NEW DELHI: The Supreme Court on Wednesday allowed resumption of nursery admissions in Delhi which were stalled over scrapping of inter-state transfer quota seats.

images nursery

The apex court quashed the February 27 notification issued by the Delhi lieutenant governor to scrap the inter-state transfer quota and granted admission to successful transfer quota candidates whose parents had approached court.

The apex court said wards of those who had approached the court challenging scrapping of the inter-state transfer quota would be given a seat even if a particular school had filled all seats and asked the Delhi government to raise number of seats, if required, to accommodate 24 students whose parents had approached the court.

With the Supreme Court’s ruling, the five-monthlong impasse on nursery admissions in Delhi finally came to an end.

The SC had on April 11 put nursery admissions on hold again in Delhi schools after it put a stay on Delhi HC’s April 3 interim order directing that those children who were selected in draw of lot for neighbourhood and other categories, be admitted.

It had on April 28 asked Delhi government to consider increasing seats in schools to accommodate inter-state transfer cases.o

Sources: http://timesofindia.indiatimes.com/home/education/news/SC-allows-resumption-of-nursery-admissions-in-Delhi/articleshow/34770861.cms

 

Click to read whole judgement below the link.

supreme court nursery order

 

 

REPORTABLE

 

IN THE SUPREME COURT OF INDIA

CIVIL/CRIMINAL ORIGINAL JURISDICTION

 

WRIT PETITION (C) NO. 10 OF 2013

 

 

SALIL BALI                                              … PETITIONER

 

VS.

 

UNION OF INDIA & ANR.                           … RESPONDENTS

 

WITH

W.P.(C)NOS.14, 42, 85, 90 and 182 OF 2013

WITH

W.P.(CRL)NO.6 OF 2013

AND

T.C.(C)No. 82 OF 2013

 

 

J U D G M E N T

 

 

ALTAMAS KABIR, CJI.

 

 

  1. Seven Writ Petitions and one Transferred Case  have  been  taken  up

together for consideration in view of the commonality  of  the  grounds  and

reliefs prayed for therein.  While in Writ Petition  (C)  No.  14  of  2013,

Saurabh Prakash Vs. Union of India, and Writ Petition (C) No.  90  of  2013,

Vinay K. Sharma Vs. Union of India,  a  common  prayer  has  been  made  for

declaration of the Juvenile Justice (Care and Protection of  Children)  Act,

2000, as ultra vires the Constitution, in Writ Petition (C) No. 10 of  2013,

Salil Bali Vs. Union of India, Writ Petition (C) No.  85  of  2013,  Krishna

Deo Prasad Vs. Union of India, Writ Petition  (C)  No.  42  of  2013,  Kamal

Kumar Pandey & Sukumar Vs. Union of India and Writ Petition (C) No.  182  of

2013, Hema Sahu Vs. Union of India, a common  prayer  has  inter  alia  been

made to strike down the provisions of Section 2(k)  and  (l)  of  the  above

Act, along with a prayer to bring  the  said  Act  in  conformity  with  the

provisions of the Constitution and to direct the Respondent No.  1  to  take

steps to make changes in  the  Juvenile  Justice  (Care  and  Protection  of

Children) Act, 2000, to bring it in line with the  United  Nations  Standard

Minimum Rules for administration of juvenile justice.  In  addition  to  the

above, in Writ Petition (Crl.) No. 6 of 2013, Shilpa Arora Sharma Vs.  Union

of India, a prayer has inter alia been made to appoint a panel  of  criminal

psychologists to determine through clinical methods whether the juvenile  is

involved in the Delhi gang rape on 16.12.2012.  Yet,  another  relief  which

has been prayed for in common during the oral submissions made on behalf  of

the Petitioners was that in offences like rape and murder, juveniles  should

be tried  under  the  normal  law  and  not  under  the  aforesaid  Act  and

protection granted to persons up to the age of 18 years under the  aforesaid

Act may be removed and that the investigating agency should be permitted  to

keep the record of the juvenile offenders to  take  preventive  measures  to

enable them to detect  repeat  offenders  and  to  bring  them  to  justice.

Furthermore, prayers have also been made in Writ Petition (Crl.)  No.  6  of

2013 and Writ Petition (C) No.  85  of  2013,  which  are  personal  to  the

juvenile accused in the Delhi gang rape case of 16.12.2012, not  to  release

him and to keep him in custody or any place of strict  detention,  after  he

was found to be a mentally abnormal  psychic  person  and  that  proper  and

detailed investigation be conducted by the CBI to ascertain his correct  age

by examining his school documents and other records and to  further  declare

that prohibition in Section 21 of the Juvenile Justice (Care and  Protection

of Children) Act, 2000, be declared unconstitutional.

 

  1. In most of the matters, the Writ Petitioners appeared in-person,  in

support of their individual cases.

