PART 2 Page 241 To 480

[2008 (1) T.N.C.J.
241 (Mad) (MB)]

MADRAS HIGH COURT
(MADURAI BENCH)
BEFORE:
G. RAJASURIA, J.
DAWSON CHANDRARAJ ...Appellant
Versus
R. MARI AMMAL ...Respondent
[A.S. (MD) No. 126 of 2007 and MP (MD) No. 2 of 2007, decided on 2 November, 2007]
nd
Civil Procedure Code, 1908—Order IX, Rule 13—Ex parte order—Setting aside of—
Plaintiff examined himself—Documents marked and she was cross-examined by counsel for
defendant—Plaintiff closed her side—Matter was posted for defendant’s side—Several
opportunities given to defendant but neither defendant nor his counsel appeared—Trial
Court after hearing plaintiff passed judgment—After considerable time defendant filed
appeal—Plea raised that judgment could be termed ex-parte only—Validity of—Held,
judgment of trial Court could be termed ex-parte if it is passed without taking evidence of
defendant and that too when defendant or his counsel is absent—Considering facts
ex-parte order set aside on certain conditions. (Para 6)
Counsel.—Mr. M. Vallinayagam, for the appellant; Mr. S. Durairaj, for the respondent.
JUDGMENT
G. RAJASURIA, J.—This appeal is focussed as against the judgment and decree dated
07.12.2004 passed in O.S.No.77 of 2004 on the file of the learned Principal District Judge,
Tirunelveli.
2. Heard both sides.
3. A re’sume’ of facts absolutely necessary and germane for the disposal of this appeal
would run thus:
The respondent/plaintiff filed a suit in the Principal District Court, Tirunelveli as against
the appellant/defendant for recovery of a sum of Rs.7,06,766.66 (Rupees seven lakh six thousand
seven hundred sixty-six and paise sixty-six only) with interest and costs based on dishonoured
cheques.
4. Admittedly and indubitably, during trial, plaintiff examined himself as PW1 and
documents were also marked and she was cross-examined by the learned counsel for the
defendant. Thereupon, the plaintiff closed her side and the matter was posted for defendant’s
side. It appears, several opportunities were given for the defendant to adduce evidence on his
side, but neither the learned counsel for the defendant nor the defendant appeared before the trial
Court. Hence, the learned Principal District Judge, Tirunelveli after hearing the plaintiff passed
the judgment. After considerable time, the defendant presented this appeal with a petition for
condoning the delay and it was condoned also and now the appeal suit is coming before this
Court.
5. The learned counsel for the appellant/defendant would submit that the judgment and
decree passed by the learned Principal District Judge, Tirunelveli could be termed as an ex-parte
Judgment and decree and not the ones arose after full trial, whereas the learned counsel for the
respondent/plaintiff would placing reliance on the various developments in the suit before the
trial Court, would submit that it cannot be termed as an ex-parte one because the plaintiff was
cross-examined and in such a case simply because the defendant with ulterior motive stayed away
from the Court, the entire judgment passed by the trial Court based on sound reasoning, cannot be
termed as an ex-parte one.
6. This Court could very well understand from the effective representation made by
the learned counsel for the respondent/plaintiff that the plaintiff was made to get his foot surfrated
by approaching the Court for a prolonged time for the purpose of getting a judgment
ultimately in his favour and that the defendant should not be allowed to capitalise his own latches.
Even though, sympathetically, the plight of the plaintiff has to be viewed, yet the law has to be
applied. Accordingly, if viewed, the judgment and decree of the trial Court could only be termed
as an ex-parte one for the reason that it is a trite proposition of law that if any judgment and
decree is passed without taking the evidence of the defendant and that too when the defendant or
his counsel is absent. Perused the ex parte judgment and the relevant records and the nature
of the defence, is a serious one, hence, I would like to give one more opportunity to the
defendant. Even though it is an ex-parte decree in the eye of law yet the plaintiff was made to
suffer, hence on certain conditions only the ex-parte decree could be set aside.
7. In this factual matrix, the following direction is issued. The said judgment and decree
passed by the trial Court is set aside on the following conditions:
The appellant/defendant shall deposit a sum of Rs.1,00,000/- (Rupees one lakh only)
to the credit of O.S.No.77 of 2004 on the file of Principal District Court, Tirunelveli and a sum of
Rs.2000/- (Rupees two thousand only) shall be paid by the defendant to the plaintiff as costs.
Within a period of fifteen days from the date of receipt of a copy of this order such steps should
be completed and thereupon the trial Court shall restore the suit on its original number and post
the matter for adducing evidence on the defendant’s side. Thereupon the defendant by availing
one or two hearings shall complete adducing evidence on the defendant’s side. After hearing
both sides, the trial Court shall see to it that the suit is disposed of within a period of three months
from the date of receipt of a copy of this order.
8. The trial Court could even at the request of the learned counsel for the appellant invest
the said deposit amount of Rs.1,00,000/- (Rupees one lakh only) in F.D. in any nationalised bank.
9. With the above observations, this appeal is disposed of. Consequently, connected
M.P.(MD)No.2 of 2007 is closed.
Appeal disposed of.
[2008 (1) T.N.C.J. 243 (Mad)]

MADRAS HIGH COURT
BEFORE:
P. JYOTHIMANI, J.
MRS. YASODHA AND ANOTHER ...Petitioners
Versus
PRABBAKARAN AND OTHERS ...Respondents
[Civil Revision Petition (PD) No. 763 of 2007, decided on 31 st
October, 2007]
Civil Procedure Code, 1908—Order I, Rule 10 (2)—Implea- ding of necessary party
—First respondent made several complaints against petitioner for running petrol
bunk by petitioner—Subsequently municipality filed suit against petitioner—
First respondent moved application for implead-ment—Application allowed—Legality of—
Held, necessary party in a suit is one without whom a decision cannot be rendered—First
respondent who has been impleaded is not a necessary party to decide issue at all—It is for
public authority to make out a case against petitioner whether he has put up construction
unauthorisedly—Hence order set aside—Revision allowed.
(Para 5)
Counsel.—Mr. P. Valliappan, for the petitioners; Mr. V. Venkata-chalam, Mr. P. Srinivas,
M/s. Anand Abdul and Vinoth Associates, for the respondents 1,2 and 3.
JUDGMENT
P. JYOTHIMANI, J.—The first and second defendants are the petitioners in this civil
revision petition. The second respondent-Municipality has filed a suit against the revision
petitioners and also the third respondent Indian Oil Corporation for a permanent injunction
restraining them from in any way putting up any construction over the suit property without
obtaining valid permission from the plaintiff-Municipality and also for a mandatory injunction
against them to remove the unauthorized construction put up by them over the suit property.
2. The revision petitioners have filed written statement raising many grounds including
that the property belong to them and that the construction put up by them is not unauthorised. In
the meantime, the first respondent in the revision has filed I.A.No.1294 of 2006 under Order
I, Rule 10(2) of the Civil Procedure Code for impleading himself as a party to the suit. His case
is that, he is a neighbour and by virtue of the petrol bunk run by the petitioners, he is affected
since the petrol bunk causes pollution, apart from nuisance, about which he has given many
complaints to the District Collector, Kancheepuram, the Commissioner, Tambaram
Municipality, the Chairman, Tambaram Municipality and all other authorities including the
Pollution Control Board, CMDA, District Revenue Officer, Revenue Divisional Officer,
Tahsildar etc. According to him, the representations given to the first respondent, have not given
any desired result and in the meantime, he came to know that the second respondent has filed
the suit for the prayer as stated above. Since he is a necessary party, he has filed an application
for impleading himself as a party. The application was resisted by the petitioners herein
on the ground that the first respondent is not a proper or necessary party and inasmuch as the
Municipality itself has taken action and the written statement has been filed by the petitioners,
the presence of the first respondent, who is the third party to the lis, cannot be accepted as a party
to the suit. Merely because, the plaintiff in the suit has no objection for impleading the third
party, that itself will not give him right to be a party to the suit on the basis that he is neither a
necessary nor a proper party.
3. The learned trial Judge taking into consideration that the plaintiff-Municipality
has no objection for impleading the third party, has allowed the application for impleadment.
The reason given by the trial Judge for allowing the application is that the first respondent
has made representations against the installation of petrol bunk, which is adjacent to his house
and therefore, his presence will be helpful to decide the case.
4. I have heard the learned counsel for the petitioners as well as the learned counsel for
the first respondent, who was impleaded as a party, who is the contesting respondent.
5. The reasoning given by the learned trial Judge that because the first respondent has
made so many representations against the petrol bunk belonging to the revision petitioners and
its activities, he should be treated as a proper and necessary party is not a proper reasoning at
all. It is well settled that a necessary party in a case is one without whom a decision cannot be
rendered. On the other hand, the proper party is a person, who is required for the purpose of
adjudicating the issue involved in the suit. In this case, the person who has impleaded himself
as the first respondent is not a necessary party to decide the issue at all. It is for the public
authority, the plaintiff-Municipality to make out a case as to whether the conduct of the revision
petitioners is against public interests or they have put up the construction unauthorisedly against
the rules, in the property belonging to the Municipality.
6. In view of the same, the reasoning given by the learned trial Judge for impleading the
first respondent as a party to the suit is opposed to law.
Therefore, the order of the learned trial Judge is set aside. It is always open to the first
respondent to work out his remedy as per law.
7. Since the case is of the year 2004 and it is informed that the trial has commenced, the
learned trial Judge is directed to complete the trial of the case after giving due opportunity to
all the parties and pass judgment in accordance with law, expeditiously, and in any event,
within a period of four months from the date of receipt of a copy of this order and intimate the
same to this Court.
8. With the above observation, the civil revision petition is allowed. Consequently,
connected miscellaneous petition is closed. No costs.
Revision allowed.
[2008 (1) T.N.C.J. 246 (Mad)]

MADRAS HIGH COURT
BEFORE:
P. JYOTHIMANI, J.
KUPPAN ALIAS DURAI AND ANOTHER ...Petitioners
Versus
A.N. ANNAMALAI AND ANOTHER ...Respondents
[C.R.P. (PD) No. 1979 of 2007 and M.P. Nos. 2 and 3 of 2007, decided on 5 November, 2007]
th
(A) Civil Procedure Code, 1908—Order IX, Rule 9—Restoration—Dismissal of suit

for default—Suit restored on application of plaintiff but without service of notice on
opposite party— Legality of—Held, mandatory provision of service of notice not adhered
to—Hence, order of restoration is illegal. (Para 8)
(B) Limitation Act, 1963—Section 5—Condonation of delay—Scope of.
(Para 12)
Case law.—2007 (2) CTC 538; 1998 (2) CTC 533 : 1998 (7) SCC 123—referred.
Counsel.—Mr. S.D.N. Vimalanathan, for the petitioners; Mr. M.S. Govindarajan, for the
respondent 2.
JUDGMENT
P. JYOTHIMANI, J.—The Plaintiffs in the suit are the revision petitioners. The
plaintiffs filed the suit in O.S.No.191 of 1998 on the file of the District Munsif, Poonamallee
praying for a decree for permanent injunction against the respondents who are the
defendants in the suit from transferring and selling the suit land to any third parties while the
agreement of sale stated to have been entered by the 1st defendant as a power agent of the 2nd
defendant and the plaintiffs dated 29.11.1996 is subsisting.
2. The first defendant who is stated to be the power agent of the second defendant has
filed written statement on 10.08.2005.
3. The plaintiffs filed application in I.A.No.596 of 1998 for interim injunction which was
dismissed on 03.08.1998 by the trial Court observing that the suit is not maintainable since the
suit is filed based on an agreement for sale. Subsequently, the suit filed by the plaintiffs was
dismissed for default on 26.11.2002. The plaintiffs have filed an application in I.A.No.2522 of
2002 under Order IX, Rule 9, CPC for restoration of the suit which was dismissed on
26.11.2002. In that application, it is seen that the Court has made an endorsement on
02.12.2002 which reads as follows:
“Proof affidavit filed, heard and allowed”
Even though the said order states that as proof affidavit has been filed, the learned
counsel appearing for the petitioners/plaintiffs would submit that the proof affidavit mentioned
by the trial Court relates to the proof affidavit filed in the suit by the plaintiffs as evidence and
not proof showing service of application in I.A.No.2522 of 2002 in O.S.No.191 of 1998 to the
respondents herein who are the defendants.
4. Therefore, it is clear that the learned trial Judge while taking up application in
I.A.No.2522 of 2002 filed by the plaintiffs for restoration of the suit and to set aside the ex
parte order dated 26.11.2002, on 02.12.2002 allowed the same and on the same date received
the proof affidavit from the plaintiffs and passed a decree in favour of the plaintiffs. It is
relevant to point out that Order IX, Rule 9 which reads as follows:
“Order IX, Rule 9.—Decree against plaintiff by default bars fresh suit—
(1) Where a suit is wholly or partly dismissed under Rule 8, the plaintiff shall
be precluded from bringing a fresh suit in respect of the same cause of action.
But he may apply for an order to set the dismissal aside, and if he satisfies
the Court that there was sufficient cause for his non-appearance when the suit
was called on for hearing, the Court shall make an order setting aside the
dismissal upon such terms as to costs or otherwise as it thinks fit, and shall
appoint a day for proceeding with the suit.
(2) No order shall be made under this rule unless notice of the application has
been served on the opposite party.
(3) The provisions of Section 5 of the Indian Limitation Act, 1908, shall apply to
applications under this rule.”
5. As per the mandatory requirement of Order IX, Rule 9 (2) of C.P.C. any order for
restoration of the suit should be passed unless notice of the application has been served on
the opposite party. Therefore, on the face of it, the order passed by the learned trial Judge in
not following the mandatory provisions of Order IX, Rule 9 (2) of C.P.C. is illegal and it is
unfortunate that the learned Judge failed to refer to the provisions of law while dealing with
an application under Order IX, Rule 9, CPC.
6. Further according to the second respondent, the plaintiffs have filed another suit in
O.S.No.211 of 2005 for specific performance of the agreement dated 29.11.1996. According to
the second respondent herein he has received a notice in the said suit on 08.06.06 and thereafter
he has filed an application in I.A.No.1198 of 2006 for condoning the delay of 1273 days in
filing the application to set aside the ex parte decree passed against the defendants on
02.12.2002. According to the applicant in I.A. No.1198 of 2006 who is the second respondent,
since the knowledge of the ex parte decree passed against him on 02.12.2002 came to be known
to him only on 08.06.2006 he has filed the application within 30 days namely 28.06.2006.
Even though there is no necessity for filing application to condone the delay, as soon as the
knowledge of the order on 08.06.2006 and since summons were served on 08.06.2006 of the
learned trial Judge dated 02.12.2002, this application came to be filed to condone the delay as a
matter of abundant caution, the said application was filed. The respondents have filed counter
affidavit. According to the petitioners/plaintiffs the delay has not been explained properly. It is
their contention that the second suit filed in O.S.No.211 of 2005 was of the year 2005 and
notice has been served on the defendants who are the respondents herein in 2005 itself and,
therefore, the respondents are bound to explain the delay between 2005 and 2006.
7. Mr. S.D.N. Vimalanathan, learned counsel appearing for the petitioners would state
that the order of the trial Court dated 02.12.2002, was taken out for restoring the suit and on
the same date the trial Court passed ex parte decree based on the proof affidavit filed by the
plaintiffs stating that as per Order IX, Rule 4 of CPC such a notice to the other side is not
necessary. But reference to Order IX, Rule 4 says that it is applicable only in respect of
cases dismissed under Order IX, Rule 2 or 3. Order IX, Rule 2 reads as follows:
Order IX, Rule 2: “Dismissal of suit where summons not served in consequence of
plaintiff’s failure to pay costs.—Where on the day so fixed it is found that the summons has not
been served upon the defendant in consequence of the failure of the plaintiff to pay the court-
fee or postal charges, if any, chargeable for such service, or failure to present copies of the
plaint as required by Rule 9 of Order VII, the Court may make an order that the suit be
dismissed:
Provided that no such order shall be made, if notwithstanding such failure, the defendant
attends in person or by agent when he is allowed to appear by agent on the day fixed for him
to appear and answer.”
Likewise Order IX, Rule 3 states that where neither party appears, suit has to be
dismissed.
Order IX, Rule 3. “Where neither party appears, suit to be dismissed.— Where
neither party appears when the suit is called on for hearing, the Court may make an order that the
suit be dismissed.”
It is only under these two cases the plaintiff can file a fresh suit or apply for an order to
set aside the dismissal. Order IX, Rule 4 states as follows:
Order IX, Rule 4: “Plaintiff may bring fresh suit or Court may restore suit to file.—
Where a suit is dismissed under Rule 2 or Rule 3, the plaintiff may (subject to the law of
limitation) bring a fresh suit; or he may apply for an order to set the dismissal aside, and if he
satisfies the Court that there was sufficient cause for (such failure as is referred to in Rule 2),
or for his non-appearance, as the case may be, the Court shall make an order setting aside the
dismissal and shall appoint a day for proceeding with the suit.”
(emphasis supplied)
8. However, Order IX, Rule 9 as enumerated above states in clause (2) that no order to
restore the suit can be passed unless notice of the application has been served on the opposite
party. Therefore, the contention of the learned counsel appearing for the revision petitioner
that the order of the learned trial Judge dated 02.12.2006 is saved by Order IX, Rule 4 is a
misnomer. It is a clear case where the learned Judge failed to follow the procedure established
under the Code of Civil Procedure which in my considered view is a mandatory requirement.
Simply because the defendants remained ex parte at an earlier date, it does not mean that the
Court should bypass the provision of the Act especially when Order IX, Rule 9 (2) mandates
service of notice to the other side. It is certainly illegal on the part of the trial Court to allow
the said application filed by the plaintiff to restore the suit, which was dismissed for default
without notice to the other side. In view of the said fact, I have no hesitation to come to
the conclusion that the earlier order passed by the learned trial Judge on 02.12.2002 has no
legal basis and would not stand to the scrutiny of law.
9. Now coming to the petition filed by the second respondent in condoning the delay,
there is absolutely no difficulty to come to the conclusion that only after the date of
knowledge about the second suit filed by the petitioners in O.S.No.211 of 2005 the
defendants have knowledge and explained delay. The second respondent is certainly saved
from the period of limitation when it is stated the second respondent not having knowledge
about the passing of the ex parte decree by the trial Court till notice received in O.S.No.211 of
2005.
10. Mr.S.D.N.Vimalanathan, learned counsel appearing for the revision petitioners would
submit that if that be so, there is no necessity for the second respondent for filing an
application to condone the delay and according to him the receipt of summons in O.S.No.211 of
2005 by the second respondent herein was not on 08.06.2006 but it was on 08.06.2005.
According to him from the fact that the first defendant who is the power agent of the second
defendant has filed written statement as early as on October, 2005, it should be construed that the
notice was received by the second respondent on 08.06.2005 itself and, therefore, the second
respondent has failed to explain the delay from 08.06.2005 to 28.05.2006. The reference to
the order passed by the learned Judge in the application for condoning the delay shows that
the learned Judge has allowed the application on payment of cost of Rs.300/- to the other side
and on that basis the application came to be allowed and it is this order which is challenged by
the plaintiffs in this revision petition.
11. The first aspect to be considered in this case is the conduct of the petitioners/plaintiffs
who came to this Court and who deliberately not taken steps to serve notice on the other side
in the application to restore the suit dismissed for default which is against the mandatory
provisions of Order IX, Rule 9 (2) of CPC. In my considered view the revision
petitioners/plaintiffs have not come to this Court with clean hands.
12. As far as the delay from 08.06.2005 to till the date of filing of the application on
28.05.2006, Mr. M.S. Govindarajan, learned counsel appearing for the second respondent
would rely upon the judgment of this Court reported in 2007 (2) CTC 538, (Krishnamoorthy v.
Parasuraman and others), wherein this Court by relying upon the judgment of the Hon’ble
Apex Court rendered in N.Balakrishnan v. M.Krishnamurthy, 1998 (2) CTC 533 : 1998 (7) SCC
123, held that for deciding a plea under Section 5 of the Limitation Act, for condonation of
delay, even though it is discretionary, it is not the length of delay which matters but
acceptability of explanation is the criteria to be followed. In fact the Hon’ble Supreme Court
in the above said case has held that the Civil Court while adjudicating the dispute between the
parties, to advance substantial justice and the rule of limitation are not meant to destroy the
right of the parties, since the same is founded on the principles of public policy. The relevant
portion of the judgment of the Hon’ble Apex Court in this regard is as follows:
“11. Rules of limitation are not meant to destroy the rights of parties. They are
meant to see that parties do not resort to dilatory tactics, but seek their remedy
promptly. The object of providing a legal remedy is to repair the damages
caused by reason of legal injury. The law of limitation fixes a lifespan for such
legal remedy for the redress of the legal injury so suffered. Time is precious
and wasted time would never revisit. During the efflux of time, newer causes
would sprout up necessitating newer persons to seek legal remedy by
approaching the Courts. So a lifespan must be fixed for each remedy. Unending
period for launching the remedy may lead to unending uncertainty and
consequential anarchy. The law of limitation is thus, founded on public policy.
It is enshrined in the maxim interest reipublicae up sit finis litium (it is for the
general welfare that a period be put to litigation).Rules of limitation are not
meant to destroy the rights of the parties. They are meant to see that parties do
not resort to dilatory tactics but seek their remedy promptly. The idea is that
every legal remedy must be kept alive for a legislatively fixed period of time.”
Therefore, it is clear that in the application for condoning the delay, every day has to be
explained but the Court ought to keep in mind the substantial justice to be rendered to the
parties. In this case, the subsequent development and limitation to be considered. It is seen that
while the trial Court has dismissed the application in I.A.No.596 of 1998 for interim injunction,
it has clearly held that the suit for bare injunction is not maintainable especially when the suit
for bare injunction was filed based on the agreement of sale dated 29.11.1996. It appears
that the plaintiff has filed another suit in S.R.No.13110 of 1996 for specific performance and it
is not disputed that the suit was subsequently not represented and a fresh suit was ultimately filed
in 2005 only. The plaintiff filed the suit in O.S.No.211 of 2005 for specific performance and
that suit stands transferred to the District Court, Thiruvallur and renumbered as O.S.No.40 of
2006. In view of the attempt of the plaintiff in referring to various remedies based on the earlier
orders of dismissal of I.As., I am of the considered view that this is not the case wherein strict
principle of limitation has to be applied to the detrimental of the defendants in the suit. The
contentions raised by Mr. S.D.N. Vimalanathan, after all these suits for specific performance is
pending and, therefore, the defence is always open to the respondents herein in the said suit for
specific performance is not tenable, mainly because another suit filed does not take away the
right of the defendants in the earlier suit especially on the facts and circumstances which is
enumerated above.
13. In view of the same, the order of the learned trial Judge is modified. Accordingly the
order in the application to condone the delay in filing the application for setting aside the ex
parte decree dated 02.12.2002 is modified and the second respondent is directed to pay a cost of
Rs.2,500/- to the revision petitioners within a period of two weeks from the date of receipt of a
copy of this order. The trial Court is directed to pass further orders in the application to set
aside the ex parte order and take up the suit on the file and decide the same expeditiously in
accordance with law. It is made clear that if the amount stated above is not paid within the
period stipulated above, the revision will stand allowed and the order of the learned trial Judge
dated 30.11.06 will stand set aside. Consequently the connected M.Ps. are closed.
Revision allowed.
[2008 (1) T.N.C.J. 252 (MAD)]

MADRAS HIGH COURT
BEFORE:
P. JYOTHIMANI, J.
R. MANJULA ...Petitioner
Versus
A. RAVI KUMAR ...Respondent
[C.R.P. (PD) No. 2326 of 2007 and M.P. No. 1 of 2007, decided on 6 November, 2007]
th
Evidence Act, 1872—Section 45—Expert opinion—In a divorce petition husband

claimed his wife to be mentally ill— Application moved by husband for a medical test by
Board of Doctors—Application opposed by wife but allowed—Legality of—Held, no
material produced before Court below to prove prima facie that petitioner was suffering
from mental disorder—Hence, order of Court below cannot be sustained—Set aside—
Revision allowed. (Para 7)
Case law.—2005 (11) SCC 479—distinguished
Counsel.—Mr. N. Kolandaivelu, for the petitioner; Mr. T. Muruga-manickam, for the
respondent.
JUDGMENT
P. JYOTHIMANI, J.—Heard the learned counsel appearing for the petitioner and the
learned counsel appearing for the respondent.
2. The respondent/husband has filed H.M.O.P.No.11 of 2006 on the file of the
Principal Sub-Court, Erode for divorce under Section 13(1)(b)(iii) of Hindu Marriage Act,
1955 on the ground that ever since the date of marriage which took place at Erode and
thereafter, when the petitioner and the respondent went to United States, the wife has not
behaved in normal manner and there was an abnormal behaviour always suspecting the
husband. Therefore, stating that it is due to the conduct of the wife, the husband developed
panic attack and he had to undergo a treatment in United States. According to him, the doctors
in the United States after testing the husband/respondent have come to a conclusion that the
revision petitioner/wife was having “Paranoid Mental disorder” which forms part of mental
disorder and she has physiatrics problems and therefore she has to be treated by a
physiatrist. It is his further case in his petition that he has taken his wife to Apollo hospital at
Erode and the physiatrist has given his opinion after testing her and found that the
wife/revision petitioner is suffering from Paranoid Mental disorder.
3. The wife/revision petitioner has filed counter affidavit in the H.M.O.P. denying the
said allegation made by the husband/respondent against her. She has clearly stated that it is
not correct that the American doctor has given any medical report advising her to get treatment
for Paranoid Mental disorder.
4. Pending H.M.O.P., the respondent/husband has filed an application in I.A.No.277 of
2006 under Section 45 of the Indian Evidence Act with a prayer for a direction against the
petitioner herein to appear before the medical board to be constituted by the Court and to
direct the medical board to examine the petitioner’s/wife mental and physical disability and
report the same. That application of the husband/respondent was allowed by the learned
Principal Subordinate Judge, Erode. Against which the wife has filed the present revision
petition.
5. The contention of the learned counsel appearing for the petitioner is that the order of
the Court below in directing the petitioner to undergo medical test is opposed to law
especially in the circumstances that there was absolutely no materials produced before the
Court to prove prima facie that the revision petitioner was suffering from mental disorder. He
would also submit relying upon the judgment of the Honourable Supreme Court reported in
2005 (11) SCC 479 (Radhika Gupta v. Darshan Gupta) that the wife cannot be compelled to
undergo such medical test and it is the option given to her.
6. On the other hand, the learned counsel appearing for the respondent would submit that if
really the revision petitioner is not having mental illness, by putting her for medical test, she is
not any way going to be affected and therefore according to him, the order of the learned
Principal Subordinate Judge, in directing the revision petitioner/wife to undergo the medical
test is not opposed to law.
7. A reference to the order of the learned Subordinate Judge shows that the only reason
assigned by the Court to direct the revision petitioner to undergo the test is that by issuing
such direction, the petitioner is not going to be affected. On the other hand, the learned
Judge has not even taken care to refer to the documents said to have been filed by the
respondent/husband along with the petition which relates to the medical certificate stated to
have been issued by the American doctor stating that the wife/revision petitioner is suffering
from mental disorder. This is apart from the fact that it is not known as to how, when the
husband visited the doctor in the United States, the doctor after examining the husband, certified
that the wife was suffering from Paranoid mental disorder and that is the reason for the
shock that the husband had. In any event, it remains a fact that the learned Principal Subordinate
Judge has not applied his mind at all in passing such an order which has certainly a far
reaching effect in the life of a woman. It is true that the Honourable Supreme Court in 2005
(11) SCC 479 (Radhika Gupta v. Darshan Gupta) has held that in cases where the wife says
herself to be medically tested, the Court has no power to ask her to give evidence before the
medical examination and the option must be given to her. The Honourable Supreme Court has
laid down that aspect of law in the following manner;
“6. In our opinion, in law the wife has an option to decide in what manner she
would oppose the ground of mental illness alleged against her. The High
Court erred in directing that she would first give evidence on affidavit
as her examination-in-chief and thereafter appear for cross-examination. The
proper course which ought to have been adopted by the High Court was to
allow her to undergo medical examination, if she so desired, and thereafter
give her oral evidence, if she so liked to do. The rigid procedure for recording
evidence as directed by the High Court is unwarranted in law and particularly
in matrimonial proceedings of the nature where the wife has to face charge
of her mental unfitness.”
The factual assertion in the above said case cannot fit to the fact of the present case.
Nevertheless, it remains the fact that in such cases of medical test, the option is given to the
wife. The learned counsel appearing for the petitioner submitted that the learned trial Judge
ought to have appreciated that by directing the wife to undergo such a medical test on the basis
of suspicion that she is having mental illness which is certainly going to tell upon her life. In
view of the same, I am of the considered view that the order of the learned Principal Subordinate
Judge, to undergo the medical test, is opposed to law and it is gross error committed by the
learned Principal Subordinate Judge. The order of the learned Principal Subordinate Judge,
Erode made in I.A.No.277 of 2006 in H.M.O.P.No.11 of 2006 is set aside and the civil revision
petition is ordered accordingly. Further, the learned Principal Subordinate Judge, Erode is
directed to take up the said application and pass appropriate orders after referring the certificate
said to have filed by the respondent/husband and after giving due opportunities to both parties,
within a period of eight weeks from the date of receipt of a copy of this order. No costs.
Consequently, connected miscellaneous petition is closed.
Revision allowed.
[2008 (1) T.N.C.J. 255 (MAD)]

MADRAS HIGH COURT
BEFORE:
P. JYOTHIMANI, J.
T.A. SHANMUGAM ...Petitioner
Versus
SOUNDARAM AND OTHERS ...Respondents
[C.R.P. No. 3216 of 2007 and M.P.No. 1 of 2007, decided on 22 nd
October, 2007]
Eviction—Default in payment of rent—Dispute in rent rate—Even by averments of
tenant petitioner it is clear that he not deposited admitted rent since July 1997—
Concurrent findings of facts regarding default recorded by Courts below—Held, no
illegality, hence, call for no interference—Petition dismissed.
(Para 6)
Counsel.—Mr. N.S. Sivakumar, for the petitioner.
JUDGMENT
P. JYOTHIMANI, J.—The tenant is the revision petitioner. The landlords/respondents filed
the petition for eviction on the ground of wilful default in payment of rent from August, 1997.
2. According to the respondents/landlords, monthly rent is Rs.400/- and the demised
portion is a residential portion. The tenant/revision petitioner has filed counter affidavit, in which
it is stated that the monthly rent is Rs.150/- from 01.04.1995 and at the time of tenancy he has
paid a sum of Rs.2,000/- towards the rental advance. It was also the case of the tenant/revision
petitioner that he entered an agreement with one R.Shanmugham who, according to him, has let
out the property under which it was agreed by the tenant/revision petitioner to pay a sum of
Rs.75,000/- to the said R.Shanmugham and in lieu of the same to enjoy the property. Pursuant
to the said agreement dated 01.02.1996, the revision petitioner/tenant has paid a sum of
Rs.75,000/- to the said R.Shanmugham. Therefore, according to him there was no landlords-
tenant relationship. It is also stated in the counter affidavit that if the landlords re-payed the
amount of Rs.75,000/-, the revision petitioner/ tenant is willing to surrender possession.
3. The Rent Controller, by elaborate discussion, about the payment of Rs.75,000/- stated to
have been made to the said R.Shanmugham, has come to a conclusion that there was absolutely
no evidence to show that the revision petitioner/tenant has paid Rs.75,000/- to the said R.
Shanmugham being the father of the landlords and held that the revision petitioner/tenant was not
holding the property as an agreement holder and found on fact that there was landlords and
tenant relationship. Further the Rent Controller has found from the evidence of the
tenant/revision petitioner himself, who has categorically admitted that from 31.07.1997 he has
not paid any rent. It is also found from the deposition of the revision petitioner/tenant that
after the death of R. Shanmugham, the predecessor of the landlords, no rent has been paid and it
is also specifically admitted by the revision petitioner/tenant that he has not agreed with
R.Shanmugham to purchase the property. It was on the said specific finding, the Rent
Controller has found that the revision petitioner/tenant has committed wilful default and
ordered eviction. On appeal, the Appellate Authority has also agreed with the finding of fact by
the learned Rent Controller and held that there was no evidence for payment of Rs.75,000/- by
the revision petitioner/tenant and the revision petitioner/tenant has not proved the allegations of
mortgage transactions. On the other hand, the Appellate Authority has found that the
landlords/respondents have established the wilful default committed by the tenant/revision
petitioner on his own admission and ordered eviction.
4. As against the order of Rent Controller and the Appellate Authority, the revision
petitioner/tenant has filed the present revision petition.
5. The learned counsel appearing for the revision petitioner/tenant would vehemently
contend that there was dispute regarding quantum of rent. It is the case of the
landlords/respondents that the monthly rent is Rs.400/- and the tenant has consistently raised
the issue that the monthly rent is Rs.150/- and therefore, when there is dispute regarding
quantum of amount, it is not proper to arrive at a conclusion that there is any willful default in
payment of rent.
6. On the other hand, as correctly found by the learned Rent Controller, the revision
petitioner/tenant has specifically admitted in his deposition that he has not paid rent from
31.07.1997. Even assuming that, according to the revision petitioner/tenant, the rent is Rs.150/-
per month, it is not his case that he has paid the admitted amount till date. On the other hand,
there is specific and categoric admission by RW1 that he has not paid rent after 31.07.1997. On
the face of the conclusion, the finding of the fact by both the Rent Controller and the Appellate
Authority that there was no mortgage transactions and that the revision petitioner/tenant was
not holding the property on interest for the amount offered to the father of the landlords, it is a
clear case of wilful default on the part of the revision petitioner/tenant. In view of the same, there
is absolutely no difficulty to come to the conclusion that the revision petitioner/tenant has
committed wilful default in payment of rent from 31.07.1997.
7. There is one another issue to be decided in this case. Even assuming that the
contention of the revision petitioner/tenant that he has entered a loan transaction with one
R.Shanmugham and by virtue of payment of Rs.75,000/-, he was holding the property in lieu of
the interest for the said amount, said to have been paid to the said R. Shanmugham, apart from the
fact that there was no evidence to that effect, it is admitted that the revision petitioner/tenant
has not approached any Court either for recovery of the amount or for specific performance or
in any other manner known to law. A bald allegation made by the revision petitioner/tenant in
the counter affidavit as if he has got interest over the property by offering loan cannot be just
accepted. There is no illegality or irregularity in the finding of both the Rent Controller and the
Appellate Authority. Therefore, the revision petition is dismissed. Consequently, connected
miscellaneous petition is closed. No costs.
8. The learned counsel for the revision petitioner/tenant seeks time to vacate the portion on
behalf of the revision petitioner/tenant. While dismissing the civil revision petition, it is
ordered as follows:
The revision petitioner/tenant is given time to vacate and hand over the vacant
possession of the property to the respondents/landlords on or before 31.03.2008 subject to
the following conditions:
(i) that the revision petitioner/tenant shall pay entire rental arrears due from
31.07.1997, for the demised portion at the rate of Rs.400/- per month from
01.08.1997, till date, within a period of two months from today;
(ii) that the revision petitioner/tenant has to file an affidavit before this Court stating
that he shall not make any encumbrance or transfer the demised portion of the
property in favour of the third party and shall hand over the same to the
respondents/landlords on or before 31.03.2008 within a period of 10 days from
today; and
(iii) filing compliance of either of the condition will enable the landlords to proceed with
execution forthwith.
Revision dismissed.
[2008 (1) T.N.C.J. 258 (MAD)]

MADRAS HIGH COURT
BEFORE:
P. JYOTHIMANI, J.
SHEIK ALLAUDIN AND OTHERS ...Petitioners
Versus
ANNIBAL THAMILARASI JESINTHA ...Respondent
[Civil Revision Petition (NPD) No. 337 of 2006 and C.M.P. Nos. 2596 of 2006, 2660 and 2261 of
2007, decided on 6th November, 2007]
Civil Procedure Code, 1908—Section 50—Legal representatives—Impleadment of—
Eviction suit decreed—Death of tenant—No heirs—Petitioners found to be in possession of
property—For execution of decree petitioner was impleaded as legal representatives—
Legality of—Held, petitioner is in possession of property and there is no issue of deceased
tenant hence no illegality in impleadment of petitioner.
(Para 5)
Case law.—2005 (2) LW 450—relied on.
Counsel.—Mr. T.P. Manoharan, for the petitioners; M/s. R. Subra-manian and M.
Sudhakar, for the respondent.
JUDGMENT
P. JYOTHIMANI, J.—The proposed parties who are third parties to the rent control and
execution proceedings are the revision petitioners in this revision.
2. This revision petition is directed against the order of the learned Rent Controller,
Pondicherry dated 6.9.2005 passed in E.A.No.145 of 2003 in RCEP.No.16 of 2003 in HRCOP
No.17 of 1999. The respondent herein has filed the rent control petition in HRCOP. No.17 of
1999 against one Marie Louis Saint John for eviction on the ground of wilful default in
payment of rent and eviction order was passed on 3.10.2001 by the learned Rent
Controller/Principal District Munsif, Pondicherry which was confirmed by the learned Chief
Judicial Magistrate-cum-Additional District Judge, Pondicherry in R.C.A.No.46 of 2001 by
judgment dated 3.1.2003. It is stated that the order of eviction has become final. The
respondent/landlady has filed E.P.No.16 of 2003 against the original tenant in March, 2003. It
is stated that subsequently, the original tenant who was unmarried and who suffered the
decree of eviction died on 14.7.2003. The respondent/landlady filed E.A.No.145 of 2003 to
implead the revision petitioners as respondents 2 to 4 in the execution petition. The said
petition was filed by the respondent/landlady on the basis that even though the original tenant
who was unmarried and issueless died on 14.7.2003, the tenant was being accompanied by the
proposed parties who are the revision petitioners during the period of litigation. It is also the
case of the landlady that the third proposed party, Mohammed Musthafa had participated in the
rent control proceedings as power agent of the original tenant, Marie Louis Saint John and the
proposed parties are to be impleaded on the basis that they are in physical possession of the
premises without any right to occupy, for the purpose of completing the execution proceedings.
3. The learned Rent Controller has allowed the said petition against which the third
parties have filed the present revision. The reasons adduced by the revision petitioners for
assailing the order of the learned Rent Controller are that the revision petitioners are in
occupation and enjoyment of the house under one Marie Louis Saint Simon who has the right of
interest over the premises and they had no connection with Marie Louis Saint John against
whom the eviction order has been passed. It is the further ground of the revision petitioners that
Section 50 of the Code of Civil Procedure would apply only in respect of the legal
representatives of judgment debtors and therefore, taking advantage of the order of eviction
against the tenant, the revision petitioners cannot be disturbed. The further ground raised in the
revision is that the remedy open to the respondent is to file a suit against Marie Louis Saint
Simon for partition of the half share in the house. Further, it is the case of the revision
petitioners that the respondent has not deliberately impleaded the two male issues of Marie
Louis Saint Simon by name Thomas Jacques Michel Marie Louis and Jerome Philippe Mathieu
Marie Louis, who are the absolute owners of the property in question and, therefore, the
finding of the Rent Controller and the consequential eviction order passed would not in any
way affect the right, title or possession of the said Marie Louis Saint Simon and his male
descendants under whom the revision petitioners claim to be the tenants.
4. I have heard the learned counsel for the petitioners as well as the respondent.
5. It is seen that in the execution application, the respondent/landlady was examined as
P.W.1 and the third petitioner herein was examined as D.W.1 and various documents were
marked on the side of the respondent as Exs.P-1 to P-18 and on the side of the revision
petitioners as Exs.R-1 to R-8. The learned Rent Controller has found on fact that the order of
eviction, which has become final, was passed against the original tenant, by name, Marie
Louis Saint John and he was married to the second revision petitioner as per Ex.P-1,
marriage certificate. The Rent Controller has also found that as evident from Exs.P-2 to P-6 the
third revision petitioner was the power of attorney agent of the original tenant. The Rent
Controller has found that the third revision petitioner who was examined as R.W.1 has
clearly admitted that there is no proof to show that Marie Louis Saint Simon is living in
France and he, claiming to be his power agent, has not filed any suit for declaration that the said
Marie Louis Saint Simon is entitled to the property and not Marie Louis Saint John, who was
the original tenant. In fact, after discussing the entire evidence, the learned Rent Controller has
come to the conclusion, correctly in my opinion, that he need not go into the right of Marie
Louis Saint Simon over the premises in question since the proceedings are only at the stage of
impleading parties. The Rent Controller has found, placing reliance on the judgment of this
Court in Balasubramanya Gupta v. Saraswathi Ammal and others, 2005(2) LW 450, that
the term tenant in respect of non-residential building includes a person living with the tenant
as a member of the tenant’s family upto the death of the tenant and, therefore, held that it is not
necessary for a ‘tenant’ to claim to be a legal heir of the deceased tenant and it is enough that he
had been in continuous association of the deceased tenant and in such case, he can be termed
as legal representative of the deceased tenant, which cannot be equated with the term, legal heir.
It is not in dispute that the third revision petitioner is having a Sangam in one portion of the
E.P. schedule mentioned property for the welfare of the French Citizens and therefore, it is a
non-residential building and as a legal representatives of the deceased tenant, the impleadment of
the revision petitioners is not either illegal or irregular. In view of the same, I do not see any
irregularity or illegality in the findings arrived at by the learned Rent Controller that the revision
petitioners are the necessary parties to the execution proceedings.
Accordingly, the C.R.P. fails and the same is dismissed. No costs. Connected
miscellaneous petitions are closed.
Revision dismissed.
[2008 (1) T.N.C.J. 261 (SC)]

SUPREME COURT
BEFORE:
S.B. SINHA AND HARJIT SINGH BEDI, JJ.
DEDDAPPA AND OTHERS ...Petitioner
Versus
THE BRANCH MANAGER, NATIONAL
INSURANCE CO. LTD. ...Respondent
[Civil Appeal No. 5829 of 2007 (Arising out of SLP (C) No. 7746 of 2006), decided on 12 th
December, 2007]
Motor Vehicles Act, 1988—Sections 147 and 166—Insurance Act, 1938—Section 64-
V-B—Compensation—Liability to pay compensation—Premium paid by cheque but
cheque dishonoured—Insurance Company informed about dishonour of cheque and
cancelled policy—Accident took place thereafter—Contract between parties broken—
Hence in case of accident Insurance Company not liable to indemnify loss.
(Paras 26 and 27)
Case law.—AIR 1985 SC 278—relied on; 1998 (1) SCC 371; 2001 (3) SCC 151; 1976 (4)
SCC 855; 2006 (5) SCC 192; 2000 (3) SCC 195—referred.
JUDGMENT
S.B. SINHA, J.—Leave granted.
2. This appeal is directed against the judgment and order dated 15.6.2005 passed by a
learned Single Judge of the High Court of Karnataka in M.F.A. No.5751 of 2002, whereby and
whereunder an appeal preferred by the respondent herein from the judgment and order dated
12.06.2002 passed by the Motor Accidents Claims Tribunal in M.C.A. No.113 of 2001 was
allowed.
3. Shantamma, daughter of the appellant herein was sleeping in her hut. A tempo bearing
No.KA 37-2257 which was being rashly and negligently driven by respondent No.2 herein ran
over her. She died on the spot. Household articles of the appellant also were damaged in the said
accident.
4. An application for grant of compensation was filed by the appellants herein under
Section 166 of the Motor Vehicles Act, 1988 (for short “the Act”) in the Court of C.J. (SD) and
Motor Accidents Claims Tribunal at Gangavati in the district of Koppal on 12.06.2006.
5. The said vehicle was insured with the National Insurance Company. A plea was
taken therein by the Insurance Company that although the vehicle in question was insured by
the owner for the period 17.10.1997 and 16.10.1998, but the cheque issued therefor having been
dishonoured, the policy was cancelled and, thus, it was not liable therefor.
6. By an award dated 12.06.2002, the learned Motor Vehicles Accidents Claims
Tribunal allowed the said claim application directing payment of compensation for a sum of
Rs.1,58,000/- with interest @ 12% per annum holding that the Insurer was liable to pay the said
awarded amount despite cancellation of the contract of insurance. As noticed hereinbefore
the High Court of Karnataka on an appeal preferred by the first respondent herein allowed the
same relying on the judgment of the Karnataka High Court in M.F.A. No.6430 of 2001.
7. Mr. C.M. Angadi, the learned counsel appearing on behalf of the appellant in support of
this appeal inter alia submitted that the High Court committed a serious error in passing the
impugned judgment in so far as it failed to take into consideration that when the insurance cover
was issued, the liability of the Insurance Company subsists despite dishonour of cheque
evidencing payment of the insurance premium.
8. Strong reliance in this behalf has been placed on Oriental Insurance Co. Ltd. v. Inderjit
Kaur and Ors., (1998) 1 SCC 371 and National Insurance Co. Ltd. v. Seema Malhotra and Ors.,
(2001) 3 SCC 151.
9. Before embarking on the said question we may notice the admitted facts. Second
respondent who was driving the vehicle was also the owner thereof. The insurance policy was to
remain valid for the period 17.10.1997 to 16.10.1998. Respondent No.3 issued a cheque on
15.10.1997. The said cheque was presented for encashment before the Syndicate Bank. The Bank
by its letter dated 21.10.1997 issued a ‘Return Memo’ disclosing dishonour of the cheque
with the remarks “fund insufficient”.First Respondent thereupon cancelled the policy of
insurance.The said information was communicated to respondent No.2. An intimation thereabout
was also given to the R.T.O. concerned.
10. Before the Motor Vehicle Accidents Claims Tribunal, the insurer has also
examined witnesses, inter alia, to prove cancellation of the policy of insurance, postal
acknowledgement showing intimation thereabout which was served to the insured and a copy of
the letter dated 6.11.1997 issued to the R.T.O. and the memo issued by the Bank as regards
dishonour of the cheque etc.
11. Indisputably, the accident had occurred on 6.2.1998 that is much after communication
of cancellation of the policy.
12. Keeping in view the aforementioned backdrop of all events, we may notice the legal
issues addressed before us by the learned counsel.
13. Section 147 of the Act obligates the owner of the motor vehicle to get the vehicle
insured in so far as the claim of third party is concerned. The Act does not deal with
contract of insurance as such. Contract of insurance is governed by the Insurance Act, 1938 (for
short “the 1938 Act”).
14. Section 64-VB of the 1938 Act provides that no risk is to be assumed unless premium
is received in advance in the following terms:—
“Section 64VB—No risk to be assumed unless premium is received in advance.—
(1) No insurer shall assume any risk in India in respect of any insurance business on
which premium is not ordinarily payable outside India unless and until the
premium payable is received by him or is guaranteed to be paid by such
person in such manner and within such time as may be prescribed or unless and
until deposit of such amount as may be prescribed, is made in advance in the
prescribed manner.
(2) For the purposes of this section, in the case of risks for which premium can be
ascertained in advance, the risk may be assumed not earlier than the date on
which the premium has been paid in cash or by cheque to the insurer.
Explanation.—Where the premium is tendered by postal money order or cheque sent by
post, the risk may be assumed on the date on which the money order is booked or the
cheque is posted, as the case may be.
(3) Any refund of premium which may become due to an insured on account of
the cancellation of a policy or alteration in its terms and conditions or otherwise
shall be paid by the insurer directly to the insured by a crossed or order cheque or
by postal money order and a proper receipt shall be obtained by the insurer from
the insured, and such refund shall in no case be credited to the account of the
agent.
(4) Where an insurance agent collects a premium on a policy of insurance on behalf
of an insurer, he shall deposit with, or despatch by post to, the insurer, the
premium so collected in full without deduction of his commission within
twenty-four hours of the collection excluding bank and postal holidays.”
15. The said provision, therefore, in no unmistakable term provides for issuance of a
valid policy only on receipt of payment of the premium.
16. The question came up for consideration before this Court in Inderjit Kaur (supra),
wherein it was opined that a policy of insurance which is issued in public interest would prevail
over the interest of the insurance company. In that case a bus met with an accident. The policy of
insurance was issued on 30.11.1989. A letter stating that the cheque had been dishonoured was
sent by the Insurance Company to the insurer on 23.1.1990. The premium was paid in cash on
2.5.1990. The accident took place 19.4.1990. Despite noticing Section 64-VB of the 1938 Act,
but having regard to the underlying public policy behind the statutory scheme in respect of
insurance as evidenced by Sections 147 and Section 149 of the Act and in particular having
regard to the fact that policy of insurance to cover the bus without receiving the premium had
already been issued, this Court held that the Insurance Company was liable to indemnify the
insured.
17. We may, however, notice that in terms of sub-section (5) of Section 147 and sub-
section (1) of Section 149 of the Act, the Insurance Company became liable to satisfy awards of
compensation in respect thereof, notwithstanding its entitlement to avoid or cancel the policy for
the reason that the cheque issued for payment of premium thereon had not been honoured.
18. The said question, however, was left open in Inderjit Kaur (supra).
19. The said decision proceeded on the basis that it was the Insurance Company
which was responsible for placing itself in the said predicament as it had issued a policy of
insurance upon receipt only of a cheque towards the premium in contravention of the provisions
of Section 64-VB of the 1938 Act. The public interest in a situation of that nature and
applying the principle of estoppel, this Court held, would prevail over the interest of the
Insurance Company.
20. The ratio of the said decision was, however, noticed by this Court in New India
Assurance Co. Ltd. v. Rula and Ors., (2000) 3 SCC 195. It was held that ordinarily a liability
under the contract of insurance would arise only on payment of premium, if such payment
was made a condition precedent for taking effect of the insurance policy but such a condition
which is intended for the benefit of the insurer can be waived by it.
It was opined:—
“If, on the date of accident, there was a policy of insurance in respect of the vehicle in
question, the third party would have a claim against the Insurance Company and the
owner of the vehicle would have to be indemnified in respect of the claim of that
party. Subsequent cancellation of the insurance policy on the ground of non-payment of
premium would not affect the rights already accrued in favour of the third party”.
The dicta laid down therein clarifies that if on the date of accident the policy subsists, then
only the third party would be entitled to avail the benefit thereof.
21. Almost an identical question again came up for consideration before this Court in
National Insurance Co. Ltd. v. Seema Malhotra and Ors., (2001) 3 SCC 151, a Division Bench
noticed both the aforementioned decisions and analysed the same in the light of Section 64-VB of
the 1938 Act. It was held :
“17. In a contract of insurance when the insured gives a cheque towards payment of
premium or part of the premium, such a contract consists of reciprocal promise.
The drawer of the cheque promises the insurer that the cheque, on presentation,
would yield the amount in cash. It cannot be forgotten that a cheque is a
bill of exchange drawn on a specified banker. A bill of exchange is an instrument
in writing containing an unconditional order directing a certain person to pay
a certain sum of money to a certain person. It involves a promise that such money
would be paid.
18. Thus, when the insured fails to pay the premium promised, or when the cheque
issued by him towards the premium is returned dishonoured by the bank
concerned the insurer need not perform his part of the promise. The corollary is
that the insured cannot claim performance from the insurer in such a situation.
19. Under Section 25 of the Contract Act an agreement made without
consideration is void. Section 65 of the Contract Act says that when a contract
becomes void any person who has received any advantage under such contract is
bound to restore it to the person from whom he received it. So, even if the insurer
has disbursed the amount covered by the policy to the insured before the cheque
was returned dishonoured, the insurer is entitled to get the money back.
20. However, if the insured makes up the premium even after the cheque was
dishonoured but before the date of accident it would be a different case as
payment of consideration can be treated as paid in the order in which the nature
of transaction required it. As such an event did not happen in this case, the
Insurance Company is legally justified in refusing to pay the amount claimed
by the respondents.”
22. A contract is based on reciprocal promise. Reciprocal promises by the parties are
condition precedents for a valid contract. A contract furthermore must be for consideration.
23. In today’s world payment made by cheque is ordinarily accepted as valid tender.
Section 64-VB of the 1938 Act also provides for such a scheme.
24. Payment by cheque, however, is subject to its encashment. In Damadilal & Ors. v.
Parashram & Ors., (1976) 4 SCC 855, this Court observed:
“On the ground of default, it is not disputed that the defendants tendered the amount in
arrears by cheque within the prescribed time. The question is whether this was a lawful
tender. It is well-established that a cheque sent in payment of a debt on the request of the
creditor, unless dishonoured, operates as valid discharge of the debt and, if the cheque
was sent by post and was met on presentation, the date of payment is the date when
the cheque was posted...”
25. Recently again in New India Assurance Co. Ltd. v. Harshadbhai Amrutbhai Modhiya
and Anr., (2006) 5 SCC 192, although in the context of the Workmen’s Compensation Act, 1923,
Balasubramanyan, J. opined:
“It is not brought to our notice that there is any other law enacted which stands in the way
of an insurance company and the insured entering into a contract confining the obligation
of the insurance company to indemnify to a particular head or to a particular amount
when it relates to a claim for compensation to a third party arising under the Workmen’s
Compensation Act. In this situation, the obligation of the insurance company clearly
stands limited and the relevant proviso providing for exclusion of liability for
interest or penalty has to be given effect to. Unlike the scheme of the Motor Vehicles Act
the Workmen’s Compensation Act does not confer a right on the claimant for
compensation under that Act to claim the payment of compensation in its entirety
from the insurer himself”.
It was further observed:—
“The law relating to contracts of insurance is part of the general law of contract. So said
Roskill, L.J. in Cehave v. Bremer. This view was approved by Lord Wilberforce in
Reardon Smith v. Hansen-Tangen (All ER p. 576 h ) wherein he said:
“It is desirable that the same legal principles should apply to the law of contract as a
whole and that different legal principles should not apply to different branches of that
law.”
A contract of insurance is to be construed in the first place from the terms used in it, which
terms are themselves to be understood in their primary, natural, ordinary and popular sense. (See
Colinvaux’s Law of Insurance , 7th Edn., para 2-01.) A policy of insurance has therefore to be
construed like any other contract. On a construction of the contract in question it is clear that the
insurer had not undertaken the liability for interest and penalty, but had undertaken to indemnify
the employer only to reimburse the compensation the employer was liable to pay among other
things under the Workmen’s Compensation Act. Unless one is in a position to void the exclusion
clause concerning liability for interest and penalty imposed on the insured on account of his
failure to comply with the requirements of the Workmen’s Compensation Act of 1923, the
insurer cannot be made liable to the insured for those amounts.”
26. We are not oblivious of the distinction between the statutory liability of the Insurance
Company vis-a-vis a third party in the context of Sections 147 and 149 of the Act and its
liabilities in other cases. But the same liabilities arising under a contract of insurance would have
to be met if the contract is valid. If the contract of insurance has been cancelled and all concerned
have been intimated thereabout, we are of the opinion, the insurance company would not be liable
to satisfy the claim.
27. A beneficial legislation as is well known should not be construed in such a
manner so as to bring within its ambit a benefit which was not contemplated by the legislature to
be given to the party. In Regional Director, Employees’ State Insurance Corporation, Trichur v.
Ramanuja Match Industries, AIR 1985 SC 278, this Court held :
“We do not doubt that beneficial legislations should have liberal construction with a view
to implementing the legislative intent but where such beneficial legislation has a scheme
of its own there is no warrant for the Court to travel beyond the scheme and extend the
scope of the statute on the pretext of extending the statutory benefit to those who are not
covered by the scheme.”
We, therefore, agree with the opinion of the High Court.
28. However, as the appellant hails from the lowest strata of society, we are of the
opinion that in a case of this nature, we should, in exercise of our extra-ordinary jurisdiction
under Article 142 of the Constitution of India, direct the respondent No.1 to pay the amount of
claim to the appellants herein and recover the same from the owner of the vehicle viz., respondent
No.2, particularly in view of the fact that no appeal was preferred by him. We direct accordingly.
29. We, therefore, allow the appeal with the aforementioned directions. In the facts
and circumstances of the case, however, there shall be no order as to costs.
Appeal allowed.
[2008 (1) T.N.C.J. 268 (SC)]

SUPREME COURT
BEFORE:
GURUNATH MANOHAR PAVASKAR AND OTHERS ...Petitioners
Versus
NAGESH SIDDAPPA NAVALGUND AND OTHERS ...Respondents
December, 2007]
Civil dispute—Suit for permanent injunction—Question of title not raised—
Defendant appellant was wrongly placed burden of proof—It is not clear as to how a
permanent injunction could be granted without there being a suit for declaration of title—
Hence, appeal allowed—Matter remitted for fresh disposal— Plaintiff may amend plaint
for declaration of title also.
(Paras 13 and 14)
Case law.—2007 (8) Scale 250.
JUDGMENT
2. Defendants before the Trial Court are the appellants herein.
3. Plaintiffs-respondents filed a suit against the appellants praying inter alia for the
following reliefs:
“(a) That the encroached portion of the suit property by erection of structure
measuring 369 1/9 sq. yards be directed to be demolished at the cost and risk
of defendant Nos. 1 to 5 consequently defendants be further directed to maintain
the rules of set-back in respect of his remaining construction enabling plaintiff to
use and enjoy the free light and air to his property and similarly defendant No. 6
be directed to remove the sign board and the firm from the encroached area of the
suit property. Further defendants be directed to give the respective vacant
possession of the suit land to the plaintiffs.
(aa) A decree of permanent injunction against defendants, their agents, their relative
or any body on their behalf to interfere with the plaintiffs peaceful possession
and enjoyment of suit property.”
4. Respondents contended that they are owners of a portion of Survey No. 1008/1
bearing CTS Nos. 4823/A-17 and 4823/A-18 measuring 662 2/9 and 533 3/9 square yards
respectively and the appellants who are the owners of the abutting land bearing CTS No. 4823/A-
1 had encroached upon a portion of CTS Nos. 4823/A-17 and 4823/A-18 measuring 249 1/9
and 120 square yards respectively. Plaintiffs purchased the said plots by a deed of sale dated
7.11.1984, whereas the date of purchase made by the defendants dated 17.8.1992
5. The learned Trial Judge having regard to the pleadings of the parties framed issues;
issue No. 3 whereof reads as under:
“3. Whether the defendant Nos. 1 to 5 proves that the vendor of the plaintiff by way
of fabrication of false documents had sold the suit schedule property to these
plaintiffs, thus, the plaintiffs are not the owners of the suit schedule
property?”
It was answered stating:
“My answers to the above issues are as follows:
*** *** ***
Issue No. 3 - Does not arise.”
6. During the pendency of the said suit, an application for injunction was filed. Allegedly,
the appellants raised constructions upon the suit land in violation of the said order of injunction.
The learned Trial Judge in regard to the title of the plaintiffs over the suit land held:
“According to the learned counsel for the plaintiff since CTS No. 4823/A1 is completely
acquired by the Municipal Corporation Belgaum for Malmaruti Extension scheme then
the property of the defendant Nos. 1 to 6 is not in existence in the name of
defendants. But according to me since the defendant No. 1 to 5 also have purchased the
property through a registered sale deed and also their vendors have also purchased the
said property through a registered sale deed and as such it cannot be said that the property
of defendants are not in existence. But at the same time the say of the defendant cannot
be taken into believed (sic) that the CTS No. 4823/A17 and 4823/A18 are not in
existence. When in the survey map as well as in other documents these properties are
clearly demarcated and identified then according to me, these properties have been
clearly demarcated in relevant records.”
7. The High Court affirmed the said findings stating:
“It is also clear from the perusal of the judgment and decree passed by the Courts below
that both the Courts below have rightly decided on the basis that it is unnecessary to
give any decision on the title of the property as the suit is for permanent and mandatory
injunction and the trial Court has rightly observed that it is always open to the defendants
to work out their remedy in accordance with law, regarding their title to the property
CTS No. 4823/A1 and no finding could be given on title in the present case and when
there is no finding on the title of the property in the present case, it is clear that it is
always open to the defendants to work out their remedy, in accordance with law.
It is clear from the perusal of the material on record that defendant No. 6 who also
suffered decree of injunction and permanent injunction though had filed first appeal
before the lower appellate Court has not chosen to challenge the judgment and decree
passed by first appellate Court in RA 252/2001.”
8. Indisputably, an Advocate-Commissioner was appointed. He filed a report. An
objection thereto was also filed. He, however, could not be cross-examined. His report,
therefore, could not have been taken into consideration although the same formed part of the
record.
9. The High Court although took into consideration the fact that the plaintiffs did not seek
for any declaration of title, as noticed hereinbefore, opined that the question of title can be
gone into in an appropriate suit. All the Courts relied on Ex. P-35 which was allegedly produced
by the appellants but were made use of by the respondents, wherein it had been shown that the
chalta No. 63 was allotted in respect of CTS No. 4823/A-1, chalta No. 62-A was allotted in
respect of CTS No. 4823/A-17 and chalta No. 62-B was allotted in respect of CTS No. 4823/A-
18.
10. It is one thing to say that there does not exist any ambiguity as regards description of
the suit land in the plaint with reference to the boundaries as mentioned therein, but it is another
thing to say that the land in suit belongs to the respondents.
It was for the plaintiffs to prove that the land in suit formed part of CTS Nos. 4823/A-17
and 4823/A-18. It was not for the defendants to do so. It was, therefore, not necessary for them to
file an application for appointment of a Commissioner nor was it necessary for them to adduce
any independent evidence to establish that the report of the Advocate-Commissioner was not
correct. The suit could not have been, therefore, decreed inter alia on the basis of Ex. P-35 alone.
In a case of this nature, even Section 83 of the Indian Evidence Act would not have any
application.
11. Furthermore, the High Court committed an error in also throwing the burden of proof
upon the defendants-appellants without taking into consideration the provisions of Section 101 of
the Indian Evidence Act. In Narain Prasad Aggarwal (D) by LRs. v. State of M.P., 2007 (8)
Scale 250, this Court opined:
“22. Record of right is not a document of title. Entries made therein in terms of
Section 35 of the Indian Evidence Act although are admissible as a relevant piece
of evidence and although the same may also carry a presumption of correctness,
but it is beyond any doubt or dispute that such a presumption is rebuttable.”
12. A revenue record is not a document of title. It merely raises a presumption in regard to
possession. Presumption of possession and/ or continuity thereof both forward and backward can
also be raised under Section 110 of the Indian Evidence Act. The Courts below, were, therefore,
required to appreciate the evidence keeping in view the correct legal principles in mind.
13. The Courts below appeared to have taken note of the entries made in the revenue
records wherein the name of the Municipal Corporation, Belgaum appeared in respect of CTS No.
4823/A-1. We have, however, noticed that the learned Trial Judge proceeded on the basis that
the said property may be belonging to the defendants-appellants. The Courts below not only
passed a decree for prohibitory injunction but also passed a decree for mandatory injunction. The
High Court opined that the Trial Court could exercise discretion in this behalf. It is again one
thing to say that the Courts could pass an interlocutory order in the nature of mandatory
injunction in exercise of its jurisdiction under Section 151 of the Code of Civil Procedure on
the premise that a party against whom an order of injunction was passed, acted in breach thereof;
so as to relegate the parties to the same position as if the order of injunction has not been violated,
but, it is another thing to say that the Courts shall exercise the same power while granting a
decree of permanent injunction in mandatory form without deciding the question of title and/or
leaving the same open. How, in the event the structures are demolished, it would be
possible for the appellants to work out their remedies in accordance with law in regard to the
title of the property has not been spelt out by the High Court.
14. We, therefore, are of the opinion that the interest of justice would be subserved if the
impugned judgments are set aside and the matter is remitted to the learned Trial Judge for
consideration of the matter afresh. The plaintiffs may, if they so desire, file an application for
amendment of plaint praying inter alia for declaration of his title as also for damages as against
the respondents for illegal occupation of the land. It would also be open to the parties to adduce
additional evidence(s). The learned Trial Judge may also appoint a Commissioner for the
purpose of measurement of the suit land whether an Advocate-Commissioner or an officer of the
Revenue Department.
15. Before us, additional documents have been filed by the appellants showing some
subsequent events. It would be open to the defendants to file an application for adduction of
additional evidence before the Trial Judge which may be considered on its own merits.
16. The appeal is allowed with the aforementioned observations. We would request the
Trial Court to consider the desirability of disposing of the matter as expeditiously as possible and
preferably within a period of six months from the date of communication of this order. Costs of
this appeal shall be the cost in the suit.
Appeal allowed.
[2008 (1) T.N.C.J. 272 (SC)]

