judgement:
minal Appeal No. 128 of 1955.
Appeal from the judgment and order dated February 8, 1955, of the Allahabad High Court in Government Appeal No. 165 of 1954, arising out of the judgment and order dated July 24, 1953, of the Court of the Civil and Sessions Judge at Gorakhpur in Sessions Trial No. 5 of 1953.
G. C. Mathur and C. P. Lal, for the appellant.
section N. Andley, for the respondents.
February 14.
The following Judgment of the Court was delivered by DAS C. J.
The respondents before us were put up for trial for offences under sections 147, 302, 325 and 326, Indian Penal Code read with section 149 of the same Code.
On July 24, 1953, the temporary Civil Sessions Judge, Gorakhpur, acquitted them, The State of Uttar Pra 162 1276 desh apparently felt aggrieved by this acquittal and intended to appeal to the High Court under section 417 of the Code of Criminal Procedure.
Under article 157 of the Indian Limitation Act an appeal under the Code of Criminal Procedure from an order of acquittal is required to be filed within six months from the date of the order appealed from.
The period of limitation for appealing from the order of acquittal passed by the Sessions Judge on July 24,1953, therefore, expired on January 24, 1954.
That day being a Sunday the Deputy Government Advocate on January 25, 1954, filed a. petition of appeal on behalf of that State.
A plain copy of the judgment sought to be appealed from was filed with that petition.
The High Court office immediately made a note that the copy of the judgment filed along with the petition of appeal did not appear to be a certified copy.
After the judicial records of the case had been received by the High Court, an application for a certified copy of the judgment of the trial court was made on behalf of the State on February 12, 1954.
The certified copy was received by the Deputy Government Advocate on February 23,1954 and he presented it before the High Court (in February 25, 1954, when Harish Chandra J. made an order that the certified copy be accepted and that three days ' further time be granted to the appellant for making an application under section 5 of the Indian Limitation Act for condoning the delay in the filing of the certified copy.
Accordingly an application for the condonation of delay was made by the appellant on the same day and that application was directed to be laid before a Division Bench for necessary orders.
The application came up for hearing before a Division Bench consisting of M. C. Desai and N. U. Beg JJ.
Ai the hearing of that application learned counsel appearing for the appellant urged that as there was, in the circumstances of this case, sufficient cause for not filing the certified copy along with the petition of appeal the delay should be condoned and that, in any event, the filing of the plain copy of the judgment of the trial court along with the petition of appeal constituted a sufficient compliance with the requirements 1277 of section 419 of the Code of Criminal Procedure.
By their judgment delivered on December 7, 1954, both the learned Judges took the view that no case had been made out for extending the period of limitation under section 5 of the Indian Limitation Act and dismissed the application and nothing further need be said on that point.
The learned judges, however, differed on the question as to whether the filing of a plain copy of the judgment appealed from was a sufficient compliance with the law, M. C. Desai J. holding that it was and N. U. Beg J. taking the contrary view.
The two Judges having differed they directed the case to be laid before the Chief Justice for obtaining a third Judge 's opinion on that question.
Raghubar Dayal J. to whom the matter was referred, by his judgment dated January 31, 1955, expressed the opinion that the word " copy " in section 419 meant a certified copy, and directed his opinion to be laid before the Division Bench.
In view of the opinion of the third Judge, the Division Bench held that the memorandum of appeal had not been accompanied by " a copy " within the meaning of section 419 and that on February 25, 1954, when a certified copy came to be filed the period of limitation for appealing against the order of acquittal passed on July 24, 1953, had already expired and that as the application for extension of the period of limitation had been dismissed the appeal was time barred and they accordingly dismissed the appeal.
The learned Judges, however, by the same order gave the appellant a certificate that the case was a fit one for appeal to this Court.
Hence this appeal.
Section 419 of the Code of Criminal Procedure, under which the appeal was filed, provides as follows: " 419.
Every appeal shall be made in the form of a petition in writing presented by the appellant or his pleader, and every such petition shall (unless the Court to which it is presented otherwise directs) be accompanied by a copy of the judgment or order appealed against, and, in cases tried by a jury, a copy of the heads of the charge recorded under section 367.
1278 The sole question raised in this appeal is whether this section requires a petition of appeal to be accompanied by a certified copy of the judgment or order appealed from.
It will be noticed that the section requires " a copy " of the judgment to be filed along with the petition of appeal.
There can be no doubt that the ordinary dictionary meaning of the word " copy " is a reproduction or transcription of an original writing.
As the section does not, in terms, require a certified copy, it is urged on behalf of the appellant that the word " copy " with reference to a document has only one ordinary meaning namely: a transcript or reproduction of the original document and that there being nothing uncertain or ambiguous about the word " copy ", no question of construction or interpretation of the section can at all arise.
It is contended that it is the duty of the court to apply its aforesaid ordinary and grammatical meaning to the word " copy " appearing in section 419 and that it should be held that the filing of a plain copy of the judgment along with the petition of appeal was a sufficient compliance with the requirements of that section.
The matter, however, does not appear to us to be quite so simple.
A " copy " may be a plain copy, i. e., an un official copy, or a certified copy, i. e., an official copy.
If a certified copy of the judgment is annexed to the petition of appeal nobody can say that the requirements of section 419 have not been complied with, for a certified copy is none the less a " copy ".
That being the position a question of construction does arise as to whether the word " copy " used in section 419 refers to a plain copy or to a certified copy or covers both varieties of copy.
It is well settled that " the words of a statute, when there is doubt about their meaning, are to be understood in the sense in which they beat harmonise with the subject of the enactment and the object which the Legislature has in view.
Their meaning is found not so much in a strictly grammatical or etymological propriety of language, nor even in its popular use, as in the subject or in the occasion on which they are used, and the object to be attained. " (Maxwell 's Interpretation of Statutes, 10th Edition, 1279 page 52).
In order, therefore, to come to a decision as to the true meaning of a word used in a Statute one has to enquire as to the subject matter of the enactment and the object which the Legislature had in view.
This leads us to a consideration of some of the relevant sections of the Code of Criminal Procedure and other enactments having a material bearing on the question before us.
Section 366 of the Code of Criminal Procedure, which is in Chapter XXVI headed "Of the Judgment ", requires that the judgment in every trial in any criminal court of original jurisdiction shall be pronounced in open court and in the language of the court.
Section 367 requires every such judgment to be written by the presiding officer (or from his dictationtion ) in the language of the court or in English, containing the point or points for determination, the decision thereon and the reasons for the decision.
The judgement has to be dated land signed by the presiding officer in open court.
Except as otherwise provided by law, section 369 forbids the court, after it has signed its judgment, from altering or reviewing the same except to correct mere clerical errors.
After the judgment is pronounced and signed it has, under section 372, to be filed with the record of proceedings and becomes a part of the record and remains in the custody of the officer who is in charge of the records.
Under section 371, when an accused is sentenced to death and an appeal lies from such judgment as of right, the court is to inform him of the period within which he may, if he so wishes, prefer his appeal and when he is sentenced to imprisonment a copy of the findings and sentence must as soon as may be after the delivery of the judgment be given to him free of cost without any application.
This, however, is without prejudice to his right to obtain free of cost on an application made by him, a " copy " of the judgment or order and in trials by jury a " copy " of the heads of charge to the jury.
The copy that is supplied to the accused under sub section
(4) of section 371 is not a full copy of the entire judgment, but the copies supplied to him under sub sections (1) and (2) of section 371 on application made by 1280 him are full copies of the judgment or the heads of the charge to the jury as the case may be.
The copy of the findings ' and the sentence which is supplied to the accused under sub section
(4) without his asking for the same is presumably to enable him to decide for himself whether he would appeal against his conviction and the sentence.
The copies, which are supplied to the accused under sub sections
(1) and (2) on his application for such copies, are obviously full copies of the entire judgment or the heads of charges as the case may be and are intended to enable him to prepare his grounds of appeal should he decide to prefer one and to file the same along with his petition of appeal as required by section 419 of the Code of Criminal Procedure.
There are no provisions corresponding to section 371 for giving any copy of the judgment to the State or the public prosecutor representing the State in case of an act uittal.
If, therefore, the State desires to file an appeal against acquittal under section 417 of the Code of Criminal Procedure the State will have to procure a copy of the judgment or the heads of charge in order to enable it to file the same along with its petition of appeal and thereby to comply with the requirements of section 419.
According to section 74 of the Indian Evidence Act a judgment, being the Act or record of the act of a judicial officer, would be included in the category of public documents.
Under section 548 of the Code of Criminal Procedure if a person affected by a judgment desires to have a copy of the judge 's charge to the jury or of any order or deposition or other part of the record he has the right, on applying for such copy, to be furnished therewith.