 

  1. Writ Petition (C) No.10 of 2013,  filed  by  Shri  Salil  Bali,  was

taken up as the first matter in the bunch.   The  Petitioner  appearing  in-

person urged that it was necessary for the provisions of Section 2(k),  2(l)

and 15 of the Juvenile Justice (Care and Protection of Children) Act,  2000,

to be reconsidered in the light of the  spurt  in  criminal  offences  being

committed by persons within the range of 16 to 18 years, such  as  the  gang

rape of a young woman inside  a  moving  vehicle  on  16th  December,  2012,

wherein along with others, a juvenile, who  had  attained  the  age  of  17=

years, was being tried separately  under  the  provisions  of  the  Juvenile

Justice (Care and Protection of Children) Act, 2000.

 

  1. Mr. Bali submitted that the age of responsibility,  as  accepted  in

India, is different from what has been accepted by other  countries  of  the

  1. But,  Mr.  Bali  also  pointed  out  that  even  in  the   criminal

jurisprudence  prevalent  in   India,   the   age   of   responsibility   of

understanding the consequences of one’s actions had been  recognized  as  12

years in the Indian Penal Code.  Referring to Section 82 of  the  Code,  Mr.

Bali pointed out that the same provides that nothing is an offence which  is

done by a child under seven  years  of  age.   Mr.  Bali  also  referred  to

Section 83 of the Code, which provides that nothing is an offence  which  is

done by a child above seven years of age  and  under  twelve,  who  has  not

attained sufficient maturity  of  understanding  to  judge  the  nature  and

consequences of his conduct on a particular occasion.  Mr. Bali,  therefore,

urged  that  even  under  the  Indian  Criminal  Jurisprudence  the  age  of

understanding has been fixed at twelve years, which according  to  him,  was

commensurate with the thinking  of  other  countries,  such  as  the  United

States of America, Great Britain and Canada.

 

  1. In regard to  Canada,  Mr.  Bali  referred  to  the  Youth  Criminal

Justice Act, 2003, as amended from time to time, where the age  of  criminal

responsibility has been fixed at twelve years.  Referring to Section  13  of

the Criminal Code of Canada, Mr. Bali submitted that the  same  is  in  pari

materia with the provisions of Section 83 of  the  Indian  Penal  Code.   In

fact, according to the Criminal Justice Delivery System in Canada,  a  youth

between the age of 14 to 17 years may be tried and sentenced as an adult  in

certain situations.  Mr. Bali also pointed  out  that  even  in  Canada  the

Youth  Criminal  Justice  Act  governs  the  application  of  criminal   and

correctional law to those who are twelve years old  or  older,  but  younger

than 18 at the time of committing the offence, and  that,  although,  trials

were to take place in a Youth Court, for certain  offences  and  in  certain

circumstances, a youth may be awarded an adult sentence.

  1. Comparing  the  position  in  USA  and  the  Juvenile  Justice  and

Delinquency Prevention Act, 1974, he urged that while in several States,  no

set standards have been provided, reliance is placed on the common  law  age

of seven in fixing the age of criminal responsibility, the lowest being  six

years in North Carolina.  The general  practice  in  the  United  States  of

America, however, is that even for such children, the  courts  are  entitled

to impose life sentences in respect of certain types of offences,  but  such

life sentences without parole were not permitted for those under the age  of

eighteen years convicted of murder or offences involving violent crimes  and

weapons violations.

 

  1.     In England and Wales,  children  accused  of  crimes  are  generally

tried under the Children and Young Persons Act, 1933, as amended by  Section

16(1) of the Children and Young Persons Act, 1963.   Under  the  said  laws,

the minimum age of criminal responsibility  in  England  and  Wales  is  ten

years and those below the said age are considered to be  doli  incapax  and,

thus, incapable of having any mens rea, which is similar to  the  provisions

of Sections 82 and 83 of Indian Penal Code.

 

  1. Mr. Bali has also referred to the legal circumstances prevailing  in

other parts of the world wherein the  age  of  criminal  responsibility  has

been fixed between ten to sixteen years.  Mr. Bali contended that there  was

a general worldwide concern over the rising graph of  criminal  activity  of

juveniles  below  the  age  of  eighteen  years,  which  has  been  accepted

worldwide to be the age limit under which all persons were to be treated  as

  1. Mr.  Bali  sought  to  make  a  distinction  in  regard  to  the

definition of children as such in Sections 2(k) and  2(l)  of  the  Juvenile

Justice (Care and Protection of  Children)  Act,  2000,  and  the  level  of

maturity of the child who is capable of understanding  the  consequences  of

his actions.  He, accordingly, urged that the provisions of Sections 15  and

16 of the  Act  needed  to  be  reconsidered  and  appropriate  orders  were

required to be passed in regard to the level of  punishment  in  respect  of

heinous offences committed by children below  the  age  of  eighteen  years,

such as murder, rape,  dacoity,  etc.   Mr.  Bali  submitted  that  allowing

perpetrators of such crimes to get off with a sentence  of  three  years  at

the maximum, was not justified and a correctional course was required to  be

undertaken in that regard.