SUPREME COURT
BEFORE:
S.B. SINHA AND G.S. SINGHVI, JJ.
BOGIDHOLA TEA AND TRADING CO. LTD. AND ANOTHER ...Petitioner
Versus
HIRA LAL SOMANI ...Respondent
December, 2007]
Civil Procedure Code, 1908—Order IX, Rule 13—Limitation Act—Sections 3 and 5
—Ex parte decree—Setting aside of—Appellant not aware of order—Application for
condonation of delay and for setting aside of ex parte order—Rejected—Held, High Court
erred in rejecting application—Appeal allowed.
(Paras 12 and 13)
JUDGMENT
2. This appeal is directed against the judgment and order dated 3.1.2007 passed by the
Gauhati High Court in MC No.3398/2004 whereby and whereunder the appeal preferred by the
appellants herein from a judgment and decree dated 19.4.1990 passed in Suit No.2/89, was
dismissed on the premise that the appellants had not shown sufficient cause for condonation of 10
months’ delay in filing the said appeal.
3. The parties herein were on business terms. Appellants were to supply 22,000 Kgs. of
‘made tea’ for 1984 season and 50,000 Kgs. of ‘made tea’ for 1985 season to the respondent.
However, the appellants supplied only 5,547 Kgs. of ‘made tea’ for 1984 season and 18.245 Kgs.
of ‘made tea’ for 1985 season. Respondent filed a suit for a decree for a sum of Rs.5,22,69.66
paise together with interest thereon at the rate of 18% per annum. A suit was filed towards the
price of the remaining amount for terminal tea supply. In paragraph 5 of the plaint, the
respondent inter alia averred:
“The price for other remaining quantity of made tea of 1985 season made available by
the defendants to the plaintiff, could not be finalized as the same were found to have no
proper market and hence were not saleable at Jorhat. As such as per
instruction/discussion of the defendants, remaining qualities of 14,796 of made tea of
1985 season were sent to the tea action market at Guwahati and in Calcutta. The sale
proceeds of the said tea on sale of auction markets were to be adjusted with the
advances already made by the plaintiff to the deponents. After 18.04.85 the plaintiff
had paid a total sum of Rs. 6,22,116 inclusive of Rs. 1,30,000 as shown in schedule ‘A’
below.”
4. The first Bill referred to in this appeal reads thus:
“Bill dated 5.6.85 for..... Rs. 46,594.80
Bill dated 5.6.85 for...... Rs. 86,225.00
For sale proceeds on 16.8.85 Rs. 79,824.91
For sale proceeds on 19.9.85 Rs. 3766.70
For sale proceeds on 12.11.85 Rs. 2502.54
Rs. 3,18,089.54”
5. Allegedly, despite service of summons the appellants did not appear. The plaintiff-
respondent made a prayer before the Trial Court that a decree be passed under Order VIII, Rule
10 of the CPC. He declined to examine any witness. The learned Trial Court by a judgment
and order dated 19.4.1990 decreed the suit stating:
“Learned lawyer of the plaintiff side is present filing his hazira. Defendants side is absent
without any step. Seen the previous orders of this Court. The suit is taken up for ex-parte
hearing. Heard learned counsel for the plaintiff. He submits Court to take action under
Order VIII, Rule 10 of the C.P.C. and declined to examine any P.W. Hence, perused the
plaint and the relevant documents submitted by the plaintiff in support of his plaint.
Prima facie case is held proved in favour of the plaintiff as per plaint. The suit is decreed
on ex-parte for realization of Rs.5,22,669.66 p with costs of the suit and future interest
per plaint as prayed for.”
6. Appellants contended that they were not aware of passing of the said decree. In the year
1997, an execution case was filed. Summons in the said execution case were served upon the
appellants. One Shri Tapan Gogoi was appointed as an Advocate in the said execution case.
However, no further steps were taken. The execution proceeding was stayed on 15.7.2000.
7. In the month of September, 2000, the appellants herein filed an application under Order
IX, Rule 13 of CPC for setting aside the said ex-parte decree. An application for condonation
of delay in filing the suit was also filed. The said application was dismissed by an order dated
22.9.2003 as the appellants could not allegedly satisfactorily explain the cause for delay in filing
the said application as also in view of Article 123 of the Schedule appended to the Limitation
Act, 1923.
8. A civil revision application was preferred thereagainst which was also dismissed by the
High Court by its order dated 2.1.2004. Liberty, however, was granted to the appellants to
prefer an appeal against the original decree. An appeal thereafter was filed by the appellants
along with an application for condonation of delay. The High Court by reason of the impugned
judgment refused to condone the delay and consequently dismissed the appeal.
9. Mr. Hansaria, learned senior counsel appearing on behalf of the appellants, inter alia,
would submit that the High Court committed a serious error in passing the impugned judgment in
so far as it failed to take into consideration that assuming that the defendant-appellants had not
filed written statement, it was obligatory on the part of the Trial Judge to satisfy itself about the
bona fide of the claim of the plaintiff-respondent. Learned counsel urged that having regard to
the fact that the last advance was purported to have been made on 19.6.1985, the suit which was
filed on 2.1.1989 was barred by limitation.
10. Learned counsel appearing on behalf of the respondent, on the other hand, submitted
that assuming that the learned Trial Judge should not have granted a decree in terms of Order
VIII, Rule 10 of the CPC, the appellants were obligated to explain the delay in preferring an
appeal. The appeal being continuation of the suit, the learned counsel would submit that if the
same could not have been entertained on the ground of being barred by limitation, the question of
setting aside the decree by the High Court in exercise of its appellate jurisdiction did not and
could arise.
11. While issuing notice in terms of order dated 16.04.2007, this Court directed the
appellants to deposit a sum of Rs. 2 lakhs before the Executing Court within four weeks from the
said date. It is stated before us by learned senior counsel Mr. Hansaria, that the aforementioned
sum has been deposited on or about 25.6.2007.
12. Ordinarily, we would not have interfered in such matter. However, it appears to be
a gross case. Appellants before us have been able to show that the ex-parte decree dated
19.4.1990 passed by the learned Additional District & Sessions Judge, Jorhat, ex-facie suffers
from non-application of mind. Had the learned Judge applied its mind even to the averments
made in the plaint, he should have asked himself the question as to whether in absence of any
acknowledgment in writing, as a result whereof the period of limitation would start running
afresh, the suit could have been decreed. Section 3 of the Limitation Act, 1963 mandates that a
Court would not exercise its jurisdiction for any relief in favour of a party if the same is found to
be barred by limitation. Although such a defence has not been raised, the statute obligated upon
the Court of law to consider as to whether a suit is barred by limitation or not. In the event it
was found that the suit was barred by limitation, the Court had no jurisdiction to pass a
decree. It was, therefore, essential for the learned Trial Judge to pose unto itself the right
question, particularly when without adduction of oral evidence the pleading raised in the
plaint could not be said to have been established. It was, therefore, not a case where the Court
could have invoked the provisions of Order X, Rule 8 of the CPC. Even otherwise, the suit was
set down for ex-parte hearing. The learned Trial Judge stated that only a prima-facie case was
found out from the plaint and other documents which were not sufficient for passing a decree
as therefor the plaintiff was bound to prove his case.
13. For the reasons aforementioned, having regard to the peculiar facts and circumstances
of this case, we think that it is a fit case where the High Court should have condoned the delay.
We, therefore, set aside the judgment of the High Court. Ordinarily, we would have remitted the
matter back to the High Court for consideration thereof on merit of the appeal, but as we have
ourselves looked to the records of the case, we are of the opinion that interest of justice would be
subserved if we set aside the ex-parte decree dated 19.4.1990. We direct accordingly.
14. This order shall, however, be subject to the condition that the appellants shall deposit a
further sum of Rs.1 lakh before the Executing Court which shall be subject to the outcome of the
suit. Appellants shall further pay a sum of Rs. 25,000/- to the respondent towards costs. The
respondent shall be entitled to withdraw the sum deposited by the appellants, upon furnishing
security.
16. Appellants may file written statements before the Trial Court within six weeks and the
learned Trial Judge may consider the desirability of disposing of the suit within three months
from the date of receipt of this order.
17. The appeal is disposed of with the aforementioned observations and direction.
Appeal disposed of.
[2008 (1) T.N.C.J. 276 (SC)]

SUPREME COURT
BEFORE:
G.P. MATHUR AND D.K. JAIN, JJ.
ATMA SINGH (DIED) THROUGH LRS. AND OTHERS ...Petitioners
Versus
STATE OF HARYANA AND ANOTHER ...Respondents
[Civil Appeal No. 3148-3157 of 2000, decided on 7 December, 2007]
th
Land Acquisition Act, 1894—Section 23(1)—Compensation—Determination of—

Acquisition of land for sugar factory— Compensation determined by Land Acquisition
Officer— Enhanced by Reference Court—Further enhanced by High Court but 33%
towards development charges—Validity of—Held, land not acquired for housing colony but
for setting up sugar factory—Factory would produce goods worth many crores in a year—
Hence, only 10% deduction from market value of land would be justified—Thus appeal
partly allowed. (Paras 13 to 16)
Case law.—AIR 1976 SC 2219; AIR 1977 SC 1560; AIR 1990 SC 2192; AIR 1979 SC 472;
AIR 1969 SC 465; AIR 1980 SC 1222; AIR 1984 SC 892; 1991 (4) SCC 506; 2003 (1) SCC 354;
AIR 1988 SC 1652; 1996 (11) SCC 542; 1995 (5) SCC 426; 2004 (2) SCC 184—referred.
JUDGMENT
G.P. MATHUR, J.—These appeals, by special leave, have been preferred against the
judgment and decree dated 4.1.1989 of High Court of Punjab and Haryana at Chandigarh, by
which 17 appeals preferred by claimant-appellants (landowners) against the common judgment
and award of the Additional District Judge, Kurukshetra, dated 31.8.1985 had been decided. The
claimant-appellants had sought enhancement of the amount of compensation for acquisition of
their land.
2. A notification under Section 4 of the Land Acquisition Act (hereinafter referred to as
‘the Act’) was issued for acquisition of 89 acres and 3 marlas of land for construction of a
cooperative sugar mill. The land was situate as one compact unit in four villages viz. Kankar
Shahbad, Chhapra, Jandheri and Jhambara and belonged to 17 families. In response to the
notice issued by the Collector under Section 9 of the Act, landowners filed objections claiming
compensation for their land which had been acquired. The Land Acquisition Collector, after
holding an enquiry, gave an award on 14.7.1983 under Section 11 of the Act. The Collector gave
award on the basis of quality of land, for which purpose he divided the acquired land in seven
categories and the market value was assessed at Rs.6,000/- to Rs.35,000/- per acre for different
types of lands. Feeling aggrieved by the award of the Collector, the appellants herein
(landowners) sought reference to the Court under Section 18 of the Act. The learned Additional
District Judge awarded compensation at a flat rate of Rs.43,000/- per acre by placing reliance on
Ex. R-6 and R-7, two instances of sale deeds of village Chhapra. After taking average of these
sale transactions, an addition of 25% was made for fixing the market value of the land. Against
the award made by the learned Additional District Judge, the claimant-appellants (landowners)
preferred 17 appeals before the High Court. The High Court after appraisal of evidence
on record held that the market value of the land acquired was Rs.1,20,000/- per acre. It further
held that the exemplars filed by the appellants were of small pieces of land and, therefore, a
deduction of 33% had to be made and accordingly the market value of the land was assessed
at Rs.80,000/- per acre. Besides the market value, the appellants were also held entitled to
statutory sums under Sections 23(1-A), 23(2) and 28 of the Act. The State of Haryana had also
filed appeals against the award of the Additional District Judge, but the same were dismissed.
3. The appeals in this Court have only been filed by the landowners and the State of
Haryana has not filed any appeal challenging the judgment and decree of the High Court.
We have heard Shri M.L. Varma, learned Senior Advocate for the appellants and Shri Rakesh
Dwivedi, learned Senior Advocate for the Shahabad Cooperative Sugar Mills Ltd., for whose
benefit the land has been acquired.
4. In order to determine the compensation which the tenure- holders are entitled to get
for their land which has been acquired, the main question to be considered is what is the market
value of the land. Section 23(1) of the Act lays down what the Court has to take into
consideration while Section 24 lays down what the Court shall not take into consideration and
have to be neglected. The main object of the enquiry before the Court is to determine the market
value of the land acquired. The expression ‘market value’ has been subject-matter of
consideration by this Court in several cases. The market value is the price that a willing
purchaser would pay to a willing seller for the property having due regard to its existing condition
with all its existing advantages and its potential possibilities when led out in most advantageous
manner excluding any advantage due to carrying out of the scheme for which the property is
compulsorily acquired. In considering market value disinclination of the vendor to part with his
land and the urgent necessity of the purchaser to buy should be disregarded. The guiding star
would be the conduct of hypothetical willing vendor who would offer the land and a purchaser in
normal human conduct would be willing to buy as a prudent man in normal market conditions but
not an anxious dealing at arms length nor facade of sale nor fictitious sale brought about in quick
succession or otherwise to inflate the market value. The determination of market value is the
prediction of an economic event viz., a price outcome of hypothetical sale expressed in terms of
probabilities. See Thakur Kanta Prasad v. State of Bihar, AIR 1976 SC 2219; Prithvi Raj Taneja
v. State of M. P., AIR 1977 SC 1560; Administrator General of West Bengal v. Collector,
Varanasi, AIR 1988 SC 943 and Periyar v. State of Kerala, AIR 1990 SC 2192.
5. For ascertaining the market value of the land, the potentiality of the acquired land
should also be taken into consideration. Potentiality means capacity or possibility for changing or
developing into state of actuality. It is well settled that market value of a property has to be
determined having due regard to its existing condition with all its existing advantages and its
potential possibility when led out in its most advantageous manner. The question whether a land
has potential value or not, is primarily one of fact depending upon its condition, situation, user to
which it is put or is reasonably capable of being put and proximity to residential, commercial or
industrial areas or institutions. The existing amenities like, water, electricity, possibility of
their further extension, whether near about Town is developing or has prospect of
development have to be taken into consideration. See Collector Raigarh v. Hari Singh Thakur,
AIR 1979 SC 472, Raghubans Narain v. State of U.P., AIR 1969 SC 465 and Administrator
General, W. B. v. Collector Varanasi, AIR 1988 SC 943. It has been held in Kaushalya Devi v.
L.A.O. Aurangabad, AIR 1984 SC 892 and Suresh Kumar v. T.I. Trust, AIR 1980 SC 1222 that
failing to consider potential value of the acquired land is an error of principle.
6. As mentioned earlier, the learned Additional District Judge had awarded compensation
at a flat rate of Rs.43,000/- per acre by placing reliance on Ex. R-6 and R-7, two instances of sale
of village Chhapra. After taking an average of these two sale transactions, an addition of 25%
was made while fixing the market value of the land. The High Court held that these two sale
deeds were of 31.12.1980, while in the instant case, the notification under Section 4 of the Act
was published much later on 9.2.1983. That apart, Ex.R-6 and R-7 were mutation orders and the
corresponding sale deeds had not been brought on the record. In fact, the learned Additional
District Judge, in the earlier part of the judgment, had himself discarded Ex. R-6 and R-7 as they
were mutation orders and were inadmissible in evidence. The High Court, therefore, rightly held
that no reliance could be placed upon Ex.R-6 and R-7 for determining the market value of the
land.
7. The claimant-appellants (landowners) had filed copies of four sale deeds which are
Exs.P-7, P-8, P-9 and P-10. In fact, Ex. P-7 is a copy of a sale deed by which Laxman Singh
bought some land in village Chhapra on 28.7.1982, which itself became subject-matter of
acquisition. Laxman Singh had deposed that he had bought the land for construction of shops.
All these four sale deeds related to sale transactions prior to the issuance of the notification under
Section 4 of the Act on 9.2.1983. The High Court excluded Ex.P-8 from consideration as it
related to a very small piece of land measuring 19 marlas only. The average price of the three
sale deeds viz. Ex. P-7, P-9 and P-10 came to little more than Rs.1,20,000/- per acre. Apart from
these three sale deeds, no other exemplars were filed either by the State of Haryana or by the
landowners. The High Court accepted the price exhibited by the aforesaid three sale transactions
which came to little more than Rs.1,20,000/- per acre. It thus recorded a finding that the market
value of the land was Rs.1,20,000/- per acre. In our opinion, there being no other documentary
evidence, the view taken by the High Court that the market value of the land was Rs.1,20,000/-
per acre is perfectly correct and calls for no interference.
8. Shri Rakesh Dwivedi, learned senior counsel for the sugar mill has submitted that the
exemplars filed by the appellants were of very small pieces of land and, therefore, they are not
safe guide to determine the market value of the land. It may be mentioned here that while
determining the market value, the potentiality of the land acquired has also to be taken into
consideration. The appellants have led evidence to show that the acquired land had the
potentiality to be used for commercial, industrial and residential purposes. PW.1 Rakesh Kumar
had prepared a site plan which showed that the acquired land was adjacent to the abadi of
Shahabad and abutted the Shahabad-Ladwa Road. The site plan also shows that there existed rice
shellers, cold storage, shops, godowns, a college and houses etc. on both sides of Shahabad-
Ladwa Road. PW.2 Baldev Singh was Patwari of village Chhapra in the year 1983. He
deposed that all the four villages viz. Kankar Shahbad, Chhapra, Jandheri and Jhambara are
adjacent to each other and the acquired land abutted the Shahabad-Ladwa Road. He further
deposed that the acquired land was 2 kilometre from G.T. Road and there were buildings,
godowns, a cinema hall, factories on both sides of the Shahabad-Ladwa Road. Therefore, there
can be no manner of doubt that the acquired land had the potentiality for being used for
commercial, industrial and residential purposes and there was fair possibility of increase in its
market value in the near future. Therefore, the fact that the exemplars filed by the appellants were
of the small pieces of land could not be a ground to discard them specially when exemplars of
large pieces of land were not available. They could, therefore, be used as a safe guide for
determining the market value of the land.
9. Learned counsel for the appellants has seriously challenged the finding of the High
Court that the market value of the land determined on the basis of the exemplars filed by the
parties should be reduced by one-third on account of the fact that the exemplars relied upon for
ascertaining the market value related to sale of small pieces of land. According to Shri M.L.
Verma, learned senior counsel for the appellants, there is no uniform principle that if a large area
has been acquired and the exemplars are of small pieces of land, the market value exhibited by
the exemplars must necessarily be reduced by one-third. Shri Verma has placed strong reliance on
Bhagwathula Samanna & Ors. v. Special Tehsildar & Land Acquisition Officer, Visakhapatnam
Municipality, (1991) 4 SCC 506, wherein it was held as under :-
“In fixing the market value of a large property on the basis of a sale transaction for
smaller property, generally a deduction is given taking into consideration the expenses
required for development of the larger tract to make smaller plots within that area in
order to compare with the small plots dealt with under the sale transaction. However, in
applying this principle of deduction it is necessary to consider all relevant facts. It is
not the extent of the area covered under the acquisition which is the only relevant
factor. If smaller area within the large tract is already developed and situated in an
advantageous position suitable for building purposes and have all amenities such as
roads, drainage, electricity, communications etc. then the principle of deduction simply
for the reason that it is part of the large tract acquired, may not be justified.
In the present cases the lands covered by the acquisition are located by the side of the
National Highway and the Southern Railway Staff Quarters with the Town Planning
Trust road on the north. The neighbouring areas are already developed ones and houses
have been constructed, and the land has potential value for being used as building sites.
Having found that the land is to be valued only as building sites and having stated the
advantageous position in which the land in question lies though forming part of the larger
area, the High Court should not have applied the principles of deduction. It is not in every
case that such deduction is to be allowed. Therefore, the High Court erred in making a
deduction of one-third of the value of the comparable sale and thus reducing the fair
market value of land from Rs. 10 per sq. yard to Rs.6.50 per sq. yard.”
Shri Verma has also referred to Kasturi & Ors. v. State of Haryana, (2003) 1 SCC 354,
wherein it was observed that in cases of those land where there are certain advantages by virtue of
the developed area around, it may help in reducing the percentage of cut to be applied, as the
development charges required may be less on that account. There may be various factual factors
which may have to be taken into consideration while applying the cut in payment of
compensation towards development charges, may be in some cases it is more than 1/3rd and in
some cases less than 1/3rd. Therefore, in this case taking into consideration the potentiality of
the acquired land for construction of residential and commercial buildings, the deduction made
was only 20%.
10. Shri Rakesh Dwivedi, learned senior counsel for the sugar mill has, on the other hand,
strenuously urged that the evidence of market value shown by sale of small plots is not a safe
guide in valuing large areas of land and the prices fetched for small plots cannot be directly
adopted in valuing large extent of land as has been acquired in the present case. He has thus
contended that a deduction of 30% had rightly been made by the High Court on account of
acquisition of a large area. In support of his contention, Shri Dwivedi has placed reliance upon
several decisions of this Court. In order to appreciate the principle laid down therein, it will be
useful to refer to them in some detail. In Administrator General of West Bengal v. Collector,
Varanasi, AIR 1988 SC 943, it was held as follows in para 6 of the report:—
“The principle requires that prices fetched for small developed plots cannot directly be
adopted in valuing large extents. However, if it is shown that the large extent to be
valued does admit of and is ripe for use for building purposes; that building lots that
could be laid out on the land would be good selling propositions and that valuation
on the basis of the method of a hypothetical layout could with justification be adopted,
then in valuing such small laid out sites the valuation indicated by sale of comparable
small sites in the area at or about the time of the notification would be relevant. In such a
case, necessary deductions for the extent of land required for the formation of roads and
other civic amenities; expenses of development of the sites by laying out roads,
drains, sewers, water and electricity lines, and the interest on the outlays for the period of
deferment of the realisation of the prices; the profits on the venture etc. are to be made.”
11. In Chimanlal v. Special Land Acquisition Officer, AIR 1988 SC 1652 it was held as
follows in para 4 (15) of the reports:
“Firstly while a smaller plot is within the reach of many, a large block of land will have
to be developed by preparing a lay out, carving out roads, leaving open space, plotting
out smaller plots, waiting for purchasers (meanwhile the invested money will be blocked
up) and the hazards of an entrepreneur. The factor can be discounted by making a
deduction by way of an allowance at an appropriate rate ranging approx. between 20% to
50% to account for land required to be set apart for carving out lands and plotting out
small plots. The discounting will to some extent also depend on whether it is a rural area
or urban area, whether building activity is picking up, and whether waiting period during
which the capital of the entrepreneur would be locked up, will be longer or shorter and
the attendant hazards.”
12. Shri Dwivedi has also referred to Basant Kumar & Ors. v. Union of India & Ors.,
(1996) 11 SCC 542, K. Vasundara Devi v. Revenue Divisional Officer (LAO), (1995) 5 SCC 426,
H.P. Housing Board v. Bharat S. Negi & Ors., (2004) 2 SCC 184. In the first cited case land was
acquired for planned development of Delhi and in the other two cases for Housing Boards and a
deduction of 33% was applied.
13. The reasons given for the principle that price fetched for small plots cannot form safe
basis for valuation of large tracks of land, according to cases referred to above, are that
substantial area is used for development of sites like laying out roads, drains, sewers, water and
electricity lines and other civic amenities. Expenses are also incurred in providing these basic
amenities. That apart it takes considerable period in carving out the roads making sewers and
drains and waiting for the purchasers. Meanwhile the invested money is blocked up and the return
on the investment flows after a considerable period of time. In order to make up for the area of
land which is used in providing civic amenities and the waiting period during which the capital of
the entrepreneur gets locked up a deduction from 20% onward, depending upon the facts of each
case, is made.
14. The question to be considered is whether in the present case those factors exist which
warrant a deduction by way of allowance from the price exhibited by the exemplars of small plots
which have been filed by the parties. The land has not been acquired for a Housing Colony or
Government Office or an Institution. The land has been acquired for setting up a sugar factory.
The factory would produce goods worth many crores in a year. A sugar factory apart from
producing sugar also produces many by-product in the same process. One of the by-products
is molasses, which is produced in huge quantity. Earlier, it had no utility and its disposal used to
be a big problem. But now molasses is used for production of alcohol and ethanol which yield lot
of revenue. Another by-product begasse is now used for generation of power and press mud is
utilized in manure. Therefore, the profit from a sugar factory is substantial. Moreover, it is not
confined to one year but will accrue every year so long as the factory runs. A housing board does
not run on business lines. Once plots are carved out after acquisition of land and are sold to
public, there is no scope for earning any money in future. An industry established on acquired
land, if run efficiently, earns money or makes profit every year. The return from the land
acquired for the purpose of Housing Colony, or Offices, or Institution cannot even remotely
be compared with the land which has been acquired for the purpose of setting up a factory
or industry. After all the factory cannot be set up without land and if such land is giving
substantial return, there is no justification for making any deduction from the price exhibited by
the exemplars even if they are of small plots. It is possible that a part of the acquired land might
be used for construction of residential colony for the staff working in the factory. Nevertheless
where the remaining part of the acquired land is contributing to production of goods yielding
good profit, it would not be proper to make a deduction in the price of land shown by the
exemplars of small plots as the reasons for doing so assigned in various decisions of this
Court are not applicable in the case under consideration.
15. Having regard to the entire facts and circumstances of the case, we are of the opinion
that a deduction of 10% from the market value of the land, which has been arrived at by the High
Court would meet the ends of justice. Therefore, the market value of the acquired land for the
purpose of payment of compensation to the land owners has to be assessed at Rs.1,08,000/-
per acre.
16. In the result, the appeals are partly allowed. The claimant-appellants will be entitled to
compensation at the rate of Rs.1,08,000/- per acre. Besides the above amount, they will also be
entitled to the statutory sum in accordance with Section 23(1-A) and solatium at the rate of 30%
on the market value of the land in accordance with Section 23(2) of the Act. They will also be
entitled to interest as provided in Section 28 of the Act. The appellants will be entitled to their
costs.
Appeals partly allowed.
[2008 (1) T.N.C.J. 284 (SC)]

SUPREME COURT
BEFORE:
STATE GOVERNMENT OF M.P. AND OTHERS ...Petitioner
Versus
SHANKARLAL ...Respondent
[Civil Appeal No. 587 of 2005, decided on 13 December, 2007]
th
Service laws—Subsistence allowance during suspension—Fundamental Rules, Rule

53—During suspension period subsistence allowance not reached to delinquent or reached
belatedly—Because of belated payment respondent could not participate in enquiry
resulting in termination—High Court quashed order—Validity of—Held, whether non-
payment of subsistence allowance caused any prejudice to respondent—Fact not considered
by High Court—Hence, remitted for fresh consideration.
(Paras 17 to 19)
Case law.—AIR 1987 SC 2257; 2000 (7) SCC 90—referred.
JUDGMENT
S.B. SINHA, J.—Respondent was appointed as a Lower Division Clerk in the Public
Works Department on 25.9.1971. He was promoted as Upper Division Clerk on 1.1.1979.
2. A departmental proceeding was initiated against him. He was placed under suspension
by an order dated 4.9.1982. In the said order of suspension, it was clearly stipulated that
subsistence allowance would be paid to him in terms of Rule 53 of the Fundamental Rules. On or
about 19.6.1982, he was transferred from Katni to Barhi. He did not join at Barhi after the order
of suspension was passed. It appears that a communication was issued to him on 5.10.1983
asking him to collect the subsistence allowance stating :
“You are suspended by the Superintending Engineer PWD (B&R) Jabalpur Circle,
Jabalpur vide order No.1164/E-11-19 of 74 dated 4.9.82 and suspension order was sent to
you, but you have refused to take it.
(2) Charge-sheet was issued by SEJC vide No.2067/E-11-19 of 74 dated
16.10.82, and sent through peon and 2 sub- Engineer of this Division, but you
have refused to take it.
(3) Executive Engineer, PWD (E/M) Dn. Jabalpur Enquiry officer of your D.E. case
have served the notice for facing the DE and attending their office, but you have
refused to take it.
Please arrange to take the above letters from their officer and produced to the
undersigned, so that further action, for sanction of suspension allowance and other dues,
can be taken by this officer.
Please also explain for your not joining in Barhi Sub Division with Head Quarters at
Barhi after suspension & why your absence from Barhi should not be considered as
wilful absence from Head quarters and action taken accordingly.”
3. For a few days, namely, on 2.11.1983, 22.11.1983, 9.12.1983 and 20.1.1984, he took
part in the departmental proceedings. On those days, some witnesses on behalf of the department
were examined and cross-examined. But on 24.2.1984, he absented himself. A telegram was
sent to him asking him to submit his list of witnesses and defence on 12.3.1984. He did not
comply therewith. He also did not take part in the departmental proceedings on 29.3.1984.
Another chance was given to him to appear before the enquiry officer on 19.4.1984 but even on
the said date he was not present. He although was present on 5.5.1984, but did not take part in
the hearing in the said proceeding stating that he had filed an appeal before this Court.
We may place on record that neither any number has been put in the said purported S.L.P.
nor the same was registered, although according to the respondent, who had appeared in person
before us, the said SLP was still pending.
4. On subsequent dates, he absented himself and, thus, did not take part in the enquiry
proceedings. Out of 18 dates fixed for hearing, the respondent was present only on five days. In
the aforementioned situation, an ex parte departmental proceeding was held wherein he
was found guilty of the charges levelled against him. We may also place on record that he
collected his subsistence allowance for the period 4.9.1982 to 20.9.1982 in January 1985 and
thereafter payment till September 1984 was made in February 1987. His services, however, were
terminated by an order dated 28.5.1985. The amount of subsistence allowance of the respondent
was raised from 50% to 75% on 14.6.1985.
5. He preferred an appeal thereagainst which was dismissed by the Chief Engineer being
the appellate authority on 15.11.1999.
6. An original application was filed by him before the State Administrative Tribunal
wherein, inter alia, a question in regard to non- payment of subsistence allowance was raised.
The Tribunal in its order opined :
“Therefore, the applicant himself is responsible for delayed payment of the
subsistence allowance, not the respondents.”
7. Other contentions raised by him before the Tribunal were also not accepted. The
Tribunal held that the conclusion of the enquiry officer being based on evidence produced in
the departmental enquiry, no case has been made out for interference with the order of the
Disciplinary Authority. The original application was, therefore, dismissed.
8. On a writ petition preferred by the appellant thereagainst before the High Court of
judicature at Madhya Pradesh at Jabalpur which was marked as Writ Petition No.1497 of 2002, a
Division Bench of the High Court, however, held that non-payment of subsistence allowance
amounted to violation of principles of natural justice, stating :
“The Tribunal dismissed the application on the ground that the Tribunal or Court are not
the appellate forum to review the punishment. However, this fact cannot be
marginalized and blinked away because it goes to the root of the matter and it has nexus
with the principles of natural justice, that unless and until subsistence allowance is paid to
the delinquent employee in proper time, how he could take proper steps in defending his
case in the departmental enquiry. In the present case, the period during which the
subsistence allowance was not paid was quite long which is 4.9.1982 to 13.11.1984. On
the basis of the aforesaid premised reasons, we set aside the order passed by the Tribunal
as well as the order terminating the services of the petitioner passed by the authority. The
petitioner is hereby directed to be reinstated. However, looking to the entire facts and
surrounding circumstances, we do not think it proper to award any back wages.”
9. Ms. Vibha Datta Makhija, learned counsel appearing on behalf of the State, in support
of this appeal would submit that the respondent having not shown any prejudice in regard to non-
payment of the subsistence allowance, the High Court committed a serious error in passing the
impugned judgment.
10. Respondent who appeared in person, on the other hand, contended that non-
payment of subsistence allowance violates the right to life of a person as contained in Article 21
of the Constitution of India and in that view of the matter, it was obligatory on the part of the
appellant herein to pay the said allowance.
11. Rule 53 of the Madhya Pradesh Fundamental Rules provides that subsistence
allowance should be paid to an employee who has been placed under suspension. Payment of
inadequate quantum of subsistence allowance has been adversely commented by this Court [See
O.P. Gupta v. Union of India & Ors., AIR 1987 SC 2257].
12. It is, thus, not in dispute that all facilities for receipt of payment of subsistence
allowance must be given to the delinquent officer.
13. An almost identical question in regard to payment of subsistence allowance albeit in a
different fact situation came up before this Court in Jagdamba Prasad Shukla v. State of U.P. &
Ors., (2000) 7 SCC 90, wherein it was opined :
“6. It is evident from the record that the High Court is not right in observing that the
ground sought to be urged was not taken in the claim petition or in the writ
petition. In fact, the High Court in the latter part of the judgment observes that :
‘for the first time, the petitioner has taken the ground in this writ petition that he could
not attend the departmental proceedings due to financial crunch as he was not paid his
subsistence allowance’.
A perusal of the record shows that the contention urged before the High Court and again
before us, was also raised before the U.P. Public Service Tribunal and even earlier before the
authorities. The U.P. Public Service Tribunal considered it and on the facts of the case, the
Tribunal held that :
‘Therefore, those rulings where person was unable to attend the enquiry for non-payment
of subsistence allowance, resulting in inquiry being vitiated will not be applicable.’
Apart from it, in reply dated 22-1-1979 sent to the show-cause notice, the appellant
specifically stated that he has not been paid his pay and suspension allowance which cannot be
withheld and as such how could he be expected to reach Gorakhpur or elsewhere due to shortage
of funds. He further stated that :
‘the applicant has requested a number of times for drawing his pay and suspension
allowance, but the same could not be drawn and sent to the applicant which was a serious
handicap to appear anywhere even if he so preferred during illness and even against the
recommendations of his medical attendant’.
The request of the appellant for payment of subsistence allowance is also contained in his
letter dated 31-3-1978 sent to the Superintendent of Police, Railways, Gorakhpur Section,
Gorakhpur. The said letter also contains the address of the appellant. The address of the appellant
is in fact contained on various communications sent by him to the respondents. It is curious that
the respondents could serve all other communications including the show-cause notice to the
appellant but insofar as the payment of subsistence allowance is concerned, the plea taken is that
the appellant did not intimate his address and, therefore, the amount could not be sent. Thus, it is
evident that despite repeated requests, the subsistence allowance was not paid to the appellant
from the date of suspension till removal. It is also evident that the appellant had expressed
difficulty in reaching the place of inquiry due to shortage of funds.
8. The payment of subsistence allowance, in accordance with the Rules, to an
employee under suspension is not a bounty. It is a right. An employee is entitled
to be paid the subsistence allowance. No justifiable ground has been made out for
non-payment of the subsistence allowance all through the period of suspension
i.e., from suspension till removal. One of the reasons for not appearing in inquiry
as intimated to the authorities was the financial crunch on account of non-
payment of subsistence allowance and the other was the illness of the appellant.
The appellant in reply to the show-cause notice stated that even if he was to
appear in an inquiry against medical advice, he was unable to appear for want
of funds on account of non- payment of subsistence allowance. It is a clear
case of breach of principles of natural justice on account of the denial of
reasonable opportunity to the appellant to defend himself in the departmental
enquiry. Thus, the departmental enquiry and the consequent order of removal
from service are quashed.”
14. We may, however, notice that in Indra Bhanu Gaur v. Committee, Management of
M.M. Degree College & Ors., (2004) 1 SCC 281, a Bench of this Court opined that when an
opportunity had been granted to the delinquent officer to take the subsistence allowance, it must
be shown that because of non-payment thereof, he was not in a position to participate in the
proceedings or that any other prejudice in effectively defending the proceedings was caused to
him.
15. Yet again, in U.P. State Textile Corpn. Ltd. v. P.C. Chaturvedi, (2005) 8 SCC 211, it
was held :
“Rule 41 provides that the subsistence allowance is payable only when the employee, if
required, presents himself every day at the place of work. Obviously, for establishing that
the employee had presented himself at the place of work, the authorities had clearly
stipulated a condition that the attendance register was to be signed. No explanation was
offered by respondent 1 employee as to why he did not sign the register. It cannot be
lightly brushed aside as technical and/or inconsequential. As admittedly, respondent 1
employee had not signed the attendance register even though specifically required in
the order of suspension, the High Court was not justified in coming to a conclusion that
the non-signing was not consequential or a bona fide lapse. It is also to be noted that at
various points of time the employer informed respondent 1 employee about the
consequences of his not signing the attendance register as stipulated in the order
of suspension.”
16. The High Court, in our opinion, committed a serious error in holding that the question
of prejudice is irrelevant in so far as it misread and misinterpreted Jagdamba Prasad Shukla
(supra). No law in absolute terms in this connection was laid down therein. The relief was
granted to the appellant having regard to the fact situation obtaining therein. It was found as of
fact that no subsistence allowance, had been given. It was not established that communication in
relation to subsistence allowance was, in fact, served upon the appellant therein and despite
repeated requests, subsistence allowance was not paid. The fact that the Court therein opined that
no justifiable ground has been made for non-payment of the subsistence allowance all through the
period of suspension till removal, may, itself be a ground for arriving at the conclusion that
the delinquent officer was suffering from financial crunch on account thereof as also his illness.
17. The High Court, therefore, in our opinion, was required to arrive at a correct
finding of fact so as to enable it to pose unto itself the right question for arriving at a right
decision.
18. Respondent, indisputably, has been found guilty of commission of misconduct. He,
however, rightly or wrongly carried an impression that the writ petition filed by him before this
Court presumably by sending a letter to the Chief Justice has been entertained. But,
evidently, neither no such letter was received nor the same had been entertained by this Court. A
finding of fact has been arrived at by the Tribunal that the respondent himself was to thank
himself for non- receipt of subsistence allowance. It was held that the appellant had taken all
possible steps for disbursement of subsistence allowance.
19. We, therefore, are of the opinion that in the peculiar facts and circumstances of the
case, interest of justice shall be subserved if the impugned judgment is set aside and the matter is
remitted to the High Court for consideration thereof afresh. The High Court may look into the
records of the case so as to enable it to arrive at a decision whether non-payment of subsistence
allowance caused any prejudice to the respondent in the event it intends to interfere with the
finding of fact arrived at by the Tribunal that the respondent himself was responsible therefor.
20. However, we direct that in the peculiar facts and circumstances of this case, the State
should pay a sum of Rs.50,000/- (Rupees fifty thousand only) to the respondent by way of
litigation costs. The State shall also place before the High Court all relevant records. We would
request the High Court to consider the desirability of disposing of the matter expeditiously.
21. The appeal is allowed to the aforesaid extent and with the aforesaid directions and
observations.
Appeal allowed.
[2008 (1) T.N.C.J. 290 (SC)]

SUPREME COURT
BEFORE:
A.K. MATHUR AND MARKANDEY KATJU, JJ.
MOHD. AKRAM ANSARI ...Petitioner
Versus
CHIEF ELECTION OFFICER AND OTHERS ...Respondents
With
NAVED YAR KHAN ...Appellant
Versus
HAROON YUSUF AND ANOTHER ...Respondents
[Civil Appeal No. 4981 of 2006 with C.A.No. 5828 of 2006, decided on 4th December, 2007]
Representation of Peoples Act, 1951—Sections 81 and 86—Wakf Act, 1995 [As
amended by the Wakf (Delhi Amendment) Act, 2006]—Section 31-A—Election petition—
Holding of office of profit—Bar to contest election—Respondent was Chairman of Wakf
Board—Election contested—Won—Later amendment in Wakf Act whereby it was declared
that Chairman would not be disqualified for contesting election—Plea raised that
amendment has no retrospective effect—Held, words used in Act makes it clear that it is
retrospective—Hence, petition dismissed.
(Paras 5 to 7 and 9)
Case law.—2003 (2) SCC 111—relied on; AIR 1971 SC 1474—referred.
JUDGMENT
A.K. MATHUR, J.— Heard learned counsel for the parties including the appellant
appearing in person in C.A. No. 5828/2006. The appellant in C.A. No. 5828/2006 is also
respondent No. 6 in C.A. No. 4981/2006.
2. C.A. No. 4981/2006 is directed against the judgment and order dated 22.8.2006 passed
by a learned Single Judge of the Delhi High Court in Election Petition No. 2/2004. C.A. No.
5828/2006 is directed against the judgment and order dated 22.8.2006 passed by the same learned
Single Judge of the High Court in Election Petition No. 3/2004. The appellant in C.A. No.
5828/2006 (who was petitioner in Election Petition No. 3/2004) has stated before the High Court
that Election Petitions Nos. 2 and 3 of 2004 were almost identical and hence no evidence was
recorded in Election Petition No. 3/2004.
3. The facts of the case are that the appellant contested the election to the Delhi Legislative
Assembly in 2003 but lost. The respondent Haroon Yusuf was declared elected. At the time of
the election Haroon Yusuf was also the Chairman of the Delhi Wakf Board.
4. The question involved in both these appeals is whether the office of Chairperson or
Members of the Wakf Board is an office of profit so as to disqualify a person from being elected
as a member of the Legislative Assembly of NCT of Delhi. It may be noted here that an
amendment has been brought about in the Wakf Act, 1995 by way of The Wakf (Delhi
Amendment) Act, 2006 (Delhi Act 3 of 2006) by inserting Section 31-A in the 1995 Act. Section
31-A of the Wakf Act, 1995 as amended by The Wakf (Delhi Amendment) Act, 2006 reads as
under :—
“31-A. Prevention of disqualification for membership of Legislative Assembly of
National Capital Territory of Delhi.—It is hereby declared that the offices of the
Chairperson or Members of the Board constituted for Union Territory of
Delhi shall not be disqualified and shall be deemed never to have been
disqualified for being chosen as, or for being, a member of the Legislative
Assembly of National Capital Territory of Delhi.”
5. The appellant, appearing in person, submitted that the aforesaid Section 31-A came into
force only in 2006, whereas the election was held in 2003, and the election petition was filed on
13.1.2004. He submitted that Section 31-A is not retrospective and hence will have no
application to elections held before 2006. We do not agree.
6. It is true that the Amendment Act, 2006 does not specifically state that it is
retrospective. However, the use of the words “and shall be deemed never to have been
disqualified” in the above provision makes it clear that it is retrospective.
7. The words “and shall be deemed never to have been disqualified” in Section 31-A
creates a legal fiction. Legal fictions are well-known in law. In the oft-quoted passage of Lord
Asquith in East End Dwelling Co. Ltd. v. Finsbury Borough Council, (1951) 2 All ER 587 it was
observed:
“If you are bidden to treat an imaginary state of affairs as real, you must surely, unless
prohibited from doing so, also imagine as real the consequence and incidents which, if
the putative state of affairs had in fact existed, must inevitably have flowed from or
accompanied it—The statute says that you must imagine a certain state of affairs; it
does not say that having done so, you must cause or permit your imagination to boggle
when it comes to the inevitable corollaries of that state of affairs”.
8. The aforesaid observation has been approved and followed by our own Supreme Court
in a series of decisions e.g. Bhavnagar University v. Palitana Sugar Mill (P) Ltd., 2003 (2) SCC
111 (para 33), Raja Shatrunjit (dead) by Lrs v. Mohammad Azmat Azim Khan and others, AIR
1971 SC 1474 etc.
9. Hence, even if the elected candidate was disqualified in the year 2003, he has to be
deemed not to have been disqualified in view of Section 31-A which was inserted in the year
2006.
10. In view of the above it is not necessary for us to go into the question as to whether de
hors Section 31-A the office of Chairperson of the Wakf Board can be said to be an office of
profit. The aforesaid question has become academic now after the insertion of Section 31-
A.
11. The appellant then submitted that apart from the point that the elected candidate
Haroon Yusuf was holding an office of profit, the appellant had also raised a large number of
other points in the election petition, including the allegation of corrupt practice by Haroon Yusuf,
but these have not been dealt with by the High Court. He submitted that the High Court should
have dealt with all the points mentioned in the election petition.
12. We have carefully gone through the impugned judgment of the High Court and we find
that the only point discussed therein is the point whether Haroon Yusuf was disqualified because
he was holding an office of profit. No other point has been discussed in the aforesaid judgment.
13. The appellant submitted that he had taken a large number of points in his election
petition, but they have wrongly not been discussed in the impugned judgment.
14. In this connection we would like to say that there is a presumption in law that a Judge
deals with all the points which have been pressed before him. It often happens that in a petition or
appeal several points are taken in the memorandum of the petition or appeal, but at the time of
arguments only some of these points are pressed. Naturally a Judge will deal only with the points
which are pressed before him in the arguments and it will be presumed that the appellant gave up
the other points, otherwise he would have dealt with them also. If a point is not mentioned in the
judgment of a Court, the presumption is that that point was never pressed before the learned
Judge and it was given up. However, that is a rebuttable presumption. In case the petitioner
contends that he had pressed that point also (which has not been dealt with in the impugned
judgment), it is open to him to file an application before the same learned Judge (or Bench) which
delivered the impugned judgment, and if he satisfies the Judge (or Bench) that the other points
were in fact pressed, but were not dealt with in the impugned judgment, it is open to the
concerned Court to pass appropriate orders, including an order of review. However, it is not
ordinarily open to the party to file an appeal and seek to argue a point which even if taken in the
petition or memorandum filed before the Court below, has not been dealt with in the judgment of
the Court below. The party who has this grievance must approach the same Court which passed
the judgment, and urge that the other points were pressed but not dealt with.
15. Since no other point except the point of office of profit has been dealt with in the
impugned judgment of the High Court, the presumption is that no other point was pressed before
the High Court, even though the point may have been contained in the election petition. Hence
we do not allow these points to be raised here.
16. With the observations made above, the appeals are dismissed. No costs.
Appeals dismissed.
[2008 (1) T.N.C.J. 294 (MAD)]

MADRAS HIGH COURT
BEFORE:
S. PALANIVELU, J.
TAMIL NADU STATE TRANSPORT CORPORATION
COIMBATORE DIVISION-I LTD. ...Appellant
Versus
MARIYADOSS ...Respondent
[C.M.A. No. 361 of 2002, decided on 15 June, 2007]
th
(A) Motor Vehicles Act, 1988—Section 173—Compensation—Award of Rs.

13,27,473/- against the claim of Rs. 15,00,000/- — Legality of—Claimant suffered
permanent disability in absolute nature—Loss of both legs—Services terminated—Physical
Education Teacher—Superannuation falls at the age of 58 would be 30.4.2004—Would have
been in service for about 10 years more—Taking into overall consideration Tribunal
tentatively fixed a sum of Rs. 10,000/- per month multiplied by 90 months—Total loss of
future income calculated Rs. 9,00,000/- —Tribunal awarded Rs. 10,000/- towards transport
expenses, Rs. 1,00,000/- towards permanent disability, pain, suffering and attendant charges
—Rs. 10,000/- for extra nourishment and Rs. 1,000/- for damage of clothes—Award of Rs.
1,75 673/-plus 31,800/- towards medical expenses—Just and proper compensation—No
interference warranted.
(Paras 7 to 9)
(B) Motor Vehicles Act, 1988—Section 173—Compensation—Award of—Deduction
of pension amount—Claimant was terminated from service owing to amputation of his both
legs—Though having about 10 years of service—No deduction permissible.
(Paras 11 to 14)
Case law.—2003 (2) TAC 548 (Mad).
Counsel.—Mr. Rajnish Pathiyil for the appellant; Mr. D. Selvaraju for the respondent.
JUDGMENT
S. PALANIVELU, J.—This appeal has been filed by the Transport Corporation, aggrieved
over the award passed by the Motor Accident Claims Tribunal (Sub-Court), Tiruppur, in
awarding a sum of Rs. 13,27,473/- as against the claim of Rs.15,00,000/-.
2. At the time of arguments, both sides have not advanced anything about the factum
of negligence on the part of the appellant’s driver. In other words, the question that the
appellant’s driver was responsible for the accident is not debatable.
3. Coming to the aspect of quantum arrived at by the tribunal, learned counsel for the
appellant very much assails the award, contending that it is on higher side.
4. The claimant was working as a Physical Education Teacher in a Higher Secondary
School and drawing a sum of Rs. 4,498/- per mensem on the date of accident, namely,
21.01.1995.
5. With reference to the accident, it may be debated that while the claimant was going on
Avinasi-Coimbatore National Highway near S.P. Sizing Mill, a bus, belonging to the appellant
Corporation, which was driven by its driver in a rash and negligent manner, dashed against him,
ran over both his legs, causing crush injuries, and he was admitted to hospital, where both the
legs were amputated.
6. Doctor, P.W.2, deposed to the effect that the claimant is suffering from permanent
disability in absolute nature i.e., to say that it is assessed at cent percent.
7. By means of the above said disability, the claimant was terminated from service. It goes
without saying that he could not undertake any work, since he had lost his both legs. His date of
birth was 13.10.1946 and he, being a Physical Education Teacher, the date of his superannuating
at the age of 58 would be 30.04.2004. Had the accident not occurred, the claimant would have
been in service for about 10 years.
8. Since he was inpatient from 21.01.1995 to 31.10.1996, the loss of income for the said
period was assessed by the tribunal at Rs.99,000/- i.e., at the rate of Rs. 4,498/- for 22 months.
Further, taking into consideration the memo filed on behalf of the claimant that as on 03.07.2000,
had the claimant been in service, he might have drawn Rs.10,568/- per month and also the
recommendations of the Pay Commission, the tribunal tentatively fixed a sum of Rs.10,000/-,
which the claimant would draw per month and for 90 months i.e., from 01.01.1997 to 30.04.2004,
the total amount was fixed at Rs.9,00,000/- towards ‘1oss of future income’, which in my view, is
just and proper. Towards ‘Transport Expenses’, the tribunal awarded a sum of Rs. 10,000/-
and towards ‘permanent disability’, ‘pain and suffering’, and ‘attendant charges’, the tribunal
awarded a sum of Rs. 1,00,000/-. For ‘extra nourishment’, a sum of Rs. 10,000/- and for ‘damage
of clothes’, a sum of Rs.1,000/- was awarded. The tribunal also awarded a sum of Rs. 1,75,673
plus Rs. 31,800/- towards ‘medical expenses’, on the basis of Ex.A-3 series and A-6 to A-12,
medical bills. Thus, a total sum of Rs. 13,27,473/- was awarded by the Tribunal.
9. The above said findings of the tribunal under various heads, in my view, are quite in
order and there is no need to interfere with the same.
10. The next limb of the contention of the learned counsel for the appellant is that the
tribunal has lost sight of the circumstance that the claimant would be getting his pension after his
retirement or termination from service and, therefore, the pension amount should be deducted
from the compensation.
11. The said contention is not tenable for the reason that on account of accident alone;
the claimant was terminated from service, owing to amputation of his both legs and further he
was having about 10 years of service.
12. Per contra, learned counsel for respondent/claimant gathered support from a Division
Bench decision of this Court in S. Achuthan v. M. Gopal and another, 2003 (2) T.A.C. 548
(Mad.), wherein the compensation awarded by the Tribunal at Rs.24,54,617/- was enhanced to
Rs.35,74,617/-.
13. Since the claimant was totally immobilised, he could not imagine about attending
to any work, which would fetch income to him.
14. Under the circumstances, I hold that the amount awarded by the Tribunal under various
heads is just and proper and it warrants no interference. Therefore, this appeal is devoid of merits
and, accordingly, dismissed. No costs.
Appeal dismissed.
[2008 (1) T.N.C.J. 296 (MAD)]

MADRAS HIGH COURT
BEFORE:
S. PALANIVELU, J.
NATIONAL INSURANCE COMPANY, KANGEYAM ...Appellant
Versus
B. LINGARAJ AND OTHERS ...Respondents
[C.M.A. No. 386 of 2002, decided on 15 June, 2007]
th
Motor Vehicles Act, 1988—Section 173—Compensation—Award of Rs. 2,70,900/-

against the claim of Rs. 5,00,000/-—Legality of—Deceased a bachelor—Working as a cable
operator in Sabari Vision Company—Income fixed at a sum of Rs. 15,000/- p.a. as
notional income—Multiplier of 15 applied—Loss of income comes to Rs. 2,25,000/-—Award
of Rs. 5,000/- towards funeral expenses and Rs. 10,000/- for loss of love and affection—
Claimants are entitled to a total sum of Rs. 2,40,000/- —Orders passed
accordingly. (Paras 5 to 8)
Counsel.—Mr. N. Vijayaraghavan for the appellant; Respondent 1 died, Mr. D. Selvaraju
for the respondent 2.
JUDGMENT
S. PALANIVELU, J.—This appeal is filed by the Insurance Company, aggrieved over the
award, dated 09.11.2001, made in MCOP No. 37 of 2000, on the file of Motor Accident Claims
Tribunal, Gobichettipalayam, awarding a compensation of Rs.2,70,900/- as against the claim of
Rs. 5,00,000/-.
2. Claimants are parents of the deceased Thyagarajan, who was aged about 23 years. On
04.03.1998, at about 03.50 p.m., while the said Thyagarajan was going on a TVS 50 Motorcycle
along with his brother Vinayagamoorthy as a pillion rider, a lorry, belonging to one Rajagopal
and insured with the appellant Company, driven by its driver in a rash and negligent manner,
dashed against the motorcycle, causing head injury to the said Thyagarajan, resulting in his
instantaneous death, whereas Vinayagamoorthy escaped with some injuries.
3. There is no dispute about the manner of accident and the liability fixed on the driver for
causing the accident.
4. The quintessence of the contention of the learned counsel for the appellant is with regard
to the quantum of compensation, arrived at by the Tribunal.
5. The deceased was a bachelor. It is in oral evidence that the deceased was earning a
sum of Rs. 2,000/- per month, by working as a Cable Operator in Sabari Vision Company.
6. The Tribunal has assessed a sum of Rs.1,950/- as monthly income of the deceased
and applying the multiplier of 15, fixed a compensation of Rs.2,48,400/- towards “loss of
income”, which, according to the learned counsel for the appellant is on higher side.
7. Considering the age of the claimants and also the circumstances of this case, I feel,
fixing a sum of Rs.15,000/- per annum as notional income for the deceased would be proper. The
Tribunal has applied the multiplier of 15. Hence, the total loss of income would be Rs.2,25,000/-.
Towards ‘funeral expenses’, a sum of Rs.5,000/- and for ‘loss of love and affection’, a sum of
Rs.10,000/- can be awarded. Thus, the claimants are entitled to a total sum of Rs.2,40,000/-.
8. In the result, the appeal is allowed in part, reducing the quantum of compensation
from Rs. 2,70,900/- to Rs. 2,40,000/-, in which first and second claimants are entitled to Rs.
1,00,000/- and Rs. 1,40,000/- respectively. The appellant is permitted to withdraw the balance
amount. No costs.
Appeal partly allowed.
[2008 (1) T.N.C.J. 298 (MAD)]

MADRAS HIGH COURT
BEFORE:
S. PALANIVELU, J.
M/S. KANDAN TRAVEL AGENCIES AND ANOTHER ...Appellants
Versus
RADHA AND OTHERS ...Respondents
[C.M.A. No. 677 of 2002, decided on 13 July, 2007]
th
Motor Vehicles Act, 1988—Section 173—Compensation—Quantum of—Assessment

—Accident between lorry and van—Both the drivers lost their lives—Oral evidence—
Driver of the Van was at fault at the time of accident—Deceased aged about 32 years per
post-mortem—Multiplier of 16 adopted—Dependency fixed at Rs. 1,750/- p.m.—Total loss
of income assessed Rs. 3,36,000/-—Nothing awarded towards loss of consortium, loss of love
and affection, loss of estate and funeral expenses—A loss to the family of the deceased
definitely—Tribunal not awarded just compensation—Enhancement of compensation—
Award of Rs. 10,000/- for loss of consortium, Rs. 10,000/- on account of loss of love and
affection, Rs. 5,000/- for loss of estate and Rs. 2000/- for funeral expenses, would meet the
just compensation—Directions issued to deposit Rs. 27,000/- + Rs. 3,63,000/- along with
interest @ 7.5% of p.a. from the date of claim petition till the date of deposit, with the
Tribunal. (Paras 11 to 15, 17, 19 and 20)
Case law.—AIR 1992 Mad 61 ; CMA No. 514 of 1997; AIR 2003 SC 674 ; 1999 (3) LW
182.
Counsel.—Mr. S. Manohar for the appellant; Mrs. Hema Sampath, Senior Counsel, for
Mr. R. Subramanian for the respondents 1 to 4.
JUDGMENT
S. PALANIVELU, J.—This is a case, where two vehicles, namely, a van and a lorry,
collided head on, whereby two drivers of the said vehicles breathed their last. Pursuant to the
said accident, legal heirs of the lorry driver preferred an M.C.O.P. on the file Motor Accident
Claims Tribunal, Chengalpattu, wherein, as against a claim of Rs.4,00,000/-, a sum of
Rs.3,36,000/- was awarded by the Tribunal. Aggrieved over the said award, owner and insurer of
the van have filed this appeal.
2. The ill-fated accident occurred on 03.05.1992 at about 00.15 hours, near S.R.M.College
on G.S.T.Road. When the deceased Baskar was driving a lorry, bearing registration No.
TMX 793, a van, bearing registration No. TN 04 5996, came in the opposite direction and
collided head on with the lorry, resulting in the deaths of both the drivers. Fifth respondent is the
owner and sixth respondent is the insurer of the lorry. Similarly, first appel1ant is the owner and
second appellant is the insurer of the van. Owners of both the vehicles did not project their
appearances before the Tribunal, by remaining ex parte.
3. In the counter of second appellant, who is the insurer of the van, it was alleged that the
driver of the lorry was negligent at the time of accident, as he drove the vehicle in a rash and
negligent manner, and therefore, the driver of the van could not at all be fastened with any
liability.
4. Per contra, fourth respondent in original petition had put forth a plea that the driver of
the van was at fault and that the driver of the lorry was driving the vehicle carefully, following
the traffic rules and further the legal representatives of the driver of the van filed MCOP No.618
of 1992 on the file of Additional Sub-Court, Chengalpattu, for compensation, in which it was
held that both the drivers were at fault.
5. Even though the learned counsel for the appellants canvasses the said point before this
Court, he has not produced any document to that effect. Neither the Tribunal nor this Court had
an occasion to verify the above said point, by perusing the relevant copy of order, allegedly
passed by the Tribunal.
6. Coming to the aspect of oral evidence, it transpires that both the drivers lost their lives.
P.W.2 was a person, travelling in the lorry as a Load-man along with the deceased Baskar who
stated in definite terms that the van came in a hectic speed and dashed against the lorry. In the
cross-examination, he denied a suggestion that since the van was comparatively smaller than
lorry, it could not have the much impact of having caused the death of the driver of the lorry.
Insurer of the van had not adduced any oral evidence nor produced any document to establish that
both the drivers were at fault at the time of accident. In the absence of such evidentiary
background, it is difficult to arrive at a conclusion that both the drivers were negligent.
7. Mrs. Hema Sampath, learned senior counsel for the respondents, has drawn the attention
of this Court, by vehemently arguing about the failure on the part of the appellants in adducing
relevant and proper evidence before the Tribunal. She also relied upon a decision of a learned
single Judge of this Court in S.A.Kuppammal v. Parthasarathy, AIR 1992 Mad 61, wherein
various judgments of Hon’ble Supreme Court were followed, for a proposition of law that a
judgment not inter-parties, is inadmissible in evidence. The relevant portion of the Supreme Court
ruling is as follows:
“ 15. In State of Bihar v. Radha Krishna Singh, AIR 1983 SC 684, the Supreme Court
had an occasion to consider the position and declared the law in the following
terms:
“A judgment in rem e.g., judgments or orders passed in admiralty, probate proceedings
etc. would always be admissible irrespective of whether they are inter parties or not. A
judgment which is not inter parties is inadmissible in evidence except for the limited
purpose of proving as to ‘who the parties were and what was the decree passed and’ the
properties which were the subject-matter of the suit. The recitals in a judgment like
findings given in appreciation of evidence made or arguments or generalogy referred
in the judgment would be wholly inadmissible in a case where neither the plaintiff nor
the defendant were parties.”
(Emphasis supplied).
The said view was expressed in respect of matter relating to decision rendered in
regular civil proceedings.”
8. It is not known whether the claimants/respondents herein, namely, lega1 representatives
of the deceased Baskar, were parties to the proceedings in M.C.O.P.No.618 of 1992. Further,
since a copy of the award is not available, it is not possible at all to fasten liability on the
deceased driver Baskar also.
9. Learned counsel for the appellants produced a copy of an unreported judgment of
this Court passed by a learned single Judge in C.M.A.No. 514 of 1997, in which it is held thus:
“5. The Tribunal, based on the evidence of P.W.2, the driver of the tanker lorry,
which came behind the mini lorry involved in the accident, found that the
bus driver was responsible for the accident. But, in view of the fact that another
Court of law has decided that both the drivers of the vehicles are responsible for
the accident and hence, both insurance companies are equally liable for payment
of compensation, as evident from the evidence of R.W.2, the administrative
officer of the appellant/insurance company, and as had been repeatedly held
by the Apex Court that there cannot be different findings by different Courts in
respect of one set of facts, I am of the opinion that the Tribunal has failed to
appreciate the evidence in proper manner.
6. Hence, considering the facts and circumstances of the case, I am of the opinion that the
appellants and respondents 4 and 5, owner and insurer of the mini lorry, are equally liable for
payment of compensation and they shall bear 50%, of the compensation awarded by the
Tribunal.”
10. In the above said case, dealt with by the learned single Judge, it appears that the
insurance company had examined the administrative officer as P.W.2 and; on the strength of his
oral testimony, the matter was decided and that aspect was considered by the learned single
Judge. But, the circumstances in this case are different. Here, the appellants did not examine
anybody, in order to unearth any fact. So, the observations contained in the above said decision
cannot be made use of by the appellants.
11. Based on the oral evidence of P.W.2, which plays a vital role in this case and also
considering the other circumstances, the inferential finding would be, that the driver of the van
was at fault at the time of accident.
12. Adverting to the aspect with regard to quantum of compensation awarded by the
Tribunal, Mrs. Hema Sampath, learned senior counsel for the respondents/claimants, would
strenuously contend that even though there is neither a cross-objection nor an appeal on behalf of
the claimants for enhancement of compensation, the settled legal principles pave the way for this
Court to award an enhanced compensation, which would meet the interest of justice.
13. Claim in the petition was Rs.4,00,000/-, whereas the award by the Tribunal was
Rs.3,36,000/-.
14. P.W.1, who is the wife of the deceased Baskar, deposed in her evidence that her
husband was aged 30 years and he was getting a salary of Rs. 3,000/- per month. In cross-
examination, she stated that her husband was getting monthly wages of Rs.1,500/- apart from the
receipt of Rs. l,500/- per month, towards batta.
15. Considering the above said aspect, the Tribunal fixed dependency at Rs. l,750/- per
month and annual contribution at Rs.21,000/-. Since the deceased was aged 32 years at the time
of accident as per post mortem certificate, multiplier ‘16’ was adopted and thereby a sum of
Rs.3,36,000/- was fixed, towards total loss of income. However, the Tribunal miserably failed to
annex the compensation, to be awarded to the claimants under other heads, which resulted in
failure of justice. Towards the heads ‘loss of consortium’, ‘loss of love and affection’, ‘loss
of estate’ and ‘funeral expenses’, the Tribunal did not award anything, which, will definitely, be a
loss to the family of the deceased.
16. At this juncture, learned senior counsel for the respondents/claimants, would contend
that though no cross-objection or appeal is filed by the claimants, there is no embargo for the
Court to award enhanced compensation under the above said heads. It is also contended that
whether it is Tribunal or appellate authority, there is no restriction to the amount of
compensation, claimed in the claim petition, and it may exceed. For this proposition of law, the
learned senior counsel placed reliance upon a Full Bench decision of the Hon’ble Supreme Court
in Nagappa v. Gurudayal Singh, AIR 2003 SC 674, the relevant portion of which is as under:
“Firstly, under the provisions of Motor Vehicles Act, 1988, there is no restriction that
compensation could be awarded only up to the amount claimed by the claimant. In an
appropriate case where from the evidence brought on record if Tribuna1/Court considers
that claimant is entitled to get more compensation than claimed, the Tribunal may pass
such award. Only embargo is—it should be ‘Just’ compensation, that is to say, it should
be neither arbitrary, fanciful nor unjustifiable from the evidence…”
17. In view of the dictum laid down in the above said decision, the quantum of
compensation, to be awarded by the Tribuna1/Court, must be ‘just compensation’. The figure
arrived at by the Tribunal in this case does not reflect the term ‘just compensation’.
18. Learned senior counsel for the respondents/claimants also garnered support from a
decision of a learned single Judge of this Court in Managing Director, Thanthai Periyar
Transport Corporation, Villupuram, v. Sundari Ammal & Others, 1999 (3)LW182, wherein,
following the ratio laid down in a decision of the Hon’ble Supreme Court, it was decided that
even though there was no cross-objection, in order to render justice to the parties, enhancement of
compensation may be ordered. The relevant portion of the said judgment is as follows :
“22. As pointed out by the Apex Court in State of Punjab v. Bakshish Singh, 1998 (8)
SCC 222, the reading of the provision would make it clear that the Appellate
Court has got wide power to do complete justice between the parties and
which enables this Court to pass such decree as sought to have been passed or as
the nature of the case may require notwithstanding that the party in whose favour
the power is sought to be exercised has not filed any appeal or cross-objection.”
19. Following the principles formulated in the above said decision and also considering the
peculiar circumstances of this case, I feel, it is just and necessary to make the award as ‘just
compensation’, directing the appellants for payment of compensation under various heads. Since
the Tribunal ignored the grant of any compensation towards ‘loss of consortium’, I feel it
appropriate to award a sum of Rs. 10,000/- under the said head. Further, on account of ‘loss of
love and affection’ a sum of Rs. 10,000/- may be made available to the claimants. For ‘loss of
estate’, a sum of Rs.5,000/- and for ‘funeral expenses’, a sum of Rs. 2,000/- may also be awarded.
20. Thus, award of the Tribunal is enhanced by Rs.27,000/- to Rs.3,63,000/-. As such, the
appellants are directed to deposit the enhanced amount with the Tribunal, with interest at 7.5%
per annum from the date of claim petition till the date of deposit, within a period of eight weeks
from the date of receipt of a copy of this order. Out of the enhanced amount, first respondent is
entitled to Rs. 12,000/- and respondents 2 to 4 to Rs. 5,000/-each. On other aspects, award of the
Tribunal stands.
21. With the above modification of the award, this appeal is dismissed. No costs.
Appeal dismissed with modification.
[2008 (1) T.N.C.J. 303 (MAD)]

