat & Ors., J.T. , an order of detention under the Act was under challenge.
The Court found that referring to incident which constituted the subject matter of an earlier 185 order of detention vitiated the impugned order.
Apart from these, in the instant case, the material disclosed is quite vague with reference to the persons affected or victimised as also the time and place of such victimisation.
This Court has on several occasions indicated that there is a wide gap between law and order and public order.
The criminal offence may relate to the filed of law and order but such an offence would not necessarily give rise to a situation Of public order.
Depending upon peculiar situations an act which may otherwise have been overlooked as innocuous might constitute a problem of public order.
Selling of liquor by the petitioner would certainly amount to an offence under the Prohibition Act but without some thing more would not give rise to problem of public order.
Similarly commission of any other criminal offence even assault or threat of assaUlt would not bring the matter within the ambit of public order.
Disclosure of adequate facts to enable a full and ade quate representation to the Preventive Detention Board is one of the positive guarantees within the scope of Article 22(5) of the Constitution.
In A.K. Roy 's case, a Constitution Bench of this Court indicated that full est disclosure of material should be made to enable the representation to be effective.
In the present case the grounds which we have extracted show that the allegations are more or less vague and have the effect of making it difficult for the petitioner to make an adequate representa tion.
Four witnesses had deposed against the petitioner.
Their statements were supplied to the petitioner without disclos ing their names.
It is the stand of the respondent that if the names were disclosed the witnesses were likely to be bodily injured or even eliminated.
There may be certain situations where the disclosure has to be with held but in view of the infirmities already indicated it is not neces sary for us to examine whether in the facts of the present case such withholding would not by itself vitiate the order of detention.
We are satisfied that the impugned order cannot be sustained.
Accordingly, we quash the order and direct that the petitioner be set at liberty forthwith.
It is perhaps necessary to indicate that the provisions of the Prohibition Act of 1949 or the Bombay Police Act should be suitably amended to meet the requirements of society.
Even if the provisions under those Acts are made stringent the person proceeded against has 186 the benefit of a trial or a regular hearing and pursuing an appeal against adverse orders, but in a case of preventive detention trial is avoided and liberty of a citizen is taken away without providing a right to defend himself.
The grounds provided by the detaining authority have clearly exhibited a sense of helplessness to meet the requirement of the situation; that, however, is a matter for the Legisla ture and the Administration to consider but the Court has to zealously guard enchroachments on the liberty of the citi zen.
R.S.S. Petition allowed.

summary/full:
The petitioner was directed to be detained under section 3(2) of the Gujarat Prevention of Anti social Activities Act, 1985.
In the grounds of detention it was alleged that the petitioner was conducting anti social activities of illegally storing indigenous and foreign liquor in his possession and selling it by himself and through his men and that he and his men beat innocent citizens thereby creating an atmosphere of fear and terror and he had thus become obstructionist in the maintenance of public order.
Reference was made to a previous order of detention which had been set aside by the High Court, and to the fact that notwithstand ing the previous detention, the petitioner continued to carry on his criminal and anti social activities affecting maintenance of public order.
It was further stated in the grounds that the detaining authority had considered taking action against the petitioner section 93 of the Prohibition Act for good conduct, and under sections 56B and 57(c) of the Bombay Police Act for his externment, but all these steps were either found not feasible or adequate.
It was then stated that there was a possibility of the petitioner, who was in jail, being released on bail and continuing his criminal activities, and to prevent the same there was no other alternative except to pass the order of detention.
Allowing the writ petition and quashing the order of detention this Court, HELD: (1) The satisfaction of the detaining authority is not open to judicial review but a citizen is entitled to protection within the meaning of Article 22(5) of the Con stitution of the procedural guarantees envisaged by law, and the Court frowns upon any deviation or infraction of the procedural requirements.
[184A B] (2) The fact that the detenu was in jail at the time the order of 178 detention was made and the possibility of his release from jail being made a ground of detention is not approved of by this Court.
[184C] Ramesh Yadav vs District Magistrate, Etah, ; Binod Singh vs District Magistrate, Dhanbad, Bihar & Ors., ; and Smt.
Shashi Aggarwal vs State of U.P., ; , referred to.
(3) The detaining authority must disclose in a case where the detenu is already in jail that there is cogent and relevant material constituting fresh facts to necessitate making of an order of detention.
[184F] Abdul Razak Abdul Wahib Sheikh vs Shri S.N. Sinha, Commissioner of Police, Ahmedabad & Anr.,, J.T. and Ramesh vs State of Gujarat, J.T. , referred to.
(4) There is a wide gap between law and order and public order.
The criminal offence may relate to the field of law and order but such an offence would not necessarily give rise to a situation of public order.
Depending upon peculiar situations, an act which may otherwise have been overlooked as innocuous might constitute a problem of public order.
Selling of liquor by the petitioner would certainly amount to an offence under the Prohibition Act but without some thing more would not give rise to a problem of public order.
Similarly commission of any other criminal offence even assault or threat Of assault would not bring the matter within the ambit of public order.
[185B C] (5) Disclosure of adequate facts to enable a full and adequate representation to the Preventive Detention Board is one of the positive guarantees within the scope of Article 22(5) of the Constitution.
In the present case the grounds of detention show that the allegations are more or less vague and have the effect of making it difficult for the petitioner to make an adequate representation.
[185D E] A.K. Roy 's case, , referred to.
(6) The grounds of detention show how helpless the authorities feel in the matter of enforcing prohibition within the State.
[186B] (7) It is perhaps necessary to indicate that the provi sions of the Prohibition Act of 1949 or the Bombay Police Act should be suitably amended to meet the requirements of society.
Even if the provisions under those Acts are made stringent the person proceeded against has the benefit of a trial or a regular hearing and pursuing an appeal 179 against adverse orders, but in a case of preventive deten tion trial is avoided and liberty is taken away without providing a right to defend himself.
[185H; 186A]


judgement:
ivil Appeal Nos.
3986 3987 of 1989.
From the Judgment and Order dated 23.3.1989 and 6.4.1989 of the Calcutta High Court in Appeal No. 69 1 of 1988 and Admiralty Suit No. 6 of 1985 respectively.
Dr. Shanker Ghosh, C.R. Addy, A.K. Sil, G. Joshi and Mrs. Urmila Narang for the Appellants.
M.K. Ramamurthi, H.L. Tiku and Ashok Grover for tne Respondents.
190 The Judgment of the Court was delivered by VERMA, J.
Is omission of the witness ' signature on his deposition recorded on commission, as required by Rule 4 of Chapter XXII of the Calcutta High Court Rules, 1914, ap plicable to the Original Side, a defect fatal to the recep tion of the deposition in evidence even when the correctness and authenticity of the deposition is undisputed? Subject to the preliminary objection raised by Shri M.K. Ramamurthi, learned counsel for the respondents, this is the main point for decision on merits to be answered with reference to Rule 4 of Chapter XXII of the Calcutta High Court Rules, 1914, applicable to the Original Side.
The Calcutta High Court has held this defect to be fatal and accordingly excluded the entire oral evidence of the defendants recorded on commis sion resulting in the suit being decreed in plaintiffs ' favour on the unrebutted testimony of the plaintiffs.
Cor rectness of this view is assailed before us.