A person desirous of such a copy has to apply for it to the public officer having the custody of it and, under section 76 of the Indian Evidence Act, such public officer is bound to.
give that person, on demand, a copy of it on payment of the legal fees thereof together with a certificate written at the foot of such copy that it is a true copy of such document, that is to say, to supply to the applicant what is known as a certified copy.
Therefore, whether it is the accused person who applies for a copy under section 371 , 1281 sub sections
(1) and (2) or it is the State which applies for a copy, the copy supplied by the public officer must be a certified copy.
Then when section 419 requires that a copy of the judgment or of the heads of charge be filed along with the petition of appeal, it is not unreasonable to hold that it is the certified copy so obtained that must be filed.
Under articles 154, 155 and 157 of the Indian Limitation Act the petition of appeal has to be filed within the time specified in those articles.
Obviously it may take a little time to apply for and procure a certified copy.
In order that the full period of limitation be available to the intending appellant section 12 of the Limitation Act permits the deduction of the time requisite for obtaining the copy of the judgment or the heads of charge in ascertaining whether the appeal is filed within time.
A certified copy of the judgment will on the face of it show when the copy was applied for, when it was ready for delivery and when it was actually delivered and the court may at a glance ascertain what time was requisite for obtaining the copy so as to deduct the same from the computation of the period of limitation.
Taking all relevant facts into consideration, namely, that a St copy " of the judgment has to be filed along with the petition of appeal, that the copies of the judgment which the accused gets free of cost under section 371 (1) and (2) read with section 76 of the Indian Evidence Act and which the State can obtain on an application made by it under section 76 of the last mentioned Act can only be certified copies, that the time requisite for obtaining such copies is to be excluded from the computation of the period of limitation all quite clearly indicate that the copy to be filed with the petition of appeal must be a certified copy.
Section 419 requires a copy of the judgment or order appealed against to be filed not without some purpose.
That purpose becomes clear when we pass on to section 421 of the Code of Criminal Procedure.
That section enjoins the court, on receiving the petition of appeal and copy of the judgment or order appealed from under section 419, to peruse the same and after 1282 perusing the same to do one of the two things, namely, if it finds that there is no sufficient ground for interfering, to dismiss the appeal summarily or when the court does not dismiss the appeal summarily, then under section 422 to cause notice to be given to the appellant or his pleader and to such officer as the Provincial Cxovernment may appoint in this behalf, of the time and place at which such appeal will be heard and furnish such officer with a copy of the grounds of appeal and in a case of appeal under section 417, as in the present case, to cause a like notice to be given to the accused.
The act of summarily rejecting the appeal or admitting it and issuing notice is necessarily a judicial act and obviously it must be founded on proper materials.
The authenticity or correctness of the copy of a judgment is also essential in order to enable the appellate court to make interlocutory orders which may have serious consequences.
In the case of an appeal by the accused he may ask for the stay of the execution of the order, e.g., of the realisation of the fine or he may move the court for bail.
Likewise in the case of an appeal by the State, the State may ask for the accused to be apprehended and brought before the court under warrant of arrest.
Orders made on these applications are all judicial acts and accordingly it is essential that the appellate court in order to take these judicial decisions have proper materials before it.
Therefore, it is of the utmost importance that the copy to be filed with the petition of appeal is a full and correct copy of the judgment or order appealed against.
Under section 76 of the Indian Evidence Act the public officer who is to supply a copy is required to append a certificate in writing at the foot of such copy that it is a true copy and then to put, the date and to subscribe the same with his name and official title.
Therefore, the production of a certified copy ipso facto and without anything more will show ex facie that it is a correct copy on which the appellate court may safely act.
The fact that the appellate court is by law enjoined to peruse the copy of the judgment and take judicial decision on it indicates that it must have before it a correct copy of the judgment 1283 and this further indicates that the copy required to be filed with the petition of appeal under section 419 should be a certified copy which will ipso facto assure the appellate court of its correctness.
It is said that the appellate court may not summarily reject or admit the appeal or make an inter ' locutory order until the record is produced or until a certified copy of the judgment or order is presented before it.
There is no doubt that the court can under section 421 of the Code of Criminal Procedure call for the record of the case, but the court is not bound to do so.
The calling for the records in every case or keeping the proceedings in abeyance until a certified copy is presented before the court is bound to involve delay and there is no apparent reason why there should be any delay in disposing of criminal matters involving the personal liberty of the convicted accused.
All this inconvenience may easily be obviated if section 419 be read and understood to require a certified copy to be filed along with the petition of appeal.
Learned counsel for the appellant urges that in case of urgency the court need not wait until the record or the certified copy is received, but may call upon the appellant to adduce evidence to prove the correctness of the judgment in order to induce the court to act upon it and take a judicial decision thereon.
In the first place there is no such procedure envisaged in the Code of Criminal Procedure.
In the next place adoption of such a procedure may cause much delay and in the third place no question ordinarily arises under section 419 of proving the correctness of the judgment under appeal in the way in which a document is to be proved in order to tender it in evidence in the case.
But assuming that the correctness of the judgment under appeal is to be established then as soon as the appellant is out to " prove" by oral evidence of witnesses the contents of the original judgment so as to establish the correctness of the plain copy filed along with his petition of appeal the question will immediately arise whether such evidence is admissible under the law.
As already stated section 367 of the Code of Criminal Procedure requires the judgment to be 163 1284 reduced to writing.
Section 91 of the Indian Evidence Act provides, inter alia, that in all cases in which any matter is required by law to be reduced to the form of a document and a judgment is so required,,no evidence shall be given for the proof of the terms of such matter except the document itself or secondary evidence of its contents in cases in which secondary evidence is admissible under the earlier provisions of that Act.
In the absence of the production of, the original judgment if a witness is put into a witness box and is asked to say whether the copy produced before the appellate court is a correct copy of the original judgment filed of record in the trial court he will necessarily have to say that he read the original judgment and from his memory he can say that the copy correctly reproduces the text of the original judgment.
This means that he will give secondary evidence as to the contents of the original judgment which under the law is required to be reduced to the form of a document.
A further question will, therefore, arise if such evidence, which at best is secondary evidence, is admissible under the Indian Evidence Act.
As already stated the judgment, which under section 367 of the Code of Criminal Procedure has to be in writing and under section 372 has to be filed with the record of the proceedings, becomes, under section 74 of the Indian Evidence Act, a public document. ' As the original judgment is a public document within the meaning of section 74, only a certified copy of such document and no other kind of secondary evidence is admissible under section 65.
This circumstance also indicates that the word " copy " in section 419 means, in the context, a certified copy and so it was held in Ram Lat vs Ghanasham Das (1).
The decision in Firm Chhota LalAmba Parshad vs Firm Basdeo Mal Hira Lal (2), proceeded on its peculiar facts, namely , that no certified copy could be obtained as the original judgment could not be traced in the record and the decision can be supported on the ground that the court had, in the circumstances, dispensed with the production of a certified copy.
(i) A.I.R. (1923)Lab.
(2) A.I.R. (1926) Lah.
1285 Learned counsel for the appellant next urges that the fact that the appellate court to which the petition of appeal is presented is given power to dispense with the filing of a copy of the judgment appealed against indicates that the Legislature did not consider the c. filing of the copy to be essential and that if the filing of the copy is not essential and copy can be wholly dispensed with, a plain copy should be sufficient for the purpose of section 419.
This power of dispensation had to be given to the court for very good reasons.
In certain cases an order staying the operation of the order sought to be appealed from may be immediately necessary and the matter may be so urgent that it cannot brook the delay which will inevitably occur if a certified copy of the judgment or order has to be obtained.
In some cases it may be that a certified copy of the same judgment is already before the same court in an analogous or connected appeal and the filing of another certified copy of that very judgment may be an unnecessary formality.
The circumstance that the court may, in urgent cases, dispense with the filing of a copy does not imply that in a case where the court does not think fit to do so it should be content with a plain copy of the document which ex facie contains no guarantee as to its correctness.
Reference has been made to a number of sections of the Code of Criminal Procedure where the word " copy " has been used and to sections 425, 428, 442 and 511 which, it is said, talk about certified copy and on this circumstance is founded the argument that where the Legislature insists on the production of a certified copy it says so expressly and that as the word "copy" used in section 419 is not qualified by the word " certified " the inference is irresistible that the filing of a plain copy was intended to be sufficient for the purpose of that section.
Turning to the four last mentioned sections, it will be noticed that the first three sections 425, 428 and 442 do not really refer to any certified copy of any document at all.
Section 425 requires that whenever a case is decided on appeal by the High Court under Chapter XXXI it shall certify its judgment or order to the court by which the finding, sentence or 1286 order appealed against was recorded or passed.
It really means that the High Court is to formally communicate its decision on the appeal to the court against whose decision the appeal had been taken.
Likewise section 428 requires the court taking additional evidence to certify such evidence to the appellate court.