 

  1. Mr. Saurabh Prakash, Petitioner in  Writ  Petition  (C)  No.  14  of

2013, also appeared in-person and, while endorsing the submissions  made  by

Mr. Bali, went a step further in suggesting that in view of  the  provisions

of Sections 15 and 16 of  the  Juvenile  Justice  (Care  and  Protection  of

Children) Act, 2000, children, as defined in the above Act,  were  not  only

taking advantage of the same, but were also  being  used  by  criminals  for

their own ends.  The Petitioner reiterated Mr. Bali’s submission that  after

being awarded a maximum sentence of three years,  a  juvenile  convicted  of

heinous offences, was almost likely to become a monster in society and  pose

a great danger to others, in view of his criminal  propensities.   Although,

in the prayers to the Writ Petition, one of the reliefs prayed for  was  for

quashing the provisions of the entire Act, Mr.  Saurabh  Prakash  ultimately

urged that some of the provisions thereof were such as could  be  segregated

and struck down so as to preserve the Act as a whole.  The Petitioner  urged

that, under Article 21 of the Constitution, every citizen has a  fundamental

right to live in dignity and peace, without being subjected to  violence  by

other members of society and that by shielding  juveniles,  who  were  fully

capable of  understanding  the  consequences  of  their  actions,  from  the

sentences, as could be awarded under  the  Indian  Penal  Code,  as  far  as

adults are concerned, the State was creating a class of  citizens  who  were

not only prone to criminal activity,  but  in  whose  cases  restoration  or

rehabilitation was not possible.  Mr. Saurabh  Prakash  submitted  that  the

provisions of  Sections  15  and  16  of  the  Juvenile  Justice  (Care  and

Protection of Children) Act, 2000,  violated  the  rights  guaranteed  to  a

citizen under Article 21 of the Constitution  and  were,  therefore,  liable

to be struck down.

 

  1. Mr. Saurabh Prakash also submitted that the  provisions  of  Section

19 of the Act, which provided for removal of disqualification  attaching  to

conviction, were also illogical and were liable to be struck down.   It  was

submitted that in order to prevent repeated offences by  an  individual,  it

was necessary to maintain the  records  of  the  inquiry  conducted  by  the

Juvenile Justice Board, in relation to juveniles so that such records  would

enable the authorities concerned to assess the  criminal  propensity  of  an

individual, which would call for a different approach to  be  taken  at  the

time of inquiry.  Mr. Saurabh Prakash urged this Court to give  a  direction

to the effect that the Juvenile  Justice  Board  or  courts  or  other  high

public authorities would have the discretion to direct that in a  particular

case, the provisions of the general law would apply to a  juvenile  and  not

those of the Act.

 

  1. Mr.  Vivek  Narayan  Sharma,  learned  Advocate,  appeared  for  the

petitioner in Writ Petition (Crl.) No. 6 of 2013, filed by one Shilpa  Arora

Sharma, and submitted that the Juvenile Justice Board should be vested  with

the discretion to impose  punishment  beyond  three  years,  as  limited  by

Section 15 of the Juvenile Justice (Care and Protection  of  Children)  Act,

2000, in cases where a child, having full knowledge of the  consequences  of

his/her actions, commits a  heinous  offence  punishable  either  with  life

imprisonment or death.  Mr. Sharma submitted  that  such  a  child  did  not

deserve to be treated as a child and be allowed  to  re-mingle  in  society,

particularly when the identity of the child is to be  kept  a  secret  under

Sections 19  and  21  of  the  Juvenile  Justice  (Care  and  Protection  of

Children) Act, 2000.  Mr. Sharma  submitted  that  in  many  cases  children

between the  ages  of  sixteen  to  eighteen  years  were,  in  fact,  being

exploited by adults to commit heinous offences who knew full well  that  the

punishment therefor would not exceed three years.

 

  1. Mr. Sharma urged  that  without  disturbing  the  other  beneficient

provisions of the Juvenile Justice (Care and Protection  of  Children)  Act,

2000, some of the gray areas pointed  out  could  be  addressed  in  such  a

manner as would make the Juvenile Justice (Care and Protection of  Children)

Act, 2000, more effective and prevent the misuse thereof.

 

  1. In Writ Petition (C) No. 85 of 2013, filed by  Krishna  Deo  Prasad,

Dr. R.R. Kishor appeared for the Petitioner and gave a detailed  account  of

the manner in which  the  Juvenile  Justice  Delivery  System  had  evolved.

Referring to the doctrine of doli incapax, rebuttable presumption and  adult

responsibility,  Dr.  Kishor  contended  that  even  Article  1  of  the  UN

Convention on the Rights of the Child  defines  a  child  in  the  following

terms:

“Article 1

 

 

For the purposes of the present Convention, a child means  every

human being below the age of eighteen years unless under the law

applicable to the child, majority is attained earlier.”

 

  1. Dr. Kishor contended that, as pointed out by  Mr.  Salil  Bali,  the

expression “child” has been defined in various ways in  different  countries

all over the world.  Accordingly, the definition of a child in Section  2(k)

of the Juvenile Justice (Care and Protection of Children) Act,  2000,  would

depend on the existing laws in India defining a child.  Dr. Kishor  referred

to the provisions of the Child  Labour  (Prohibition  and  Regulation)  Act,

1986, as an example, to indicate that children up to  the  age  of  fourteen

years were treated differently from children between the  ages  of  fourteen

to eighteen, for the purposes of employment in  hazardous  industries.   Dr.