A foreign vessel M.V. "Vali Pero" sailing under the Greek flag arrived at the port of Calcutta on April 20, 1985; 10 nOn Greek seamen on board that ship filed a suit on August 2, 1985 in the admiralty jurisdiction of the Calcutta High Court for recovery of approximately Rs. 15.40 lacs claimed as their dues from the owners of the vessel; deposi tions of the defendants ' witnesses were recorded on commis sion and submitted to the learned single Judge trying the suit who closed the case on 24.12.1987 for pronouncing judgment on 12.1.1988; before delivery of judgment on 10.8.1988 objection was raised on behalf of the plaintiffs to reception in evidence of the depositions of the defend ants ' witnesses examined on commission on the ground of absence of witness ' signature on the deposition; the objec tion was upheld by the learned single Judge as also by a Division Bench in a Letters Patent Appeal; and the suit has been decreed on 6.4.1989 on the unrebutted evidence of plaintiffs.
In the meantime, one of the plaintiffs is stated to have died while another is alleged to be critically ill; and on the 'other hand, the vessel continues to be detained at the Calcutta Port even after the owners have furnished the security demanded from them by interim orders in the suit.
Even at the risk of this description being labelled as oversimplification, this is the scenario of the forensic battle in which the point raised has to be decided.
We may add that this is not the first journey to this Court of this litigation by special leave during the trial of the suit.
191 Both the Special Leave Petitions are by the defendants, owners of the vessel.
One Special Leave Petition is against the judgment dated 23.3.1989 of the Division Bench of the High Court affirming the order dated 10.8.1988 of the learned single Judge excluding the defendants ' oral evidence recorded on commission for the above defect.
The other Special Leave Petition is directed against the judgment and decree dated 6.4.1989 of the learned single Judge decreeing the plaintiffs ' suit after exclusion of defendants ' entire oral evidence.
Petitioners urged that filing of an appeal under the Letters Patent against the judgment and decree in the suit was futile in view of the earlier Division Bench judgment dated 23.3. 1989 on the main point in controversy even in respect of the final decision.
The preliminary objection of Shri Ramamurthi is that the first Special Leave Petition, apart from arising out of an interlocutory order which does not justify its entertain ment, is also now infructuous after decision of the suit itself in which that interlocutory order was made.
The other Special Leave Petition should not be entertained, according to Shri Ramamurthi, because it circumvents the statutory internal appeal under the Letters Patent to the Division Bench of the High Court.
Shri Ramamurthi contended that this Court should not, therefore, entertain either of these petitions for grant of special leave under Article 136 of the Constitution, even though the powers are fairly wide on account of which he does not contend that they are not maintainable.
We shall first dispose of the preliminary objection of Shri Ramamurthi.
He has very fairly stated that he does not challenge the maintainability of these petitions but only assails their entertainability under Article 136.
In our considered opinion pragmatism and assurance of shortening this unduly protracted litigation are by themselves suffi cient and eloquent reasons to grant leave in these matters and to decide the above question on merits forthwith instead of deferring that decision to a later date.
Technically, Shri Ramamurthi is right that ordinarily special leave need not be granted where remedy of a statutory appeal being available has not been exhausted.
However, m the particular facts of this case when the decision in Letters Patent Appeal appears to be a forgone conclusion, the appropriate course which commends to us is to grant leave and decide the matter straightaway instead of deferring that decision to a later stage after exhaustion of the futile remedy of Letters Patent Appeal in the High Court.
We may at this stage also mention the argument based on res 192 judicata addressed to us.
The point raised is: whether the decision by a Division Bench of the High Court affirming the learned single Judge 's order excluding the depositions from evidence will bar a fresh adjudication of that point in the Letters Patent Appeal filed against the final decision in the suit? In our opinion, this academic exercise iS unneces sary in the present case since it cannot be doubted that irrespective of the question of res judicata, earlier deci sion on the same point by a Division Bench of the High Court will atleast be a binding precedent when the matter is reagitated before the Division Bench hearing the appeal against the final decision in the suit.
In such a situation directing the resort to the remedy of an appeal under the Letters Patent against the final decision in the suit will needlessly delay decision of the point by this Court.
We are, therefore, of the opinion that, in the present case, it is neither necessary to decide the question of res judicata argued before us nor would it be appropriate to refuse leave and direct the petitioner to first exhaust the remedy of an appeal under the Letters Patent in the High Court.
We, accordingly, proceed to decide the point involved on merits.
Leave granted.
Having heard learned counsel for the parties, we have formed the opinion that the High Court was in error in excluding from evidence the depositions of the appellants ' witnesses recorded on commission and in proceeding to decide the suit on that basis.
The matter will, therefore, have to go back to the High Court for a fresh decision of the suit treating these depositions as evidence in the suit.
In view of this conclusion reached by us, we shall mention only the facts necessary for deciding the main controversy at this stage relating to the construction of Rule 4 of Chapter XXII of the Calcutta High Court Rules, 1914, applicable to the Original Side.
In the above Admiralty Suit No. 6 of 1985, the appel lants (defendants in the suit) filed an application on February 6, 1987 for examining their two witnesses, Mr. A. Kappos and Mr. Parakis, on commission at the Greek Embassy in New Delhi.
The respondents ' (plaintiffs in the suit) evidence was concluded on February 23, 1987.
On February 25, 1987, the learned single Judge trying the suit directed issue of a commission for examination of the appellants ' two witnesses on commission at the Greek Embassy at New Delhi and Mr. B.C. Kundu, Advocate of the Alipore Bar was appoint ed the Commissioner for this purpose.
The Commissioner commenced recording the depositions of these witnesses at New Delhi on May 1, 1987 and concluded it 193 on May 4, 1987.
The deposition of each witness was signed by the Commissioner after being read over to the witness who admitted it to be correct.
However, the signature of the witness was not taken on the deposition.
The Commissioner settled the minutes in a meeting with counsel for parties in which the depositions recorded on commission were admitted to be correct and counsel for the parties signed the minutes in token of their acceptance.
The minutes are as under: "A meeting was held this afternoon dated 15th May, 1987 at 4.15 P.M. at lB, Old Post Office St., Calcutta I to furnish the report of the Commission.
Members present: Mr. Taimur Hossain Advocate on behalf of the plaintiffs Mr. A.K. Auddy Advocate (Sandersons & Morgans) on behalf of the defendant Mr. B.C. Kundu A list of Exhibits as also copies of deposi tions recorded at Greek Embassy, New Delhi were given to the parties.
No amendment or correction was suggested in the deposition by either of the parties.
The Report of the Commissioner would be submitted on Monday, the 15th May, 1987.
Illegible Commissioner Appointed by the Hon 'ble High Court vide order dated 25.2.87 sd/ Md. Taimur Hossain Advocate for the plaintiffs 194 sd/ A.K. Auddy Advocate 15.5.87 Received a copy Sig.
Illegible Recd.
a copy of the minutes.
sd/ A.K. Auddy.
" The Commissioner then submitted his report along with the depositions recorded by him in a sealed cover to the Registrar (Original Side) of the High Court.
The parties also filed written submissions in the court treating these depositions as evidence in the suit and on December, 1987 the learned trial Judge recorded the proceedings as under: "The Court: Deposition including the documents taken on commission are formally tendered in Court by the learned Advocate appearing for the defendant (in a sealed cover).
Both the parties have submitted their written argument in Court earlier.
Let this suit appear in the List on 12.1.1988 at 3 P.M. marked "For Judg ment".
" It is clear that till closing of the suit for judgment, no objection was raised on behalf of the respondents to inclusion of the depositions of appellants ' witnesses exam ined on commission in evidence of the suit.
Somehow the judgment was not delivered on 12.1.1988 and even thereafter for quite some time and the learned single Judge then made an order releasing the suit.
This led to a special leave petition in this Court by the respondents and an order was made by this Court requesting the learned single Judge trying the suit to dispose of the suit on merits instead of releasing it.
