judgement:
Appeal No. 690 of 1962.
Appeal from the judgment and order dated March 5, 1959, of the Andhra Pradesh High Court in Appeal against order No. 151 of 1955.
section Suryaprakasam and Sardar Bahadur, for the appellants.
The respondent did not appear.
January 20, 1964.
The Judgment of the Court was delivered by SUBBA RAO J.
This appeal by certificate raises the question of the applicability of section 48 of the Code of Civil Procedure, hereinafter called the Code, to the facts of the 253 The relevant facts are as follows: In the year 1928 one Pentapati Venkataramana filed Original Suit No. 3 of 1928 in the Court of the Subordinate Judge, Visakhapatnam, against 29 defendants for accounts of dissolved partnerships and for the recovery of amounts due to him.
On March 30, 1932, the suit was dismissed by the learned Subordinate Judge.
On appeal, the High Court of Madras set aside the decree of the Subordinate Judge and passed a joint and several decree in favour of the plaintiffs and defendants 24 to 27 for a sum of Rs. 54,350 with interest thereon.
On February 15, 1939, the decree holders filed an application for execution of the decree, being E.P. No. 13 of 1939, and prayed for realization of the decretal amount by attachment and sale of 31 items of properties described by them in the schedule (exhibit B 4) annexed thereto.
The judgmentdebtors filed an objection to the attachment of some of the said items, but that was dismissed.
Against the order of dismissal of their objection, the judgment debtors filed an appeal to the High Court, being C.M.A. No. 26 of 1944.
Pending the disposal of the C.M.A., the High Court granted an interim stay of E.P. 13 of 1939.
Later, the appeal was dismissed on April 26, 1945.
After the dismissal of the appeal, when the decree holders sought to proceed with the execution, the judgment debtors filed another application being E.A. No. 575 of 1945, alleging that the decree has been adjusted and for recording satisfaction of the decree.
But the said application was dismissed on December 12, 1945.
The judgment debtors went up on appeal to the High Court against the said order of dismissal and obtained an interim stay of E.P. 13 of 1939.
On September 9, 1947, the High Court allowed the appeal and remanded the case to the trial court for ascertaining whether there was an adjustment of the decree as pleaded by the judgment debtors.
On remand, the executing court again dismissed the application filed by the judgment debtors.
Against the aid order, the judgment debtors again preferred an appeal, being C.M.A. No. 127 of 1948, in the High Court of Madras and obtained an interim stay of the execution.
The interim order was made absolute on November 24, 1948.
As the execution of the decree was stayed by the High Court, the executing court made an order on E.P. 13 of 1939 to the effect that the petition was "closed".
On July 31, 1951, the 254 High Court dismissed C.M.A. 127 of 1948.
On January 21, 1952, the decree holders made an application being E.A. No. 142 of 1952, in E.P. 13 of 1939 for reopening the said execution petition and for proceeding with the execution of the decree.
The learned Subordinate Judge, holding that the previous execution petition was merely "closed", directed the decree holders to file a regular execution petition.
On October 11, 1952, the decree holders filed E.P. No. 58 of 1953 to continue further proceedings in E.P. 13 of 1939 as per the order made in E.A. No. 142 of 1952 passed on October 4, 1952.
In that petition the decree holders prayed that the properties mentioned in the draft proclamation filed in E.P. No. 13 of 1.939 and brought to sale may be sold for he realization of the money due to the decree holders and the proceeds applied for the discharge of the decree debt.
The judgment debtors filed a counter affidavit pleading, inter alia, that the decree sought to be executed was made on September 22, 1938, and that as E.P. No. 13 of 1939 was dismissed on December 28, 1948, the present application, having been filed more than 12 years from the date of the decree, was barred under section 48 of the Code.
The learned Subordinate Judge held that though the decree holders were entitled to continue the previous execution petition, E.P. 58 of 1953 was a fresh application, as in form as well as in details it materially differed from the original execution petition.
On appeal, a division Bench of the Andhra Pradesh High Court took a different view and held that E.P. 13 of 1939 was merely closed for statistical purposes and, there fore, the execution petition filed in 1939 was still pending and the decree holders were entitled to proceed with that petition.
The High Court further observed that the said position was not contested by learned counsel for the res pondents.
We understand this observation only to mean that learned counsel appearing for the respondents therein did not contest the position that if the execution petition was not dismissed but was only closed for statistical purposes, the decree holders were entitled to proceed with that petition.
The High Court remanded the case to the learned Subordinate Judge for disposal according to law after considering the other contentions of the judgment debtors.
Hence the appeal.
255 Mr. Suryaprakasam, learned counsel for the appellants, raised before us the following two points: (1) The previous execution petition was dismissed and, therefore, it was not pending at the time of filing of E.P. 58 of 1953, and, therefore, the later execution petition was a fresh application within the meaning of section 48 of the Code; and (2) even if the previous application was only closed for statistical purposes, and the decree holders could apply for reviving those proceedings, E.P. No. 58 of 1953 was a fresh execution petition because the parties and the properties proceeded against were different and the relief asked for was also different.
Before we consider the question raised, it would be con venient at the outset to look at the material provisions of section 48 of the Code.
It reads: "(1) Where an application to execute a decree not being a decree granting an injunction has been made, no order for the execution of the same decree shall be made upon any fresh application Presented after the expiration of twelve years from (a) the date of the decree sought to be executed." This section corresponds to paras 3 and 4 of section 230 of the Code of 1882.
The relevant part of the section read: "Where an application to execute a decree for the payment of money or delivery of other property has been made under this section and granted, no subsequent application to execute the same decree shall be granted after the expiration of twelve years from any of the following dates: A comparison of the said two provisions shows that the phrase "fresh application" has been substituted for "subse quent application".
This amendment became necessary in order to make it clear that the application mentioned in section 48 of the Code is a fresh substantive application and not an application to revive or continue a substantive application already pending on the file of the court.
256 The question, therefore, is whether E.P. 58 of 1953 is a fresh application within the meaning of section 48 of the Code.
The answer to this question mainly turns upon the question whether the previous application i.e., E.P. 13 of 1939, was finally disposed of by the executing court.
From the narra tion of facts given by us earlier it is clear that the said execution petition was "closed" for statistical purposes.
As the High Court stayed the execution pending the appeal filed by the judgment debtors, the decree holders were not in a position to proceed with the execution petition, and, therefore, it was closed.
Some argument was raised on the question whether the said execution petition was closed for statistical purposes or was dismissed that it was contended that under the Code of Civil Procedure there was no power conferred upon a court to close execution proceedings for statistical purposes, and that even if such an order was made, it must be deemed to be an order dismissing the execution petition.
The actual order dated December 28, 1948 has not been placed before us.
But in E.P. 58 of 1953 in co].
6 thereof it is mentioned that E.P. No. 13 of 1939 was closed on December 28, 1948.
In the counter affidavit filed by one of the judgment debtors it is stated that E.P. 13 of 1939 was dismissed on December 28, 1948 and not merely closed.
After the disposal of the appeal by the High Court and before the filing of E.P. No. 58 of 1953, the decree holders filed E.A. No. 142 of 1952 for reopening E.P. No. 13 of 1939.
On that petition the learned Subordinate Judge made the following order: "The previous E.P. was merely closed.
Petitioner may file a regular E.P. on which proceedings will continue from the stage at which they were left in E.P. 13 of 1939.
" This order discloses that the previous execution petition was only closed.
The Subordinate Judge must have presumably looked into the previous record.
The learned Subordinate Judge proceeded on the assumption that the previous exe cution petition was pending, though he dismissed the present execution petition on another ground.
This factual position was not contested even in the High Court, for the High Court stated that the previous application was merely closed for 257 statistical purposes.
In the circumstances we must proceed on the assumption that the Execution Petition 13 of 1939 was only closed for statistical purposes.
Learned counsel for the appellants contends that the Code of Civil Procedure does not sanction the passing of an order closing an execution petition for statistical purposes and that practice has been condemned by courts.
Under 0.
XXI, r. 17(1) of the Code, the Court may reject an execution application if the requirements of rules 11 to 14 have not been complied with.
Under r. 23 thereof, if the judgment debtor does not appear or does not show cause to the satisfaction of the court why the decree should not be executed, the court shall order the decree to be executed, and where such person offers any objection to the execution of the decree, the Court shall consider such objection and make such orders as it thinks fit.
Under r. 57 thereof, "Where any property has been attached in execution of a decree but by reason of the decree holder 's default the Court is unable to proceed further with the application for execution, it shall either dismiss the application or for any sufficient reason adjourn the proceedings to a future date. .
Relying upon these provisions it is argued that though the power of the court to make an order under 0.
XXI, r. 23 (2) is wide and it can make any order it thinks fit, it can only make one or other of the two orders mentioned in r. 57 when it could not proceed with the execution because of the default of the decree holder.
It is said that in this case the decree holders could not proceed with the execution in view of the stay order of the High Court and, therefore, the executing court could have either dismissed the application or adjourned the proceedings to a future date and it has no jurisdiction to pass an order closing the execution for statistical purposes.
It is further said that an order closing proceedings for statistical purposes is not an order of adjournment, for an order of adjournment implies that the application is on the file, whereas the object of closing is to take it out of the file, though temporarily, and, therefore, the order, in effect and substance, is one of dismissal.
Assuming that the order was made by reason of the decree holder 's default within the meaning of 0.