Kishor re-asserted  the  submissions  made  by  Mr.  Bali  and  Mr.  Saurabh

Prakash, in regard to heinous crimes committed by children below the age  of

eighteen years, who were capable of understanding the consequences of  their

 

  1. Dr. Kishor also referred to the provisions of Sections 82 and 83  of

the Indian Penal Code, where the age  of  responsibility  and  comprehension

has been fixed at twelve years and below.  Learned  counsel  submitted  that

having regard to  the  above-mentioned  provisions,  it  would  have  to  be

seriously considered as  to  whether  the  definition  of  a  child  in  the

Juvenile Justice (Care and  Protection  of  Children)  Act,  2000,  required

  1. He urged that because a person under the age of  18  years

was considered to be a child,  despite  his  or  her  propensity  to  commit

criminal offences, which are of a heinous and even gruesome nature, such  as

offences punishable under Sections 376, 307, 302,  392,  396,  397  and  398

IPC, the said provisions have been misused and exploited  by  criminals  and

people having their own  scores  to  settle.   Dr.  Kishor  urged  that  the

definition of a “juvenile” or a “child” or  a  “juvenile  in  conflict  with

law”,  in  Sections  2(k)  and  2(l)  of  the  Juvenile  Justice  (Care  and

Protection of Children)  Act,  2000,  was  liable  to  be  struck  down  and

replaced with  a  more  meaningful  definition,  which  would  exclude  such

 

  1. Mr. Vikram  Mahajan,  learned  Senior  Advocate  appearing  for  the

Petitioner, Vinay K. Sharma, in Writ Petition (C)  No.  90  of  2013,  urged

that the right given  to  a  citizen  of  India  under  Article  21  of  the

Constitution is impinged upon by the Juvenile Justice (Care  and  Protection

of Children) Act, 2000.  Mr. Mahajan urged that the Juvenile  Justice  (Care

and Protection of Children) Act, 2000, operates in violation of Articles  14

and 21 of the Constitution and that Article 13(2),  which  relates  to  post

Constitution laws, prohibits the State from making a law which either  takes

away totally or abrogates in part a fundamental  right.   Referring  to  the

United Nations Declaration on the Elimination  of  Violence  against  Women,

adopted by the General Assembly on 20th December, 1993, Mr. Mahajan  pointed

out that Article 1 of the Convention describes “violence against  women”  to

mean any act of gender-based violence that  results  in,  or  is  likely  to

result in, physical, sexual or psychological harm  or  suffering  to  women.

Referring to the alleged gang rape of a 23 year  old  para-medical  student,

in a moving bus, in Delhi, on 16th December,  2012,  Mr.  Mahajan  tried  to

indicate that crimes committed by juveniles had reached  large  and  serious

proportions and that there was a need to amend the law to ensure  that  such

persons were not given the benefit of lenient  punishment,  as  contemplated

under Section 15 of the Juvenile Justice (Care and Protection  of  Children)

Act, 2000.  From the figures cited by him,  he  urged  that  even  going  by

statistics, 1% of the total number of crimes committed in the country  would

amount to a large number and the remedy to such a problem would lie  in  the

Probation of Offenders Act, 1958, which made the provisions of the  Juvenile

Justice (Care and Protection of Children) Act,  2000,  redundant  and  ultra

vires Article 21 of the Constitution.

 

  1. Ms. Shweta Kapoor appeared in Transferred Case No. 82  of  2013  in-

person and  questioned  the  vires  of  Sections  16(1),  19(1),  49(2)  and

52(2)(a) of the Juvenile Justice (Care  and  Protection  of  Children)  Act,

2000, and submitted that they were liable to be declared as ultra vires  the

  1. Referring to Section 16 of  the  aforesaid  Act,  Ms.  Kapoor

submitted that even in  the  proviso  to  Sub-section  (1)  of  Section  16,

Parliament had recognized  the  distinction  between  a  juvenile,  who  had

attained the age of sixteen years, but had committed an  offence  which  was

so serious in nature that it  would  not  be  in  his  interest  or  in  the

interest of other juveniles in a special home, to send him to  such  special

  1. Considering that none of the other measures provided under  the  Act

was suitable or sufficient,  the Government had empowered the Board to  pass

an order for the juvenile to be kept in such place of  safety  and  in  such

manner as it thought fit.  Ms. Kapoor submitted that no objection  could  be

taken to the said provision except for the  fact  that  in  the  proviso  to

Section 16(2), it has been added that the period of  detention  order  would

not exceed, in any case, the maximum limit of punishment, as provided  under

Section 15, which is three years.

 

  1. Ms. Kapoor contended that  while  the  provisions  of  the  Juvenile

Justice (Care and Protection of Children) Act,  2000,  are  generally  meant

for the benefit of the juvenile offenders, a serious attempt would  have  to

be  made  to  grade  the  nature  of  offences  to  suit   the   reformation

contemplated by the Act.