Section 442 requires the High Court to certify its decision on revision to the court by which the finding, sentence or order revised was recorded or passed.
Lastly section 511 lays down the mode of proof of a previous conviction or acquittal, namely, by the production of an extract certified under the hand of the officer having the custody of the records of the court to be a copy of the sentence or order.
Therefore, the four sections relied on do not in reality refer to certified copy of a judgment or order supplied to a party on his application for such copy and consosuently no argument such as has been sought to be raised is maintainable.
The question whether a copy in a particular section means a plain copy or a certified copy must depend on the subject or context in which the word " copy " is used in such section.
In many sections relied on, the " copy " is intended to serve only as a notice to the person concerned or the public and is not intended to be acted upon by a court for the purpose of making a judicial order thereon.
We think that N. U. Beg J. rightly pointed out that the object and purpose of such sections are distinguishable from those of section 419 where the copy is intended to be acted upon by the appellate court for the purpose of founding its judicial decision on it.
We do not consider it desirable on the present occasion to express any opinion as to whether any of those sections relied on requires a plain copy or a certified copy.
It will suffice for us to hold that so far as section 419 is concerned, having regard to the context and the purpose of that section, the copy to be filed along with the petition of appeal must be a certified copy.
We have also been referred to several sections of the Code of Civil Procedure where the word " copy " is used.
We do not consider it right to enter upon a 1287 discussion as to the true interpretation of the word " copy" occurring in any of those sections for we think that each section in each Act must, for its true meaning and effect, depend on its own language, context and setting.
In the result, for reasons stated above, we agree that the order passed by the Allahabad High Court on February 8, 1955 was correct and this appeal should be dismissed.
Appeal dismissed.

summary/full:
The word 'Copy ' occurring in section 419 Of the Code of Criminal Procedure means a certified copy and a petition of appeal filed under that section must, therefore, be accompanied by a certified copy of the judgment or order appealed against.
Ram Lal vs Ghanasham Das, A.I.R. (1923) Lah.
150, referred to.
Firm Chota Lal Amba Parshad vs Firm Basdeo Mal Hira Lal, A.I.R. (1926) Lah.
404, distinguished.
Consequently, where a State Government filed an appeal against an order of acquittal under section 417 of the Code of Criminal Procedure with a plain copy of the judgment appealed against and put in a certified copy of it after the period of limitation prescribed for the appeal had expired and the High Court dismissed the appeal as time barred, that order was correct and must be affirmed.


judgement:
ION: Special Leave Petition (Civil) No. 13306 of 1986.
From the Judgment and order dated 16.7.1986 of the High Court of Punjab and Haryana in First Appeal from Order No. 110/M of 1986, and Civil Misc.
No. 3087 C11 of 1986.
Mrs. Sarla Chandra and Girish Chandra for the Petitioner.
Mukul Mudgal and P.K. Jain for the Respondent.
The Judgment of the Court was delivered by SEN, J.
In this special leave petition by the wife against the decree for dissolution of marriage granted by the Additional District Judge, Patiala dated 29th March, 1986 on the ground of cruelty under section 13(ia) of the , against which the petitioner wife had preferred an appeal to the Punjab & Haryana High Court and which the High Court by its order dated 16th July, 1986 dismissed in limine, a preliminary objection is raised that the petition has become infructuous inasmuch as the respondent husband has in the meanwhile married again on 17th August, 1986 i.e. just after a month of the dismissal of her appeal.
It is not necessary to state the facts in any detail.
It is enough to say that the learned District Judge held the wife guilty of mental cruelty for having voluntarily deprived the husband of her society and cohabitation for a long period as, according to him, marriage without sex is an anathema.
He further held that the wife had falsely charged the husband with adultery.
It is quite evident on these facts that the marriage has irretrievably broken.
1101 We heard learned counsel for the parties and the question is whether the condition pre requisite before a lawful marriage can take place after a decree for dissolution of marriage under section 15 of the Act has been fulfilled.
Prior to its amendment by the Marriage Laws (Amendment) Act, 1976 by which the proviso was deleted, section 15 was in these terms: "15.
When a marriage has been dissolved by a decree of divorce and either there is no right of appeal against the decree or, if there is such a right of appeal, the time for appealing has expired without an appeal having been presented, or an appeal has been presented but has been dismissed, it shall be lawful for either party to the marriage to marry again.
Provided that it shall not be lawful for the respective parties to marry again unless at the date of such marriage at least one year has elapsed from the date of the decree in the court of the first instance.
" Emphasis supplied Prior to the Amendment Act of 1976, the proviso to section 5 laid down a period of waiting of one year between the passing of a decree for divorce by the Court of first instance and the remarriage of any of the spouses.
The Allahabad High Court in Lila Gupta vs Laxminarayan, ILR (1969) 1 All 92 and the Calcutta High Court in Uma Charan Roy vs Smt.
Kajal Roy, AIR (1971) Cal.
307 held that such period of waiting was enjoined on the parties in the interests of public policy and morality so as to discourage divorcees from entering into fresh matrimony and to avoid confusion of parentage.
It was pointed out that even in Mohammadan law a divorced wife is expected to marry any other man only after the expiry of the period of iddat to avoid a danger of confusion of paternity.
It was accordingly held that the prohibition being mandatory, if any divorced party married again within a period of one year, such marriage was nullity.
That view however did not find favour with this Court in Lila Gupta vs Laxmi Narain & Ors., ; and it was held that a marriage contracted in contravention of the rule relating to one year laid down in the proviso would not be void.
The Court referred to the following observations of Dr. Lushington in Catterall vs Sweetman, [1845] 9 Jur. 951, 954: "The words in this section are negative words, and are clearly prohibitory of the marriage being had without the 1102 prescribed requisites, but whether the marriage itself is void . . is a question of very great difficulty.
It is to be recollected that there are no words in the Act rendering the marriage void, and I have sought in vain for any case in which a marriage has been declared null and void unless there were words in the statute expressly so declaring it .
From this examination of these Acts I draw two conclusions.
First, that there never appears to have been a decision where words in a statute relating to marriage, though prohibitory and negative, have been held to infer a nullity, unless such nullity was declared in the Act.
Secondly, that, viewing the successive marriage Acts, it appears that prohibitory words, without a declaration of nullity, were not considered by the legislature to create a nullity.
" It was observed that a decree for divorce breaks the marital tie and the parties forfeit the status of husband and wife in relation to each other.
But there was nothing in section 15 of the Act to make that marriage a nullity.
The reason for this was an incapacity for second marriage for a certain period does not have the effect of treating the former marriage as subsisting.
Under the law laid down in this enactment, monogamy is the rule and a party can only contract a valid second marriage after the first ceases to exist in the manner envisaged by section 15.
The rule laid down in this section is an integral part of the proceedings by which alone both the parties to the decree of divorce can be released from their incapacity to contract a fresh marriage.
The Law Commission in its 59th Report on and however suggested the deletion of the proviso to section 15 which laid down that it shall not be lawful for the respective parties to marry again unless at the date of such marriage at least one year has elapsed from the date of the decree in the Court of the first instance, for the reason extracted below: "The consideration of the parties, freedom to marry and the inconvenience caused by the prohibition to remarry, out weighed the two fold purpose, i.e. avoiding confusion of parentage and checking an attempt to obtain divorce from one woman with the specific object of marrying another woman." 1103 Parliament accordingly by the Marriage Laws (Amendment) Act, 1976 has done away with the period of waiting by deleting the proviso.
In Lila Gupta 's case, this Court held that the effect of deleting the proviso is that parties whose marriage is dissolved by a decree for divorce can contract marriage soon thereafter provided, of course, the period of appeal has expired and that all pending proceedings have to be decided as if the proviso had not been applicable.
The deletion of the proviso has given rise to a question of great difficulty.
The section when it speaks of a case where there is a 'right of appeal ' does not in terms cover a case of an application for special leave to appeal to the Supreme Court under article 136 of the Constitution.
In Chandra Mohini Srivastava vs Avinash Prasad Srivastava & Anr., ; , on somewhat similar facts it was held that though section 15 in terms does not apply to a case of special leave to appeal to the Supreme Court, a spouse who has won in the High Court and got a decree of dissolution of marriage cannot by marrying immediately after the High Court 's Judgment take away the right of presenting an application for special leave to appeal from the other spouse.
It was further held that the successful party must wait for a reasonable time and make sure whether an application for special leave has been filed in this Court.
Wanchoo, J. speaking for a two Judge Bench said: "It is true that section 15 does not in terms apply to a case of an application for special leave to this Court.
Even so, we are of opinion that the party who has won in the High Court and got a decree of dissolution of marriage cannot by marrying immediately after the High Court 's decree take away from the losing party the chance of presenting an application for special leave.