XXI, r. 57 of the Code, we find it difficult to attribute something to the court which it never intended to 34 159 3 C. 17 258 do.
It is true courts have condemned the practice of exe cuting courts using expressions like "closed", "closed for statistical purposes", "struck off", "recorded" etc., and they also pointed out that there was no provision in the Code of Civil Procedure for making such orders: see Biswa Sonan Chunder Gossyamy vs Binanda Chunder Dibingar Adhikar Gossyamy(1); Vadlamannati Damodara Rao vs The Official Receiver, Kistna(2); Moidin Kutty vs Doraiswami(3).
It is not necessary to express our opinion on the question whether such procedure is sanctioned by the Code of Civil Procedure or not; but assuming that the court has no such power, the passing of such an order cannot tantamount to an order of dismissal, for the intention of the court in making an order is closed" for statistical purposes is manifest.
It is intended not to finally dispose of the application, but to keep it pending.
Whether the order was without jurisdiction or whether it was valid, the legal position would be the same; in one case it would be ignored and in the other, it would mean what it stated.
In either case the execution petition would be pending on the file of the court.
That apart, it is not the phraseology used by the executing court that really matters, but it is really the substance of the order that is material.
Whatever terminology may be used, it is for the court to ascertain having regard to the circumstances under which the said order was made, whether the court intended to finally terminate the execution proceedings.
If it did not intend to do so, it must be held that the execution proceeding were pending on the file of the court.
We have no hesitation, therefore, in agreeing with the High Court that E.P. 13 of 1939 is pending on the file of the executing court and that the present application is only an application to continue the same.
Even so, it is contended that E.P. No. 58 of 1953 is a fresh application.
Learned counsel compared the recitals in E.P. 13 of 1939 and E.P. 58 of 1953 and pointed out that all the respondents in the former execution petition are not respondents in the present execution petition; that legal representatives of some of the defendnts are added to the present execution petition; that the decree holders did not (1) Cal.
(3) A.I.R. 1952 Mad.
51 . 259 seek to proceed against all the properties against which they sought to proceed in the former execution petition; and that one of the reliefs, namely, to attach the amount deposited in court, asked for in the present execution petition is a completely new one and that, therefore, the present execution petition is, both in form and in particulars, completely a different one.
But a comparison of the two execution petitions shows that the parties are the same: the new parties added in the present execution petition are either the legal representatives of the deceased parties or the representative of a party who has become insolvent.
In the present execution petition the decree holders are not proceeding against any property against which they did not seek to proceed in the earlier proceeding; they only omitted some of the properties.
The decree holders cannot be compelled to proceed against all the properties against which at one time they sought to proceed.
The relief by way of attachment of the amount deposited in court had been asked for by the decree holders by a separate petition, namely, E.A. No. 143 of 1962, and that was dismissed and, therefore, nothing turns upon it.
The result is, therefore, in substance tinder both the execution petitions the decree holders seek to proceed against the same parties and against the same properties.
The law on the subject is well settled.
In Bandhu Singh vs Kayastha Trading Bank(1), where a decree holder included new items of property for attachment in an application for execution of his decree filed 12 years after the date of the decree, it was held that the application to attach fresh property was a fresh application within the meaning of section 48 of the Code and, therefore, having been made more than 12 years after the date of the decree, could not be entertained.
In Sri Raja D. K. Venkata Lingama Nayanim vs Raja Inuganti Rajagopala Venkata Narasimha Rayanim(2).
where an application was made for amending a pending execution petition with a view to attach another property not included in the pending application, the court held that the application for amendment could not be allowed, as it was made beyond the period of 12 years from the date of the decree.
In Ippagunta Lakshminarasinga Rao vs Ippagunta (1) All. 419.
(2) I.L.R. 260 Balasubrahmanyam (1), where the execution petition filed beyond 12 years of the decree asked for a new relief not asked for in the earlier execution petition, it was held that the subsequent application, having been filed beyond 12 years, was hit by section 48 of the Code.
In Gajanand Sah vs Dayanand Thakur(2), the decree holder was not allowed to substitute a new property different from the one against which he wished to proceed in the earlier application on the ground that 12 years had expired from the date of the passing of the decree.
The result of the decisions may be summarized thus.
An application made after 12 years from the date of the decree would be a fresh application within the meaning of section 48 of the Code of Civil Procedure, if the previous application was finally disposed of.
It would also be a fresh application if it asked for a relief against parties or properties different from those proceeded against in the previous execution petition or asked for a relief substantially different from that asked for in the earlier petition.
In this case, as we have pointed out, the parties are sub stantially the same in both the proceedings, and the decree holders are only proceedings against properties included in the previous application.
It cannot, therefore, be treated as a fresh application within the meaning of section 48 of, the Code.
It is only an application to continue E.P. No. 13 of 1939 which is pending on the file of the executing court.
That apart, the decree holders filed E.A. No. 142 of 1952 in E.P. No. 13 of 1939 expressly asking for the reopening of the said execution petition and for proceeding with it.
As we have held that the earlier execution petition is still pending on the file of the court, the executing court will be well within its rights in proceeding on the basis of the earlier execution petition even without a new petition.
In the result, we hold that the order of the High Court is right.
The appeal fails and is dismissed.
There Will be no order as to costs.
(1)A.1.R. Appeal dismissed.
(2)(1942) 1.L.R. 21 Pat.

dataset_name: IN-Abs

summary/full:
The decree holders filed an application for execution of the decree being E.P. No. 13/1939.
This execution proceeding had to be stayed .as a result of the stay order of the High Court.
Ultimately the executing court made an order on E.P. 13/1939 to the effect that the Execution Petition was "closed".
On January 21, 1952, the decree holders made an application for reopening the execution E.P. No. 13/1939 and for proceeding with the execution of the decree, The Subordinate Judge, (executing court) holding that the previous execution petition was merely closed" directed the decree holders to file a regular execution petition.
On October 11, 1952 the decree holders filed E.P. No. 58/53 to continue further proceedings in E.P. No. 13/1939.
The judgment debtors filed a counter affidavit pleading, inter alia that the decree sought to be executed was made on September 22, 1938, and that as E.P. No. 13/1939 was dismissed on December 28, 1948, the present application, having been filed more than 12 years from the date of decree, was barred under section 48 of the Code of Civil Procedure.
On these facts the Subordinate Judge held that though the decree holders were entitled to continue previous execution petition, E.P. No. 58/53 was a fresh application as it differed from the original execution petition.
On appeal, the High Court held that E.P. No. 13/1939 was merely closed for statistical purposes, and, therefore, the execution petition filed in 1939 was still pending and the decree holders were entitled to proceed with that petition.
Hence the appeal.
The question for consideration is whether E.P. No. 58/53 is a fresh application within the meaning of section 48 of the Code.
Held: (i) It is true courts have condemned the practice of executing courts using expressions like "closed", "closed for statistical purposes", struck off" "recorded" etc., and they have also pointed out that there is no provision in the Code of Civil Procedure for making such orders.
But assuming that the court has no such power, the passing of such ,in order cannot be tantamount to an order of dismissal, for the intention of the court in making an order "closed" for statistical purposes is manifest.
It is intended not to finally dispose of the application, but to keep it pending.
Whether the order was without jurisdiction or whether it was valid, the legal position would be the same: in one case it would be ignored and in the other it would mean what it stated.
In either case the execution petition would be pending on the file of the court.
It is not the phraseology used by the Executing Court that really 252 matters, but is is really the substance of the order that is material.
Whatever terminology may be used, it is for the Court to ascertain, having regard to the circumstances under which the said order was made, whether the Court intended to finally terminate the execution proceedings.
If it did not intend to do so, it must be held that the execution proceedings were pending on the file of the Court.
In the present case the subsequent application ie.
E.P. No. 58/53 is only an application to continue the previous application i.e. E.P. 13/1939.
Biswa Sonan Chunder Gossyamy vs Binanda Chander Dibingar Adhikar Gossyamy, Cal.
416, Vadlamannati Damodara Rao vs Official Receiver, Kistna, I.L.R. 1946 Mad. 527 and Moidin Kutty vs Doraiswami, A.I.R. 1952 Mad. 51, referred to.
(ii) An application made after 12 years from the date of decree would be a fresh application within the meaning of section 48 of the Code of Civil Procedure, if the previous application was finally disposed of.
It would also be a fresh application if it asked for a relief against parties or properties different from those proceeded against in the previous execution petition or asked for a relief substantially different from that asked for in the earlier petition.
In the present case the parties are substantially the same in both proceedings, and the decree holders are only proceeding against properties included in the previous application ie.
E.P. No. 13/1939.
It cannot, therefore, be treated as a fresh application within the meaning of section 48 of the Code.
Bandhu Singh vs Kayastha Trading Bank, All. 419, Sri Raja D. K. Venkata Lingama Nayanim vs Raja Inuganti Rajagopala Venkata Narasimha Rayanim, I.L.R. [1947] Mad.
525, Ippagunta Lakshminarasinga Rao vs Ippagunta Balasubrahamanyam, and Gajanand Sah vs Dayanand Thakur Pat.
discussed.


judgement:
iminal Appeal No. 90 of 1961.
Appeal by special leave from the judgment and order dated January 10, 1961, of the Calcutta High Court in Criminal Revision No. 1545 of 1960.
Sukumar Ghose, for the appellant.
D. N. Mukherjee, for the respondent.
276 January 21, 1964.
The Judgment of the Court was delivered by MUDHOLKAR J.