 

  1. As part of her submissions, Ms. Kapoor referred to the  decision  of

this Court in Avishek Goenka Vs. Union of India [(2012) 5 SCC 321],  wherein

the pasting of black films on glass panes  were  banned  by  this  Court  on

account of the fact that partially opaque glass panes on vehicles  acted  as

facilitators of crime.  Ms. Kapoor urged that in the  opening  paragraph  of

the judgment, it has been observed that “Alarming  rise  in  heinous  crimes

like kidnapping, sexual assault on women and dacoity have impinged upon  the

right to life and the right to live in a safe environment which  are  within

the contours of Article 21 of the Constitution of India”.  Ms.  Kapoor  also

referred to another decision of this Court in Abuzar Hossain  Vs.  State  of

West Bengal [(2012) 10 SCC 489],  which  dealt  with  a  different  question

regarding the provisions of Section 7A of the  Juvenile  Justice  (Care  and

Protection of Children) Act, 2000, and the right of an accused to raise  the

claim of juvenility at any stage of  the  proceedings  and  even  after  the

final disposal of the case.

 

  1. In conclusion, Ms. Kapoor  reiterated  her  stand  that  in  certain

cases the definition of  a  juvenile  in  Sections  2(k)  and  2(l)  of  the

Juvenile Justice (Care and Protection of Children) Act, 2000, would have  to

be considered differently.

 

  1. The next  matter  which  engaged  our  attention  is  Writ  Petition

(Civil) No.90 of 2013 filed  by  one  Vinay  Kumar  Sharma,  praying  for  a

declaration that the Juvenile Justice  (Care  and  Protection  of  Children)

Act, 2000, be declared  ultra  vires  the  Constitution  and  that  children

should also be tried along with adults under the penal  laws  applicable  to

 

  1. Writ Petition (Civil) No.42 of 2013 has been filed  by  Kamal  Kumar

Pandey and Sukumar, Advocates,  inter  alia,  for  an  appropriate  writ  or

direction declaring the provisions of  Sections  2(1),  10  and  17  of  the

Juvenile Justice  (Care  and  Protection  of  Children)  Act,  2000,  to  be

irrational, arbitrary, without reasonable nexus and thereby ultra vires  and

unconstitutional, and for a Writ of  Mandamus  commanding  the  Ministry  of

Home Affairs and the Ministry of Law and Justice, Government  of  India,  to

take  steps  that  the  aforesaid  Act  operates  in  conformity  with   the

  1. In addition, a prayer was made to declare the  provisions  of

Sections 15 and 19 of the above Act ultra vires the Constitution.

 

  1. The main  thrust  of  the  argument  advanced  by  Mr.  Pandey,  who

appeared in person, was the  inter-play  between  International  Conventions

and Rules, such as the Beijing Rules,  1985,  the  U.N.  Convention  on  the

Rights of the Child, 1989, and the Juvenile Justice (Care and Protection  of

Children) Act, 2000.  While admitting  the  salubirous  and  benevolent  and

progressive character of the legislation in dealing with  children  in  need

of care and protection and with children in conflict with  law,  Mr.  Pandey

contended that a distinction was required to be made in respect of  children

with a propensity to  commit  heinous  crimes  which  were  a  threat  to  a

peaceful social order.  Mr. Pandey reiterated the submissions  made  earlier

that it was unconstitutional to place all  juveniles,  irrespective  of  the

gravity of the offences,  in one bracket.  Urging that Section 2(l)  of  the

Juvenile Justice (Care and Protection of Children) Act, 2000, ought  not  to

have placed all children in conflict with law within the same  bracket,  Mr.

Pandey  submitted  that  the  same  is  ultra  vires  Article  21   of   the

  1. Referring to the report of the National Crime Records  Bureau

(NCRB) for the years 2001 to 2011, Mr. Pandey submitted  that  between  2001

and 2011, the involvement of juveniles  in  cognizable  crimes  was  on  the

  1. Mr.  Pandey  urged  that  it   was   a   well-established   medical-

psychological fact that the level of understanding of a 16 year-old  was  at

par with that of adults.

 

  1. Mr. Pandey’s next volley was directed  towards  Section  19  of  the

Juvenile  Justice  (Care  and  Protection  of  Children)  Act,  2000,  which

provides for the removal of any disqualification attached to an  offence  of

any nature.  Mr. Pandey submitted that the said provisions do not take  into

account the fact relating  to  repeated  offences  being  perpetrated  by  a

juvenile whose  records  of  previous  offences  are  removed.   Mr.  Pandey

contended that Section 19 of the Act was required to be  amended  to  enable

the concerned authorities to retain records of previous  offences  committed

by a juvenile for the purposes  of  identification  of  a  juvenile  with  a

propensity to repeatedly commit offences of a grievous or heinous nature.

 

  1. Mr. Pandey submitted that Parliament had  exceeded  its  mandate  by

blindly adopting eighteen as the upper limit in categorising a  juvenile  or

a  child,  in  accordance  with  the  Beijing  Rules,  1985,  and  the  U.N.