Even though section 15 may not apply in terms and it may not have been unlawful for the first respondent to have married immediately after the High Court 's decree, for no appeal as of right lies from the decree of the High Court to this Court in this matter, we still think that it was for the first respondent to make sure whether an application for special leave had been filed in this Court and he could not by marrying immediately after the High Court 's decree deprive the appellant of the chance to present a special leave petition to this Court.
If a person does so, he takes a risk and cannot ask this Court to revoke the special leave on this ground.
" In the present case, the respondent in the counter affidavit has 1104 denied any knowledge of the fact that an appeal had been preferred in the High Court or of its dismissal and therefore asserts that he was justified in contracting a second marriage on 17th August, 1986 i.e. immediately after the expiry of one month from the date of the decree of dissolution of marriage passed by the learned Additional District Judge.
This fact is controverted by the petitioner in her affidavit in reply.
She has placed a copy of the registered notice dated 31st May, 1986 intimating the respondent of the filing of the appeal.
In view of this, it was incumbent on the respondent to have enquired about the fate of the appeal.
At any rate, the High Court having dismissed the appeal on 16th July, 1986 the petitioner could have presented a special leave petition within ninety days therefrom under article 133(c) of the i.e. till 14th September, 1986.
Till that period was over, it was not lawful for either party to marry again as provided by section 15.
It was incumbent on the respondent, as observed in Lila Gupta 's case to have apprised himself as to whether the appeal in the High Court was still pending; and if not, whether the period for filing a special leave petition to this Court had expired.
We must accordingly overrule the preliminary objection following the views expressed in Chandra Mohini 's and Lila Gupta 's cases.
We wish to add that in the subsequent decision in Lila Gupta the Court while dealing with the effect of deletion of the proviso observed: "The net result is that now since the amendment parties whose marriage is dissolved by a decree of divorce can contract marriage soon thereafter provided of course the period of appeal has expired." The Court adverted to the word of caution administered by Wanchoo, J. in Chandra Mohini 's case and reiterated: "Even, though it may not have been unlawful for the husband to have married immediately after the High Court 's decree for no appeal as of right lies from the decree of the High Court to this Court, still it was for the respondent to make sure whether an application for special leave had been filed in this Court and he could not, by marrying immediately after the High Court 's decree, deprive the wife of the chance of presenting a special leave petition to this Court.
If a person does so, he takes a risk and could not ask the Court to revoke the special leave on that ground." 1105 We must for this reason overrule the preliminary objection and direct the special leave petition to be placed for hearing.
There shall be no order as to costs.

dataset_name: IN-Abs

summary/full:
% Section 15 of the provided that when a marriage was dissolved by a decree of divorce, it shall be lawful for either of the spouses to marry again, where either there was no right of appeal or where there was such a right of appeal, the time for appealing, had expired, without the appeal being presented or the appeal having been presented, was dismissed.
Proviso to the section provided that it shall not be lawful for either of them to remarry unless at the date of such marriage at least one year had elapsed from the date of decree in the court of first instance.
This proviso was deleted by the Marriage Laws (Amendment) Act, 1976.
A decree for dissolution of marriage was granted by the Additional District Judge against the petitioner wife on the ground of cruelty under section 13(i a) of the .
The petitioner wife 's appeal to the High Court was dismissed in limine.
The petitioner wife filed a Special Leave Petition in this Court.
A preliminary objection was raised on behalf of the respondent husband 1099 that the petition had become infructuous inasmuch as the respondent husband had meanwhile married again on 17th August, 1986, just a month after the dismissal of the petitioner 's appeal by the High Court.
Over ruling the preliminary objection and directing the Special Leave Petition to be placed for hearing, ^ HELD: Under the law laid down in the , monogamy is the rule and a party can only contract valid second marriage after the first ceases to exist in the manner envisaged by section 15.
This rule is an integral part of the proceedings by which alone both the parties to the decree can be released from their incapacity to contract a fresh marriage.
[1102E F] Prior to the Amendment Act of 1976, the proviso to section 15 laid down a period of waiting of one year between the passing of a decree for divorce by the court of first instance and the remarriage of any of the spouses.
The deletion of this proviso, by the Marriage Laws (Amendment Act), 1976 and doing away with the period of waiting has given rise to a question of great difficulty.
[1103A B] The section, when it speaks of a case where there is a "right of appeal" does not in terms cover the case of an application for special leave to appeal to the Supreme Court under Article 136 of the Constitution.
[1103B C] Under Article 133(c) of the a special leave petition can be filed within 90 days from the date of the disposal of the appeal by the High Court.
Therefore, a successful party cannot take away the right of presenting an application from the other spouse by marrying immediately after the High Court 's judgment and must wait till that period was over and make sure whether an application for special leave has been filed in the Supreme Court.
[1103C D] Chandra Mohini Srivastava vs Avinash Prasad Srivastava Ors.
; , , followed.
In the instant case, the High Court having dismissed the appeal on 16th July, 1986, the petitioner could have presented a special leave petition within ninety days therefrom i.e. till 14th September, 1986.
Till that period was over, it was not lawful for either party to marry again as provided by section 15.
[1104C D] 1100 Though the respondent has denied any knowledge of the filing of the appeal in the High Court or of its dismissal, and has justified the second marriage on August 17, 1986, this has been controverted by the petitioner, by filing a copy of the registered notice dated May 31, 1986, intimating the respondent of the filing of the appeal.
It was, therefore, incumbent on the respondent to have apprised himself as to whether the appeal in the High Court was still pending; and if not, whether the period for filing a special leave petition to this Court had expired.
[1104A C] Catterall vs Sweetman, [1845] 9 Jur. 951, 954, referred to.


judgement:
tition (Civil) Nos. 63 & 449 of 1986 etc.
(Under Article 32 of the Constitution of India) A.K. Ganguli, A. Sharan and G.S. Chatterjee for the Petitioners.
R.S. Sodhi for the Respondents.
The Judgment of the Court was delivered by SEN, J.
This is a batch of petitions under article 32 of the Constitution filed on behalf of Matriculate Junior Basic Trained Teachers in Government Schools placed in Category B, Group II in 1090 terms of paragraph 3 of the State Government Circular dated July 23, 1957 who have been continuously and unrelentlessly struggling to get the benefit of higher grade of pay on their improving or acquiring higher qualification viz. B.A., B.T./B.A., B.Ed./Matric with JST/ Gyani or Prabhakar, as per the terms thereof, and the persistent refusal of the State Government to adhere to the terms of the said Circular mainly on the ground that such teachers on their improving or acquiring higher qualifications during the course of their service would not automatically be placed in different grades commensurate with their academic qualifications unless they had the professional qualification of requisite experience of a post carried in the higher grade irrespective of the number of posts available in the department in that category.
It is asserted that the aforesaid Circular was couched in somewhat ambiguous language and has resulted in different interpretations and it was never the intention of the Government to undertake the continuing unintended heavy financial burden that had arisen because of the faulty drafting of the Circular.
It is common ground that by the aforesaid Circular dated July 23, 1957 the State Government directed revision of the existing pay scales of various categories of subordinate offices including Teachers in the Education Department.
Paragraph 3 thereof provided for revision of pay scales of Teachers and placed them into two distinct categories, namely, Category A and Category B and inter alia laid down the requirement of academic qualifications with respect to each.
The relevant part of paragraph 3 reads as follows: "3.
Teachers in the Education Department: It has been decided that all teachers according to their qualifications should be placed in the following two broad categories: CATEGORY 'A ' B.A./B.Sc/B.Com/B.Sc.
(Agriculture)/and B.T./Diploma in Physical Education/Diploma in Senior Basic Training.
CATEGORY 'B ' Group I Matrics with Basic Training (including Junior Teachers) Group II Junior School Teachers (including Assistant Mistresses with B.A./Inter/Matric plus J.A.V. Training).
" 1091 It is quite evident that the revision of pay of Teachers was based on the principle of linking pay to qualification.
It would not be out of place to mention that the Kothari Commission constituted by the State Government of Punjab considered in great detail the scales of pay of Teachers.
The Commission strongly expressed the view that the scales of pay of Teachers should be linked to educational qualifications.
Accepting the recommendations of the Kothari Commission, the State Government of Haryana in 1968 directed further revision of scales of pay of Teachers working in Government Schools w.e.f. December 1, 1967.
On more occasions than one, this Court had to intervene on behalf of these unfortunate Teachers for the redressal of the wrong done to them by denial of higher scales of pay on their improving or acquiring higher academic qualifications and issued directions for extending the benefit of paragraph 3 of the Circular to them.
Despite the repeated directions, the State Government has been adamant in not complying with such directions on one pretext or another.
In State of Punjab & Anr.
vs Kirpal Singh Bhatia & Ors., ; this Court upheld the judgment of the Punjab & Haryana High Court in Union of India & Ors.
vs Kirpal Singh Bhatia & Ors., directing that Teachers holding B.A., B.T./B.A. B.Ed.
qualifications would be entitled to the higher scale of pay.