It was then on 10.8.1988 that respondents ' (plaintiffs in the suit) counsel raised the objection to inclusion of the depositions of appellants ' witnesses examined on commis sion in evidence of the suit on the ground that the deposi tions were not signed by the witnesses as required by Rule 4 ibid.
That objection was upheld by the learned single Judge as well as a Division Bench of the High Court in L.P.A. against that order.
The High Court has held this defect to be fatal on its view that even the requirement of witness ' signature in Rule 4 ibid is mandatory.
S.L.P. No. 4074 of 1989 is against this order.
On this view, the learned single Judge has proceeded to decree the suit on the basis of respondents ' unrebutted evidence and S.L.P. No. 93 18 of 1989 195 is against the judgment and decree in the suit.
The controversy on merits depends ultimately on the correct construction of Rule 4 of Chapter XXII of the Cal cutta High Court Rules, 1914 applicable to the Original Side with reads as under: "4.
Deposition to be read over, signed etc.
After the deposition of any witness shall have been taken down, and before it is signed by him, it shall be distinctly read over, and, where necessary, translated to the witness in order that mistakes or omissions may be recti fied.
The deposition shall be signed by the witness and left with the Commissioner who shall subscribe his name and date of the examination." Dr. Shanker Ghosh, learned counsel for the appellants contended that the omission of witness ' signature on the deposition recorded by the Commissioner does not invalidate the deposition atleast in a case like the present where the correctness and authenticity of the deposition is undisput ed.
He argued that in this sense requirement of the witness ' signature on the deposition is not a mandatory requirement, the absence of which may invalidate the deposition.
He also contended that the defect, if any, was curable by obtaining the witness ' signature even now for which the appellants are prepared.
He added that in order to put the matter further beyond controversy, the affidavits of the witnesses examined on commission were filed in the High Court during pendency of the appeal before the Division Bench admitting correct ness of their depositions.
He also placed strong reliance on admission of the respondents ' counsel to the correctness of the depositions, in the minutes recorded by the Commissioner on 15.5.1987 as well as the omission to raise any such objection till 10.8.1988 much after the suit was closed for judgment on 24.12.1987.
He finally urged that the mistake, if any, was of the Commissioner in not taking the signatures of the witnesses and no party should be prejudiced by an act or omission of the Commissioner who was an officer of the Court.
In reply, Shri M.K. Ramamurthi, relied on the reasons given in the Division Bench 's judgment dated March 23, 1989 for construing this requirement in Rule 4 ibid as mandatory and on that basis excluding from evidence in the suit of these depositions.
He also contended that copies of affida vits of the witnesses filed in the High Court were not supplied to the respondents.
He added that the argument of curing the defect by obtaining signatures of the witnesses on the depositions was not advanced in the High Court due to which it 196 should not be permitted now.
Shri Ramamurthi also made the grievance that belated pleas of the appellants have caused needless harassment to the respondents.
Since we have come to the conclusion that these appeals should be allowed on the construction of Rule 4 ibid, we need not decide the other points urged.
It is needless to burden our decision with the several well known authorities cited at the Bar indicating the test to be applied to decide whether a provision is mandatory or directory.
The real difficulty arises only in the applica tion of the well settled principles.
The essential require ment of Rule 4 is that the deposition of a witness examined on commission shall be taken down in writing read over, and, where necessary, translated to the witness in order that mistakes or omissions, if any, may be rectified or supplied.
The mandate in Rule 4 to this extent must be complied strictly in order to ensure a correct record of the deposi tion.
The further requirement of signature of Commissioner with the date of examination and deposition being left with the Commissioner to enable its production in court is to ensure its authenticity.
The only remaining requirement in Rule 4 of the witness ' signature on the deposition has relevance to the admission of the witness of its correct ness.
The signature of the witness is not a part of the deposition and apart from acknowledging the correctness of his deposition on the deposition itself, it is not essential for any other purpose in this context.
It is well known that under the Code of Civil Procedure a deposition recorded in a Court, except that under Order 18, Rule 16 C.P.C., does not require the witness ' signature on the deposition.
It appears that witness ' signature on the deposition recorded on com mission is only required for court 's assurance since the witness is not examined in court.
Accordingly, it cannot be said reasonably that the omission of witness ' signature on the deposition renders the deposition incomplete.
If this be the true import of the witness ' signature on the deposition recorded on commission, the deposition cannot be treated as incomplete, much less, invalid merely due to omission of witness ' signature when correctness or authenticity of the deposition is undisputed.
It appears to us that while the essential requirements of Rule 4 indicated above are no doubt mandatory requiring strict compliance, the requirement of witness ' signature therein is directory of which substantial compliance is sufficient.
There is substantial compliance of this directo ry requirement where the correctness and authenticity of the deposition is undisputed.
Compliance can be had of this requirement even by subsequent admission of correctness of the deposition by 197 the witness, in case of dispute.
This construction of Rule 4 made by us also promotes the object of its enactment instead of negativing it.
Rules of procedure are not by themselves an end but the means to achieve the ends of justice.
Rules of procedure are tools forged to achieve justice and are not hurdles to obstruct the pathway to justice.
Construction of a rule of procedure which promotes justice and prevents its miscar riage by enabling the court to do justice in myriad situa tions, all of which cannot be envisaged, acting within the limits of the permissible construction, must be preferred to that which is rigid and negatives the cause of justice.
The reason is obvious.
Procedure is meant to subserve and not rule the cause of justice.
Where the outcome and fairness of the procedure adopted is not doubted and the essentials of the prescribed procedure have been followed, there is no reason to discard the result simply because certain details which have not prejudicially affected the result have been inadvertently omitted in a particular case.
In our view, this appears to be the pragmatic approach which needs to be adopted while construing a purely procedural provision.
Otherwise, rules of procedure will become the mistress instead of remaining the handmaid of justice, contrary to the role attributed to it in our legal system.
In this case, none disputes the correctness and authen ticity of the depositions recorded on commission but there is omission of witness ' signature thereon.
The question is: does reception of these depositions in evidence violate rule 3 ibid in a manner which is impermissible or this omission can be overlooked as insignificant since correctness and authenticity of the depositions is undisputed? We have no doubt that cause of justice would be served instead of being thwarted and the avowed object of Rule 4 ibid achieved by treating it to be an insignificant omission in the present case.
The consequence of failure to comply with any require ment of Rule 4 ibid is not provided by the statute itself.
Accordingly, the consequence has to be determined with reference to the nature of the provision, the purpose of its enactment and the effect of the noncompliance.
Rule 4 uses the word 'shall ' even while requiring the signature of the witness as it uses the word 'shall ' in respect of the other requirements of the Rule.
Ordinarily, the word 'shall ' used at several places in Rule 4 must be given the same meaning at all places.
However, it is also settled that this is not an invariable rule and even though the word 'shall ' is ordinarily mandatory but in the context or if the intention is otherwise it may be construed to be merely directory.
198 In short, the construction ultimately depends on the provi sion itself keeping in view the intendment of the enactment and the context in which the word 'shall ' has been used.
It would suffice to refer only to the decision in Ganesh Prasad Sah Desari & Anr.
vs Lakshmi Narayan Gupta, ; The word 'shall ' was used therein in connection with the Court 's power to strike off the defence against ejectment in a suit for eviction of tenant in case of de fault in payment of rent.
This Court construed the word 'shall ' in that context as directory and not mandatory since such a construction would advance the purpose of enactment and prevent miscarriage of justice.
In taking this view, this Court was impressed by the fact that the default at tracting the drastic consequence of striking out defence may be only formal or technical and unless the provision was treated as directory, it would render the court powerless even where striking out the defence may result in miscar riage of justice.