Convention, 1989, without taking into account  the  socio-cultural  economic

conditions and the legal system for administration of  criminal  justice  in

  1. Mr. Pandey urged that the Juvenile Justice (Care and  Protection  of

Children) Act,  2000,  was  required  to  operate  in  conformity  with  the

provisions of the Constitution of India.

 

  1. Ms. Hema Sahu, the petitioner in Writ Petition (Civil)  No.  182  of

2013, also appeared in person and restated the views expressed by the  other

petitioners  that  the  United  Nations  Standard  Minimum  Rules  for   the

Administration of Juvenile Justice, commonly known as the  “Beijing  Rules”,

recognized and noted the difference in the nature of offences  committed  by

juveniles in conflict with law.  Referring to the decision of this Court  in

the case commonly known as the “Bombay  Blasts  Case”,  Ms.  Sahu  submitted

that a juvenile who was tried and convicted  along  with  adults  under  the

Terrorist and Disruptive Activities Act (TADA), was  denied  the  protection

of the Juvenile Justice (Care and Protection  of  Children)  Act,  2000,  on

account of the serious nature of the offence.  Ms. Sahu ended  on  the  note

that paragraph 4 of the 1989 Convention did not make any reference to age.

 

  1. Appearing for the Union of India, the Additional Solicitor  General,

Mr. Siddharth Luthra, strongly opposed the submissions  made  on  behalf  of

the Petitioners to either declare the  entire  Juvenile  Justice  (Care  and

Protection of Children) Act, 2000, as ultra vires the Constitution or  parts

thereof,  such as Sections 2(k),  2(l),  15,  16,  17,  19  and  21.   After

referring to the aforesaid provisions of  the  Juvenile  Justice  (Care  and

Protection  of  Children)  Act,  2000,  the  learned  ASG   submitted   that

Parliament consciously fixed eighteen years  as  the  upper  age  limit  for

treating persons as juveniles and children, taking  into  consideration  the

general trend of legislation,  not  only  internationally,  but  within  the

country as well.

 

  1. The learned ASG  submitted  that  the  Juvenile  Justice  (Care  and

Protection of Children) Act, 2000, was enacted after years  of  deliberation

and in conformity with international standards as  laid  down  in  the  U.N.

Convention on the Rights of the Child, 1989, the Beijing  Rules,  1985,  the

Havana Rules and other  international  instruments  for  securing  the  best

interests of the child with the primary object of  social  reintegration  of

child victims and children  in  conflict  with  law,  without  resorting  to

conventional judicial proceedings which existed  for  adult  criminals.   In

the course of his submissions, the learned ASG  submitted  a  chart  of  the

various Indian statutes and the manner in which children have been  excluded

from liability under the said Acts upto the age of 18 years. In most of  the

said enactments, a juvenile/child has been  referred  to  a  person  who  is

below 18 years of age.  The learned  ASG  submitted  that  in  pursuance  of

international obligations, the Union of India  after  due  deliberation  had

taken a conscious policy decision to fix the age of a child/juvenile at  the

upper limit of 18 years.  The learned ASG urged that the fixing of  the  age

when a child ceases to be a child at 18 years is a matter  of  policy  which

could not be questioned in a court of law, unless the same  could  be  shown

to have violated any of the fundamental rights, and in  particular  Articles

14 and 21 of the Constitution.  Referring to the decision of this  Court  in

BALCO Employees Union Vs. Union of India [(2002) 2  SCC  333],  the  learned

ASG submitted that at  paragraph  46  of  the  said  judgment  it  had  been

observed that it is neither within the domain of the Courts  nor  the  scope

of judicial review to embark upon an enquiry  as  to  whether  a  particular

public policy was wise or whether something better could be evolved. It  was

further observed that the Courts were reluctant to strike down a  policy  at

the behest of  a  Petitioner  merely  because  it  has  been  urged  that  a

different policy would have been fairer or wiser or more scientific or  more

  1. The  learned  ASG  further  urged  that  Article  15(3)  of   the

Constitution empowers the State to enact special provisions  for  women  and

children, which reveals that the Juvenile Justice (Care  and  Protection  of

Children)  Act,  2000,  was  in  conformity  with  the  provisions  of   the

  1. The learned ASG submitted that in various judgments, this Court  and

the High Courts had recognised the fact that juveniles were required  to  be

treated differently from adults so as to give such children,  who  for  some

reason had gone astray, an opportunity to  realize  their  mistakes  and  to

rehabilitate themselves and rebuild their lives.  Special mention  was  made

with regard to the decision of this Court in Abuzar Hossain (supra) in  this

  1. The learned ASG also referred to the decision  of  this  Court  in

State of Tamil Nadu Vs. K. Shyam Sunder [(2011) 8 SCC 737], wherein  it  had

been observed that merely because the  law  causes  hardships  or  sometimes

results in adverse consequences, it cannot be held to  be  ultra  vires  the

Constitution, nor can it be struck down.  The  learned  ASG  also  submitted

that it was now well-settled that reasonable classification  is  permissible

so long as such classification has a rational nexus with the  object  sought

to be achieved.  This Court has always held that the presumption  is  always

in favour of the constitutionality of an  enactment,  since  it  has  to  be

assumed that the  legislature  understands  and  correctly  appreciates  the

needs of its own people  and  its  discriminations  are  based  on  adequate

 