This is an appeal against the judgment of the Calcutta High Court quashing the issue of process against the respondent.
The respondent is an Assistant Commissioner of Police in the City of Calcutta and the appellant had made a complaint against him alleging that he had committed an offence under section 348, I.P.C. that is, wrongful confinement in order to extort a confession or compel restoration of property.
The facts as alleged by the appellant are as follows: One Manoharlal Seth had lodged a complaint on July 28, 1960 against him and two other persons Fatehlal and Jaichand for offences under section 120B/420, I.P.C. and section 420 I.P.C. Manoharlal Seth had alleged in his complaint that these persons had induced him to purchase a bar of brass for Rs. 6,000 on the representation that it was of gold and thus duped him.
Upon this complaint, investigation was taken up by the police.
He came to know Manoharlal Seth in the course of his business.
They were on quite friendly terms in the beginning and later on considerable differences arose between him and Manoharlal Seth.
As a result of that Manoharlal Seth told him that unless he settled his differences with Manoharlal Seth according to the latter 's dictates he would put him into trouble through his friend, the respondent, and that it is because of this that Manoharlal lodged a complaint against him for cheating.
This complaint was thus a false complaint and it is common ground that ultimately it was dismissed by the Presidency Magistrate, 8th Court, Calcutta on January 2, 1961.
Then according to the appellant, on August 3, 1960 at about 6 00 A.M. P. C. Kundu, Sub Inspector of Police attached to Burrabazar Police Station along with another Sub Inspector section Bhattacharya, visited his residence, searched his house and arrested him.
Neither of them had any warrant with them for the search of the house or for the 277 arrest of the appellant.
Upon enquiry by him from these persons they told him that this was being done under the orders of the respondent.
After his arrest the appellant said that he was taken to the Burrabazar police station at about 7 00 a.m. and then to Jorasanko Police Station and produced before T. K. Talukdar, Sub Inspector in charge of that police station.
From there he was taken to various places in Calcutta with a rope tied round his waist by Kundu and Bhattacharya and was eventually produced at about 12 noon before the respondent in his office at Lalbazar.
There the respondent started threatening the appellant and asked him to settle the dispute with Manoharlal Seth and pay him Rs. 5,000 or to acknowledge in writing that he would pay this sum of money to Manoharlal Seth.
At about 3 30 p.m. on the same day his brother Iswarilal accompanied by a lawyer Chakravarthy visited the respondent 's office and sought the appellant 's release on bail as the offence was a bailable one.
The respondent, however, refused to grant bail saying that no bail would be granted until a sum of Rs. 5,000 was paid to Manoharlal Seth.
The appellant says that he was detained at Lalbazar Police Station till 8 00 p.m.
From there he was taken to Jorasanko Police Station and kept in the lock up for the whole night.
On the next day, that is, August 4, 1960 he was again produced before the respondent at Lalbazar where the latter repeated his threats and that after obtaining his finger prints and taking his photographs he was taken to the court of the Additional Chief Presidency Magistrate where he was released on bail at about 2 30 p.m.
On August 19, 1960 the appellant preferred a complaint before the Chief Presidency Magistrate, Calcutta, under section 348 and section 220, I.P.C. and section 13C of the Calcutta Police Act, 1866.
In so far as two of the persons named as accused therein, section I. Kundu and section I. Talukdar, he decided to issue process against them under section 220 I.P.C. and section 13C of the Calcutta Police Act.
As regards the respondent, he decided to issue process against him under section 348, I.P.C.
Upon a revision application preferred by the respondent the High Court quashed the process issued against him by 278 the learned Chief Presidency Magistrate.
The ground urged before; the High Court on behalf of the respondent was that before he could be proceeded against sanction of the State Government under section 197, Cr.
P.C. ought to have been obtained.
This contention was upheld by the High Court.
On.1 behalf of the appellant Mr. Sukumar Ghose contends that the High Court in quashing the process has proceeded to decide on the merits of the case even though there was no material before it to do so and that therefore its judgment cannot stand.
It is true that for considering whether section 197, Cr.
P.C. would apply the Court must confine itself to the allegations made in the complaint.
But that does not mean that it need not look beyond the form in which the allegations have been made and is incompetent to ascertain for itself their substance.
Here the substantial allegation is that the respondent questioned the appellant when he was produced at his office in Lalbazar, asked him to restore Rs. 5,000 to Manoharlal Seth who had lodged a complaint of cheating against the appellant and two others and that he declined to release him on bail.
No doubt the appellant has made a grievance in his complaint that the respondent said that the appellant would not be released on bail unless he either paid the amount or acknowledged in writing his liability to pay this amount.
Assuming that the allegation is true all that the thing boils down to is that the respondent refused to enlarge the appellant on bail and that he wanted the appellant to settle the matter with Manoharlal Seth.
It cannot be disputed that whether a person charged with an offence should or should not be released on bail was a matter within the discretion of the respondent and if while exercising a discretion he acted illegally by saying that bail would not be granted unless the appellant did something which the appellant was not bound to do, the respondent cannot be said to have acted otherwise than in his capacity as a public servant.
For this reason the sanction of the appropriate authority for the respondent 's prosecution was necessary under section 197, Cr P.C. 279 Mr. Ghose, however, contends that the appellant 's detention in the respondent 's office was illegal and that, therefore, the respondent could not be said to have been in a position to exercise any lawful authority with respect to him.
It is difficult to appreciate how the appellant 's detention could be said to be illegal because it was in pursuance of the investigation of the complaint lodged by Manoharlal Seth that he was arrested and brought for interrogation before the respondent.
It was not disputed before us that investigation into Manoharlal 's complaint had been ordered though there is a dispute as to whether it was ordered by the respondent or by the Deputy Commissioner of Police.
Whether it was by one or the other makes little difference.
We would like to make it clear that Mr. Ghose did not contend before us that the appellant 's detention in the office of the respondent was illegal because his initial arrest was without a warrant.
But we may point out that a police officer is legally empowered to arrest a person alleged to have committed an offence under section 420, I.P.C. without a warrant.
Such being the position the High Court was justified in quashing the process.
Accordingly we dismiss this appeal.
Appeal dismissed.

summary/full:
The appellant made a complaint against the respondent, an Assistant Commissioner of Police for having committed an offence under section 348, Indian Penal Code, alleging that on the arrest of the appellant under section 1208/420 Indian Penal Code, the respondent had refused to grant him bail until a certain sum was paid or acknowledged in writing to be paid to the complainant.
The Chief Presidency Magistrate issued process.
On revision, the High Court quashed the process holding that sanction of the State Government under section 197 Code of Criminal Procedure ought to have been obtained.
On appeal by special leave, it was contended that the High Court in quashing the process had proceeded to decide on the merits of the case even though there was no material before it and therefore its judgment could not stand.
Held: (i) For considering whether section 197 Code of Criminal Procedure would apply the Court must confine itself to the allegations made in the complaint.
But that does not mean that it need not look beyond the form in which the allegations have been made and is incompetent to ascertain for itself their substance.
(ii) The sanction of the appropriate authority for the respondent 's prosecution was necessary under section 197 Code of Criminal Procedure.
Whether a person charged with an offence should or should not be released on bail was a matter within the discretion of the respondent and if while exercising a discretion he acted illegally by saying that bail would not be granted unless the appellant did something which the appellant was not bound to do, the respondent cannot be said to have acted otherwise than in his capacity as a public servant.


judgement:
Appeal No. 325 of 1962.
Appeal from the judgment and decree dated August 4, 1959 of the Andhra Pradesh High Court in Appeal Suit No. 489 of 1954.
K.Bhimsankaram and R. Ganapathy Iyer, for the appellants.
P.Ram Reddy, T. V. R. Tatachari and B. R. G. K. Achar, for respondent No. 1.
January 23, 1964.
The Judgment of the Court was delivered by MUDHOLKAR J.
This is an appeal against the judgment of the High Court of Andhra Pradesh by which it reduced the amount of compensation awarded to the appellants by the Subordinate Judge, Vijayawada in respect of certain lands belonging to them which were acquired by the State.
The lands in question are survey Nos.
281/2, 339/1 to 8 and 338/1 to 3 which are situate at a short distance from the town of Vijayawada and lie alongside the Vijayawada Eluru Road.
The Land Acquisition Officer had fixed Rs. 3,500 per acre for the first two of these survey Nos.
and Rs. 4.000 per acre for the third survey number.
The learned Subordinate Judge granted a uniform rate of Rs. 10,000 per acre for the lands comprised in all the survey numbers.
There were some disputes with regard to 296 the entitlement to the compensation for survey No. 339/1 to 3 and the Land Acquisition Officer, therefore, made a reference to the Court for the apportionment of the com pensation amount among the various claimants.
Six of the appellants did not accept the award of the Land Acquisition Officer and made applications in writing to him within the time allowed by law for referring the matter for deter mination of the court.
It is common ground that no refer ence was made by the Land Acquisition Officer in pursuance of these applications.
When the matter came up before the Court it proceeded on the footing that the reference made to it by the Land Acquisition Officer was not merely limited to the apportionment of compensation but was also with respect to the amount of compensation.
No objection was, however, raised on behalf of the State that in the absence of any reference upon the applications of six of the appellants the Court was incompetent to deal with that matter.