MADRAS HIGH COURT
BEFORE:
DHARMARAO ELIPE AND S. PALANIVELU, JJ.
T.N. RAJA SEKARAN ...Appellant
Versus
STATE OF TAMIL NADU AND OTHERS ...Respondents
[Writ Appeal No. 1525 of 2001, decided on 31st July, 2007]
(A) Land Acquisition Act, 1894—Section 3(b)—Compensation—For the area covered
by road, when entire extent of land covered by house site plots was sold—Claim for—Locus
standi of original landowner or promoter—Held—No locus standi at all—No relief could be
granted over the portions meant for streets and roads which have attained the character of
public road after they were carved out for the purpose of ingress or egress of the plot
owners—Not a “person interested”.
(Paras 15, 22 and 23)
(B) Practice and procedure—Illegal attempt to gain wrongfully from the State
exchequer and also unnecessarily stalling the acquisition proceedings—To be subjected to
punitive action as contemplated under Section 46 of the Land Acquisition Act, 1894—
Exemplary costs of Rs. 10,000/- imposed. (Para 24)
Case law.—AIR 1993 SC 2313 ; 1984 (2) MLJ 427 ; 1985 WLR 694 ; 1990 (1) MLJ 219 ;
1997 WLR 593.
Counsel.—Mr. S. David Tyagaraj for the appellant; Mr. K. Bala-krishnan, Addl.
Government Pleader for respondents 1&2, Mr. J. Ravindran for respondent 3.
Important Point
While selling the plots after carving out the roads and streets, the owner of the
land/promoter would have definitely included the cost/value of such portions left out as roads and
streets in the plot cost and also would have collected the said cost from the purchasers of the
plots. At no stretch of imagination, he could be held to be the owner or person interested in the
already sold out property.
JUDGMENT
S. PALANIVELU, J.—The appellant herein has filed W.P.No.81 of 1991 for a Writ of
Certiorari to call for the records in G.O.Rt.No.l24, Housing Department, dated 8.5.1975
published in the Tamil Nadu Gazette on 11.6.1975 on the file of the first respondent and
quash the notification issued under Section 4(1) of the Land Acquisition Act relating, to the
property in S.Nos.36, 37, 38, 39, 53/1A, 53/1B, 53/2 and 54 measuring 1.90 acres from and out of
the total extent of 6.94 acres in Nerkundram village, Saidapet Taluk, Chingleput District. Since
the said writ petition was dismissed by the learned single Judge, this writ appeal has been
preferred.
2. The case of the appellant/petitioner is that the lands comprised in Survey Nos.36, 37,
38, 39, 53/1A, 53/1B, 53/2 and 54, sprawling to an extent of 6.94 acres in Nerkundram Village,
Saidapet Taluk, were acquired by the appellant through a partition deed of the year 1964 and
a release deed of the year 1972. He laid out the entire land into 83 house site plots, providing
sufficient land for public purpose and road, naming the layout as Neelamegam Nagar, in memory
of his father. The layout was duly approved and sanctioned by the Director of Town and Country
Planning; in his proceedings No.273/73, dated 01.10.1973. He set apart a portion of the and for
laying roads and spent a considerable amount of money in levelling and developing the plots.
Such portion, earmarked for laying roads and street, would come to an extent of 1.90 acres, out of
6.94 acres, after selling of some of the plots in the approved lay-out.
3. The further case of the appellant/petitioner is that on 6.10.1972, the Chairman, Tamil
Nadu Housing Board, Chennai sent a requisition for acquisition of lands in Nerkundram village,
for formation of New Neighbourhood Scheme, known as Kalaignar Karunadhi Nagar Further
Extension Scheme. Accordingly, a draft notification under Section 4 (1) of the Land Acquisition
Act (in short, “the Act”) was issued for an extent of 460.08 acres of land in the said village and
the same was approved by the Government in G.O.Rt.No.l24, Housing Development, dated
08.05.1975, which was published in the Gazette, dated 11.06.1975. Section 5-A, enquiry was
also undertaken under the said Act, after observing all formalities. Thereafter, notification
under Section 6 of the Act was issued in G.O.Ms.No.989, Housing and Urban Development
Department, dated 07.06.1978. On the ground that there were procedural irregularities in the
acquisition of lands, the appellant filed W.P.No.1080 of 1986 before this Court for quashing the
above said two notifications under Sections 4(1) and 6, of the Act, in which a Division Bench of
this Court passed an order on 21.01.1988, quashing the Declaration under Section 6 alone,
observing that since the petitioner claimed the right of ownership by a partition deed of the year
1964 and release deed of the year 1972, the reliefs were granted subject to his proving the
ownership at the time of enquiry under Section 5-A of the Act. There was no appeal against the
said order and the same has become final.
4. Pursuant to the said judgment of the Division Bench, notices for enquiry under Section
5-A were issued in the year 1989 and the appellant put forth his objections, stating that
though the Government; in its letter dated 27.05.1982, decided to withdraw the lands from
acquisition to an extent of 5.24 acres in the above said survey numbers, at the instance of certain
purchasers of the plots, the said land was not excluded and a fresh declaration under Section 6
was issued in the year 1990 and an award passed, the compensation assessed on the strength of
market value was paltry; after disposal of the above writ petition, the respondents had not taken
any steps pursuant to the notification under Section 4 (1); the declaration under Section 6 of the
Act ought to have been made within one year as per the amendment Act 68 of 1984 and hence the
petitioner has prayed for the relief extracted supra.
5. Second respondent filed a counter affidavit, stating that by means of a letter, dated
25.05.1994, the Government addressed the Tamil Nadu Housing Board, stating that the actual
requirements of the land should be restricted, in view of the increased land value, and, in spite of
his sending a fresh requisition, no fresh 4 (1) proposal was initiated.
6. In the counter of third respondent, it was mentioned that in order to decongest the
Central Business District of Chennai, it was planned to construct a market at Chennai Urban
Agglomeration Area at Koyambedu, for which it was planned to acquire the land to an extent of
about approximately 295 acres for the proposed perishable markets (vegetable, fruit and
flower), textile and foodgrains; a proposal was sent to the Government and the Government also
accepted the same; the perishable market was successfully brought out and started functioning
from 1996 and the remaining textile and foodgrain market was delayed due to various litigations
arising out of land acquisition proceedings; the subject-matter in the present writ petition
proceedings regarding 1.90 acres is in the proposed foodgrain market at Koyambedu; the writ
petitioner had no right to claim any compensation, because the lands, which form road and street,
belong to the plot owners for their ingress and egress to their sites; having promoted the land as
lay-out and sold the plots to the respective purchasers, the promoter, namely, writ petitioner
was divested of his rights in respect of the land, earmarked for road and street and that he was not
an interested person in the acquisition proceedings.
7. The learned single Judge, having observed that having promoted the lands as layout and
sold the plots to respective purchasers, the promoter is divested of all his rights in respect of
the lands earmarked as roads and streets, has dismissed the writ petition. Aggrieved, this writ
appeal has been filed.
8. We heard Mr. S. David Tyagaraj, learned counsel, for the appellant, Mr.K.
Balakrishnan, learned Additional Government Pleader for respondents 1 and 2 and Mr. J.
Ravindran, learned counsel for the third respondent.
9. The main stay of the appellant is that he is still entitled for claiming portions of land,
admeasuring 1.90 acres in the above said survey numbers, which is earmarked for streets and
roads and that the prayer is restricted to 1.90 acres in the total extent of 6.94 acres.
10. The crucial aspect to be ascertained in this case is, whether the appellant is still holding
ownership over 1.90 acres ?
11. Even though a feeble attempt was made by the appellant in his affidavit in the writ
petition that an extent of 5.25 acres of his land was excluded by the Government vide a letter
dated 27.05.1982, on a perusal of the records, it transpires that subsequently the decision for
exclusion of the said land was revoked, by an order dated 14.09.1984.
12. Mr. S. David Tyagaraj, learned counsel for the appellant, has laboured hard to maintain
his contention that the appellant is entitled for quashing of the proceedings with regard to 1.90
acres.
13. In order to unearth the real state of affairs, this Court called for relevant files from first
respondent and, accordingly, they are produced. On a scrutiny of the same, it is found, that the
claim of the appellant would no longer survive. It is stated therein that while converting the land
into house site plots, the appellant did not relinquish the road portion for local panchayat, for
maintenance. At the time of enquiry, the appellant stated that he sold away 42 house site plots to
General Insurance Employees Cooperative Housing Society. However, he could not furnish
the details of persons to whom he sold away the remaining plots. He had also requested to pay
compensation for an extent of 1.86 acres, left for road portion. But, his request was turned down
by the Chief Executive Officer of Madras Metropolitan Development Authority, by means of his
letter, dated 25.11.1985 stating that the land owners sold the plots to the dwelling owners,
including the road, and an objection was made to the payment of compensation with regard to the
unoccupied area to the ex-land owners; the compensation claimed by the appellant cannot be paid
to him, for the reason that the entire extent covered under the award has been laid into house site
plots, duly approved by the Director of Town and Country Planning, and sold out to several
persons, after making provision of amenities, such as road, public purpose etc., inasmuch as
he sold the entire extent of land covered by house site plots, he cannot claim compensation for the
area covered by the road portion; the lay-out cannot be approved, without making any provision
for road; normally, the area covered by road portion should be handed over to the civic
authorities, for being maintained as road; in this case, the land owner has not handed over
possession of the area covered by road to local panchayat, the Chief Executive Officer of
MMDA, in his letter dated 21.11.1985, maintained that compensation for the road portion in
Neelamegam Nagar lay-out, which is covered by the award, should be paid to the above local
body alone and not to the original land owner and if there is any dispute, the matter may be
referred to a Civil Court under Section 31 (2) of the Act. Since there are rival claims between the
original land owner (appellant herein) and the MMDA, represented by its Chief Executive
Officer, Madras, the entire compensation for 1.86 acres of land (being the area covered by the
road in this lay-out) be kept in Court deposit under Section 31 (2) of the Act in the names of the
appellant and the MMDA, represented by its CEO, Madras, and a reference made to Court
accordingly.
14. The above portions throw much light and are very much helpful to understand the
nature of the course of acquisition proceedings as well as the intention of the appellant herein.
15. Once a lay-out has been approved by the appropriate authority, the portions earmarked
for road and street would be left to the benefit of the plot owners, who purchased the plots from
the original owner or promoter, as the case may be; and after the said approval, all the roads
and streets shall become public and, thereafter, the original land owner cannot lay his hands on
the portions left out for the purpose of laying roads and streets, claiming that he is still holding
ownership over them since there cannot be any approved layout without making any provision for
road. Thus, in case, any plea has to be raised either objecting the acquisition or the quantum of
compensation, it should be either by the local authority or the purchasers of the plots, but not the
petitioner, since has sold away the lands.
16. In a matter regarding leaving of space for the purpose of street and road, a Bench of
three Hon’ble Judges of the Supreme Court, in M/s.. Gobind Pershad Jagdish Pershad v. New
Delhi Municipal Committee, AIR 1993 SC 2313, had an occasion to discuss the legal implication
of the circumstance. The decision, which contains the legal principle, is as follows:
“Where it is established that a verandah in front of a shop was a passage accessible to the
public and it was being used for about two decades by the public for passing and re-
passing, it must be held that the owner of the shop has dedicated the verandah to the
public use. It is being used for passing and re-passing by the public at large and as
such is a “street” in terms of Section 3 (13) (a) (of the Punjab Municipal Act). The owner
has, thus, surrendered his rights in the property for the benefit of the public. The user of
the property is and always shall be with the public. Any space, passage, verandah, alley,
road or footway dedicated to public by the owner for passing and re-passing, partakes
the character of a “street”, and no longer remains under the control of the owner. The
owner has no right at all times to prevent the public from using the same. When the
owner of the property has, by his own volition, permitted his property to be converted
into a “street”, then he has no right to claim any compensation when the same property is
made a “public street”….”
17. As far as the present case is concerned, the award shows that there was a direction for
deposit of compensation amount to be kept in Court deposit. It is worthwhile to note that the
appellant had not whispered anything about this process in his affidavit nor was it elicited
before this Court on his behalf.
18. In this connection, it is profitable to cull out the relevant portions in the “Table”,
appended to Part-III General Provisions in the ‘Development Control Rules for Chennai
Metropolitan Area’, as amended up to September, 2004 which are as under:
“B. Streets and Roads:
Description Minimum width Remarks
(1) (2) (3)
All streets shall become
public. The land
owners/develop ers shall hand
over these streets/
orads portion
through a deed to the
local authority
concerned, after forming
the roads as per
specifica- tions given
under re-
(i) Streets intended to levant section of
serve not more than 10 7.2 metres (24’) Chennai City Munici-
plots and/or subject to pal Corporation Act or
a maximum length of Panchayat Act or
120 metres Tamil Nadu District
Municipal
Act (ii) Streets intended to
serve not more than 20 9.0 metres (30’)
plots and/or subject to a
maximum length of
240 metres
(iii) Roads of length
more than 240 12.0 metres (40’)
metres but below
400 metres
(iv) Roads of length
between 400 metres 18.0 metres (60’)
to 1,000 metres
(v) Roads of length
more than 1,000 24.0 metres (80’)
metres
19. From the above Rules, it is clear that all streets shall become public and the land
owners/developers shall hand over these streets/roads portion through a deed to the local
authority concerned, after forming the roads. But, as could be seen from the original records
produced before us, the appellant/petitioner has not executed any deed in favour of the local
authority handing over these street/ roads portion, only with a mala fide intention of making this
type of fictitious claims, to illegally enrich himself at the cost of the exchequer, by violating the
mandatory provisions of law.
20. Learned counsel for the appellant places reliance upon certain authorities contending
that due to lapse of considerable length of time, since the Government has not initiated any steps
to proceed further after the notification under Section 4(1), further proceedings on the strength of
4 (1) notification could not be legally proceeded with. For that proposition of law, he cited a
decision of this Court in Sree Vengeeswarar Alagarperumal Devasthanam v. State of Tamil
Nadu, 1984 (2) MLJ 427, wherein, it has been held as under:
“The Section 4 (1) notification was published as early as 8-5-1963. Twenty long years
have rolled by since then. If the award is to be passed, the petitioner would get by way of
compensation, the market value as on the date of Section 4(1) notification. This will be
making a mockery of the rights of citizens because the valuation in 1963 wou1d be
hardly the compensation to-day after 20 years. This is besides the value of the rupee itself
having gone down. This is nothing but gross injustice to the citizen.”
He also garnered support from the decisions of this Court in Special Deputy Collector (LA)
v. Kuppu Gounder, 1985 WLR 694; Vadadri alias Chellappa v. State.of Tamil Nadu, 1990 (1)
MLJ 219, and Nandakrishnan, D. and another v. State of Tamil Nadu and Others, 1997 WLR
593, which enunciate the identical legal principles.
21. The principles contained in the above said decisions are authoritative judicial
pronouncements and they are well settled. The main core of the argument of the appellant, relying
on those judgments, as has already been adverted to supra, is that because of the long gap from
Section 4(1) notification, the same need not be proceeded with further. In the judgments relied on
by the learned counsel for the appellant, though the Courts have kept Section 4(1) notification
intact, while quashing the subsequent proceedings, the authorities have not initiated fresh
proceedings. Therefore, the Courts held that such proceedings are invalid. But, in the case on
hand, though on the earlier occasion, Section 6 declaration has been quashed by this Court,
Section 4(1) notification has been kept intact and the authorities, have, afresh, proceeded from
Section 5-A enquiry. Therefore, the ratios laid down in the judgments cited by the learned
counsel for the appellant are very well distinguishable and thus, cannot be applied to the facts of
the case on hand.
22. The appellant/petitioner, in order to succeed in this case, must prove that he is the
owner of the land in question. As could be seen from the materials placed on record, the appellant
herein after carving out the plots in his land, has sold them to third parties, who were
compensated and dispossessed by the authorities. While selling the plots, it is mandatory on the
part of any promoter/seller to carve out the roads and streets and other public utilities for the
usage of purchasers and on such formation, such roads and streets would lose the character
of ‘private property’ and gains the character of ‘public road’ whereupon none could claim any
exclusive right, including the original owner of the land. Therefore, while selling the plots, after
carving out the roads and streets, the appellant would have definitely included the cost/value of
such portions left out as roads and streets in the plot cost and also would have collected the said
cost from the purchasers of the plots. Therefore, at no stretch of imagination, he could be held to
be the ‘owner’ or ‘person interested’ in the already sold out property. Knowing fully well that he
has sold away the entire area carving out plots with roads and streets, the petitioner has made an
attempt to gain wrongfully, by playing fraud, for which he shall be prosecuted.
23. Having already reaped the benefits of the land by selling it to various persons, after
carving out plots with roads and streets, including the cost of .the land carved out as road and
streets, by initiating these proceedings, the petitioner/appellant wants to gain wrongfully from the
State exchequer. The claim of the appellant besides being illusory is also to thwart the public
purpose for which the lands are sought to be acquired after paying appropriate compensation
to the owners of plots, besides relocating them in proper place. It is also to be pointed out that in
spite of direction by us, the petitioner/appellant has not produced the original lay-out to show that
even after selling the plots to third parties, he is holding right or interest in the carved out roads
and streets. For all these discussions, we have no hesitation to hold that the appellant has no locus
standi at all to claim the relief as prayed for in the writ petition, since he has no existing
ownership right at all. Therefore, it is a futile and fraudulent exercise on the part of the appellant
to claim the relief over the portions, meant for streets and roads which have attained the character
of ‘public roads’ after they were carved out for the purpose of ingress and egress of the plot
owners. Knowing full well that he would not come within the ambit of the term “person
interested” as defined in Section 3(b) of the Land Acquisition Act, under an illusory thought that
the proposed attempt would yield his illegal desire, he preferred a writ petition, and even after
suffering a dismissal order from the learned single Judge, he has further jumped on to the legal
proceedings, by filing this writ appeal, in order to fight a losing battle. It may also be stated that
in order to get wrongful gain, the appellant has brought about the fictitious legal proceedings
against the authorities concerned, including the Government, by unnecessarily dragging the
Government and its other limbs into an unwanted Court proceedings thus wasting the valuable
time of the Court and the public authorities.
24. Hence, to curb such type of illegal attempt, which is rampant now-a-days, by greedy
persons like the petitioner to gain wrongfully from the State exchequer and also for unnecessarily
stalling the acquisition proceedings all these days, we feel, the appellant/petitioner has to be
subjected to punitive action as contemplated under Section 46 of the Land Acquisition Act and
any other law in force, for wilfully obstructing the authorities from carrying on their legitimate
duties contemplated under the Land Acquisition Act. Accordingly, the respondents are directed to
take appropriate action against the appellant/petitioner under Section 46 of the Land Acquisition
Act and any other law in force, for having come before this Court with unwanted litigation based
on false claim, causing wastage of valuable time of the Court and the authorities to wilfully
obstruct the land acquisition proceedings initiated by the authorities concerned, that too, after
paying necessary compensation to the plot owners besides relocating them.
With the above direction to the respondents, this writ appeal is dismissed with exemplary
costs of Rs.10,000/- to be paid by the appellant/petitioner to the respondents.
Appeal dismissed with cost.
[2008 (1) T.N.C.J. 312 (MAD)]

MADRAS HIGH COURT
BEFORE:
D. RAJA ...Appellant
Versus
THE PRESIDING OFFICER, INDUSTRIAL
TRIBUNAL CHENNAI AND ANOTHER ...Respondents
[Writ Appeal No. 3431 of 2003, decided on 2 August, 2007]
nd
Constitution of India, 1950—Article 226—Service—Dismissal of—Industrial dispute

—Penalty of dismissal confirmed—Legaity of—Management, a bank, engaged in business
of money transactions, must account with regard to each and every rupee— Customer
left the place after handing money to the cashier under impression that he gave Rs. 40,000/-
alone—Duty of cashier to inform the discrepancy immediately to the Branch Manager
and keep the excess amount in sundry account and reimburse the same after securing the
customer—Not done—No information given to Branch Manager though he was along with
the Branch Manager—Excess amount taken to house and paid to the brother of the
customer—Cashier holds an important duty of keeping cash of bank carefully—And
accounting it to the superiors—Failure to do so—Dismissal not without any evidence—
Finding of Enquiry Officer not perverse—Tribunal as well as writ Court rightly refused
to interfere with—No interference warranted.
(Paras 8 to 12)
Counsel.—Mr. V. Prakash, Sr. Counsel, for the appellant; Mr. N.G.R. Prasad, for the
respondents 2.
Important Point
Bank engaged in business of money transactions must account for the same, with regard to
each and every rupee.
JUDGMENT
S. PALANIVELU, J.—This writ appeal is directed against the order of a learned single
Judge of this Court, made in W.P.No. 12264 of 1999, whereby the dismissal of the appellant from
service was confirmed.
2. The facts, which led to the filing of this writ appeal, are as follows:
2.1. Appellant was appointed in Indian Overseas Bank on 25.06.1979 as a Shroff/Godown
Keeper in N.N. Kandigai Branch and continued to serve as a permanent employee till his date of
dismissal on 31.08.1987.
2.2. On 01.03.1986, one Nagaratnam, an account holder of the said bank, came to him and
handed over Rs. 45,000/-, asking him to credit Rs. 40,000/- to his S.B.Account No. 189 and also
to S.B. Account No. 2 of his brother, under a premise that he gave Rs. 40,000/- to the appellant.
After Nagaratnam left the counter, the appellant found Rs. 45,000/-, however, as per the request
of the said Nagaratnam, he credited Rs. 40,000/- to both the accounts. He prepared two challans,
one for Rs. 25,000/- for Account No. 189 and the other for Rs. 15,000/- towards Account No.
2. At about 10.00 p.m. on the same day, one Gajendra Naidu, brother of Nagaratnam, went to the
residence of one Rama Govindan, a co-employee of the appellant, and asked about the crediting
of Rs. 40,000/- alone in the bank account, for which he responded that he knew nothing. So, both
of them immediately went to the house of one Babu, another staffer of the bank, and, on a query,
he informed that in both the accounts, Rs. 25,000/- and Rs. 15,000/- respectively were credited.
Thereafter, all of them went to the residence of the appellant and asked him about the remaining
Rs. 5,000/-, for which he stated that he kept the said amount of Rs. 5,000/- in his table drawer and
he would return the amount. Subsequently, they left for their houses. However, one Govindasamy
Naidu, another brother of Nagaratnam, went to the house of the appellant at 03.00 a.m. on
02.03.1986 and told him that money was urgently needed for him, for which he would bring the
Branch Manager from Tiruttani. Then, the appellant replied that there was no need to bring the
Branch Manager and he was having money with him in the house and, so saying, he paid Rs.
5,000/- to him.
2.3. On 07.03.1986, Regional Manager of the bank, Vellore, held an inquiry with regard to
the incident in N.N. Kandigai Branch and gave a report, after examining all the persons
concerned.
2.4. Thereafter, on 05.05.1986, the bank slapped a letter, charge-sheeting and suspending
the appellant in a single proceeding, stating that he was guilty of misconduct in terms of para 17.5
(d) and 17.5 (j) of the Bipartite Settlement, dated 14.12.1966, between the bank and its workmen.
The said paras go thus:
“17.5 (d) wilful damage or attempt to cause damage to the property of the bank or
any of its customers.
17.5 (j) doing any act prejudicial to the interests of the bank, or gross negligence or
negligence involving or likely to involve the bank in serious loss.”
2.5. Appellant was required to submit his explanation in ten days. For the said charge-
sheet, the appellant submitted an explanation on 13.05.1986, totally denying the charges, stating
that cash was tallied that day and the incident, as alleged, had not taken place and that the charge-
sheet should have been the product of some allegations concocted against him, because he
belonged to a depressed class.
2.6. Not content with the explanation submitted by the appellant, the management ordered
a domestic inquiry. Thereafter, the Enquiry Officer conducted an inquiry and came out with his
finding on 25.05.1987, holding that the charges levelled against the appellant, except filling up of
challans relating to S.B. Account of P. Gajendra Naidu, have been fully established. Thereupon,
the management, on 26.05.1987, shot a second show-cause notice on the appellant, calling upon
him to show cause as to why he should not be dismissed from service. For the said
show-cause notice, the defence representative by name Nagappan, who was representing the
appellant before the Enquiry Officer, gave a reply on 05.08.1987. The appellant was given a
personal hearing and examined on 14.08.1987 and, thereafter, the management dismissed
the appellant from service, by means of proceedings, dated 31.08.1987.
2.7. Then, the appellant raised an industrial dispute in I.D.No. 158 of 1994 before the
Industrial Tribunal, Madras. After due inquiry, the said Tribunal rejected the claim of the
appellant, confirming the penalty of dismissal. Aggrieved over the said order, he preferred a writ
petition before this Court and the said writ petition was also dismissed by a learned single Judge.
Hence, this appeal.
3. One significant aspect to be borne in mind here is, learned counsel for the appellant
before the Tribunal made an endorsement on 29.01.1998 to the effect that “claimant is only
attacking the finding and the evidence and not the fairness of the inquiry”. Hence, there was no
need for the Tribunal and the learned single Judge to discuss the conduct of the inquiry.
4. In order to appreciate the rival contentions of both sides, it becomes necessary for
this Court to highlight certain features of the incident. The fairness of the inquiry need not be
subjected for consideration. There is no re-appraisal of the evidence on record. Concedingly,
Nagaratnam, handed over Rs. 45,000/- to the appellant and he credited only Rs. 40,000/- towards
two S.B. Accounts as per his request and retained Rs. 5,000/-, which was returned back to the
brother of Nagaratnam on the next day.
5. The management raised a stiff opposition against the bona fides of the conduct of the
appellant, by stating that had he been honest enough, he might have immediately informed the
Branch Manager about the balance of Rs. 5,000/-, which he had retained with him or he might
have deposited the amount into sundry account of the bank, for refunding it to the account holder
on the next day, but, neither of the courses was adopted by him, which shows that with a mala
fide intention of misappropriating the amount, the appellant took the amount to his house.
6. The above said contention was denied by the appellant, stating that he was away with
the Manager from 01.30 p.m. on 01.03.1986 and returned back only by night at 09.30 p.m. It was
also contended by the management that since the workman/appellant was with the Branch
Manager all the time, he could have informed the manager about the said transaction.
7. It was the explanation of the appellant that since Nagaratnam was a reputed customer of
the bank, he thought it fit to directly pay back the amount to him either on the same day or the
next day, there was no need to inform the Branch Manager in that regard and that if the amount
was kept in sundry account of the bank, there might be some procedural delay in getting and
paying back the amount to Nagaratnam.
8. A perusal of the records, particularly, the over-writings on the reverse of the paying-in-
challan, which the appellant prepared on 01.03.1986 for Account No. 2, would indicate the
dishonest intention on his part. On the front side of the said challan, there were no over-
writings or inter-lineations, but on rear side, it is seen that the number of currencies has been
altered from 190 x 100= 19,000/- to 140 x 100= 14,000 and 20 x 50= 1,000. Subsequently, the
figure 190 was scored out and the figure 140 was written and, by altering the number of currency
notes, Rs. 5,000/- was kept back. Further, on a previous occasion also, the appellant credited
excess cash of Rs. 100/- to sundry account, for which he was issued a memo, seeking for
explanation as to how the said sum of Rs. 100/- was in excess.
9. Before the Enquiry Officer, Nagaratnam was not examined and the appellant also did
not appear as a witness. The explanations adduced by the appellant in cross-examination of the
management witnesses were not accepted by the Enquiry Officer. It is not in dispute that the
particulars regarding denominations and number of currencies were written by the appellant. The
explanation on this point does not convince this Court.
10. The management, which is a bank engaged in business of money transactions, must
account for the same, with regard to each and every rupee. It was not the personal money
transaction between the appellant and Nagaratnam, but, purely an official one. Though the
customer left the place after handing over money to the cashier under the impression that he gave
Rs. 40,000/- alone to him, it was incumbent upon the cashier, namely, appellant to inform
the discrepancy immediately to the Branch Manager and keep the amount in sundry account and
reimburse the same, after securing the customer, which was not done. In other words, there was a
classical dereliction of duty on the part of the appellant. Had he been fair enough, there was
another opportunity for him to inform the transaction to the Branch Manager, since he was with
him from 01.30 p.m. up to 09.30 p.m. on that day. Another circumstance to be noted is, the
appellant had taken the amount to his house and paid it to the brother of Nagaratnam. Even
though he alleged that the money was kept in table drawer of the bank, it was not properly
explained before the Enquiry Officer nor did he inform his co-employees about the retaining
of Rs. 5,000/-. It goes without saying, that the cashier holds an important duty of keeping cash of
the bank carefully and accounting it to the superiors, which the appellant has miserably
failed to do.
11. The learned single Judge, after considering all the aspects, reached a conclusion that it
cannot be said that the management has decided to punish the petitioner with dismissal without
any evidence. This is not the case of “no evidence” nor the finding of the inquiry is perverse.
Therefore, there is no reason to reconsider the finding as to the penalty imposed on the appellant.
Hence, we are of the considered view that the punishment of dismissal awarded to the appellant is
quite proper and find no reason to interfere with the concurrent findings of the Tribunal and
the learned single Judge, since they were passed on proper consideration.
12. Writ appeal is devoid of merit. Hence, it suffers dismissal and is dismissed. No costs.
Writ appeal dismissed.
[2008 (1) T.N.C.J. 317 (SC)]

SUPREME COURT
BEFORE:
H.K. SEMA AND P.K. BALASUBRAMANYAN, JJ.
UNION OF INDIA ...Petitioner
Versus
TATA TELESERVICES (MAHARASHTRA) LTD. ...Respondent
[Civil Appeal No. 1033 of 2004, decided on 23 August, 2007]
rd
(A) Telecom Regulatory Authority of India Act, 1997— Sections 14 and 16—
Ouster of jurisdiction of Civil Court—Disputes between licensee or licensor between two or
more service providers which takes in Government and includes a licensee and between
a service provider and a group of consumers are within purview of TDSAT—Civil Court
ousted of its jurisdiction to entertain any suit or proceeding which TDSAT is
empowered.
(Para 9)
(B) Telecom Regulatory Authority of India Act, 1997— Sections 14 and 16—Scope
of—Dispute between a person who has not yet been granted licence and licensor—Whether
Act would be applicable—Held, Section 14 takes within its sweep disputes following
issue of a letter of intent pre-grant of actual licence as also disputes arising out of a licence
granted between quondam licensee and the licensor. (Paras 13
to 15)
(C) Telecom Regulatory Authority of India Act, 1997— Section 14—Civil
Procedure Code, 1908—Order VIII, Rule 6-A—Counter claim—Dispute between licensor
and licensee—Applicability of certain provisions of CPC—Claim and counter claim can be
made in a proceeding before TDSAT.
(Paras 12, 16 and 17)
Case law.—2003 (3) SCC 186—relied on.
JUDGMENT
P.K. BALASUBRAMANYAN, J.—This appeal by the Union of India, the respondent in a
proceeding before the Telecom Disputes Settlement & Appellate Tribunal (for short, the TDSAT)
in a petition filed by the respondent herein under Section 14 of the Telecom Regulatory Authority
of India Act, 1997 (for short the Act) is under Section 18 of the Act. The respondent approached
the TDSAT praying for a declaration that the action of the Union of India in raising a claim and
in recovering the amount as per its demand dated 10.8.1999, was bad in law and be set aside, for
a declaration that the set off made by invoking condition 19 of the licence the respondent had
with the appellant in respect of the Maharashtra Service Area was illegal and unauthorised and
for setting aside the same, for directing the appellant to refund an amount of Rs.50 crores together
with interest from the date of the purported set off of that amount with the amounts due to the
respondent till the date of refund and for other consequential and incidental reliefs. In answer,
the appellant contended that it was entitled to make the set-off and the set-off made was
authorised and legal and that there is no reason to interfere with the set-off and the respondent
was not entitled to the recovery of Rs.50 crores with interest thereon. A claim that the appellant
is entitled to recover as damages from the respondent a sum of Rs.654.25 crores towards the loss
suffered by it on account of the respondent herein failing to fulfil its obligations under the Letter
of Intent issued to it in respect of the Karnataka Telecom Circle was also put forward. The
TDSAT upheld the claim of the respondent, rejected the claim of the appellant that it was entitled
to a legal or equitable set-off of the sum of Rs.50 crores and more importantly held that it has no
jurisdiction to entertain a counter claim at the instance of the appellant. Of course, it was also
pointed out that the counter claim itself was not properly framed and was somewhat vague. Thus,
the claim of the respondent was accepted and a direction was issued to the appellant to refund the
sum of Rs.50 crores to the respondent with interest thereon at 17 per cent per annum from the
date the said amount was appropriated by the appellant till its payment along with costs of the
proceedings. This adjudication of the TDSAT is challenged in this appeal.
2. Section 18 of the Act provides for an appeal to this Court from an order or decision of
the TDSAT whether in exercise of its appellate jurisdiction or in exercise of its original
jurisdiction on one or more of the grounds specified in Section 100 of the Code of Civil
Procedure. The two substantial questions of law sought to be adjudicated on are (1) whether the
TDSAT was justified in not accepting the plea of set-off raised by the appellant and (2) whether
the TDSAT has not failed to exercise the jurisdiction vested in it by law in declining to go
into the merits of the counter claim made by the appellant and in rejecting the same as being not
maintainable.
3. The question whether the plea of set-off, whether legal or equitable is liable to be
upheld might depend on our conclusion on the question whether a counter claim at the instance of
the Union of India in a proceeding initiated before the TDSAT by a licensee or service
provider, is maintainable. If we hold that the counter claim is maintainable, necessarily the same
would have to be adjudicated on, on merits and the result of such an adjudication would have
impact on the plea of set-off put forward by the appellant. Of course, if our answer to the said
question is that the counter claim is not maintainable, then we have to decide independently
whether the finding entered by the TDSAT on the plea of set-off is vitiated by a substantial error
of law or not. We will, therefore, first tackle the question whether the counter claim made by the
Union of India was maintainable.
4. It may be true that in the prayer portion in the written statement an order or
decree in terms of the counter claim had not been sought for by the appellant. But the claim as
made in the written statement relates to the claim based on the failure of the respondent,
after having conveyed its acceptance of the Letter of Intent to provide service in the Karnataka
Telecom Circle and the damages allegedly suffered by the appellant as a consequence and the
entitlement of the appellant to reimbursement of the specified sum from the respondent. Even if
there is some vagueness in the counter claim, as felt by the TDSAT, we think that the TDSAT
might have directed the appellant before us, to make its counter claim more specific and in a
proper manner. After all, a defect of deficiency could be permitted to be cured. We are, therefore,
not impressed by the argument on behalf of the respondent before us that the counter claim was
rather vague and the same was rightly rejected for that reason by the TDSAT. After all, this
vagueness can be directed to be removed in the interests of justice, if it were to be held that the
counter claim can be maintained by the Union of India.
5. According to the TDSAT, Section 16 of the Act prescribes the procedure and powers of
the TDSAT. No right has been given by that provision to the Union of India to make a counter
claim in a petition filed by a petitioner before the TDSAT seeking certain amounts as due from
the Union of India as the licensor. The question is whether this restricted view taken by the
TDSAT is justified on the scheme of the Act.
6. The Objects and Reasons for enacting the Act and creating the TDSAT indicate that the
TDSAT will consist of a Chairperson who has been a Judge of the Supreme Court of India or a
Chief Justice of a High Court, and two to four members who have held the post of Secretary or
Additional Secretary to the Government of India or any equivalent post in the Central
Government or the State Government for a minimum period of three years. The powers and
functions of the Authority, as set out in the Objects and Reasons, include settlement of disputes
between service providers. The preamble to the Act indicates that it is an Act to provide for the
establishment of the TDSAT to regulate the Telecommunication Service, adjudicate disputes,
dispose of appeals and to protect the interests of service providers and consumers of the telecom
sector, to promote and ensure orderly growth of the telecom sector and for matters connected
therewith or incidental thereto. The Act defines licensee as any person licensed under sub-section
(1) of Section 4 of the Indian Telegraph Act, 1885 (13 of 1885) for providing specified public
telecommunication service. It defines licensor as meaning the Central Government or the
telegraph authority who grants a licence under Section 4 of the Indian Telegraph Act, 1885 (13 of
1885). A service provider is defined as meaning, the Government as a service provider and it
includes a licensee. Section 14 of the Act deals with the establishment of the TDSAT. It
appears to be appropriate to set down the said section hereunder:
14. Establishment of Appellate Tribunal.—The Central Government shall, by notification,
establish an Appellate Tribunal to be known as the Telecom Disputes Settlement and Appellate
Tribunal to—
(a) adjudicate any dispute
(i) between a lincesor and a licensee;
(ii) between two or more service providers;
(iii) between a service provider and a group of consumers:
Provided that nothing in this clause shall apply in respect of matters relating to—(A)
the monopolistic trade practice, restrictive trade practice and unfair trade practice which are
subject to the jurisdiction of the Monopolies and Restrictive Trade Practices Commission
established under sub-section (1) of Section 5 of the Monopolies and Restrictive Trade Practices
Act, 1969 (54 of 1969); (B) the complaint of an individual consumer maintainable before a
Consumer Disputes Redressal Forum or a Consumer Disputes Redressal Commission or the
National Consumer Redressal Commission established under Section 9 of the Consumer
Protection Act, 1986 (68 of 1986); (C) dispute between telegraph authority and any other
person referred to in sub-section (1) of Section 7-B of the Indian Telegraph Act, 1885 (13 of
1885);
(b) hear and dispose of appeal against any direction, decision or order of the
Authority under this Act.
7. The section indicates that the TDSAT has been constituted to adjudicate on any dispute
between a licensor and a licensee or between two or more service providers. Though it also
includes adjudication on a dispute between a service provider and a group of consumers, it
excludes matters coming within the jurisdiction of the Monopolies and Restrictive Trade
Practices Commission established under the Monopolies and Restrictive Trade Practices Act,
1964, the complaint of an individual consumer that is maintainable before a Consumer
Disputes Redressal Forum and a dispute between a telegraph authority and any person referred
to in Section 7-B of the Indian Telegraph Act, 1885. Section 14-A of the Act provides that the
Central Government or a State Government or a local authority or any person may make an
application to the Appellate Tribunal for adjudication of any dispute referred to in clause (a) of
Section 14. Section 14-A, therefore, contemplates not only the filing of a claim before the
TDSAT by a licensee or a consumer, but also by the Central Government or a State Government
which could be a licensor or a service provider. Section 14-B deals with the composition of
TDSAT. It is to consist of a Chairperson and not more than two Members to be appointed, by
notification, by the Central Government. The selection of the Chairperson and Members of the
Appellate Tribunal shall be made by the Central Government in consultation with the Chief
Justice of India. Section 14-C provides the qualification of the Chairperson and the Members
and the Chairperson has either to be a Judge of the Supreme Court or the Chief Justice of a High
Court or a retired Judge of the Supreme Court of a retired Chief Justice of the High Court. A
Member has to be one who has held the post of Secretary to the Government of India or any
equivalent post in the Central Government or the State Government for a period of not less than
two years or a person who is well versed in the field of technology, telecommunication, industry,
commerce or administration. Under Section 14 of the Act, the jurisdiction of the TDSAT has to
be exercised by a Bench consisting of one member or two members and in case of difference
of opinion between two members, the point of difference has to be referred to the Chairperson,
who shall decide the point himself and the ultimate decision will be according to the majority
opinion. Section 15 ousts the jurisdiction of the Civil Court and it reads thus:
15. Civil Court not to have jurisdiction.—No Civil Court shall have jurisdiction to
entertain any suit or proceeding in respect of any matter which the Appellate Tribunal is
empowered by or under this Act to determine and no injunction shall be granted by any Court
or other authority in respect of any action taken or to be taken in pursuance of any power
conferred by or under this Act.
8. Section 16 of the Act provides that the TDSAT shall not be bound by the procedure laid
down in the Code of Civil Procedure, but will be guided by the principles of natural justice and
subject to the other provisions of the Act have the power to regulate its own procedure. It is also
to have the specified powers under the Code of Civil Procedure like summoning of witnesses,
discovery, issue of requisition of any public record, issue of commission, review of its decisions,
dismissing an application for default or deciding it ex parte, for restoring an application
dismissed for default or setting aside a decision rendered ex parte and any other matter which
may be prescribed. Sub-section (3) of Section 16 specifies that every proceeding before the
TDSAT shall be deemed to be a judicial proceeding in terms of the Indian Penal Code and the
TDSAT shall be deemed to be a Civil Court for the purpose of Section 195 and Chapter XXVI of
the Code of Criminal Procedure. Section 17 confers right on the parties to legal representation.
Parties could authorise one or more chartered accountants, company secretaries, cost accountants
or legal practitioners or any of its officers to represent its case. Section 18 confers the right of
appeal to the Supreme Court on a substantial question of law. Section 19 provides that orders
passed by the TDSAT shall be executable as decrees through the TDSAT, but it has also the
power to transmit any order made by it to a Civil Court to execute the order as if it were a decree
made by that Court. Section 20 provides for penalties for wilful failure to comply with the orders
of the TDSAT. Section 27 of the Act once again indicates that no Civil Court has jurisdiction in
respect of any matter which the Authority is empowered by or under the Act to determine.
9. The conspectus of the provisions of the Act clearly indicates that disputes between the
licensee or licensor, between two or more service providers which takes in the Government and
includes a licensee and between a service provider and a group of consumers are within the
purview of the TDSAT. A plain reading of the relevant provisions of the Act in the light of the
preamble to the Act and the Objects and Reasons for enacting the Act, indicates that disputes
between the concerned parties, which would involve significant technical aspects, are to be
determined by a specialised tribunal constituted for that purpose. There is also an ouster of
jurisdiction of the Civil Court to entertain any suit or proceeding in respect of any matter which
the TDSAT is empowered by or under the Act to determine. The Civil Court also has no
jurisdiction to grant an injunction in respect of any action taken or to be taken in pursuance
of any power conferred by or under the Act. The constitution of the TDSAT itself indicates that it
is chaired by a sitting or retired Judge of the Supreme Court or sitting or a retired Chief Justice of
the High Court, one of the highest judicial officers in the hierarchy and the members thereof have
to be of the cadre of secretaries to the Government, obviously well experienced in administration
and administrative matters.
10. The Act is seen to be a self contained Code intended to deal with all disputes arising
out of telecommunication services provided in this country in the light of the National Telecom
Policy, 1994. This is emphasised by the Objects and Reasons also.
11. Normally, when a specialised tribunal is constituted for dealing with disputes
coming under it of a particular nature taking in serious technical aspects, the attempt must be to
construe the jurisdiction conferred on it in a manner as not to frustrate the object sought to be
achieved by the Act. In this context, the ousting of the jurisdiction of the Civil Court contained in
Section 15 and Section 27 of the Act has also to be kept in mind. The subject to be dealt with
under the Act, has considerable technical overtones which normally a Civil Court, at least as of
now, is ill-equipped to handle and this aspect cannot be ignored while defining the jurisdiction of
the TDSAT.
12. Section 14-A of the Act gives the right to the Central Government, or to the State
Government to approach TDSAT on its own. Going by the definitions in the Act, both
Governments could be service providers. The Central Government could also be the licensor.
Thus, either as a licensor or a service provider, the Central Government could make an
application to TDSAT seeking an adjudication of any dispute between it and the licensee or
between it and another service provider or between it and a group of consumers. It has actually to
make its claim in TDSAT. There is no reason to whittle down the right given to the Central
Government to approach the TDSAT for an adjudication of its claim which comes under Section
14(1) of the Act. Normally, a right to make a claim would also include a right to make a cross-
claim or counter claim in the sense that the Central Government could always make an
independent claim on matters covered under the Act and such a claim will have to be
entertained by the TDSAT. This the Central Government could do even while it is defending a
claim made against it in TDSAT, by way of a separate application. If a subject matter is capable
of being raised before the TDSAT by the Central Government or the State Government by way of
a claim by making an application under Section 14 of the Act, it would not be logical to hold that
the same claim could not be made by way of a counter claim when the other side, namely, the
licensee or consumers, had already approached the TDSAT with a claim of their own and the
Central Government is called upon to defend it. It is, therefore, not possible to accept an
argument that a counter claim by the Central Government or State Government cannot be
entertained by the TDSAT. We hold that the TDSAT has jurisdiction to entertain a counter claim
in the light of Sections 14(1) and 14-A of the Act.
13. The thrust of the argument on behalf of the respondent before us was, in a case where,
a licence had not actually been issued to a party by the Central Government, the dispute could not
be said to be one between a licensor and a licensee, contemplated by Section 14(a)(i) or (ii) of
the Act. It is submitted that only on the actual grant of a licence, a person would become a
licensee under the Central Government and only a dispute arising after the grant of a licence
would come within the purview of the Act. The wording of the definition of licensee is
emphasised in support. Considering the purpose for which the Act is brought into force and the
TDSAT is created, we think that there is no warrant for accepting such a narrow approach or to
adopt such a narrow construction. It will be appropriate to understand the scope of Section 14(a)
(i) of the Act and for that matter Section 14(a)(ii) of the Act also, as including those to whom
licences were intended to be issued and as taking in also disputes that commence on the tender or
offer of a person being accepted. In other words, a dispute commencing with the acceptance of a
tender leading to the possible issue of a licence and disputes arising out of the grant of licence
even after the period has expired would all come within the purview of Section 14(a) of the Act.
To put it differently, Section 14 takes within its sweep disputes following the issue of a Letter of
Intent pre grant of actual licence as also disputes arising out of a licence granted between a
quondam licensee and the licensor.
14. In the case on hand, the Notice Inviting Tender defined a licensee as a registered
Indian Company that will be awarded licence for providing the service. Now, pursuant to that
invitation, the predecessor of the respondent submitted its tender and the appellant accepted it. A
Letter of Intent was also issued. The respondent accepted and started negotiating for certain
modifications, which apparently the appellant was willing to consider. But ultimately, the
contract did not come into being. The licence was not actually granted. It is the case of the
appellant that the appellant had suffered considerable loss because of the respondent walking out
of the obligation undertaken by acceptance of the Letter of Intent. According to the learned
Additional Solicitor General appearing for the appellant, such a dispute would also come within
the purview of Section 14 of the Act going by the definition of licensee and the meaning given to
it in the Notice Inviting Tenders. The argument of learned senior counsel on behalf of the
respondent is that the expressions licensor and licensee are defined in the Act and the respondent
had not become a licensee and the appellant had not become a licensor since the agreement was
never entered into between the parties for providing telecom services in the Karnataka
Telecom Circle and the attempt to rope in an intending licensee to whom a Letter of Intent has
been issued or the entering into a contract is proposed, cannot be countenanced since the
respondent has not become a licensee within the meaning of the Act and consequently this was
not a dispute that came within the purview of Section 14(1) of the Act.
15. We have already indicated that a specialised tribunal has been constituted for the
purpose of dealing with specialised matters and disputes arising out of licences granted under
the Act. We, therefore, do not think that there is any reason to restrict the jurisdiction of the
tribunal so constituted by keeping out of its purview a person whose offer has been accepted and
to whom a letter of intent is issued by the Government and who had even accepted that letter of
intent. Any breach or alleged breach of obligation arising after acceptance of the offer made in
response to a Notice Inviting Tender, would also normally come within the purview of a
dispute that is liable to settled by the specialised tribunal. We see no reason to restrict the
expressions licensor and licensee occurring in Section 14(a)(i) of the Act and to exclude a
person like the respondent who had been given a Letter of Intent regarding the Karnataka Circle,
who had accepted the Letter of Intent but was trying to negotiate some further terms of common
interest before a formal contract was entered into and the work was to be started. To exclude
disputes arising between the parties thereafter on the failure of the contract to go through, does
not appear to be warranted or justified considering the purpose for which the TDSAT has been
established and the object sought to be achieved by the creation of a specialised tribunal. In
Cellular Operators Association of India and others v. Union of India and others, (2003) 3 SCC
186, this Court had occasion to consider the spread of Sections 14 and 14-A of the Act. This
Court held that the scope of Sections 14 and 14-A are very wide and is not confined by
restrictions generally imposed by judge made law on the tribunal exercising an appellate
jurisdiction. Of course, their Lordships were considering in particular, the case of appellate
jurisdiction. But this Court further said that the tribunal has the power to adjudicate on any
dispute but while answering the dispute, due weight had to be given to the recommendations of
the authority under the Act which consists of experts. This decision, though it did not directly
deal with the power of the TDSAT as the original authority but was dealing with the power of the
TDSAT as an Appellate Authority and the power of this Court in appeal, clearly gives an
indication that there is no need to whittle down the scope of Sections 14 and 14-A of the Act.
16. It has also to be noted that while prescribing the procedure under Section 16 of the Act,
what is said is that the TDSAT shall not be bound by the procedure laid down by the Code of
Civil Procedure but it shall be guided by the principles of natural justice. It is significant to note
that it is not a case of exclusion of the powers under the Code of Civil Procedure and conferment
of specific powers in terms of sub-section (2) of that section. It is really a right given to the
TDSAT even to go outside the procedural shackles imposed by the Code of Civil Procedure while
dealing with a dispute before it. Therefore, it will be difficult to keep out the provisions for the
filing of a counter-claim enshrined in Order VIII, Rule 6-A of the Code of Civil Procedure which
could be applied by the TDSAT. The sweep of Order VIII, Rule 6-A of the Code now takes in
even claims independent of the one put forward in the application if it is one the respondent
therein has against the applicant. On the whole, we are of the view that the TDSAT was in error
in dismissing the counter-claim as not maintainable.
17. In the light of our finding that the counter-claim was maintainable and it requires to be
investigated, we think that the proper course is to set aside the finding rendered by the TDSAT on
the plea of set-off raised by the appellant. This is in view of the fact that acceptance of the
counter-claim or even a part thereof might throw open the question of legal or equitable set-off, to
be considered in the light of the finding on the counter claim. Therefore, we think this to be an
appropriate case where we should reopen the whole matter without going into the merits of the
contentions of parties on the plea of set-off raised by the appellant and leave the question to be
decided by the TDSAT along with the counter claim that has been made by the appellant. On
taking note of the objection that the counter claim has not been made specific and has not
been put forward in a proper manner, we are satisfied that it would be appropriate to direct the
appellant to make a proper counter claim before the TDSAT within three months from today.
The TDSAT thereafter will give the respondent an opportunity to file its written statement to the
counter claim and then decide the claim made by the respondent and the counter claim afresh in
accordance with law.
18. We, thus, allow this appeal and setting aside the decision of the TDSAT, remand the
claim and the counter-claim for a fresh adjudication and disposal in accordance with law. We
leave the parties to suffer their respective costs in this Court.
Appeal allowed.
[2008 (1) T.N.C.J. 327 (Mad)]

MADRAS HIGH COURT
BEFORE:
N. NEDUNCHEZHIAN ...Appellant
Versus
THE MANAGEMENT OF CANARA BANK,
REP. BY DEPUTY G.M. & ANOTHER ...Respondents
[Writ Appeal No. 660 of 2001, decided on 4 April, 2007]
th
(A) Enquiry—Enquiry Officer arrived at erroneous findings—Resulting in

miscarriage of justice—Such finding acted upon by the Appellate Authority—Writ Court
can very well interfere with such perverse findings. (Paras 12
and 13)
(B) Service—Dismissal of—Transfer of a sum of Rs. 5,000/- from the Saving Bank’s
Account to the O.D. account without authorisation—Allegations made—Enquiry—Report
—Charges has been proved—Delinquent officer acted prejudicial to the interest of Bank
—Disciplinary authority passed proceedings slapping the punishment of dismissal—
Appeal dismissed—Invoking of writ jurisdiction—Dismissal of—Legality—Account
holder categorically admitted during examination before Enquiry Officer that she orally
permitted the delinquent officer to transfer a sum of Rs. 5,000/- from her account—Enquiry
Officer ought to have accepted the unequivocal and candid admission made by the
account holder—Account holder was already having knowledge about insufficient balance
in her account even prior to 10.7.1996—Circumstantial evidence—Delinquent officer
credited the sum of Rs. 5,000/- along with interest into the account of the account holder—
Charges framed without calling for any explanation—Domestic enquiry vitiated—Violation
of principles of natural justice—Enquiry conducted suffers from illegality—Court
competent to interfere with the perverse findings—Findings are set aside—Order of
dismissal set aside—Reinstatement directed with full back wages and continuity of service
within three months.
(Paras 7 to 14)
Case law.—(1999) 2 SCC 10.
Counsel.—M/s. Row and Reddy for the appellant; Mr. P.R. Raman for the respondents.
Important Point
Domestic enquiry stands vitiated if without calling for any explanation from the delinquent
officer straight way charges are framed.
JUDGMENT
S. PALANIVELU, J.—Challenging the legality and propriety of the order passed in W.P.
No. 6983 of 2000 dated 25.04.2000 rendered by the learned single Judge of this Court, this appeal
has been filed.
2. The present appellant was an officer Scale-1, in Kumbakonam Branch of the first
respondent Bank and it was alleged that while he was working in Kumbakonam main branch
between 27.06.1990 and 19.06.1996, he transferred a sum of Rs. 5,000/- from the Saving Bank’s
account No. 18784 of Mrs. P. Savithiri to his O.D. account without any authorization from her. It
is further stated that while the account holder, on 10.07.1996, came to the branch to withdraw a
sum of Rs. 1,000/- from her account, she learnt that there were no sufficient funds in her account
and that a sum of Rs. 5,000/- was debited from her account and immediately she brought it to the
notice of the Manager. Thereafter, the first respondent authority nominated an officer to
investigate the matter and the said investigation officer filed the investigation report on
24.09.1998, upon which charge was framed against the appellant, as above stated, describing the
transaction as an unauthorized one and misconduct on his part.
3. The Enquiry Officer appointed by the first respondent bank held the enquiry by
examining the account holder Mrs. P. Savithiri and concerned officials, who are connected
with the transactions. After perusal of the statements adduced by the witnesses and the
documents produced on their behalf, the Enquiry Officer came out with findings to the effect that
the charge has been proved and the appellant herein had acted prejudicial to the interest of the
bank, which is gross misconduct and that he acted in a manner unbecoming of a Bank Officer and
acted without honesty, integrity, devotion and diligence.
4. The Enquiry Report was served upon the appellant and he submitted his
representation on 27.10.1998 stating that he was duly and orally authorized by the account holder
to transfer a sum of Rs. 5,000/- from her account to his O.D. account, that she has not chosen to
prefer any complaint against him to the bank and the matter may positively be considered in his
favour. On receipt of the above said representation, the Disciplinary Authority of the bank at
Madurai, on 25.01.1999, passed the proceedings slapping the punishment of dismissal upon the
appellant. Then, the delinquent officer preferred an appeal before the Appellate Authority for
setting aside the punishment of dismissal. But, the said appeal was rejected by the General
Manager of the Bank viz., the appellate authority, resulting in filing the writ petition challenging
the dismissal. Since the learned single Judge of this Court has dismissed the writ petition, the
delinquent officer has filed this appeal.
5. The contention of the appellant is that the learned single Judge has not considered the
oral authorization given by the account holder and that he has not appreciated the contentions of
the appellant in a proper perspective.
6. Per contra, the learned counsel for the respondents puts forth the plea that the learned
single Judge has very well considered the documentary evidence put forth by both sides,
particularly the alleged authorisation letter given by the account holder, who has categorically
denied her signature therein. The propriety of findings of the Enquiry Officer has to be
appreciated upon a careful analysis of factual conspectus of the case. The manner in which the
Enquiry Officer approached the matter in issue has necessitated this Court to re-appreciate the
materials on record, inclusive of all the statements of witnesses before the Enquiry Officer.
7. The account holder has categorically admitted during examination before Enquiry
Officer that she orally permitted the appellant to transfer a sum of Rs. 5,000/- from her account.
But, when she was confronted with a letter purportedly sent by her authorising the
appellant to transfer the said amount was shown to her, she denied the signature therein.
Worthwhile it is to note that the account holder was produced by the management side and she
was examined as management witness.
8. It is stated that on 10.07.1996, while Mrs. P. Savithiri came to withdraw amount from
her account, she learnt that only a sum of Rs. 529/- was remaining as balance in her account.
After comparing the admitted specimen signature found in the Account Opening Card of the
said P. Savithri with the signature found in the authorization letter, the Enquiry Officer has
opined that it did not tally with the specimen signature. Even though he rejected the genuineness
of the said authorization letter, the Enquiry Officer ought to have accepted the unequivocal and
candid admission made by the account holder that she orally permitted the delinquent officer to
transfer a sum of Rs. 5,000/- from her account, since it is legally competent and definite.
9. Another telling circumstance in this matter is the withdrawal of Rs. 1200/- and Rs.
1,100/- on 29.11.1995 and 03.04.1996 respectively which transactions occurred between
18.09.1995 and 10.09.1996 and on those occasions, TOD was permitted to honour the cheque
though sufficient balance was not there. If the account holder had a doubt with regard to the
sufficiency of funds in her account, earlier than 10.07.1996 she should have informed the matter
to the Manager concerned. Except the Enquiry Officer’s opinion that in order to honour the
cheque from the account holder the TOD had been permitted on those occasions even though the
balance was not there. There is no testimony of concerned official in this regard. Hence, it should
be held that the account holder was already having knowledge about insufficient balance in her
account even prior to 10.07.1996. It is also the inquiry report that the appellant credited the sum
of Rs. 5,000/- along with interest into the account of the account holder.
10. Even a bare perusal of the records would show that the domestic enquiry itself is
vitiated for the reason that even without calling for any explanation from the appellant, the
respondent bank straightaway framed the charges. Further, no explanation or representation as to
the charge has been required from the appellant after the charge. Resultant is violation of the
principles of natural justice. On that account also, the enquiry conducted by the Bank suffers from
illegality.
11. In this context, the learned counsel for the appellant has drawn the attention of this
Court to a decision of the Apex Court in Kuldeep Singh v. Commissioner of Police and others,
(1999) 2 SCC 10, wherein it has been held as hereunder:
“It is no doubt true that the High Court under Article 226 or this Court under Article 32
would not interfere with the findings recorded at the departmental enquiry by the
disciplinary authority or the enquiry officer as a matter of course. The Court cannot sit in
appeal over those findings and assume the role of the appellate authority. But this does
not mean that in no circumstance can the Court interfere. The power of judicial review
available to the High Court as also to this Court under the Constitution takes in its stride
the domestic enquiry as well and it can interfere with the conclusions reached therein if
there was no evidence to support the findings or the findings recorded were such as
could not have been reached by an ordinary prudent man or the findings were
perverse or made at the dictates of the superior authority.
The findings recorded in domestic enquiry can be characterized as perverse if it is shown
that such findings are not supported by any evidence on record or are not based on the
evidence adduced by the parties or no reasonable person could have come to those
findings on the basis of that evidence. This principle was laid down by this Court in State
of A.P. v. Rama Rao, (1964) 2 LLJ 150 : AIR 1963 SC 1723: (1964) 3 SCR 25 in which
the question was whether the High Court under Article 226 could interfere with the
findings recorded at the departmental enquiry. This decision was followed in Central
Bank of India v. Prakash Chand Jain, (1969) 2 LLJ 377 : AIR 1969 SC 983 and Bharat
Iron Works v. Bhagubhai Balubhai Patel, (1976) 1 SCC 518 : 1976 SCC (L&S) 92 :
1976 Lab IC 4 : AIR 1976 SC 98 : (1976) 2 CSR 280. In Rajender Kumar Kindra v.
Delhi Admn., (1984) 4 SCC 635 : 1985 SCC (L&S) 131 : AIR 1984 SC 1805 : (1985) 1
SCR 866. It was laid down that where the findings of misconduct are based on no legal
evidence and the conclusion is one to which no reasonable man could come, the findings
can be rejected as perverse.”
12. Following the principles laid down in the decisions aforestated, while the findings of
the Enquiry Officer recorded in the departmental enquiry proceedings are found to be perverse,
the High Court is fully competent to interfere. There is no evidence to sustain the charges
framed against the appellant officer in the proceedings. The Enquiry Officer has omitted to
furnish any findings with regard to the clear admission by the account holder.
13. In the case on hand, as adverted to supra, the Enquiry Officer has arrived at erroneous
findings, resulting in miscarriage of justice. When such perverse and erroneous findings are
recorded by the Enquiry Officer, which were acted upon by the Appellate Authority and the
learned single Judge, as has been held in the above judgment itself, this Court can very well
interfere with such perverse findings. The findings of the Enquiry Officer are not at all supported
by any material which are far from acceptance and therefore, the same are liable to be set aside.
14. For the foregoing reasons, the appeal is allowed. The order passed by the learned
single Judge in W.P. No. 6983 of 2000 dated 25.04.2000 is set aside. The order of dismissal
passed against the appellant dated 25.1.1999 is also set aside. The respondents are directed to
reinstate the appellant with full backwages and continuity of service within 3 months from the
date of receipt of a copy of this judgment. No costs.
Appeal allowed
[2008 (1) T.N.C.J. 331 (Mad) (MB)]