We may refer to a passage from Crawford on 'Statutory Construction ' which was quoted with approval in Govindlal Chagganlal Patel vs The Agricultural Produce Market Committee, Godhra and Others, ; and relied on in this decision.
The quotation is as under: "The question as to whether a statute is mandatory or directory depends upon the intent of the legislature and not upon the language in which the intent is clothed.
The meaning and intention of the legislature must govern and these are to be ascertained, not only from the phraseology of the provision, but also while considering its nature, its design and the consequences which would follow from construing it the one way or the other.
" It cannot, therefore be doubted that the word 'shall ' used in the expression 'deposition shall be signed by wit ness ' in Rule 4 ibid has to be given the meaning keeping in view the intention of the legislature, the purpose of the enactment and the consequence which would follow from con struing it as mandatory or directory.
If the word 'shall ' used in this expression is construed as mandatory, non compliance of which nullifies the deposi tion, drastic consequence of miscarriage of justice would ensue even where omission of the witness ' signature is by inadvertence and correctness of the deposition as well as its authenticity is undisputed.
On the other hand, if the word 'shall ' used in this expression is treated as directo ry, the court will have power to prevent miscarriage of justice where the omission 199 does not cause any prejudice and the defect is only techni cal.
The object of the provision being merely to obtain acceptance of the witness to the correctness of the deposi tion, that object would be advanced by taking this view and thereby empowering the court to avoid the drastic conse quence of nullifying the deposition where the correctness and authenticity is undisputed.
In a case where the correct ness has been disputed, it would be permissible for the court to examine the effect of omission of the witness ' signature and to reject the deposition only if it does not accept the correctness and authenticity thereof on the available material.
We do not find any cogent reason to take the view that the word 'shall ' occurring in the expression 'deposition shall be signed by the witness ' in Rule 4 ibid is mandatory which requires strict compliance and mere omission of which renders the deposition invalid and incapable of being read as evidence.
Various facets discussed above lead unerringly to this conclusion.
In view of the above discussion, we are of the opinion that the requirement of witness ' signature on the deposition in Rule 4 ibid is directory even though the requirement of the deposition being recorded, read over to him and correct ed wherever necessary is mandatory.
Mere omission of the witness ' signature on the deposition does not render the deposition invalid when the correctness and authenticity thereof is undisputed.
In the present case, correctness and authenticity of the deposition of the appellants ' witnesses being undisputed and the technical objection of omission of the witness ' signature on the deposition being raised as an after thought much after the learned single Judge had closed the suit for delivery of judgment, the objection is untena ble.
With respect, the High Court was in error in upholding this objection and excluding the deposition of the appel lants ' witnesses examined on commission from the evidence in the suit.
The result of exclusion of the appellants ' oral evidence on this untenable technical ground is that the suit has been decreed treating respondents ' evidence to be unre butted.
Exclusion of appellants ' entire oral evidence has undoubtedly resulted in miscarriage of justice.
The judgment and decree passed by the learned single Judge is vitiated for this reason alone.
We end on a melancholy note for the past with hope for a better future.
At a time when the minds of all of us are rightly exercised by the proverbial laws delays and innova tions are being made and suggested to prevent the apprehend ed collapse of the existing system, the 200 course of this litigation leaves us sad.
No degree of thought can help unless translated into action.
A more pragmatic appreciation and interpretation of the rules of procedure with due despatch would certainly have considera bly shortened the litigation so far.
With both sides appear ing equally keen for a quick resolution of the dispute and this being obviously welcome to the Court we see no reason why the ultimate decision of the suit cannot now be reached early.
We leave the matter with the fervent hope that the dispute will now be resolved expeditiously without any avoidable delay.
We contribute the first step in that direc tion by hastening to pronounce our judgment on conclusion of the elaborate arguments on September 8, 1989, illuminating the penumbral zone.
Consequently, these appeals are allowed.
The order dated 10.8.1988 passed by the learned single Judge, the judgment dated 23.3.1989 passed by the Division Bench of the High Court affirming that order; and the judgment and decree dated 6.4.1989 passed by the learned single Judge are all set aside.
The suit shah be decided afresh by the learned single Judge treating the depositions of appellants ' wit nesses recorded on commission as evidence in the suit, after hearing the arguments of parties on merits.
The respondents alone cannot be blamed for this situation and, therefore, we direct the parties to bear their own costs.
R.S.S. Appeals al lowed.

dataset_name: IN-Abs

summary/full:
When the foreign vessel M.V. "Vali Pero" arrived at the port of Calcutta, 10 non Greek seamen on board that ship filed a suit in the admiralty jurisdiction of the Calcutta High Court for recovery of their dues.
During the trial, depositions of the defendants ' witnesses were recorded on commission.
Objection was raised on behalf of the plaintiffs to reception in evidence of these depositions on the ground of absence of witness ' signature of the deposition as re quired in Rule 4 of chapter XXII of the Calcutta High Court Rules, 1914, applicable to the Original Side.
The objection was upheld by the learned Single Judge as also by the Divi sion Bench.
The learned Single Judge then decreed the suit on the unrebutted evidence of the plaintiffs.
One Special Leave Petition has been filed against the judgment of Division Bench affirming the order of the learned Single Judge ex cluding the defendants ' evidence.
The other Special Leave Petition has been filed against the judgment of the learned Single Judge decreeing the plaintiff 's suit after excluding the defendants ' entire oral evidence.
On behalf of the ' appellants it was contended that omission of witness ' signature on the deposition recorded by the Commissioner did not invalidate the deposition atleast in a case like the present where the correctness and authen ticity of the deposition was undisputed; that in this sense the requirement of the witness ' signature on the deposition was not a mandatory requirement; that the defect was curable by obtaining the witness ' signature even now; that the respondents ' counsel had admitted the correctness of the depositions; and that the respondents had omitted to raise any objection will after the suit was closed for judgment.
In reply, the respondent relied on the reasons 188 given in the Division Bench 's judgment construing the re quirement in Rule 4 as mandatory.
It was also urged that the argument of curing the defect by obtaining signatures even now was not advanced in the High Court and should not be permitted at this stage.
Allowing the appeals and remanding the suit to the learned Single Judge to be decided afresh, this Court, HELD: (1) The requirement of witness ' signature on the deposition in Rule 4 is directory even though the require ment of the deposition being recorded, read over to him and corrected wherever necessary is mandatory.
Mere omission of the witness ' signature on the deposition does not render the deposition invalid when the correctness and authenticity thereof is undisputed.
[196F] (2) The essential requirement of Rule 4 is that the deposition of a witness examined on commission shall be taken down in writing, read over, and where necessary, translated to the witness in order that mistakes or omis sions, if any, may be rectified or supplied.
The mandate in Rule 4 to this extent must be complied strictly in order to ensure a correct record of the deposition.
[196B C] (3) The signature of the witness is not a part of the deposition and apart from acknowledging the correctness of his deposition on the deposition itself, it is not essential for any other purpose in this context.
[196D] (4) While the essential requirements of Rule 4 are no doubt mandatory requiring strict compliance, the requirement of witness ' signature therein is directory of which substan tial compliance is sufficient.
[196G] (5) There is substantial compliance of this directory requirement where the correctness and authenticity of the deposition is undisputed.
Compliance can be had of this requirement even by subsequent admission of correctness of the deposition by the witness, in case of dispute.
[196H; 197A] (6) Under the Code of Civil Procedure a deposition recorded in a Court, except that under Order 18, Rule 16 C.P.C., does not require the witness ' signature on the deposition.