When the matter went up before the High Court by way of an appeal from the judgment of the Subordinate Judge, the Government pleader raised the question that in the absence of a reference on the question of quantum of compensation by the Land Acquisition Officer, the Court had no jurisdiction to consider that matter at all.
The High Court, though it ultimately reversed the finding of the court as to the amount of compensation, unfortunately allowed the plea to be raised before it but ultimately upon a consideration of certain decisions, negatived it.
We say unfortunately because this is not 'a kind of plea which the State ought at all to have taken.
Quite clearly applications objecting to the rates at which compensation was allowed were taken in time by persons interested in the lands which were under acquisition and it was no fault of theirs that a reference was not made by the Land Acquisition officer.
Indeed, whenever applications are made under section 18 of the Land Acquisition Act, it is the duty of the Land Acquisition Officer to make a reference unless there is a valid ground for rejecting the applications such as for instance that the applications were barred by time.
Where an officer of the State is remiss in the performance of his duties in fairness the State ought not to take advantage of this fact.
We are further of the 297 opinion that the High Court, after the plea had been raised, would have been well advised to adjourn the matter for enabling the appellants before us, who were respondents in the High Court, to take appropriate steps for compelling the Land Acquisition Officer to make a reference.
All the same since the point was permitted to be urged before it by the High Court and has been raised before us on behalf of the State it is necessary to decide it.
On behalf of the appellants it was contended before the High Court that by reason of the failure of the State to raise the plea before the Subordinate Judge as to the absence of a refer ence the State must be deemed to have waived the point.
The High Court accepted this argument upon the view that this was not a case of inherent lack of jurisdiction and that the defect in the procedure was such as could be waived.
In our opinion the view of the High Court is not correct.
Section 12(1) of the Land Acquisition Act provides that after an award is filed in the Collector 's office it shall, except as provided in the Act, be final and conclusive evidence as between the Collector and the persons interested of the true area and value of the land and the apportionment of the compensation among the persons interested.
The only manner in which the finality of the award can be called into question is by resort to the provisions of section 18 of the Land Acquisition Act, sub section (1) of which reads thus: "Any person interested who has not accepted the award may, by written application to the Collector, require that the matter be referred by the Collector for the determination of the Court, whether his objection be to the measurement of the land, the amount of the compensation, the persons to whom it is payable, or the apportionment of the compensation among the persons interested.
" The proviso to sub section
(2) prescribes the time within which an application under sub section (1) is to be made.
Section 19 provides for the making of a reference by the Collector and specifies the matters which are to be comprised in that 298 reference.
Thus the matter goes to the court only upon a reference made by the Collector.
It is only after such a reference is made that the court is empowered to determine the objections made by a claimant to the award.
Section 21 restricts the scope of the proceedings before the court to consideration of the contentions of the persons affected by the objection.
These provisions thus leave no doubt that the jurisdiction of the court arises solely on the basis of a reference made to it.
No doubt, the Land Acquisition Officer has made a reference under section 30 of the Land Acquisition Act but that reference was only in regard to the apportionment of the compensation amongst the various claimants.
Such a reference would certainly not invest the court with the jurisdiction to consider a matter not directly connected with it.
This is really not a mere technicality for as pointed out by the Privy Council in Nusserwanjee Pestonjee & Ors.
vs Meer Mynoodeen Khan Wullud Meer Sudroodeen Khan Bahadoor(1) wherever jurisdiction is given by a statute and such jurisdiction is only given upon certain specified terms contained therein it is a universal principle that those terms should be complied with, in order to create and raise the jurisdiction, and if they are not complied with the jurisdiction does not arise.
This was, therefore, a case of lack of inherent jurisdiction and the failure of the Slate to object to the proceedings before the court on the ground of an absence of reference in so far as the determination of compensation was concerned cannot amount to waiver or acquiescence.
Indeed, when there is an absence of inherent jurisdiction, the defect cannot be waived nor can be cured by acquiescence.
In Alderson vs Palliser & Anr.
(2) the Court of Appeal held that where the want of jurisdiction appears on the face of the proceedings.
it cannot be waived.
In Seth Badri Prasad & Ors.
vs Seth Nagarmal and Ors.
( 3) this Court has held that even the bar of illegality of a transaction though not pleaded in the courts below can be allowed to be pleaded in this Court if it appears on the face of the pleading in (1) 6 M. 1.
A. 134 at 155.
(2) (1901)2 K.B.833.
(3) [1959] supp.(1) S.C.R. 769.
299 the case.
The High Court has, however, based itself largely upon a decision of the Privy Council in Venkata Krishnayya Garu vs Secretary of State(1).
In that case there was in fact a reference by the Collector to the court but that reference was made by the Collector not upon the application of the person legally entitled to compensation but by a person whose claim to ownership of property had failed before the civil court but who was still a party to the land acquisition proceedings.
In our opinion that decision is distinguishable on the short ground that whereas here there is no reference at all by the Collector or the Land Acquisi tion Officer, in that case the Collector had made a reference though in making it he had committed an error of law in that he acted upon the application of a person who had been found to have no interest in the land.
Disagreeing with the High Court we, therefore, hold that the Court had no jurisdiction to determine the amount of compensation and thus go behind the order of the Land Acquisition Officer.
Upon this short ground the appeal must be dismissed.
We have, however, heard Mr. Bhimasankaram on merits and in our opinion there are no substantial grounds which would justify interference with the conclusions arrived by the High Court.
For determining the amount of compensation seven sale deeds were filed, Exs.
Al to A4, on behalf of the State and B1 to B3 on behalf of the appellants.
A synopsis of the sale deeds has been made by the High Court in its judgment and we can do no better than to reproduce it: Sl.
Exhi Date Extent of Amount Rate per Proximity of No. bit land acre site acquired Acs.
Rs. Rs. 1.
A 1 15 2 46 0 40 1/2 1,750 4,240 Opposite to thesuit land and abutting the main road.
A 2 25 8 46 0 65 1/2 2,500 3,800 Some distance away from the site of the acquired land towards Eluru.
A.I. R. 1939 P. C. 39; 60 M. L. J. 399.
300 3.
A 3 9 10 46 1 004,5OO 4,500 Very near the acqu ired land the same vendee.
4.A 4 9 10 46 1 004,500 4,500 Partof the same site, and the vendee.
B 1 14 10 46 0 707,000 10,0005 furlongs away from the suit site and nearer Bezwada.
B 2 14 2 47 1 09 just over 5 furlongs away to 12,000 12,000 wards Bezwada.
7.B 3 24 1 46 0 36 1,850 5,000 Itis a part and parcel of the same land that is sought to be acqui red.
Out of these sale deeds Exs.
Al and A2 were rejected by the High Court, Al on the ground that it is several months earlier than the date of notification under section 4 of the Act and exhibit A2 on the ground that the land comprised in it is some distance away from the land under acquisition and is also further away from Vijayawada than this land.
The High Court similarly rejected exhibit B2 2 on the ground that the transaction was entered into four months after the publi cation of the notification and on the further ground that it is located in the direction of Vijayawada at a distance of five furlongs from the land acquired.
It has apparently rejected also exhibit B3, though the land sold thereunder is a part and parcel of the same land which is sought to be acquired.
The ground appears to be that the land sold thereunder is only 36 cents in area.
It has accepted Exs.
A3 and A4 and on that basis awarded compensation at the rate of Rs. 4,500 per acre for all these lands.
In so far as exhibit B1 is concerned the High Court has taken the view that though it bears the date of October 14, 1946 the cir cumstances that it was actually registered on February 13, 1947 and some of the stamp papers used were in the names of persons unconnected with the transaction shows that it has really been ante dated so as to make it appear to be earlier in point of time than the notification.
In our opinion what the High Court has said about these three exhibits, B1, B2 and B3, seems to have consi 301 derable force.
At any rate we do not think that there are any substantial grounds upon which we can look at these transactions in a different way.
If these documents go away, as also Exs.
Al and A2, we are left with only Exs. A3 and A4.
Some argument was advanced before us to the effect that the lands comprised in the transactions repre sented by these documents have no direct access to the road and that, therefore, they could not have fetched a good price.
Bearing in mind the fact that these are all agricultural lands a rate of Rs. 4,500 per acre at which they were sold cannot prima facie be regarded as inadequate.
As regards access, it is sufficient to say that they are parts of the same field which abut on the road, though the portions sold do not themselves abut on the road.
Since the lands sold under these sale deeds were part and parcel of the same field which abuts on the road those who purchased these lands would naturally obtain a right of way over the land unsold so as to have access to the road.
In the circumstances we hold that the appeal is without substance.
Accordingly we dismiss it with costs.
Appeal dismissed.

summary/full:
On a dispute with regard to the entitlement to the compensation awarded to the appellants in respect of certain land acquired by the State, the Land Acquisition Officer made a reference to the court for the apportionment of the compensation amount among the various claimants.
Six of the appellants did not accept the award of the Land Acquisition Officer and made applications to him for referring the matter, for determination by the court.
No reference was made by him in pursuance of these applications.
When the matter came up before the Court it proceeded on the footing that the reference made to it was not merely limited to the apportionment of compensation but also with respect to the amount of compensation.
No objection was raised by the State before the Subordinate Judge that in the absence of any reference upon the applications of six of the appellants the Court was incompetent to deal with that matter.
When the matter went up in appeal before the High Court, the Government Pleader raised the question that in the absence of a reference on the question of quantum of compensation, the Court had no jurisdiction to consider that matter at all.