The Court construed the aforesaid Circular as falling within the ambit of r. 10 of the Punjab Educational Services Class III School Cadre Rules, 1955 as to the entitlement of higher scales of pay and held that it had the effect of fixing the scale of pay on the basis of academic qualifications.
It was accordingly held that Teachers who possessed the degree of B.T. or the equivalent on May 1,1957 would be entitled to scales of pay commensurate with such higher qualification, and as to the Teachers who acquired such higher qualification thereafter, they would be entitled to their revised scale of pay w.e.f.
the date they passed the examination.
It categorically repelled the contention on behalf of the Government that there could be no automatic revision of the scales of pay dependent upon the higher qualifications and unequivocally held that Teachers holding B.A., B.T./B.A., B.Ed.
qualifications became entitled to the revised scales of pay according to Category A w.e.f.
the date they passed the examination in terms of paragraph 3 of the Circular.
In Labh Singh Garcha & Ors.
vs State of Punjab & Anr.
, (W.P. No. 1810/76 decided on July 20, 1976), Chinnappa Reddy, J. speaking for himself and Surinder Singh, J. allowed the writ petition filed by 1092 JBT Teachers falling in Category B who claimed the benefit of higher scales of pay as done in the case of Graduate Teachers in Categroy A pursuant to the High Court 's decree in Kirpal Singh Bhatia 's case.
The Court found that the action of the Government in denying to the JBT Teachers who had acquired or improved their educational qualification, the benefit of the higher scales of pay, was per se discriminatory and accordingly issued a direction to the State Government to release to them the revised scales of pay admissible to them in terms of paragraph 3 of the Circular.
The State Government carried an appeal to this Court.
In State of Punjab & Ors.
vs Labh Singh Garcha & Ors., (C.A. Nos. 926 27/77 decided on August 7, 1979) this Court held that the matter was squarely covered by the decision of this Court in Kirpal Singh Bhatia 's case and observed that 'no new point arises ' and accordingly dismissed the appeal.
The State Government having failed to carry out the directions issued, the JBT Teachers with higher qualifications were constrained to move the High Court for contempt but it declined to interfere.
Aggrieved, the Teachers came up in appeal.
At the hearing of Avtar Singh vs Manmohan Singh & Anr., (C.A. 3790/83 decided on September 14, 1984), the Court indicated that the view taken by the High Court did not commend to it and wanted learned counsel for the State Government to ascertain the attitude of the Government.
At his request, the matter was adjourned.
At the resumed hearing, he signified the willingness of the State Government to comply with the directions given by this Court.
The Court accordingly set aside the judgment of the High Court and directed the State Government to implement the order passed in Labh Singh Garcha 's case within three months, holding that the appellants and other petitioners in the High Court and Teachers similarly situate i.e. JBT Teachers with higher qualifications, were entitled to the benefit of paragraph 3 of the Circular.
It pointed out that the Director of public Instructions (Schools), Punjab by her affidavit dated February 5, 1980 had unconditionally agreed to implement the same without any reservation.
As regards such Teachers who had not approached the Court but were similarly situate, the Court directed that they must make an application for seeking benefit of the aforesaid Circular.
By a clarificatory order dated February 21, 1985, the Court clarified that every Teacher entitled to the benefit of the earlier order may make an application within six weeks from that date.
It however made a direction to the following effect: 1093 "In the application the teacher should strive as best she/he could to set out his claim as directed herein.
The Director may verify the claim with reference to record he may have and the eligibility for relief.
But if the claim is of a teacher who was a petitioner in this Court or in the High Court, eligibility enquiry is impermissible, only amount of claim may be verified.
The Director of Education shall process all the applications received by him in the manner he thinks fit but he must make the payment within three months from the date of the receipt of the application." Emphasis supplied In compliance therewith the Director of Public Instructions (Schools), Punjab by order dated 30th June, 1986 accorded sanction to make payment of arrears of pay according to Teachers belonging to Category B Group I, to 3,600 JBT Teachers falling in Category B Group II who had improved their educational qualifications and acquired degrees in B.A., B.T./B.A., B.Ed. etc., but denied similar relief to other 6,000 Teachers falling in Category B Group II i.e. the petitioners, on the ground that they did not have the requisite professional training of JST/JAV and therefore not entitled to the higher grade.
The impugned order proceeds on the premise that eligibility for the claim for JST grade which was a higher grade, did not depend upon acquiring a higher educational qualification of B.A., B.T. etc.
but also to having the requisite professional training i.e. JST/JAV training and further that a higher grade was only allowed to the then existing JST Teachers which was a diminishing cadre and since recruitment to that cadre had been stopped, there was no question of any entitlement of such Teachers to acquiring the necessary professional training.
In other words, the Government has adopted the stand that the right of the JBT Teachers belonging to Category B Group II to the higher scale admissible to Teachers placed in Category B Group I could not simply be based on their educational qualification.
In support of these petitions Shri A.K. Ganguly, learned counsel appearing for the petitioners, with infinite care took us through all the orders referred to above and rightly submitted that the State Government having given an undertaking in Avtar Singh 's case that they are prepared to carry out the directions made by the High Court, they are bound to grant the benefit of paragraph 3 of the Circular to all the Teachers belonging to Category B Group II entitled to the higher grade of pay on their acquiring or improving their qualification, as 1094 from the respective dates of their passing the examination.
He further submitted that it was not open to the Government on the pretext of verification of claims to confine the relief to some of the teachers and deny the same to the others who were all similarly situate, recruited in the same manner and appointed as Matriculate JBT Teachers and had improved their qualifications by acquiring degrees in B.A., B.T. etc.
and the so called professional training i.e. JST/JAV could not be made a condition pre requisite to the grant of higher pay.
In reply Shri R.S. Sodhi, learned counsel for the State Government, with his usual fairness accepted that the Government was bound by the undertaking given in Avtar Singh 's case but contended that even so, the petitioners were not entitled to such higher pay as they did not stand the eligibility test on verification of their claims merely on their acquiring higher educational qualification.
He pointed out that according to paragraph 3 of the Circular, all Teachers according to their qualifications were placed into two broad categories for purposes of revision of pay, Category A consisting of B.A/B.Sc/B.Com/B.Sc (Agriculture) and BT, and Category B consisting of 4 groups of whom Group I was 'Matrics with basic training (including JBT) '.
There were three scales of pay in Category B Lower Rs.60 120, Middle Rs.120 175 and Upper Rs. 140 200.
By way of incentive, it was directed that posts falling in these grounds would be in the following proportion Group I, Lower Scale 85%, Middle Scale 15%.
15% of Teachers in this group had to be straightway promoted to the Middle Scale by selection based on seniority and merit, while the rest were given the Lower Scale.
The scale of Rs.60 120 was later revised to Rs.125 300, that of Rs. 120 175 to Rs.150 300 and that of Rs.140 200 to Rs.480 880 w.e.f.
1st November, 1966, 16th July, 1975 and 1st January, 1978.
In contrast, Junior Secondary Trained/Junior Anglo Vernacular Teachers with JST/JAV teachers training qualifications were placed in Category B Group II and their pay scale was not revised.
The then existing incumbents in this category were allowed to retain their existing pay scale of Rs.80 250 which was subsequently revised from time to time as per conditions of their service.
As a diminishing cadre, they were therefore carried on a protected pay scale of B.A., B.T. Teachers viz. Rs.620 1200.
According to the learned counsel, the question before the Court is whether JBT Teachers placed in Category B Group II have to be given the benefit of the pay scale of Rs.620 1200.
This, he says, cannot be done as these Teachers were not entitled to initial scale of Rs.80 250 meant only for Junior Secondary Trained/Junior Anglo Vernacular Teachers with JST/JAV training qualification i.e. Teachers governed by the protected category.
At the hearing 1095 we directed the State Government to clarify its stand on the eligibilitytest of Category B Group II Teachers to higher pay.
The Director of Public Instructions (Schools), Pubjab and the Deputy Director (School Admn), Office of the Director of Public Instructions have accordingly filed their additional affidavits dated 10th November, 1986 and 9th March, 1987.
The petitioners have also placed on record their written submissions in answer to these additional affidavit.
The controversy is now limited to the question whether JBT Teachers falling under Category B Group II are not entitled to the higher pay merely on their acquiring higher educational qualification of B.A. B.T./B.A., B.Ed. etc.
but that gaining professional experience of JST/JAV training was essential.
That must turn on the relevant clause in paragraph 3 relating to them which may be extracted below: "Category 'B ' Group II Junior School Teachers (including Assistant Mistresses with B.R./Inter/Matric plus J.A.V. Training).
" As a matter of plain construction, we are quite clear in our mind that Graduate Teachers form a class by themselves and cannot be subjected to the further requirement of having JST/JAV training.