  1. Referring to the Reports  of  the  National  Crime  Reports  Bureau,

learned ASG pointed out that the percentage of increase  in  the  number  of

offences committed by  juveniles  was  almost  negligible  and  the  general

public perception in such matters was  entirely  erroneous.   In  fact,  the

learned ASG pointed out that even the  Committee  appointed  to  review  the

amendments to the criminal law, headed by former CJI,  J.S.  Verma,  in  its

report submitted on 23rd January, 2013, did not recommend the  reduction  in

the age of juveniles in conflict with  law  and  has  maintained  it  at  18

  1. The learned ASG pointed out that the issue of reduction in  the  age

of juveniles from 18 to 16 years, as it was in the Juveniles Justice Act  of

1986, was also raised in the Lok Sabha  on  19th  March,  2013,  during  the

discussion on the Criminal Law (Amendment) Bill, 2013, but was  rejected  by

the House.

 

  1. The learned ASG submitted that the occurrence of 16th  December,  2012,

involving the alleged gang rape of  a  23  year  old  girl,  should  not  be

allowed to colour the decision taken to treat all persons below the  age  of

18 years, as children.

 

  1. Mr. Anant Asthana, learned Advocate appearing  for HAQ  :  Centre  for

Child Rights, submitted that the Juvenile Justice (Care  and  Protection  of

Children) Act, 2000, as amended in 2006 and 2011, is  a  fairly  progressive

legislation, largely compliant  with  the  Constitution  of  India  and  the

minimum standards contained in the Beijing  Rules.   Mr.  Asthana  contended

that the reason for incidents such as the  16th  December,  2012,  incident,

was not on account of the provisions of the aforesaid Act,  but  on  account

of failure of the administration in implementing  its  provisions.   Learned

counsel submitted that all the Writ Petitions appeared to be  based  on  two

assumptions, namely, (i) that the age of  18  years  for  juveniles  is  set

arbitrarily; and (ii) that by reducing the age for the purpose  of  defining

a child in the aforesaid Act, criminality  amongst  children  would  reduce.

Mr. Asthana submitted that such an  approach  was  flawed  as  it  had  been

incorrectly submitted that the age of 18 years to treat persons as  children

was set arbitrarily and that it is so difficult  to  comprehend  the  causes

and the environment which brings  children  into  delinquency.  Mr.  Asthana

submitted that the answer lies in effective and  sincere  implementation  of

the different laws aimed at improving the conditions of children in need  of

care and protection and providing such protection to children at  risk.  Mr.

Asthana urged that the objective with which the Juvenile Justice  (Care  and

Protection of Children) Act, 2000, was enacted was not aimed  at  delivering

retributive justice, but to  allow  a  rehabilitative,  reformation-oriented

approach in addressing juvenile crimes. Learned counsel submitted  that  the

apathy of the administration towards juveniles and the manner in which  they

are treated would be evident from the fact that by  falsifying  the  age  of

juveniles, they were treated as adults and sent to jails, instead  of  being

produced before the  Juvenile  Justice  Board  or   even  before  the  Child

Welfare Committees to be dealt with in a manner  provided  by  the  Juvenile

Justice (Care and Protection of Children) Act, 2000, for  the  treatment  of

 

  1. Mr. Asthana submitted that even as recently  as  26th  April,  2013,

the Government of India has adopted a  new  National  Policy  for  Children,

which not only recognises that a child  is  any  person  below  the  age  of

eighteen years, but also states that the policy  was  to  guide  and  inform

people of laws, policies, plans  and  programmes  affecting  children.   Mr.

Asthana urged that all actions and initiatives of the  national,  State  and

local Governments in all sectors must respect and uphold the principles  and

provisions of this policy and it would neither be appropriate  nor  possible

for the Union of India to adopt a different  approach  in  the  matter.  Mr.

Asthana, who  appears  to  have  made  an  in-depth  study  of  the  matter,

submitted that on the question of making  the  provisions  in  the  Juvenile

Justice (Care  and  Protection  of  Children)  Act,  2000,  conform  to  the

provisions of the Constitution and to allow the children of a  specific  age

group to be treated as adults, it would  be  appropriate  to  take  note  of

General Comment No.10 made by the U.N. Committee on the rights of the  child

on 25th April, 2007, which specifically dealt with the upper age  limit  for

juveniles and it was reiterated that where it was a case of  a  child  being

in need of care and protection or in conflict with law, every  person  under

the age of 18 years at the time of commission of the  alleged  offence  must

be treated in accordance with  the  Juvenile  Justice  Rules.   Mr.  Asthana

submitted that any attempt to alter the upper limit of the age  of  a  child

from 18 to 16 years would have disastrous consequences and  would  set  back

the  attempts  made  over  the  years  to  formulate   a   restorative   and

rehabilitative approach  mainly for juveniles in conflict with law.