The High Court, allowed this plea to be raised before it but ultimately negatived it.
and it also modified the finding of the Court as to the amount of compensation.
The appellants contended before the High Court that by reason of thefailure of the State to raise the plea before the Subordinate Judge asto the absence of a reference the State must be deemed to have waivedthe point.
The High Court accepted this 'argument upon the view thatthis was not a case of inherent lack of jurisdiction and that the defectin the procedure was such as could be waived.
Held:(i) On consideration of the relevant provisions contained in P 18 of the land Acquisition Act, the jurisdiction of the court arises solely on the basis of a reference made to it.
Wherever jurisdiction is given by a statute and such jurisdiction is only given upon certain specified terms contained therein, it is a universal principle that those terms should be complied with, in order to create and raise the jurisdiction, and if they are not complied with the jurisdiction does not arise.
Therefore, it was a case of lack of inherent jurisdiction and the failure of the State to object to the proceedings before the Court on the ground of an absence of 295 reference in so far as the determination of compensation was concerned cannot amount to waiver or acquiescence.
Indeed, when there is an absence of inherent jurisdiction, the defect cannot be waived nor can be cured by acquisition.
(ii)The court had no jurisdiction to determine the amount of compensation and thus go behind the order of the Land Acquisition Officer.
Nusserwanjee Pestonjee and others vs Meer Mynoodeen Khan Wullud Meer Subroodeen Khan Bahadur, 6 M.L.A. 134, Alderson vs Paliser and another, and Seth Badri Prasad and others vs Seth Nagarmal and others,[1959] Supp.
(1) S.C.R. 769, relied on.
Venkata Krishnayya Garu vs Secretary of State, A.I.R. 1939 (P.C. distinguished.


judgement:
Appeal No. 1064 of 1963.
Appeal by special leave from the judgment and order dated July 23, 1963, of the Allahabad High Court (Lucknow Bench) in First Civil Appeal No. 11 of 1963.
N. C. Chatterjee and J. P. Goyal, for the appellant.
section P. Sinha and section Shaukat Hussain, for respondent No. 1.
January 17, 1964.
The Judgment of the Court was delivered by SHAH J.
At the general elections held in February 1962, five candidates contested the election to the House of the People from the Barabanki single member constituency.
The appellant Ram Sewak Yadav who will be referred to as Yadav was at the counting of votes found to have secured the highest number of votes and he was declared elected.
Hussain Kamil Kidwai hereinafter called Kidwai who was one of the candidates at the election submitted a petition on April 6, 1962, to the Election Commission for an order declaring the election of Yadav void and for an order that he (Kidwai) be declared duly elected.
The Election Tribunal, Lucknow, to which the petition was referred for trial dismissed the petition.
In appeal to the High Court of Allahabad the order passed by the Election 240 Tribunal was reversed and the proceedings were remanded for trial with a direction, among others, that the Tribunal do give reasonable opportunity to both the parties to inspect the ballot papers and other connected papers.
With special leave, Yadav has appealed against the order of the High Court.
The principal grounds set up by Kidwai in support of his petition were (1) that there had been improper reception, refusal and rejection of votes at the time of counting, and in consequence thereof the election was materially affected; (2) that there were discrepancies between the total number of votes mentioned in Form 16 and Form 20; (3) that the tendered votes were wrongly rejected by the returning officer and on that account the election was materially affected; (4) that at the polling station No. 29, Majgawan in Bhitauli Unit and Kursi polling station in Kursi Assembly Unit, the polling officers did not give ballot papers to the voters; (5) that the counting of votes of Bhitauli Assembly Unit continued till 8 30 p.m. in insufficient light notwithstanding the protest lodged by the petitioner; and (6) that on a true count he (Kidwai) would have received a majority of valid votes and that he was entitled to be declared duly elected.
These allegations were denied by Yadav.
At the trial before the Tribunal the parties led no oral evidence.
In respect of the pleas (3), (4) and (5) the burden of proof lay upon Kidwai and as no evidence was led to . substantiate the same, those pleas failed.
Again in the view of the Tribunal, Kidwai could discharge the burden of proof which lay upon him to establish that there were discrepancies ,between the original and the certified copies of Forms Nos 241 16 & 20, and as the original forms were not called for by Kidwai, his second ground must also fail.
Kidwai claimed that he would be able to establish his case on pleas (1) & (6) from the ballot papers, and submitted that an order for inspection of the ballot papers be made and that he be per mitted to show from the ballot papers that the Returning Officer had improperly received, refused or rejected the votes, and that on a true count he would get the largest number of valid votes.
The Tribunal rejected the applica tion for inspection holding that ballot papers may be allowed to be inspected only if it is necessary in the interest of justice and to support an order for inspection facts must be brought to its notice making out a prima facie case disclosing that errors were committed in the reception, refusal or rejection of votes at the time of counting, and unless a prima facie case was made out the Tribunal would be justified in declining to make an order for inspection.
The High Court however held that ballot papers had actually been called for from the Returning Officer and were before the Tribunal, that there was nothing in the Code of Civil Procedure which prevented the Tribunal from allowing inspection of the ballot papers in the custody of the Court, and that the Tribunal had rejected the application for inspection without any adequate reasons for so doing.
The only question which falls to be determined in this appeal is whether the Election Tribunal erred in declining to grant an order for inspection of the ballot papers which had been, pursuant to its order in that behalf, lodged before it in sealed boxes by the Returning Officer.
In considering this question the material provisions of the Representation of the People Act, 1951, and the rules framed thereunder may first be noticed.
Section 80 of the Act provides that no election shall be called in question except by an election petition presented in accordance with the provisions of Part VI.
Section 83(1) states what the election petition shall contain.
It states: "Art election petition (a) shall contain a concise statement of the material facts on which the petitioner relies; 159 S.C 16 242 (b) shall set forth full particulars of any corrupt practice that the petitioner alleges, including as full a statement as posssible of the names of the parties alleged to have committed such corrupt practice and the date and place of the commission of each such practice; and (c) shall be signed by the petitioner and verified in the manner laid down in the Code of Civil Procedure, 1908, for the verification of pleadings: The rest of the section is not material.
Section 90(1) prescribes the procedure to be followed by the Tribunal.
It states: "Subject to the provisions of this Act and of any rules made thereunder, every election petition shall be tried by the Tribunal, as nearly as may be, in accordance with the procedure applicable under the Code of Civil Procedure, 1908, to the trial of suits: " Section 92 enumerates the powers which a Tribunal trying an election petition may exercise and the powers so enumerated are the powers which a Court under the Code of Civil Procedure, when trying a suit, may exercise in respect of discovery and inspection, enforcing attendance of witnesses, compelling production of documents, receiving evidence taken on affidavits and issuing commissions for the examination of witnesses.
Rules have been framed under the Act relating to production and inspection of election papers.
By rule 93 of the Conduct of Election Rules, 1961, it is provided that: "(1) While in the custody of the returning officer (a) the packets of unused ballot papers; (b) the packets of used ballot papers whether valid, tendered or rejected; (c) the packets of the marked copy of the electoral roll or, as the case may be, the list maintained under sub section (1) or sub section (2) of section 152; and 243 (d) the packets of the declarations by electors and the attestation of their signatures; shall not be opened and their contents shall not be inspected by, or produced before, any person or authority except under the order of a competent court or tribunal.
(2) All other papers relating to the election shall be open to public inspection subject to such fee, if any, as the Election Commission may direct.
(3) Copies of the returns by the returning officer forwarded under rule 64 or as the case may be.
under sub rule (3) of rule 84 shall be furnished by the chief electoral officer of the State concerned on payment of a fee of two rupees for each such copy.
" The rule makes a clear distinction between ballot papers and other election papers: ballot papers may be inspected only under the order of a competent court or tribunal, but other documents are, subject to certain conditions, open to public inspection.
In this case, on an oral request made by Kidwai all the ballot papers in sealed boxes were lodged with the Election Tribunal.
Kidwai claimed in the first instance that the Tribunal was bound to grant an order for inspection, because he had tendered the sealed boxes of ballot papers in evidence, and on that account all the ballot papers were part of the record.
The Tribunal rightly rejected this plea, to by the mere production of the sealed boxes pursuant to its order the ballot papers did not become part of the record and they were not liable to be inspected unless the Tribunal was satisfied that such inspection was in the circumstances of the case necessary in the interests of justice.
An election petition must contain a concise statement of the material facts on which the petitioner relies in support of his case.
If such material facts are set out the Tribunal has undoubtedly the power to direct discovery and inspection of documents with which a civil court is invest 244 ed under the Code of Civil Procedure when trying a suit.
But the power which the civil court may exercise in the trial of suits is confined to the narrow limits of 0.
II, Code of Civil Procedure.
Inspection of documents under 0.
II, Code of Civil Procedure may be ordered under rule 15, of documents which are referred to in the pleadings or particulars as disclosed in the affidavit of documents of the other party, and under rule 18(2) of other documents in the possession or power of the other party.
The Returning Officer is not a party to an election petition, and an order for production of the ballot papers cannot be made under 0.11 Code of Civil Procedure.
But the Election Tribunal is not on that account without authority in respect of the ballot papers.
In a proper case where the interests of justice demand it.
the Tribunal may call upon the Returning Officer to produce the ballot papers and may permit inspection by the parties before it of the ballot papers.
That power is clearly implicit in sections 100(1)(d)(iii), 101, 102 and rule 93 of the Conduct of Election Rules, 1961.