The words 'plus JAV training ' clearly qualify the word 'Matric ' and relate only to Matriculate JBT Teachers.
Such a classification for revision of pay satisfies the touchstone of article 14 and would render the action of the State Government in seeking to discriminate between Graduate Teachers with JST/JAV training and Graduate Teachers with or without such training, impermissible as the attempt is to create a class within a class without any rational basis.
We must accordingly uphold contention of the petitioners that they are entitled to higher pay on acquiring or improving their academic qualification.
It is regrettable that despite clear pronouncements made by this Court as well as the High Court in a long line of decisions starting with Kirpal Singh Bhatia 's case, there is no redressal of the wrong done to JBT Teachers belonging to Category B Group II although they had acquired B.A., B.T./B.A., B.Ed. qualifications.
Quite recently, in Chaman Lal & Ors.
vs State of Haryana, , Chinnappa Reddy, J. has considered the question in some depth.
The learned Judge repelled the contention of the State Government of Haryana based on its order dated 5th September, 1979 which was sought to be interpreted to mean that the Teachers who had acquired the B.T. or B.Ed.
qualification subsequent to 1st December, 1096 1967, the date on which the 1968 order came into force, and before 5th September, 1979, would be entitled to the higher grade but w.e.f. 5th September, 1979 only and that those who acquired the qualification subsequent to that date would not be entitled to the higher grade.
According to the High Court in that case, the 1968 order did away with the principle of the 1957 order that Teachers who acquired B.T. or B.Ed.
qualification should get the higher grade and that a concession was shown in 1979 enabling the Teachers who acquired the B.T. or B.Ed.
qualification between 1968 and 1979 to get the higher scale from 1979.
This Court held that the view taken by the High Court could not be sustained and observed: "The principle that pay should be linked to qualification was accepted by the Punjab Government in 1957 and when Kirpal Singh Bhatia case was argued in the High Court and in the Supreme Court there was not the slightest whisper that the principle had been departed from in the 1968 order.
In fact the 1968 order expressly stated that the government had accepted the Kothari Commission 's report in regard to scales of pay and as already pointed out by us the main feature of the Kothari Commission 's report in regard to pay was the linking of pay to qualification.
That was apparently the reason why no such argument was advanced in Kirpal Singh Bhatia case.
Even subsequently when several writ petitions were disposed of by the High Court of Punjab and Haryana and when the government issued consequential orders, it was never suggested that the 1968 order was a retraction from the principle of qualification linked pay.
" The Learned Judge then said: "The 1968 order must be read in the light of the 1957 order and the report of the Kothari Commission which was accepted.
If so read there can be no doubt that the government never intended to retract from the principle that teachers acquiring the BT or BEd would be entitled to the higher grade with effect from the respective dates of their acquiring that qualification.
The 1979 order was indeed superfluous.
There was no need for any special sanction for the grant of Master 's grade to unadjusted JBT teachers who had passed BA, BEd.
That was already the position when obtained both as a result of the 1957 and 1968 orders 1097 and the several judgments of the court.
We do not think that the Punjab and Haryana High Court was justified in departing from the rule in the judgment under appeal.
The rule had been well established and consistently acted upon.
Nor was it open to the government to act upon the principle in some cases and depart from it in other cases.
" The result therefore is that the writ petitions succeed and are allowed with costs.
We direct the respondents to give to the petitioners who are Teachers placed in Category B Group II, the higher scale of pay admissible to Teachers in Category B Group I, they having acquired the qualification of B.A., B.T./B.A., B.Ed. etc., with effect from the respective dates of their acquiring the qualification.
N.V.K. Petitions allowed.

summary/full:
% The State Government by Circular dated July 23,1957 directed revision of the existing pay scales of various categories of subordinate staff including Teachers in the Education Department.
Paragraph 3 of the said circular provided for revision of pay scales of Teachers and placed them into two distinct categories, Category A and Category B and laid down the requirements of academic qualification with respect to each of them.
Category B was further sub divided into two groups viz: Group I Matric with Basic training (including Junior Teachers).
Group II Junior School Teachers (including Assistant Mistresses with BA/Inter/Matric plus JAV training).
On more occasions than one, this Court intervened on behalf of those Teachers who had improved or acquired higher academic qualifications and were denied higher scales of pay, and issued directions for extending the benefit of para 3 of the aforesaid Circular.
In compliance with the directions of this Court in Avtar Singh vs Manmohan Singh & Anr., the Director of Public Instructions (Schools) 1088 by Order dated June 30, 1986 accorded sanction to payment of arrears of pay to Teachers belonging to Category B Group I, to 3600 JBT Teachers belonging to Category B Group II who had improved their educational qualifications and acquired degrees in B.A., B.T./B.A., B.Sc., B.Ed.
Similar relief was however denied to 6,000 other Teachers falling in Category B Group II on the ground that they did not have requisite professional training of JST/JAV, and were therefore not entitled to the higher grade.
In the Writ Petitions to this Court, by the Matriculate Junior Basic Trained Teachers in Government Schools placed in Category B, Group II of the Circular dated July 23, 1957 it was contended that the State Government was bound to grant the benefit of higher grade of pay to all the Teachers belonging to Category B Group II on their improving or acquiring higher educational qualifications as and from the respective dates of their passing the examination, and that it was not open to the Government on the pretext of verification of claims to confine the relief to some of the teachers and deny the same to the others who were all similarly situated and recruited in the same manner and appointed as Matriculate JBT Teachers and had improved their qualifications by acquiring degrees in B.A., B.T. etc., and that the so called professional training i.e. JST/JAV could not be made a condition pre requisite to the grant of higher pay.
These petitions were contested by the State Government by contending that the petitioners were not entitled to higher pay merely on their acquiring higher educational qualifications as they did not stand the eligibility test on verification of their claims, and that according to paragraph 3 of the Circular, all Teachers according to their qualifications were placed into two broad categories for purposes of revision of pay,Category A consisting of B.A./B.Sc./B.Com./B.Sc.
(Agriculture) and BT, and Category B of whom Group I was 'Matric with basic training (including JBT) '.
On the question: whether JBT Teachers falling under Category B Group II were not entitled to the higher pay merely on their acquiring higher Educational Qualifications of B.A., B.T./B.A., B.Ed.
but that gaining professional experience of JST/JAV training was essential.
Allowing the Writ Petitions, ^ HELD: 1.
Graduate Teachers form a class by themselves and cannot be subjected to the further requirement of having JST/JAV 1089 training.
The words 'plus JAV training ' clearly qualify the work 'Matric ' and relate only two Matriculate JBT Teachers.
Such a classification for revision of pay satisfies the touchstone of Article 14, and would render the action of the State Government in seeking to discriminate between Graduate Teachers with JST/JAV training and Graduate Teachers with or without such training, impermissible as the attempt is to create a class within a class without any rational basis.
[1095D F] 2.
It is regrettable that despite clear pronouncements made by this Court as well as the High Court in a long line of decisions there is no redressal of the wrong done to JBT Teachers belonging to Category B Group II although they had acquired B.A., B.T./B.A., B.Ed. qualifications.
[1095F G] 3.
The petitioners who are Teachers placed in Category B Group II, are entitled to higher pay on acquiring or improving their academic qualifications.
The respondents are directed to give them the higher scale of pay as admissible to Teachers in Category B Group I with effect from the respective dates of their acquiring the qualification.
[1097B C] State of Punjab & Anr.
vs Kirpal Singh Bhatia & Ors.
,[1976] 1 SCR 529; State of Punjab & Ors.
vs Labh Singh Garcha & Ors., (C.A. Nos. 926 27/77 decided on August 7, 1979); and Avtar Singh vs Manmohan Singh & Anr., (C.A. No. 3790/83 decided on September 14, 1984, referred to.


judgement:
Civil Appeal No. 3015 of 1987.
From the Judgment and order dated December 11, 1985 of the Delhi High Court in Civil Revision (R) No. 47 of 1984.
Rajinder Sachhar, P.C. Mudgal and S.P. Gupta for the Appellant.
Anil Nauria and Mrs. Rekha Pandey for the Respondent.
The Judgment of the Court was delivered by 1061 RANGANATHAN, J.
The appellant is an advocate.
He is the owner of premises No. H 2/6 Model Town, Delhi.
He let out a part of this premises comprising a set of rooms above the garage (which may be briefly referred to as 'servants ' quarters ') and a hall on the ground floor of the building to the respondent.
The letting was oral and on a monthly rent of Rs.600 (exclusive of electricity and water charges) from July 1976.
In January 1980, the landlord filed an eviction petition under proviso (e) to section 14(1) of the Delhi Rent Control Act.
He claimed that he needed the premises bona fide for the personal residential requirements of himself and the members of his family.
His case was that he was having his office at Chandni Chowk on a first floor but, as he had been advised by the doctor not to climb upstairs, he desired to move the office and library to the ground floor hall of the premises in question.