The requirement of signature is not court 's assurance since the witness is not examined in court.
Ac cordingly, it cannot be said reasonably that the omission of witness ' 189 signature on the deposition renders the deposition incom plete.
[196E] (7) Rules of procedure are not by themselves an end but the means to achieve the ends of justice.
Rules of procedure are tools forged to achieve justice and are not hurdles to obstruct the pathway to justice.
[197B] (8) Construction of a rule of procedure which promotes justice and prevents its miscarriage by enabling the court to do justice in myriad situations, all of which cannot be envisaged, acting within .the limits of the permissible construction, must be preferred to that which is rigid and negatives the cause of justice.
Where the outcome and fair ness of the procedure adopted is not 'doubted and the essen tials of the prescribed procedure have been followed, there is no reason to discard the result simply because certain details which have not prejudicially affected the result have been inadvertently omitted in a particular case.
[197B C] (9) Ordinarily, the word 'shall ' used at several places in Rule 4 must be given the same meaning at all places.
However, it is also settled that this is not an invariable rule and even though the word 'shall ' is ordinarily mandato ry but in the context or if the intention is otherwise it may be construed to be merely directory.
In short, the construction ultimately depends on the provision itself keeping in view the intendment of the enactment and the context in which the word 'shall ' has been used.
[197H; 198A] Ganesh Prasad Sah Desari & Anr.
vs Lakshmi Narayan Gupta, ; ; Govindlal Chagganlal Patel vs The Agricultural Produce Market Committee, Godhra & Ors., ; , referred to.


judgement:
vil Appeal Nos. 8 to 10 of 1972.
From the Judgment and Order dated 15.1.1970 of the Gujarat High Court in Special Civil Application Nos. 305,368, 526, 384 and 495 of 1962.
80 T.U. Mehta, U.A. Rana and K.L. Hathi for the Appellants.
G.A. Shah and M.N. Shroff for the Respondents.
The Judgment of the Court was delivered by KANIA, J.
These are appeals by special leave against the judgment of a learned Single Judge of the Gujarat High Court in Special Civil Applications Nos. 305,368 and 526 of 1972.
The controversy raised in the appeal is very limited and hence, the relevant facts can be very briefly stated.
The appellants before us are the tenants of certain intermediary landlords known as Girasdars.
Respondents Nos. 1 to 3 are statutory authorities, namely, the Mahalkari, Kutiana, Deputy Collector of Porbandar Division and the Gujarat Revenue Tribunal respectively.
They have no interest in the result of these appeals but they are represented by counsel before us.
Respondents Nos. 4 5 are the legal heirs of certain Girasdars from whom some of the appellants held lands on lease.
One Respondent No. 9 is a Girasdar who is represented by the Assistant Custodian of Evacuee property and the rest of the respondents are the remaining Girasdars from whom the appellants held lands on leases.
Before going into the facts or the arguments advanced, we propose to take note of the relevant provisions of the Saurashtra Land Reforms Act, 1951 (hereinafter referred to as "the said Act").
The said Act was enacted with the object of improvement of the land revenue administration and for ultimately putting an end to the Girasdari system and to regulate the relations between the Girasdars and their tenants.
We may mention that, very briefly stated, the Girasdars were in the nature of intermediary landlords like the Zamindars.
Unlike most of the land reforms acts, the object of which was to take away completely the right of the Zamindars or intermediary landlords, the said Act provided for the abolition of the Girasdars system and at the same time sought to achieve equitable distribution of land for personal cultivation between the Girasdars and their ten ants.
Sub section (12) of section 2 of the said Act runs as follows: " 'economic holding ' in relation to any region speci 81 fied in Column I of the First Schedule, means a holding of land of an area shown in the corresponding entry in Column 2 thereof.
" Column 2 specifies the area of land comprised in econom ic holdings for the various districts to which the said Act was applicable.
Sub section (14) of section 2 lays down that "Gharkhed" means any land reserved by or allotted to a Girasdar before the 20th May, 1950 for being cultivated personally and which is in his personal cultivation.
Sub section (15) of section 2 contains the definition of the term "Girasdar" and provides that the said expression in cludes within its ambit a talukar, bnagdar, bhayat, cadet or mulgirasia and includes any person declared by the Govern ment by a notification to be a Girasdar for the purposes of the said Act.
Under sub section (18) of section 2 the term "land" basically means agricultural land.
Section 4 of the said Act provides that all land of whatever description held by a Girasdar is and shall continue to be liable to payment of land revenue to the State of Gujarat.
Section 5 provides for classification of Girasdars.
It is sufficient to note that under sub section (1) of that section a Girasdar shall be deemed to belong to A class if the total area of agricul tural land comprised in his estate exceeds eight hundred acres, to B Class if the total area of agricultural land comprised in his estate exceeds one hundred and twenty acres but does not exceed eight hundred acres and to C Class if the total area of agricultural land comprised in his estate does not exceed one hundred and twenty acres.
Section 21 deals with the question of allotment of land to Girasdars of Classes A and B.
For our purposes it is sufficient to note that a Girasdar of Class A is entitled to three economic holdings and a Girasdar of Class B is entitled to two eco nomic holdings.
Section 22 inter alia deals with the princi ples and method of allotment of land to Girasdars of A and B Classes.
The relevant part of the said section for the purposes of the appeal runs as follows: "In making an allotment of land to any Giras dars of A Class or B Class the Mamlatdar shall have due regard to the following provisions, namely: (a) firstly, such of the bid land or cultiva ble waste of the estate as the Girasdar wishes to utilise for personal cultivation shall be allotted to him; (b) secondly, if the land allotted under clause (a) is not sufficient, such agricultur al land as is held by a 82 tenant in excess of one economic holding shall be available for allotment.
" The relevant portion of section 23 which deals with the topic of Girasdars to whom the land may be allotted runs as follows: "23.
Under the provisions of this Chapter, land shall be allotted (a) in the case of an undivided family of Girasdar only to the head of the family on behalf of the family; or (b) in case of a family divided in interest only, to all the members of the family jointly as to a single unit; or (c) in the case of a Girasdar whose land was separate from that of the other members of his family by metes and bounds before the 1st February, 1951, to such Girasdar.
" Section 24 provides that agricultural land will be allotted to C Class Girasdars for being cultivated personal ly to the extent of one half of the total area of the land held by each of his tenants provided that the total area of the holding of a C Class Girasdar made up of Gharkhed in his estate and any bid land or cultivable waste land and other land of a kind set out in the proviso to sub section (1) of the said section does not exceed one economic holding in the case of one in whose estate agricultural land does not exceed eighty acres and one and half economic holdings in the case of one in whose estate agricultural land exceeds eighty acres but does not exceed one hundred and twenty acres.
Chapter IV of the said Act which includes sections 22 to 24 referred to earlier provides that if the land in the Girasdar or for personal cultivation of the Girasdar is less than the land he is entitled to as per the economic units allottable to him, his tenants who hold excess land, that is, in excess of an economic holding, are liable to surren der the same or a part of the same to enable the Girasdar to make up the deficit in the land which he is entitled to hold.
A reading of the relevant portion of Schedule I of the said Act (under section 22) makes it clear that an A Class Girasdar in the district with which we are concerned was entitled to hold 40 acres of land.
We may also at this stage take note of some of the rules framed under the said 83 Act and known as "The Saurashtra Land Reforms Rules, 1951" (hereinafter referred to as "the said Rules").
Rule 50 of the said Rules provides that in making allotment of land to any Girasdar of A Class or B Class, the Mamlatdar shall have due regard to the provisions contained in section 22 and for allotment of land to a Girasdar of C Class to the provisions contained in section 24.