This power to order inspection of the ballot papers which is apart from 0.11 Code of Civil Procedure may be exercised, subject to the statutory restrictions about the secrecy of the ballot paper prescribed by sections 94 and 128(1).
An order for inspection may not be granted as a matter of course: having regard to the insistence upon the secrecy of the ballot papers, the Court would be justified in granting an order for inspection provided two conditions are ful filled: (i) that the petition for setting aside an election con tains an adequate statement of the material facts on which the petitioner relies in support of his case; and (ii) the Tribunal is prima facie satisfied that in order to decide the dispute and to do complete justice between the parties inspection of the ballot papers is necessary, But an order for inspection of ballot papers cannot be granted to support vague pleas made in the petition not supported by material facts or to fish out evidence to support such pleas.
The case of the petitioner must be set out with pre 245 cision supported by averments of material facts.
To estab lish a case so pleaded an order for inspection may undoubt edly, if the interests of justice require, be granted.
But a mere allegation that the petitioner suspects or believes that there has been an improper reception, refusal or rejection of votes will not be sufficient to support an order for inspection.
It must be remembered that the rules framed under the Representation of the People Act, 1951, set up an elaborate machinery relating to the stage of counting of votes by the Returning Officer, and provide ample opportunity to the can didate who has contested the election or his agents to remain present and to keep an eye on any improper action which may be taken by the Returning Officer.
Rule 53 provides for the admission of only certain classes of persons to the place fixed for counting and amongst such persons are expressly included candidates, their election agents and counting agents, who may watch the counting subject to the directions which the returning officer may give.
Rule 55 deals with the procedure for scrutiny and opening of ballot boxes.
The Returning Officer has to satisfy himself that "none of the ballot boxes has in fact been tampered with" and before any ballot box is opened at the counting table, the counting agents present at that table are allowed to inspect the seal affixed thereon and to satisfy themselves that it is intact.
If the Returning Officer is satisfied that any ballot box has in fact been tampered with, he is prohibited from counting the ballot papers contained in that box and he has to follow the procedure prescribed in that behalf in section 58.
Clause (1) of rule 56 provides for the scrutiny and rejection of ballot papers.
Clause (2) sets out detailed provisions relating to, cases in which the Returning Officer shall reject a ballot paper By cl.
(3) it is provided that before rejecting any ballot paper under sub rule (2), the returning officer shall allow each counting agent present a reasonable opportunity to inspect such ballot papers.
The Returning Officer has then to record on every ballot paper which he rejects the grounds of rejection.
All the rejected ballot papers are required to be put in one bundle.
Rule 57 deals with the counting of votes.
Each ballot paper which is not rejected is counted 246 as one valid vote.
The Returning Officer has to make the entries in a result sheet in Form 20 after counting of the ballot papers contained in all the ballot boxes used at the polling stations.
Clause (3) of rule 57 enacts an elaborate set of rules about the entries to be made in respect of the counting and scrutiny of the ballot papers.
By rule 60 counting has to be continuous, and rule 63(1) provides that after the completion of the counting, the Returning Officer shall record in the result sheet in Form 20 the total number of votes polled by each candidate and announce the result.
By cl.
(2) of rule 63 it is provided that after such announcement is made, a candidate or his election agent may apply in writing to the Returning Officer for ' a recount of all or any of the ballot papers already counted stating the grounds on which he demands such recount.
The Returning Officer must decide the application and record his reasons in support of his decision and he may allow the application in whole or in part or may reject it if it appears to him to be frivolous or unreasonable.
After the total number of votes polled by each candidate has been announced, the Returning Officer must complete and sign the result sheet in Form 20 and after such form is completed no application for recount may be entertained.
Under rule 64 the declaration of the result of the election is made by declaring elected a candidate who has secured the largest number of valid votes, and the Returning Officer is required to complete and certify the return of election.
There can therefore be no doubt that at every stage in the process of scrutiny and counting of votes the candidate or his agents have an opportunity of remaining present at the counting of votes, watching the proceedings of the Returning Officer, inspecting any rejected votes, and to demand a are count.
Therefore a candidate who seeks to challenge an election on the ground that there has been improper reception, refusal or rejection of votes at the time of counting, has ample opportunity of acquainting himself with the manner in which the ballot boxes were scrutinized and opened, and the votes were counted.
He has also opportunity of inspecting rejected ballot papers, and of demanding a re count.
It is in the light of the provisions of section 83(1) which require a concise statement of material facts 247 on which the petitioner relies and to the opportunity which a defeated candidate had at the time of counting, of watching and of claiming a recount that the application for inspection must be considered.
In the petition filed by Kidwai the material allegations in support of the claim that there had been improper reception, refusal or rejection of votes were contained in paragraphs 6(H), 6(K) and 12.
In paragraph 6(H) it was averred that numerous ballot papers cast in favour of the petitioner were wrongly included in the "bundles of the respondents.
" In paragraph 6(K) it was averred that due to "a deficiency in the supply of sealing ink, marks on some ballot papers, though not quite clear, yet the marks clearly indicating the intention of the voters, were wrongly rejected as invalid by the returning officer.
" In paragraph 12 it was averred that "the petitioner is confident that if the votes actually cast in favour of the petitioner are counted as votes of the petitioner and if the improperly accepted votes which have been counted in favour of other respondents are taken out, and if the ballot papers are correctly sorted, counted and bundled.
the respondent No. 1 will be found to have polled less votes as compared to .
petitioner.
The petitioner further submits that the result of the Election has been materially affected by the improper acceptance and refusal of votes and by the incorrect sorting, counting and bundling of ballot papers.
" These averments in the petition for setting aside the election on the ground of improper acceptance or rejection of votes were vague, and did not comply with the statutory requirements of section 83(1)(a).
Paragraph 12 is deficient in the recital of material facts which must be deemed to be within the knowledge of the petitioner, and merely asserts that if the votes actually cast in favour of the petitioner are counted, the total number of valid votes found in his favour would exceed the number of votes received by Yadav.
Having regard to this infirmity the Tribunal was justified in declining to make an order for inspection of the ballot papers unless a prima facie case was made out in support of the claim.
The Tribunal has undoubtedly to exercise its discretion if it appears to be in the interests of justice, but the discretion has manifestly to be exercised having regard to the nature of the allegations made.
The Tribunal would be Justified ir 248 refusing an order where inspection is claimed with a view to fish out materials in support of a vague plea in the case set out in the petition.
The Tribunal was conscious of the true principle: it stated in its order dated August 25, 1962, that nothing was brought to its notice which would justify granting an order for inspection prayed for by the petitioner at that stage.
The Tribunal further observed: "If in future from facts that may be brought to the notice of the Tribunal, it appears that in the interests of justice inspection should be allowed, necessary orders allowing an inspection could always be passed".
Relying upon these observations another application was submitted by Kidwai asking for inspection but no additional materials were placed before the Tribunal.
As we have already observed Kidwai led no real evidence at the trial.
In his second application for inspection he merely averred that "the petitioner was almost sure" that on inspection and scrutiny of ballot papers, the allegations contained in the various paragraphs would be proved.
The allegation of Kidwai that he was satisfied that on inspection and scrutiny of ballot papers he would be able to demonstrate that there had been wrong counting on account of improper reception, refusal or rejection of votes was wholly insufficient to justify a claim for inspection.
He had to place before the Tribunal evidence prima facie indicating that an order for inspection was necessary in the interests of justice, which he failed to do.
Reliance was placed before this Court and the High Court upon the decision of this Court in Bhim Sen vs Gopali and others(1) in support of the plea that mere absence of parti culars will not furnish a ground for declining to grant ins pection and that a defeated candidate is entitled to establish his case that void votes had been counted and included in the votes of the successful candidate from the evidence collected from inspection of the ballot papers.
In Bhim Sen 's case(1) a petition was filed for setting aside an election of a candidate in a reserved seat in a double member constituency.
The principal ground in support of the petition (1) 249 was that it was incumbent upon the Returning Officer to go into each case of double voting in order to reject one of the two votes cast in contravention of section 63(1) of the Representation of the People Act, and that the Returning Officer having failed to discharge his duty to reject ballot papers cast in contravention of section 63 the petitioner believed that the successful candidate "could receive many void votes.
" The ballot boxes were opened and it was found that 37 void votes were counted in favour of the successful candidate and in view of the disclosure made by the inspection of the ballot papers the petitioner applied for leave to amend the petition by adding a specific averment that 37 void votes had in fact been counted in favour of the successful candidate and that the words "alleges" and "did" be substituted respectively for the words "believes" and "could".
Along with the petition for leave to amend he filed a list giving the particulars of the void votes.
This application was allowed by the Tribunal but the order was reversed by the High Court on the ground that the Tribunal had erred in allowing the amendment.
In appeal to this Court it was held that in a case like the one before the Court, definite particulars about the number and ' nature of the void votes that had been counted could only be supplied after inspection of the ballot papers, and the election petition as originally presented must therefore be regarded as having furnished the material particulars, and the amendment petition must be treated merely as an application for clarification of the pleadings.
We do not think that Bhim Sen 's case(1) lays down any general principle that a party is entitled without making allegations of material facts in support of his plea to set aside an election to claim an order for inspection of the ballot papers and seek to supply the lacuna in his petition by showing that if all the votes are scrutinized again by the Tribunal it may appear that there had been improper reception, refusal or rejection of votes at the time of counting.