MADRAS HIGH COURT
(Madurai Bench)
BEFORE:
A.C. ARUMUGAPERUMAL ADITYAN, J.
K.R. ABIRAMI ...Appellant
Versus
THE KUMBAKONAM MUNICIPALITY REP. BY ITS
EXECUTIVE AUTHORITY, THE COMMISSIONER,
DR. MUTHY ROAD, KUMBAKONAM TOWN ...Respondent
[Second Appeal (MD) No. 37 of 2007, decided on 5th September, 2007]
Tamil Nadu District Municipalities Act, 1920—Rule 9 of Taxation Rules framed
under Act—Revision of house tax— Enhancement of house tax from Rs. 357 to 3517—
Instead of filing appeal suit in Civil Court filed—Dismissed—First appeal also dismissed
—Hence second appeal—Held, Municipal Authority not complied with provisions of Act
and Civil Court has jurisdiction to go into question whether levy is excessive or not—Since
order levying tax was in violation of provisions of Act and non est in law—Hence,
concurrent finding of Courts below set aside— Appeal allowed.
(Para 7)
Case law.—1994 (2) LW 715; 1952 (1) MLJ 1953; 1980 (II) MLJ 140; 1992 (1) LW 110;
AIR 1971 SC 353; 82 LW 20 SN;—relied on.
Counsel.—Mr. M.V. Santharaman, for the appellant; Mr. K. Raj Kumar, for the
respondent.
JUDGMENT
A.C. Arumugaperumal Adityan, J.—This second appeal has been preferred against the
judgment in A.S.No.211 of 2005 on the file of the Additional Sub-Judge, Kumbakonam, which
had arisen out of the judgment and decree in O.S.No.138 of 2003 on the file of the First
Additional District Munsif, Kumbakonam.
2. The plaintiff, who had lost her case before the Court below has preferred this second
appeal. The plaintiff had approached the Court challenging the order of enhancement of house
tax from Rs.357/- per half-year to Rs.3,517/- per half-year for her house bearing Door No.9/763,
Andiyappan Street, Kumabkonam. After receiving Ex.A.1, the plaintiff had preferred a petition
dated 16.12.2002 requesting the defendant- Municipality to reassess the tax as per the fair rent
principles and also after following the Rule 9 of the Tamil Nadu District Municipalities Act. But
without conducting any enquiry the defendant had revised the house tax suo moto from Rs.365/-
per half-year to Rs.3,517/- per half-year, which necessitated the plaintiff to approach the Court by
way of a civil suit.
3. The defendant in his written statement would contend that as per Section 82 of the
Tamil Nadu District Municipalities Act, (Amendment Acts 65/97 & 34/98) there is no need for
the Muncipality to give any opportunity before revising the house tax and only on the basis of
Ex.B.1 & Ex.B.2 assessment was made and the house tax was enhanced in accordance with
law.
4. The learned trial Judge has framed three issues. The plaintiff has examined herself as
P.W.1 and exhibited Ex.A.1 to Ex.A.6. On the side of the defendant, the Revenue Inspector of
Kumbakonam Municipality was examined as D.W.1 and Ex.B.1 to Ex.B.4 were marked. After
going through the evidence both oral and documentary the learned trial Judge has dismissed the
suit, which necessitated the plaintiff to approach the first appellate Court in A.S.No.211 of
2005.
5. The learned first appellate Judge, after scanning the evidence and after giving due
deliberations to the submission made by the counsel on either side, has come to the conclusion
that there is no reason to interfere with the findings of the learned trial Judge and
accordingly dismissed the appeal, thereby confirmed the findings of the learned trial Judge, which
made the plaintiff to knock at the doors of this Court by way of this second appeal.
6. The substantial questions of law involved in this second appeal are as follows:—
(i) Whether the first appellate Court can go beyond the pleadings and hold that the fair
rent principles need not be followed while assessing the property tax under the
District Municipalities Act?
(ii) Whether the first appellate Court can rely upon the calculation which is based on Act
65/1997 and 34/1998 which is not notified?
(iii) Whether the first appellate Court can hold that the Act has come into force till the
notification that the Act is not notified is notified in the year 2005 in the absence of a
prior notification that the Amending Act 65/97 and 34/98 is notified?
(iv) Whether the Municipality can assess without giving opportunity to the appellant prior
to the same is converted into a demand by entering in the assessment book to
make the same a demand?
(v) Whether the assessment by the Municipality without giving opportunity to the
assessee is valid under law?
(vi) Whether the assessment in violation of the Municipality Act in force by the
Municipality is valid under law?
7. The Point:—7(a) Heard Mr.M.V.Santharaman learned counsel for the appellant and
Mr.K.Raj Kumar the learned counsel appearing for the respondent and considered their respective
submissions.
7(b) The impugned order of assessment raising the half-yearly house tax for the plainttiff’s
house bearing door No.9/763, Andiyappan Street, Kumbakonam, from Rs.365/- to Rs.3,517/- is
Ex.A.1. D.W.1 is the Revenue Inspector of the defendant-municipality. According to him, as
per the amended Acts of 65/97 and 34/98 of the Tamil Nadu District Municipalities Act, 1920,
Ex.A.1-assessment was made to the house of the plaintiff under Sections 82 and 84.
7(c) It is the case of the plaintiff that the amended Acts 65/97 and 34/98 was so far been
not notified and hence the assessment made under Ex.A.1 is non-est in law. The learned counsel
relying on the Rules of the Municipality would contend that as per the Addenda issued by
the respondent-Kumbakonam Municipality after Sections 1 to 81 of the Act, it has been
clarified that the Government have not notified the date of coming into force of the amending
Acts 65/97 and 34/98 and that till the amended Act are notified by the Government, the erstwhile
provisions relating to property tax in Sections 81 to 91 would be in force. At page one of the
additional typed set of papers the copy of the Rules and Regulations of the respondent-
Municipality along with Addenda relating to Sections 1 to 81 of the Tamil Nadu District
Municipality Act, has been filed by the learned counsel appearing for the appellant.
7(d) The learned counsel for the appellant relying on Rule 9 of the Taxation Rules to the
Tamil Nadu District Municipalities Act,1920, would contend that when assessment books have
been prepared at the time of general revision of the tax, the Executive Authority shall give public
notice stating that the revision petitions will be considered if they reach the Municipality Office
within a period 60 days from the date of notice, in the case of the Government, a railway
administration or a company and of thirty days from the said date in other case. But in
accordance with the said Rule 9 of the Taxation Rules of the Tamil Nadu District Municipalities
Act, 1920, the respondent, after Ex.B.2-assessment had not given any notice to the plaintiff as
envisaged under Rule 9 of the Taxation Rules of the Tamil Nadu District Municipalities Act,
1920. The learned counsel would contend that the failure of the above provision under Rule 9 of
the Taxation Rules to the Tamil Nadu District Municipalities Act, 1920, vitiates the reassessment
of house tax by the respondent-Kumbakonam Municipality and that Ex.A.1 itself will not be
sustainable under law. In support of this contention, the learned counsel for the appellant would
rely on 1994(2) LW 715, Dindigul Anna District Tax Payers Sangam rep. by its President
M.V.R.A.Soundararajan, No.116, Bigh Bazaar Street, Dindigul v. 1.Government of Tamil Nadu
rep. by its Secretary to Government, Municipal Administration and Water Supply Department,
Fort St.George, Madras-9. 2.Dindigul Municipality rep. by its Commissioner, Dindigul,
Dindigul Anna District (W.P.Nos.1946 & 3118 of 1994) and Trichy Town Properties Owners
Welfare Association rep. by its President T.R.Karunakaran and Secretary A.R.Mohamed Iqbal
baving its office at No.51, Jabarsha Street, G.M.R.Jain Bhavan, II Floor, Tiruchirappalli-8 v.
1.The State of Tamil Nadu rep. by its Secretary to Government, Municipal Administration and
Water Supply Department, Fort St.George, Madras-9. 2.The Commissioner of Municipal
Administration, Chepauk, Madras-5. 3.The Commissioner, Trichy Municipality, Tiruchirappalli
(W.P.No.2160 of 1994)), wherein the writ petitioners have challenged the general revision of
property tax of the above said Municipalities (Dindigul Municipality and Trichirappalli
Municipality) on the ground that the provision under Rules 9, 10 and 9(A) of Schedule IV to
Tamil Nadu District Municipalities Act, 1920, was not followed while revising the property tax
by the said Municipalities. In fact in the above ratio decidendi relied on by the learned counsel
for the appellant both the Municipalities have issued notices, but they have challenged the notices
on the ground that it was not in conformity with Rule 9 of Schedule IV to the Tamil Nadu District
Municipalities Act. Relying on an earlier ratio decidendi in AIR 1971 S.C. 353 : 82 LW 20
S.N. Guntur Municipal Council case, it has been held by the Division Bench of this Court
that:
“The Special notice served by the Executive Authorities of Municipalities under Rule
9 in these cases on the owners and occupiers of properties are not in accordance with the
principles laid down by the decision of this Court as no reason is stated in the Special
notices for enhancement of property tax, and they cannot be sustained. Consequently,
the Special notices served under Rule 9 by the Municipal Authorities on the members of
petitioner Sangam in these cases are quashed on the only ground that the reasons for
enhancement of property tax are not set out in the Special notices.”
While negativing the contentions of the learned Special Government Pleader appearing for
the said Municipalities, who was contending that those demand notices were issued only on the
basis of the guidelines under provisions of Sections 82 to 84 of the Act, the Division Bench of
this Court held that:
“The Municipal Authorities have produced in the typed set of papers filed on behalf of
the different Municipalities certain special notices issued under Rule 9 of Schedule IV
to the Act. The said notices issued under Rule 9 contain a column mentioning annual
rental value. In that column the rental value as it existed prior to the issue of the notices
is mentioned and the increased value is mentioned in the same column. The other
columns in the special notices contained the existing tax and the increased tax. The
reason for the increase is given as bghJ brhj;J thp jpUj;jk; meaning the general revision of
property tax. The general revision of property tax given as the only reason for the
enhancement of the property tax cannot be considered as a reason at all for enhancement
of the property tax and it does not satisfy the requirement of law as laid down in the
decisions of this Court referred above. (AIR 1971 S.C. 353 ). The special notices
produced on behalf of the Municipality in the typed set of papers in these cases, do not
contain any reason for increasing the existing property tax. No doubt, the
respondents Municipalities have produced in the typed set of papers the assessment
work-sheet showing how the executive authorities arrived at the enhanced tax. If the
Municipal Authorities have served copies of the assessment work-sheets showing the
basis and how they arrived at the enhanced property tax, on the tax payers, along with the
special notices issued under Rule 9 that would have satisfied the requirements of law and
in such cases, it can be held that the special notices contained the reasons for
enhancement in the assessment. However, admittedly copies of the assessment work-
sheets prepared by the respondents Municipalities, showing how they arrived at the
enhanced property tax were not served on the tax payers along with the special notices
issued under Rule 9.
The above said dictum in all four corners apply to the present facts of the case. D.W.1,
the Revenue Inspector of the Kumbakonam Municipality would admit in the cross-
examination that no copy of Ex.B.2 was served before issuing Ex.A.1, demand notice, to
the plaintiff. In the case on hand also in Ex.B.2 nothing transpires how the
Municipality has arrived at the fancy amount of Rs.3,517/- as enhanced tax. There is no
reasoning given why the general revision of property tax was made under Ex.B.2. It
is seen from the evidence of D.W.1 that the provisions contemplated under Rule 9 of the
Taxation Rules to Schedule IV to the Tamil Nadu District Municipalities Act, 1920,
was not followed in this case. No opportunity was given to the plaintiff to file his
objection to Ex.A.1-demand on the basis of Ex.B.2-assessment.
7(e) A vague attempt was made on the side of the respondent that without availing the
appellant jurisdiction against the order passed under EX.A.1, the plaintiff has rushed to the
Court, which is also not sustainable in view of the catena of case produced by the learned counsel
appearing for the appellant reported in 1952(1) MLJ 1953 (The Coimbatore Municipality rep by
its Commissioner v. C.S.Govindayyar), wherein it has been held by this Court as follows:—
“The mere fact of the existence of a right of appeal under the provisions of the Act
against the assessment by the municipality does not necessarily oust the jurisdiction of
the Civil Court to entertain a suit in challenge thereof.”
7(f) The learned counsel for the appellant also relied on 1980(II) MLJ 140 ( Shanmugha
Nadar v. The Corporation of Madurai by its Commissioner). The exact observation in the said
dictum for the purpose of deciding the case on hand is as follows:—
“It was suggested that the plaintiff has straightaway come to Court without exhausting his
remedies under the Act. I do not find anything in the proviso to Section 495(1) to
show that a suit without exhausting the so called statutory remedies will be barred.
If an assessment does not in substance and in effect comply with the provisions of the
Act, then it is no answer to the suit to set aside the assessment to say that the plaintiff had
not filed an appeal against the assessment.”
In 1992(1) LW 110 (Chellammal v. Alandur Municipality, rep. by its Commissioner), it
has been held that:
“ the Courts below have erred in not applying the ratio decidendi of the Supreme Court in
A.I.R.1971 SC 353 and in holding that the Municipality can make an assessment on the
basis of rent not in accordance with the fair rent fixed under the Tamil Nadu Act 18 of
1960.
So it cannot be said that the Municipal Authority has complied with the provisions of the
Act, the Civil Court has no jurisdiction to go into the question whether the levy is
excessive or not. But it is equally well settled that when the basis of the levy itself is
wrong or that there is no basis at all for the levy and in that sense there is no substantial
compliance with the provisions of the Municipalities Act, it is open to the Civil Court
to declare that levy as illegal and it fact it is its duty to do so.”
Under such circumstances, I am of the view that the general revision of the house tax
by the respondent-Municipality without following the provision contemplated under Rule 9 of the
Taxation Rules to Schedule IV to the Tamil Nadu District Municipalities Act, 1920, under Ex.B.2
and Ex.A.1, is non-est in law, which warrant interference with the concurrent findings of
the Courts below. Point is answered accordingly.
8. In fine, the second appeal is allowed and the judgment of the learned first appellate
Judge in A.S.No.211 of 2005 on the file of the Additional Subordinate Judge, Kumbakonam, is
set aside. This Court directs the Executive Authority of the respondent-Kumbakonam
Municipality to issue fresh special notice under Rule 9 to the assessee giving reasons for the
enhancement of the house tax, for the second half year of 2001 (i.e., from 1.10.2001). On receipt
of such notice, it is open to the plaintiff to file her objection or apply for revision of the proposed
enhancement and when revision petitions are filed by the plaintiff within a time stipulated under
law the respondent-Municipality shall consider the same and pass appropriate orders on merits.
At this juncture, the learned counsel appearing for the appellant fairly concedes that the
plaintiff/appellant herein is ready to pay the arrears of the house tax without questioning the same
on the point of limitation. In the circumstances of the case, there is no order as to costs.
Appeal allowed.
[2008 (1) T.N.C.J. 338 (Mad) (MB)]

MADRAS HIGH COURT
(Madurai Bench)
BEFORE:
P.R. SHIVAKUMAR, J.
ARULMIGHU THIRU COURTALLANATHASWAMY
THIRUKOIL, COURTALLAM ...Appellant
Versus
M. SETHURAMASAMY ...Respondent
[Second Appeal (MD) No. 540 of 2007, decided on 29th October, 2007]
Tamil Nadu Public Trusts (Regulation of Administration of Agricultural
Lands) Act, 1961—Section 58—Tamil Nadu Agricultural Lands Record of Tenancy
Rights Act, 1969—Sections 4, 4-A and 16-A—Bar of jurisdiction of Civil Court—Suit
property belonging to temple leased out on rent for cultivation—Suit for eviction filed
before Civil Court on ground that it was being cultivated by another person—Objection
regarding maintainability of suit raised—Held, power to determine whether a person is a
cultivating tenant in respect of an agricultural land is available with Record Officer—
Jurisdiction of Civil Court in such matter is barred—Hence appeal dismissed—Open to
appellant to approach appropriate authority. (Paras 11 and 14)
Counsel.—Mrs. N. Krishnaveni, for the appellant; Mr. S. Meena-kshisundaram, for the
respondent.
JUDGMENT
P.R. SHIVAKUMAR, J.—The unsuccessful plaintiff before the Courts below has
approached this Court challenging the judgment and decree of the lower appellate Court
confirming the judgment and decree of the trial Court dismissing the suit of the appellant.
2. Admittedly, the suit property belongs to the plaintiff temple which is a public trust in
accordance with the definition found in Section 2(25) of the Tamil Nadu Public Trusts
(Regulation of Administration of Agricultural Lands) Act, 1961. It is also not in dispute that
the suit property was let out by the plaintiff temple to the defendant for an annual rent of
Rs.940/- for cultivation. It is also admitted that there was an arrears of rent from 01.07.1997 to
30.06.2001. Therefore, the plaintiff temple chose to file the original suit for eviction and for
recovery of possession and also for recovery of the arrears of rent. In the plaint, the
appellant/plaintiff trust contended inter alia that though the lease was granted in favour of the
respondent/defendant for agricultural purpose, he ceased to be a cultivating tenant as prior to the
filing of the suit, he was not contributing his personal labour to cultivate the land and that hence
the respondent/defendant as on the date of plaint was not a cultivating tenant to enjoy the
protection under the Tamil Nadu Public Trusts (Regulation of Administration of Agricultural
Lands) Act, 1961.
3. The suit was resisted denying the plaint averments that the respondent/defendant
was not a cultivating tenant and contending that the right to evict the respondent/defendant was
not available since the entire arrears of rent was paid immediately after the institution of the
suit.
4. On an appreciation of evidence, the Courts below came to the conclusion that the
respondent/defendant could not be evicted on the ground that he had committed default in
payment of rent. According to the view of the Courts below, the default could not be termed
willful as the entire amount of arrears of rent had been remitted soon after the institution of the
suit. So far as the question of protection to the cultivating tenants available under the Tamil Nadu
Public Trusts (Regulation of Administration of Agricultural Lands) Act, 1961 is concerned, both
the Courts concurrently held that the respondent/defendant was a cultivating tenant and hence, the
appellant/plaintiff was not entitled to the relief stated supra.
5. This Court heard the submissions made by Mrs.N.Krishnaveni, learned counsel
appearing for the appellant and also by Mr. S. Meenakshisundaram, learned counsel appearing for
the respondent.
6. The learned counsel for the appellant would contend that the lower appellate Court has
committed an error in observing that though a person does not contribute his own labour in
respect of his leasehold land for cultivation and instead engages agricultural labourers for the
purpose of cultivation, nevertheless he shall be a cultivating tenant in accordance with the
definition found in Section 2(5) of the Tamil Nadu Public Trusts (Regulation of Administration
of Agricultural Lands) Act, 1961. This Court finds force and substance in the above said
submission made by the learned counsel for the appellant that the view expressed by the lower
appellate Court is erroneous. For the sake of convenience, Section 2(5) of the Tamil Nadu
Public Trusts (Regulation of Administration of Agricultural Lands) Act, 1961 is reproduced
which runs here under:
2(5).”cultivating tenant”:—
(i) means a person who contributes his own physical labour or that of any member of his
family in the cultivation of any land belonging to another, under a tenancy
agreement, express or implied; and
(ii) include—
(a) any such person who continues in possession of the land after the
determination of the tenancy agreement;
(b) the heir of such person, if the heir contributes his own physical labour or that
of any member of his family in the cultivation of such land; or
(c) a sub-tenant if he contributes his own physical labour or that of any member of
his family in the cultivation of such land; but
(iii) does not include a mere intermediary or his heir.”
The definition clause makes it clear that the person claiming to be a cultivating tenant
should have contributed his own physical labour to be recognised as a cultivating tenant. Even the
legal heirs of original cultivating tenant will not automatically become cultivating tenants unless
they contribute their own physical labour.
7. In such view of the matter, this Court is satisfied that the lower appellate Court has
committed an error in holding that a person shall be a cultivating tenant, even though his own
physical labour is not contributed for cultivation in his leasehold land. However, this Court takes
into account the contention of the learned counsel for the respondent regarding the
maintainability of the suit in a civil Court for recovery of possession from the
respondent/defendant. Before admission of the second appeal, notice had been issued to the
respondent indicating that the appeal could be disposed of at the stage of admission itself. Hence,
this Court preferred to hear the learned counsel for the respondent also in this regard.
8. According to the submission made by the learned counsel for the respondent/defendant,
the question whether the lessee in respect of the agricultural land leased out by the plaintiff
temple is a cultivating tenant shall be decided only by the Authorised Officer under the Tamil
Nadu Agricultural Lands Record of Tenancy Rights Act, 1969 and that by virtue of Section 16-
A of the said Act, the Civil Court’s jurisdiction to deal with the question stands ousted. Power is
available with the authorised officer under the Tamil Nadu Agricultural Lands Record of Tenancy
Rights Act, 1969 and not to the Civil Court to deal with the question - whether the dispute
regarding the lessee is a cultivating tenant or not?, the learned counsel for the respondent
argued.
9. Per contra, the learned counsel for the appellant would contend since there is no
evidence to show that the respondent has been recorded as a cultivating tenant in respect of the
suit property, the jurisdiction of the Civil Court does not stand ousted.
10. After giving due consideration to the above said contentions made by the learned
counsel appearing for the parties, this Court is not in a position to accept the contention raised by
the learned counsel for the appellant. The reasons are as follows:
As per Section 4 of the Tamil Nadu Agricultural Lands Record of Tenancy Rights Act,
1969, the Record Officer (authorised authority) has got power to deal with the question - whether
a person is a cultivating tenant or not? Under Section 4-A, even in the absence of an
application, the Record Officer has got power to take suo motu action. Section 16-A bars the
jurisdiction of the Civil Court in respect of any matter which the Record Officer, the District
Collector or other officer or authority is empowered to determine. Section 16-A reads as
follows:
“Bar of jurisdiction of Civil Courts.—No civil Court shall have jurisdiction in respect
of any matter which the Record Officer, the District Collector or other officer or authority
empowered by or under this Act has to determine and no injunction shall be granted
by any Court in respect of any action taken or to be taken by such officer or authority in
pursuance of any power conferred by or under this Act.”
11. A comparative reading of Sections 4, 4-A and 16-A of the Tamil Nadu Agricultural
Lands Record of Tenancy Rights Act, 1969 will make it clear that the power to determine
whether a person is a cultivating tenant in respect of an agricultural land is available with the
Record Officer and when such power is available with the Record Officer, the jurisdiction of the
civil Court stands barred under Section 16-A of the said Act.
12. However, a reading of Sections 18 and 19 of the Tamil Nadu Public Trusts
(Regulation of Administration of Agricultural Lands) Act, 1961, will show that even in respect of
a cultivating tenant of a property of a public trust, the authorised officer therein can be
approached on certain contingencies for eviction of the tenant and a similar provision barring the
Civil Court’s jurisdiction in respect of eviction of cultivating tenants under the public trust is
found in Section 58 of the Tamil Nadu Public Trusts (Regulation of Administration of
Agricultural Lands) Act, 1961. For the sake of convenience, Section 58 of the said Act is
extracted here under:
“Bar of jurisdiction of Civil Courts.—Except as otherwise provided in this Act, no Civil
Court, shall have jurisdiction to decide or deal with any question which is by or under
this Act required to be decided or dealt with by the authorized officer, the Registrar,
the Rent Court, the Rent Tribunal or other authority.”
13. From the plaint averments, it seems the case of the plaintiff is not that the
respondent/defendant was not at all a cultivated tenant at any point of time. On the other hand, the
plaintiff’s case happened to be that the respondent/defendant had subsequently ceased to be a
cultivating tenant entitled to the protection of the Tamil Nadu Public Trusts (Regulation of
Administration of Agricultural Lands) Act, 1961.
14. Therefore, this Court countenances the argument advanced by the learned counsel for
the respondent that the suit itself is not maintainable, in view of the bar provided under
Section 16-A of the Tamil Nadu Agricultural Lands Record of Tenancy Rights Act, 1969 and
Section 58 of the Tamil Nadu Public Trusts (Regulation of Administration of Agricultural Lands)
Act, 1961. In view of the fact that this Court has come to the conclusion that the suit itself is not
maintainable, it shall be unnecessary to advert to the other contentions raised by the appellant in
this appeal and the appeal itself can be disposed of on the very short question of competency of
the Civil Court to entertain the suit. However, as requested by the learned counsel for the
appellant, this Court makes it clear that it shall be open to the appellant to approach the
appropriate authority under the Tamil Nadu Agricultural Lands Record of Tenancy Rights Act,
1969 as well as the Tamil Nadu Public Trusts (Regulation of Administration of Agricultural
Lands) Act, 1961 for appropriate remedy. If the appellant moves such authorities for the
appropriate relief, any observation made by the trial Court or the lower appellate Court on merit
shall not be taken into account by such authority in disposing of such an application.
15. Accordingly, this second appeal is dismissed at the stage of admission with the above
observation. There shall be no order as to payment of costs.
Appeal dismissed.
[2008 (1) T.N.C.J. 343 (Mad) (MB)]

MADRAS HIGH COURT
(Madurai Bench)
BEFORE:
G. RAJASURIA, J.
THE SPECIAL TAHSILDAR, ADI DRAVIDAR
WELFARE, RAMANATHAPURAM ...Appellant
Versus
SEETHALAKSHMI AMMAL (DIED) AND OTHERS ...Respondents
[Appeal Suit No. 692 of 2003 and C.M.P. No. 11449 of 2003, decided on 1st November, 2007]
Land Acquisition Act, 1894—Sections 4, 18 and 24—Compensation—Determination
of—Land Acquisition Officer determined compensation at rate of Rs. 412/- per cent—
Reference Court enhanced compensation to Rs. 3000/- per cent—Hence, this appeal
—Held, land in question situates within Municipal area hence compensation was rightly
enhanced—Since land required development hence 1/3 amount should be deducted—
Thus, claimant entitled to enhanced amount after deduction of 1/3 for development
charges—Appeal partly allowed.
(Paras 8, 9, 12 and 13)
Case law.—2006 (2) CTC 733—relied on; 2001 (3) CTC 69— referred.
Counsel.—Mr. So. Paramasivan, Special Government Pleader, for the appellant; Mr.
Alagu Balakrishnan, for the respondents.
JUDGMENT
03.01.2002 made in L.A.O.P.No.1 of 1996 on the file of the Subordinate Judge,
Ramanathapuram.
3. This appeal by the Land Acquisition Officer is focussed as against the enhancement of
compensation awarded by the learned II Additional Subordinate Judge, Ramanathapuram, vide
order dated 03.01.2002.
4. During the pendency of the L.A.O.P. before the Subordinate Judge, Ramanathapuram,
the land owner died and hence his Legal heirs were impleaded and during the pendency of the
matter before this Court among the Legal heirs the wife of the original land owner viz.
Seethalakshmi Ammal, first respondent herein also died. The remaining legal heirs are the legal
heirs of the deceased Seethalakshmi and they already on record. No impleadment of fresh parties
are required and necessary changes in the cause title has to be effected.
5. The facts in nutshell would run thus:
Section 4(1) Notification of the Land Acquisition Act was published in the Gazette by the
Government dated 02.03.1994 after complying with the procedures. The Land Acquisition
Officer assessed the value of one cent at Rs.412/- taking into consideration of the sale deed dated
02.06.1992, bearing No.432, in Survey No.353(A). Being aggrieved by and dissatisfied with
such award of compensation, the land owner asked for reference and accordingly the Subordinate
Court who was seized of the matter under Section 18 of the Land Acquisition Act decided to
enhance the compensation from Rs.412/- per cent to Rs.3,000/- per cent. Aggrieved by such
enhancement the Land Acquisition Officer preferred this appeal before this Court.
6. The point for consideration is to whether the learned Subordinate Judge is justified in
assessing the value of the land from Rs.412/- per cent to Rs.3,000/- per cent?
7. The learned Special Government Pleader would argue that the Land Acquisition Officer
relied upon the document bearing No.432 relating to the land in Survey No.353(A) and
assessed the value. Whereas the learned Subordinate Judge took into account the sale deed which
emerged on the same date i.e., 02.06.1992 in other part of the Survey No.353 and assessed the
quantum at Rs.3,000/- per cent. Accordingly, the learned Special Government Pleader prays for
modification.
8. Whereas the learned counsel for the claimants would convincingly and correctly
highlight the fact to the effect that the sale deed taken by the Land Acquisition Officer relates to
the land situated near the burial ground and the acquired land situated far away from it and it had
the potentiality of housing plots.
9. Read the map concerned and also perused the relevant records. The document relied on
by the Land Acquisition Officer refers to an extent of 30 cents and which was valued at the
rate of Rs.412/- per cent approximately and that itself will clearly show the 30 cents were related
to agricultural land near the burial ground which did not have the potentiality of becoming the
house sites in the near future. The acquired land is also situated in the big survey number 353
and it is situated in the municipal limits, however the sale deed relied on by the claimants refers
to 5 cents of land so as to say approximately a plot size which was valued in a sum of
Rs.50,000/- at the rate of Rs.10,000/- per cent and accordingly the Subordinate Judge took the
value of one cent as Rs.3,000/-. Whereas the Land Acquisition Officer took into account only the
agricultural land value and that land taken as sample had certain drawbacks as already highlighted
supra. It could broadly be taken that the plot value per cent is Rs.3,000/- in a developed area
which is municipality. In such a case I could see no reason to interfere with the findings of the
learned Subordinate Judge. Further more the learned Subordinate Judge in para No.14
elaborately dealt with the matter by discussing that normally as per the guideline value also once
in five years the value of the immovable land gets doubled and accordingly he took into account
the guideline value in the year 1980 and visualised during the year 1994, that per cent, the value
of land would be Rs.3,000/-. The learned Subordinate Judge resorted that to such reasoning
and I am not inclined to intervene and it seems to be a reasonable amount. The learned Additional
Government Pleader could not point out as to how the reasons set out by the Sub Court is wrong.
Hence, I am of the considered opinion that the learned Subordinate Judge was right in assessing
the value of one cent at Rs.3,000/- in that area.
10. However, the contention of the Government Pleader is that 1/3rd amount towards
development charges has not been deducted after assessing the plot value and he prays for
deducting 1/3rd amount by placing reliance on the decision of the Division Bench of this
Court reported in 2006(2) C.T.C. 733 [The Special Tahsildar (Land Acquisition) v.
Valliammal].
11. The perusal of the Judgment cited would clearly demonstrate that there should be
deduction towards development charges when the acquired land is not a developed land. The
core question arises as to what should be the quantum of deduction relating to the agricultural
land. If the agricultural land is a stripe of land abetting the main road, then the question of
development charge would not arise at all for the reason that the person who may have the house
built there would have ingress and egress by using the available road which is adjacent to the
land, but on the other hand in case of vast extent of land, there is bound to be lot of house sites in
the interior portion of it and necessarily there should be roads and other amenities. An excerpt
from the decision of the said Division Bench cited supra would run thus:
“12. The Apex Court in the judgment Karan Singh v. Union of India, 1998(1) MLJ 35
SC, has held that ‘it is only the previous judgment of a Court or an award
which can be made the basis for assessment of the market value of the acquired
land subject to the party relying on such judgment, to adduce evidence for
showing that due regard being given to all attendant facts, it could from the basis
for fixing the market value of the acquired land’. In this case, admittedly the
order dated 12.12.1997 passed in L.A.O.P. Nos.9, 10 and 11 of 1995 has not been
produced before the Court and no evidence has been adduced and therefore the
Reference Court erred in relying on the same. The Apex Court in the decision
Padma Uppal and others v. State of Punjab and others, 1977(1) SCC 330, has
held that ‘it is the settled proposition that price fetched for small plots of land
cannot be applied to the lands covering a very large extent and that the large area
of land cannot possibly fetch a price at the same rate at which small plots are
sold’. In the case Gulzara Singh and others v. State of Punjab and others, 1993
(4) SCC 245, the Apex Court has upheld the deduction of 1/3rd land towards the
developmental charges. In K. Vasundara Devi v. Revenue Divisional
Officer (LAO), 1995(5)SCC 426, the Apex Court reiterated that when genuine
and reliable sale deeds of small extents were considered to determine the market
value, the same will not form the sole basis to determine the market value of
large tracts of land. Sufficient deduction should be made to arrive at the just and
fair market value for large tracts of land. In Special Land Acquisition Officer v.
V.T. Velu, 1996(2) SCC 538, the Apex Court has held that at least 1/3rd of the
land acquired is to be set apart for road purpose, developmental purpose and
other civil amenities. In U.P. Avas Evam Vikas Parishad v. Jainul Islam and
another, 1998 (2) SCC 467, the Apex Court upheld the deduction of 1/3rd price
towards the cost of development for the housing scheme. It has been held in
Ravinder Narain and another v. Union of India, 2003(4) SCC 481:
‘It cannot, however, be laid down as an absolute proposition that the rates fixed
for the small plots cannot be the basis for fixation of the rate. For example, where
there is no other material, it may in appropriate cases be open to the adjudicating
Court to make comparision of the price paid for small plots of land. However, in
such cases necessary deductions/adjustments have to be made while
determining the prices’.
In the same judgment, it has been laid down that while determining the market
value of the land acquired, it has to be correctly determined and paid so that there
is neither unjust enrichment on the part of the acquirer nor undue deprivation
on the part of the owner. The compensation must be determined by reference to
the price which a willing vendor might reasonably expect to receive from the
willing purchaser. While considering the market value, disinclination of the
vendor to part with his land and the urgent necessity of the purchaser to buy it
must alike to be dis-regarded neither must be considered as acting under any
compulsion. The value of the land is not be estimated as its value to the
purchaser. But similarly this does not mean that the fact that some particular
purchaser might desire the land more than others is to be disregarded. The wish
of a particular purchaser, though not his compulsion may always be taken into
consideration for what it is worth. Section 23 of the Act enumerates the matters
to be considered in determining compensation. The first criterion to be taken into
consideration is the market value of the land on the date of publication of the
notification under Section 4(1). Similarly, Section 24 of the Act enumerates the
matters which the Court shall not take into consideration in determining the
compensation. A safeguard is provided in Section 25 of the Act that the amount
of compensation to be awarded by the Court shall not be less than the amount
awarded by the Collector under Section 11. Value of the potentiality is to be
determined on such materials as are available and without indulgence in any fits
of imagination. Impracticability of determining the potential value is writ
large in almost all cases. There is bound to be some amount of guesswork
involved while determining the potentiality. It can be broadly stated that the
element of speculation is reduced to a minimum if the underlying principles of
fixation of market value with reference to comparable sales are made:
(i) The sale is within a reasonable time of the date of notification under Section 4(1).
(ii) It should be a bona fide transaction.
(iii) It should be of the land acquired or of the land adjacent to the land acquired; and
(iv) It should possess similar advantages.
It is only when these facts are present, it can merit a consideration as a
comparable case.”
12. The learned counsel for the claimants would submit that there is no hard and fast rule
that 1/3rd amount should be deducted towards development charges and placing reliance on
the decision of this Court reported in 2001(3) C.T.C. 69 [The Special Tahsildar (L.A.)(Adi
Dravidar Welfare) v. S.M. Seigu Jalaiudeen] would submit that 20% might be deducted
towards development charges. While justifying the stand taken by the Subordinate Judge the
learned counsel for the respondents would highlight that the sum of Rs.3,000/- per cent, was fixed
considering it as a developed area.
13. But here the area is 5.52 acres and necessarily as contemplated in the above cited
decision of the Division Bench of this Court various amenities such as road and other civil
amenities should be provided and in such a case I am of the considered view that 1/3rd amount
has to be deducted towards development charges. Hence, after deducting 1/3 value of the land
towards developmental charges the value of land for one cent comes to Rs.2,000/-. Accordingly,
the award amount is modified as under:
(i) Value of 5 acre 52 cents at the
rate of Rs.2,000/- per cent Rs.11,04,000.00
(ii) 30% Solatium Rs. 3,31,200.00
———————-
Total Rs.14,35,200.00
———————-
14. In the result, this appeal is partly allowed and the award of the Subordinate Judge,
Ramanathapuram is reduced from Rs.21,52,800/- (Rupees Twenty-one Lakhs Fifty-two
Thousand and Eight Hundred only) to Rs.14,35,200/- (Rupees Fourteen Lakhs Thirty-five
Thousand and Two Hundred only). In other aspects the award shall hold good. Consequently,
connected C.M.P.No.11449 of 2003 is closed. No costs.
[2008 (1) T.N.C.J. 349 (Mad) (MB)]

MADRAS HIGH COURT
(Madurai Bench)
BEFORE:
G. RAJASURIA, J.
LAKSHMI ...Appellant
Versus
MUNIYANDI ...Respondent
And
MARUTHA MUTHU AND ANOTHER ...Appellants
Versus
MUNIYANDI AND OTHERS ...Respondents
[C.M.A. (MD) No. 788 of 2006, C.M.A. (MD) No. 789 of 2006 and M.P. (MD) Nos. 1 and 1 of
2006, decided on 29th October, 2007]
Civil Procedure Code, 1908—Order XLI, Rules 23, 23-A and 25—Additional
evidence at appellate stage—For proper decision if Court feels additional evidence is
necessary it may record additional evidence itself or direct trial Court for recording it
and return it to first appellate Court—Hence, necessary direction given.
(Paras 16, 17, 22 to 24)
Case law.—2007 (4) MLJ 447; 2005 (3) LW 366—referred.
Counsel.—Mr. K. Srinivasan, for the appellant; Mr. V. Chandra-sekar for respondent 1
and Mr. A. Anbalagan for the respondents 2 to 4.
JUDGMENT
G. RAJASURIA, J.—C.M.A.(MD)No.788 of 2006 is focussed as against the judgment and
decree passed in A.S.No.98 of 2005 on the file of the Additional Sub Court, Thanjavur, dated
10.03.2006 in reversing the judgment and decree passed in O.S.No.164 of 2000 on the file of
the District Munsif Court, Thanjavur, dated 05.08.2005.
2. C.M.A.(MD)No.789 of 2006 is focussed as against the judgment and decree passed in
A.S.No.97 of 2005 on the file of the Additional Sub Court, Thanjavur, dated 10.03.2006 in
reversing the judgment and decree passed in O.S.No.384 of 2004 on the file of the District
Munsif Court, Thanjavur, dated 05.08.2005.
3. A resume of facts absolutely necessary for the disposal of these two appeals would run
thus:
O.S.No.164 of 2000 was filed by Muniyandi as against Lakshmi on the file of the learned
District Munsif, Thanjavur for permanent injunction in respect of the suit property described in
the schedule of the plaint.
4. While so, O.S.No.384 of 2004 was filed by the said Lakshmi and one Marutha Muthu as
against the said Muniyandi and three others in the same Court for partition in respect of large area
including the one covered under the earlier suit.
5. The trial Court after conducting the joint trial, delivered the common judgment in
both the matters, vide judgment and decree dated 05.08.2005.
6. Being aggrieved by and dissatisfied with, the said judgment, A.S.No.97 of 2005 was
filed by Marutha Muthu and Lakshmi and A.S.No.98 of 2005 was filed by Lakshmi.
7. The appellate Court by way of separate judgments in A.S.No.97 of 2005 and 98 of 2005
on 10.03.2006, remanded both the matters to the trial Court for taking additional evidence and
dispose off the matters.
8. Being aggrieved by and dissatisfied with, such orders of remand, Lakshmi and Marutha
Muthu filed the aforesaid two civil miscellaneous appeals, on the main ground that the appellate
Court was not justified in remanding the matters to the trial Court.
9. Heard both sides in entirety.
10. The point for consideration is as to whether the appellate Court was justified in
remanding the matter for taking additional evidence and for pronouncing judgments afresh by
the trial Court.
11. The learned counsel for the respondents herein would develop his argument to the
effect that the trial Court clearly and categorically gave findings to the effect that Muniyandi is
entitled to injunction in O.S.No.164 of 2000, considering his possession as well as the title over
it; and in the suit for partition, the ‘A’ Schedule property was correctly deleted from partition.
12. The learned Advocates on both sides would draw the attention of this Court to
paragraph Nos.11, 12 and 15 of the judgment of the appellate Court in A.S.No.97 of 2005 and
submit that the appellate Court even though correctly set out the facts, arrived at a wrong
conclusion.
13. The perusal of the judgment of the appellate Court would reveal that one
Valliammal happened to the original owner and it is the contention of Lakshmi and others that
during the life time of Valliammal, her properties were orally partitioned and thereupon, the
sharers started enjoying it. Whereas the learned Counsel for the respondents (Muniyandi and
others) would contend that during her life time, she executed the sale deed and effected other
alienations and that there was no oral partition.
14. The first appellate Court in paragraph No.15, clearly and categorically without
mincing words, expressed her desire to have more evidence for clarity.
15. I am of the considered opinion that the appellate Judge has a discretion to have more
evidence before the appellate Court which cannot be found fault with and even the High
Court cannot give direction to the appellate Judge not to have more evidence so as to satisfy its
own consciousness to arrive at a conclusion. Once the appellate Court considered that more
evidence is required, as per the trite proposition of law, the appellate Court should have
entertained additional evidence instead of remanding the matter.
16. There are catena of decisions which posit the proposition that as per the provisions of
the Code of Civil Procedure, more specifically Order XLI, Rule 23 as well as 23-A that there
should not be indiscriminate remanding of the matter.
17. The perusal of the records including the judgment of the first appellate Court as well as
the trial Court would demonstrate that it is not the case where the evidence was adduced totally in
a wrong and absurd manner or the judgment was rendered based on inadmissible evidence in
toto, warranting fresh evidence, but it is a case even as per the findings of the first appellate
Court, certain additional evidence relating to actual partition and enjoyment of the specific
areas, is warranted.
18. In such a case, the appellate Court could have very well entertained additional
evidence by itself or given direction to the trial Court to take additional evidence and forward it to
the appellate Court so as to enable the appellate Court itself to deal with the matter and
pronounce judgment on merits.
19. The learned counsel for the appellants placed reliance on the following decisions:
(i) Sujatha v. Vijay Anand reported in (2007) 4 MLJ 447.

(ii) S.Shanmugham v. S.Sundaram and 4 others reported in 2005 (3) LW 366.
20. The learned counsel for the appellants would submit that the appellate Court could
have very well entertained additional evidence instead of passing such remand orders.
21. The learned counsel for the respondents would convincingly and correctly submit that
the appellate Court already exercised its discretion that the evidence has to be recorded by the
trial Court and in such a case, this Court may not insist for the appellate Court to record the
evidence and the trial Court could record the additional evidence and forward the same to the
appellate Court which could finally decide the appeal.
22. Relating to the discretionary power of the first appellate Court concerned, either it
could entertain the evidence itself or direct the trial Court to take evidence as per Order XLI, Rule
25, C.P.C, on specific issues/points and after getting such evidence, it could adjudicate the
appeals.
23. In view of my discussion supra, I am of the considered opinion that the judgments of
the first appellate Court are liable to be set aside and the following direction is given:
24. The appellate Court shall restore the appeals on its file in the original numbers
themselves and issue direction to the trial Court to record the additional evidence only on
certain aspects as found set out in paragraph No.15 of the judgment of the first appellate
Court. The trial Court after taking evidence, is bound to submit the evidence to the first appellate
Court whereupon, the appellate Court shall decide those appeals on merits after hearing both
the sides.
25. In the result, both the appeals are disposed of. Consequently, connected M.P.
(MD)Nos.1 and 1 of 2006 are closed. However, the parties are ordered to bear their respective
costs.
Appeals disposed of.
[2008 (1) T.N.C.J. 352 (Mad) (MB)]

MADRAS HIGH COURT
(Madurai Bench)
BEFORE:
G. RAJASURIA, J.
J. M. SAMY ...Appellant
Versus
B. VARADAN (DIED) AND OTHERS ...Respondents
[Appeal Suit No. 902 of 1991, decided on 29th October, 2007]
Civil Procedure Code, 1908—Section 96—First appeal—Suit for recovery of certain
amount—Initially defendant filed suit for eviction on ground of default in payment of rent
—Matter went upto Apex Court—Appellant was to deposit certain amount before Apex
Court—Matter decided against appellant—Defendant withdrew amount—No objection
filed by appellant—Now appellant filed suit that defendant withdrew amount which
was towards adjustment of loan—Held, earlier suit was decided by Apex Court hence
recovery of that amount by pleading differently not maintainable—Appeal dismissed.
(Para 10)
Counsel.—Mr. R. Subramanian, for the appellant; No Appearance, for the respondents.
JUDGMENT
05.12.1990 made in O.S.No.351 of 1988 on the file of the II Additional Subordinate Judge,
Madurai.
2. Heard the learned counsel for the petitioner. Despite printing the name of the
respondents there is no representation for the respondents either in person or through their
counsel.
3. This appeal is focussed as against the judgment and decree dated 05.12.1990 in
dismissing the original suit. The nitty gritty, the gist and kernel of the case as stood exposited
from the records could be portrayed thus:
The parties herein are referred to according to their litigation status before the trial
Court. The plaintiff/appellant is a registered partnership firm, which took on lease the
premises belonging to the defendant for a monthly rent. There were several lease agreements
between them which contained so many clauses concerning loan transactions, relating to such
loans towards interest a sum of Rs.200/- p.m. had to be deducted from out of the total monthly
rent of Rs.600/- and only the remaining Rs.400/- p.m. was payable. While so when such
arrangement was going on smoothly, the defendant turned turtle and had a volte face and started
disturbing the plaintiff. Maliciously the defendant initiated R.C.O.P. proceedings, in which
eviction was ordered on the ground of wilful default in payment of rent. It so happened that there
was a delay in filing revision before the High Court as against the order which emerged in the
rent control proceedings, but the High Court dismissed it. As against which S.L.P. was filed. At
the time of admission the Honourable Apex Court ordered a sum of Rs.25,000/- (Rupees Twenty-
five Thousand only) towards arrears of rent to be deposited by the plaintiff in the Hon’ble
Supreme Court; in compliance with it the plaintiff deposited the said sum of Rs.25,000/-.
However, the Honourable Apex Court subsequently dismissed the S.L.P. No.7506 of 1984.
Thereupon, the defendant filed an application before the Hon’ble Apex Court and withdrew the
said sum of Rs.25,000/- deposited by the plaintiff, even though the defendant was bound to pay a
sum of Rs.200/- p.m. as interest towards the loans obtained by the defendant from the
plaintiff. Hence, the suit was filed.
4. Per contra, challenging and impugning the allegations/averments in the plaint, the
defendant filed the written statement to the effect that he was entitled to the monthly rent of
Rs.600/- (Rupees Six Hundred only) and accordingly he filed application before the Supreme
Court Registry and withdrew the said sum of Rs.25,000/-, which was deposited by the
plaintiff at the time of getting admitted the S.L.P.
5. Before the trial Court the following issues were framed:
1. Whether the plaintiff is entitle receive a sum of Rs.38,500/- with interest thereon?
2. To what relief?
6. During trial on the side of the plaintiff P.W.1 was examined and Ex.A1 to A23 were
marked and on the side of the defendant, D.W.1 was examined and Ex.B1 to B24 were marked.
The trial Court ultimately dismissed the suit.
7. Being aggrieved by and dissatisfied with the judgment of the trial Court, the appellant
preferred this appeal on the main ground that the said sum of Rs.25,000/- was deposited in order
to get the S.L.P. admitted; in fact the said sum represents only the interest amount due by the
defendant in favour of the plaintiff for the loans borrowed and the outstanding payable by the
defendant in favour of the plaintiff; the trial Court failed to consider Ex.A.1 and Ex.A.15 in
proper perspective and in fact in Ex.A.1 there was admission to the effect that the pronote for
Rs.34,000/- was executed by the defendant in favour of the plaintiff in addition to borrowal of an
advance of Rs.13,200/- and the trial Court was wrong in summarily rejecting Ex.A.5 to A.7, over
and above not considering Ex.B.9 to Ex.B.17.
8. The point for determination is whether the trial Court was justified in dismissing the
suit on the ground that plaintiff failed to object before the Apex Court at the time of defendant
withdrawing the sum of Rs.25,000/- from the Court Registry?
9. The gist and kernel of the contention of the plaintiff is that the rent controller and the
appellate Court miserably failed to consider that there was no default in payment of the rent at all
as there was adjustment of payment of interest towards part of the rent, and the remaining rent
was paid.
10. I am of the considered opinion that the suit itself is a misconceived one. The method
and manner in choosing the remedy in the plaint, was not in accordance with law. The purpose of
the suit itself is to recover a sum of Rs.25,000/- with 18% p.a. interest from the date of the
deposit of the said amount before the Honourable Apex Court till recovery. The suit itself
was not based on the loan transaction and the amounts due. Rightly or wrongly the competent
authority decided while ordering eviction that there were rental dues and accordingly there were
defaults in payment of rents and that had been virtually confirmed even by the Apex Court.
Hence, it wouldn’t lie in the mouth of the plaintiff to contend that such findings were wrong and
it should be taken only as adjustment towards the payment of interest for the loan. Precisely the
present suit is to recover the sum of Rs.25,000/- which was withdrawn by the defendant from the
Supreme Court’s Registry. Undisputably and indubitably the facts remain that in the petition
filed by the defendant for withdrawal of the said sum of Rs.25,000/- from the Supreme Court’s
Registry, the plaintiff was given with notice, but at the time before Honourable Apex Court he
did not raise objection for releasing in favour of the defendant the said sum of Rs.25,000/- which
the plaintiff deposited. Hence, the trial Court was justified in para 17 of its judgment in giving a
finding to the effect that the plaintiff was not entitled to file a separate suit for recovery of the
said sum.
11. The learned counsel for the petitioner would try to argue that the withdrawal of the said
sum of Rs.25,000/- from the Supreme Court will not be a bar for him to file a suit to recover the
said amount, by placing before the Court the realities. At the risk of repetition without being
tautologous I would like to highlight that a suit based on the loan transaction and for recovery of
the dues, is entirely different from simply filing a suit for recovery of Rs.25,000/- with interest
which was withdrawn from the Supreme Court’s Registry. Had really the defendant
thought that he was intending to file the suit he should have at that time itself got permission from
the Hon’ble Apex Court itself and thereafter without prejudice to plaintiff’s right to establish his
entitlement before the competent Civil Court had the amount been released by the Supreme
Court, then the matter would have been entirely different. Hence, in these circumstances, this
Court finds that the documents and evidence adduced by plaintiff before the trial Court in support
of the such recovery of the sum of Rs.25,000/- are totally not tenable. Hence, no interference with
the trial Court’s findings is warranted.
12. Accordingly, the appeal is dismissed. In the circumstance of the case there is not order
as to the costs.
Appeal dismissed.
[2008 (1) T.N.C.J. 356 (Mad) (MB)]

MADRAS HIGH COURT
(Madurai Bench)
BEFORE:
P.R. SHIVAKUMAR, J.
NARAYANASAMY NAICKER ...Appellant
Versus
KOPPAMMAL AND OTHERS ...Respondents
[Second Appeal (MD) No. 698 of 1996, decided on 6 September, 2007]
th
Civil Procedure Code, 1908—Section 100—Second appeal—Suit for permanent

injunction that suit property i.e., passage between plaintiff’s and respondent’s building is
common property and no hindrance be put against plaintiff—Suit partially decreed
—Affirmed by first appellate Court—Not satisfied with order plaintiff filed second appeal
—Held, passage between buildings is a common property and plaintiff has easementary
right and construction of tin shed at one point is a hindrance which is to be removed by
defendant/respondent—Hence, appeal modified to above extent.
(Paras 11, 12 and 13)
Counsel.—Mr. R. Subramaniam, for the appellant; Mr. S. Kadar-karai, for the
respondents.
JUDGMENT
P.R. SHIVAKUMAR, J.—The plaintiff in the original suit is the appellant in this
second appeal.
2. The suit was laid by the appellant herein against the respondents herein for the
following reliefs: (i) for a declaration that the property having a measurement of north-south
3 feet and east-west 60 feet lying on the north of the northern wall of the appellant’s house shown
as ‘AB’ in the plaint plan, more fully described in Schedule-II annexed to the plaint and shown as
‘A, B, B1, B2’ in the plaint plan was the common property of the appellant/plaintiff and the
respondents/defendants; (ii) for a perpetual injunction not to prevent the appellant/plaintiff from
having access to the said property through the gate marked as ‘DW’ in the plaint plan available
on the western wall of the defendants’ house to reach the second schedule property for the
purpose of effecting repairs and maintaining the above said ‘AB’ wall; (iii) for a perpetual
injunction not to put up any structure with roofs made out tin or other materials in the said
property described in Schedule-II; and (iv) for a mandatory injunction directing the removal of
the sheds with tin roofs constructed by the respondents/defendants after the filing of the suit.
3. According to the plaintiff’s case, he had left a space of 1½ feet on the north of his
northern wall and likewise the defendants had also left a space of an equal breadth making the
total space in between the plaintiff’s wall and the southern wall of the defendants’ property to 3
feet. The said 3 feet space, according to the plaintiff, was the common property of the
plaintiff and the defendants and as per the agreement dated 20.09.1982, the said property was
agreed to be left for common use of the plaintiff and the defendants.
4. The suit was resisted by the respondents/defendants contending that the northern wall of
the plaintiff’s house shown as ‘AB’ in the plaint plan was not his exclusive wall; that the said
wall was a common wall belonging to the plaintiff and the defendants; that the vacant space on
the north of ‘AB’ wall exclusively belonged to the respondents/defendants and that the agreement
dated 20.09.1982 was not a genuine one.
5. The trial Court framed as many as six issues and conducted trial, in which two witnesses
were examined and 9 documents Exs.A-1 to A-9 were marked on the side of the plaintiff. One
witness was examined and 3 documents Exs.B-1 to B-3 were marked on the side of the
defendants.
6. The trial Court, after going through the pleadings and entire oral and documentary
evidence adduced on either side, decreed the suit in respect of the second prayer and granted
perpetual injunction not to prevent the plaintiff from using the suit second schedule property
for the purpose of effecting repairs and maintaining the above said ‘AB’ wall and not to prevent
his having access through the gate marked as ‘DW’ in the plaint plan available on the western
wall of the defendants’ house to reach the second schedule property for the above said purpose. In
respect of all other prayers, the trial Court dismissed the suit. On appeal by the appellant
herein/plaintiff in respect of the disallowed portion of the suit claim, the learned appellate Judge
confirmed the judgment and decree passed by the trial Judge and dismissed the appeal. Hence, the
appellant has come forward with this second appeal.
7. This Court heard the submissions made by Mr.R.Subramaniam, learned counsel
appearing for the appellant and also by Mr.S.Kadarkarai, learned counsel appearing for the
respondents and perused the records including the judgments of the lower Courts.
8. Of course, the plaintiff had prayed for a declaration that the suit second schedule
property commonly belonged to the plaintiff and the defendants. The said contention of the
plaintiff was negatived based on the recitals found in Ex.A.9. Though the same was also sought to
be challenged in the second appeal by incorporating a specific ground to that effect in the
memorandum of grounds of appeal, the learned counsel for the appellant fairly conceded that he
could not advance any argument in support of the above said contention of the appellant/plaintiff
since the recitals found in Ex.A.9-agreement are so clear that what was granted under Ex.A.9 was
only an easement. This Court also considered the contents of Ex.A.9 and upon such a
consideration, is satisfied that the Courts below have come to a correct conclusion that the claim
of the plaintiff for joint ownership of the suit second schedule property could not be sustained.
9. Even though the appellant/plaintiff might have taken a stand before the Courts below
that the property described in Schedule-II, namely an extent of 160 feet on the north of ‘AB’ wall
(3 x 60) was the common property of the plaintiff and the defendants, the learned counsel for the
appellant fairly submitted that such a claim could not be sustained, in view of the fact that what
was granted under Ex.A.9 was only a grant of easement to use the said property for
maintaining and effecting repairs of ‘AB’ wall. On the other hand, the learned counsel for the
appellant would submit that the Courts below, having held that an easementary right was granted
under Ex.A.9 to use the space marked as ‘A,B,B1,B2’ in the plaint plan for effecting repairs of
the ‘AB’ wall and for that purpose, to have access through the gate marked as ‘DW’ in the
plaint plan, ought to have found that the said right should not be abridged in any way by allowing
the respondents/defendants to put up any construction over the said space which would provide a
hindrance to the enjoyment of the right granted to the plaintiff under Ex.A.9; that the
Courts below have erred in holding that the respondents/defendants, being the owner of the
property described in second schedule, could put up any construction in the said property and
that the said proposition could not be sustained in law, as the same was capable of nullifying or at
least abridging the right granted to the plaintiff under Ex.A.9. It is the further contention of the
learned counsel for the appellant that the Courts below have completely ignored the scope of
easement vis-a-vis the right of the owner of the servient tenement to do all acts of ownership; that
the Courts below had failed to note that the right of easement is an abridgement and restriction
imposed on the owner of the survient tenement not to use his right of ownership in such a way to
be derogatory to the easementary right available to the owner of the dominant tenement.
10. During the course of argument, the learned counsel for the respondents/defendants,
across the bar, contended that no superstructure with tin roof had been put up by the
respondent/defendant abutting ‘AB’ wall as claimed by the appellant/plaintiff and that only tin
roofs had been provided over the mud walls put up on the eastern and western edge of the suit
second schedule property to protect the walls and that the respondents/defendants was ready even
to remove the tin roofs put up over the mud walls shown as ‘A-B2, B-B1’ in the plaint plan.
11. Since the prayer of mandatory injunction relating to the removal of the structures
allegedly put up by the defendants in the suit second schedule property depends upon the
ascertainment of the scope of the right granted under Ex.A.9, it is unnecessary to traverse other
evidence in this regard. Suffice to consider the scope of the right granted under Ex.A.9. A clear
right of easement to use the suit second schedule property for maintaining and effecting repairs to
the northern wall of the plaintiff’s house shown as ‘AB’ in the plaint plan and a right to have
access to the suit second schedule property through the gate marked ‘DW’ in the plaint plan have
been granted to the plaintiff. In return, the defendant has been given a right to drain the water
collected in his property through the property of the plaintiff by having a drainage course on the
southern side of the plaintiff’s property. No doubt by the grant of easement, the
respondents/defendants did not lose their title in respect of the property described in plaint second
schedule. But when a right of easement is available to another person, the owner’s right of
enjoyment of the property is restricted to some extent so as to ensure that the right of easement is
not hindered. In the instant case, the defendants have given a right of easement to the plaintiff use
the suit second schedule property for effecting repairs and maintaining the ‘AB’ wall. If the
defendants are allowed to put up any superstructure with any kind of roof, the same will
definitely be a hindrance to the enjoyment of the said easementary right. Therefore, this Court
has got no hesitation in coming to the conclusion that the Courts below have committed an error
in observing that the plaintiff, as the owner, shall have every right to put up any superstructure
in the suit second schedule property.
12. Moreover, the learned counsel for the respondents/defendants also submitted that the
decree of the trial Court could be modified to some extent by granting mandatory injunction for
the removal of the superstructures with tin roofs. This Court also comes to the conclusion that
the learned counsel for the respondents has come forward with all fairness with the above said
suggestion which has got to be accepted.
13. For all the reasons stated above, this Court comes to the conclusion that the
appeal has got to be allowed in part and the judgment and decree of the Courts below have to be
modified to the extent indicated above by granting the relief of mandatory injunction as
prayed for in addition to the relief granted by the Courts below and that the
respondents/defendants shall be granted a time of two months from today for removal of the
superstructures.
14. In the result, this second appeal is allowed in part to the extent indicated above.
However, there shall be no order as to payment of costs.
[2008 (1) T.N.C.J. 360 (Mad) (MB)]

MADRAS HIGH COURT
(MADURAI-BENCH)
BEFORE:
P.R. SHIVAKUMAR, J.
A. VENKIDUSAMY (DIED) THROUGH LRS. AND OTHERS ...Appellants
Versus
BALUSWAMY CHETTIAR POTHU ARAKATTALIA
THROUGH ITS KATTALIADAR ...Respondent
[S.A. (M.D.) No. 1266 of 1996 and M.P. (M.D.) No. 12365 of 1996, decided on 11 th July,
2007]
Civil Procedure Code, 1908—Section 100—Second appeal—Suit property is a Public
Charitable Trust—Even if the Trust has become defunct, the interest of Public Charitable
Trust shall have to be protected by the Court as the Court is custodian of the Trust
properties—Plaintiff Trust has been shown as the plaintiff— Defects found in the original
plaint have been subsequently rectified—Notice terminating tenancy—Served on the
tenant—Substance and not the form of notice is material—Notice issued on behalf of the
plaintiff Trust—Finding recorded—Finding on questions of fact cannot be termed perverse
—Lower Courts have correctly decided the issues in favour of the plaintiff and rejected the
defence case—Well considered findings of the Courts below—No interference warranted.
(Paras 8 to 12)
Counsel.—Mr. K. Srinivasan, for the appellants.
Important Point
Title alone, disregarding the contents of the notice, cannot be taken into account to decide
whether it is a notice issued by Badrinarayanan in his individual capacity or a notice in the name
of the plaintiff Trust. The substance and not the form of notice is material.
JUDGMENT
P.R. SHIVAKUMAR, J.—The defendant in the original suit is the appellant in the second
appeal.
2. The respondent herein instituted original suit No.317/1991 on the file of the learned
District Munsif, Palani for recovery of possession of the suit property based on alleged
termination of tenancy, by issuing a statutory notice dated 09.10.1990, for recovery of a
sum of Rs.450/- as arrears of rent for three months from 01.08.1990 to 31.10.1990 at the rate of
Rs.150/- per month and for the recovery of damages for use and occupation, thereafter, at
the rate of Rs.600/- per month. The suit was resisted by the appellant herein/defendant
contending that the suit was not maintainable because the same was filed by S.Badrinaryanan in
his individual capacity and not as a Trustee of the plaintiff Trust; that the tenancy was not
terminated in accordance with law; that since the Trust had become defunct, the exemption
provided in G.O.Ms.No.2000, dated 16.08.1976 to the properties belonging to the Public
Religious and Charitable Trusts from the Tamil Nadu Buildings (Lease and Rent
Control) Act, 1960 will not be applicable to the plaintiff.
3. The parties went on with the trial, in which one witness was examined and 12
documents were marked as Exs.A-1 to A-12 on the side of the plaintiff and no witness was
examined and no document was marked on the side of the defendant. At the conclusion of trial,
the trial Court took the view that the property belonged to the plaintiff Trust, a public Trust and
hence the suit property was exempted from the purview of Tamil Nadu Buildings (Lease and
Rent Control) Act, 1960 as per G.O.Ms.No.2000, dated 16.08.1976; that the Trust was not a
defunct one as contended by the defendant and that even assuming that the Trust had become
defunct, the benefit conferred upon the Trust by the G.O. was not nullified. Based on the above
said findings, the suit was decreed for recovery of possession of the suit property. So far as the
other prayers are concerned, namely recovery of arrears of rent and damages for use and
occupation, the same were negatived on the basis of an endorsement made by the counsel for the
plaintiff to the effect that the said prayers were not pressed.
4. As against the said judgment and decree of the trial Court, the appellant herein preferred
an appeal on the file of the District Court, Dindigul in A.S.No.212/1994. The learned District
Judge by judgment dated 12.02.1996 dismissed the above said appeal with cost and confirmed the
judgment and decree of the trial Court. Hence the appellant/defendant is before this Court
challenging the decree passed by the trial Court which stands confirmed by the lower appellate
Court.
5. This Court heard the submissions made by the learned counsel appearing for the
appellants and also perused the materials available on record, including the judgments of the
lower Courts.
6. Admittedly, the appellant herein/defendant is a tenant in respect of the suit property
- a building bearing Door No.34, Big Bazaar Street, Palani Town, Dindigul District. Contending
that the suit property and other properties originally belonged to one Baluswamy Chettiar and by
virtue of a Trust deed of the above said Baluswamy Chettiar dated 11.06.1902, the plaintiff Trust
was created and the suit property and other properties became the properties of the Trust; that the
above said Trust is a Public Charitable Trust and hence the suit property is exempted from the
provisions of Tamil Nadu Buildings (Lease and Rent Control) Act, 1960; that the tenancy of the
appellant/defendant was brought to an end by issuing a statutory notice under Section 106 of the
Transfer of Property Act, 1882 and that hence the appellant/defendant is bound to vacate the
premises and hand over the vacant possession of the same to the respondent/plaintiff, the
respondent filed the original suit for recovery of possession and other reliefs. The
appellant/defendant resisted the suit contending that the property did not belong to the plaintiff
Trust; that only a Kattalai for the use of the income from the property in a particular manner
alone was provided in the Trust deed and that hence the property is not one exempted from the
purview of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960. The further contention
of the appellant/defendant before the lower Court was that even assuming that the property was
that of the plaintiff Trust, the suit could not be maintained because the plaintiff Trust, according
to the appellant/defendant, had become defunct and that the notice terminating tenancy was not
issued on behalf of the plaintiff Trust, but was issued by Badrinarayanan in his individual
capacity.
7. “Whether it is a public trust and whether it is in existence?” is the question framed by
this Court at the time of admission as the substantial question of law involved in this appeal.
It is nobody’s case that the plaintiff trust is a private trust and not a public trust. The contents
of Ex.A-5 - Trust deed make it clear that the beneficiaries of the trust is a section of public. The
beneficiaries are not confined to a close circle to say that the trust is a private trust. Moreover, it
is not the contention of the appellant/defendant that the plaintiff trust is a private trust to make
G.O.Ms.No.2000 dated 16.08.1976 exempting the properties of the Public Religious and
Charitable Trusts from the purview of the Tamil Nadu Buildings (Lease and Rent Control) Act,
1960 inapplicable to the properties of the plaintiff trust. On the other hand, it is the contention of
the appellant/defendant that the plaintiff trust had become defunct and hence the G.O. exempting
the properties of Public Religious and Charitable Trusts will not be applicable to the suit
property. The further contention of the appellant/defendant is that even assuming that the suit
property is exempted from the purview of the Tamil Nadu Buildings (Lease and Rent
Control) Act, 1960, the lease in favour of the appellant/defendant was not legally terminated
since the termination notice under Section 106 of the Transfer of Property Act, 1882 was issued
by the individual Badrinarayanan and not on behalf of the plaintiff trust. The following are the
questions which can be cited as the substantial questions of law involved in this second appeal.
(i) Whether the property of a trust which claimed to be defunct is not exempted from the
purview of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 by virtue
of G.O.Ms.No.2000 dated 16.08.1976;
(ii) Whether the notice dated 09.10.1990 issued under Section 106 of the Transfer of
Property Act, 1882 did not validly terminate the tenancy in respect of the suit
property.
8. The learned counsel for the appellant, after drawing the attention of the Court to
the suit notice marked as Ex.A-2 dated 09.10.1990, argued reiterating the above said contentions
that the suit notice was not issued on behalf of the Trust and hence the tenancy was not validly
terminated in accordance with law and that the Trust having become defunct, Badrinarayanan
could not have represented the Trust as its Trustee in the legal proceeding. It is the further
contention of the learned counsel for the appellant that originally the suit was filed in the name of
Badrinarayanan in his individual capacity and that only a subsequent amendment made to the
plaint, had made the suit one filed on behalf of the Trust and hence the suit on behalf of the Trust
should be construed as not instituted properly. None of the above said contentions raised on
behalf of the appellant is sustainable. The reasons are as follows:
Originally Badrinarayanan, under the impression that the suit property was his separate
property and only an obligation was cast upon him to perform a Kattalai of the Trust out of the
income of the suit property and that hence the same was not exempted from the purview of
the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 as per G.O.Ms.No.2000, dated
16.08.1976, moved a petition R.C.O.P.No.16/1988 before the Rent Controller (District Munsif)
for the eviction of the tenant, namely the appellant herein/defendant in the suit. In the said
R.C.O.P., it was contended by the appellant herein that the suit property, being a property of a
Public Charitable Trust, stood exempted from the purview of Tamil Nadu Buildings (Lease and
Rent Control) Act, 1960 by the above said G.O. and hence the R.C.O.P. was not maintainable.
Accepting the above said contention and holding that the suit property was the property of the
plaintiff Trust and hence the provisions of the Tamil Nadu Buildings (Lease and Rent Control)
Act, 1960 were not applicable, the learned Rent Controller passed an order, dismissing the said
R.C.O.P. Only pursuant to the above said order passed by the learned Rent Controller, the present
suit happened to be filed after issuing notice under Ex.A-2, dated 09.10.1990 terminating tenancy
by the end of the Calendar month, i.e. by 31.10.1990 and demanding possession of the suit
property on 01.11.1990. Having contested the R.C.O.P. and obtained an order of dismissal of
R.C.O.P. on the ground that the suit property is a Trust property and hence exempted from the
purview of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960, the
appellant/defendant is estopped from contending that the suit property is not that of the Trust and
hence the suit is not maintainable. The appellant cannot be allowed to blow hot and cold. A clear
finding has been given by the Rent Controller in the R.C.O.P., by the learned trial Judge in the
suit and by the appellate Judge in the appeal that the suit property is a Trust property belonging to
the plaintiff Trust. The beneficiaries, being a section of public, the Trust has been held to be a
Public Charitable Trust, by virtue of Trust deed Ex.A-5 dated 11.06.1902. Reference can be made
to the recitals of Ex.A-5 - Trust deed. Therefore, this Court is of the considered view that the
appellant/defendant cannot now contend that the suit property is not a Trust property and
hence the suit is not maintainable. The above said contention has got to be discountenanced.
9. The second contention of the appellant/defendant is that the Trust having become
defunct, the suit on behalf of the defunct Trust is not maintainable. Factually, the said
contention of the appellant/defendant that the Trust had become defunct has not been
substantiated by reliable evidence. Even assuming that the plaintiff Trust has become defunct,
the interest of the Public Charitable Trust shall have to be protected by the Court, as the Court is
custodian of the Trust properties. The appellant/ defendant who is the tenant in respect of the
suit property belonging to the plaintiff Trust cannot try to squat on the property, stating that the
Trust has become defunct. If at all he believes that the Trust has become defunct, he should have
recognised some other person as Trustee or landlord. Here, in this case, the contention raised by
Badrinarayanan (P.W.1) in the R.C.O.P. that he was the owner of the suit property and hence was
the landlord, was successfully disputed by the appellant/defendant. Having done it and
succeeded in such an attempt, the appellant/ defendant cannot now deny the fact that the
plaintiff Trust is the owner of the suit property. Therefore, the above said contention raised on
behalf of the appellant also has got to be discountenanced.
10. The next contention raised on behalf of the appellant is that the suit was originally filed
by Badrinarayanan in his individual capacity; that in fact, in his evidence he admitted that he filed
the suit as Badrinarayanan, S/o A.Sundaresan Chettiar and that the same should be construed as a
suit by the individual Badrinarayanan and not by the plaintiff Trust, even though by a subsequent
amendment, the plaint might have been amended by substituting the name of the plaintiff Trust
for the individual Badrinarayanan. The said contention is also untenable. Some how or other by
mistake the Trustee of the plaintiff Trust filed the suit in his name without clearly stating that the
suit was laid on behalf of the plaintiff Trust. But realising the mistake, subsequently the plaint
was amended and by virtue of amendment, the plaintiff Trust has been shown as the plaintiff.
Therefore, the contention of the appellant that the suit is by an individual and not by the plaintiff
Trust and hence not maintainable cannot be sustained. Whatever defects found in the
original plaint have been subsequently rectified. Hence the said contention is also bound to be
rejected.
11. The next contention raised on behalf of the appellant is that the notice terminating the
lease was not issued on behalf of the plaintiff Trust and hence the tenancy has not been validly
terminated in accordance with law. Ex.A-2 is the copy of the notice. The
appellant/defendant does not deny the receipt of the said notice. The said notice was issued
terminating the tenancy by the end of the month, i.e. by 31.10.1990 and directing the defendant to
hand over possession of the suit property on 01.11.1990. Of course, the person issuing the notice
is shown to be Badrinarayanan. Title alone, disregarding the contents of the notice, cannot be
taken into account to decide whether it is a notice issued by Badrinarayanan in his individual
capacity or a notice in the name of the plaintiff Trust. The substance and not the form of notice is
material. The notice, according to the opinion of this Court, is a notice issued on behalf of the
plaintiff Trust and not by Badrinarayanan in his individual capacity. In the notice, it was made
clear that the Rent Controller had given a finding that the suit property was the property of the
plaintiff Trust and hence notice under Section 106 of the Transfer of Property Act, 1882
terminating tenancy was being issued. That itself is enough to show that the notice was issued on
behalf of the plaintiff Trust and not by Badrinarayanan in his individual capacity. The questions
of law have been correctly decided by the lower Court. The findings of the questions of fact
cannot be termed perverse warranting interference in this second appeal.
12. For all the reasons stated above, this Court comes to the conclusion that the
lower Courts have correctly decided the above said issues in favour of the plaintiff and rejected
the defence case of the appellant/defendant. The well considered findings of the lower
Courts do not deserve any kind of interference in this appeal. The judgments of the lower Courts
deserve to be confirmed with the result that the appeal should fail and accordingly, the Second
Appeal shall be dismissed with costs.
13. In the result, this Second Appeal is dismissed with costs. Consequently, the
connected miscellaneous petition is also dismissed.
The following additional substantial questions of law were framed at the time of
pronouncement of the judgment in the second appeal:
“(i) Whether the property of a trust which claimed to be defunct is not exempted from the
purview of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 by virtue
of G.O.Ms.No.2000 dated 16.08.1976;
(ii) Whether the notice dated 09.10.1990 issued under Section 106 of the Transfer of
Property Act, 1882 did not validly terminate the tenancy in respect of the suit
property.”
Appeal dismissed.
[2008 (1) T.N.C.J 366 (Mad)]