The said rule also provides that in cases arising under section 22(b) and (e) and proviso to subsection (1) of section 24, the land will be taken from tenants proportionately to the excess or the holdings as the case may be.
There is, however, a proviso to Rule 50 which states that where the proportionate excess or holding to be given by a tenant as above works hardship in any individual case, the Mamlatdar may decide the proportion of land to be given by each of the tenants in a manner just and equitable.
It was pointed out by Mr. Mehta, learned counsel for the appellants that in the form I filled in by the Girasdars as required under the said Act, the cultivable land in the estate was shown as 1353.34 acres.
The family of the Giras dars was treated as an A Class Girasdar.
The Mahalkari Kutiana by his decision dated June 25, 1959 held that the entire area comprising cultivable land formed part of the joint and undivided estate of all the Girasdars and on that footing he allotted to them three economic units amounting to 60 acres.
The Girasdars preferred an appeal against the said decision and in that appeal, the Deputy Collector, Porbandar, respondent No. 2, modified the allotment made under the order of Mahalkari.
He held that some of these Girasdars had separate or swang lands and were entitled to separate allotments from swang lands out of their swang estate.
There was a revision application preferred to the Gujarat Revenue Tribunal from the decision of the Deputy Collector.
The Tribunal agreed in principle with the Deputy Collector that the Girasdars were entitled to separate allotments both from the estate held jointly by them and also to separate allotments from the estates separately held by them.
In substance, it held by the Tribunal that the Girasdars were entitled to three economic units out of the aforesaid cultivable land jointly held by them and some of them were entitled to separate allotments out of the lands separately held by them but included in the aforesaid area of 1353.34 acres.
This decision was assailed by way of a Special Civil Application before the Gujarat High Court.
In all, five petitions were filed by tenants challenging the decision of the Gujarat Revenue Tribunal.
The learned Single Judge who disposed of the said petitions held that in re spect of the joint or 'Majmu ' estate of the concerned Giras dars, they were liable to be treated as one unit and enti tled to allotment as an A Class Girasdar and were thus entitled jointly to 84 three economic holdings which came to 60 acres.
However, as found by the Tribunal, one Girasdar, Ali Khokhar, had handed over possession of 15 acres of land of the joint estate and hence, on the footing of the joint holding the Girasdars were entitled to the balance area of 45 acres.
Apart from this, the learned Judge upheld the decision of the Tribunal that some of the Girasdars were entitled to separate allot ment as C Class Girasdars in respect of their respective separate holdings.
The learned Judge clearly proceeded on the footing that out of the said total holding of 1353.34 acres was partly joint and the remaining part comprised separate holdings of some of the Girasdars.
The appellants are represented by senior counsel before us and so also the respondent nos.
1 to 3 who are formal respondents.
However, the rest of the respondents, who would be really affected by the result of the appeal are not appearing although served.
Mr. Mehta learned counsel for the appellants fairly conceded that he can find no fault with the judgment of the learned Single Judge in so far as he took the view that the Girasdars were entitled to separate allotments, one allotment in respect of the land held by them jointly and the separate allotments in respect of the land held by them separately if the estate held by them was partly joint and partly separate.
He, however, strongly contended that the learned Single Judge had wrongly assumed that a part of the said estate was joint and the remaining part was separate.
According to him, the entire estate was joint and the Girasdars were entitled only to an allotment of 60 acres in all as an A Class Girasdar.
In our view, this argument cannot be entertained at this stage at all.
The finding of the Mahalkari that the estate was entirely joint was set aside by the Deputy Collector.
The decision of the Deputy Collector, that some of the Girasdars were entitled to separate allotments in addition to the joint allotment as aforestated, was appealed against before the Tribunal.
The Tribunal also proceeded on the same footing as the Deputy Collector and there is no challenge in the said special civil applications to the effect that the Tribunal had gone wrong in treating the estate as partly joint and partly separate.
In view of this, Mr. Mehta cannot now be allowed to raise a contention that the entire estate was joint.
The next submission urged by him was that, although some of the tenants of the Girasdars were in the village Mal, none of them has been asked to make any contribution to make up the land liable to be allotted to the Girasdars.
As pointed out by learned Single Judge that the contention was not urged before the Revenue Tribunal at all and hence, it was not open to the appellants to raise this contention before the High Court nor is it open to them to raise it before us.
It is significant that none of the 85 tenants of the said Girasdars in Mal village has joined as a respondent to the present appeal and it appears that this argument is nothing more than an after thought.
The last submission of Mr. Mehta is that, as it was found that certain lands were liable to be allotted to the Giras dars to make up the land allottable to them for personal cultivation, the said land should have been made up by call ing upon or directing all the tenants who had excess land, that is, in excess of the economic holding, to surrender a proportionate part of the excess land.
To appreciate this contention,one must notice that Mr. Mehta represents the larger tenants who have been asked to surrender a portion of their land whereas the tenants whose holdings were only marginally in excess of the economic holding have been spared.
It was urged by Mr. Mehta that this is against the provisions of Rule 50 of the said Rules which we have al ready set out earlier and which provides for taking lands from tenants proportionately to the excess of land, that is, land in excess of the economic holding which they were enti tled to hold.
He, however, forgets that there is a proviso to this Rule which we have referred to earlier which pro vides that where taking of such proportionate excess land would lead to hardship, in that case, the Mamlatdar can decide the proportion of land to be given by each of the tenants.
As pointed out by the learned Single Judge of the Revenue Tribunal in deciding as to the excess land to be handed over by the tenants has proceeded on a just and equi table basis that it should touch only such tenants whose land substantially exceeds the economic holding and smaller tenants should not be asked to surrender any part of their holdings.
Judicial notice can be taken that much lesser hardship would be caused to a tenant whose land holding was substantially in excess of the economic holding if a part of that land were taken for allotment to the Girasdar than in the case of a tenant whose excess holding was only marginal.
In view of this, we find that no fault can be found with the decision of the Tribunal or the High Court.
In the result, the appeals fail and are dismissed with no order as to costs.
Y. Lal Appeals dis missed.

summary/full:
The appeallants are the tenants of certain intermediary landlords known as Girasdars.
Respondents Nos. 4 5 are the legal heirs of certain Girasdars from whom some of the appellants held lands on lease.
Respondent No. 9 is a Giras dar who is represented by the Assistant Custodian Evacuee Property.
The other respondents, being statutory authorities are formal parties.
The dispute between the parties relate to the mode of allotment to the Girasdars which has arisen in the following circumstances.
After the coming into force of the Saurashtra Land Reforms Act 1951, the respondents Girasdars, as required by the Act filled in Form I showing therein the cultivable land in the estate as 1353.34 acres.
The family of the Girasdars was treated as an 'A ' class Girasdar.
The Mahalkari Kutiana by his decision dated June 25, 1959 held that the entire area comprising cultivable land formed part of the joint and undivided estate of all the Girasdars and on that basis he allotted to them three eco nomic units of land amounting to 60 acres.
The Girasdars preferred an appeal against the said decision and in that appeal, the Deputy Collector, Porbander, Respondent No. 2, modified the allotment made by Mahalkari.
He took the view that some of these Girasdars had separate or swang lands and thus entitled to separate allotments from swang lands, out of their swang estate.
A revision application was preferred before the Gujarat Revenue Tribunal against the decision of the Deputy Collec tor.
The Tribunal agreed in principle with the Deputy Col lector that the Girasdars were entitled to separate allot ment both from the estate held jointly by them and also to separate allotments from the Estates separately by them.