To support his claim for setting aside the election the petitioner has to make precise, allegations of material facts which having regard to the elaborate rules are or must be deemed to be within his knowledge.
The nature of the allegations must of course depend ' upon the facts of each case.
But if material facts are not 22 E.L.R.288.
250 stated, he cannot be permitted to make out a case by fishing out the evidence from an inspection of the ballot papers.
In Bhim Sen 's case(1) the Court was primarily concerned with the question whether amendment of the petition to set aside an election should be granted.
It was alleged by the defeated candidate that there had been contravention of the provisions of section 63 (1 ) of the Act by the Returning Officer and the election was materially affected on that account.
The applicant had stated that he believed that the respondents had received many votes which were void.
When the ballot box was opened it was found that among the votes credited to the successful candidate were 37 votes which were void.
Thereafter the applicant applied to substitute the words " alleges" for "believes" and "did" for "could".
In that case the Court was not concerned to decide whether the order for inspection was properly made: the propriety of the order granting inspection does not appear to have ever been questioned.
The principal question raised in the appeal was whether the amendment of the petition should, in the circumstances, be granted and the observation of the Court that "definite particulars about the number and nature of the void votes that had been counted could only be supplied after inspection of the ballot papers" was not intended to be a general statement of the law that whenever an allegation is made in a petition to set aside an election that void votes have been included in the counting of votes received by a successful candidate, definite particulars with regard to the said void votes may only be supplied after the ballot papers are inspected, and that a defeated candidate may claim inspection of the ballot papers without making any specific allegations of material facts and without disclosing a prima facie case in support of the claim made.
In our view the High Court was in error in interfering with the exercise of discretion by the Election Tribunal which proceeded upon sound principles.
The appeal therefore is allowed and the order of the High Court is set aside.
The order of the Tribunal is restored with costs in this Court and the High Court.
Appeal allowed.

summary/full:
The respondent challenged the election of the appellant, inter alia, on the ground that there had been improper reception, refusal and rejection of votes at the time of counting and that on a true count he would have received a majority of valid votes and that he was entitled to be declared duly elected.
He claimed that by inspection of the ballot papers he would be able to establish his case on the aforesaid allegations and that the Tribunal was bound to grant an order for inspection, because he had tendered the sealed boxes of ballot papers in evidence, and on that account all the ballot papers were part of the record.
The Tribunal in its order stated that nothing was brought to its notice which would justify granting an order for inspection.
It further observed: "If in future from the facts that may be brought to the notice of the Tribunal, it appears that in the interests of justice inspection should be allowed, necessary orders allowing an inspection could always be passed".
Thereupon, another application was submitted by the respondent asking for inspection but no additional materials were placed before the Tribunal and no oral evidence was led at the trial.
The Tribunal rejected the application for inspection.
On appeal, the High Court held that ballot papers had actually been called for from the Returning Officer and were before the Tribunal, and there was nothing in the Code of Civil Procedure which prevented the Tribunal from allowing inspection of the ballot papers in the custody of the Court.
The Tribunal had therefore rejected the application for inspection without any adequate reasons.
The sole question for determination was whether the Election Tribunal erred in declining to grant an order for inspection of the ballot papers which had been, pursuant to an order in that behalf, lodged before the Tribunal in sealed boxes by the Returning Officer.
Held: By the mere production of the sealed boxes, the ballot papers did not become part of the record and they were not liable to be inspected unless the Tribunal was satisfied that such inspection was in the circumstances of the case necessary in the interests of justice.
239 The Returning Officer is not a party to an election petition, and an order for production of the ballot papers cannot be made under 0.
XI of the Code of Civil Procedure.
But the Election Tribunal is not on that account without authority in respect of the ballot papers.
Where the interests of justice demand it, the Tribunal may call upon the Returning Officer to produce the ballot papers and may permit inspection by the parties before it of the ballot papers: that power is clearly implicit in sections 100(1)(d)(iii), 101, 102 of the Representation of the People Act, 1951 and rule 93 of the Conduct of Election Rules, 1961.
This power to order inspection of the ballot papers which is apart from 0.
XI Code of Civil Procedure may be exercised, subject to the statutory restrictions about the secrecy of the ballot papers prescribed by sections 94 and 128(1) of the Act.
Bhim Sen vs Gopali, , distinguished.


judgement:
Appeal No. 7 of 1962.
Appeal from the judgment and decree dated October 14, 1957 of the Punjab High Court in R.F.A. No. 219 of 1950.
N. C. Chatterjee, H. L. Mittal, section section Khanduja and Ganpat Rai, for the appellant.
Ram Lubhaya and section D. Sekhri, for respondents Nos. 1 12.
section K. Mehta and K. L. Mehta, for respondents Nos.
13 15.
323 January 27, 1964.
The Judgment of the Court was delivered by MUDHOLKAR J.
This is a plaintiff 's appeal from the dismissal of his suit for specific performance of a contract for the sale of 3/20th share of land in certain fields situate in Mauza Faizpur of Batala in the State of Punjab.
He had instituted the suit in the court of Sub Judge, First Class, Batala, who dismissed it in its entirety.
Upon appeal the High Court of Punjab, while upholding the dismissal of the plaintiff 's claim for specific performance, modified the decree of the trial court in regard to one matter.
By that modification the High Court ordered the defendants to repay to the plaintiff the earnest money which he had paid when the contract of sale was entered into by him with Pindidas.
It may be mentioned that Pindidas died during the pendency of the appeal before the High Court and his legal representatives were, therefore, substituted in his place.
Aggrieved by the dismissal of his claim for specific perfor mance the plaintiff has come up to this Court by a certi ficate granted by the High Court, under article 133 of the Constitution.
The relevant facts are these: The plaintiff owned 79/120th share in Kasra Nos. 494, 495, 496, 497, 1800/501, 1801/501 and 529 shown in the zamabandi of 1943 43, situate at Mauza Faizpur of Batala.
On October 1, 1943 he purchased 23/120th share in this land belonging to one Devisahai.
He thus became owner of 17/20th share in this land.
The remaining 3/20th share belongs to the joint Hindu family of which Pindidas was the Manager and his brother Haveliram Khemchand and Satyapal were the members.
According to the plaintiff he paid Rs. 175 per marla for the land which he purchased from Devisahai.
In order to consolidate his holding, the plaintiff desired to acquire the 3/20th share held by the joint family of Pindidas and his brothers.
He, therefore, approached Pindidas in the matter and the latter agreed to sell the 3/20th share be longing to the family at the rate of Rs. 250 per marla.
The contract in this regard was entered into on October 1, 324 1945 with Pindidas and Rs. 100 were paid to him as earnest money.
As the manager of the family failed to execute the sale deed in his favour, the plaintiff instituted the suit and made Pindidas and his brothers defendants thereto.
The suit was resisted by all the defendants.
Pindidas admitted having entered into a contract of sale of some land to the plaintiff on October 1, 1945 and of having received Rs. 100 as earnest money.
According to him, however, that contract pertained not to the land in suit but to another piece of land.
He further pleaded that he had no right to enter into a contract on behalf of his brothers who are defendants 2 to 4 to the suit and are now respondents 13 to 15 before us.
The defendants 2 to 4 denied the existence of any contract and further pleaded that even if Pindidas was proved to be the karta of the joint family and had agreed to sell the land in suit the transaction was not binding upon them because the sale was not for the benefit of the family nor was there any necessity for that sale.
The courts below have found in the plaintiff 's favour that Pindidas did enter into a contract with him for the sale of 3/20th share of the family land in suit and received Rs. 100 as earnest money.
But they held that the contract was not binding on the family because there was no necessity for the sale and the contract was not for the benefit of the family.
It is not disputed before us by Mr. N. C. Chatterjee for the plaintiff that the defendants are persons in affluent cir cumstances and that there was no necessity for the sale.
But according to him, the intended sale was beneficial to the family inasmuch as it was not a practical proposition for the defendants to make any use of their fractional share in the land and, therefore, by converting it into money the family stood to gain.
He further pointed out that whereas the value of the land at the date of the transaction was Rs. 175 per marla only the plaintiff had agreed under the contract to purchase it at Rs. 250 per marla the family stood to make an additional gain by the transaction.
The substance of his argument was that the Manager of a joint 325 Hindu family has power to sell the family property not only for a defensive purpose but also where circumstances are such that a prudent owner of property would alienate it for a consideration which he regards to be adequate.
In support of his contention he has placed reliance on three decisions.
The first of these is Jagatnarain vs Mathura Das(1).
That is a decision of the Full Bench of that High Court in which the meaning and implication of the term "benefit of the estate" is used with reference to transfers made by a Manager of a joint Hindu family was considered.
The learned Judges examined a large number of decisions, including that in Hanooman Persaud Pandey vs Babooee Munraj Koonweree(2); Sahu Ram Chandra vs Bhup Singh(3) and Palaniappa Chetty vs Sreemath Daivasikamony Pandra Sannadhi(4) and held that transactions justifiable on the principle of benefit to the estate are not limited to those which are of a defensive nature.
According to the High Court if the transaction is such as a prudent owner of property would, in the light of circumstances which were within his knowledge at that time, have entered into, though the degree of prudence required from the manager would be a little greater than that expected of a sole owner of property.