MADRAS HIGH COURT
BEFORE :
A. KULASEKARAN, J.
P. RAJESH KUMAR BAGMAR ...Petitioner
Versus
SWATHI RAJESH KUMAR BAGMAR ...Respondent
[C. R. P. (PD) No.3006 of 2007 and M.P. No.1 of 2007, decided on 28 November, 2007]
th
Hindu Marriage Act, 1955—Sections 9 and 23-A—Evidence Act, 1872—Sections 101,
102, 103 and 104—Civil Procedure Code, 1908—Order XVIII, Rule 1—Suit for restitution
of conjugal rights—Burden of proof—Who will lead evidence—Explanation to Section 9
says burden of proving reasonable excuse shall be on person who has withdrawn from
society—General rule is that party on whom onus probandi lies should begin—Onus
probandi means if no evidence is given by party on whom burden is cast the issue must be
found against him—Distinction exist between burden of proof and onus of proof—
Explanation to Section 9 not make any change and initial burden to prove allegation on
basis of which restitution of conjugal rights is sought is on person who comes to Court—
Hence conclusion of trial Court that petitioner who brought in proceedings has to lead
evidence first to prove averment is perfectly valid—Thus, revision dismissed.
(Paras 6, 7 and 10)
Case law.—(2006) 5 SCC 558; AIR 1964 SC 880; AIR 1954 Ori 191; AIR 1969 P&H 139;
AIR 1987 Kant. 241-relied on; AIR 1995 Guj 166; AIR 1979 Pat 174; AIR 2004 Mad 243-
referred.
Counsel.—Mr. R. Sundarrajan for the petitioner; Mr. Sugumaran for Mr. M. S.
Kandasamy for the respondent.
JUDGMENT
A. KULASEKARAN, J.—Heard both sides. The facts involved in this case is that the
revision petitioner herein has filed O.P. No. 600 of 2001 on the file of Principal Judge, Family
Court, Chennai against the respondent herein for restitution of conjugal rights under Section
9 of the Hindu Marriage Act, hereinafter referred to as Act. The respondent herein has filed
counter claim under Section 23-A of the Hindu Marriage Act in I.A. No. 228 of 2007 for the
relief of dissolution of marriage. The petitioner had raised a preliminary issue that the
respondent, as a deserted spouse should begin the case. The Court below passed an order
dated 05.09.2007 directing the petitioner herein to begin the case, hence, the present civil
revision petition.
2. Mr. Sundarrajan, learned counsel appearing for the petitioner submitted as follows:
On 17.06.2000, the respondent left the matrimonial house without intimation and during
her stay in her parents house, she delivered a female child on 07.01.2001. After the respondent
left the matrimonial house, the petitioner and his parents requested her to come back but she
refused without any valid reasons. Even the panchayats arranged not yielded any result since the
respondent was influenced by the ill-advice of her parents. The act of the respondent in
withdrawing from the petitioner’s society without any reasonable excuse has caused serious
matrimonial loss of discomfort and consortium of the child, hence, the petitioner was forced
to file a petition for restitution of conjugal rights under Section 9 of the Hindu Marriage Act.
Section 9 of the Act clarifies that burden of proving reasonable cause for withdrawing from the
society shall be on the person who withdrawn from the society of the other, while so, directing
the petitioner to begin the evidence is unsustainable in law. When the petition is filed for
restitution of conjugal rights and the respondent/wife pleads ill-treatment and cruelty, she
should be called upon to begin the evidence first. In the instant case, the respondent not only
resisted the conjugal rights sought for by the petitioner but also seeks counter-claim for
dissolution in the same proceedings. As per Order XVIII, Rule 1, CPC and under Sections
101 to 104 of Evidence Act, she should have been called upon to begin the evidence. The
decision relied on by the respondent reported in Jyothi Pai’s case (AIR 1987 Kant 241)
cannot be made applicable. The Court below failed to note the difference between burden of
proof and onus of proof. In support of this contention, the learned counsel for the petitioner
relied on the below mentioned decisions:—
(i) (M/s. Keshavlal Durlabhasinbhai’s Firm and another v. Shri Jalaram Pulse Mills)
AIR 1995 Guj 166 wherein a learned single Judge of the Gujarat High Court held in
para 9 thus:
“9. In the present case, though this procedure is not followed and though the stage
of framing of issues has passed, the trial Court has on correct appreciation of
the rival contentions of the parties come to a proper conclusion that the
defendant should lead the evidence first. This order is perfectly legal and proper
and no interference is called for on any of the grounds canvassed by the learned
advocate for the petitioner. Though the defendant has chosen to deny the claim
of the plaintiff in totality, that is a denial without any substance in view of the
other admitted facts of receipt of goods, part payments, issuance of cheques
and a claim of having made further payments and, therefore, onus lies on the
defendant. The denial of registration of partnership is also prima facie
frivolous. The plaintiff has given the registration number of the partnership firm
of the plaintiff.”
(ii) (Ram Narain Prasad v. Seth Sao) AIR 1979 Pat 174, wherein in para Nos. 4, 5 and
7, it was held thus:
“4. On a perusal of the above mentioned paragraph in the written statement, it is
clear that the case of the defendant was that he had paid the electric charges for
the period in question (between Jan., 1972 and Nov., 1972).
5. On these facts, the Court below relying on Order XVIII, Rule 1 of the Civil
P.C. (hereinafter referred to as the Code) was of opinin that the onus is on the
defendant to begin with the case.
7. ....In the present case, the Court below directed the defendant to begin with the
case for the simple reason that the defendant admitted the facts alleged by the
plaintiff and the defendant also pleaded certain additional facts which
compelled the Court to direct him (defendant) to begin with the case. In our
opinion, the Court below was justified in exercising the discretion.....
....The order simply directs the defendants to begin with the case on the
basis of Order XVIII, Rule 1 of the Code. In our opinion, if the order is allowed
to stand, it would not occasion a failure of justice nor cause irreparable
injury to the defendant. Hence, we hold that the Court below was justified in
exercising the jurisdiction which was vested in it and we shall not interfere with
the impugned order because it does not come within the purview of
the proviso to Section 115 of the Code.”
(iii) (Bama v. Mrs. Rukiyal Bivi) AIR 2004 Mad 243 wherein, I held in para Nos. 13, 14
and 15 thus:
“13. In a case where the execution of document is admitted, a presumption was
raised in favour of the plaintiff that the said document was made for
consideration and the presumption was raised, it had the effect of shifting the
burden on to the defendant to establish that there was no consideration.
14. The trial Court found that the suit was filed even before the expiry of the time
stipulated in the agreement and that the balance sale consideration of Rs.1.00
lakh was also deposited into the Court.
15. Considering all the above said facts, the trial Court has rightly come to the
conclusion and dismissed the application. Therefore, I do not find any reason
to interfere with the order passed by the Court below.”
(iv) Sarkar’s Civil Court of Practice Procedural Manual 10th Edition - Page No.181
“In case of pleadings by traversal, it is the plaintiff who is to begin. When in a suit for
restitution of conjugal rights by the husband, the defendant wife pleads ill-treatment and
cruelty, the defendant should be called to begin (1971) 1 Cut WR 5381. When in a
money suit, the defendant admits the claim but comes with a plea of payment, the
defendant is to begin the evidence first (AIR 1979 Pat 174).”
3. Mr. Sugumanan, learned counsel for the respondent submitted that the petitioner and
his family members ill-treated the respondent and demanded more jewellery, cash for starting a
business, kinetic honda scooter; that the petitioner stopped the servant maid and extracted all
works from her, with the result, she fell ill; that the respondent was physically assaulted on
13.06.2000, hence, she left the matrimonial house on 15.06.2000; that during the stay of the
respondent at her parent’s house, she delivered a female child but the petitioner not even
visited the child except on one occasion in the hospital that too after persuasion; that the said
act of the petitioner amounts to cruelty, which was a reasonable cause for her to leave the
matrimonial home. When the husband filed petition for restitution of conjugal rights on
assertion that wife had withdrawn from the society without any reasonable cause, the burden of
proving those averments of assertion made by the husband lies on him. Explanation to Section
9 would not make any difference in this proposition of law. In support of this contention,
the learned counsel for the respondent relied on (Smt. Jyothi Pai v. P.N. Pratap Kumar Pai) AIR
1987 Kant 241, wherein a learned single Judge of the Karnataka High Court held in para No. 2
thus:
“2. The learned Civil Judge appears to have thought that in a proceeding like
this for restitution of conjugal rights brought under Section 9 of the Hindu
Marriage Act, by reason of explanation appended to the section, the burden
lies on the petitioner herein of proving her case of reasonable excuse for
withdrawing from the society of her husband and, therefore, she must begin
first. This appears to be wholly erroneous. The respondent herein, i.e., the
husband who has brought the proceedings for restitution of conjugal rights
made assertion that the wife, the petitioner herein, had withdrawn from his
society without any reasonable excuse and that he was therefore entitled to a
decree of restitution of conjugal rights. The wife in her objection statement,
while refuting these assertions made by her husband, has contended that not
only the husband was treating her with cruelty, but he had also driven her
out of his house and therefore she had to seek shelter in the house of her
parents. Therefore, the husband having come to the Court for a judgment and
decree in his favour on the assertion that the wife had withdrawn from his
society without any reasonable excuse, the burden of proof in the proceedings
lies on the husband to prove those statements of assertion made by him to
have a decree in his favour and that is exactly what Section 9 of the Hindu
Marriage Act also says. It provides that when either the husband or the wife
has, without reasonable excuse, withdrawn from the society of the other,
the aggrieved party may apply by petition to the Court for restitution of
conjugal rights and the Court on being satisfied of the truth of the statements
made in such petition and there is no legal ground why the application
should not be granted, may decree restitution of conjugal rights accordingly. The
explanation appended to the said section does not make any change in this
position of law. All that it says is that where a question arises whether there
has been reasonable excuse for withdrawal from the society, the burden of
proving reasonable excuse shall be on the person who has withdrawn from the
society. In other words, when the petitioner, husband or wife as the case
may be, adduces proof regarding the withdrawal from the society of another
without reasonable excuse, then the burden lies on the otherside of proving
reasonable excuse, if any, for withdrawal of the society. Here in the case on
hand, the husband having come to the Court with a statement of facts asserting
that the wife has withdrawn from his society without reasonable excuse, the
burden lies on him to prove that statement made by him in the petition, and,
therefore, it is for the husband-petitioner inMC No.1/83 to begin the case by
opening and adducing the evidence and not the wife.”
The learned counsel for the respondent further submitted that the petitioner seeks
restitution of conjugal rights. In order to get a decree he has to prove that the respondent has
withdrawn from his society and such withdrawal has been without reasonable excuse.
Under Sections 101, 102 and 103 of the Evidence Act, the burden of proving the aforesaid two
conditions rests on the petitioner and he has to succeed on the strength of his own case and
cannot take advantage of the weakness of the defence. In support of this contention, he relied
on the decision (Sadhu Singh Balwant Singh v. Smt. Jagdish Kaur Sadhu Singh) AIR 1969
P&H 139 wherein a learned single Judge held in Para-14 thus:
“14. In order to appreciate the points in controversy, it will be useful to set out
the law on the point as contained in Section 9 of the Act. Sub-section (1)
indicates that the petitioner seeking restitution of conjugal rights, in order to
get a decree, has to prove two things: (i) that the respondent has withdrawn from
the society of the petitioner and (ii) that such withdrawal has been without
reasonable excuse. The word ‘excuse’ appears to have been advisedly used.
It is something less than “justification”, and something more than a mere
whim, fad, or brain-wave of the respondent. It is a fact which has to be
determined with reference to the respondent’s state of mind in the particular
circumstances of each case. The scope of the word ‘excuse’ is not restricted to
the grounds which under sub-section (2) of the section can be taken in
answer to a petition for restitution of conjugal rights, because in view of
Sections 101, 102 and 103 of the Evidence Act, the burden of proving the
aforesaid twin conditions in sub-section (1) rests on the petitioner. He has to
succeed on the strength of his own case. He cannot take advantage of the
weakness of the defence.”
The learned counsel for the respondent further submitted that in the present case, the
petitioner has brought the proceedings for restitution of conjugal rights on the false ground
that the respondent withdrawn from his society without any reasonable cause, hence, the Court
below placed the initial onus of proof on the petitioner to prove the said allegation as the right to
begin follows onus probandi. To substantiate this contention, he relied on the decision of the
Honourable Supreme Court reported in (Anil Rishi v. Gurbaksh Singh) (2006) 5 SCC 558
wherein the Honourable Supreme Court, in para Nos. 9 and 19 held thus:
“9. In terms of the said provision, the burden of proving the fact rests on the
party who substantially asserts the affirmative issues and not the party who
denies it. The said rule may not be universal in its application and there may be
an exception thereto. The learned trial Court and the High Court proceeded on
the basis that the defendant was in a dominating position and there had been a
fiduciary relationship between the parties. The appellant in his written
statement denied and disputed the said averments made in the plaint.
19. There is another aspect of the matter which should be borne in mind. A
distinction exists between burden of proof and onus of proof. The right to
begin follows onus probandi. It assumes importance in the early stage of a
case. The question of onus of proof has greater force, where the question is,
which party is to begin. Burden of proof is used in three ways:—(i) to
indicate the duty of bringing forward evidence in support of a proposition
at the beginning or later; (ii) to make that of establishing a proposition as
against all counter-evidence; and (iii) an indiscriminate use in which it may
mean either or both of the others. The elementary rule in Section 101 is
inflexible. In terms of Section 102, the initial onus is always on the plaintiff
and if he discharges that onus and makes out a case which entitles him to a
relief, the onus shifts to the defendant to prove those circumstances, if any,
which would disentitle the plaintiff to the same.
4. This Court carefully considered the argument of the counsel on both sides, the
citations relied on by them, perused the pleadings of the parties and the relevant provisions of
law. Now, we look into the relevant provisions of law.
The Hindu Marriage Act, 1955:
Section 9:—Restitution of conjugal rights.—When either the husband or the wife
has, without reasonable excuse, withdrawn from the society of the other, the aggrieved party
may apply, by petition to the District Court, for restitution of conjugal rights and the Court,
on being satisfied of the truth of the statements made in such petition and that there is no
legal ground why the application should not be granted, may decree restitution of conjugal
rights accordingly.
Explanation.—Where a question arises whether there has been reasonable excuse for
withdrawal from the society, the burden of proving reasonable excuse shall be on the
person who has withdrawn from the society.
23-A. Relief for respondent in divorce and other proceedings.—In any proceeding for
divorce or judicial separation or restitution of conjugal rights, the respondent may not only
oppose the relief sought on the ground of petitioner’s adultery, cruelty or desertion, but also
make a counter-claim for any relief under this Act on that ground; and if the petitioner’s
adultery, cruelty or desertion is proved, the Court may give to the respondent any relief under
this Act to which he or she would have been entitled if he or she had presented a petition
seeking such relief on that ground.”
Indian Evidence Act:
101. Burden of Proof.—Whoever desires any Court to give judgment as to any legal
right or liability dependent on the existence of facts which he asserts, must prove that those
facts exist. When a person is bound to prove the existence of any fact, it is said that the
burden of proof lies on that person.
102. On whom burden of proof lies.—The burden of proof in a suit or proceeding
lies on that person who would fail if no evidence at all were given on either side.
103. Burden of proof as to particular fact.—The burden of proof as to any
particular fact lies on that person who wishes the Court to believe in its existence, unless it is
provided by any law that the proof of that fact shall lie on a particular person.”
Civil Procedure Code:
Order XVII, Rule 1, CPC:—Right to begin.—The Plaintiff has the right to begin unless
the defendant admits the facts alleged by the plaintiff and contends that either in point of law
or on some additional facts alleged by the defendant the plaintiff is not entitled to any part of
the relief which he seeks, in which case the defendant has the right to begin.”
5. In the case on hand, the proceedings is brought in by the petitioner complaining of the
respondent herein without any reasonable excuse withdrew from his society where the defence
of the respondent in her counter-claim is the petitioner herein treated her with cruelty,
demanded dowry and beaten her, with the result, she was forced to leave the matrimonial house,
hence, she is entitled to dissolution of marriage.
6. The procedure to be adopted at trial is laid down in Order XVIII, Rule 1, CPC which
says that only where the defendant has admitted some of the averments made in the plaint,
then the defendant can be required to lead evidence first. In this case, no such admission by the
respondent in respect of the allegations made by the petitioner that the respondent withdrew
from his society without any reasonable excuse. The petitioner cannot contend that he is not
required to prove an essential fact constituting his cause of action unless the facts are admitted
in the pleadings of the respondent. A fact not admitted in the pleadings of the respondent, the
petitioner is bound to prove the essential fact to substantiate his case. In other words, the
burden of proving the fact rests on the party who substantially asserts the affirmative of the
issue and not the party who denies it.
7. The right to begin or the privilege of opening the case is decided by Rules of evidence.
The general rule is that the party on whom onus probandi lies should begin. The strict meaning
of the term onus probandi is if no evidence is given by the party on whom burden is cast, the
issue must be found against him. A distinction exist between burden of proof and onus of
proof. The right to begin follows onus probandi. It assumes importance in the earlier stages of
a case. It may also assume importance where no evidence at all is led on the question in dispute
by either side. Burden of proof is used in three ways: (i) to indicate the duty of bringing
forward evidence in support of a proposition at the beginning or later, (ii) to make that of
establishing a proposition as against all counter evidence, and (iii) an indiscriminate use in
which it may mean either or both of the sides. The elementary rule in Section 101 is inflexible.
In terms of Section 102, the initial onus is always on the plaintiff and if he discharge the onus
and makes out a case which entitles him to a relief, the onus shift to the defendant to prove those
circumstances, if any, which would disentitle the plaintiff to the same. Followed para 19 of (Anil
Rishi v. Gurbaksh Singh) (2006) 5 SCC 558.
8. Where however evidence has been led by the contesting party, abstract
consideration of onus are out of place and truth or otherwise must always be adjudged on the
evidence led by the parties. (Kalwa Devadattam and others v. Union of India and others) AIR
1964 SC 880.
9. It is also open to the plaintiff to say that although he has a right to begin, he may rest
content with relying upon the averments made in the written statement and may say that he
does not propose to adduce further evidence but the plaintiff should make this statement
before the defendant is called upon to adduce evidence. Followed para 5 of (Balakrishna Kar
and another v. H.K. Mahatab) AIR 1954 Orissa 191. In this case the petitioner has not made
any statement that he does not propose to adduce further evidence or relying upon the
averments made in the counter claim of the respondent.
10. Section 9 of the Hindu Marriage Act, 1955 provides that when either of the spouse,
without any reasonable cause withdrawn from the society of the other, the aggrieved party
may apply by petition for restitution of conjugal rights and the Court on being satisfied of the
truth of the statements made in such petition and that there is no legal ground why the
application should not be granted may decree restitution of conjugal rights accordingly. The
explanation to the said section speaks that where a question arises whether there has been
reasonable excuse for withdrawal from the society, the burden of proving reasonable excuse
shall be on the person who has withdrawn from the society. The explanation means that the
spouse alleges reasonable excuse has to prove it. I endorse the view expressed by the learned
single Judge in the case reported in (Smt. Jyothi Pai v. P.N. Pratap Kumar Pai) AIR 1987 Kant
241 that explanation to Section 9 does not make any change and that initial burden to prove the
allegation on the basis of which restitution of conjugal rights is sought is on the person who
comes to the Court. In this case, the petitioner, who approached the Court for a judgment and
decree in his favour on the assertion that the respondent had withdrawn from his society
without any reasonable excuse. The burden of proof in the proceedings lies on the petitioner to
prove those averments made by him to get a decree in his favour. Hence, the petitioner who
alleges withdrawal without reasonable cause failed to lead evidence, he may not be in a
position to satisfy the Court regarding the truth in the pleadings, hence, he has to lead evidence,
then the burden will be shifted to the respondent to establish reasonable excuse. Even when the
respondent made counter claim under Section 23-A of the Hindu Marriage Act, it does not
make any change in the position of law.
11. The citations have been made by the counsel for the petitioner from the text books that
respondent has to begin the evidence is not quite relevant to the case on hand.
12. In view of the reasons mentioned above, this Court is of the view that the conclusion
arrived at by the trial Court that the petitioner herein, who brought in the proceedings has to
lead evidence first to prove the averment in his O.P. is perfectly valid and interference of this
Court is not warranted. The Civil Revision Petition is dismissed with costs of Rs.5,000/-.
Today, after pronouncing the order in the above revision petition in the open Court, the
learned counsel for the petitioner prayed that the litigants are husband and wife and hence,
Rs.5,000/- ordered towards costs payable by the petitioner may be modified to pay the costs of
the revision.
13. Considering the said submission of the counsel for the petitioner, Rs.5,000/-
ordered towards costs by this Court is hereby modified into one to pay the costs of the revision
petition by the petitioner to the respondent. In other respect, the order dated 28.11.2007 passed
in the above civil revision petition stand unaltered.
Petition dismissed.
[2008 (1) T.N.C.J. 376 (Mad)]

MADRAS HIGH COURT
BEFORE :
K. RAVIRAJA PANDIAN AND
MRS. CHITRA VENKATARAMAN, JJ.
THE SPECIAL DEPUTY TEHSILDAR (LAND ACQUISITION),
CHENNAI METROPOLITAN DEVELOPMENT
AUTHORITY AND ANOTHER ...Appellants
Versus
P. MADHUSUDANAN AND OTHERS ...Respondents
[Appeal Suit Nos.461 and 462 of 2000, decided on 29 November, 2007]
th
(A) Land Acquisition Act, 1894, Sections 4 and 23—Compensation—Comparable sale

deed—Whether a sale deed of small piece of land can be made basis for determining
compensation for large chunk of land—Held, not an absolute rule that small plots could not
be made basis for fixation of rate—It is open to Land Acquisition Officer or Reference
Court to compare prices paid for small plot—In such cases necessary reduction or
adjustment have to be made—Considering fact of largeness of plot deduction of 30%
applied. (Paras 12, 14 and 15)
(B) Land Acquisition Act, 1894, Sections 4 and 23—Compulsory acquisition—Award
of compensation for compulsory acquisition—No evidence led to prove that
claimant’s other property was affected or compelled to change his residence—Hence not
entitled to compensation under this head.
(Paras 16 and 17)
Case law.—AIR 1971 SC 2015; 2004 (5) CTC 56, Civil Appeal No. 5112/2007 Dated
2.11.2007—referred; AIR 1977 SC 1560; AIR 1984 SC 892; (2003) 4 SCC 481; (2005) 4 SCC
789—relied on.
JUDGMENT
K. RAVIRAJA PANDIAN, J.—An extent of 20.50 acres of land in survey Nos.3/1A2A
(10 acres), 3/1A2D1(10.26 acres) and 3/1A2D2 (0.24 acres) situated in the village Sathankadu,
Saidapet Taluk has been acquired for the public purpose of formation of iron, steel hardware
market by the Madras Metropolitan Development Authority under the provisions of the Land
Acquisition Act, 1894 (hereinafter called ‘the Act’). Notification under Section 4(1) of the Act
was issued on 10.09.1987 and declaration under Section 6 of the Act has been issued on
28.12.1987. The Land Acquisition Officer passed an award in Award No.3/87-88, dated
30.03.1988 determining the compensation in a sum of Rs.201/- per cent by taking the sale deed
in document No.D.3366, dated 25.10.1982 as a data land. In the said document 6.25 acres of
dry land in Survey No.255/3A in Manali village has been sold for a sum of Rs.78,125/-. On the
basis of the said sale, the Land Acquisition Officer has arrived at the value of the land
under acquisition at Rs.125/- per cent and after giving a notional increase of 10 per cent, he
arrived at the compensation at Rs.201/- per cent. In addition to that the Land Acquisition
Officer has granted 12% addition on the compensation amount for the period between
issuance of Section 4(1) notification and taking over possession of the property. The statutory
solatium of 30% has been granted.
2. The owners of the land, not being satisfied with the award amount requested the land
acquisition officer to refer the case under Section 18 of the Act before the competent Court.
Pursuant to the same, the Special Deputy Collector, MMDA, Guindy by his proceedings dated
11.04.1988 referred the matter to the subordinate Court, Tiruvallur, which has been taken on file
as LAOPs Nos.257 and 260 of 1988 in respect of the land in an extent of 10.00 acres and 9.20
acres respectively.
3. Before the Reference Court, the claimants claimed that the location of the acquired
land is in the prime area in the Express Highways within the Madras Metropolitan area limits
having frontage of about 1536 feet east to west facing the road. The area in which the property
under acquisition is situated, was already declared as Industrial Zone surrounded by several
major industries, such as Tamil Nadu Petro Chemicals Ltd., Madras Refineries Ltd., Indian
Adities Ltd., Madras Fertilisers Ltd., etc., Thiruvottiyur Industrial area is very near to the
acquired lands. The heavy factories at Ennore, Manali, Sekkadu, Ernavoor are within the radius
of 3 kms from the acquired land. The acquired land is situated immediate to the Government
poromboke land which is abutting the Ennore Express High Road. There are frequent bus
services to the acquired land and could be reached within 20 minutes from Parrys corner.
The width of the connecting road is 200 feet and on the eastern side there is also a road
called Beach Road which connects the Madras City within 30 minutes by bus. Even before
acquisition nearer to the acquired land, the North Chennai Thermal Power Project scheme
existed. The Indian Oil Corporation Ltd. had proposed to start its unit in that area. A project for
mini port is also under serious consideration. The acquired land is situated in the developed
area, potential for future development is very high. During the year 1985 a property in
survey No.165/1B which is adjacent to the acquired land was sold for a sum of Rs.29,180/- per
cent. In the year 1986 another adjacent property was sold for a sum of Rs.30,167/- per cent
and in the year 1987 the property in survey No.173/6 was sold for a sum of Rs.15,199/- per cent.
In August, 1985 the adjacent property was sold for a sum of Rs.34,603/- per cent in the
same Sathangadu village. To that extent the claimants adduced evidence and marked three
documents originally as Exs.C1 to C3 and after remand 5 documents and proved those
documents. The claimants claimed a compensation at the rate of Rs.30,000/- per cent and
further sum of Rs.2000/- per cent towards compulsory dispossession.
4. The Reference Court by its award dated 20.09.2000 determined the compensation at
Rs.14,356/- per cent by taking document Ex.C.3 as comparable sale and granted Rs.1500/-
per cent towards compulsory dispossession and 12% of the market rate was ordered to be
paid as additional amount. The appellants were also directed to pay 9% interest on additional
compensation. Interest at 15% for total compensation was awarded from 08.04.1989 till the
date of payment and solatium at 30% was awarded. The said award of the Reference Court is
assailed in these appeals by the Special Deputy Collector and the Member Secretary,
Metropolitan Development Authority.
5. Mr.R.Viduthalai, learned Advocate General appearing on behalf of the appellants
contended that (1) the Reference Court, for the purpose of determination of compensation, relied
on a document, Ex.C.3 in which an extent of 1307 sq. ft. has been sold. When a larger chunk of
area has been acquired atleast 30% of the value arrived at on the basis of the smaller extent
document has to be deducted. The Reference Court did not do so. (2) Even the development
charges, which is generally deducted at the rate of Rs.30 to 40 per cent of the market value
has not been deducted in this case. (3) The amount of compensation @ Rs.1500/- per cent
towards compulsory dispossession is uncalled for.
6. On the other hand, Mr.Jermiah, learned counsel appearing for some of the claimants
contended that having regard to the locality in which the acquired lands are situated, there is no
need for deduction. The further fact that Ex.C.3 dated 11.09.1985 was long prior to issuance of
Section 4(1) notification dated 10.09.1987, therefore an yearly appreciation of the value of the
land at the rate of 15% has to be given. If that is taken into account, that would set off the
percentage of deduction applied for larger extent. He further contended that it is not in all
cases of land acquisition certain percentage towards development charges is to be deducted.
When the lands are already developed no such deduction is necessary. In this case, the lands are
regarded as even land by the Land Acquisition Officer, which is evident from the description
of the land situated in the award. Hence, the deduction for development charges need not be
given in this case.
7. Mr. S.V.Jayaraman, learned senior counsel appearing for some of the claimants
submitted that when there are facilities, such as roads and drainage, there need not be any
deduction towards development charges. The purpose of acquisition itself is a factor for
determination of fixing a market value. The purpose of acquisition of the land in question is
for formation of Iron and Steel Hardware Market by the Madras Metropolitan Development
Authority. The land under acquisition being already a developed one, there is no necessity to
deduct any amount from the compensation awarded by the Reference Court.
8. We heard the learned counsel on either side and perused the materials available on
record.
9. From the rival contentions, the point for consideration in these appeals could be
summarized as follows:
1. Whether the rate accepted on the basis of the sale consideration of small part of
the land would be useful guidance for determination of the market value or does
it require certain percentage of deduction?
2. Having regard to the facts that the land has been declared as an industrial area, is
it necessary to deduct development charges? If so, what is the percentage?
Alternatively, can the land under acquisition be regarded as a developed land as
contended by the respondents/ claimants?
3. Whether the compensation at the rate of Rs.1500/- per cent for compulsory
acquisition is warranted in this case?
10. Before adverting to the points raised above for consideration, we could conclude that
the appellant did not dispute that Ex.C.3 is comparable document for determination of the
compensation. It is also manifest from the fact that the land covered under Ex.C.3 document and
the lands which are under acquisition are having same potential value and very nearer to each
other. Presumably that might be the reason the appellant has not argued that Ex.C.3 cannot be
regarded as comparable document. Now, we will consider the first question whether the sale
consideration of the small plot could be regarded as a safe criteria for determination of
compensation.
11. It is very well settled proposition where large area of land is the subject matter of
acquisition, the rate at which small plots are sold cannot be said to be a safe criteria. Useful
reference can be had to the decisions of the Supreme Court in The Collector of Lakhimpur
v. Bhuban Chandra Dutta, AIR 1971 SC 2015, Prithvi Raj Taneja (dead) by L.Rs. v. The State
of Madhya Pradesh, AIR 1977 SC 1560 and Kausalya Devi Bogra v. LAO, Aurangabad, AIR
1984 SC 892.
12. However, it cannot be laid down as an absolute proposition that the rates fixed for
small plots could not be the basis for fixation of the rate. In cases where there is no other
material available for determination of the compensation, it is open to the Land Acquisition
Officer or the Reference Court to compare the price paid for small plot of land. However, in
such cases, necessary deduction or adjustments have to be made while determining the price.
Under Ex.C3 an extent of 1307 sq. ft. of land has been sold for a sum of Rs.43,366/-. On
that basis, the value for a cent of land has been arrived at Rs.14,356/-. The extent of acquired land
is Rs.20.50 acres (892980 sq. ft. only) (1 acre = 43560 sq.ft.), which is nearly 686 times over
and above the extent of land covered under Ex.C3. When the extent is so large, one cannot
expect that the willing purchasers would purchase the land for the price a lesser extent was sold.
Even the seller would reduce the price when the extent is so large. Hence, having regard to
the largeness of extent covered under the acquisition proceedings, 30% deduction would
balance the interest of both the parties, in our considered view. Vide Prithvi Raj Taneja
(dead) by L.Rs. v. The State of Madhya Pradesh, AIR 1977 SC 1560 and Kausalya Devi
Bogra v. LAO, Aurangabad, AIR 1984 SC 892.
13. On behalf of the claimants, it was contended by Mr.Jermiah that Ex.C3 is dated
21.09.1983 whereas 4(1) notification was dated 10.09.1987. The acquired land is within the
metropolitan development area. The value of the land would always increase year by year and
within a period of four years between the date of Ex.C.3 and Section 4(1) notification, the value
of the land would have been escalated several manifold. That has not been taken into
consideration. To support his contention, he relied on the decision of a Division Bench of this
Court in the case of The Special Tahsildar, Adi Dravidar Welfare, Sivagangai v. Muthu
Konar, 2004 (5) CTC 56, in which the Division Bench has observed that in fixation of the rate
of compensation under the Land Acquisition Act, there is always some element of guess work,
but that has to be based on some foundation. It must spring from the totality of evidence, the
pattern of rate, the pattern of escalation and escalation of price in the years preceding and
succeeding the Section 4(1) notification. After so observing, the Division Bench added 15%
appreciation of value per year. In this case under Ex.C-3 dated 21.09.1983, an extent of 1307
sq. ft. of land has been sold for a sum of Rs.43,366/-. On that basis, the value for a cent of land
has been arrived at Rs.14,356/-. Under Ex.C.1 dated 23.05.1984 an extent of 598 sq. ft., has
been sold for Rs.13,200/-. The value of one cent works out to Rs.9,535/-. Under Ex.C2 dated
24.05.1985 an extent of 2000 sq. ft. was sold for Rs.48,000/-, which works out to Rs.10,368/-
per cent. Under Ex.C8 dated 27.08.1987 and extent of 600 sq. ft. has been sold at
Rs.35,000/- which works out to Rs.25,199 per cent. Though there is fluctuation during the
period between Ex.C3 and Ex.C1 documents, considering Exs.C2 and C8, the value of the
land has gradually been escalating year by year and from the period from 1983 to 1987
escalation is 30%. Ex.C3 sale deed, which is taken as comparable document is dated
21.09.1983, whereas Section 4(1) notification was issued on 10.09.1987. So, on that basis, we
can safely conclude that the escalation could be 30% for 4 years from 1983 to 1987. The 30%
deduction to be made in the value of the land arrived at on the basis of Ex.C3 for largeness of
the area acquired thus gets set off by the 30% of escalation of price granted by us.
14. Now, coming to the second issue as to the deduction of development charges, the
deduction towards development charges also could not be fixed in a straight jacket formula. It
would also depend upon various factors involved in respect of each case. In respect of the
undeveloped land which has a potential value for commercial purposes, normally 1/3rd
amount of compensation would be deducted subject to certain variations depending on its nature,
location, extent of expenditure involved for development and the area required for roads and
other civic amenities to develop the land suitable for required purpose. The land may be
plain or uneven, the soil of the land may be soft or hard bearing on the foundation for the
purpose of making construction. May be the land is situated in the midst of the developed area
all around, but that land may have a hillock or lose soil may be low lying or may be having deep
ditches. So, the amount of expenses that may be incurred in developing the area also varies.
The claimant who claimed that his land is fully developed and nothing more is required for
development must show on the basis of the evidence that it is such a land and it is so located. In
the absence of such an evidence merely saying that the area adjoining his land is a developed
area, is not enough. Even if smaller portion of the land is abutting the main road in the
developed area, it does not give the land the character of developed area. In the present case, it
is admitted that one portion in the northern side is abutting the main road and in respect of
the remaining large area planned development is required for laying of internal roads, drainage,
sewer, water, electricity lines and other civic amenities. It is on evidence that the land is
surrounded by factories, heavy industries. This factum has also been admitted by R.Ws.1 and
2 in their evidence. The purpose for which the land was acquired was also for industrial
purpose, for the formation of iron and steel hardware market. There is also frontage available to
the main road.
15. Having regard to the position of availability of amenities around the acquired land and
the further requirement is only making provision for water, electricity lines and other civic
amenities, laying of internal roads, drainage, etc., we are of the considered view that 30% of
the value could be deducted towards development expenses. Vide Ravinder Narain v. Union of
India, (2003) 4 SCC 481 and Viluben Jhalejar Contractor (dead) by L.Rs. v. State of Gujarat,
(2005) 4 SCC 789, and Lucknow Development Authority v. Krishna Gopal Lahoti, Civil
Appeal No.5112/2007 dated 02.11.2007.
16. The third issue is award of Rs.1500/- per cent for compulsory dispossession. On the
face of it, we are not able to sustain the above award, as the same would not come within any
one of the factors incorporated under Section 23 of the Land Acquisition Act. No evidence has
been let in that the acquisition of the land is seriously affecting the claimant’s other property or
the claimants are compelled to change their residence and place of business or the acquisition
proceedings severed the acquired land from other lands of the claimants.
17. Learned counsel for the claimants has not very seriously argued for sustaining this
component of the award and as a matter of fact Mr.Jermiah, learned counsel who led the
argument on behalf of the claimants, admitted across the bar that the compensation awarded
at the rate of Rs.1500/- per cent for compulsory dispossession cannot be legally sustained.
Hence, that part of the award is set aside.
18. For the foregoing reasons, the impugned award stands modified to the extent that (1)
30% for development charges has to be deducted from the compensation; (2) The award of
Rs.1500/- per cent granted in the award of the Reference Court is set aside.
19. In the result, the appeals are allowed to the extent indicated above. No costs.
Appeals allowed.
[2008 (1) T.N.C.J. 383 (Mad)]

MADRAS HIGH COURT
BEFORE :
K. RAVIRAJA PANDIAN AND
MRS. CHITRA VENKATARAMAN, JJ.
M/S. TAMIL NADU SMALL INDUSTRIES CORPORATION
REP.BY ITS GENERAL MANAGER ...Appellant
Versus
M/S. SOUTHERN RAILWAY REP. BY ITS CHIEF
ELECTRICAL ENGINEER AND OTHERS ...Respondents
[O.S.A. No. 285 of 2003, decided on 7 December, 2007]
th
(A) Contract Act, 1872—Section 28, Explanation 2—Applicability of—Applicable

only in respect of agreements in restraint of legal proceedings.
(Para 9)
(B) Arbitration Act, 1940—Sections 14, 17 and 30—Award—Relief sought to set
aside the same rejecting a portion of claim of interest—Legality of—Arbitrator has power
to award interest so long as there was prohibition in the agreement for grant of interest—
Arbitrator being a creature of the agreement between the parties has to operate within the
four corners of the agreement—And if he ignores the specific terms of the contract it would
be a question of jurisdictional error falling within the ambit of legal mis-conduct—In view
of prohibition clause contained in the agreement, the appellant could not claim interest.
(Paras 5, 8, 14 and 15)
Case law.—(2001) 2 SCC 721; AIR 1986 SC 1571; 2007 (5) CTC 17; 2007 (1) MLJ 73.
Counsel.—Mr. G.R. Lakshmanan, for the appellant; Mr. V.G. Sureshkumar (R1), for the
respondents.
Important Point
Arbitrator has power to award interest so long as there was prohibition in the agreement
for grant of interest.
JUDGMENT
K. RAVIRAJA PANDIAN, J.—This appeal is filed by the Tamil Nadu Small Industries
Corporation represented by its General Manager against the order dated 30.4.2002 passed by the
learned Single Judge in O.P.No.605 of 1991.
2. The O.P. was filed by the appellant against the respondents under Sections 14, 17 and
30 of the Arbitration Act, 1940 seeking for the reliefs of setting aside the award of rejecting a
portion of the claim made by the appellant for a sum of Rs.2,24,083.50ps, to direct the
respondent to pay the appellant Corporation the interest claimed by the appellant and to direct
respondents 2 and 3 to file the award dated 2.4.1990 passed by them into Court.
3. The facts required for disposal of the appeal are as follows:
The appellant entered into a structural contract with the first respondent for the
contracted amount of Rs.14.55 lakhs to be completed within a period of eighteen months. On
22.11.1997 the agreement was entered into. As number of difficulties experienced, the work
could not be completed within the stipulated period of eighteen months. At the instance of
the appellant, the period was extended thrice. The work was completed on 31.3.1990 prior to the
expiry of the last extended period. The appellant submitted a bill for a sum of
Rs.8,54,850.54ps. However, the first respondent demanded certain extra expenditure incurred by
it besides calling upon the appellant to pay the loss sustained because of the delayed completion
of work. Thus a dispute arose between the parties. The appellant claimed a sum of
Rs.8,54,851/- towards work done by it and a sum of Rs.13,57,000/- towards interest on
Rs.8,54,851/- at 18% from the date of award till the date of payment of the said amount. The
arbitrator has awarded a sum of Rs.6,29,433/- out of the claim of Rs.8,53,521/- towards work
done by the appellant, however negatived the claim of interest sought for by the appellant.
4. The appellant herein, as stated in the summation of facts, filed O.P. claiming the
balance sum of Rs.2,24,083.50ps in respect of the first claim and interest over it at the rate of 18
per cent. The learned single Judge after taking into consideration of the arguments advanced and
material made available before him dismissed the original petition. The correctness of the same
is put in issue before us in this appeal.
5. Mr.G.R.Lakshmanan, learned counsel appearing for the appellant has submitted
that the amount as awarded by the arbitrator towards work done in a sum of Rs.6,29,433/- has
already been paid over to the appellant and in respect of balance amount it is not seriously
disputed by the appellant. Thus, the dispute in this case is as to the entitlement of the
appellant for interest. He relied on Section 28 of the Indian Contract Act, 1872 to contend that
an agreement is void to the extent which restricts a party from enforcing his rights under or in
respect of any contract, by the usual legal proceedings in the ordinary tribunals, or which
limits the time within which he may thus enforce his right or which extinguishes the rights of
any party thereto, or discharges any party thereto from any liability, under or in respect of any
contract on the expiry of a specified period so as to restrict any party from enforcing his rights.
He further contends that the appellant is entitled to interest notwithstanding the fact that there is
prohibition in the terms of the agreement. He further contended that the appellant was not equal
in the bargaining capacity. Hence, the contract was entered into with the prohibition clause for
payment of interest. He relied on the decisions of the Supreme Court in Central Inland Water
Transport Corporation Limited v. Brojo Nath, AIR 1986 SC 1571; Sree Kamatchi Amman
Constructions v. The Divisional Railway Manager-Works, Palghat Division, Southern
Railway, Palghat, Kerala, 2007(5) CTC 17 and Executive Engineer, Dhenkanal Minor
Irrigation Division, Orissa and others v. N.C.Budharaj, (2001) 2 SCC 721 to contend that
the order of the arbitrators as well as the learned single Judge non-suiting the appellant for
the relief of interest are not sustainable.
6. However, the learned counsel appearing for the first respondent Railways has argued for
sustaining the award as well as the order passed by the learned single Judge.
7. We heard the learned counsel on either side and perused the materials on record.
8. The arbitrators as well as the learned single Judge have negatived the claim of
interest on the ground that the General Conditions of Contract for Civil Engineering
Works of Southern Railway, which is indisputably applicable to the contract under
consideration and specifically stipulated that no interest would be payable upon the earnest
money or the security deposit or amounts payable to the contractor under the contract. In view of
prohibition clause contained in the agreement, the appellant could not claim interest.
9. We are of the view that Section 28 of the Contract Act or for that matter Explanation 2
to that section with which reliance has been made by the learned counsel for the appellant cannot
be made applicable to the facts of the present case, because the said section would be applicable
only in respect of agreements in restraint of legal proceedings as it is manifest from the
marginal heading of the said section, which reads “Agreements in restraint of legal
proceedings, void”. Section 23 of the Contract Act prohibits the agreements, which have, for
their object of restraining of independence from enjoying the fundamental right of resorting to
Court of law for redressal of relief. The agreement did not restrain the contractor from taking
legal recourse or compelled him to have his right to take legal remedy. The dispute in the
present case is based on agreement entered into between the parties consciously accepting to
the terms and conditions contained therein. The consideration agreed upon for the work done by
the appellant and the entitlement or otherwise of interest over the consideration are all
contractual part and simple and based on the terms mutually agreed by the parties. The dispute is
with regard to the contractual terms contained in the agreement and not with regard to
restrainment of legal proceedings. The appellant has not been compelled or coerced to
enter into the agreement forbearing him from enforcing his legal right claiming interest. So
is the 2nd Explanation appended to the Section. Hence the contention is rejected.
10. The case of Central Inland Water Transport Corporation Limited v. Brojo Nath,
(AIR 1986 SC 1571) relied on by the learned counsel for the appellant, the appellant Company
was carrying on the business of maintenance and running of river services entered into a
scheme of Arrangement with the Central Inland Water Transport Corporation Limited, a
Government Company owned by Central Government and two State Governments. The Scheme
was approved of, and the company was dissolved by the order of the High Court. The officers
of the Company had no real choice when they accepted the job with the Corporation as, in the
alternative, they would have received a meagre sum by way of compensation and would have
been required to search for alternative jobs. They had no real choice when the rules were framed
by the corporation for the officers as refusal to accept the rules would have resulted in
termination of their services. A sub-clause in a rule provided for termination of services of the
officers by giving three months’ notice. The clause in the rule was struck down by the
High Court and approved by the Supreme Court by observing that considering the inequality
in the bargaining power of the parties the clause in the contract of employment was void
under Section 23 of the Contract Act as opposed to public policy, besides being ultra vires
Article 14.
11. The said decision was based on totally different facts and rest on totally different
circumstances. A service rule framed by a State to the detriment of the employee could not at
any stretch of imagination be regarded and equated with terms of the voluntary agreement
entered into by the parties in commercial contract. If the terms of the contract were not
agreeable to the appellant, the appellant would have refrained from entering into the agreement. It
is not the case of the appellant that if he did not enter into the agreement he would be
blacklisted once and for all thereby driven out of his avocation. At no stretch of imagination,
the above judgment of the Supreme Court is made applicable to the facts of the present case.
12. In the case of Sree Kamatchi Amman Constructions v. The Divisional Railway
Manager-Works, Palghat Division, Southern Railway, Palghat, Kerala, 2007(5) CTC 17, this
Court has considered the case of Railways contract under the provisions of the Arbitration and
Conciliation Act, 1996, wherein it was held thus:
“68. In the instant case before us, Arbitrators have found that the claimant is not
entitled to interest for the pre-reference period. If we are to embark upon
enquiry as to the applicability of Cl.16(2) GCC, we would be required to probe
into the matter in which the Arbitrators have construed the contract. In our
opinion, while the Arbitrators have concluded not to award interest, that
conclusion cannot be interfered with. Even assuming, if such conclusion not
awarding interest is erroneous, it could only be an error within the
jurisdiction of the Arbitrators and the same cannot be interfered with. If we
do so, we would be exercising jurisdiction beyond that is vested under
Section 34 of AC Act, 1996.”
The above observation of the Judgment instead of supporting the case of the appellant
rather strengthen the case of the respondents.
13. The other judgment of the Supreme Court relied on by the learned counsel for the
appellant is Executive Engineer, Dhenkanal Minor Irrigation Division, Orissa and others v.
N.C. Budharaj, (2001) 2 SCC 721, the Supreme Court held as follows:
“25. .... By agreeing to have settlement of disputes through arbitration, the party
concerned must be understood to have only opted for a different forum of
adjudication with less cumbersome procedure, delay and expense and not to
abandon all or any of his substantive rights under the various laws in force,
according to which only even the Arbitrator is obliged to adjudicate the claims
referred to him. As long as there is nothing in the arbitration agreement to
exclude the jurisdiction of the Arbitrator to entertain a claim for interest on
the amounts due under the contract, or any prohibition to claim interest on the
amounts due and become payable under the contract, the jurisdiction of the
Arbitrator to consider and award interest in respect of all periods subject only to
Section 29 of the Arbitration Act, 1940 and that too the powers of the Court
thereunder, has to be upheld. .......
26. For all the reasons stated above, we answer the reference by holding that the
Arbitrator appointed with or without the intervention of the Court, has
jurisdiction to award interest, on the sums found due and payable, for the
pre-reference period, in the absence of any specific stipulation or prohibition
in the contract to claim or grant any such interest. The decision in Jena’s case,
1988 (1) SCC 418, taking a contra view does not lay down the correct
position and stands overruled, prospectively, .....”
(emphasis supplied)
The Apex Court in the above judgment held that the Arbitrator has power to award
interest so long as there was prohibition in the agreement for grant of interest.
14. Section 30 of the Act X of 1940 was restrictive in its operation. The Section mandated
that the award of the Arbitrator shall not be set aside excepting for the reasons that the
Arbitrator has misdirected himself or the award has been made after supersession of the
arbitration or the proceedings becoming invalid. It is well settled that the Arbitrator being a
creature of the agreement between the parties has to operate within the four corners of the
agreement and if he ignores the specific terms of the contract it would be a question of
jurisdictional error falling within the ambit of legal misconduct. The arbitrator cannot award the
claim contrary to the unambiguous and express terms of the contract. [vide Food Corporation
of India v. Chandu Construction and another, 2007 (4) MLJ 73 (SC)].
15. For the reasoning aforesaid and in the light of the exposition of law by the
Constitution Bench of the Supreme Court reported in (2001) 2 SCC 721, we are not able to
concur with the contention of the appellant. The Original Side Appeal is dismissed. However,
there is no order as to costs.
Appeal dismissed.
[2008 (1) T.N.C.J. 389 (Mad)]

MADRAS HIGH COURT
BEFORE :
M. VENUGOPAL, J.
M/S.T. V. SUNDARAM IYENGAR AND SONS LTD. ...Petitioner
Versus
S. RAGHUNATHAN ...Respondent
[C. R. P. (N.P.D) No.704 of 2004, decided on 10 December, 2007]
th
Limitation Act, 1963—Section 5—Civil Procedure Code, 1908—Order IX, Rule 13—
Delay of 539 days—In moving application to set aside the ex parte decree passed due to non-
filing of written statement—Condonation of—Dismissal of application as has been filed with
a view to delay the execution proceedings—Legality of—Held—Rules of limitation are not
meant to destroy the rights of the parties—And they are meant to see that the parties did
not resort to dilatory tactics—Refusal to condone delay can result in a meritorious matter
being thrown out at the nascent stage and cause of justice being defeated—Term
“Sufficient cause” must be viewed liberally—Taking liberal view the reasons shown for
condonation of delay of 539 days is sufficient—Revision petition allowed.
(Paras 6 to 8)
Case law.—(1998) 7 SCC 123—referred.
Counsel.—Mr. Satish Parasaran for the petitioner; Mr.V. Nicholas for the respondent.
Important point
In absence of any thing showing mala fide or deliberate delay as a dilatory tactic, Court
should normally condone the delay.
JUDGMENT
M. VENUGOPAL, J.—The civil revision petitioner herein is the applicant in I.A.No.184
of 2003 and the second defendant in the suit O.S.No.558 of 1999 on the file of the learned
Additional Subordinate Judge, Salem. The civil revision petitioner has filed an Interlocutory
Application No. 184 of 2003 praying to condone the delay of 539 days in filing the application
to set aside the ex parte decree passed against the revision petitioner on 10.07.2001, under
Section 5 of the Limitation Act. In the said application, the revision petitioner/applicant/second
defendant has inter-alia stated that for non-filing of written statement, the revision
petitioner/applicant/second defendant was set ex parte and that ex parte decree was passed on
10.07.2001 and the then Advocate for the civil revision petitioner /applicant/second defendant
did not inform the factum of ex parte decree to the revision petitioner and only when the
civil revision petitioner received the execution notice, the civil revision petitioner came to
know about the passing of ex parte decree.
2. In the counter filed by the respondent/plaintiff, it is stated that the revision
petitioner/applicant/second defendant has not filed the written statement along with the
application to set aside the ex parte decree and that the applicant has to explain the delay of
each and every day and that the revision petitioner/ applicant/second defendant ought to have
been diligent in defending the suit and that there is no bona fide or merit in the application,
which has been filed only to drag on the proceedings and therefore prayed for dismissal of the
said application.
3. The learned Additional Subordinate Judge, Salem in his order dated 04.12.2003 passed
in I.A.No.184 of 2003 in O.S.No. 558 of 1999 has observed that each and every day delay was
not explained by the applicant and only to defeat the execution proceedings and with a view to
delay the proceedings, the present application has been filed and finally dismissed the
application.
4. As against the said order passed by the learned Additional Subordinate Judge, Salem
dated 04.12.2003 in I.A.No.184 of 2003 in O.S.No.558 of 1999, the present civil revision
petition has been preferred by the Civil Revision Petitioner/applicant/second defendant.
5. The learned counsel for the civil revision petitioner contends that it was due to the
mistake of the Advocate in not properly advising the civil revision
petitioner/applicant/second defendant, the written statement was not filed before the lower Court
and that in the said I.A.No.184 of 2003 in O.S.No.558 of 1999, the civil revision
petitioner/applicant/second defendant has shown sufficient cause and therefore, prays for
allowing the civil revision petition.
6. It is an admitted fact that there is a delay of 539 days in filing the I.A.No.184 of 2003 in
O.S.No.558 of 1999 to set aside the ex parte decree. The learned counsel for the civil revision
petitioner pressed into service the decision reported in (1998) 7 SCC 123 (N. Balakrishnan v.
M. Krishnamurthy), wherein it is observed as follows :
“A. Limitation Act, 1963 – Section 5–condonation of delay- Discretion of Court -
How to exercise - Guidelines stated - Words “sufficient cause” should be construed
liberally - Acceptability of explanation for the delay is the sole criterion, length of
delay not relevant - In absence of anything showing mala fide or deliberate delay as a
dilatory tactic, Court should normally condone the delay - However, while doing so
Court should also keep in mind the consequent litigation expenses to be incurred
by the opposite party and should compensate him accordingly - Where a Court
condones delay in positive exercise of discretion, superior Court and more particularly
the revisional Court should not normally disturb the same - But where request for
condonation of delay is refused, it would be open to the superior Court to come to its
own finding on the basis of explanation for the delay given by the party delay on the
part of defendant–appellant of 883 days in approaching the Court against dismissal of
his application to set aside ex parte decree passed against him - Non-action on the
part of his advocate explained as cause for the delay - Appellant also complaining
about conduct of the advocate before Consumer Forum and getting Rs.50,000/- as
compensation - Appellant’s explanation for the delay accepted and delay condoned by
trial Court - But in revision High Court setting aside the order of trial Court on
ground that appellant was negligent and was not careful enough to meet the advocate
to verify the stage of the proceedings for a long time - Held, High Court in revision
erred in interfering with the exercise of jurisdiction by trial Court in condoning the
delay when appellant’s conduct did not as a whole warrant castigating him as an
irresponsible litigant having regard to present busy and preoccupied life.”
In the aforesaid decision, it is held that “Rules of limitation are not meant to destroy
the rights of the parties and they are meant to see that the parties did not resort to
dilatory tactics, but seek their remedy promptly and the object of providing a legal
remedy is to repair the damage caused by reason of legal injury.”
7. It is pertinent to point out that generally a party does not stand to benefit by filing an
application late and refusing to condone the delay can result in a meritorious matter being
thrown out at the nascent stage and cause of justice being defeated. As against this, the
highest that can happen is that a cause would be decided on merits after hearing the litigants.
A pedantic approach should not be made by the Court of law while dealing with the
condonation of delay matters. On the other hand, the Courts of law are to adopt a pragmatic
approach. In this connection, it is not out of place to make a mention that when substantial
justice and technical consideration are pitted against each other, cause of substantial justice
deserves to be preferred for the other side cannot claim any vested right in unjustice being done
because of non deliberate delay. As a matter of fact, a party does not stand the benefit by
resorting to delay. Per contra, he runs a serious risk. It cannot be gainsaid that judiciary is
respected not on account of its power to legalise injustice on technical grounds but because it
is capable of removing injustice and is expected to do so.
8. As far as the present case is concerned, this Court is of the considered opinion that
the term ‘sufficient cause’, must be viewed liberally and taking a liberal view in the matter,
this Court is satisfied with the reason furnished in I.A.No.184 of 2003 in O.S.No.558 of 1999
for the condonation of delay of 539 days and allows the civil revision petition with a direction
that the civil revision petitioner shall remit a sum of Rs.600/- (Rupees six hundred only) to the
Tamil Nadu Mediation and Conciliation Centre, Chennai, within two weeks from the date of
this order and produce a receipt before the Registrar General, High Court, Madras, failing
which the civil revision petition will stand dismissed automatically without any further reference.
However, there shall be no orders as to costs.
Petition allowed.
[2008 (1) T.N.C.J. 392 (Mad)]