He also claimed that the servants ' quarters were required for the use of his servants and their families.
The petition was resisted by the respondent on a number of grounds.
We are, however, concerned here only with two of the grounds put forward by the tenant.
His first submission was that though the premises had initially been taken only for the residential use of himself, subsequently two separate tenancies had been created in respect of premises in dispute.
He claimed that he was the tenant only of the servants ' quarters and that the hall or the ground floor had been let out to Bal Kunj (a society registered under the ) of which he was the Secretary.
It was pointed out that from November 1986 onwards, the petitioner was being paid two sums, a sum of Rs.250 by the respondent and another sum of Rs.350 per month by the respondent on behalf of Bal Kunj.
It was, therefore, contended that the petition as filed was not maintainable.
The second plea taken by the respondent was that the intended use of the ground floor hall as the office of the petitioner lawyer constituted a non residential use and was, therefore, outside the purview of proviso (e) to section 14(1).
The Rent Controller rejected the contentions of the tenant.
He held that there had been a single tenancy.
The premises had been let out by the landlord only to the respondent, Prabhu Chaudhury, on a rent of Rs.600 per month.
On the second aspect, the claim of the landlord that he required the entire premises for use by himself and his servants and that the ground floor was needed for setting up his office and library was held by the Rent Controller to fall within the scope of 1062 the relevant statutory provision.
The Rent Controller, therefore, directed eviction as prayed for by the petitioner.
The above order had been passed under the provisions of section 25B of the Delhi Rent Control Act.
The landlord having succeeded in his eviction petition, the tenant filed a revision petition before the Delhi High Court under sub section (8) of that section.
The learned Judge who heard the petition reversed the findings of the Rent Controller.
He held that the landlord would be entitled to be put in possession only of the servants ' quarters and that the petitioner could not claim the use of the hall on the ground floor.
In the result, therefore, the learned Judge modified the order passed by the Rent Controller.
He restricted the eviction order granted by the Rent Controller to the servants ' quarters.
We may mention here that, in compliance with the order of the learned Judge, the respondent has since vacated and delivered vacant possession of the servants ' quarters to the landlord.
The controversy before us is restricted to the hall on the ground floor.
The first question that arises for our consideration is whether the High Court was right in holding that there were two separate tenancies, one in respect of the servants ' quarters and the other in respect of the hall on the ground floor.
The position is this.
There was oral evidence let in by the petitioner to show that the premises had been let out to the respondent in July 1976 at Rs.600 p.m.
It appears the respondent started paying two separate amounts of Rs.250 and Rs.350 since November 1976.
It also appears that the former amount was paid by the respondent and the letter by means of cheques in the name of the trust.
It also seems to be common ground that the respondent was occupying the servants ' quarters and the Bal Kunj was occupying the hall on the ground floor though it is not clear at what point of time this happened.
Counsel for the respondent relies on these circumstances.
He wants to use the fact that the petitioner who was also occupying a hall on the ground floor adjacent to the hall occupied by the trust clearly must have been aware of the use of the hall to submit that the trust had been accepted as a tenant in respect of the hall at Rs.350 p.m.
He also relies on a fact which he says the Rent Controller completely missed that in 1978, when a number of cheques given to the landlord had been returned dishonoured, the landlord wrote a letter dated 26.11.1978 to the tenant in which he specifically referred to the fact that five of the cheques "belong to Balkunj.
" It is submitted that these facts clearly put the matter beyond all doubt that, though initially the premises had been taken only by the 1063 respondent, it had subsequently been converted into two tenancies.
Learned counsel for the landlord on the other hand submitted that the question whether there was a single tenancy or two tenancies is essentially a question of fact.
The Rent Controller, after appreciating all the circumstances, had come to the conclusion that there was a single tenancy.
There was clear evidence to show that initially, in July 1976, the landlord had let out the premises only to the respondent for a monthly rent of Rs.600.
It is true that subsequently, after a few months, the tenant paid the rent by way of two cheques one drawn by himself and the other drawn on behalf of Balkunj.
But, learned counsel submits, relying on the decision in Sheodhari Rai vs Suraj Prasad Singh, AIR 1954 S.C. 758, this alone cannot lead to the conclusion that a separate tenancy had been created in respect of the hall between Balkunj and the petitioner.
Learned counsel also pointed out that the Rent Controller had referred to two important documents, AW 8/18 and AW 8/20.
These were two letters dated 5.8.1977 and 15.1.1978.
In these two letters the landlord had specifically and categorically denied the tenancy on behalf of Balkunj.
What had happened was that the respondent on behalf of Balkunj had written to the landlord making certain claims for repairs etc.
in respect of the hall occupied by Balkunj.
Immediately the landlord wrote back saying that he had nothing to do with Balkunj, that the tenancy was only in favour of the respondent, and that he did not recognise Balkunj as his tenant.
These two letters remained unanswered.
Learned counsel for the landlord, therefore, submitted that there was ample material and clinching evidence before the Rent Controller to come to the conclusion that there was a single tenancy and that was between Prabhu Chowdhary and the landlord and that, therefore, there was no question of there being two tenancies as held by the High Court.
We are inclined to agree with this submission of the landlord.
The initial tenancy was only an oral tenancy.
Nevertheless there were two witnesses who deposed that the original tenancy agreement was only between the petitioner and the respondent.
At that time, admittedly, there was no question of Balkunj being the tenant in respect of any portion of the premises.
All that the respondent says is that subsequently cheques were being issued in the name of Balkunj also and that this must be taken to lead to an inference that the petitioner had accepted Balkunj as its tenant.
It is very difficult to accept this argument.
It is no doubt true that the rent has been paid by two cheques since November 1976 but the mere payment of rent by two cheques, in the circumstances of this case, cannot mean that there were two tenancies.
The landlord was entitled to a rent of Rs.600 p.m. and so 1064 long as he got this amount, it was immaterial for him whether the amount was paid in a lump sum or by one cheque or more than one cheque and who the makers of the cheques were.
It is not unusual to come across cases where a tenant pays the rent not by a cheque drawn by himself but by a cheque drawn by some other concern in which he has an interest such as a partnership concern a limited company or other entity in which he is interested.
So, the mere fact that for some reason the respondent chose not to issue a single cheque for the rent of Rs.600 but that he gave two separate cheques, one for Rs.250 drawn by himself and one for Rs.350 drawn in the name of Balkunj cannot lead to an irresistible conclusion that the tenancy was created in favour of Balkunj with the concurrence of the landlord.
The letter dated 26.11.78, far from "clinching" the respondent 's claim, as held by the High Court, does not in our view improve the tenant 's case at all.
It only evidences the fact that the landlord was receiving the cheques issued in the name of the trust in discharge of the respondent 's obligation to pay the rent of Rs.600 p.m.
It is also true that, since the landlord was also occupying a part of the ground floor premises, he might have been aware that certain activities of Balkunj were being carried on in the hall.
But this can only mean that the landlord permitted the tenant to use a portion of the premises let out for running the activities of the trust.
Even assuming that, standing by themselves these two facts might have been sufficient to draw any such inference as is suggested, the two letters of 5.8.77 and 15.1.78 place the matter beyond all doubt.
The landlord categorically asserted in these letters that he does not recognize Balkunj as his tenant and that the respondent alone was his tenant.
There was no reply to these letters from the respondent.
In these circumstances there can be no doubt at all that the premises had been let out only to the respondent by the petitioner and that Balkunj cannot be considered to be a tenant of the premises or any portion thereof.
The finding of the Rent Controller that there was only a single tenancy was essentially a finding of fact based on the material and circumstances to which we have adverted and we are also inclined to accept the conclusion of the Rent Controller as the correct one.
We also agree with the landlord that this is a finding with which the High Court should not have interfered.
Though under Section 25(B)(8) of the Delhi Rent Control Act the powers of the High Court are somewhat wider than similar powers of revision under section 115 of the Civil Procedure Code, it is well established by a series of decisions of this Court that the power of revision under the Rent Control Acts does not entitle the High Court to enter into the merits of the factual con 1065 troversies between the parties and to reverse findings of fact in this regard.
It is sufficient, in this context, to refer to the decision of this Court in Helper Girdharbhai vs Saiyed Mohmad; , which was reviewed earlier decisions.
The decision in Sushila Devi vs Avinash Chandra Jain, to which counsel for the respondent referred, lays down no different principle.
So far as the second point is concerned, learned counsel for the respondent relied upon two decisions of this Court in Mohanlal vs Kondi, ; and in Subramania Mudaliar vs Kolapur Traders, In the former, it was held that the profession of a lawyer is "business" within the meaning of section 10(3)(a)(iii) of the Andhra Pradesh Building (Lease, Rent & Eviction) Control Act, 1960.
The latter is a decision to a like effect.