The Tribunal accordingly held that the Girasdars were entitled to three 79 economic units out of the aforesaid cultivable lands jointly held by them and some of them were entitled to separate allotments out of the lands separately held by them but included in the aforesaid area of 1353.34 acres.
The tenants thereupon challenged the decision of the Tribunal before the High Court by means of a writ petition.
The High Court held that in respect of the joint or "Majmu" estate of the concerned Girasdars, they were liable to be treated as one unit and entitled to allotment as an 'A ' class Girasdars and were thus entitled jointly to three economic holdings which came to 60 acres.
The High Court affirmed the decision of the Tribunal in the case of Ali Khokhar, Girasdars who had handed over 15 acres of land of the joint estate and directed that on the basis of joint holding, the Girasdars were entitled to the balance area of 45 acres.
It also upheld the decision of the Tribunal that some of the Girasdars were entitled to separate allotments as 'C ' class Girasdars with respect to their separate hold ings.
Thus the High Court treated the total holding of 1353.34 acres as partly joint and the remaining part com prised separate holdings of some of the Girasdars.
The appellants tenants have appealed to this Court after obtaining special leave.
Dismissing the appeal, this Court, HELD: Judicial notice can be taken that much lesser hardship would be caused to a tenant whose land holding was substantially in excess of the economic holding if a part of that land were taken for allotment to the Girasdars than to a tenant whose excess holding was only marginal if a part of his land is taken for such allotment.
[85F] The Revenue Tribunal in deciding as to whose excess land should be handed over by the tenants has proceeded on a just and equitable basis that it should touch only such tenants whose land substantially exceeds the economic holding, and smaller tenants should not be asked to surrender any part of their holdings.


judgement:
ON: Civil Appeal No. 2732 of 1980.
From the Judgment and Order dated 25.8.1980 of the Andhra Pradesh High Court in C.R.P. No. 7974 of 1979.
155 A.V. Rangam for the Appellant.
C. Setharamaiah, P.K. Rao, V.A. Babu and K.R. Nagaraja for the Respondents.
The Judgment of the Court was delivered by KANIA, J.
This is an appeal by Special Leave against the judgment of a learned Single Judge of the Andhra Pradesh High Court in Civil ' Revision Petition No. 7974 of 1979.
The appellant before us is the tenant and the original respond ent is the landlord who is dead and is represented by his legal representatives.
The premises in question are in Eluru Town in Andhra Pradesh.
The appellant is carrying on business in the name and style of Sri Panduranga Engineering Company.
According to the original respondent (who will hereinafter be referred to as "the respondent") he was the owner of the building in which the said premises situated and hence, the owner of the said premises.
The respondent filed an eviction petition against the appellant on the ground of bona fide requirement as he wanted to set up his eldest son in business by start ing a photo studio in the said premises.
The appellant disputed the correctness of the said claim.
The appellant in his counter to the eviction petition, inter alia, alleged that the said property in which the said premises were situated was the absolute endowed property of punyamurthula vari Choultry of which the original respondent was the de facto trustee and that the original respondent had no per sonal or proprietary interest in the said property.
He asserted that the said property belonged to the said Choul try and that the original respondent had no manner of right to evict the appellant on the ground of personal use and occupation.
The appellant asserted that the said premises were not the individual property of the original respondent but trust property.
The respondent filed a rejoinder denying that the said premises were the endowed property or that the said property was a part of punyamurthulavari Choultry.
He asserted that he was the absolute owner of the said property which was purchased by his father under a registered sale deed dated 29th June, 1908.
The respondent submitted that the appellant had denied his title and, as the said denial was not bona fide, the appellant was liable to be evicted also on the ground of denial of title of the landlord.
The Rent Controller passed a decree for eviction on the ground that the bona fide requirement of the landlord respondent was made out and also on the ground that the appellant tenant had denied the title of respondent landlord which 156 denial was not bona fide.
The appellant preferred an appeal against the said decision to the Appellate Authority.
The Appellate Authority, however, dismissed the appeal upholding both the grounds of eviction found by the Rent Controller.
Against this decision, the appellant preferred a revision petition to the High Court.
The High Court in its impugned judgment upheld the order of eviction only on the ground of denial of title which was not a bona fide denial.
It is this decision of the High Court which is challenged before us.
The finding that the denial of title was not bona fide, is essentially a finding of fact and, fairly enough, no dispute has been raised by learned counsel for the appellant in respect of that finding.
It is, however, submitted by him that in order to constitute a ground for eviction the denial of title .must be anterior to the filing of the eviction petition and a denial of title in the course of eviction petition would not constitute a ground for eviction.
He drew our attention to the provisions of section 10 of the Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Act, 1960 (hereinafter referred to as "the A.P. Rent Act").
The A.P. Rent Act was enacted with a view to consolidate the law relating to regulation of leasing of buildings, control of rent thereof and prevention of unreasonable eviction of tenants in the State of Andhra Pradesh.
Section 10 of the A.P. Rent Act deals with eviction of tenants.
Sub section (1) of that section prohibits eviction of tenants except in accordance with the provisions of that section or sections 12 and 13 of that Act.
The relevant part of sub section (2) of section 10 of the A.P. Rent Act runs as follows: "(2) A landlord who seeks to evict his tenant shall apply to the controller for a direction in that behalf.
If the Controller, after giving the tenant a reasonable opportunity of showing cause against the application, is satisfied; (i) x x x x (ii) x x x x (iii) x x x x (iv) x x x x (v) x x x x (vi) that the tenant has denied the title of the land lord or claimed a right of permanent tenancy and that such denial or claim was not bona fide, the Controller shall make an order directing the tenant to put the landlord in possession of the building and 157 if the controller is not so satisfied he shall make an order rejecting the application.
" It was urged by learned counsel for the appellant that the ground for eviction must come into existence before the application to the Rent Controller for eviction is made and hence, a denial of title which can be relied upon by the landlord respondent for eviction must be.
anterior to the eviction petition.
In support of his contention, Mr. Rangam, learned coun sel for the appellant placed reliance on the decision of a Bench of this Court in Kundan Mal vs Gurudutta, Judgments Today In that case it has been observed that in providing disclaimer as a ground for eviction of a tenant in clause (f) of section 13(1) of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950 the Legis lature decided to give effect to the provisions of clause (g) of section 111 of the Transfer of Property Act.
The principle of forfeiture on disclaimer is rounded on the rule that a man cannot approbate and reprobate at the same time.
Since the consequence of applying the rule is very serious, it must be held that the denial of title to has to be clear and in unequivocal terms.
In our view, this decision is hardly of any assistance to learned counsel.
The principle laid down in that case is that, in order to constitute a ground for eviction, the denial of title has to be clear and in unequivocal terms.
In the present case, the facts found show that the denial of title of the respondent by the appellant was in dear and unequivocal terms.
Although it is observed in the said judgment that in providing this ground for eviction, the Legislature of the State of Rajasthan decided to give effect to the provisions of clause (g) of section 111 of the Transfer of Property Act, the judgment nowhere lays down that the denial of title must be anterior to the eviction petition nor does it say that the provisions relating to eviction of tenants under the Transfer of Property Act are applicable to the eviction of tenants under the Rajasthan Rent Act.
In this connection we may point out that it is well settled that the Court hearing a suit or appeal can take into account events which are subsequent to the filing of the suit in order to give appropriate relief or mould the relief appropriately.
Moreover, it is signifi cant that in the present case, the denial of the landlord 's title was not the only ground pleaded in support of the claim for eviction but it was also contended by the respond ent that the appellant was liable to be evicted as the respondent wanted the said premises for his personal bona fide use and occupation.