MADRAS HIGH COURT
BEFORE :
M. VENUGOPAL, J.
M/S. SUNDARAM MOTORS ...Petitioner
Versus
B. LALITHA ...Respondent
[C. R. P. (N.P.D) No.1757 of 2007 and C.M.P. No. 18438 of 2003, decided on 17 December,
th
2007]
Civil Procedure Code, 1908—Section 151 read with Order XXXVII, Rules 3 and 5—
Unconditional leave to defend the suit—Application for—Dismissed with costs—Revision
against interlocutory order refusing leave to defend partakes the form of judgment—
And only a regular and substantive appeal can be filed against said interlocutory order—
Revision is not per se maintainable—Dismissed.
(Para 13)
Case law.—1998 (II) CTC 382; 2001 (4) CTC 178; 2006 (3) CTC 583; 2003 (II) CPJ 176
(NC); 2003 AIHCC 1542; AIR 2004 Delhi 219; (2003) 6 SCC 659.
Counsel.—Mr. A. Devanathan for the petitioner; None for the respondent.
Important point
Interlocutory order refusing leave to defend partakes the form of judgment and only a
regular and substantive appeal can be filed against the said interlocutory order. Revision is not
per se maintainable.
JUDGMENT
M. VENUGOPAL, J.—The civil revision petitioner is the first defendant in O.S.No.3597 of
2000 on the file of the learned XIV Assistant Judge, City Civil Court, Chennai. The civil revision
petitioner herein has filed an I.A.No.21928 of 2000 before the trial Court as petitioner under
Order XXXVII, Rule 3(5) of C.P.C. and under Section 151, C.P.C. praying to permit him to
defend the suit and filed a written statement in due course. The respondent/plaintiff filed a
counter stating that the application is not maintainable in law and that the applicant/first
defendant has no triable issues to defend the suit as contemplated under Order XXXVII, Rule 5,
C.P.C. and that the amounts were collected by the applicant/first defendant as trustee and the
amounts were handed over only to him for due performance and the drafts were taken according
to the instructions given by the applicant at the time of booking and that the applicant acted on
behalf of the second defendant as booking agent and hence, both are jointly and severally liable
for due repayment and prayed for dismissal of the said application.
2. The learned XIV Assistant Judge, City Civil Court, Chennai has passed order in
I.A.No.21928 of 2000 on 11.09.2001 observing that the applicant/first defendant has no triable
issues and that the applicant is not eligible to seek unconditional leave to defend the suit and
dismissed the said application with costs.
3. The learned counsel for the revision petitioner/first defendant/applicant contends that
the order passed in I.A.No.21928 of 2000 dated 11.09.2001 is erroneous in law and that the Court
below failed to see that the suit for refund of car booking advance paid by the respondent/
plaintiff directly to the second defendant is not maintainable as against the civil revision
petitioner/first defendant/applicant and that no cause of action arose for the respondent/plaintiff
as against the revision petitioner/first defendant/applicant since no amount is due from the
revision petitioner/first defendant/applicant to the respondent/plaintiff.
4. It is the further case of the revision petitioner/first defendant/applicant that at the time of
car booking advance contract (not produced by the respondent/plaintiff) between the
respondent/plaintiff and the second defendant clearly mentioned for refund of car booking
advance by the second defendant alone in case of cancellation and not by the revision
petitioner/first defendant and this fact was not properly appreciated by the Court below and that
the revision petitioner/first defendant/applicant was nowhere in the picture and whether the suit is
maintainable against the revision petitioner/first defendant/applicant raises a triable issue and the
revision petitioner/first defendant/applicant has a genuine and valid defence and in this
background, the Court below ought to have granted leave to the civil revision petitioner/first
defendant and therefore, the order passed by the Court below in I.A.No.21928 of 2000 dated
11.09.2001 is liable to be set aside.
5. The learned counsel for the revision petitioner relied on the decision Sunil Enterprises
and another v. SBI Commercial and International Bank Ltd., 1998 (II) CTC 382, wherein it is
observed as follows:—
“Code of Civil Procedure, 1908, Order XXXVII, Rule 3(5)— Summary suit—Leave
to defend—Suit filed based on Bills of Exchange which were accepted by appellants—
Summary suit filed by Bank—Bank paid out large amounts of Bills of Exchange
accepted by party who has already defaulted—Some of the Bills of Exchange were mere
secondary documents—Defence raised by appellants is not moonshine or illusory—
Appellants have prima facie case—Unconditional leave granted to defendant to defend
suit.”
6. The learned counsel for the petitioner cited the decision between N. Prabakaran v.
Manager Citibank N.A., 766, Anna Salai, Chennai-600 002, 2001(4) CTC 178, wherein it is held
as follows:—
“Code of Civil Procedure, 1908, Order XXXVII, Rule 4—Grant of leave to defend in
summary suit—Principles governing such leave—Defendant in summary suit for
recovery of money filed petition pleading discharge of total loan amount and relied on 2
letters to prove discharge—Defendant who seeks leave to defend is not bound to prove
his case at time of consideration of grant of leave—Court should find whether defendant
has raised triable issues and whether defence is not sham or illusory—If defendant is able
to demonstrate that liability was discharged and documents relied on by plaintiff was
found to be forged after trial suit is bound to be dismissed—Triable issue is one which is
proved at time of trial would result in dismissal of suit and leave to defendant has to
be granted—Order of trial Court granting conditional leave on payment of Rs.2 lakhs set
aside and unconditional leave is granted.”
7. The learned counsel for the revision petitioner pressed into service the decision 2006(3)
CTC 583 at page No.584 between Life Insurance Corporation of India and another v. Smt. S.
Sindhu, 2006(3) CTC 583 at page No.584, wherein it is observed that ‘Courts and Tribunals
cannot re-write contracts and direct payment of money contrary to terms of contract’.
8.On the side of the revision petitioner, the decision between T.V.Sundaram Iyengar &
Sons Ltd. v. Dr. Muthuswamy Duraiswamy & another, 2003(II) CPJ 176(NC), is relied on and
the same runs as follows:—
“Consumer Protection Act, 1986—Section 21(b)—Motor Vehicles—Refund—Liability
of dealer—Failure to deliver vehicle—Refund of booking amount claimed—Complaint
against manufacturer dismissed by Forum—Hence appeal—State Commission held,
manufacturer and dealer jointly and severally liable to refund deposited amount—Hence
Revision—Consumer Forum has no jurisdiction to strike down a condition in contract—
Specific terms of contract, manufacturer liable to refund the money with interest—Dealer
not liable for non-refund of amount by manufacturer, not jointly and severally liable—
Order set aside—Manufacturer committed breach of agreement, liable to refund the
amount with interest—Cost awarded.”
9. In 2003 AIHC 1542, Rajabhau Mahadeorao Rahate v. Dinkar Shantaram Ingole, on the
interpretation of Section 115, Civil Procedure Code as amended in 1999, it was held as follows:
—
“(i) The provisions of Section 115 as amended with effect from 1st July, 2002 are
applicable from that date to all proceedings pending in High Court under Section 115
of the C.P.C.
(ii) There is no right in a litigant to move an application under Section 115 of the C.P.C.
for exercise of the jurisdiction mentioned therein.
(iii) That it being not a right, there is no question of it being saved by recourse to
provisions of Section 6 of the General Clauses Act, 1897.
(iv) The provisions of Section 32(2)(i) of the Amendment Act of 1999 do not either by
direct legislation or by necessary implication save any such proceedings from being
affected by the amendment with effect from 01.07.2002.
(v) As a consequence of the above, all revision application, whether pending as on 1st
July, 2002 or filed thereafter, will have to be dealt with strictly in accordance with the
provisions of Section 115 of the C.P.C. with effect from 1st July, 2002.
(vi) As a further consequence thereof, no revision application against an interlocutory
order will be entertainable even if the order is made prior to 1st July, 2002 as moving
High Court under Section 115 is held not to be a right.”
10. In AIR 2004 Delhi 219, V.S. Saini and another v. D.C.M. Ltd., it is observed as
follows:—
“(A) C.P.C. (5 of 1908), Order XXXVII, Rule 3(6) Section 96— Summary suit—
Refusal to grant leave—Order whether appealable—Rule 3(6) specifically stipulates that
if leave to defend suit is refused plaintiff shall be entitled to judgment—Thus
interlocutory order refusing leave to defend partakes form of judgment, thereby making it
vulnerable to assault only through substantive and regular appeal—Thus defendant can
avail second opportunity to present its defence by filing an appeal.”
11. In (2003) 6 SCC 659, Shiv Sakthi Co-op. Housing Society, Nagpur v. Swaraj
Developers, it is held that ‘the amendments are procedural in character and are therefore to be
applied to all proceedings that have to be decided’. To put it differently, the amendments have
retrospective applicability in the considered opinion of this Court.
12. In view of the amendments made to Section 115 of the Civil Procedure Code, a
revision can no longer be filed on the basis that the order, if allowed to stand, would result in
failure of justice or cause irreparable injury.
13. In that view of the matter, without going into the merits of the case, this Court comes
to the conclusion that the revision is not per se maintainable and this Court opines that the
interlocutory order refusing leave to defend partakes the form of judgment and only a regular and
substantive appeal can be filed against the said interlocutory order dated 11.09.2001, if so
aggrieved and that the civil revision petitioner/first defendant/applicant will have to pay
necessary court fee in appeal and in that view of the matter, the civil revision Petition is
dismissed. In the circumstances of the case, the parties are directed to bear their own costs. The
connected miscellaneous petition is closed.
Revision petition dismissed.
[2008 (1) T.N.C.J. 396 (Mad)]

MADRAS HIGH COURT
BEFORE :
A. C. ARUMUGAPERUMAL ADITYAN, J.
HAJI M. A. AHMAD SADAKATHULLAH MARAICAIR ...Petitioner
Versus
A. MOHIDEEN ABDUL KHADAR AND OTHERS ...Respondents
[C. R. P. (N.P.D.) No.2490 of 2004 and C.M.P. No.18729 of 2004, decided on 5 December,
th
2007]
Civil Procedure Code, 1908—Section 151 read with Order VI, Rule 17—Scope of—
Partition suit—Preliminary decree passed—Final decree proceedings initiated—
Application to amend the share in the preliminary decree as 12/60 instead of 10/60 after the
death of mother—Final decree is yet to be passed—Remedy open is to file a petition for
passing another preliminary decree declaring share along with other plaintiff’s share and
then to proceed with the final decree proceedings—Impugned order unsustainable—Set
aside—Revision allowed—Liberty given to file necessary application before
concerned Court in accordance with law.
(Paras 2 and 5)
Case law.—AIR 1957 Bom 59; AIR 1967 SC 1470; AIR 1996 Kant 183; (2004) 1 MLJ 91;
AIR 2006 SC 3559; AIR 1972 Mad 384.
Counsel.—Mr. Jemmy Vasanth for the petitioner; Mr. Srinath Sridevan, and Mr. P.
Valliappan, for the respondents 1 and 2 respectively.
Important point
Preliminary decree already passed in partition suit cannot be amended under Order VI,
Rule 17, CPC. The remedy open is to file a petition for passing another preliminary decree
declaring share along with other plaintiff’s share in view of subsequent events and then to
proceed with the final decree proceedings.
JUDGMENT
A.C. ARUMUGAPERUMAL ADITYAN, J.—The third plaintiff in O.S.No. 60 of 1981 on the
file of the Principal Subordinate Judge, Nagapattinam had challenged the order passed in
I.A.No.314 of 2003 in I.A.No.87 of 2002 in O.S.No.60 of 1981. I.A.No.314 of 2003 in
I.A.No.87 of 2002 in O.S.No.60 of 1981 was filed by the 4th plaintiff in O.S.No.60 of 1981. The
plaintiffs have filed the suit in O.S.No.60 of 1981 for partition of the plaint schedule properties.
After passing of the preliminary decree, final decree proceeding was initiated by the plaintiffs
in I.A.No.87 of 2002 in O.S.No.60 of 1981. While the said final decree proceeding is pending
before the Principal Subordinate Judge, Nagapattinam, the 4th plaintiff alone had filed
I.A.No.314 of 2003 under Order VI, Rule 17 of CPC to amend his share in the
preliminary decree as 12/60 instead of 10/60 on the ground that his mother/4th defendant died,
after passing of the preliminary decree in whose favour a preliminary decree for 10/60th share
has been declalred. According to the petitioner/4th plaintiff in I.A.No.314 of 2003, after the
death of his mother, he became entitled to 12/60th share in the suit property as one of the legal
heirs of 4th defendant. The said application has been contested by one of the plaintiffs viz.,
Haji M.A.Ahmed Sadakathullah Maraicair/3rd plaintiff on the ground that the deceased mother
of the 4th plaintiff had executed a settlement deed dated 9.8.1982 conveying 15/60th share in
favour of the third plaintiff. The learned Principal Subordinate Judge, Nagapattinam had
allowed the application filed by the 4 th plaintiff which necessitated the third plaintiff to prefer
this revision.
2. The learned counsel appearing for the second respondent relying on the following
decisions reported in Parashuram Rajaram v. Hirabai Rajaram Tiwari, AIR 1957 Bom 59,
Phoolchand v. Gopal Lal, AIR 1967 SC 1470, Hanumantappa Dyamappa Jadar v. Mallavva,
AIR 1996 Kant 183, Krihnabai v. K.A.Krishnamurthy, (2004)1 MLJ 91 and K.K.Kumar v.
High Court of Gujarat through Registrar, AIR 2006 SC 3559, contended that decree can be
amended under Order VI, Rules 17 and 18 and under Section 151, CPC. I am of the view that
unless a preliminary decree is passed in respect of 12/60th share in favour of the petitioner in
IA.No.314 of 2003/4th plaintiff, the share already declared in the preliminary decree cannot
be amended. It is pertinent to note that there are five plaintiffs to the suit in O.S.No.60 of 1981.
The 4th plaintiff has admitted in I.A.No.314 of 2003 itself that he is one of the heirs of the
deceased 4th respondent Haji Hameed Kathija Nachiar/5th plaintiff in O.S.No.60 of 1981. If it
is so, then the other plaintiffs who are the other sons of 4th respondent Haji Hameed
Kathija Nachiar/5th plaintiff in O.S.No.60 of 1981 are also entitled to an equal share of
12/60th each in the plaint schedule property. I am of the view that unless the petitioner/4th
plaintiff’s share is declared as 12/60 by way of passing of a preliminary decree, the decree
already passed in O.S.No.60 of 1981 cannot be amended under Order VI, Rule 17, CPC. This
settled proposition of law has been reiterated in Phoolchand v. Gopal Lal, AIR 1967 SC
1470, referred to above as follows:
“So far as partition suits are concerned, if an event transpires after the preliminary
decree which necessitates a change in shares, the Court can and should do so; and if
there is a dispute in that behalf, the order of the Court deciding that dispute and
making variation in shares specified in the preliminary decree already passed is a
decree in itself which would be liable to appeal. However, this can only be done so
long as the final decree has not been passed”
Admittedly, in this case also final decree is yet to be passed. The remedy open to the
second respondent is to file a petition for passing another preliminary decree declaring his
share along with other plaintiffs’ share and then to proceed with the final decree proceedings.
3. The learned counsel appearing for the second respondent relying on a decision
reported in Parashuram Rajaram v. Hirabai Rajaram Tiwari, AIR 1957 Bom 59 (V44 C 25
Feb), referred to above, would contend that a preliminary decree in a suit for partition can be
amended. The ratio decidendi in the said suit is that after passing a preliminary decree for
partition, the plaintiff applied to the Court on the ground of his father’s death, his share was
augmented and the share which was 1/8th was increased to 1/7th. The said application was
rejected and in an appeal it was held that the plaintiff would not be required to pay upon the
footing of his augmented share. No question of paying ad valorem court-fees arose. It was only
when a decree was passed in his favour increasing his share from 1/8th to 1/7th the
plaintiff would be called upon to pay the amount of stamp duty upon the difference between
his increased share which was 1/7th and the 1/8th share which was awarded to him by the
preliminary decree.
4. The learned counsel for the second respondent at this juncture relying on a decision
reported in Nanja Naicken v. Rangammal, AIR 1972 Mad 384, and contended that a
preliminary decree can be amended by way of a petition under Order VI, Rule 17, CPC. But
the circumstances under which the application filed under Order VI, Rule 17, CPC in that
case was that while drafting the preliminary decree, the share of the 6th defendant was omitted
to be mentioned in the preliminary decree which was ordered to be rectified by way of a
petition under Order VI, Rule 17 of CPC. So the facts in Nanja Naicken v. Rangammal, AIR
1972 Mad 384, is not applicable to the present facts of the case.
5. In fine, the revision petition is allowed and the order passed in I.A.No.314 of 2003 in
I.A.No.87 of 2002 in O.S.No.60 of 1981 is hereby set aside. The remedy open to the second
respondent/4th plaintiff is to file necessary application, before the said Court wherein the final
decree application in I.A.No.87 of 2002 is pending to declare his share and the shares of the
other plaintiffs for passing another preliminary decree before passing final decree. No costs.
Consequently, connected C.M.P.No.18729 of 2004 is closed.
Petition allowed.
[2008 (1) T.N.C.J. 399 (Mad)]

MADRAS HIGH COURT
BEFORE :
A. KULASEKARAN, J.
S. THIRUGNANASAMBANDAM ...Petitioner
Versus
KALIYAPERUMAL CHETTIAR ...Respondent
[C.R. P. (P.D.) No.1654 of 2006, M.P. No.1 of 2006, decided on 28 November, 2007]
th
(A) Constitution of India, 1950—Article 227—Civil Procedure Code 1908—Order

VIII, Rule 6—Counter claim—Leave sought to file suit for specific performance based on
the agreement for sale—Plaintiff was examined in part—Application for filing counter
claim dismissed—Legality of—Purpose of the provision enabling filing of a counter-claim is
to avoid multiplicity of judicial proceedings and save upon the Court’s time as also to
exclude inconvenience to the parties—Modes of pleading—There would be no question of
counter-claim being raised by way of subsequent pleading as there is no previous pleading
on record— Written statement was filed—Plea has been taken that the sale agreement is
fabricated one—Possession of the suit property was not at all delivered by the plaintiff but
possessions was illegally taken by plaintiff from the defendant’s tenants—Delay in making
counter-claim—Court cannot go into the merits of the case while considering additional
pleading by the defendant—Court may allow the additional pleading of the defendant at
any time—Duty of Court to consider the real question of controversy between the parties to
avoid multiplicity of proceedings—To render justice to the parties it is absolutely necessary
to grant the leave to file counter-claim as sought for—Merely an opportunity is given to the
defendant to prove his case and to bring the truth to light—Revision allowed—Impunged
order by Court below set aside.
(Paras 8, 10 to 13)
(B) Civil Procedure Code, 1908—Order VIII, Rules 6-A to 6-G and 9—Purpose of.
(Para 7)
(C) Civil Procedure Code, 1908—Order VIII, Rule 9—Scope of—Does not confer any
right—Rule gives discretion to the Court to allow the defendant to file additional pleadings,
set-off or counter-claim. (Para 7)
Case law.—2003 (3) MLJ 26 (SC).
Counsel.—Mr. K. Kannan, for the petitioner; Mr. K. A. Ravindran, for the respondent.
Important point
Court may at any time allow the additional pleadings of the defendant. It is the duty
of the Court to consider only whether the said pleadings of the defendant is necessary for
determining the real question in controversy between the parties and such application seeking
leave to file additional pleadings can be allowed without causing injustice to the other side.
JUDGMENT
A. KULASEKARAN, J.—The defendant in O.S. No. 2 of 2005 on the file of the Principal
Subordinate Judge, Cuddalore is the revision petitioner herein. The said suit was filed by the
respondent herein for specific performance based on the agreement for sale dated 19.09.1992. In
the said suit, the plaintiff/ respondent herein was examined in part. At this stage, the petitioner
has filed I.A. No. 119 of 2006 under Order VIII, Rule 6-A, CPC seeking leave of the Court to file
counter-claim, which was dismissed by the trial Court on 14.09.2006. Challenging the said order
dated 14.09.2006, the present revision petition has been filed.
2. Mr. Kannan, learned counsel appearing for the petitioner submitted that the
petitioner in his written statement has taken a plea that the agreement of sale dated 19.09.1992 is
fabricated one; the respondent took possession of the suit property from the petitioner’s tenants
unlawfully; that the respondent herein has filed O.S. No. 372 of 2002 on the file of the Additional
District Munsif Court, Cuddalore for bare injunction in respect of the very same property; that
in the said suit, a handwriting expert was appointed, who filed his report to the effect that the sale
agreement dated 19.09.1992 was forged; that the respondent herein abandoned the suit without
prosecuting it in order to avoid adverse finding from the Court and thereafter he filed the
present suit in O.S. No. 2 of 2005; that in the event of dismissal of the present suit, the possession
of the respondent herein would be declared as unlawful, hence, the petitioner was constrained to
file a counter-claim otherwise he has to file a separate suit for recovery of possession, that too
after indefinite period only when the suit is disposed of ultimately; that the petitioner is a senior
citizen; that in the interest of both the parties, the permission sought for by the petitioner to file a
counter-claim ought to have been allowed by the trial Court, but it failed and prayed for setting
aside the same by allowing of the revision petition.
3. Mr. Ravindran, learned counsel appearing for the respondent submitted that if the
permission sought at this distant point of time is allowed, it would definitely prolong the trial,
complicate the smooth flow of proceedings and cause delay in progress of the suit. In any event,
after examination of PW1 in part, the petitioner has applied for leave to file the counter-claim,
hence, the Court below has rightly rejected the application seeking leave to file the counter
claim and prayed for dismissal of the revision petition.
4. This Court carefully considered the argument of counsel for both sides and perused the
records. The new Rules 6-A to 6-G of Order VIII, CPC were inserted making statutory provisions
for admissibilityof counter-claim to enable the defendant to enforce an independent right even
unconnected with the claim made in the plaint. As per Section 6-A of Order VIII, CPC, the
counter-claim has to be treated as a plaint and is governed by rules applicable to the plaints. A
counter-claim has to be filed within the limitation period and the counter-claim survives despite
dismissal of the suit filed by the plaintiff on account of withdrawal or even on merits. The object
of the provisions for setting off counter-claim before filing of written statement is disposal of the
suit cannot be delayed.
5. No doubt the object behind providing that a counter-claim must be made at the time of
filing written statement or before time limited for submission of written statement has expired is,
in case counter-claim is not filed simultaneously with the filing of the written statement,
however, the Court can allow an amendment so as to permit the defendant to make the counter-
claim provided the relief do not exceed the pecuniary limits of the jurisdiction of the Court. In
this case, the bar of limitation and exceeding the pecuniary jurisdiction of the Court if counter
claim is allowed are not canvassed by the respondent.
6. The Honourable Supreme Court in the decision reported in 2003 (3) MLJ 26 (SC)
(Ramesh Chand Ardawatiya v. Anil Panjwani) held that there are three modes of pleading or
setting up a counter claim in a civil suit. Firstly, the written statement filed under Rule 1 may
itself contain a counter-claim which in the light of Rule 1 read with Rule 6-A would be a counter
claim against the claim of the plaintiff preferred in exercise of legal right conferred by Rule 6-A.
Secondly, a counter claim may be preferred by way of amendment incorporated subject to the
leave of the Court in a written statement already filed. Thirdly, a counter-claim may be filed by
way of a subsequent pleading under Rule 9. In the latter two cases the counter-claim though
referable to Rule 6-A cannot be brought on record as of right but shall be governed by the
discretion vesting in the Court, either under Order VI, Rule 17 of the C.P.C. if sought to be
introduced by way of amendment, or, subject to exercise of discretion conferred on the Court
under Order VIII, Rule 9 of the C.P.C. if sought to be placed on record by way of subsequent
pleading.
7. The purpose of the provision enabling filing of a counter-claim is to avoid multiplicity
of judicial proceedings and save upon the Court’s time as also to exclude the inconvenience to the
parties by enabling claims and counter-claims, that is, all disputes between the same parties being
decided in the course of the same proceedings. Order VIII, Rule 9, CPC says that no pleading
subsequent to the written statement of a defendant other than by way of defence to set-off or
counter-claim shall be presented except by the leave of the Court and upon such terms as
the Court thinks fit; but the Court may at any time require a written statement or additional
written statement from any of the parties and fix a time of not more than thirty days for
presenting the same. The said Rule 9 of Order VIII, CPC does not confer any right and it is only
when the Court, in the facts and circumstance of the case is of the opinion that pleadings
subsequent to the written statement is necessary in order to effectually determine the controversy
before it, that it may require the defendant to file such additional pleadings namely additional
written statement or counter-claim. This rule gives discretion to the Court to allow the defendant
to file additional pleadings, set-off or counter-claim. Even in the absence of any claim or set-off
or counter-claim, if the Court is satisfied of the relevancy of subsequent pleadings, it can grant
leave to raise subsequent pleadings. Granting such leave to file additional pleadings by the
defendant to bring additional facts on record would not mean that the Court will always accept
them as true. It merely gives the defendant an opportunity to prove his case and bring the truth
to light.
8. The petitioner in his written statement took the plea that the agreement of sale dated
19.09.1992 is a fabricated one and in the earlier suit filed by the respondent in O.S. No. 372 of
2002, an expert was appointed, who stated to have given a report that the said agreement is
fabricated, hence, the respondent allegedly not prosecuted the said suit in O.S. No. 372 of 2002 as
he felt that there is every possibility of losing it and adverse finding could be made against the
sale agreement and subsequently filed the present suit in the year 2005, hence, leave was
sought for to file counter-claim.
9. In the judgment of the Honourable Supreme Court reported in 2003 (3) MLJ 26 (SC)
(Ramesh Chand Ardawatiya v. Anil Panjwani), which was relied on by the trial Court for
dismissing I.A. No. 119 of 2006 filed by the petitioner, the defendant therein has not filed his
written statement, hence, it was rejected by the trial Court. Indeed, their Lordships in para
28 of the said judgment held that ‘certainly a counter-claim is not entertainable when there is no
written statement on record. There being no written statement filed in the suit, the counter-claim
was obviously not set up in the written statement within the meaning of Rule 6-A. There is no
question of such counter-claim being introduced by way of amendment; for there is no written
statement available to include a counter-claim therein. Equally there would be no question of a
counter-claim being raised by way of subsequent pleading as there is no previous pleading on
record. In the present case, the defendant having failed to file any written statement and also
having forfeited his right of filing the same, the trial Court was fully justified in not entertaining
the counter-claim filed by the defendant-appellant.’
10. Whereas, in this case, as mentioned above, written statement was filed in which the
petitioner has taken a plea that the sale agreement is fabricated one, possession of the suit
property was not at all delivered by the petitioner but possession was illegally taken by the
respondent from the petitioner’s tenants. Hence, the decision of the Honourable Supreme Court
reported in 2003 (3) MLJ 26 (SC) (Ramesh Chand Ardawatiya v. Anil Panjwani), cannot be made
applicable to the facts and circumstance of the case on hand.
11. The other reason assigned by the Court below for dismissing I.A. No. 119 of 2006 is
the same is filed belatedly. While considering additional pleadings by the defendant, the Court
cannot go into the merits of the case but in this case the Court below had gone into the same,
which shall not be entertained. The Courts are expected to be liberal in granting leave, but on
such terms as it thinks fit in the circumstance of the case. A joint reading of Rules 6-A and 9 of
Order VIII, CPC makes it clear that the Court may at any time allow the additional pleadings
of the defendant. It is the duty of the Court to consider only whether the said pleadings of the
defendant is necessary for determining the real question in controversy between the parties and
such application seeking leave to file additional pleadings can be allowed without causing
injustice to the other side. In this case, the trial Court has failed to consider the above said
factors, hence, the reasons assigned by the trial Court that the application is filed belatedly in so
far as this case on hand is concerned is untenable. When we look into the case in different angle,
the petitioner seeks for recovery of possession in case the suit was dismissed. For that, it is not
necessary for him to go for a fresh suit because in this suit, both parties can adduce evidence,
based on the said evidence, the claim of both the parties can be decided by the trial Court, such
approach would avoid multiplicity of proceedings.
12. Hence, in order to render justice to the parties, this Court is of the view that it is
absolutely necessary to grant leave to the petitioner to file counter-claim as sought for. Moreover,
as mentioned above, granting leave to file additional pleadings by the defendant to bring
additional facts on record would not mean that the Court will always accept them as true. It
merely gives the defendant an opportunity to prove his case and to bring the truth to light.
13. In view of the above discussion, the Order dated 14.09.2006 passed by the Court below
in I.A. No. 119 of 2006 in O.S. No. 2 of 2005 is set aside. The revision petition is allowed as
prayed for. No costs. It is needless to mention that the respondent is at liberty to file his reply to
the counter-claim of the petitioner and if necessary, the trial Court can also re-cast the issues and
trial can be conducted accordingly. Consequently, connected miscellaneous petition is
closed.
Revision petition allowed.
[2008 (1) T.N.C.J. 405 (Mad)]

MADRAS HIGH COURT
BEFORE :
M. VENUGOPAL, J.
R. SAMPATH ...Petitioner
Versus
TAMIL NADU CIVIL SUPPLIES CORPORATION LTD.
REP. BY SENIOR MANAGER, CHENNAI REGION ...Respondent
[C.R. P. (N.P.D.) No.1861 of 2003, decided on 3 December, 2007]
rd
Arbitration and Conciliation Act, 1996—Section 34—Award—Execution of—

Attachment of movables—Cheque of Rs.5,57,744.66/- given by judgment debtor to the
award holder in favour of Registrar, City Civil Court—Prayer for payment out order of
the amount of Rs.5,57,744.65/-—Application for—Allowed—Amount, ordered to be paid on
proper identifications—Application by judgment debtor for dismissal of execution
petition as the decree was not executable and for direction to decree holder to re- deposit
the amount in Court—Judgment holder directed to re-deposit the amount as the
order passed in Arbitration Case No.5 of 2000 has not reached the finality—Subsequent
development—O. P. No.394 of 2006 filed by the judgment debtor was dismissed by the
High Court—Not necessary for the decree holder to re deposit the amount so received by
him since he is entitled for that amount legally because of the changed circumstance—
Balance of convenience is in favour of decree holder—If corporation challenges the order
passed in Tr.O.P. No.394 of 2006, dated 5.3.2007 and succeeds in the further proceedings
initiated, it is always open for them to seek for restitution in respect of the amount of
Rs.5,57,744.65/- received by decree holder in the trial Court—Order passed by trial Court
directing the re-deposit of the amount set aside—Revision allowed. (Paras 13 to 15)
Counsel.—Mr. T. S. Baskaran, for the petitioner; Mr. R. Ponnusamy, for the respondent.
JUDGMENT
M. VENUGOPAL, J.—The civil revision petitioner herein is the first respondent in
Tr.O.P.No.394 of 2006 on the file of the High Court, Madras. Originally the Tr.O.P.No.394
of 2006 was numbered as Arb.O.P.No.41 of 2002 on the file of the Principal Judge, City Civil
Court, Chennai and later, the same was transferred to the file of the High Court for trial as per
order dated 21.01.2006 and made in O.S.A.No.102 of 2004 read with R.O.C.No.1542 of 2006
(O.S.), dated 26.04.2006. The Tr.O.P. No.394 of 2006 was filed by the first respondent in the
revision petition viz., T.N. Civil Supplies Corporation Limited as the petitioner. The said petition
was filed under Section 34 of the Arbitration and Conciliation Act, 1996, to set aside the Award.
2. It appears that the revision petitioner has obtained decree for Rs.4,23,174/- together with
interest at 12% per annum from 30.11.2000 on Rs.4,23,174/- refund of security deposited and
earnest money deposit of Rs.80,000/- and costs of Rs.8,000/- against the respondent/judgment
debtor on 20th June, 2001.
3. As a decree holder/award holder, the revision petitioner filed E.P.No.2042 of 2001
before the learned X Assistant Judge, City Civil Court for attachment of movable property of the
respondent/judgment debtor/T.N. Civil Supplies Corporation and the same was ordered by the
Court below on 19.11.2001.
4. It is the case of the revision petitioner/decree holder that the Respondent/Corporation
prevented the bailiff from attaching movables and therefore, the police aid was granted on 23rd
November, 2001 by the Court below.
5.The learned counsel for the revision petitioner contends that on 27th November, 2001
when the agent of the revision petitioner accompanied the Court bailiff to attach the movable
property of the respondent/JD, the respondent/corporation gave a cheque for Rs.5,57,744.66/- to
the revision petitioner/decree holder/award holder in favour of the Registrar, City Civil Court,
Madras to the credit of the E.P.No.2042 of 2001.
6. The revision petitioner/award holder before the trial Court filed E.A.No.6272 of 2001
praying for payment out order of the amount of Rs.5,57,744.65/-, which was in Court deposit to
the credit of the E.P.No.2042 of 2001 in Ar. Case No.5 of 2000. The said E.A.No.6272 of 2001
was allowed on 06.12.2001 by the Court below unilaterally. Before allowing the E.A.No.6272 of
2001, no notice was ordered to be issued by the Court. C.M.P.No.203 of 2002 was filed by the
respondent/corporation before the learned X Assistant Judge, City Civil Court praying for a stay
of further proceedings of execution petition in E.P.No.2042 of 2001 in the arbitration award dated
20.06.2001 in Arb. Case No. 5 of 2000 and on 01.11.2002, the records of the case were sent to
the Principal Judge, City Civil Court as per the order of the Principal Judge dated 18.10.2002.
7. E.A.No.6087 of 2001 was filed by the respondent/JD praying to set aside the order dated
19.11.2001 passed in the E.P.No.2042 of 2001 in Arb. Case No.5 of 2001 on the file of the
learned X Assistant Judge, City Civil Court, Chennai.
8. It is significant to point out that in E.A.No.6272 of 2001, a cheque for Rs.5,57,744.55/-
in favour of the revision petitioner/decree holder was ordered to be issued on proper identification
by the Court below.
9. The respondent/JD in its counter to the E.A.No.6272 of 2001 in Arb.Case No.5 of 2000
has inter alia stated that there is no executable decree and accordingly, E.P.No.2042 of 2001 is
not maintainable and is liable to be dismissed and further, E.A.No.6272 of 2001 payment out of
Rs.5,57,744.65/- ordered on 06.12.2001 without issuing notice was set aside by the High Court in
C.R.P.No.334 of 2002 order dated 18.09.2002 and therefore, the amount which was received by
the petitioner in E.A.No.6272 of 2001 was liable to be re-deposited into Court and the civil
revision petitioner/petitioner in E.P.No.2042 of 2001 has not retained the said sum and prayed for
a direction to deposit the sum of Rs.5,57,744.65/- received in E.A.No.6272 of 2001 into Court,
etc.
10. The learned X Assistant Judge has passed orders in E.A.No.6272 of 2001 on
07.11.2003 inter alia observed that the pendency of Arb.O.P.No.41 of 2002 was accepted by both
sides and the order passed in Arb. C.No.5 of 2000 has not reached finality and therefore, the
revision petitioner would not get the amount deposited and therefore, passed the order directing
the civil revision petitioner to re-deposit the amount of Rs.5,57,744.65/- received by him within
one month from the date of the said order.
11. The Tr.O.P.No.394 of 2006 filed by the respondent/JD/petitioner was dismissed by the
Honourable High Court on 05.03.2007.
12. It is not out of place to point out that in Tr.O.P.No.394 of 2006 order dated 05.03.2007
passed by the Honourable High Court in paragraph No.17, it is observed as follows:—
“In the case on hand, there is a clear finding by the arbitrator that the labourers are the
workmen of the petitioner corporation and in such circumstances, as rightly held by 2nd
respondent, the petitioner corporation could not expect the 1st respondent to meet out
the increased demand of the labourers of more than double rate of approved rate fixed by
the corporation.”
13. It cannot be gain said that after passing of the orders in E.A.No.6272 of 2001 by the
trial Court on 07.11.2003 directing the revision petitioner to re-deposit the amount of
Rs.5,57,744.65/- so received, within one month from the date of the order and in view of the
subsequent development of Tr.O.P.No.394 of 2006 (Arbitration O.P.No.41 of 2006 on the file of
the Principal Judge, City Civil Court, Chennai) having been dismissed by the Honourable High
Court on 05.03.2007 it is not necessary for the civil revision petitioner to re-deposit the amount of
Rs.5,57,744.65/- so received by him, since he is entitled for that amount legally because of the
changed circumstance.
14. At this juncture, the learned counsel for the respondent/JD submits that as against
the said orders passed by the Honourable High Court in Tr.O.P.No.394 of 2006 dated 05.03.2007,
the respondent/Corporation has filed copy application to get the order copy and to prosecute
further proceedings and that the copy of the order has not been furnished to the Corporation till
date. It is pertinent to point out that when the Tr.O.P.No.394 of 2006 filed by the
respondent/Corporation was dismissed by the Honourable High Court on 05.03.2007, certainly
the balance of convenience is in favour of the revision petitioner/first respondent/decree holder.
As and when further proceedings are taken by the respondent/corporation /JD as against the
orders passed in Tr.O.P.No.394 of 2006 dated 05.03.2007 and if the respondent corporation
succeeds in the further proceedings to be initiated by it, it is always open to the respondent
Corporation to seek for restitution in regard to the amount of Rs.5,57,744.65/- received by the
revision petitioner in the trial Court in accordance with law in the considered opinion of this
Court.
15. In fine, in the light of the detailed discussions mentioned supra, this Court comes to a
conclusion that the civil revision petition needs to be allowed and accordingly, the same is
allowed to meet the ends of justice. The order passed by the learned X Assistant Judge, City
Civil Court, Chennai in E.A.No.6272 of 2001 dated 07.11.2003 is set aside. No costs.
Revision petition allowed.
[2008 (1) T.N.C.J. 408 (Mad)]

MADRAS HIGH COURT
BEFORE :
M. VENUGOPAL, J.
KUPPAYEE AMMAL ...Petitioner
Versus
ATHIAPPA GOUNDER ...Respondent
[C.R. P. (N.P.D.) No.1466 of 2003 and C.M.P. No.15971 of 2003, decided on 3 December,
rd
2007]
(A) Limitation Act, 1963—Section 5—Condonation of delay—Court of law has to
adopt a liberal approach in dealing with the application for condonation of delay—One
should not adopt a pedantic approach in dealing with the said application. (Para 2)
(B) Practice and procedure—There is no presumption that delay has occurred
deliberately or on account of mala fide or on account of culpable negligence by referring
dilatory tactics a party does not stand to benefit.
(Para 2)
(C) Word and phrases—Term “sufficient cause”—Must be given a meaningful
interpretation to serve the ends of justice that being the life purpose for the existence of the
institution of Courts.
(D) Limitation Act, 1963—Section 5—Civil Procedure Code, 1908—Order IX, Rule
13—Delay of 529 days—In moving application for setting aside the ex parte decree—No
endeavour was made by defendant in her application to say anything about the delay—
Defendant has not come out with a positive stand of sufficient cause—High Court is unable
to come to the aid of the civil revision petitioner—Revision petition dismissed—Order
passed by trial Judge confirmed. (Para 5)
Counsel.—Mr. V. Bhiman, for the petitioner; Ms. P. T. Asha for M/s. Sarvabhauman
Associates, for the respondent.
Important point
One should not adopt a pedantic approach in dealing with the delay condonation
application. It cannot be said that substantial justice deserves to be preferred in preference to
technical considerations when the same are pitted against each other. The “term sufficient
cause” must be given a meaningful interpretation to serve the ends of justice that being the
life purpose for the existence of the institution of Courts.
JUDGMENT
M. VENUGOPAL, J.—The civil revision petitioner is the second defendant in O.S.No.61
of 2000 on the file of the Sub Court, Kallakurichi. The revision petitioner/2nd defendnat filed
I.A.No.148 of 2003 before the Lower Court under Section 5 of the Limitation Act praying to
condone the delay of 529 days in filing Order IX, Rule 13, C.P.C. application.
2. Admittedly, the suit is laid for specific performance by the respondent/plaintiff
against the three defendants in the suit and the civil revision petitioner/2nd defendant is one
among them. In the suit, an ex-parte decree was passed on 31.07.2001. In I.A.No.148 of 2003
filed by the revision petitioner/2nd defendant before the Lower Court, she has not made any
endeavour to explain the cause much less a sufficient cause for condonation of delay in the
considered opinion of this Court. It is established fact that the Court of law has to adopt a liberal
approach in dealing with the application for condonation of delay. It is not in dispute that one
should not adopt a pedantic approach in dealing with the said application. It cannot be said that
substantial justice deserves to be preferred in preference to technical consideration when the
same are pitted against each other. As a matter of fact, in general, there is no presumption
that the delay has occurred deliberately or on account of mala fide or on account of culpable
negligence by referring dilatory tactics a party does not stand to benefit. The term ‘sufficient
cause’ must be given a meaningful interpretation to serve the ends of justice—that being the life
purpose for the existence of the institution of Courts. But, a perusal of the affidavit in I.A.No.148
of 2003 filed by the revision petitioner/2nd defendant indicates that the reason for
condonation of delay has not been explained and no endeavour was also made by the revision
petitioner/2nd defendant to that effect.
3. The respondent/plaintiff in the counter filed to I.A.No.148 of 2003 has among other
things averred that in pursuance of the decree passed on 31.07.2001 after depositing the balance
amount into Court as per the directions of the Court, E.P.No.5 of 2002 was filed on 25.01.2002
by the respondent/plaintiff and when a notice was served on the revision petitioner/2nd
defendant, she did not enter appearance on 20.02.2002, 22.03.2002 and 17.04.2002 and non-
judicial stamps were produced into Court and a regular sale deed was executed by the Trial Court
on behalf of the defendants which was also registered and the sale deed was found to be a correct
one resulting in culmination of E.P.No.5 of 2002 on 11.02.2003.
4. In the instant case, the respondent/plaintiff filed another execution petition in
EP.No.13/2003 seeking delivery of the property in pursuance of the sale deed and notice was
ordered and the E.P. was posted to 24.03.2003.
5. It is the case of the respondent/plaintiff that the revision petitioner/2nd defendant
has set up her son, the first defendant to come out with this vexatious application and therefore,
the said interlocutory application is not maintainable. The learned Sub Judge, Kallakurichi has
ultimately dismissed I.A.No.148 of 2003 with costs inter-alia observing that much water flew
under the bridge and the revision petitioner/2nd defendant was to explain the delay of 529 days
and that each and every day delay should be explained and that was not explained. The reason
ascribed by the Trial Court Judge in his order dated 12.08.2003 that ‘each and every day’s delay
should be explained’ is not correct in view of the liberal approach to be taken in these matters.
But, even then, this Court is of view that atleast a cause much less a sufficient cause ought to
have been mentioned in the affidavit filed by the revision petitioner/2nd defendant, but in the
instant case on hand, no endeavour was made by the revision petitioner/2nd defendant in her
application to say anything about the delay, leave alone explaining the same atleast in bald or in
vague terms. Since the revision petitioner has not come out with a positive stand of sufficient
cause in I.A.No.148 of 2003 for condonation of delay of 529 days in filing the Order IX, Rule 13
application, this Court is unable to come to the aid of the civil revision petitioner/2nd defendant
and therefore, dismisses the civil revision petition without costs in the interest of justice. The
order passed by the learned Sub Judge, Kallakurichi in I.A.No.148 of 2003 dated 12.08.2003 is
confirmed for the reasons assigned by this Court. Consequently, connected miscellaneous
petition is also dismissed.
Petition dismissed.
[2008 (1) T.N.C.J. 411 (Mad)]

MADRAS HIGH COURT
BEFORE :
M. VENUGOPAL, J.
V. SENTHILKUMARAN ...Petitioner
Versus
C. SANTHOSHKUMAR ...Respondent
[C.R. P. (N.P.D.) No.611 of 2004, decided on 4 December, 2007]
th
Civil Procedure Code, 1908—Section 115—Revision—Against order dismissing

application for condonation of delay of 565 days in representing the plaint—Legality of—
Duty of Court to find out whether any cause much less a sufficient cause was made out—
Expression “sufficient cause” requires liberal approach— Application deserves to be
allowed since substantial justice is to be preferred so that matter is not thrown out at the
early stage itself—And also to avoid any injustice—Revisionist could not get money from
outside—Reasons assigned—Delay in representation matters are between the applicant and
the Court—Liberal view are to be taken in condonation of delay matters—Order impugned
set aside—Revisionist granted three weeks’ time to pay the deficit court-fee before the
trial Court. (Paras 13 to 15)
Case law.—1978 (1) SCC 483; 2002 (3) CTC 22; AIR 1987 SC 1353; 2000 AIHC 3227;
1993 TNLJ 375.
Counsel.—Mr. P. V. Rangarajan, for the petitioner; No appearance for, the respondent.
Important point
In condonation of delay matters, a liberal approach is to be made by law Courts.
JUDGMENT
M. VENUGOPAL, J.—The above civil revision petition has been filed against the order
dated 23.06.2003 in I.A.No.676/2003 in un-numbered O.S.No. of 2003 passed by the
learned Principal Sub-Judge, Virudhachalam.
2. The civil revision petitioner herein is the plaintiff in un-numbered
O.S.No. of 2003 on the file of the learned Principal Sub-Judge, Virudhachalam.
3. The civil revision petitioner/plaintiff has filed I.A.No.676/2003 praying for condonation
of delay of 565 days in representing the plaint. Admittedly, the suit is filed for recovery of
sum of Rs.95,193.25 against the defendant and the revision petitioner/plaintiff/petitioner has
affixed deficit court-fee while filing the plaint before the Trial Court. It appears that 15 days
time was granted by the Trial Court for paying the deficit court-fees. In the affidavit in
I.A.No.676/2003 filed by the revision petitioner/plaintiff/petitioner, it is averred that the
revision petitioner was not well and he could not get money from outside also and therefore, he
was not in a position to pay the deficit court-fee and to represent the plaint before the Trial Court.
In that process there is a delay of 565 days in representing the plaint before the Court below.
4. The respondent/defendant/respondent has filed a counter inter-alia stating that the
reason assigned for 565 days delay for representing the plaint is not acceptable and that
the petition is to be dismissed with cost.
5. The learned Principal Sub Judge, Virudhachalam, in his order dated 23.06.2003, passed
in I.A.No.676/2003 in un-numbered O.S.No…. of 2003 has observed that the revision
petitioner/plaintiff/petitioner has not furnished details in the affidavit like the date on which the
plaint was filed, on what date the said plaint was returned and the date of representation etc., and
came to the conclusion that the reason assigned for condonation of delay in representing the
plaint is not to be accepted and accordingly dismissed the said application.
6. As against the said orders passed by the learned Principal Sub Judge, Virudhachalam,
I.A.No.676/2003 in un-numbered O.S.No…. of 2003 dated 23.06.2003, the revision
petitioner/plaintiff/petitioner has preferred this civil revision petition.
7. It is an accepted principle that in condonation of delay matters, a liberal approach is to
be made by law Courts. It is to be remembered that refusing to condone the delay in any matter
can result in a meritorious matter being thrown out at the initial stage and cause of justice being
defeated. Per contra, the maximum that can happen is that the cause would be decided on merits
after hearing the parties, when the delay is condoned. In these matters a pedantic approach
should not be made and when substantial justice and technical considerations are pitted
against each other, cause of substantial justice deserves to be preferred for the other side cannot
claim to have a vested right in injustice being done because of non-deliberate delay. As a matter
of fact, a party does not stand to benefit by adopting dilatory tactics. On the other hand, he runs
a serious risk. It is to be pointed out that judiciary is respected not on account of its power to
legalize injustice on technical grounds but because it is capable of removing injustice and
as expected to do so.
8. Learned counsel for the revision petitioner/plaintiff /petitioner relied on the decision
reported in 1978 (1) SCC 483 between Indian Statistical Institute v. M/s. Associated Builders
and others, wherein it is observed as follows:
“Civil Procedure Code (Act 5 of 1908) Section 148 -Power of Court to excuse delay in
paying court-fee.
Limitation Act, 1963-Section 5-Delay in re-presentation of petition after rectifying
defects pointed out by Court -Jurisdiction of Court.
Practice-Objections to award filed in time but with defects-Whether could be
considered as not filed at all.”
9. He also relied on 2002 (3) CTC 22 between Bhuvaneswari and R. Elumalai, wherein,
it is held as follows:
“Code of Civil Procedure, 1908, Sections 151, 149 and 148- Plaint filed for recovery of
money returned for certain compliances-Plaintiff represented papers with delay of 457
days - Plaintiff filed petition under Section 151 to condone delay in representation
and also application for condoning delay in payment of deficit court-fee - Both
applications were filed under Section 151 of Code of Civil Procedure - Order passed by
Court granting time for representation of plaint is administrative order and not
judicial order - Petition to condone delay in representation need not be under Section
148 and could be under 151 of Code of Civil Procedure - Order of Trial Court refusing
to condone delay set aside and delay condoned with direction that plaintiff is not entitled
to interest for period of delay if he succeed in suit.
Practice and procedure: Mere quoting of wrong provisions of law will not entail in
dismissal of petition.
Delay in presentation: Order passed by Court returning paper for compliance of certain
returns is administrative order and not judicial order.”
10. On the side of the revision petitioner/plaintiff /petitioner, reliance was placed on
AIR 1987 SC 1353 between, Collector, Land Acquisition, Anantnag v. Mst. Katiji and others,
wherein it is held that:
“(B) Limitation Act (36 of 1963), Section 5-Condonation of delay - Courts should
adopt liberal approach - Reasons for adopting such approach stated.”
11. Learned counsel for the revision petitioner/plaintiff pressed into service, another
decision reported in 2000 AIHC 3227 between Mehar Singh alias Mehar Lal and others v. State
of H.P., wherein it is observed that ‘it cannot be disputed that as per Section 149, C.P.C., the
Court of law has discretion, at any stage to allow an individual to make good the deficit court fee
prescribed for any document by the law and on such payment, the said document shall for
the same validity and effect as if such fee was paid in the first instance. Discretion is to be
exercised by a Court of law in accordance with established judicial principles and the same
cannot be claimed as a matter of right. The discretion in this regard should be exercised
liberally in favour of a party except in cases of mala fide or similar reasons resulting in great
injustice to the opposite side. It cannot be gain said that as per Section 149, CPC there is a
power on the High Court to exercise the same in order to do justice to a party where the failure
has occasion not due to his fault’.
12. In 1993 TNLJ 375 between Y. Cusbar v. K. Subbarayan it is held that ‘any delay in
representation matter, Court has to take care to see that justice does not suffer in such cases
and even if there is undue delay in representation it can be compensated by awarding costs’.
13. As far as the present case is concerned, this Court is of the considered view that
the details like (1) on what date the plaint was filed; (2) on what date it was returned; (3) on
what date it was represented etc., were not mentioned in the affidavit by the revision
petitioner/plaintiff/petitioner in I.A.No.676/2003, as found by the Court below are not correct
and the crux of the matter to be looked into by the Court is whether delay of 565 days in
representing the plaint is to be condoned or not and to find out whether any cause much less a
sufficient cause was made out by the revision petitioner/plaintiff /petitioner.
14. In as much the term ‘sufficient cause’ requires liberal approach, this Court is of
the considered view that the present civil revision petition needs to be allowed since
substantial justice is to be preferred so that the matter is not thrown out at the early stage
itself and also to avoid any injustice and therefore, the reasons assigned in the affidavit by the
revision petitioner that he could not get money from outside, not well etc., are accepted by this
Court. Strictly speaking, delay in representation matters are between the applicant and the
Court and a liberal views are to be taken in condonation of delay matters.
15. In that view of the matter, by taking a liberal approach, this Court allows the civil
revision petition and the orders passed by the learned Principal Sub Judge in I.A.No.676/2003
in un-numbered O.S.No. of 2003 is hereby set aside in the interest of justice. However, there
shall be no order as to costs. The civil revision petitioner/plaintiff/ petitioner is granted three
weeks’ time from the date of receipt of a copy of this order to pay the deficit court-fee before the
trial Court.
C.R.P. allowed.
[2008 (1) T.N.C.J. 415 (Mad)]

MADRAS HIGH COURT
BEFORE :
LOGITHAKSHAN ETC. ...Petitioners
Versus
E. S. RAHIMA BIBI AND OTHERS ...Respondents
[C.R. P. (N.P.D.) Nos.1972 to 1974 of 1994, decided on 5 December, 2007]
th
Tamil Nadu Buildings (Lease and Rent Control) Act, 1960—Sections 14(1) (b) and 25
—Revision—Against judgment and order allowing petition for demolition and
reconstruction of building on the ground that petition building is very old and in a
dilapidated condition—Tenant given three months’ time to vacate the premises—
Confirmed on appeal—Definite finding of two Courts below relying on Commissioner’s
report that both the buildings are in a dilapidated condition—No objection filed against the
Commissioner’s reports in both cases—Landlords proved that they had sufficient funds to
undertake the construction—Bona fide requirements of the landlord and the age and
condition of the building taken into consideration—No reason to interfere with the
concurrent findings—Both revisions are dismissed with costs of Rs.3000/- in each.
(Paras 6, 8 to 10)
Case law.—2005 (3) CTC 693; 2004 (2) CTC 364; 2002 (2) CTc 549; 1996 (2) CTC 586.
Counsel.—Mr. Muthumani Doraisami, Sr. Advocate, for Mr. A. Anthony Nirmal, for the
petitioner; Mr. K. P. Gopalakrishnan, for the respondents.
Important point
Even if building is in a good condition, if it is not suitable for the requirement of the
landlord, he can always demolish even a good building and put up a new building to suit his
requirements.
JUDGMENT
A.C. ARUMUGAPERUMAL ADITYAN, J.—The tenant in R.C.O.P.No.9 of 1988 is the
revision petitioner herein. The said petition was filed by the landlords/respondents under Section
14(1)(b) of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 (hereinafter referred
to as “the Act”) for demolition and reconstruction on the ground that the petition building is
very old and in a dilapidated condition. The tenant/respondent in R.C.O.P.No.9 of 1988 has
filed a counter contending that the building is sound and there is no need to demolish the same
and only for the purpose of demanding higher rent, the vexatious petition has been filed by the
landlords.
2. On behalf of the landlords/ respondents one Shakarun Bi Ameed was examined
as P.W.1. apart from examining one Thangappan, Photographer as P.W.2. Exs.P1 to P10 were
marked on the side of the landlord. On the side of the tenant, the revision petitioner was
examined as R.W.1 and the reply notice dated 13.7.1988 was marked as Ex R1. An Advocate
Commissioner was appointed to ascertain the age of the building and also the present condition
of the building. The learned Advocate Commissioner with the help of an Assistant Engineer,
P.W.D., had visited the petition schedule building and filed his report Ex C1 and Plan Ex
C2. After going through both oral and documentary evidence, the learned Rent Controller has
come to a conclusion that the landlords are entitled to the relief as prayed for in the petition
and accordingly allowed the petition, giving three months time to the tenant to vacate and
hand over the vacant possession to the landlord. Aggrieved by the findings of the learned
Rent Controller, the tenant had preferred an appeal in R.C.A.No.15 of 1991, wherein the
learned Rent Control Appellate Authority has held that there is no material to interfere with
the findings of the learned Rent Controller, has dismissed the appeal thereby confirming the
order of the learned Rent Controller, which necessitated the tenant to prefer C.R.P.(NPD)
No.1973/1994.
C.R.P(NPD) No.1974 of 1994:
3. This revision petition was preferred against the Judgment in R.C.A.No.14 of 1991 on
the file of the learned Rent Control Appellate Authority/ District Judge, Nilgiris which had
arisen out of an order in R.C.O.P.No.8 of 1988 on the file of learned Rent Controller, Gudaloor,
which was filed under Section 14(1)(b) of the Act.
4. On behalf of the landlords one Shakarun Bi Ameed was examined as P.W.1 and
Thangappan, Photographer was examined as P.W.2 Exs P1 to P10 were marked on the side of
the landlords. The tenant has examined himself as R.W.1 besides exhibiting Ex R1 reply
notice dated 13.7.1988. An Advocate Commissioner was appointed to assess the stability of
the building with the help of an expert, an Assistant Engineer, P.W.D. The Advocate
Commissioner has visited the petition schedule building and filed his report Ex. C1 and Plan
Ex C2. On the basis of the evidence both oral and documentary, the learned Rent Controller
has come to a conclusion that the landlords are entitled to an order of eviction under Section
14(1)(b) of the Act against the respondent/tenant and accordingly allowed the petition,
giving three months time to the tenant to vacate and hand over the possession of the petition
schedule building. Aggrieved by findings of the learned Rent Controller, the tenant has
preferred an appeal in R.C.A.No.14 of 1991 before the learned Rent Control Appellate
authority/District Judge, Nilgiris, who had concurred with the findings of the learned Rent
Controller had dismissed the appeal, which necessitated the tenant to prefer C.R.P.No.1974
of 1994.
5. Heard Mr.K.P. Gopalakrishnan, the learned counsel appearing for the respondents,
who would contend that since both the Courts below have concurrently held that the
buildings in both rent control original petitions are in a dilapidated condition and are required for
demolition and reconstruction, had allowed the rent control original petitions filed by the
landlords and this Court exercising the revisional power cannot interfere with the findings
regarding the facts unless the Judgment of the Appellate Authority in both the appeals are
perverse in nature to warrant interference from this Court in these revisions.
6. Both the Courts below relying on Ex C1 Commissioner’s report and ExC2 plan have
come to a definite conclusion that both the buildings are in a dilapidated condition have
ordered eviction to enable the landlords to demolish and reconstruct the same. It is also brought
to the notice of this Court that the tenant/revision petitioner in both petitions have not filed
any objection to the Commissioner’s report ExC1 and Plan Ex C2 in both the cases.
7. Relying on a decision reported in Narayanan v. Chandrasekaran, 2005(3) CTC 693,
the learned counsel appearing for the respondents/landlords would contend that when the
landlords established that he had sufficient funds to demolish and reconstruct and that the
fact the building is in dilapidated condition was proved by an expert opinion, the landlord is
entitled to get an order of eviction under Section 14(1)(b) of the Act. The relevant observations
at paragraph 25 runs as follows:
“Therefore, it is clear on such evidence adduced on either side that the petition building
is more than 100 years old and some of the portions are Madras terraced and some portions are
tiled roofing, especially the portions occupied by the tenants Narayanan and Sivasamy are
tiled roofing and in fact a wall has been raised to support the roofing in the portion occupied by
the tenant Narayanan. In the modern improved Engineering Technology, the portions occupied
by the tenants Narayanan and Sivasamy alone can be demolished and new construction can
be put up. The landlord has got sufficient means to put up new construction and in fact he has
deposited a sum of Rs.8 Lakhs in his name and in the name of his wife and mother in
Karaikudiand Mayiladurai. Admittedly, the landlord owned other buildings and as such, funds
can be raised through that buildings also.. . . . . . . . . Therefore, the requirement of the
petition premises in both the petitions, subject-matter of these revisions as sought for by the
landlord is bona fide and the learned Rent Control Appellate Authority rightly confirmed the
eviction order of the learned Rent Controller, considering all these aspects that the
requirement of petition premises for demolition and reconstruction is bona fide.”
The cases on hand also, the landlords has produced Ex P7 certificate issued by the
Bank to show that they had sufficient funds to undertake the construction.
8. The learned counsel appearing for the respondents would submit that once the
landlord is able to prove that he is in possession of sufficient income to reconstruct the same
and that the building is in a dilapidated condition requires immediate demolition and
reconstruction, under Rent Control Act, he is entitled to get an order of eviction. For this
proposition of law, the learned counsel appearing for the respondents would rely on a ratio
decidendi in P.S. Pareed Kaka and others v. Shafee Ahmed Saheb, 2004 (2) CTC 364, wherein
the Honourable Apex Court has held in an appeal which had arisen out of the provisions of
Karnataka Rent Control Act, 1961, as follows:
“Law is well settled on this aspect. Even if the building is in a good condition, if
it is not suitable for the requirement of the landlord, he can always demolish even a
good building and put up a new building to suit his requirements. It is not necessary
for the landlord to prove that the condition of the building is such that it requires
immediate demolition, particularly when the premises is required by the landlord.
Therefore, it has to be held that the finding of the trial Court cannot be sustained
and the High Court on re-appreciation of the evidence, rightly so, held that the
landlord has established that his need for all the four petition schedule premises is bona
fide and reasonable.”
Further referring to an earlier decision of the Honourable Apex Court in Harrington
House School v. Ispathani and another, 2002 (2) CTC 549 : 2002 SC 2268, it is further being
held that:
“In the present case it has been found that the building is an old construction requiring
demolition and reconstruction. Out of the total area of the property only a part is built
up and substantial portion is lying open and vacant. There is pressure of population on
the developing city and several multi-storey complexes have come up in the vicinity of
the property. There is nothing to cast a shadow of doubt in a bona fides of the
landlords pleading an immediate need for demolition followed by reconstruction. No
fault can be found with the finding of the fact arrived at by the High Court. The
decision by the Appellate Court was rendered on 25 th February, 1994 when three-
Judge Bench division of this Court in P.Orr.& Sons was holding the field and in view
of the construction placed by this Court in P.Orr & Sons, the Appellate Court was
persuaded to deny eviction inspite of the findings of facts being for the landlord. The
High Court has rightly set aside the Judgment of the Appellate Authority and ordered
eviction following the law laid down by the Constitution Bench in Vijay Singh &
Others case. It is true that the landlords have not pleaded on the age and condition
of the building as one of the components of their bona fides but the landlords’ need.”
In Vijay Singh and others v. Vijayalakshmi Ammal, 1996 (2) CTC 586: 1996 (6) CTC 475,
this Court has observed in para 10 as follows:
“On reading Section 14(1)(b) along with Section 16 it can be said that is immaterial.
The age and condition of the building has been determined and is available for
assessing the bona fides of for eviction of a tenant on the ground of demolition of the
building for erecting a new building, the building need not be dilapidated or dangerous
for human habitation. If that was the requirement there is no occasion to put a condition
to demolish within a specified time, and to erect a new building on the same site. Sub-
section (1) of Section 16 contemplates that permission has been granted by the Rent
Controller under Section 14(1)(b) for demolition of the building, but if such demolition
is not carried out in terms of the order and undertaking, then the Rent Controller can
order the landlord to put the tenant in possession of the building on the original terms
and conditions. If the building is dangerous and dilapidated requiring immediate
demolition for safety, then there is no question of the Rent Controller directing the
landlord to put the tenant in possession of such building on the original terms and
conditions, on account of the failure of the landlord to commence the demolition within
the period prescribed. Similarly, there was no occasion to link the demolition of such
building with erection of new building and then to give the landlord freedom from
the restrictive provisions of the Act for a period of five years from the date on which
the construction of such new building is completed and notified to the local authorities
concerned. In this background, it has to be held that neither of the extreme position taken
by the respondent or the appellants can be accepted. Permission under Section 14(1)(b)
cannot be granted by the Rent Controller or mere asking of the landlord, that he
proposes to immediately demolish the building in question to erect a new building.
At the same time, it is difficult to accept the stand of the appellants that the building
must be dilapidated and dangerous, unfit for human habitation. For granting
permission under Section 14(1)(b) the Rent Controller is expected to consider all
relevant materials for recording a finding whether the requirement of the landlord
for demolition of the building and erection of a new building on the same site is bona
fide or not. For recording a finding that requirement for demolition was bona fide, the
Rent Controller has to take into account (1) bona fide intention of the landlord far
from the sole object only to get rid of the tenants; (2) the age and condition of the
buildings;(3) the financial position of the landlord to demolish and erect a new
building according to the statutory requirements of the Act. These are some of the
illustrative factors which have to be taken into consideration before an order is passed
under Section 14(1)(b).”
The learned Rent Controller has taken into consideration, the bona fide requirements of
the landlord, also considered the age and condition of the building with the help of the Advocate
Commissioner’s report which was prepared with the help of an Assistant Engineer, P.W.D
and also after considering the financial sound status of the landlords as per Ex. P7, has come
to a definite conclusion that the landlords are entitled to get an order under Section 14(1)(b)
of the Act in both the cases which was confirmed in the appeal by the learned Rent Control
Appellate Authority in both RCAs, I do not find any reason to interfere with the findings of
the learned Rent Control Appellate Authority in R.C.A.Nos.15 of 1991 and 14 of 1991
respectively on the file of the learned Rent Control Appellate Authority, Nilgiris.
9. The learned counsel appearing for the respondents in both revisions would contend
that the eviction was ordered in the year 1990 and the escalation cost of building
construction materials have risen on many-fold and that he would press for his cost. I am of the
view that the request of the learned counsel appearing for the respondents/landlords is
reasonable and hence both the C.R.P.Nos 1973 & 1974 of 1994 are dismissed with cost of
Rs.3,000/- in each revision.
10. CRP.1972 of 1994 is dismissed as infructuous because the learned counsel
appearing for the respondents would state that the tenant/revision petitioner had already
vacated and handed over the possession to the landlords. No costs.
Ordered accordingly.
[2008 (1) T.N.C.J. 421 (Mad)]