The facts of that case as found by the High Court were: ". . the adult managers of the family found it very inconvenient and to the prejudice of the family 's interests to retain property, 18 or 19 miles away from Bijnor, to the management of which neither of them could possibly give proper attention, that they considered it to the advantage of the estate to sell that property and purchase other property more accessible with the proceeds, that they did in fact sell that property on very advantageous terms, that there is nothing to indicate that the transaction would not have reached a profitable conclusion . " (P. 979).
(1) I.L.R. 50 All.
(2)(1816) 6 Moo.
I.A.393.
(3) I.L.R. 39 All 437.
(4)44 I.A.147.
326 We have no doubt that for a transaction to be regarded as one which is of benefit to the family it need not neces sarily be only of a defensive character.
But what transac tion would be for the benefit of the family must necessarily depend upon the facts of each case.
In the case before the Full Bench the two managers of the family found it difficult to man age the property at all with the result, apparently, that the family was incurring losses.
To sell such pro perty, and that too on advantageous terms, and to invest the sale proceeds in a profitable way could certainly be re garded as beneficial to the family.
In the present case there is unfortunately nothing in the plaint to suggest that Pindidas agreed to sell the property because he found it difficult to manage it or because he found that the family was incurring loss by retaining the property.
Nor again is there anything to suggest that the idea was to invest the sale proceeds in some profitable manner.
Indeed there are no allegations in the plaint to the effect that the sale was being contemplated by any considerations of prudence.
An that is said is that the fraction of the family 's share of the land owned by the family bore a very small proportion to the land which the plaintiff held at the date of the transaction.
But that was indeed the case even before the purchase by the plaintiff of the 23/120th share from Devisahai.
There is nothing to indicate that the position of the family vis a vis their share in the land had in any way been altered by reason of the circumstance that the remaining 17/20th interest in the land came to be owned by the plaintiff alone.
Therefore, even upon the view taken in the Allahabad case the plaintiff cannot hope to succeed in this suit.
The next case is Sital Prasad Singh vs Ajablal Mander(1) That was a case in which one of the questions which arose for consideration was the power of a manager to alienate part of the joint family property for the acquisition of new property.
In that case also the test applied to the transaction entered into by a manager of a joint Hindu family was held to be the same, that is, whether the transaction was one into which a prudent owner would enter in the ordinary (1) I.L.R. 18 Pat.
327 course of management in order to benefit the estate.
Following the view taken in the Allahabad case the learned Judges also held that the expression "benefit of the estate" has a wider meaning than mere compelling necessity and is not limited to transactions of a purely defensive nature.
In the course of his judgment Harries C.J. observed at p. 311: ". .
the karta of a joint Hindu family being merely a manager and not an absolute owner, the Hindu law has, like other systems of law, placed certain limitations upon his power to alienate property which is owned by the joint family.
The Hindu law givers, however, could not have intended to impose any such restriction on his power as would virtually disqualify him from doing anything to improve the conditions of the family.
The only reasonable limitation which can be imposed on the karta is that he must act with prudence, and prudence implies caution as well as foresight and excludes hasty, reckless and arbitrary conduct." After observing that the transaction entered into by a manager should not be of a speculative nature the learned Chief Justice observed: "In exceptional circumstances, however, the court will uphold the alienation of a part of the joint family property by a karta for the acquisition of new property as, for example, where all the adult members of the joint family with the knowledge available to them and possessing all the necessary information about the means and requirements of the family are convinced that the proposed purchase of the new property is for the benefit of the estate.
" These observations make it clear that where adult members are in existence the judgment is to be not that of the manager of the family alone but that of all the adult mem bers of the family, including the manager.
In the case be fore us all the brothers of Pindidas were adults when ' the 328 contract was entered into.
There is no suggestion that they agreed to the transaction or were consulted about it or even knew of the transaction.
Even, therefore, if we hold that the view expressed by the learned Chief Justice is right it does not help the plaintiff because the facts here are different from those contemplated by the learned Chief Justice.
The other Judge who was a party to that decision, Manokarlal J., took more or less the same view.
The third case relied on is In the matter of A.T. Vasudevan & Ors., minors(1).
There a single Judge of the High Court held that the manager of joint Hindu family is competent to alienate joint family property if it is clearly beneficial to the estate even though there is no legal necessity justifying the transaction.
This view was expressed while, dealing with an application under cl. 17 of Letters Patent by one Thiruvengada Mudaliar for being appointed guardian of the joint family property belonging to, inter alia, to his five minor sons and for sanction of the sale of that pro perty as being beneficial to the interests of the minor sons.
The petitioner who was karta of the family had, besides the five minor sons, two adult sons, his wife and unmarried daughter who had rights of maintenance.
It was thus in connection with his application that the learned Judge considered the matter and from that point of view the decision is distinguishable.
However, it is a fact that the learned Judge has clearly expressed the opinion that the manager has power to sell joint family property if he is satisfied that the transaction would be for the benefit of the family.
In coming to this conclusion he has based himself mainly upon the view taken by Venkata Subba Rao J., in Sellappa vs Suppan(2).
That was a case in which the question which arose for consideration was whether borrowing money on the mortgage of joint family property for the purchase of a house could be held to be binding on the family because the transaction was of benefit to the family.
While holding that a transaction to be for the benefit of the family need not be of a defensive character the learned Judges, upon the evidence before them, held that this particular transac (1) A.I.R. 1949 Mad. 260.
(2) A.I.R. 1937 Mad.
329 tion was not established by evidence to be one for the bene fit of the family.
Thus, as we have already stated, that for a transaction to be regarded as of benefit to the family it need not be of defensive character so as to be binding on the family.
In each case the court must be satisfied from the material be fore it that it was in fact such as conferred or was reason ably expected to confer benefit on the family at the time it was entered into,.
We have pointed out that there is not even an allegation in the plaint that the transaction was such as was regarded as beneficial to the family when it was entered into by Pindidas.
Apart from that we have the fact that here the adult members of the family have stoutly re sisted the plaintiff 's claim for specific performance and we have no doubt that they would not have done so if they were satisfied that the transaction was of benefit to the family.
It may be possible that the land which was intended to be sold had risen in value by the time the present suit was instituted and that is why the other members of the family are contesting the plaintiff 's claim.
Apart from that the adult members of the family are well within their rights in saying that no part of the family property could be parted with or agreed to be parted with by the manager on the ground of alleged benefit to the family without consulting them.
Here, as already stated, there is no allegation of any such consultation.
In these circumstances we must hold that the courts below were right in dismissing the suit for specific performance.
We may add that granting specific performance is always in the discretion of the court and in our view in a case of this kind the court would be exercising its discretion.
right by refusing specific performance.
No doubt Pindidas himself was bound by the contract which he has entered into and the plaintiff would have been entitled to the benefit of section 15 of the Specific Relief Act which runs thus: "Where a party to a contract is unable to perform the whole of his part of it, and the part which 330 must be left unperformed forms a considerable portion of the whole, or does not admit of compensation in money, he is not entitled to obtain a decree for specific performance.
But the court may, at the suit of the other party, direct the party in default to perform specifically so much of his part of the contract as he can perform, provided that the plaintiff relinquishes all claim to further performance, and all right to compensation either for the deficiency, or for the loss or damage sustained by him through the default of the defendant.
" However, in the case before us there is no claim on behalf of the plaintiff that he is willing to pay the entire consideration for obtaining a decree against the interest of Pindidas alone in the property.
In the result the appeal fails and is dismissed with costs.
Appeal dismissed.

summary/full:
The appellant entered into a contract with the karta for the purchase of property belonging to a joint Hindu family.
This property consisted of a fractional share belonging to the family in a large plot of land.
Earnest money was paid to the karta.
As the karta did not execute the sale deed the appellant instituted a suit for specific performance.
The other members who are the brothers of the karta and who were adults (1) A.I.R. 1962 Raj 3.
(2) 1959 All.
L.J. 340.
134 159 S.C. 21 322 at the time of the contract were also impleaded in the suit as defendants.
The suit was resisted on the ground that there was no legal necessity and that the contract for sale was not for the benefit of the family.
The trial court as well as the High Court upheld these contentions.
Before this Court it was contended that even though there was no legal necessity the transaction was for the benefit of the family which the karta as a prudent owner was entitled to enter into for the benefit of the family.
Held:(i) For a transaction to be regarded as one which is of benefit to the family it need not necessarily be only of a defensive character, but what transactions would be for the benefit of the family would depend on the facts and circumstances of each case.
In each case the Court must be satisfied from the material before it that it was in fact such as conferred or was necessarily expected to confer benefit on the family at the time it was entered into.
(ii) No part of the joint family property could be parted with or agreed to be parted with by the manager on the ground of alleged benefit to the family when the transaction is opposed by the adult members of the family.
(iii)In the present case the appropriate pleas were not raised by the plaintiff nor the necessary evidence led.
The granting of specific performance is always in the discretion of the court.
In the facts and circumstances of the case the courts below were justified in refusing to order specific performance and the appeal is dismissed.
Jagatnarain vs Mathura Das, I.L.R. 50 All.
969, Honooman Prasad Pandey vs Babooee Munraj Koonwaree, (1856) 6 Moo.
I.A. 393 Sahu Ram Chandra vs Bhup Singh, I.L.R. 39 All.
437, Palaniappa Chetty vs Sreemath Daiyasikamony Pandara Sannadhi, 44 I.A. 147, Sital Prasad Singh vs Ajablal Mander, I.L.R. 18 Pat.
306 and In the matter of A. V. Vasudevan & Ors.
Minors.
A.I.R. 1949 Mad. 260.
referred to.