158 It was argued by learned counsel for the appellant that even accepting that there was a denial of title by the appellant and the result would be only that the respondent landlord became entitled to forfeit the lease and in order to be a ground for eviction in a suit that forfeiture would have to precede the suit or petition for eviction.
It was submitted by him that it was not open to a landlord to take advantage of a denial of title by the tenant in the very proceedings for eviction in the course of which the denial was made.
The denial must be anterior to the eviction pro ceedings.
In support of this argument learned counsel placed reliance on the decision in Maharaja of Jeypore vs Rukmani Pattamahdevi, 46 I.A. 109; AIR 1919 P.C. 1.
In our view, this argument also does not stand scrutiny.
In V. Dhanapal Chettiar vs Yesodai Arnrnal, ; a Constitution Bench of this Court comprising seven learned Judges held that in the matter of determination of tenancy the State Rent Acts do not permit a landlord to snap his relationship with the tenant merely by serving on him a notice to quit as is the position under the Transfer of Property Act.
The landlord can recover possession of the property only on one or more of the grounds enacted in the relevant section of the Rent Acts.
Even after the termination of the contractual tenancy the landlord under the definitions of landlord and tenant contained in the Rent Acts, remains a landlord and a tenant remains a tenant because of the express provision made in the enactments that a tenant means 'a person contin uing in possession after the termination of the tenancy in his favour '.
Yet another important feature of the Rent Acts is that either by way of a non obstante clause or by neces sary implication these enactments have done away with the law contained in section 108 of the Transfer of Property Act dealing with rights and liabilities of the lessor and the lessee.
The difference between the position obtaining under the Transfer of Property Act and the Rent Acts in the matter of determination of a lease is that under the former Act in order to recover possession of the leased premises determi nation of the lease is necessary because during the continu ance of the lease the landlord cannot recover possession of the premises while under the Rent Acts the landlord becomes entitled to recover possession only on the fulfilment of the conditions laid down in the relevant sections.
He cannot recover possession merely by determining the tenancy.
Nor can he be stopped from doing so on the ground that he has not terminated the contractual tenancy.
In the case before us, we find that the denial of landlord 's title by the tenant has been expressly made a ground for eviction under section 10(2)(vi) of the A.P. Rent Act which we have already set out earlier.
In view of this, the entire basis for the argument that the denial of title must be anterior to the proceedings for eviction under the A.P. Rent 159 Act is knocked out.
In our opinion, the argument of learned counsel for the appellant must, therefore, be rejected.
We find, on the other hand, that a number of High Courts have taken the view that even a denial of the landlord 's title by a tenant in a written statement in an eviction petition under the Rent Act concerned furnishes a ground for eviction and can be relied upon in the very proceedings in which a written statement containing the denial has been filed (See: Sada Ram and Others vs Gajjan Shiama, AIR 1970 Punjab & Haryana 511; Shiv Parshad vs Smt.
Shila Rani, AIR 1974 H.P. 22 and Machavaram Venkata Narayana Rao vs Sarvepalli Nara yana Rao Sarada and another, As ob served by the Punjab and Haryana High Court to insist that a denial of title in the written statement cannot be taken advantage of in that suit but can be taken advantage of only in a subsequent suit to be filed by the landlord would only lead to unnecessary multiplicity of legal proceedings as the landlord would be obliged to file a second suit for eject ment of the tenant on the ground of forfeiture entailed by the tenant 's denial of his character as a tenant in the written statement.
It was submitted by learned counsel for the appellant that, in any event, the respondent failed to apply for amendment of his plaint and incorporate the ground of denial of title therein as he was bound to do so in order to get relief on that ground which had arisen after the eviction petition was filed.
We agree that normally this would have been so but, in the present case, we find that the Trial Court, namely, the Rent Controller, framed an issue as to whether the tenant 's denial of the landlord 's title to the schedule property including the said premises was bona fide.
The parties went to trial on this clear issue and the appel lant had full knowledge of the ground alleged against him.
It was open to him to have objected to the framing of this issue on the ground that it was not alleged in the eviction petition that the appellant had denied the title of the respondent and that the denial of title was bona fide.
If he had done that the respondent could have well applied for an amendment of the eviction petition to incorporate that ground.
Having failed to raise that contention at that stage it is not open now to the appellant to say that the eviction decree could not be passed against him as the ground of denial of title was not pleaded in the eviction petition.
No other argument have been advanced before us.
In the result, the appeal fails and is dismissal with costs.
S.K.A. Appeal dis missed.

summary/full:
The appellant tenant was in occupation of the premises and carrying on business.
The original respondent who was the owner of the said premises filed an eviction petition against the appellant on the ground of bona fide requirement as he wanted to set up his eldest son in business by start ing a photo studio in the said premises.
The appellant disputed the correctness of the claim and alleged that the property in which the said premises were situated was the absolute endowed property of which the original respondent was the de facto trustee and as such he had no personal or proprietary interest in the said property to evict the appellant on the ground of personal use and occupation.
The respondent asserted that he was the absolute owner of the said premises.
The Rent Controller passed a decree for eviction on the ground that the bona fide requirement of the respondent landlord was made out and also on the ground that the appellant had denied the title of the respondent which denial was not bona fide.
The appellant filed an appeal before the Appellate Authority which was dismissed upholding the order of eviction passed by the Rent Controller.
The appellant preferred a revision petition to the High Court and a Single Judge of the High Court also upheld the order of eviction.
The appellant came in an appeal to this Court by special leave.
It was contended for the appellant that in order to constitute a ground for eviction the denial of title must be anterior to the filing of the eviction petition and a denial of title in the course of eviction petition would not con stitute a ground for eviction.
The contention on behalf of the respondent was that the denial of the landlord 's title was not the only ground pleaded for eviction but it was also contended that the appellant was liable to be evicted as the respondent wanted the said premises for his personal bona fide use and occupation.
Dismissing the appeal by special leave, this Court, 154 HELD: The A.P. Rent Act was enacted with a view to consolidate the law relating to regulation of leasing of buildings, control of rent thereof and prevention of unrea sonable eviction of tenants in the State of Andhra Pradesh.
Section 10 of the A.P. Rent Act deals with eviction of tenants.
Sub Section (1) of that section prohibits eviction of tenants except in accordance with the provisions of that section or sections 12 and 13 of that Act.
[156D E] It is well settled that the Court hearing a suit or appeal can take into account events which are subsequent to the filing of the suit in order to give appropriate relief or mould the relief appropriately.
[157F] Kundan Mal vs Gurudutta, Judgments today (1989) 1 S.C. 147, not applicable.
The landlord can recover possession of the property only on one or more of the grounds enacted in the relevant sec tion of the Rent Acts.
Even after the termination of the contractual tenancy the landlord under the definitions of the terms landlord and tenant contained in the Rent Acts, remains a landlord and the tenant remains a tenant, because of the express provision made in the enactments that a tenant means or includes 'a person continuing in possession after the termination of the tenancy in his favour '.
Yet another important feature of the Rent Acts is that either by way of a non obstante clause or by necessary implication these enactments have done away with the law contained in section 108 of the Transfer of Property Act dealing with rights and liabilities of the lessor and the lessee.
[158D E] Maharaja of Jaypore vs Rukmani Pattamahdevi, 46 I.A. 109; A.I.R. [1919] P.C. 1 and V. Dhanapal Chattiar vs Yeso dai Ammal; , , referred to.
Sada Ram and Others vs Gajjan Shiama, A.I.R. 1970 Punjab H.P. 22 and Machavaram Venkate Narayana Rao vs Sarvepalli Narayane Rao Sarada and another, , relied upon.