MADRAS HIGH COURT
BEFORE :
M. VENUGOPAL, J.
RAMASAMY REDDIAR AND OTHERS ....Petitioners
Versus
PONNUSAMY REDDIAR ...Respondent
[C.R. P. (N.P.D.) No.917 of 2003 and C.M.P. No.9517 of 2003, decided on 3 December,
rd
2007. ]
Civil Procedure Code, 1908—Order XXVI, Rule 13—Appointment of an Advocate
Commissioner—For passing final decree—Application for—Allowed—Legality of—Delay
of 32 years in filing the final decree application—Effect of—Application for appointment of
Commissioner is maintainable in law even though the same was filed after 32 years as there
is no limitation for filing the final decree application in law—Court below has passed a
considered order in allowing the said application—Order impugned does not suffer
from any illegality or infirmity— Confirmed.
(Paras 15, 17 and 18)
Case law.—AIR 2002 Kant 439; AIR 1989 Ker 289; AIR 1991 Mad 307; ILR 1967 (1)
Mad 136.
Counsel.—Mr. S. Parthasarathy, Sr. Counsel for M/s. Sarva-bhauman Associates, for the
petitioners; Mr. Balasubramanian, for the respondents.
Important point
In a partition suit there is no limitation for filing final decree application and any number
of final decree applications can be filed until the suit is finally disposed of in the considered
opinion of the Court.
JUDGMENT
M. VENUGOPAL, J.—The civil revision petitioners are the defendants in the suit in
O.S.No.381 of 1995 on the file of the District Munsif Court, Perambalur. The respondent herein
is the plaintiff. The respondent/plaintiff filed an interlocutory application in I.A.No.1354/1995
before the Lower Court praying for passing of final decree by means of appointing an Advocate
Commissioner under Order XXVI, Rule 13, CPC. On 23.11.1951, a preliminary decree was
passed between the parties. In the said interlocutory application, the
respondent/plaintiff/petitioner has prayed for his separate share of 1/4 in the application
properties to be allotted to him.
2. A.S.No.174 of 1960 filed against the judgment and decree passed in O.S.No.146/1958
by the learned Sub Judge, Thiruchirappalli, was dismissed as withdrawn by this Court on
19.09.1963. In I.A.No.1354/1995 filed before the lower Court by the
respondent/plaintiff/petitioner, it is specifically stated that it is gross lie to allot that as though
A.S.No.174/1960 on the file of this Court was compromised by allotting certain properties to
him and the same was said to have been delivered on payment of Rs.300/- to him etc.
3. It is relevant to point out that the respondent/plaintiff/petitioner in his affidavit in
I.A.No.1354/1995 has categorically averred that he has not engaged any advocate at High Court
nor he has endorsed any compromise to be recorded by the High Court and that the fact
remains that after the preliminary decree, the properties were not divided by metes and bounds as
per terms of the preliminary decree and in filing final decree application, there is no time limit
prescribed and since item Nos.10 and 11 of ‘B’ Schedule have already been sold, no relief is
prayed for against those items and therefore, prayed for dividing the application mentioned
properties into four shares by metes and bounds and for allotment of 1/4 share.
4. In the counter filed to the I.A.No.1354/1995, it is specifically averred that after the
passing of the decree by the Sub Court, Tiruchirappalli and during the pendancy of the appeal in
High Court, a panchayat was held between the parties Ponnusamy Reddiar, Sadhasivam of
Thirani, Ramasami Reddiar, Village Karnam of Thirani acted as panchayatdars and that
Sadhasivam was the Village Munsif and that the panchayat was held in Chithirai, 1960 and it was
decided by the panchayatdars that the plaintiff must be given one acre of land in S.F.206/2 and
cash of Rs.300/- towards means profit and that panchayat decision was accepted by the parties
and accordingly, the plaintiff was given exclusive possession of one acre in S.F.206/2 of
Thirani village and later a sum of Rs.300/- was paid on 02.07.1960 and for the said payment a
receipt was given by the plaintiff which was attested by the panchayatdars, viz., Ponnusamy
Reddiar, Sadhasivam and Ramasami and in pursuance of the panchayat and acceptance thereof,
the petitioner/plaintiff was given exclusive possession of one acre of land and originally Survey
No.206/2 consists of one acre 98 cents and after the panchayat, to have separate patta in the
name of the plaintiff was subdivided in U.D.R. Proceedings as 206/2B patta was given and he
was paying the kist and was in exclusive possession of the property etc.
5. It was further alleged that in regard to the remaining lands, patta stood in the name of
Ramasami, the first petitioner/first respondent before the Lower Court and he was paying kist and
by mutual arrangement a partition was effected between the parties which was accepted by them
and the same came into force and therefore the respondent/ plaintiff/petitioner was not
entitled to seek the relief of passing of final decree, since the partition was already effected.
6. The delay of 32 years in filing the final decree application is raised as one of the
grounds in this civil revision petition by the revision petitioners/defendants/respondents.
7. It is the case of the revision petitioners that by mutual consent, the partition was effected
and as such, interlocutory application praying for passing of final decree will not lie before the
Trial Court.
8. According to learned counsel for the revision petitioners that the order of the learned
District Munsif in I.A.No.1354/1995, dated 20.03.2003 is illegal because of the fact that the
application for filing decree is not maintainable, since the same was filed after 32 years of passing
of the preliminary decree. It is also the case of the revision petitioners/defendants/respondents
that the Court below after having accepted the evidence of DW.2 who was the witness to
earlier panchayat between the parties ought to have dismissed the application and that in view of
the earlier compromise before this Court, the application for final decree is not maintainable.
9. Learned counsel for the respondent/plaintiff/petitioner contends that the application in
I.A.No.1354/1995 praying for passing of the final decree is maintainable in law, since no time
limit is prescribed for filing final decree application. The learned District Munsif while allowing
the application for appointment of Commissioner has appointed out through R.Manivannan,
advocate fixing the remuneration at Rs.1,500/- to be paid to him directly and that a direction was
issued to the Commissioner to allot one acre to the revision petitioners herein in view of the sale
of the first item of property.
10. It cannot be gainsaid that there are cases in between the parties from 1958. The
Trial Court has not accepted the case of compromise before the High Court. Further, it transpires
that the appeal in A.S.No.174/1960 was ‘dismissed as withdrawn’ on 19.09.1963 as borne out by
records. When the appeal in A.S.No.174/1960 was dismissed as withdrawn on 19.09.1963, there
is no indication of any compromise arrived at between the parties as seen from the said
judgment. The parties inter se are co-owners cannot be denied by any stretch of
imagination.
11. In AIR 2002 Kant 439 between A.P. Madanna [deceased] by l.Rs. v. A.P. Kushalappa
and others, it is observed as follows:—
“Registration Act [16 of 1908], Section 23—Civil P.C. [5 of 1908], Order XX, Rule 18
(2)—Registration of decree—Limitation— Partition Suit—Preliminary decree drawn
up to 08.04.1999 in terms of compromise entered into between parties—Parties
presenting stamp paper commensurate to value of properties falling to their share—
Final decree engrossed on said stamp papers on 07.12.2000—Executable final decree
comes into existence on 07.12.2000—Presentation of decree on 22.12.2000 for
registration is within limitation period of 4 months from passing of decree—Registration
is valid.”
12. In AIR 1989 Ker 289 at page 290 between Laxmi and others v. Sankappa Alwa and
others, it is held as follows:—
“[A] Civil P.C. [1908], Sections 11, 97 and Order XX, Rule 18—Suit for partition—
Preliminary decree passed—Matters decided by decree are final and conclusive
—Decision is final—Principle of res judicata applies.
[B] Civil P.C. [1908], Sections 11 and Order XX, Rule 18—Suit for partition—
Preliminary decree passed—Application for drawing up final decree—It is not
one under Limitation Act—Provisions of that Act do not apply.”
13. In AIR 1991 Mad 307 between Murugan v. Chidambram Pillai and others, it is
observed as follows:
[B] Civil P.C. [1908], Order XX, Rule 18—Partition suit— Preliminary decree—
Execution—Conditional clause of payment in preliminary decree for giving
possession of plaintiff’s share in property—Not independently executable as final
decree till partition of property—Delayed application for passing final decree in
terms of preliminary decree—Not barred.”
14. In ILR 1967 [1] Mad 136 between Murugan v. Chidambram Pillai and others, it is
observed as follows:
[B] Decree for partition by compromise of parties, providing that parties take
delivery of properties allotted in execution—One party applying for passing of
final decree by appointment of Commensurate—Propriety—One of parties taking
possession outside Court—In such case there need be no final decree proceeding
—Court should enquire into such allegation.”
15. In a partition suit, there is no limitation for filing final decree application and any
number of final decree applications can be filed until the suit is finally disposed of in the
considered opinion of this Court. Moreover, as far as the present case is concerned, the Trial
Court has not accepted the plea of village panchayat compromise and therefore, the appeal in
A.S.No.174/1960 was not pressed before the High Court. As a matter of fact, Ex.R.7, the receipt
dated 02.07.1970 given by the respondent/plaintiff/petitioner in favour of the first revision
petitioner/first defendant/first respondent indicates that a sum of Rs.300/- was paid only
towards mean profits as claimed in O.S.No.146/1958 on the file of Sub Court, Tiruchirappalli.
Though RW.2, Ponnusamy, in his evidence has deposed that he was present at the time of
panchayat and that he further stated that one acre land and Rs.300/- was given to the
respondent/plaintiff/petitioner, the same is belied by Ex.R.7-the receipt, which only speaks for the
receipt of Rs.300/- towards mean profit.
16. Learned counsel for the revision petitioners brought to the notice of this Court that
Ex.R.3, the certified copy of the sale deed dated 16.05.1995 speaks of the
respondent/plaintiff/petitioner selling properties mentioned in the said document for Rs.19,000/-
being the sale consideration and this can be taken note of by the Commissioner
appointed by the Trial Court in the final decree application.
17. Looking at from any angle, this Court is of the considered view that the interlocutory
application in I.A.No.1354/1995 filed by the respondent/plaintiff/petitioner for appointment
of Commissioner is maintainable in law even though the same was filed after 32 years and
since there is no limitation for filing the final decree application in law and inasmuch as the Court
below has passed a considered order on 20.03.2003 in allowing the said application and
appointing a Commissioner and giving direction to the Commissioner as stated therein, this Court
sitting in revision, comes to the inevitable conclusion that the order passed by the learned
District Munsif, Perambalur in I.A.No.1354/1995 in O.S.No.381/95 dated 20.03.2003 does not
suffer from any illegality or infirmity and consequently, the same is confirmed.
18. The civil revision petition is dismissed confirming the order of the Trial Court, to meet
the ends of justice. However, there shall be no order as to costs. Consequently connected
miscellaneous petition is also dismissed.
Petitions dismissed.
[2008 (1) T.N.C.J. 425 (Mad)]

MADRAS HIGH COURT
BEFORE :
P. JYOTHIMANI, J.
P. S. NANDAKUMAR AND OTHERS ...Petitioners
Versus
Makkal Samuga Nala Sangam Rep.
by its Secretary and others ...Respondents
[C.R. P. (N.P.D.) No.2243 of 2007 and M.P. No.1 of 2007, decided on 4 December, 2007]
th
(A) Constitution of India, 1950—Article 227—Civil Procedure Code, 1908—Order I,

Rule 8 and Order VI, Rule 16—Declaratory suit—To declare that the suit property
belonged to the village Chavadi which is gramanatham land—And to cancel the patta—
Whether can be termed as abuse of process of Court—In PIL earlier Division Bench held
that the subject matter of the suit is not a Chavadi paramboke land on the basis of the
categorical stand taken by the Tehsildar—Binding decision as was passed after hearing
counsel for both the parties—Subsequent suit by villagers in representative capacity under
Order I, Rule 8, C.P.C. is only an abuse of process of Court—Suit stands struck off.
(Paras 15, 19 and 20)
(B) Civil Procedure Code, 1908—Order VI, Rule 16— Applicability of.
(Para 20)
Case law.—2004 (1) CTC 628; 2006 (4) SCC 214; 2003 (6) SCC 675.
Counsel.—Mrs. Rita Chandrasekar, for the petitioners; Mr. S. M. Loganathan, for the
respondent 1, for Mr. G. Sivakumar, Mrs. Shanthi Rackanppan Government Advocate (CS) for
the respondents 2 and 3.
Important point
Division Bench of High Court had already dealt with the same issue and held that the
subject-matter of the suit is not a Chavadi paramboke land in writ petition filed as public interest
litigation on behalf of villagers, the subsequent suit for same relief is only an abuse of
process of the Court.
JUDGMENT
P. JYOTHIMANI, J.—The revision petition is filed under Article 227 of the Constitution of
India to strike off the plaint in O.S.No.240 of 2007, on the file of District Munsif, Ponneri.
2. The defendants 1 to 3 in the suit have filed the present revision. The first respondent
has filed the above said suit against the revision petitioners as defendants 1 to 3 and the District
Collector, Tiruvallur and the Tahsildar, Ponneri as defendants 4 and 5, for declaration that the suit
property belonged to the Village Chavadi, which is gramanatham land and for mandatory
injunction directing the defendants 4 and 5, viz., the District Collector, Tiruvallur and the
Tahsildar, Ponneri to cancel the patta bearing No.783 standing in the name of the revision
petitioners and for permanent injunction against the revision petitioners.
3. The schedule of property in the suit relates to the lands comprised in Survey
No.423/2 measuring an extent of 0.15 cents, which is stated to be gramanatham chavadi
originally belonged to Government and situated at Sholavaram Firka, Ponneri Taluk, Tiruvallur
District. The said suit was filed on the basis that the first respondent has been in possession of the
said property for 10 years, and running a School without interference from any one. Further, the
plaintiff has stated that he has handed over the property to the Village Panchayat for putting up a
Primary Health Centre and the defendants, who are the revision petitioners are influential
persons in the local area and have created forged documents and misrepresented before the
Revenue authorities and obtained patta in favour of one Shanmuga Chetty, the father of the
revision petitioners. It is also stated that the revision petitioners have been trying to prevent the
putting up of the Primary Health Centre. Further, the plaintiff states that the said Shanmuga
Chetty has executed a settlement deed on 30.09.2002, in favour of the revision petitioners which,
according to the plaintiff, is not valid in law, since he had no right, title, interest over the
property. Further, the plaintiff Sangam along with the Villagers gave a representation to the
Revenue authorities on 28.06.2006 to cancel the patta issued to the revision petitioners.
According to the plaintiff Sangam, the revision petitioners in collusion with the Revenue
authorities have attempted to alienate the suit property in March,2007. With the above said
pleadings, the first respondent has filed the above said suit for the relief as stated above.
4. It is also seen that the first respondent has filed I.A.No.976 of 2007 under Order I, Rule
8 of the Code of Civil Procedure for permission to sue in representative capacity, in which notice
has been ordered and the said notice has already been published in the newspapers on 26.07.2007
and the suit is pending before the District Munsif Court, Ponneri.
5. According to the petitioners, the suit is an abuse of process of law. The suit property
originally belonged to the grandparents of the petitioners, who had purchased the same under a
sale deed dated 21.02.1928, registered on the file of the Sub-Registrar, Arani, Chengalpet. After
the death of their grandparents, the property devolved upon the father of the petitioners and the
petitioners’ father during his life time settled the property in favour of the revision petitioners.
The Revenue authorities have also granted patta and the petitioners have been in continuous
possession.
6. It is the further case of the petitioners that one S.Gandhi, filed a Public Interest
Litigation in W.P.No.33181 of 2005, to consider his representation dated 29.09.2005, on the basis
that the property which is the subject matter of the suit viz., O.S.No.240 of 2007, is a public water
tank and that the revision petitioners are encroachers and they are to be removed. In the
counter affidavit filed by the Tahsildar, Ponneri, who is the 5th defendant in the suit, it was stated
that at the time of issuance of patta to the petitioners, no body objected, apart from denying that
the place was a public tank. No public tank was in existence in Survey No.423/2 as alleged by the
writ petitioner therein. It was, after taking into consideration of the said counter affidavit filed
by the Tahsildar, the Hon’ble Division Bench, by order dated 03.08.2006, dismissed the writ
petition and even the review petition filed by the said writ petitioner was dismissed on
06.09.2006. It is the further case of the petitioners that after the said public interest litigation was
dismissed, at the instance of the said Gandhi, one Balan, the first respondent herein, who is stated
to be the Secretary of the plaintiff Sangam has filed an appeal before the Revenue Divisional
Officer on 06.08.2006 for cancellation of patta issued in favour of the revision petitioners on the
basis that there is a night school existing in the property for the past 10 years. After the revision
petitioners have filed the counter, the authorities have called for a report from the Tahsildar, who
in his proceedings dated 14.03.2007, enclosed all the documents and it was after considering the
same, the Revenue Divisional Officer, by order dated 26.03.2007, orally rejected the appeal
preferred by the said Balan stating that a detailed order will follow.
7. It is also the further case of the petitioners that the first respondent has filed some other
suit in O.S.SR.No.4388 to 4391 of 2006, seeking the same relief, which is made in the present
suit and the said suit was not pursued. Therefore, it is stated by the revision petitioners that they
are in absolute possession and enjoyment of the suit property and accordingly, the present
suit filed by the first respondent Sangam is an abuse of process of law.
8. Mrs.Rita Chandrasekar, learned counsel appearing for the petitioners has taken me to
the affidavit as well as the counter affidavit filed in the public interest litigation in W.P.No.33181
of 2005 and the ultimate order passed by the Hon’ble First Bench of this Court dated 03.08.2006.
According to her, the 5th respondent, Tahsildar has filed a detailed counter affidavit before the
Division Bench of this Court categorically stating that there is no tank in Survey No.423/2,
which is the subject-matter of the suit and patta has been granted in favour of the revision
petitioners. She would further submit that it was after filing the counter affidavit by the
Tahsildar, Ponneri in the said writ petition, which was in June, 2006, the first respondent Sangam
got registered on 28.07.2006 and in fact, after registration, the first respondent Sangam has filed
an appeal before the 5th respondent to cancel the patta granted in favour of the petitioners. She
would also submit that the first respondent has filed some other suit for the same relief in
O.S.SR.Nos.4383 to 4391 of 2006, which have not been pursued and according to her, the present
suit which has been filed by the first respondent Sangam for the same relief, is an abuse of
process of law.
9. On the other hand, Mr.S.M.Loganathan, learned counsel appearing for the first
respondent/plaintiff Sangam would submit that the plaintiff has filed a substantive suit for
declaration in respect of 0.15 cents of lands in Survey No.423/2. While in the counter affidavit
filed in the writ petition filed by some other person as a Public Interest Litigation, the Tahsildar
has only dealt with a part of Survey No.423/4 to the extent of 720 sq.ft. or 1.75 cents and
therefore, the civil Court has to decide as to what is the extent to which the revision petitioners
are entitled, even assuming that patta has been issued in their favour and therefore, the suit can
never be said to be an abuse of process of law. He would also submit that the petitioners are not
entitled to the relief under any of the clauses in Order VI, Rule 16, C.P.C. dealing with striking of
plaint pleadings. It is his further contention that none of the grounds raised by the revision
petitioners is covered under any one of the clauses in Order VII, Rule 11, C.P.C. which relates to
the rejection of the plaint. According to him, the property which is the subject matter of the suit
is different from the property concerned in the writ petition filed as a public interest litigation.
He would further submit that even assuming otherwise, the Division Bench of this Court in the
writ petition has only recorded the counter affidavit filed by the Tahsildar and also the
submission made by the Government Pleader which relates only to 720 sq.ft. and therefore, the
decision of the Division Bench made in the writ petition cannot be a bar for the present suit and
the suit cannot be said to be abuse of process of Court.
10. I have heard the learned counsel for the petitioners as well as the learned counsel for
the respondents and perused the records.
11. It is seen from the certificate of registration in favour of the first respondent/plaintiff
that the plaintiff Sangam was registered as a Society on 28.7.2006. One Gandhi filed
W.P.No.33181 of 2005 as Public Interest Litigation by showing the District Collector, Tiruvallur
and the Tahsildar, Ponneri as respondents 1 and 2 and the present revision petitioners as
respondents 3 to 5 for direction against the respondents 1 and 2 to take appropriate action based
on the representations dated 2.9.2005 and 29.9.2005. The said Gandhi has made it clear in the
affidavit filed in support of the writ petition that the father of the revision petitioners had
obtained a patta in respect of 15 cents of lands of land in survey No.423/2 by misrepresentation
and settled the property in favour of the revision petitioners and it was after coming to know
about the same, he (Gandhi) along with other villagers made a representations on 2.9.2005 and
29.9.2005 to the respondents 1 and 2 therein, viz., the District Collector, Tiruvallur and the
Tahsildar, Ponneri to take immediate action on the basis that the said extent of 15 cents of
land comprised in survey No.423/2 is a public tank, used for reserving rain water from time
immemorial.
12. It is seen that the revision petitioners herein filed their counter affidavit narrating the
details as to how their father got the property as gramanatham and enjoyed the same from 1928
onwards and according to the revision petitioners, the said property never formed part of public
tank at any point of time.
13. The Tahsildar who was the second respondent in the writ petition has also filed a
counter affidavit clearly stating that Survey No.423/4 to an extent of 720 sq.ft. originally was a
village chettinatham and during natham survey and settlement scheme proceedings, the old
Survey No.423/4 was subdivided into 423/2, 660, 661, 662, 663 and 664 and pattas were issued
to the then enjoyers by the Special Tahsildar under natham survey and settlement scheme,
Ponneri during 1995 based on the enjoyment and it was, in that way, the father of the revision
petitioners was granted patta in the year 1995 which was subsequently given to the revision
petitioners by the deed of settlement and patta was also issued to them. It is also clearly stated in
the counter affidavit by the Tahsildar that on the northern side of Survey No.423/2A to 2F which
was originally Survey No.423/4, a small pit is found in Survey No.423/1, classified as
gramanatham due to digging of soil by the people living in the surrounding area for their own
use. It is stated in the counter affidavit that no public tank was in existence in Survey
No.423/2 to be used for preserving rain water. It is further stated that the enquiry with the public
revealed that there was a chavadi (small building) used by the revenue officials for a long time, in
Survey No.422 belonging to the Highways Department, classified as GNT Road in the village
accounts, on the western side of the property belonging to the petitioners in Survey No.423/2. It
is also stated in the counter affidavit that only after conducting field enquiry, pattas were issued
during natham survey and settlement proceedings in the year 1928 and the petitioners’
grandfather purchased a portion of the land in Survey No.423/4 classified as Chettinatham and
certain portion of the said survey number was in the enjoyment of the petitioners’ family from
1928 and patta was also issued by the Special Tahsildar in respect of 606 sq.metres (0.15 cents)
in Survey No.423/2 in the year 1995 to the petitioners’ father and there was no objection raised
by anyone of the villagers at that time. It is also clearly stated that there was no chavadi or public
tank in existence in the land in question in Survey No.423/2 belonging to the revision petitioners
and patta was issued based on their enjoyment during natham survey.
14. After filing of the said counter affidavit, when the matter came up for hearing, the
Hon’ble First Bench of this Court, by order dated 3.8.2006, passed the following order:
“2. The learned Government Pleader, after taking instructions, makes a statement
that the land in question is a patta land belonging to respondents 3 to 5 and that it
is not a Government poromboke land and that there is no public tank in the said
land, as alleged by the petitioner.”
15. It is not in dispute that the review petition filed against the said order was also
dismissed subsequently on 6.9.2006. It was thereafter, the present suit came to be filed by the
first respondent Sangam on behalf of the villagers. As per the averments made in the writ
petition filed as Public Interest Litigation, the petitioner Gandhi has stated that he has filed
representations not only on his behalf but also on behalf of the villagers. After the counter
affidavit was filed and based on the statement made by the learned Government Pleader, the
Division Bench has dismissed the writ petition on the ground that the property is not a
Government poramboke land and there is no public tank in existence in the said land. Therefore,
the said decision of the Hon’ble Division Bench has become final. The question to be considered
in this case is as to whether in spite of the decision given by the Division Bench, the present suit
can be maintained and whether the same can be termed as abuse of process of Court under Order
VI, Rule 16, C.P.C.
16. In the judgment of the Supreme Court in Kanjan Nair Sivaraman Nair v. Narayanan
Nair, reported in 2004 (1) CTC 628, on which reliance was placed by the learned counsel for the
revision petitioners, while dealing with Section 11 and Order II, Rule 2, CPC, it was held
that Section 11 operates as a bar of trial if the said matter was directly and substantially in
issue and finally decided earlier, and therefore the said judgment may not apply to the facts and
circumstances of the case, since the first respondent/plaintiff was not a party to the Public Interest
Litigation before this Court.
17. Mr. S.M. Loganathan, learned counsel placed reliance on the judgment of the Supreme
Court rendered in N. Srinivasa Rao v. Special Court under the A.P. Land Grabbing (Prohibition)
Act and others, 2006 (4) SCC 214 to say that any observation made by the writ Court cannot bind
the parties in a properly constituted suit where the rights of the parties are to be adjudicated. In
that case, while dealing with the abovesaid Act, when a submission was made by the counsel as a
grievance that an observation made by the writ Court should not affect the proper adjudication
of the civil suit, the Supreme Court has clarified by stating that if any civil action is taken in
furtherance of the right under the said Act, the observation made by the writ Court will not be
relied upon in coming to a decision in the suit. The said decision is not helpful to the case on
hand.
18. This Court in the judgment dated 26.10.2007 in C.R.P.No.3299 of 2007 rendered in the
case of Managing Director, M/s.Makkal Tholai Thodarpu Kuzhuman Ltd. v. V. Muthulakshmi,
while dealing with the jurisdiction of the High Court under Article 227 of the Constitution,
relied upon the judgment of the Supreme Court in Surya Dev Rai v. Ram Chandar Rai and
others, 2003(6) SCC 675, wherein the Supreme Court while holding that there is no
straightjacket formula or rigid rules for exercising the jurisdiction of the High Court under
Article 227 of the Constitution of India, ultimately held that the High Court has to decide based
on the facts and circumstances of the given case. In this regard, the observation of the Supreme
Court in that case is relevant which runs as follows:
“Though we have tried to lay down broad principles and working rules, the fact remains
that the parameters for exercise of jurisdiction under Article 226 or 227 of the
Constitution cannot be tied down in a strait-jacket formula or rigid rules. Not less than
often, the High Court would be faced with a dilemma. If it intervenes in pending
proceedings there is bound to be delay in termination of proceedings. If it does not
intervene, the error of the moment may earn immunity from correction. The facts and
circumstances of a given case may make it more appropriate for the High Court to
exercise self-restraint and not to intervene because the error of jurisdiction though
committed is yet capable of being taken care of and corrected at a later stage and the
wrong done, if any, would be set right and rights and equities adjusted in appeal or
revision preferred at the conclusion of the proceedings. But there may be cases where ‘a
stitch in time would save nine’. At the end, we may sum up by saying that the power is
there but the exercise is discretionary which will be governed solely by the dictates of
judicial conscience enriched by judicial experience and practical wisdom of the Judge”.
19. Applying the said ratio laid down by the Supreme Court in the abovesaid case,
especially in the circumstance that the Division Bench of this Court had already dealt with the
same issue and held that the subject-matter of the suit is not a chavadi poramboke land on the
basis of the categorical stand taken by the Tahsildar in his counter affidavit and also in the
circumstance that the said writ petition was filed as Public Interest Litigation on behalf of the
villagers, I am of the considered view that the filing of the present suit is only an abuse of process
of Court. The order of the Division Bench in dismissing the writ petition filed as Public Interest
Litigation holding that it is not a poramboke land can never be stated as a passing observation,
but it is a binding decision since the same has been passed after considering the detailed counter
affidavit filed by the parties and after hearing the counsel for both parties. The first
respondent/plaintiff may not be a party to the said proceedings, but the first respondent has filed
the present suit only on behalf of the villagers as it is seen from the application filed under Order
I, Rule 8, CPC seeking permission to sue on behalf of the villagers. Hence, there is no difficulty
to come to the conclusion that the Public Interest Litigation arose on the same analogy and in
such circumstances, the contention of the learned counsel for the first respondent that it is not
open to the revision petitioners to invoke Order VII, Rule 11, CPC for rejection of plaint is not
sustainable. Order VII, Rule 11, CPC which speak about the cases where there is non-disclosure
of cause of action, the relief claimed is undervalued, the suit appears to be barred by law, etc. in
the following terms:
Order VII, Rule 11, CPC.
“11. Rejection of Plaint.—The plaint shall be rejected in the following cases:
(a) Where it does not disclose a cause of action;
(b) Where the relief claimed is undervalued, and the plaintiff, on being required by
the Court to correct the valuation within a time to be fixed by the Court, fails to
do so;
(c) Where the relief claimed is properly valued, but the plaint is written on the paper
insufficiently stamped, and the plaintiff does not make good the deficiency
within the time, if any, granted by the Court;
(d) Where the suit appears from the statement in the plaint to be barred by any law;
(e) Where it is not filed in duplicate;
(f) Where the plaintiff fails to comply with the provisions of Rule (9).
[Provided that the time fixed by the Court for correction of the valuation or supplying of
the requisite stamp-papers shall not be extended unless the Court, for reasons to be recorded, is
satisfied that the plaintiff was prevented by any cause of an exceptional nature from correcting
the valuation or supplying the requisite stamp-papers, as the case may be, within the time fixed
by the Court and that refusal to extend such time would cause grave injustice to the plaintiff.]
20. On the other hand, Order VI, Rule 16, CPC would squarely apply to the facts and
circumstances of the present case which runs as follows:
Order VI, Rule 16:
“16. Striking out pleadings.—The Court may at any stage of the proceedings order to
be struck out or amended any matter in any pleading—
(a) which may be unnecessary, scandalous, frivolous or, vexatious, or
(b) which may tend to prejudice, embarrass or delay the fair trial of the suit, or
(c) which is otherwise an abuse of the process of the Court.”
On the abovesaid factual position that a decision has already been arrived at by this Court
which has become final, the filing of the suit is only an abuse of process of Court. In view of the
same, I have no hesitation to come to the conclusion that the suit filed by the first respondent has
no substance at all. Therefore, the C.R.P. stands allowed and the suit in O.S.No.240 of 2007 on
the file of the District Munsif’s Court, Ponneri stands struck off. No costs.
C.R. Petition allowed.
[2008 (1) T.N.C.J. 434 (Mad)]

MADRAS HIGH COURT
BEFORE :
P. JYOTHIMANI, J.
VINCENT LOURDHENATHAN DOMINIQUE AND ANOTHER ...Petitioners
Versus
JOSEPHINE SYLA DOMINIQUE ...Respondent
[C.R. P. No.3273 of 2007etc., decided on 4 December, 2007]
th
(A) Practice and Procedure—Document—Nature of—Whether it requires to be

stamped or to be registered—The contents of the document are to be taken into
consideration and not the nomenclature alone.
(Para 9)
(B) Family Arrangement—Inference of. (Para 10)
(C) Constitution of India, 1950—Article 227—Marking of document—Agreement
was entered as 21.5.1999 in presence of panchayatdars—Document sought to be marked has
created title and interest—And cannot be treated as recording of the factum of division
already taken place—Document requires execution of the document on proper stamp
papers and registration per Registration Act—Decision of trial Court rejecting the claim to
mark the agreement dated 21.5.1999 is in accordance with law—No interference
warranted. (Paras 17)
Case law.—2001 (1) LW 257; AIR 1977 Mad 238; 79 LW 222; 61 Mad LJ 418; 2005 (1)
LW 343.
Counsel.—Mr. Srinath Sridevan, for the petitioners; Mr. K. Vasuvenkat, for the
respondent.
Important point
Agreement purported to create, declare, assign, limit and extinguish right, title and
interest over the immovable properties, required to be properly stamped and duty registered.
JUDGMENT
P. JYOTHIMANI, J.—This revision is directed against the order of the learned Principal
Subordinate Judge, Pondicherry, dated 27.11.2006 passed in O.S.No.334 of 2000, rejecting the
documents filed by the revision petitioners.
2. The defendants in the suit are the revision petitioners. The respondent has filed the
suit in O.S.No.334 of 2000 for partition and division of 1/3rd share in the suit property apart
from recovery of an amount of Rs.8,000/- towards past mesne profits and also for permanent
injunction against the defendants from causing any waste and damage to the properties.
3. The suit is laid on the basis that the father and mother of the plaintiff owned “A” and
“B” Schedule properties comprising of houses, shops and vacant sites and they died intestate
leaving behind the plaintiff and defendants as their legal heirs. According to the plaintiff,
the defendants have attempted to partition the properties by allotting a small item of property of
less value described in “A” schedule to the plaintiff, with the help of local people and
panchayatdars, which was not agreed by the plaintiff. It is the further case of the plaintiff that
after prolonged negotiation, on 14.04.2000, the defendants have ultimately agreed for an
amicable partition of movable and immovable properties described in “A” and “B” schedules.
According to the plaintiff, the plaintiff and the defendants have jointly submitted an application
on 03.05.2000, for payment of the amount lying in the Pondicherry State Co-operative Bank
Limited under the said understanding and the same is still pending with the Bank. For the
months of April and May, 2000, the plaintiff and defendants have shared the rental incomes
equally. When the plaintiff claimed for division of 1/3rd share, the defendants resisted the
same, which resulted in the issuance of legal notice on 29.07.2000. With the said pleadings the
plaintiff has filed the suit.
4. The defendants have filed a written statement. According to the defendants, when
the dispute arose, the matter was taken to the panchayatdars of local area and they settled the
matter between the plaintiff and the defendants by a compromise. As per the compromise
arrived at in the presence of the panchayatdars, the plaintiff agreed to take item-1 of “A”
schedule property towards her share and to leave other items towards the shares of the
defendants. It is the further case of the defendants that as per the said understanding, the
agreement for partition was reduced into writing on 21.05.1999 before the panchayatdars and
signed by the plaintiff and defendants and they also agreed to register the partition deed in
future. The said agreement was signed by the panchayatdars as attesting witnesses. According
to the defendants, the plaintiff, having agreed to take the house property, viz., item-1 of “A”
schedule property in full satisfaction of her entire claim, is estopped from going back from the
said agreement. During the trial of the said suit, the defendants have filed the proof affidavit,
in which the defendants wanted to mark a deed of family arrangement, which was objected to by
the plaintiff.
5. The learned trial Judge, while deciding about the marking of the said document on the
defendants’ side, has rejected the same on the ground that the family arrangement produced by
the defendants is a partition deed and unless it is stamped and registered in accordance with
law relating to Indian Stamp Act and Indian Registration Act, the same cannot be admitted as
material evidence. It is, as against the said order of the learned trial Judge, the defendants have
filed the present revision petition.
6. Mr.Srinath Sridevan, learned counsel for the revision petitioners would submit that
the agreement entered on 21.05.1999 in the presence of panchayatdars amounts to
recognition of a division already taken place. Relying upon the last paragraph of the said
agreement, wherein it is agreed between the parties that the gold jewels and silver utensils
belonging to the family have already been partitioned in the presence of panchayatdars, he
would submit that it should be treated that the partition has already taken place and it is only
the factum of division that was entered in the family arrangement on 21.05.1999. He would
further state that the agreement was entered only to record the factum already happened. To
substantiate his contention, he would rely upon various judgments, viz.,
(i) 2001 (1) LW 257 (A.C.Lakshmipathy v. A.M.Chakrapani Reddiar & others);
(ii) AIR 1977 Mad 238 (L.A.N.N.Alagappan v. P. S. Kalyana-sundaram Iyer (died) and
others);
(iii) 79 LW 222 (The Chief Controller Revenue Authority, Board of Revenue, Madras v.
Mohammed Yoonus Sait); and
(iv) 61 MLJ 418 (Vikrala Ramachandracharyulu v. Vikrala Srimth Rangacharyulu and
another).
7. On the other hand, Mr. K. Vasuvenkat, learned counsel appearing for the
respondent would submit that a reference to the said agreement sought to be marked by the
defendants clearly show that it is a partition deed and it is not a family arrangement at all.
According to him, the decision to partition itself was arrived at only on 21.05.1999 in
respect of the immovable properties. To substantiate his contention, he would rely upon the
judgment of this Court in R. Deivanai Ammal (Died) and another v. G. Meenakshi Ammal and
others, 2005 (1) LW 343.
8. I have heard the learned counsel for the petitioners as well as respondent and perused
the entire records, including the order of the learned trial Judge.
9. As rightly pointed out by the learned trial Judge, to decide about the nature of a
document whether it requires to be stamped or to be registered, it is the contents of the
document, that are to be taken into consideration and not the nomenclature alone.
10. The law is well settled that in cases where partition among the joint owners had
already taken place and the factum of the partition effected earlier was put in writing on a later
point of time and the properties are enjoyed as per the said partition, the same can be termed as a
family arrangement and need not be treated as a partition deed and therefore, the question of
stamping and registering the same does not arise. On the other hand, if an agreement itself
creates a right for the first time as a document, then one has to consider the contents of the
agreement, instead of the nomenclature. As correctly found by the learned trial Judge, merely
because it is stated in the said agreement dated 21.05.1999 that in respect of the gold jewels
and silver utensils the same have already been divided among the family members in the
presence of panchayatdars, it does not mean that all other immovable properties have also
been divided already.
11. A reading of the said agreement sought to be marked clearly shows that the said
agreement was entered on 21.05.1999 in the presence of panchayatdars. It further states that
some amounts from the Life Insurance Corporation and bank accounts standing in the name
of the parents of the plaintiff and the defendants are to be received by the second party to the
said agreement, viz., the plaintiff in the suit. The second schedule to the said agreement also
shows that the tiled house situated in Uzhavarkarai Sub-district, Reddiarpalayam Revenue
Village, bearing No.126 Part, re-survey No.140/81 is to be enjoyed by the plaintiff. The
properties mentioned in the third schedule to the agreement have been allotted to the second
defendant, who is the second petitioner herein. Therefore, a reading of the entire agreement
clearly shows that there is no recital to the effect that it is for recording the earlier partition
which had already taken place the said agreement was entered. In that view of the matter, there
is absolutely no difficulty to come to the conclusion that the said agreement cannot be
marked as a document, since it requires to be stamped and registered so as to be admitted in
evidence.
12. In the judgment rendered in 2001 (1) LW 257 (A.C.Lakshmipathy v. A.M.Chakrapani
Reddiar & others), the Division Bench of this Court, while construing a memorandum
recording partial partition in the family which was sought to be marked, after elaborately
discussing the entire issues relating to the Indian Registration Act and the Indian Stamp Act and
also the concept of estoppel, held that the document in question being unstamped and
unregistered cannot be looked into for any purpose. In this regard the Division Bench has
summed up the legal position as under:
“41. We hold that the document in question being an unstamped and unregistered,
cannot be looked into for any purpose. Similarly, oral evidence cannot be let it
about the contents of the said document.
42. To sum up the legal position
I. A family arrangement can be made orally.
II. If made orally, there being no document, no question of registration arises.
III. If the family arrangement is reduced to writing and it purports to create, declare,
assign, limit or extinguish any right, title or interest of any immovable property, it
must be properly stamped and duly registered as per the Indian Stamp Act and
Indian Registration Act.
IV. Whether the terms have been reduced to the form of a document is a question of fact
in each case to be determined upon a consideration of the nature of phraseology
of the writing and the circumstances in which and the purpose with which it was
written.
V. However, a document in the nature of a Memorandum, evidencing a family
arrangement already entered into and prepared as record of what had been agreed
upon, in order that there are no hazy notions in future, need not be stamped or
registered.
VI. Only when the parties reduce the family arrangement in writing with the purposes
of using that writing as proof of what they had arranged and, where the arrangement
is brought about by the document as such, that the document would require
registration as it is then that it would be a document of title declaring for future
what rights in what properties the parties possess.
VII. If the family arrangement is stamped but not registered, it can be looked into for
collateral purposes.
VIII. Whether the purpose is a collateral purpose, is a question of fact depends upon
facts and circumstances of each case. A person cannot claim a right or title to a
property under the said document, which is being looked into only for collateral
purposes.
IX. A family arrangement which is not stamped and not registered cannot be looked into
for any purpose in view of the specific bar in Section 35 of the Indian Stamp Act.”
13. As per the guidelines given by the Division Bench, by applying the same to the facts
of this case and contents of the document which is sought to be marked, there is absolutely no
difficulty to come to the conclusion that this agreement is purported to create, declare, assign,
limit and extinguish right, title and interest over the immovable properties and therefore, the
document is required to be properly stamped and duly registered under the Indian Stamp Act
and the Indian Registration Act.
14. The next Division Bench judgment, relied upon by the learned counsel for the
petitioners in AIR 1977 Mad 238 (L.A.N.N.Alagappan v. P.S.Kalyanasundaram Iyer (died)
and others), has no application to the facts of the present case. That was a case, wherein a
memorandum was executed and sought to be marked which was in the following words:
“I have borrowed from you the sum of Rs.40,000 (Rupees forty thousand only) for
business purposes and I confirm having already deposited with you the available title
deeds as collateral security for the due repayment of the amount due to you with
interest.”
The contents clearly show that it is for the deposit of title deeds and the factum of
deposit of title deeds was recorded and that cannot be said to be a document which created or
extinguished any right. In fact, the Division Bench has held that the only important feature on
which the Court should pay its attention is that the deposit of title deeds had taken place earlier
than the time of writing the memorandum. In other words, what had already happened, viz.,
parting with the title deeds, was recorded subsequently and on the date of document, the
deposit of title deeds was an existing fact. The relevant portion of the judgment of Division
Bench is as follows:
“7. The law on equitable mortgages had developed mostly from the facts and
circumstances of each case. No particular yard-stick can even be laid down with
rigidity so as to bind cases under the subject uniformly, as each case has to be
dealt with on its own merits and indeed has to be adjudged with reference to
the surrounding circumstances as well. The law, which has so far developed and
is likely to develop hereafter, should be confined to the particular facts of
those cases. One telling principle which has emerged from the ratio of the
decisions, however, is that if there is evidence, either extrovert or introvert
which would compel a Court to hold that under a single bargain the borrowing
and the deposit of title deeds were effected and that the intention is made clear
and public only in such a contemporaneous transaction, then a memorandum
evidencing such a bargain needs registration. It may be that the
memorandum contains a recital as to the quantum of the amount borrowed. That
would not make the memorandum any the less a non-registrable one, provided
it is an independent transaction and not the sole bargain to evidence the
deposit of title deeds. The only important feature on which the Court should
pay its concentrated attention is that the deposit of title deeds should have
taken place earlier than the time of the writing of the memorandum. If such a
dissociation in point of time is apparent from the memorandum itself, or if it
could be discovered from the totality of the facts and appreciation of the
surrounding circumstances, then the plaintiff can successfully pilot his case on
the foot of an equitable mortgage and obtain a mortgage decree. If, however,
the Court is not satisfied about the earlier deposit of title deeds, but if the
memorandum projected is the only piece of evidence whereby the equitable
mortgage is created, then notwithstanding the nicety of expressions used therein,
the Court has to hold that such a memorandum is not admissible in evidence
for want of registration.”
15. The term ‘recording’ was construed by the Full Bench of this Court consisting of
M.Anandhanarayanan, O.C.J., Srinivasan and Natesan,JJ., in [79 L.W. 222, The Chief
Controlling Revenue Authority, Board of Revenue, Madras v. Md. Yoonus Sait). While
holding that the document in dispute in that case amounted to settlement and therefore,
chargeable to duty as settlement, the learned Judges have referred to a passage in the judgment
of the Special Bench of Lahore High Court in Choen and Moore v. Revenue Commissioners
reported in 13 Lahore 270, which runs as follows:
“In my opinion ‘recording’ as used in this article means committing to writing as
authentic evidence of a matter having legal importance, evidence of which is thus
preserved and may be appealed to in case of dispute. It is not legally necessary that the
matter and the record thereof should be contemporaneous. There may be cases in
which a fact is reduced to writing as authentic evidence thereof long after it came
into existence .... The document clearly indicates that the primary object ... in executing
it was to bring into existence documentary evidence of the adoption which may be
appealed to in case of any future dispute ...” This passage clearly indicates the scope
of the expression ‘recording’ and the purpose for which a record is made.”
16. The next case relied upon by the learned counsel for the petitioners is the judgment
of this Court in Vikrala Ramachandracharyulu v. Vikrala Srimath Rangacharyulu and another,
61 MLJ 418, which is also not applicable to the facts and circumstances of the present case.
In fact, while dealing with Section 17(2)(v) of the Indian Registration Act, Ramesam, J. has
held as follows:
“Three Hindu reversioners who were entitled to certain properties in equal shares filed a
suit for recovering the same from person to whom they had been improperly alienated
by the widow in possession. During the pendency of the suit they executed an
agreement according to which one of them was to finance the litigation entirely and
in consideration therefor was to get an extra share. In a suit for specific performance,
held, the agreement did not require registration. Though it did not expressly state that
another document would be executed, as it did not by itself convey any property
there was an implied undertaking to execute a further document. The test in all such
cases is not whether a document expressly contemplated executed of another
document, but whether by itself it created any right to immovable property.”
17. Therefore, even as per the judgments referred to by the learned counsel for the
petitioners, on the factual situation of the present case, there is no difficulty to come to the
conclusion that the document sought to be marked by the defendants who are the revision
petitioners herein has created title and interest and cannot be treated as recording of the factum
of division already taken place and therefore, the document requires execution of the
document on proper stamp papers and registration as per the Indian Registration Act. In fact, a
Division Bench of this Court consisting of P.Sathasivam, J. (as he then was) and S.Sardar
Zackria Hussain, J. in R.Deivanai Ammal (died) and another v. G.Meenakshi Amman Ammal
and others, 2005(1) LW 343, relied upon the abovesaid Division Bench Judgement in 2001(1)
LW 257: 2001(1)CTC 112 (cited supra) in respect of various guidelines and held that one of the
documents marked as Ex.B-28 called, Athatchi would come within the meaning of guideline
No.3 enumerated in the judgment of Division Bench cited supra and therefore it purports to
create, declare/extinguish a right, title or interest in the property and hence, it must be properly
stamped and duly registered as per the Indian Stamp Act and Indian Registration Act
respectively, in the following words:
“The document in our case, namely, Athatchi -Ex.B-28 comes within the legal position
No.3 pointed out above. As said earlier, Ex.B-28 is not only a document of family
arrangement reduced to writing, but it purports to create, declare/extinguish right, title
or interest of the properties of Ganapathy Moopanar. In such a circumstance, we
hold that it must be properly stamped and duly registered as per the Indian Stamp
Act and Indian Registration Act respectively. ...”
Therefore, looking at any angle, I have no hesitation to come to the conclusion that the
decision of the learned trial Judge in rejecting the claim of the defendants/revision petitioners
to mark the agreement dated 21.5.1999 is in accordance with law and needs no interference and
the same is neither irregular or illegal. In view of the same, the C.R.P. fails and the same is
dismissed. No costs. Connected miscellaneous petition is closed.
C.R.P. dismissed.
[2008 (1) T.N.C.J. 442 (Mad)]

MADRAS HIGH COURT
BEFORE :
M. VENUGOPAL, J.
S. ANUSUYA ...Petitioner
Versus
ARULMIGHU RENUKA PARAMESHWARI
DEVASTHANAM REP. ITS HERIDITARY
TRUSTEES V. L. VASANTHAWAMAL ...Respondent
[C.R. P. (N.P.D.) No.1677 of 2003 and C.M.P. No.17647 of 2003, decided on 23rd November,
2007]
Civil Procedure Code, 1908—Order IX, Rule 13—Ex parte decree—Setting aside of
—Petitioner is legal heir of tenant not made party proceeding—Ex parte order passed—
Application moved for setting aside order—Rejected without issuing notice to other side—
Legality of—Held, without taking petition on file and without numbering same order passed
by Court below is incorrect—Further opportunity of hearing not given to petitioner—
Hence, order cannot be sustained—Set aside—Remanded for fresh consideration.
(Paras 8 to 10)
Case law.—AIR 1993 SC 2324.
Counsel.—Mr. R. Subramanian, for the petitioner.
JUDGMENT
M. VENUGOPAL, J.—The civil revision petitioner is the legal heir of the deceased father
Narasimhalu, who was the defendant in Ejectment Suit No.83 of 1990 on the file of the IV Small
Causes Court, Chennai.
2. The respondent/plaintiff has filed a suit in Ejectment Suit No.83 of 1990 for recovery of
possession from Narasimhalu. The said Narasimhalu died on 9.12.1989 and hence, M.P.
No.1288 of 1990 was filed to bring on record his daughter/the civil revision petitioner as his legal
heir. The said miscellaneous petition was allowed on 18.11.1999. Later, M.P. No.2386 of 1999
was filed by the respondent/plaintiff to carry out amendment and was allowed on 23.12.99. On
16.9.2002, an ex parte decree was passed against the petitioner in Ejectment Suit No.83 of 1990.
Earlier the petitioner who was impleaded as 2nd defendant by paper publication was set ex parte
on 28.6.2000. It is contended that the revision petitioner was not directly served with
summons through Court and she never resided at No.45, N.S.C. Bose Road, Madras-600 079.
The revision petitioner, on coming to know about the passing of ex parte decree on 19.9.2002,
filed a petition in M.P.SR.No.5147 of 2002 to set aside the said ex parte decree, stating that the
suit summons were not served on her and on coming to know about the ex parte decree,
immediately, she has filed the petition. However, the said petition was rejected by the learned
Judge, Fourth Court of Small Causes, Chennai on 29.11.2002. Aggrieved over the same, the
present civil revision petition has been brought forth by the petitioner in revision.
3. It is represented by the learned counsel for the petitioner that when a petition was filed
under Order IX, Rule 13 of the Civil Procedure Code before the Lower Court to set aside the ex
parte decree passed against the defendant, learned Judge ought to have numbered the said petition
and ordered notice to the other side and thereafter, dispose of the same. Without doing so, the
learned Judge has dismissed the said petition at the S.R. stage itself.
4. According to the learned counsel for the petitioner, the learned Judge, though passed a
detailed order, the same was passed without ordering notice to other side. Hence, the question
that arises for consideration before this Court is whether the petition filed under Order IX, Rule
13 of the Civil Procedure Code can be dismissed at the S.R. Stage itself without numbering the
same?
5. Learned counsel for the petitioner pressed into service Section 122 of the Civil
Procedure Code, which runs as follows:
“Power of certain High Courts to make rules:—High Courts not being the Court of a
Judicial Commissioner may, from time to time after previous publication, make rules
regulating their own procedure and the procedure of the Civil Courts subject to their
superintendence, and may by such rules annul, alter or add to all or any of the rules in the
First Schedule.”
6. He also drew the attention of this Court to Rule 32 of the Civil Rules of Practice, which
runs as follows:
“Proof of facts by affidavit:—Any fact required to be proved upon an interlocutory
proceeding shall, unless otherwise provided by these rules, ordered by the Court, be
proved by affidavit, but the Judge may, in any case, direct evidence to be given orally;
and thereupon the evidence shall be recorded and exhibits marked, in the same manner as
in a suit and lists of the witnesses and exhibit shall be prepared and annexed to the
judgment.”
7. It is not in dispute that the revision petitioner is the legal heir of the deceased
Narasimhalu. According to the learned counsel for the petitioner, the order passed by the
learned Judge in S.R. stage itself is without jurisdiction. It is represented that the averments
mentioned in the petition filed under Order IX, Rule 13 of the Civil Procedure Code to set aside
the ex parte decree dated 16.9.2002 passed against the petitioner are required to be proved
and since no opportunity was given to the revision petitioner to prove her case, the dismissal of
the said petition at the S.R. stage is per se illegal. Reliance was placed on the decision
reported in the case of Karuppaswamy and others v. C. Ramamurthy, AIR 1993 SC 2324,
wherein it is held as follows:
“Limitation Act (1963), Section 21(1), Proviso—Applicability—Suit filed against dead
person—Plaintiff becoming aware of defendant’s death from remark on returned
summons—Seeking impleadment of LRs of defendant, promptly thereafter—Entitled to
invoke proviso to Section 21(1).”
8. A perusal of the order passed by the learned Judge at the S.R. stage itself clearly spells
out that the learned Judge has perused the records in Ejectment Suit No.83 of 1990 and thereafter
passed a detailed order on 29.11.2002 and rejected the petition. But, the principles of natural
justice require that an opportunity should be given to the petitioner to prove her case, based on
the averments made in the affidavit filed in support of the petition to set aside the ex parte decree.
Without taking the said petition on file and without numbering the same, the order passed by the
learned Judge at threshold, which, in the considered opinion of this Court, is not correct.
9. No doubt, the learned Judge, IV Court of Small Causes, Chennai, while passing orders
on 29.11.2002 by rejecting the petition to set aside the ex parte decree, traversed on the factual
details of the matter, but the same was done unilaterally. While dealing with the petition filed
under Order IX, Rule 13 of the Civil Procedure Code, the proper procedure to be adopted by the
learned trial Judge is to assign a number, take it on file, order notice to the other side and after
hearing the matter on merits, arrive at a conclusion and dispose of the same within the parameters
of law.
10. As far as the present case is concerned, such a course was not adopted by the learned
trial Judge. While dealing with the unnumbered petition at S.R. stage and passing orders, the
learned Judge, IV Court of Small Causes has failed to exercise his jurisdiction so vested in law
without giving an opportunity to prove the averments made in the affidavit, by letting in oral
or documentary evidence, if any on both sides.
11. Hence, this Court, sitting in revision, perforce to interfere with the order passed by the
learned trial Judge and allow the civil revision petition, by setting aside the order dated
29.11.2002 passed in M.P. SR.No.5147 of 2002 in Eject. suit No.83 of 1990 on the file of the IV
Small Causes Court, Chennai, to promote substantial cause of justice and to prevent aberration of
justice. Consequently, the connected C.M.P. is closed.
12. In fine, the learned trial Judge, IV Small Causes Court, Chennai is directed by this
Court to take up the petition in M.P.SR.No.5147 of 2002 in Ejectment Suit No.83 of 1990 on file
and dispose of the same on merits according to law after giving opportunity to other side to file
counter and permit the parties to adduce oral and documentary evidence, if any, to effectually and
completely adjudicate the matter in issue as expeditiously as possible. No costs.
Revision allowed.
[2008 (1) T.N.C.J. 445 (Mad)]

MADRAS HIGH COURT
BEFORE :
VIJAY KUMAR ...Petitioner
Versus
N. VASANTHA ...Respondent
[C.R. P. (N.P.D.) Nos.3396 and 3615 of 2007 and M.P. No.1 of 2007, decided on 22nd
November, 2007]
Tamil Nadu Buildings (Lease and Rent Control) Act— Sections 11(3) and 11(4)—
Eviction—Non-deposit of admitted rent within time—Eviction order passed—Appellate
authority confirmed order—Held, no illegality hence calls for no interference with
concurrent finding—Revision dismissed. (Para 5)
Case law.—2006 (5) CTC 698-relied on; 1999 (II) CTC 46; (2006) 1LW 209-
distinguished.
Counsel.—Mr. G. Karthikeyan in CRP No.3396/2007 for the petitioner; Mr. S.
Kadarkarai in CRP NPD No.3396/2007 for the respondent; Mr. S. Kadarkarai in CRP
No.3615/2007 for the petitioner.
JUDGMENT
A.C. ARUMUGAPERUMAL ADITYAN, J.—The judgment in RCA.No.41 of 2006 on the
file of III Additional Subordinate Judge, Coimbatore is under challenge by the tenant in
R.C.O.P.No.22 of 2004. The said RCA had arisen out an order passed in R.C.O.P.No.22 of 2004
which was filed under Sections 11(3) and 11(4) of the Tamil Nadu Buildings (Lease and Rent
Control) Act (hereinafter referred to as “the Act”). The learned Rent Controller, after due
deliberations on the submissions made by the learned counsel appearing for the landlord and the
learned counsel appearing for the tenant, has come to a conclusion that even though according to
the landlord monthly rent for the petition schedule building is Rs.1700/-, the admitted rent ,
according to the tenant is Rs.1000/-, has directed the tenant to deposit the arrears of admitted rent
of Rs.1000/- from April 2002 to the credit of R.C.O.P.No.33 of 2004 giving four weeks time
from the date of the order i.e., on 24.11.2005. Aggrieved by the order of the learned Rent
Controller, the tenant has preferred an appeal in RCA No.41 of 2006 challenging the order passed
in I.A.No.50 of 2004 in R.C.O.P.No.22 of 2004 which was filed under Sections 11(3) and 11(4)
of the Act. The learned Rent Control Appellate Authority, after meticulously going through the
orders of the learned Rent Controller and also the averments in I.A.No.50 of 2004 and the counter
filed by the tenant therein, has come to a conclusion that there is no ground to interfere with the
findings of the learned Rent Controller in the order passed in I.A.No.50 of 2004 in
R.C.O.P.No.22 of 2004 had dismissed RCA No.41 of 2006 thereby confirming the order of the
learned Rent Controller in I.A.No.50 of 2004 in R.C.O.P.No.22 of 2004 which necessitated the
tenant to prefer this revision petition.
2. Admittedly the landlord and the tenant/revision petitioner are close relatives. Even
though, the tenant would contend that there was no lease agreement to show the agreed rent for
the petition schedule premises, in the counter filed in I.A.No.50 of 2004 itself, he has
admitted that he had tendered the arrears of rent to the landlord in April 2002 at the rate of
Rs.1000/-p.m., which was refused to receive by the landlord. Only under such circumstances, the
learned Rent Controller has ordered in the application in I.A.No.50 of 2004 filed under Sections
11(3) and 11(4) of the Act directing the tenant to deposit the admitted rent of Rs.1000/- p.m. from
April 2002 to the credit of R.C.O.P.No.33 of 2004 on the file of District Munsif (Rent Controller)
Mettupalayam.
3. The learned counsel appearing for the revision petitioner relying on a decision
reported in K.P. Janaki Ammal and 8 others v. K. Badrinarayanaiah, 1999(II) CTC 46, would
contend that the deposit of arrears of rent cannot be a precondition when the impugned order was
under challenge. The facts of the said case are that R.C.O.P.No.2177 of 1985 was filed by the
landlord before the Rent Controller, Madras under Section 4 of the Act. The learned Rent
Controller has fixed fair rent at Rs.6335.00 per month. The tenant filed R.C.A.No.360 of 1988
questioning the correctness of the above referred order. The landlord not satisfied with the
quantum of fair rent has filed R.C.A.No.464 of 1988. In the common Judgment filed by the
appellant in R.C.A.No.464 of 1988,the fair rent was fixed as Rs.7,479.00 per mensum. Thereafter
the landlord filed R.C.O.P.No.681 of 1992 against the tenant seeking their eviction stating that
they are guilty of wilful default in payment of rent. In the said rent control petition, the landlord
filed M.P.No.879 of 1992 under Sections 11(3) and 11(4) of the Act to direct the tenant to pay the
arrears of rent quantified at Rs.3,36,869.22 at the rate of Rs.7,479/-p.m. as fixed by the learned
Rent Control Appellate Authority in the fair rent proceedings. Only under such circumstances, it
has been held in the said ratio decidendi by the learned Judge of this Court that while fair rent
proceedings in R.C.A.No.464 of 1988 itself is under challenge, the rent Controller cannot pass an
order in a subsequent R.C.O.P.No.681 of 1992. In M.P.No.879 of 1992 which was filed under
Sections 11(3) and 11(4) of the Act directing the tenant to pay the arrears of rent at the rate of
Rs.7479/-p.m., fixed by the learned Rent Control Appellate Authority in RCA.No.464 of 1988.
So the fact of the said ratio decidendi will not be applicable to the present facts of the case
because the learned Rent Controller in an application filed under Sections 11(3) and 11(4) of
the Act in I.A.No.50 of 2004 in R.C.O.P.No.33 of 2004 has directed only arrears of admitted
rent from April 2002 at the rate of Rs.1000/- to be deposited to the credit of R.C.O.P.No.33 of
2004.
4. The other ratio decidendi relied on by the learned counsel appearing for the revision
petitioner G. Reghunathan v. K.V.Varghese, (2006)1 LW209, will also not be applicable to the
present facts of the case because in the said case, the tenant took a room in the building belonging
to the respondent/landlord and executed an unregistered rent deed on 5.9.1988 for the purpose of
conducting a gold and silver jewellary shop. As per the rent deed, the term of the lease was
15 years. The rent payable was at Rs.750/- p.m. A sum of Rs.85,000/- was given to the
landlord as security which is liable to be returned to the tenant at the time when he vacates the
room. Dispute arose between the landlord and the tenant since the tenant failed to tender the rent
from 5.10.1988. The landlord issued notice under Section 11(2) of the Act [Kerala Buildings
(Lease and Rent Control) Act, 1965] the landlord filed R.C.O.P.No.2 of 1990 before the Rent
Controller for eviction of the tenant on the ground of wilful default and also on the ground that
the tenant had used the building for other purpose than to which it was let out. An order of
evicition was passed under Section 11(2) of the Act. It was contended by the tenant that he
had deposited the entire rent during the pendency of the proceedings and on that score, he cannot
be evicted from the building which was not accepted by the learned Rent Controller and ordered
eviction. The appeal was preferred by the tenant. The learned Rent Control Appellate
Authority has dismissed the appeal which necessitated the tenant to prefer the revision under
Section 20 of the Act. The revision was dismissed. By way of SLP, the tenant moved the
Honourable Apex Court. The relevant observation by the Honourable Apex Court runs as
follows:
“We find that the Authorities below have not approached the question from the
proper prospective. They have not given sufficient emphasis to the statutory
requirement of the effect being material and permanent. It is “material and
permanent”. The words are not disjunctive, like in some other Acts. Here the landlord
had not proved the material and permanent impairment in value or utility. One suspects
that the value and utility are enhanced. The landlords admits that he will get a higher rent
if the room is again let out. We are, therefore, satisfied that interference is justified. We
hold that the landlord has failed to prove that the acts of the tenant constitute the user of
the building in such a manner as to destroy or reduce the value or utility of the building
materially and permanently and held that the order for eviction under Section 11(4)(ii) of
the Act is not maintainable. The facts in the above said dictum is entirely alien to the
facts in the present case.”
5. The learned counsel appearing for the respondent relying on a decision reported in
Maragathammal v. Kamalammal, 2006 (5) CTC 698, contended that the order passed by the
learned Rent Controller under Sections 11(3) and 11(4) of the Act is quite legal and valid which
was also confirmed by the learned Rent Control Appellate Authority. The facts of the above said
ratio decidendi are that before the Apex Court, the order of this Court in CRP.Nos.1981 and
1982 of 2000 was challenged. The learned Rent Controller passed an order of eviction under
Section 11 of the Act. The appellant has filed R.C.O.P.No.162 of 1992 against the respondent
for eviction on the ground of wilful default, demolition and reconstruction and also subletting.
According to the respondent, the monthly rent for the non-residential portion is Rs.650/- and
according to the appellant, respondent failed to pay the rent from March 1990 to 1997 apart from
having sub-let the premises. According to the respondent, the rents were paid regularly till June
1992 and the first appellant refused to receive the rents from the month of July 1992. According
to the respondent, the requirement of demolition and reconstruction was not bona fide. While
the R.C.O.P. was pending, the first appellant filed an application in I.A.No.523 of 1993 under
Section 11 of the Act directing the respondent to deposit the entire admitted arrears of rent into
Court. The Rent Controller allowed the said I.A. after dismissing the defence taken by the tenant
and since the tenant has failed to deposit the arrears of rent,I.A.No.523 of 1993 was allowed and
tenant was ordered to be vacated and handed over the possession of the building. As against the
said order, the respondent/tenant preferred RCA Nos.63 of 1997 and 96 of 1998. The appellate
authority directed the respondent to deposit the arrears of rent from June 1992 to July 1997
which comes to Rs.39,650/- .Both the appeals were disposed of by a common order. The revision
before this Court preferred by the tenant ended against him. When the order of this Court in civil
revision petition was challenged before the Apex Court, the relevant observation made in the said
appeal by the Honourable Apex Court runs as follows:
“We see no reason why the respondent lodged the schedule as late as on 21.11.1995 i.e.,
just the previous day prior to 22.11.1995 by which date when she was directed to deposit
the entire admitted arrears in Court under Section 11. The respondent could have lodged
this schedule on the very next day after the order dated 9.11.1995 i.e., on 10.11.1995 or
within a day or two thereafter. We see no reason why she waited till the eve of
22.11.1995, which was the last date of depositing the entire rent in Court. It is
admitted that the respondent-tenant has been deliberately avoiding the payment of the
rent as and when it fell due.”
So it is made clear from the above said ratio decidendi that when the rent fell due from the
tenant, in the application filed under Sections 11(3) and 11(4) of the Act by the landlord, an
order, directing the tenant to deposit the admitted arrears of rent, has been passed and if the said
order was not complied with then, further proceedings in R.C.O.P. is to be stopped and eviction is
to be ordered. Both the Courts below have concurrently held that since the tenant has failed to
deposit the admitted arrears as per the order passed in I.A.No.50 of 2004 in R.C.O.P.No.22 of
2004 is liable to be evicted. I do not find any reason to interfere with the well considered
concurrent order of the learned Rent Control Appellate Authority in RCA.No.41 of 2006.
C.R.P.(NPD) No.3615 of 2007:
The order passed in I.A.No.261 of 1007 in I.A.No.54 of 2007 in R.C.A.No.41 of 2006 is
under challenge before this Court in this revision petition.
6. I.A.No.261 of 2007 was filed to extend the stay already granted in I.A.No.54 of 2007.
I.A.No.54 of 2007 was filed by the landlord to stay the order passed in R.C.O.P.No.22 of 2004.
The grievance of the revision petitioner is that in the petition filed under Sections 11(3) and 11(4)
of the Act by the landlord in R.C.O.P.No.22 of 2004, the learned Rent Controller inspite of
the tenant’s failure to deposit the admitted rent at the rate of Rs.1000/- per mensum, has not
passed an order of eviction as contemplated under Section 11(4) of the Act but was going on
giving indefinite adjournments. Under such circumstances, the learned Rent Controller is directed
to pass orders in R.C.O.P.No.22 of 2004 within a period of one month from the date of receipt of
a copy of this order in lieu of the dismissal of C.R.P.NPD No.3396 of 2007.
7. In fine, CRP NPD No.3396 of 2007 is dismissed confirming the order passed by the
learned Rent Control Appellate Authority in RCA No.41 of 2006 on the file of III Additional
Subordinate Judge, Coimbatore. The learned Rent Controller is directed to pass order in
R.C.O.P.No.22 of 2004 within a period of one month from the date of receipt of a copy of this
order, with the above direction C.R.P.NPD No.3615 is disposed of .
Revision dismissed.
[2008 (1) T.N.C.J. 450 (Mad)]

MADRAS HIGH COURT
BEFORE :
P. JYOTHIWANI, J.
M. RANI MUNIRATHIRAM ...Petitioner
Versus
THE STATE OF TAMIL NADU REP. BY SECRETARY
TO GOVERNMENT MUNICIPAL ADMINISTRATION
AND WATER SUPPLY DEPARTMENT, FORT ST.
GEORGE CHENNAI AND OTHERS ...Respondents
[Writ Petition No.34715 of 2007, decided on 23 November, 2007]
rd
Tamil Nadu District Municipalities Act, 1920—Section 40-A—Removal of