These decisions are not of much help in the context of the present case and of the provisions of clause (e) of the proviso to section 14(1) of the Delhi Rent Control Act.
Here the landlord is seeking to recover possession of a residential premises.
There is, as we have already held, a single tenancy in favour of the respondent for a residential purpose.
Though learned counsel for the respondent invited us to say that, so far as the hall was concerned, the premises were being used by a trust and, hence for a non residential purpose, we cannot permit him to raise this plea.
Such a plea was not taken before the High Court.
Against the order of the High Court, the respondent had also filed a special leave petition to this Court which has been dismissed.
It is therefore not open to the respondent to urge this point before us.
The only point taken before the High Court was that the petitioner could not get relief because the use of the hall by a lawyer as his office and library could not amount to a residential requirement.
We shall, therefore, confine ourselves to this question.
In our opinion, the contention of the respondent cannot be accepted in the extreme form in which it is urged here.
It may be that in a case where a lawyer seeks to evict a tenant on the ground that the entire premises sought to be got vacated are solely needed by him for use as his office and library, his requirement may not satisfy the requirements of clause (e) of the proviso to section 14(1).
But this is quite different from saying that where the premises are sought to be got vacated for use as a residence and, the landlord being a lawyer desires to use a part of such residence as a study, office or library, such use would be a non residential use.
Any professional man of standing would necessarily have to set apart a portion of his residence for such purposes and the premises do not cease to be his residence because 1066 of that.
in the present case, the petitioner seeks eviction of the suit premises for his bona fide residential requirement and the use of the hall as an office is only incidental to such a requirement.
In ascertaining the bona fide need of residence, in the case of a lawyer, the fact that a room has to be used as an office cannot be a consideration extraneous to the scope and content of clause (e) of the proviso to section 14(1).
To test our conclusion, we may see what the position would be in the converse case.
If, in the present case, the petitioner had stated that he required the hall because he had no living room in the premises which he was occupying as the only room there was being, or had to be, used by him as an office, the petitioner 's claim could not have been rejected, for he would then have needed the hall clearly as part of his residential requirement.
The decision in Khanna vs Batra, illustrates this.
There, an advocate, had asked for eviction of a tenant from the first floor as the ground floor premises occupied by him were not sufficient for his needs for purposes of residence and office.
The Rent Control Tribunal held that since the appellant intended to convert the existing residential accommodation in his possession into an office and library for the use of his clerk and clients, such a user was not permissible in law.
Reversing this conclusion, Grover, J observed: "It seems to me that the Rent Control Tribunal was clearly in error in thinking that merely because the appellant wanted to use the accommodation in his possession for professional purposes, he could not claim benefit of the provision contained in clause (e) of the proviso to section 14(1) of the Act.
It was this error which led to the conclusion at which the Rent Control Tribunal arrived upholding the decision of the Controller on the second point, namely the requirement of the appellant on personal grounds.
I cannot therefore, accede to the submission of the learned counsel for the respondent that the finding of the Rent Controller Tribunal with regard to the personal need or requirement was one of fact and thus immune from challenge in the second appeal.
Should the position is different in this case? Merely because the petitioner has come forward with an honest plea that he intends to use a part of his residence as an office, should a different result follow, particularly in a case like this where ill health compels him to have his 1067 office at home? Should the result depend on the jugglery of pleadings or the substance of the matter? We think the substance should prevail.
In our opinion, where a landlord applies for the possession of his residential premises, his bona fide requirement of the premises for his residential purposes will not stand vitiated merely because he intends to use a portion of the premises for purposes of his office, library or study.
We are, therefore, of opinion that the High Court should not have interfered with the findings of the Rent Controller on this point as well.
This is no doubt a mixed question of fact and law but, for the reasons given earlier, we are inclined to agree with the conclusion of the Rent Controller.
In the result, we hold that the High Court was in error in granting relief to the petitioner only in respect of the servants ' quarters and in declining to grant the petitioner relief in respect of the hall.
We allow the appeal, set aside the judgment of the High Court and restore the order of the Rent Controller that the petitioner is entitled to the possession of the entire premises in question.
There will, however, be no order as to costs.
R.S.S. Appeal allowed.

summary/full:
% The appellant is an advocate.
Pursuant to an oral agreement, he let out to the respondent a part of his residential premises comprising of two rooms above the garage, referred to as "servants 'quarters" and a hall on the ground floor, in July 1976 at Rs.600 p.m.
Since November 1976 the respondent started paying two separate amounts of Rs.250 and Rs.350 the latter amount by means of cheques in the name of Balkunj, a registered trust, of which he was the Secretary.
In January 1980 the landlord filed an eviction petition under proviso (e) to section 14(1) of the Delhi Rent Control Act, 1958 on the ground that he required the servants ' quarters for his servants and the hall for his office and library.
The respondent resisted the petition on a number of grounds.
The two grounds with which this Court is concerned are that (1) two separate tenancies came to be created in respect of the premises in dispute and hence the petition as filed was not maintainable and (2) the intended use of the hall as office constituted a non residential use, and therefore outside the purview of proviso (e) to section 14(1).
The Rent Controller held that there was a single tenancy, that the landlord bona fide required the premises for his use, and that setting up his office and library fell within the scope of the relevant statutory provision.
The High Court in the revision petition under sub 1059 section (8) of section 25B of the Act, reversed the findings of the Rent Controller and modified the eviction order passed by him restricting it to the servant 's quarters only.
In regard to the first ground, the respondent submits that the fact that the landlord was aware of the use of the hall by the trust and his acceptance of the cheques on behalf of the trust prove that the trust had been accepted as the tenant in respect of the hall.
In this connection the respondent relies on the appellant 's letter dated 26.11.1978 to the respondent, in which the landlord specifically refers to the fact that five of the dishonoured cheques being returned by him "belong to the trust".
The appellant, on the other hand, submits that acceptance of two cheques alone cannot lead to the conclusion that a separate tenancy had been created in respect of the hall between Balkunj and the petitioner.
The appellant further relies on the two letters dated 5.8.1977 and 15.1.1978 written by him to the respondent categorically denying the tenancy on behalf of Balkunj.
He further submits that the finding of the Rent Controller that there was only a single tenancy was essentially a finding of fact, based on material and circumstances, with which the High Court should not have interfered.
In regard to the second ground the respondent urges that the intended use of the hall by the appellant as office and library could not amount to a residential requirement.
Allowing the appeal this Court, ^ HELD: (1) It is no doubt true that the rent has been paid by two cheques since November 1976 but the mere payment of rent by two cheques, in the circumstances of this case, cannot mean that there were two tenancies.
The landlord was entitled to a rent of Rs.600p.m.
and so long as he got this amount it was immaterial for him whether the amount was paid in a lump sum or by one cheque or more than one cheque and who the makers of the cheques were.
It is not unusual to come across cases where a tenant pays the rent not by a cheque drawn by himself but by a cheque drawn by some other concern in which he has an interest such as a partnership concern, a limited company etc.
It is also true that the landlord might have been aware that certain activities of Balkunj were being carried on in the hall.
But this can only mean that the landlord permitted the tenant to use a portion of the premises for running the activities of the trust.
Even assuming that these two facts might have been sufficient to draw any such inference as is suggested, the two letters of the landlord, dated 5.8.77 and 15.1.78 1060 place the matter beyond all doubt.
The landlord had categorically asserted in these letters that he did not recognize Balkunj as his tenant.
[1063G H; 1064A E] (2) The finding of the Rent Controller that there was only a single tenancy was essentially a finding of fact with which the High Court should not have interfered.
Though under Section 25(B)(8) of the Delhi Rent Control Act the powers of the High Court are somewhat wider than similar powers of revision under section 115 of the Civil Procedure Code, it is well established by a series of decisions of this Court that the power of revision under the Rent Control Act does not entitle the High Court to enter into the merits of the factual controversies between the parties and to reverse findings of fact in this regard.
[1064F H; 1065A] (3) Any professional man of standing would necessarily have to set apart a portion of his residence as a study, office or library and the premises do not cease to be his residence because of that.
In ascertaining the bona fide need of residence, in the case of a lawyer, the fact that a room has to be used as an office cannot be a consideration extraneous to the scope and content of clause(e) of the proviso to section 14(1).
It may be that in a case where a lawyer seeks to evict a tenant on the ground that the entire premises sought to be got vacated are solely needed by him for use as his office and library, his requirement may not satisfy the requirements of clause(e) of the proviso to section 14(1).
[1066A B; 1065F G] (1) Sheodhari Rai vs Suraj Prasad Singh, AIR 1954 S.C. 758; (2) Helper Girdharbhai vs Saiyed Mohmad, ; ; (3) Sushila Devi vs Avinash Chandra Jain, ; (4) Mohanlal vs Kondi, ; ; (5) Subramania Mudaliar vs Kolapur Traders, and (6) Khanna vs Batra, , referred to.