Chairman from town panchayat—Order challenged—Interim injunction passed by
Court—Notification confirming removal issued—Validity of—Held, injunction was in force
when notification was issued hence notification is non est in law and cannot be given effect
to—Thus notification deemed to be abated—Petition allowed. (Paras 19
and 29)
Case law.—1995 (6) SCC 50; AIR 1992 Gau 25; 2007 AIR SCW 6630; 1994 (6) SCC 332;
AIR 2000 Bom 317; AIR 1998 AP 195; AIR 1998 AP 205; 1999 (9) SCC 16; 1999 Cr.LJ 1378;
AIR 1971 SC 129;-referred.
Counsel.—Mr. S. Parthasarathy, Sr. Counsel for Mr. R. Bharath-kumar, for the
petitioner; Mr. I. Paranthaman, Additional Government Pleader, for the respondent; Mr. V.
Raghavachari, for the intervenor.
JUDGMENT
P. JYOTHIMANI, J.—The writ petition challenges the G.O.(D)No.426, Municipal
Administration and Water Supply (TP2) Department, dated 12.9.2007 passed by the first
respondent. By the said impugned Order, the Government by exercise of its power under Section
40-A of the Tamil Nadu District Municipalities Act, 1920 (hereinafter referred to as the “Act”)
and accepting the resolution passed by the Councillors of Pallipattu Town Panchayat by way of
“No Confidence Motion” against the petitioner, being the President directs the removal of the
writ petitioner as Chairman of Pallipattu Town Panchayat, Tiruvellur District from the office of
the Chairman of the said Town Panchayat. Originally the petitioner was elected as a Ward
Councillor of No.1, Pallipattu Town Panchayat and thereafter, she was elected by majority of
ward members as Town Panchayat President, which was allowed for ladies quota on 28.10.2006.
There are totally 15 members in the Town Panchayat.
2. It is the case of the petitioner that the Vice President of the Town Panchayat in order to
bring one Mrs.Usha Rani as President had obtained signatures from 10 members by threat and
force and moved a No Confidence Motion by giving a letter on 21.6.2007. It was pursuant to the
said letter stated to have been signed by 10 members, presented to the second respondent, the
Assistant Director of Town Panchayats, the second respondent has issued a notice under Section
40-B of the Act intimating the members about the convening of a meeting on 4.7.2007. Since
as required under the Act, 15 clear days notice was not there, the said meeting stood cancelled
and another notice was issued by the second respondent on 3.7.2007 convening a meeting of the
Panchayat on 19.7.2007. On 19.7.2007, the Panchayat meeting is stated to have been held and a
motion for removing the petitioner from the post of President is stated to have been carried out. It
was on 27.8.2007, the petitioner moved this Court by filing the writ petition in W.P.No.27629 of
2007 challenging the meeting called for by the second respondent dated 3.7.2007 on the basis that
the second meeting is not contemplated under the Act. Notice of motion was ordered by this
Court on 22.8.2007 and an order of interim injunction passed restraining the first respondent, the
State of Tamil Nadu from passing further orders pursuant to the meeting held on 19.7.2007 for
the purpose of removal of the President of the Pallipattu Town Panchayat. Initially, the order of
injunction was granted for two weeks and that was extended by another two weeks on 6.9.2007.
On 25.9.2007, this Court disposed of the writ petition with a direction to the petitioner to give a
representation to the first respondent. It is the case of the petitioner that as per the direction, the
petitioner has given a representation to the first respondent on 8.10.2007 and the first respondent
has not passed any order. In the meantime, the impugned G.O., came to be passed on 12.9.2007
by virtue of the powers conferred under Section 40-A of the Act by accepting the resolution of
the Panchayat dated 19.7.2007 ordering removal of the petitioner from the Chairmanship and that
G.O., is now being challenged. It is also relevant to point out that in the meantime, certain
amendments were incorporated into the Act, especially relating to Section 40-A. One of the
provisions of the amendment by way Ordinance is that any motion expressing want of confidence
in the Chairman or Vice-Chairman made under Section 40-A and pending before any officer,
authority or the Government, as the case may be, as provided in Section 40-A, immediately
before the commencement of this Ordinance, shall abate. The petitioner challenges the G.O.,
mainly on the ground that the second notice issued by the second respondent on 3.7.2007 calling
for Panchayat meeting is not contemplated under the Act. That apart, on 22.8.2007, when this
Court has passed an order of interim injunction restraining the first respondent, the Government is
not empowered in passing any further orders pursuant to the meeting of the Panchayat held on
19.7.2007 and particularly when the injunction was in force. It was during that time, the G.O.,
came to be passed on 12.9.2007 and therefore, the G.O., is to be treated as non est since the
Government Order is against the order of this Court.
3. The second respondent has filed a counter affidavit. The main defence raised by the
second respondent is that passing of the Government Order is pursuant to the resolution of the
Panchayat dated 19.7.2007. At the time, when the meeting was called, there was no order
restraining the Panchayat from proceeding with the meeting and therefore, the resolution
passed by the Panchayat is deemed to be in existence and in that event, the natural consequence
for the Government is to issue notification under Section 40-A(12) of the Act. Therefore,
there is nothing wrong in the notification and the Government Order issued by the
Government.
4. Further, it is the case of the Government that when once the Gazette notification is
issued, it is expected to be known to every one and the petitioner cannot take refuge under a cover
stated to have been posted on 1.11.2007, even though Government Order is dated 12.9.2007 and
according to the first respondent, the petitioner is well aware of the notification issued even
on 12.9.2007 itself.
5. It is also the case of the first and second respondents that in the earlier writ petition
ultimately, the decision was not in favour of the petitioner but only the petitioner was directed to
give a representation to the Government, the first respondent and therefore, the pendency of the
injunction application or even an injunction order cannot be deemed to be a bar for the
Government to exercise its statutory function invoking the provisions of the Act.
6. The councillors who have brought the resolution for motion also filed an intervening
application. They have also filed an affidavit to the effect that issuing of Gazette notification
under Section 40-A(12) of the Act is a natural consequence of the resolution passed by the
Panchayat meeting on 19.7.2007 and on that day, when the Panchayat passed a resolution, there
was no impediment on the part of the Panchayat in passing such a resolution and it is not even
the case of the petitioner that any force has been used for the purpose of getting resolution passed
and therefore, the impugned notification should be held valid. It is also the further case of the
interveners that the Government has caused publication on 12.9.2007 not only in respect of the
petitioner but also the chairman of four other panchayats. Therefore, it can never be held as if
a mala fide act only against the petitioner.
7. Mr. S. Parthasarathy, learned senior counsel appearing for the petitioner would submit
that while it is true that the meeting was held on 19.7.2007 and in any event assuming that a
resolution was passed on 19.7.2007, when once the Court order is in existence restraining the
Government, namely, the first respondent from passing any consequential order pursuant to the
resolution of the Panchayat dated 19.7.2007, naturally such consequential order passed by the
Government in disobedience of the order of injunction passed by this Court should be deemed to
be non-est in eye of law. According to the learned senior counsel, the G.O., dated 12.9.2007, the
date on which the injunction was in force, should be ignored. If that being the legal position even
it should be presumed that pursuant to the resolution passed by the Panchayat on 19.7.2007,
the Government has not taken any further action in notifying the said proceedings. According to
the learned senior counsel, the resolution only remains without any further action of issuing
notification and therefore, proceedings are deemed to be pending. In the meantime, the
amendment has come into effect to the Act, which makes it very clear that the resolution should
abate.
8. The learned senior counsel has relied upon the judgments in Surjit Singh and others v.
Harbans Singh and others, reported in 1995 (6) SCC 50, to substantiate his contention that any
action taken by the party during the pendency of the restraint order of the Court should be
deemed to be a non-est.
9. On the other hand, Mr.I.Paranthaman, learned Additional Government Pleader
appearing for the respondents has produced the entire files relating to the said resolution and
other files. His submission is that as far as the Government’s conduct in passing the notification is
concerned, it is a statutory duty which has been performed and therefore, it cannot be said that
the Government is favouring a group of persons, and what all the Government has done is only
pursuant to the resolution passed by the Panchayat on 19.7.2007. Further, the factum of
injunction came to the notice of the Government only on 14.9.2007 by which time all process for
issuing the impugned notification were completed and notification issued.
10. The learned Additional Government Pleader for the respondents has relied upon
various decisions in support of his contention namely, in Pulin Das Kakati v. Rajendra Nath
Hazarika reported in AIR 1972 Gau. 25 (V 59 C 8), in Balakrushna Behera and another v.
Satya Prakash Dash reported in 2007 AIR SCW 6630 and in Niaz Mohammad and others v.
State of Haryana and others, reported in 1994 (6) SCC 332.
11. It is true that while going through the files, it is revealed that till 14.9.2007, the order of
interim injunction passed by this Court was not brought to the notice of the first respondent and
therefore, the contention of Mr.I.Paranthaman, learned Additional Government Pleader for the
respondents is that the Government has passed the G.O., without any mala fide intention, and in
any event it remains a fact that injunction was in force on the date of the Government Order and
the injunction order was passed after hearing the counsel for the Government.
12. Mr. V.Raghavachari learned counsel for the interveners while reiterating the contents
of the affidavit filed by the interveners would submit that what is done by the Government is a
statutory function and nobody can find fault with them. The learned counsel has relied on
various judgments especially in Jaisingh Vithoba Girase v. State of Maharashtra and others
reported in AIR 2000 Bom 317, in Manujusna Kadam v. Government of A.P. reported in AIR
1998 AP 195, in Samala Jayaramaiah v. Government of Andhra Pradesh reported in AIR 1998
AP 205 apart from 1999 (9) SCC 16 (Maharaha Chintamani Saran Nath Shahdeo v. State of
Bihar and others) to show that there is absolutely lack of jurisdiction in this case and usurpation
of any jurisdiction would amount to revival of an illegal order.
13. Heard Mr.S.Parthasarathy, learned senior counsel appearing for the petitioner,
Mr.I.Paranthaman, learned Additional Government Pleader appearing for the respondents and
Mr.V.Raghavachari, learned counsel appearing for the interveners and also perused the entire
records including the files produced by the learned Additional Government Pleader.
14. Section 40-A of the Act as it stood before the Ordinance came into effect is in the
following terms:
“Section 40-A. Motion of no-confidence in Chairman or Vice-Chairman.—(1)
Subject to the provisions of this section, a motion expressing want of confidence
in the chairman or vice-chairman may be made in accordance with the procedure
laid down herein.
(2) Written notice of intention to make the motion in such form as may be fixed by
the State Government, signed by such number of councillors as shall constitute
not less than one half of the sanctioned strength of the council, together with a
copy of the motion which is proposed to be made, shall be delivered by any two
of the councillor, signing the notice in person together, to the Regional Director
of Municipal Administration.
(3) The Regional Director of Municipal Administration shall then convene a meeting
for the consideration of the motion, to be held at the municipal office, at a
time appointed by him which shall not be later than thirty days from the date
on which the notice under sub-section (2) was delivered to him. He shall give to
the councillors notice of not less than fifteen clear days of such meeting and of
the time appointed therefor.
(4) The Regional Director of Municipal Administration shall preside at the meeting
convened under this section, and no other person shall preside thereat. If within
half an hour after the time appointed for the meeting Regional Director of
Municipal Administration is not present to preside at the meeting, the meeting
shall stand adjourned to a time to be appointed and notified to the councillors by
the Regional Director of Municipal Administration under sub-section (5).
(5) If the Regional Director of Municipal Administration is unable to preside at the
meeting, he may, after recording his reasons in writing, adjourn the meeting to
such other time as he may appoint. The date so appointed shall not be later than
thirty days from the date appointed for the meeting under sub-section (3).
Notice of not less than seven clear days shall be given to the councillors of the
time appointed for the adjourned meeting.
(6) Save as provided in sub-sections (4) and (5) a meeting convened for the
purpose of considering a motion under this section, shall not for any reasons be
adjourned.
(7) As soon as the meeting convened under this section has commenced, the
Regional Director of Municipal Administration shall read to the council the
motion for the consideration of which it has been convened, and declare it to be
open for debates.
(8) No debate on any motion under this section shall be adjourned.
(9) Such debate shall automatically terminate on the expiry of two hours from the
time appointed for the commencement of the meeting, if it is not concluded
earlier. Upon the conclusion of the debate or upon the expiry of the said period of
two hours, as the case may be, the motion shall be put to the vote of the council.
(10) The Regional Director of Municipal Administration shall not speak on the merits
of the motion, nor shall he be entitled to vote thereon.
(11) A copy of the minutes of the meeting together with a copy of the motion and the
result of the voting thereon shall forthwith on the termination of the meeting be
forwarded by the Regional Director of Municipal Administration to the State
Government.
(12) If the motion is carried with the support of not less than three-fifth of the
sanctioned strength of the council, the State Government shall, by notification,
remove the Chairman or Vice-Chairman.
(13) If the motion is not carried by such a majority as aforesaid, or if the meeting
cannot be held for want of a quorum, no notice of any subsequent motion
expressing want of confidence in the same Chairman or Vice-Chairman shall
be received until after the expiry of six months from the date of the meeting.
(14) No notice of a motion under this section shall be received within six months of
the assumption of office by a Chairman or Vice-Chairman.”
15. Therefore, Section 40-A of the Act, as it stood before the amendment, which came into
effect on 4.10.2007 empowered the Panchayat to move no confidence motion against the
Chairman or Vice-Chairman by way of a motion signed by not less than one half of the
sanctioned strength and the same having been presented by minimum two councillors to the
Regional Director of Municipal Administration. As per sub-section (12), the motion carried out
by not less than three-fifth of the sanctioned strength of the council has to be notified by the State
Government by which the removal of the Chairman or Vice-chairman comes into effect. It is also
stated in Section 40-A (13) that if such resolution was not passed for want of a quorum, no notice
of any subsequent motion expressing want of confidence in the same Chairman or Vice-Chairman
shall be received until after the expiry of six months from the date of the meeting.
16. Some amendments were incorporated under Section 40-A of the Act relating to—
(i) submission of motion, which was originally by half of the sanctioned strength of
the council is now made as three-fifth of the total number of members of the council
(ii) in respect of carrying out a motion, it was three-fifth of the sanctioned strength and
the same has been made as four-fifth of the sanctioned strength.
Likewise, in respect of the disability in moving further motion as contemplated
under Section 40-A (13), instead of six months, the same has been increased to one
year. Likewise there is a consequential change under Section 40-A (14) also. The said
amendment by way of Ordinance has come into effect from 4.10.2007.
17. It is true that when a no confidence motion was moved against the petitioner, out of the
total number of councillors namely, 15, 10 councillors have signed in the same and it is also
not in dispute that minimum requirement of two councillors have presented the same before the
second respondent and it is also not in dispute that a resolution has been carried out on 19.7.2007
in the meeting of the Panchayat which was convened. Even though the contention raised as a
point that there is no right on the part of the second respondent to issue a second notice, the same
is not insisted at this stage and therefore, the issue is left open. It is relevant to point out that
originally notice was given on 25.6.2007 for convening a meeting on 4.7.2007. Probably after
finding that 15 clear days were not available, the said meeting was not convened. It is clear that a
notice was given on 3.7.2007 and that notice is under the provisions of the Act by giving 15
days and the meeting was held and the resolution was carried out. It remains a fact that on the
date of resolution namely 19.7.2007, the petitioner has not moved the Court and the petitioner
has ultimately approached this Court on 22.8.2007 by filing the writ petition in W.P.No.27629 of
2007. That writ petition was filed challenging the notice given by the second respondent on
3.7.2007 convening the meeting on 19.7.2007. Pending the writ petition, the petitioner
filed an interim application praying for interim injunction restraining the first respondent
State Government from passing any further orders. It is not in dispute that on 22.8.2007, this
Court has passed an order of interim injunction restraining the State Government namely, the first
respondent from passing any further orders pursuant to the meeting held on 19.7.2007 for the
purpose of removal of the President of the Pallipattu Town Panchayat and that order of injunction
was subsequently extended on 6.9.2007 for another two weeks i.e., upto 20.9.2007. It is in
between this time when the order of injunction was in force, the impugned G.O. came to be
passed on 12.9.2007. Therefore, the question to be decided is as to whether the impugned
Government Order, which was passed on 12.9.2007, at the time when the injunction order was
working against the first respondent, the Government was competent to pass such order or such
notification issued by the Government is valid in law. If the G.O. passed on 12.9.2007 is not valid
due to reason of the pendency of injunction against the first respondent for passing notification or
orders, then it is only natural that the resolution of the Panchayat passed on 19.7.2007 remains
not notified. As enumerated above, the resolution passed by the Panachayat on 19.7.2007
comes into effect after notification is effected under Section 40-A(12) of the Act and that
notification is issued by the Government.
18. In Surjit Singh and others v. Harbans Singh and others reported in 1995 (6) SCC
50, the Supreme Court had an occasion to decide about the validity of any alienation or
assignment made in defiance of the Court’s order irrespective of whether it was of the
property per se or of the decree pertaining assignment as non est. The Supreme Court has
ultimately held that when the Court intends a particular state of affairs to exist while it is in
seisin of a lis, that state of affairs is not only required to be maintained, but it is presumed to exist
till the Court orders otherwise. The Supreme Court has further held that in such circumstances, it
is the duty of the Court and also the right to treat the alienation or assignment as having not taken
place at all for its purposes. The relevant portion of the Supreme Court in this regard is para 4,
which reads as follows:
“4. As said before, the assignment is by means of a registered deed. The assignment
had taken place after the passing of the preliminary decree in which Pritam Singh
has been allotted 1/3rd share. His right to property to that extent stood
established. A decree relating to immovable property worth more than
hundred rupees, if being assigned, was required to be registered. That has
instantly been done. It is per se property, for it relates to the immovable property
involved in the suit. It clearly and squarely fell within the ambit of the restraint
order. In sum, it did not make any appreciable difference whether property per se
had been alienated or a decree pertaining to that property. In defiance of the
restraint order, the alienation/assignment was made. If we were to let it go as
such, it would defeat the ends of justice and the prevalent public policy. When
the Court intends a particular state of affairs to exist while it is in seisin of a lis,
that state of affairs is not only required to be maintained, but it is presumed to
exist till the Court orders otherwise. The Court, in these circumstances has the
duty, as also the right, to treat the alienation/assignment as having not taken place
at all for its purposes. Once that is so, Pritam Singh and his assignees,
respondents herein, cannot claim to be impleaded as parties on the basis of
assignment. Therefore, the assignees-respondents could not have been impleaded
by the trial Court as parties to the suit, in disobedience of its orders. The
principles of lis pendens are altogether on a different footing. We do not propose
to examine their involvement presently. All what is emphasised is that the
assignees in the present facts and circumstances had no cause to be impleaded as
parties to the suit. On that basis, there was no cause for going into the question of
interpretation of paragraphs 13 and 14 of the settlement deed. The path treated by
the Courts below was, in our view, out of their bounds. Unhesitatingly, we upset
all the three orders of the Courts below and reject the application of the assignees
for impleadment under Order XXII, Rule 10, CPC.”
(emphasis supplied)
19. Therefore, it is clear that when once an order of injunction is in operation against the
first respondent, it can be safely presumed that the notification issued by the first respondent on
12.9.2007, has to be ignored and has to be treated as non-est in eye of law.
20. The judgments referred to by Mr.I.Paranthaman, learned Additional Government
Pleader for the respondents on the face of it have no relevance to the facts of this case at all.
21. In Pulin Das Kakati v. Rajendra Nath Hazarika reported in AIR 1972 Gau 25 ( V 59
C 8), the Gauhati High Court had to deal with Order III, Rule 5 of CPC, wherein notice to pleader
regarding presumption as to its communication to party was held to be rebuttable and not
conclusive.
22. In Mariyappa v. Ramakrishna Rao reported in 1999 Cri L.J. 1378, the Karnataka High
Court was dealing about the civil contempt case, wherein the plea of ignorance of order of interim
stay was considered. On the fact of the said case, the Karnataka High Court has held that the sale
deed was executed by the power of attorney agent on the same day of passing of order of interim
stay without knowledge of the same and the Power of attorney holder was not impleaded. In that
context, the Karnataka High Court has held that there was no deliberate disobedience of the Court
order.
23. A similar view was taken by the Supreme Court in Balakrushna Behera and another v.
Satya Prakash Dash reported in 2007 AIR SCW 6630. That was relating to the publication of
results by the University. As per the direction of the Court, the University has published the
results and while dealing with it, the Supreme Court has held that there was no willful
disobedience even though there was some delay in executing the same.
24. The judgment of the Supreme Court in Balwant Singh v. Mool Chand reported in AIR
1971 SC 129, is not applicable to the facts and circumstances of the present case. That was a
case, wherein the Supreme Court had an occasion to deal about the ex parte interim order granted
in favour of the petitioner, which was likely to affect the third parties interest and causing the
grave injustice to the non-petitioners by holding that under Article 226 of the Constitution of
India, the Court has to correct such injustice. Equally, the judgments relied upon by
Mr.V.Raghavachari, learned counsel for the interveners have no relevance to the facts and
circumstances of the present case.
25. In Jaisingh Vithoba Girase v. State of Maharashtra reported in AIR 2000 Bom 317,
wherein the Bombay High Court had an occasion to decide about an election of the Chairman and
Vice Chairman under Maharashtra Agricultural Produce Marketing (Regulation) Act, 1964. That
was also a case where no confidence motion against Chairman under Section 23-A of the Act
was moved and the Division Bench of the Maharashtra High Court has held that Section 23-A are
the regulating procedure for expressing no confidence against Chairman and Vice-Chairman as a
complete the Code in itself and there is no abdication of powers and the powers vested with the
Collector is not unguided power and that does not suffer from excessive delegation.
26. It is relevant to point out that under the provisions of the said Act, there is no similar
provision as that of the notification by the Government about the no confidence motion
contemplated under Section 40-A(12) of the District Municipalities Act. Likewise, even in two
other cases relating to the Andhra Pradesh Panchayat Raj Act, 1994, which were also relating to
no confidence motion moved against the Chairman of Zilla Parishad, the same was the issue. A
careful reading of those judgments show that in those cases, there are no provisions for the
purpose of the resolution to be passed by the Panchayat and notified by the Government.
27. The next judgment, which is relied upon by Mr.V.Raghavachari, learned counsel for
the interveners relates to the tenancy laws under the Bihar Land Reforms Act decided by the
Supreme Court. That was the case in Maharaja Chitamani Saran Nath Shahdeo v. State of Bihar
and others reported in 1999 (8) SCC 16. The Supreme Court has held that though the Act vests
no powers on Board of Revenue, order of member of the Board directing action to be taken for
refund of excess compensation paid was held to be valid and proper holding that if such an order
passed by the Member of Board, who has actually no jurisdiction to set aside such an order, then
it will amount to revival of an invalid order of compensation to the appellant.
28. Mr. V. Raghavachari, learned counsel for the interveners heavily relied upon the said
judgment of the Supreme Court to show that if notification of the Government is set aside, it
means that the Panchayat, which has got legal right to pass resolution and which has in fact
passed a resolution on 19.7.2007 in accordance with law will be invalid and it will amount to
making a valid act of the Panchayat as invalid, particularly when the said resolution of the
Panchayat dated 19.7.2007 was not challenged.
29. As enumerated above, under the provisions of the Act, there is a specific provision
under Section 40-A(12) stating that any resolution passed by the Panchayat will have to be
notified by the Government to the effect that the Chairman or President is removed. Therefore, it
is clear that it is as on the date of notification removal comes into effect. Since on the said date
impugned G.O., the order of injunction was in force, the impugned order has to be ignored and
therefore, it should be presumed that it is only a resolution of the Panchayat dated 19.7.2007,
which is in existence, which will be operative only if it is properly notified as per Section
40-A (12) of the Act. In the meantime by advent of the amendment by way of Ordinance which
has come into effect, from 4.10.2007 under Section 40-A pending proceedings are stated to be
abated. Therefore, in my considered opinion when once the impugned G.O., is to go, since it will
be treated as non est in law, it should be presumed that the resolution of the Panchayat dated
19.7.2007 remains before it is notified, the amendment has come into effect and therefore the
resolution of the Panchayat dated 19.7.2007 pending notification deemed to be abated.
30. In view of the same, the writ petition is allowed. Consequently, connected
miscellaneous petition is closed. No costs.
Writ petition allowed.
[2008 (1) T.N.C.J. 462 (Mad)]
MADRAS HIGH COURT
BEFORE :
M. VENUGOPAL, J.
K. M. SUBRAMANI ...Petitioner
Versus
PATTAMMAL AND OTHERS ...Respondents
[CRP (NPD) No.808 of 2004 and CMP No.6502 of 2004, decided on 22 November, 2007]
nd
Limitation of Act, 1963—Section 5—Condonation of delay—Dismissal of suit for non

prosecution—Restoration application moved after 989 days alleging that sixth
respondent/plaintiff was suffering from heart ailment—Court below allowed application on
condition of payment of Rs.2000/- without considering health condition of other plaintiffs—
Validity of—Held, though sufficient cause has not been mentioned yet Court is to take
liberal view in these matters and in order to deliver substantial justice technicalities to be
avoided by Court—Hence conditional order not suffer from any illegality or
irregularity—Thus, petition dismissed.
(Paras 15 to 17)
Case law.—1998 (2) CTC 533; 2003 (2) MLJ 837; 2001 (2) MLJ 310; 2001 (1) CTC 769
—referred.
Counsel.—Mr. T. N. Rajagopalan, for the petitioner; Mr. R. M. Sundar, for the
respondents 1 to 10.
JUDGMENT
M. VENUGOPAL, J.—The above civil revision petition has been filed against the order
dated 13.02.2004 in I.A.No.15254/2003 in O.S.No.2435/1997 passed by the learned XI Assistant
Judge, City Civil Court, Chennai.
2. The revision petitioner is the first defendant/first respondent in O.S.No.2435/1997 and
in I.A.No.15254/2003. The respondents 1 to 10 herein are the plaintiffs/petitioners in Lower
Court. Respondents 11 and 12 were given up by the respondents/plaintiffs/petitioners on the
ground that they are not necessary parties to the present revision.
3. The respondents/plaintiffs/petitioners have filed an application in I.A.No.15254/2003
before the learned XI Assistant Judge, City Civil Court, Chennai, under Section 5 of the
Limitation Act to condone the delay of 989 days in filing the petition to restore the suit on file. It
is represented that all the respondents/plaintiffs/petitioners in the suit were represented by the
sixth respondent/sixth plaintiff/sixth petitioner as Power Agent. In the interlocutory application,
the sixth respondent/sixth plaintiff/sixth petitioner has filed an affidavit wherein it is specifically
stated that he was not feeling well due to heart ailment and because of the said reason, he was
unable to contact his counsel in time and that he came to know that due to the non-appearance,
the case was closed and dismissed for default on 06.11.2000 and prayed for condoning the delay
of 989 days in filing the restoration application in the main suit which was dismissed for default.
Except the reason that the sixth respondent/sixth plaintiff/sixth petitioner was unwell due to heart
ailment, there is no averment in the affidavit filed by him as to when he came to know about the
date of dismissal of the suit for default. The affidavit filed by the sixth respondent/sixth
plaintiff/sixth petitioner is very bald and vague in this regard.
4. In the counter affidavit filed by the revision petitioner/first defendant/first respondent,
it is inter-alia mentioned that the inordinate delay of 989 days was not explained and there was
no sufficient cause for condoning the delay and that the sixth respondent/sixth plaintiff/sixth
petitioner has not produced any documentary evidence in support of their stand. It is also further
stated in the said counter affidavit filed by the revision petitioner/first defendant/first respondent
before the Trial Court that on 06.11.2000 when the suit in O.S.No.2435/1997 was posted finally
for trial, the plaintiffs/petitioners did not appear and the suit was dismissed rightly for non-
appearance.
5. The learned XI Assistant Judge, City Civil Court, Chennai, has passed a conditional
order on 13.02.2004 stating that:
“ the application will be allowed on payment of cost of Rs.2,000/- to the revision
petitioner/first defendant/first respondent on or before 03.03.2004 failing which the
application shall stand dismissed. Call on 04.03.2004.”
6. It is against this order, the present revision has been filed by the revision petitioner/first
defendant/first respondent.
7. It is represented by the learned counsel for the respondents herein that in the Lower
Court, the cost of Rs.2,000/- was deposited to the credit of the suit. According to the learned
counsel for the revision petitioner/first defendant/first respondent, the order of the trial Court in
allowing the interlocutory application to condone the delay of 989 days in filing the application to
restore the suit is contrary to law and it suffers from material irregularity and that the trial Court
has failed to note the judgments reported in 2001 (3) M.L.J.500 and 2001 (2) M.L.J. 310.
8. It is the case of the revision petitioner that inspite of no document or medical
certificate being produced by the respondents to condone the huge delay of 989 days, the trial
Court was pleased to allow the application conditionally.
9. Learned counsel for the revision petitioner contends that there are ten plaintiffs in the
suit and it is not the case of the other plaintiffs that all of them are suffering from ailments and
were prevented from filing a petition to restore the suit. Further, it is also contended on
behalf of the revision petitioner that the Trial Court erred in placing reliance on the decision
reported in 1998 (2) CTC 533 between Balakrishnan v. M. Krishnamoorthy, since the facts of the
present case are different.
10. Leaanred counsel for the revision petitioner drew the attention of this Court that the
learned Trial Judge has erred in his order stating that the main suit is for partition and has
proceeded on that ground whereas in reality, the suit is for declaration of the sale deed in favour
of the petitioner was not valid and also for partition. In support of his contention, the learned
counsel for the revision petitioner has produced a copy of the plaint before this Court and from
the perusal of the said plaint, it transpires that the suit was laid for declaration that the sale deed
dated 07.02.1992 executed by the learned II Judge, Small Causes Court, Madras, in favour of the
first defendant was obtained by fraud and suppression of facts and not binding upon the
plaintiffs or in the alternative for a declaration that the Sale deed dated 07.02.1992 obtained by
the first respondent enure for the benefit of the legal heirs of the deceased K.R.Manicka Achari,
viz., the father of the revision petitioner/first defendant/first respondent and secondly to
declare that the plaintiffs 1 to 6 are entitled to 6/8 share and the plaintiffs 7 to 10 are entitled to
1/8 share in the land comprised in O.S.No.1059 in R.S.No.3022/2 morefully described in the
Schedule ‘A’ and to put the plaintiffs in possession of the respective shares by metes and bounds
and also for directing partition of the house and building bearing Door No.6, Meeyan Sahib
Street, Chepauk, Madras-5 morefully described in Schedule ‘B’ by allotting 6/8 share to plaintiffs
1 to 6 and 1/8 share jointly to plaintiffs 7 to 10.
11. While allowing the I.A.No.15254/2003, the learned Trial Judge has observed that “the
right to seek partition will not be extinguished by the delay in filing the petition to restore the suit
and that the deponent has not produced any documentary evidence in support of his plea.”
12. Expatiating the submission that the I.A.No.15254/2003 has to be dismissed, learned
counsel for the revision petitioner placed reliance on the decision in 2003 (2) M.L.J. 837 between
P. Perumal v. Minor Kumaresan S/o. P. Perumal, represented by his mother Mrs. Vendammal
and another, wherein this Court has observed as follows:
“(A) Limitation Act (36 of 1963), Section 5—Sufficient cause—Applications filed for
condonation of delay in setting aside the ex-parte decree—Applications
dismissed—Revision preferred—It is true that the question of condonation of
delay should be liberally considered—Facts disclose that the party against whom,
ex-parte decree was passed, was aware of the proceedings—Sufficient cause not
made out.”
13. He also cited decision in 2001 (2) M.L.J. 310 [Vajjiravelu Asari (Died) and others v.
Arulmighu Sri Arunachaleswarar Devasthanam by its Executive Officer, Tiruvannamalai],
wherein this Court has held as follows:
“Civil Procedure Code (V of 1908), Order IX, Rule 13—Limitation Act [XXXVI of
1963], Section 5—Application to set aside ex-parte decree and application for
condonation of delay of 2062 days—Petitioner saying that he was not keeping well and
could not appear before Court because of his deafness—No evidence to show that he
suffered from any illness that prevented him from attending Court for 2062 days—
Application dismissed.”
14. Learned counsel for the respondents/plaintiffs/petitioners supported the order
passed by the learned Trial Judge and submits that the word “Sufficient Cause” has to be liberally
construed and cited decision in 2000 (1) CTC 769 between Ram Nath Sao @ Ram Nath Sahu
and others v. Gobardhan Sao and others, wherein the Honourable Supreme Court has inter-
alia observed that “Courts have to strike balance between the effect or on parties to lis and
that Court should not proceed with tendency of finding fault with cause shown and reject
petition in over jubiliation of disposal drive and acceptance of explanation furnished should be
rule and refusal exception more so and when no negligence, inaction or want of bona fide may be
imputed to defaulting party”.
15. It is true that in the affidavit filed by the sixth respondent/sixth defendant/sixth
petitioner in I.A.No.15254/2003 before the Lower Court, there is no whisper as to what dated the
petitioners came to know about the suit being dismissed for default and the said affidavit is very
bald in nature.
16. It is relevant to make a mention that refusing to condone the delay can result in
meritorious matter being thrown out at the initial stage and cause of justice being defeated. As
against this, when the delay is condoned, the highest that can happen is that the cause would be
decided on merits after hearing the parties. When substantial justice and technical considerations
are pitted against each other, cause of substantial justice deserves to be preferred for the other
side cannot claim to have a vested right in injustice being done because of non-deliberate delay.
After all, the litigant does not stand to benefit by resorting to delay. Per contra, he runs a serious
risk in the considered opinion of this Court. Moreover, it is to be remembered that judiciary is
respected not on account of its power to legalize injustice on technical grounds but because it is
capable of removing injustice and as expected to do so.
17. As far as the present case is concerned, even though sufficient cause has not been
mentioned, in view of the decision of the Hon’ble Supreme Court reported in 2002 (1) CTC 769
between Ram Nath Sao @ Ram Nath Sahu and others v. Gobardhan Sao and others, that Courts
are to take a liberal view in these matters, this Court is of the view that in order to deliver
substantial justice to the parties and in as much as the technicalities to be avoided by the law
Courts and since the processual law is always subservient and is in aid of justice, the conditional
order passed in the I.A.No.15254/2003 in regard to the payment of cost of Rs.2,000/- does not
suffer from any illegality or irregularity and sitting in revision, this Court refuses to interfere with
the orders passed by the Court below and resultantly, the civil revision petition is dismissed and
the order passed by the Lower Court is confirmed for the reasons assigned in this revision by
this Court. However, there shall be no order as to costs. Consequently, connected miscellaneous
petition is also dismissed.
Petitions dismissed.
[2008 (1) T.N.C.J. 466 (Mad)]

MADRAS HIGH COURT
BEFORE :
M. VENUGOPAL, J.
M/S. FAREEDA TEXTILES ...Petitioner
Versus
M/S. SHA JEWANTHARAJ ASHOK KUMAR ...Respondent
[C.R.P. (N.P.D.) Nos.996 and 997 of 2004, decided on 23 rd
November, 2007]
Civil Procedure Code, 1908—Order IX, Rule 13—Ex-parte order—Setting aside of—
On day of hearing suit was not entered in cause list of Court—Court proceeded ex-parte
against petitioner—Sufficient cause shown for non-appearance—For substantial
justice ex-parte order liable to be set aside—Petition allowed.
(Paras 13 and 14)
Case law.—2003 (3) CTC 385; 2006 (1) TNLJ (C) (SC) 66—relied on.
Counsel.—Mr. K. Lavan, for the petitioner; No appearance for the respondent.
JUDGMENT
M. VENUGOPAL, J.—Heard the learned counsel for the petitioner/defendant in both the
revision petitions.
2. The petitioner in both these revisions is the defendant in O.S.No.493/2003 on the file
of VII Assistant Judge, City Civil Court, Chennai. The respondent herein is the plaintiff in the
suit.
3.The respondent herein has laid a suit for recovery of Rs.1,51,636.86 with future interest
from the revision petitioner/defendant in regard to the supply of textile goods. The suit was
posted for filing written statement on 14.10.2003 and no written statement was filed.
4. It is represented by the learned counsel for the revision petitioner that the case was not
there in the cause list of the Court prepared and pasted in Court Hall of the trial Court and
subsequently at the instance of respondent/plaintiff’s counsel the bundle was taken up for
hearing and at that point of time there was no representation on the side of the revision
petitioner/defendant and the Trial Court was forced to pass orders setting the defendant as ex
parte on 14.10.2003 for non-filing of written statement and the matter was posted for
evidence on 28.10.2003. The revision petitioner filed I.A.No.19257/2003 for setting aside
the order dated 14.10.2003 setting him ex parte. It transpires that the respondent/plaintiff filed
I.A.No.1964/2003 for attachment of immovable properties before judgment. The revision
petitioner/defendant was also set ex parte in that application for his failure to file counter and a
direction was given to furnish security for the suit claim on or before 28.10.2003.
5. The revision petitioner also filed I.A.No.19256/2003 to set aside that order also. In
the affidavit in I.A.No.19256/2003 it is specifically averred by the deponent Mr.K.Lavan, learned
counsel for the petitioner that the aforesaid I.A. was posted on 14.10.2003 for filing counter
finally and that the above suit was not entered in the cause list prepared and posted for hearing
on 14.10.2003 and therefore he was under the impression that after the Court calling work
was over the matter could be brought to the notice of the Court and later he came back at
12.00 o’clock to the lower Court and during the interregnum the said application was taken up
and called and since there was no representation on the side of the defendant and also because
of the fact that counter was not filed the revision petitioner/defendant was set ex parte.
6. It is significant to make a mentioning that in I.A.No.19257/2003 the learned counsel
for the revision petitioner Mr.K.Lavan who has sworn the affidavit has reiterated the
averments made by him in the affidavit filed in I.A.No.19256/2003 and therefore the same is not
repeated.
7. The managing partner of the revision petitioner/defendant in the suit has also filed
an affidavit before the Trial Court in both the I.As., referred to above mentioning the fact that
the suit was not entered in the cause list prepared and posted for hearing on 14.10.2003.
Suffice to point out that the additional affidavit filed by the managing partner of the revision
petitioner/defendant only points out that he was told that his presence was not required on
14.10.2003 and that under the bona fide impression that his counsel will look after his case
and file the written statement and therefore neither his absence nor his counsel’s absence on
14.10.2003 was neither wilful nor wanton but due to the aforesaid reasons.
8. A common counter was filed by respondent/plaintiff in I.A.Nos. 19256/2003 and
19257/2003 stating that the revision petitioner/defendant has invited the adverse orders passed
on 14.10.2003 by the trial Court on its own negligence and the plea that written statement was
ready and the matter did not appear in the cause list are after thought etc;
9. The learned VII Assistant Judge, City Civil Court in his order in I.A.Nos.19256/2003
and 19257/2003 dated 30.3.2004 has inter alia observed that “while exercising the power to
receive written statement beyond the stipulated period the Courts should be very careful in
exercising their judicial discretion. If the Courts are allowed to exercise such a power liberally
or without any basis, then it will be against the intention and the object of the Legislature in
bringing out the amendment and further the judicial discretion of the Courts has to be
exercised sparingly on valid grounds and only if the Courts are satisfied that the defendant
could not file the written statement for the reasons beyond his control and such defence is
absolutely necessary to decide the issue and that the discretion should not be used with a view
to give an opportunity to the defendant to defend his case though he was not able to satisfy
the Court regarding the reasons for the delay and in the instant case the revision
petitioner/defendant has not shown sufficient reasons not only for his failure to file written
statement within 90 days but also within the extended time granted by this Court and
similarly, no sufficient cause was shown for non-filing of counter in I.A.No.1964/2003 till
14.10.2003 and resultantly, dismissed the two applications.”
10. The averment that the case was omitted in the cause list prepared and pasted in the
Court Hall was not specifically adverted to by the Court below in its common order dated
30.3.2004 passed in I.A.Nos.19256/2003 and 19257/2003.
11. In 2003 (3) CTC 385 (Ponnammal v. Subburaman and another) it is observed as
follows:
“Code of Civil Procedure, 1908, Order VIII, Rules 1, 5(2), 9 and 10 (as amended by
Central Act 96 of 1999 and 22 of 2002), Section 148 - Time limit fixed for filing
written statement - Written statement to be presented within 30 days from the date of
service of summons - Power given to Court to permit filing of written statement within
90 days from date of service of summons for reasons to be recorded on petition filed
by defendant - Defendant loses his right to file written statement after 90 days and
Court empowered to deliver judgment in suit - Provision of Order VIII is not
mandatory - No amendment has been introduced by Legislature to provisions of Order
VIII, Rule 9 or Rule 10 - Rule 9 of Order VIII gives power to Court to call upon
Defendant at any time to file written statement or additional written statement -
Court can give only 30 days time for submission of written statement from date of order
- No specific time limit contemplated within which order has to be passed - Court
can before delivering judgment call upon defendant to file written statement or
additional written statement by giving 30 days time - Courts have power to permit
defendant to file written statement or additional written statement even in cases
posted for judgment i.e., before pronouncing judgment on basis that defendant did not
file written statement - Court has to exercise its powers to receive additional
statement to render justice and on satisfaction that valid and acceptable grounds have
been made out by defendant for not filing written statement within stipulated time -
Such power is applicable to Section 148 of Code of Civil Procedure or to later part of
Order IX, Rule 9 or part of Rule 10 - Receiving written statement beyond stipulated
period is only exception - Normally written statement should be filed within time
stipulated - Court should exercise its powers to receive written statement beyond
specified period very carefully - Liberal exercise of such power would defeat the
object of Legislature in bringing about the amendment to Code of Civil Procedure -
Defendant has to establish that he could not file written statement for reasons
beyond his control and written statement is necessary to decide controversy in suit -
Court should not exercise its discretion only to give opportunity to defendant to
defend where he is not able to satisfy Court by adducing reasons for delay - On facts,
refusal to exercise its discretion cannot be found fault with and Court declined to
interfere with Order under Revisional Jurisdiction.”
12. In 2006 (1) TNLJ (Civil) (SC) page 66 (Shaikh Salim Haji Abdul Khayumsab v.
Kumar and others) it is held that “the Order VIII, Rule 1 C.P.C., provision does not deal with
the power of the Court and also does not specifically take away the power of Court to take
written statement on record though filed beyond the time as provided for and further that the
said provision is procedural and it is not a part of substantive law and the object is to expedite
hearing and not to scuttle the same.”
13. Applying the principles as laid down in the aforesaid decision of the Hon’ble
Supreme Court and also bearing in mind of the fact that the suit O.S.No.493/2003 was not
entered in the cause list of the VII Assistant Court prepared for the hearing on 14.10.2003 and
also satisfied with the reasons ascribed in the affidavits filed by both the learned counsel for
the revision petitioner/defendant and Mohammed Rafee, Managing partner of the revision
petitioner/defendant for their non-appearance before trial Court, this Court is of the considered
view that the revisions need to be allowed in furtherance of substantial cause of justice, for the
simple reason that the Courts are there to deliver substantial justice to parties and not to adopt a
pedantic approach, when substantial justice and technical considerations are pitted against each
other and cause of substantial justice deserves to be preferred and that judiciary is respected
not on account of its power to legalise injustice on technical grounds because it is capable of
removing injustice and is expected to do so.
14. In that view of the matter the civil revision petitions are allowed. The orders dated
30.4.2004 passed in I.A.Nos.19256/2003 and 19257/2003 in O.S.No.493/2003 by the learned
VII Assistant Judge, City Civil Court, Chennai are hereby set aside. No costs.
15. Since the suit is of the year 2003, the learned VII Assistant Judge, City Civil Court,
Chennai is directed to dispose of the suit - O.S.No.493/2003 within three weeks from the date of
receipt of the copy of this order.
C.R.P. allowed.
[2008 (1) T.N.C.J. 471 (Mad) (MB)]

MADRAS HIGH COURT
(MADURAI-BENCH)
BEFORE:
G. RAJASURIA, J
THE SPECIAL TEHSILDAR, LAND ACQUISITION
OFFICER (ADW), RAMANATHAPURAM ...Petitioner
Versus
GERWANI AMMAL (D) AND ANOTHER ...Respondents
[C. R. P. (PD) (MD) No. 2417 of 2003 and CMP No. 18307 of 2003, decided on 30th October,
2007]
Land Acquisition Act, 1894—Sections 4, 18 and 21—Compensation—Determination
of—Acquisition of agricultural land—Whether sale deed of small land could be taken into
consideration for determining compensation—Some portion of acquired land is near to
main road—Land Acquisition Officer fixed rate at Rs. 100/- per cent whereas Reference
Court fixed it at Rs. 3000/- on basis of slashing down 50% of price of sample sale deed—
Held, sample land is adjacent to acquired land—Part of acquired land is also adjacent to
National Highway—When Government in entitled to deduct 1/3 towards development
charges hence value should not be slashed down to half but it should be slightly higher—
Thus award modified accordingly. (Paras 11and 12)
Case law.—2001 (3) CTC 69; 2006 (2) CTC 733.
Counsel.—Mr. S. Paramasivan, Special Government Pleader (CS), for the petitioner; Mr.
M. Thirunavukkarasu, for the respondents.
JUDGMENT
G. RAJASURIA, J.—This civil revision petition has been filed to get set aside the order
dated 11.04.2002 passed in L.A.C.M.A.No.17 of 1998, on the file of the Sub Court, Paramakudi.
3. This civil revision petition is focussed as against the order of the learned Subordinate
Judge in fixing the quantum of land value in respect of the land acquired in Survey No.370/2,
Rameswaram Village, Rameswaram Taluk.
4. The facts in nutshell would run thus:
The Government took steps under the Land Acquisition Act and acquired an extent of 3
acres 89 cents in Survey No.370/2, Rameshwaram Village. It is an agricultural land adjacent to
the Rameshwaram-Madurai Highway Road. After complying with the formalities the Land
Acquisition Officer fixed the quantum at Rs.100/- per cent, whereas on the matter on being
referred to the Sub Court, the value per cent was fixed at Rs.3,000/-.
5. Being aggrieved by and dissatisfied with it, the Government preferred the revision on
the main ground that the enhancement awarded by the Court is exorbitantly higher and
disproportionate to the actual land value available in the vicinity.
6. The point for determination is as to what should be the value to be fixed for the land
acquired?
7. The learned counsel for the respondent placing reliance on the decision of this Court
reported in 2001(3) C.T.C. 69 [The Special Tahsildar (L.A.)(Adi Dravidar Welfare) v. S.M. Seigu
Jalaiudeen] would develop his arguments to the effect that for the land acquired only 20%
deduction towards development charges was effected from the market value. In that case also, he
would submit, a larger extent of agricultural land was acquired, for which sample sale deed
relating to smaller extent was taken as the basic factor for assessment. Whereas the learned
Special Government Pleader placing reliance on the decision of the Division Bench of this Court
reported in 2006(2) C.T.C. 733 [The Special Tahsildar (Land Acquisition) v. Valliammal] would
submit that 1/3 amount should have been deducted from the market value towards development
charges as the land acquired is an agricultural land. He would also submit that the Sub Court was
wrong in relying on the sale deed relating to the smaller extent as a basic factor for assessing the
market value.
8. The perusal of the Judgment cited by either side would clearly demonstrate that there
should be deduction towards development charges when the acquired land is not a developed
land. The core question arises as to what should be the quantum of deduction relating to the
agricultural land. If the agricultural land is a stripe of land abetting the main road then the
question of development charge would not arise at all for the reason that the person who may
have the house building there would have ingress and egress by using the available road which is
adjacent to the land, but on the other hand in case of vast extent of land, there is bound to be lot
of house sites in the interior portion of it and necessarily there should be roads. An excerpt from
the decision of the said Division Bench cited supra would run thus:
“12. The Apex Court in the judgment Karan Singh v. Union of India, 1998 (1) MLJ
35 (SC), has held that “it is only the previous judgment of a Court or an award
which can be made the basis for assessment of the market value of the acquired
land subject to the party relying on such judgment, to adduce evidence for
showing that due regard being given to all attendant facts, it could form the basis
for fixing the market value of the acquired land”. In this case, admittedly the
order dated 12.12.1997 passed in L.A.O.P. Nos.9, 10 and 11 of 1995 has not been
produced before the Court and no evidence has been adduced and therefore the
Reference Court erred in relying on the same. The Apex Court in the decision
Padma Uppal and others v. State of Punjab and others, 1977(1) SCC 330, has
held that “it is the settled proposition that price fetched for small plots of land
cannot be applied to the lands covering a very large extent and that the large area
of land cannot possibly fetch a price at the same rate at which small plots are
sold”. In the case Gulzara Singh and others v. State of Punjab and others, 1993
(4) SCC 245, the Apex Court has upheld the deduction of 1/3rd land towards the
developmental charges. In K. Vasundara Devi v. Revenue Divisional Officer
(LAO), 1995 (5) SCC 426, the Apex Court reiterated that when genuine and
reliable sale deeds of small extents were considered to determine the market
value, the same will not form the sole basis to determine the market value of
large tracts of land. Sufficient deduction should be made to arrive at the just and
fair market value for large tracts of land. In Special Land Acquisition Officer v.
V.T. Velu, 1996(2) SCC 538, the Apex Court has held that at least 1/3rd of the
land acquired is to be set apart for road purpose, developmental purpose and
other civil amenities. In U.P. Avas Evam Vikas Parishad v. Jainul Islam and
another, 1998 (2) SCC 467, the Apex Court upheld the deduction of 1/3rd price
towards the cost of development for the housing scheme. It has been held in
Ravinder Narain and another v. Union of India, 2003(4) SCC 481:
“It cannot, however, be laid down as an absolute proposition that the rates fixed for the
small plots cannot be the basis for fixation of the rate. For example, where there is no
other material, it may in appropriate cases be open to the adjudicating Court to make
comparision of the price paid for small plots of land. However, in such cases necessary
deductions/adjustments have to be made while determining the prices”.
In the same judgment, it has been laid down that while determining the market value of the
land acquired, it has to be correctly determined and paid so that there is neither unjust
enrichment on the part of the acquirer nor undue deprivation on the part of the owner. The
compensation must be determined by reference to the price, which a willing vendor might
reasonably expect to receive from the willing purchaser. While considering the market value,
disinclination of the vendor to part with his land and the urgent necessity of the purchaser to buy
it must alike to be disregarded neither must be considered as acting under any compulsion. The
value of the land is not be estimated as its value to the purchaser. But similarly this does not
mean that the fact that some particular purchaser might desire the land more than others is to be
disregarded. The wish of a particular purchaser, though not his compulsion may always be taken
into consideration for what it is worth. Section 23 of the Act enumerates the matters to be
considered in determining compensation. The first criterion to be taken into consideration is the
market value of the land on the date of publication of the notification under Section 4(1).
Similarly, Section 24 of the Act enumerates the matters which the Court shall not take into
consideration in determining the compensation. A safeguard is provided in Section 25 of the Act
that the amount of compensation to be awarded by the Court shall not be less than the amount
awarded by the Collector under Section 11. Value of the potentiality is to be determined on such
materials as are available and without indulgence in any fits of imagination. Impracticability of
determining the potential value is writ large in almost all cases. There is bound to be some
amount of guesswork involved while determining the potentiality. It can be broadly stated that the
element of speculation is reduced to a minimum if the underlying principles of fixation of market
value with reference to comparable sales are made:
“(i) The sale is within a reasonable time of the date of notification under Section 4(1).
(ii) It should be a bona fide transaction.
(iii) It should be of the land acquired or of the land adjacent to the land acquired; and
(iv) It should possess similar advantages. It is only when these facts are present, it can
merit a consideration as a comparable case.”
9. The learned counsel for the land owner/claimant would submit that even if 1/3rd has to
be deducted as per the decision of the Division Bench of this Court, the core question arises as to
why the Sub Court after taking Ex.C-1 the sale deed dated 05.03.1997 relating to 5 cents of land
worth Rs.7,500/- as the basis, should get the value slashed down to an extent of Rs.3,000/-. The
learned counsel for the claimants himself would narrate that the Court after initially slashing
down the value from Rs.7,500/- to Rs.3,750/- per cent, further towards development charges,
deducted 20% and arrived at the sum of Rs.3,000/- per cent. He would also submit that there was
no rhyme or reason in reducing the value per cent from Rs.7,500/- to Rs.3,750/-.
10. Whereas the learned Special Government Pleader would submit convincingly that
the said sale deed emerged relating to smaller extent of land and in such a case it is better not to
take it as a conclusive factor for assessing the value of the land.
11. It is just and necessary to analyse Ex.C-1 dated 05.03.1997 relating to 5 cents of
land. The Section 4(1) notification was issued on 09.02.1998, whereas Ex.C1 emerged on
09.03.1997 almost 11 months anterior to it. Hence there is no doubt that it could be taken as a
sample for assessing the value of the acquired land, but the core question is whether the sale deed
relating to 5 cents of land could be taken as the basis for assessing the larger extent of land
acquired. In the map available the land covered under Ex.C1 situates near the National Highway
and accordingly that smaller extent of land has been assessed at that value. The Court therefore
constrained to take only half its value to assess the value of the larger extent of land acquired.
The Land Acquisition Officer took sample sale deeds of lands abetting the sea-shore and they
have been rightly rejected by the lower Court. From the map it is clear that Ex.C-1 land is
situated adjacent to the acquired land. Part of the acquired land is also adjacent to the National
Highway. In such a case I am of the considered view that when the Government is entitled to
deduct 1/3 towards development charges as per the view expressed supra, the value of the land
should not be slashed down to half but it should be slightly higher so as to say, it could be
Rs.4,000/- from that of Rs.3,750/-. Accordingly, I am of the considered opinion that the entire
land has to be valued at the rate of Rs.4,000/- per cent and from that 1/3rd has to be deducted
towards development charges and accordingly it has to be worked out.
12. The learned Government Advocate would submit that that the Sub Court wrongly
granted 30% solatium but it should be slashed down to 15% and the interest should be 6% p.a.
instead of 9% and 15% p.a. Hence, to that much extent modifications are ordered.
13. Accordingly, the award amount is modified as under:
(i) Value of 3 acre 89 cents
at the rate of Rs.2,667/- per cent .. Rs.10,37,463.00
(ii) 15% Solatium .. Rs. 1,55,619.00
———————-
Total .. Rs.11,93,082.00
———————-
14. In the result, this appeal is partly allowed and the award of the Subordinate Judge,
Ramanathapuram is reduced from Rs.15,17,100/ (Rupees Fifteen Lakhs Seventeen Thousand
and one hundred only) to Rs.11,93,082/- (Rupees Eleven Lakhs Ninety-three Thousand and
eighty-two only). The rate of interest awarded by the Tribunal at 9% and 12% p.a. is reduced to
6% p.a. In other aspects the award shall hold good. Consequently, connected C.M.P.No.11449 of
2003 is closed. No costs.
15. Accordingly, the petition is disposed of. Consequently, connected C.M.P. No.18307 of
2003 is closed. No costs.
Petition disposed of.
[2008 (1) T.N.C.J. 476 (SC)]

SUPREME COURT
BEFORE:
DR. ARIJIT PASAYAT AND P. SATHASIVAM, JJ.
BHADRAPPA (D) BY LRS. ...Appellant Versus
TOLACHA NAIK ...Respondent
[Civil Appeal No. 7782 of 2001 with Civil Appeal No. 7799/2001, decided on 8 th January,
2008]
Karnataka Scheduled Castes and Schedule Tribes (Prohibition of Transfer of Certain
Lands) Act, 1978—Sections 4 and 5—Prohibition of transfer of granted land—Land in
question is a granted land—Later property alienated—Alienation effected within period of
prohibition—Hence, any person other than grantee or his legal heirs in possession of
granted land shall be deemed to be in possession under a transfer which is null and void—
Hence, order of High Court calls for no interference— Appeal dismissed.
(Para 8)
Case law:—2005 (6) SCC 228.—relied on.
JUDGMENT
DR. ARIJIT PASAYAT, J.—Heard learned counsel for the parties.
2. Challenge in this appeal is to the order passed by a Division Bench of the Karnataka
High Court dismissing the writ appeal filed under Section 4 of the Karnataka High Court Act (in
short the “High Court Act”). Challenge in the appeal was to the order passed by a learned Single
Judge who had dismissed the writ petition filed by the appellant-Bhadrappa. After the death of
Bhadrappa, his legal heirs were brought on record and they are the appellants before this Court.
3. Background facts in a nutshell are as follows:
The land in question was granted some time in the year 1955 in favour of one Gopya Naik
who is referred hereinafter as grantee. Saguvali Chit was issued on 11.10.1956. Seetamma,
widow of the grantee who was also the mother of respondent No.3 sold the land in the year 1959
in favour of one Gangappa who in turn sold the said land to Ahmad Pasha and there was
subsequent sale by Ahmad Pasha to Bhadrappa. The land in question bears Survey No.106
measuring 3 acres and 5 guntas.
4. Proceedings were initiated on the basis of an application that the alienation was hit by
Section 4 of Karnataka Scheduled Castes and Schedules Tribes (Prohibition of Transfer of
Certain Lands) Act, 1978 (in short the Act).
5. Sections 4 and 5 of the Act read as follows:
“4. Prohibition of transfer of granted lands.—(1) Notwithstanding anything in any
law, agreement, contract or instrument, any transfer of granted land made either
before or after the commencement of this Act, in contravention of the terms of
the grant of such land or the law providing for such grant, or sub-section (2) shall
be null and void and no right, title or interest in such land shall be conveyed or be
deemed ever to have conveyed by such transfer.
(2) No person shall, after the commencement of this Act, transfer or acquire by
transfer any granted land without the previous permission of the Government.
(3) The provisions of sub-sections (1) and (2) shall apply also to the sale of any land
in execution of a decree or order of a Civil Court or of any award or order of
any other authority.
5. Resumption and restitution of granted lands.—(1) Where, on application by any
interested person or on information given in writing by any person or suo-motu,
and after such enquiry as he deems necessary, the Assistant Commissioner is
satisfied that the transfer of any granted land is null and void under sub-section
(1) of Section 4, he may,—
(a) by order take possession of such land after evicting all persons in possession
thereof in such manner as may be prescribed:
Provided that no such order shall be made except after giving the person affected
a reasonable opportunity of being heard;
(b) restore such land to the original grantee or his legal heir. Where it is not
reasonably practicable to restore the land to such grantee or legal heir; such land
shall be deemed to have vested in the Government free form all encumbrances.
The Government may grant such land to a person belonging to any of the
Scheduled Castes or Scheduled Tribes in accordance with the rules relating to
grant of land.
(1-A) After an enquiry referred to in sub-section (1) the Assistant
Commissioner may, if he is satisfied that transfer of any granted land is not null
and void pass an order accordingly.
(2) Subject to the orders of the Deputy Commissioner under Section 5-A, any order
passed under sub-sections (1) and (1-A) shall be final and shall not be questioned
in any Court of law and no injunction shall be granted by any Court in respect of
any proceeding taken or about to be taken by the Assistant Commissioner in
pursuance of any power conferred by or under this Act.
(3) For the purposes of this section, where any granted land is in the possession of a
person, other than the original grantee or his legal heir, it shall be presumed, until
the contrary is proved, that such person has acquired the land by a transfer which
is null and void under the provisions of sub- section (1) of Section 4.”
6. An order was passed in the proceeding under Section 5 of the Act to the effect that the
alienation had been effected within the period of prohibition. The appellant took the stand that the
land was not a free grant land. It was a grant for upset price. The authorities concluded that it was
a free grant. The writ petition was dismissed.
7. The stand before the learned Single Judge and the Division Bench were reiterated.
8. Section 5(3) of the Act clearly provides that any person other than the grantee or his
legal heirs in possession of the granted land, shall be deemed to be in possession under a transfer
which is null and void under Sections 4(1) and 4(2) until and unless anything contrary is
established. Burden, therefore, is on the person in possession to prove that his possession was
valid in accordance with law. It was found factually that the writ petitioner had failed to establish
the same. The transfer in favour of Gangappa was in violation of the prohibition of the Act. That
being so, the High Court was right in dismissing the writ petition and the writ appeal. In Guntaiah
and Ors. v. Hambamma and Ors., 2005 (6) SCC 228 at para 14, it was noted as follows:
“It is also pertinent to note that the prohibition regarding alienation is a restrictive
covenant binding on the grantee. The grantee is not challenging that condition. In all
these proceedings, challenge is made by the third party who purchased the land from the
grantee. The third party is not entitled to say that the conditions imposed by the grantor to
the grantee were void. As far as the contract of sale is concerned, it was entered into
between the Government and the grantee and at that time the third-party purchaser had no
interest in such transaction. Of course, he would be entitled to challenge the violation of
any statutory provisions but if the grant by itself specifically says that there shall not be
any alienation by the grantee for a period of 15 years, that is binding on the grantee so
long as he does not challenge that clause, more so when he purchased the land, in spite of
being aware of the condition. The Full Bench seriously erred in holding that the land was
granted under Rule 43-J and that the Authorities were not empowered to impose any
conditions regarding alienation without adverting to Section 4 of Act 2 of 1979. These
lands were given to landless persons almost free of cost and it was done as a social
welfare measure to improve the conditions of poor landless persons. When these
lands were purchased by third parties taking advantage of illiteracy and poverty of the
grantees, Act 2 of 1979 was passed with a view to retrieve these lands from the third-
party purchasers. When Act 2 of 1979 was challenged, this Court observed in
Manchegowda v. State of Karnataka (SCC pp. 310-11, para 17)
“17. Granted lands were intended for the benefit and enjoyment of the original
grantees who happen to belong to the Scheduled Castes and Scheduled Tribes. At
the time of the grant, a condition had been imposed for protecting the
interests of the original grantees in the granted lands by restricting the transfer of
the same. The condition regarding the prohibition on transfer of such granted
lands for a specified period, was imposed by virtue of the specific term in the
grant itself or by reason of any law, rule or regulation governing such grant. It
was undoubtedly open to the grantor at the time of granting lands to the original
grantees to stipulate such a condition the condition being a term of the grant
itself, and the condition was imposed in the interests of the grantee. Except on the
basis of such a condition the grantor might not have made any such grant at all.
The condition imposed against the transfer for a particular period of such granted
lands which were granted essentially for the benefit of the grantees cannot be
said to constitute any unreasonable restriction. The granted lands were not in the
nature of properties acquired and held by the grantees in the sense of acquisition,
or holding of property within the meaning of Article 19(1)(f) of the
Constitution. It was a case of a grant by the owner of the land to the grantee for
the possession and enjoyment of the granted lands by the grantees and the
prohibition on transfer of such granted lands for the specified period was an
essential term or condition on the basis of which the grant was made. It has to be
pointed out that the prohibition on transfer was not for an indefinite period or
perpetual. It was only for a particular period, the object being that the grantees
should enjoy the granted lands themselves at least for the period during which the
prohibition was to remain operative. Experience had shown that persons
belonging to Scheduled Castes and Scheduled Tribes to whom the lands were
granted were, because of their poverty, lack of education and general
backwardness, exploited by various persons who could and would take advantage
of the sad plight of these poor persons for depriving them of their lands. The
imposition of the condition of prohibition on transfer for a particular period could
not, therefore, be considered to constitute any unreasonable restriction on the
right of the grantees to dispose of the granted lands. The imposition of such a
condition on prohibition in the very nature of the grant was perfectly valid and
legal.”
Civil Appeal No. 7799 of 2001:
9. In view of the position of law indicated in the connected Civil Appeal No.7782 of 2001
this appeal is sans merit.
10. Above being the position, there is no merit in these appeals which are accordingly
dismissed with no order as to costs.
Appeals dismissed.

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[2008 (1) T.N.C.J.

241 (Mad) (MB)]

[2008 (1) T.N.C.J. 243 (Mad)]

[2008 (1) T.N.C.J. 246 (Mad)]

(A) Civil Procedure Code, 1908—Order IX, Rule 9—Restoration—Dismissal of suit

[2008 (1) T.N.C.J. 252 (MAD)]

Evidence Act, 1872—Section 45—Expert opinion—In a divorce petition husband

[2008 (1) T.N.C.J. 255 (MAD)]

[2008 (1) T.N.C.J. 258 (MAD)]

[2008 (1) T.N.C.J. 261 (SC)]

[2008 (1) T.N.C.J. 268 (SC)]

[2008 (1) T.N.C.J. 272 (SC)]

[2008 (1) T.N.C.J. 276 (SC)]

Land Acquisition Act, 1894—Section 23(1)—Compensation—Determination of—

[2008 (1) T.N.C.J. 284 (SC)]

Service laws—Subsistence allowance during suspension—Fundamental Rules, Rule

[2008 (1) T.N.C.J. 290 (SC)]

[2008 (1) T.N.C.J. 294 (MAD)]

(A) Motor Vehicles Act, 1988—Section 173—Compensation—Award of Rs.

[2008 (1) T.N.C.J. 296 (MAD)]

Motor Vehicles Act, 1988—Section 173—Compensation—Award of Rs. 2,70,900/-

[2008 (1) T.N.C.J. 298 (MAD)]

Motor Vehicles Act, 1988—Section 173—Compensation—Quantum of—Assessment

[2008 (1) T.N.C.J. 303 (MAD)]

[2008 (1) T.N.C.J. 312 (MAD)]

Constitution of India, 1950—Article 226—Service—Dismissal of—Industrial dispute

[2008 (1) T.N.C.J. 317 (SC)]

[2008 (1) T.N.C.J. 327 (Mad)]

(A) Enquiry—Enquiry Officer arrived at erroneous findings—Resulting in

[2008 (1) T.N.C.J. 331 (Mad) (MB)]

[2008 (1) T.N.C.J. 338 (Mad) (MB)]

[2008 (1) T.N.C.J. 343 (Mad) (MB)]

[2008 (1) T.N.C.J. 349 (Mad) (MB)]

(i) Sujatha v. Vijay Anand reported in (2007) 4 MLJ 447.

[2008 (1) T.N.C.J. 352 (Mad) (MB)]

[2008 (1) T.N.C.J. 356 (Mad) (MB)]

Civil Procedure Code, 1908—Section 100—Second appeal—Suit for permanent

[2008 (1) T.N.C.J. 360 (Mad) (MB)]

[2008 (1) T.N.C.J 366 (Mad)]

[2008 (1) T.N.C.J. 376 (Mad)]

(A) Land Acquisition Act, 1894, Sections 4 and 23—Compensation—Comparable sale

[2008 (1) T.N.C.J. 383 (Mad)]

(A) Contract Act, 1872—Section 28, Explanation 2—Applicability of—Applicable

[2008 (1) T.N.C.J. 389 (Mad)]

[2008 (1) T.N.C.J. 392 (Mad)]

[2008 (1) T.N.C.J. 396 (Mad)]

[2008 (1) T.N.C.J. 399 (Mad)]

(A) Constitution of India, 1950—Article 227—Civil Procedure Code 1908—Order

[2008 (1) T.N.C.J. 405 (Mad)]

Arbitration and Conciliation Act, 1996—Section 34—Award—Execution of—

[2008 (1) T.N.C.J. 408 (Mad)]

[2008 (1) T.N.C.J. 411 (Mad)]

Civil Procedure Code, 1908—Section 115—Revision—Against order dismissing

[2008 (1) T.N.C.J. 415 (Mad)]

[2008 (1) T.N.C.J. 421 (Mad)]

[2008 (1) T.N.C.J. 425 (Mad)]

(A) Constitution of India, 1950—Article 227—Civil Procedure Code, 1908—Order I,