 

  1. In Writ Petition (Civil) No.85 of  2013,  a  counter  affidavit  has

been filed on behalf  of  the  Ministry  of  Women  and  Child  Development,

Government of  India,  in  which  the  submissions  made  by  the  ASG,  Mr.

Siddharth  Luthra,  were  duly  reflected.   In  paragraph  I  of  the  said

affidavit, it has been pointed out  that  the  Juvenile  Justice  (Care  and

Protection of Children) Act, 2000, provides for a wide range of  reformative

measures under Sections 15 and 16 for children in conflict with law  –  from

simple warning to 3 years of institutionalisation in  a  Special  Home.   In

exceptional cases, provision has also been made for the juvenile to be  sent

to a place of  safety  where  intensive  rehabilitation  measures,  such  as

counselling, psychiatric evaluation and treatment would be undertaken.

 

  1. In Writ Petition (C) No.10 of 2013 filed  by  Shri  Salil  Bali,  an

application had been made  by  the  Prayas  Juvenile  Aid  Centre  (JAC),  a

Society whose Founder and General Secretary, Shri Amod  Kanth,  was  allowed

to appear and address the Court in person.  Mr. Amod Kanth claimed  that  he

was a former member of the Indian Police  Service  and  Chairperson  of  the

Delhi Commission for the  Protection  of  Child  Rights  and  was  also  the

founder General Secretary of the aforesaid  organisation,  which  came  into

existence in 1998 as a special unit  associated  with  the  Missing  Persons

Squad of the Crime and Railway Branch of the  Delhi  Police  of  which  Shri

Amod Kanth was the in-charge Deputy Commissioner of Police.  Mr. Amod  Kanth

submitted that Prayas was created in  order  to  identify  and  support  the

missing and found  persons,  including  girls,  street  migrants,  homeless,

working and delinquent children who  did  not  have  any  support  from  any

organisation in the  Government  or  in  the  non-governmental  organisation

 

  1. Mr. Kanth repeated  and  reiterated  the  submissions  made  by  the

learned ASG and Mr. Asthana and  also  highlighted  the  problems  faced  by

children both in conflict with law and in need of care and protection.   Mr.

Kanth  submitted  that  whatever  was  required   to   be   done   for   the

rehabilitation and restoration of juveniles to a normal existence has, to  a

large extent, been defeated since the various  provisions  of  the  Juvenile

Justice (Care and Protection of Children) Act, 2000 and the Rules  of  2007,

were not being seriously  implemented.   Mr.  Kanth  urged  that  after  the

ratification by India of the United Nations Convention on the Rights of  the

Child on 11th December, 1992, serious thought was given to the enactment  of

the Juvenile Justice (Care and Protection  of  Children  Act),  2000,  which

came to replace the Juvenile Justice Act, 1986.  Taking a leaf  out  of  Mr.

Asthana’s book, Mr. Kanth submitted that even after thirteen  years  of  its

existence, the provisions of the Juvenile Justice (Care  and  Protection  of

Children) Act, 2000, still remained  unimplemented  in  major  areas,  which

made  it  impossible  for  the  provisions  of  the  Act  to   be   properly

  1. Mr. Kanth submitted that one of the  more  important  features

of  juvenile  law  was  to  provide  a  child-friendly   approach   in   the

adjudication and disposition of matters in the  best  interest  of  children

and  for  their  ultimate  rehabilitation   through   various   institutions

established under the Act.  Submitting that the Juvenile Justice  (Care  and

Protection of Children) Act, 2000,  was  based  on  the  provisions  of  the

Indian Constitution, the United Nations Convention  on  the  Rights  of  the

Child, 1989, the  Beijing  Rules  and  the  United  Nations  Rules  for  the

Protection of the Juveniles Deprived  of  their  Liberty,  1990,  Mr.  Kanth

urged that the same was in  perfect  harmony  with  the  provisions  of  the

Constitution, but did not receive the attention it ought  to  have  received

while dealing with a section of the citizens of India comprising 42% of  the

country’s population.

 

  1. Various measures to deal with juveniles in conflict  with  law  have

been suggested by Mr. Kanth, which requires serious  thought  and  avoidance

of knee-jerk reactions to situations which could set a dangerous  trend  and

affect millions of children in need  of  care  and  protection.   Mr.  Kanth

submitted that any change in the law, as it now  stands,  resulting  in  the

reduction  of  age  to  define  a  juvenile,  will  not  only  prove  to  be

regressive, but would also adversely affect India’s image as a  champion  of

human rights.

 

  1. Having regard to the serious nature of the issues raised before  us,

we have given serious thought to the submissions advanced on behalf  of  the

respective parties and  also  those  advanced  on  behalf  of  certain  Non-

Government Organizations and have  also  considered  the  relevant  extracts

from the Report of Justice  J.S.  Verma  Committee  on  “Amendments  to  the

Criminal Law”  and  are  convinced  that  the  Juvenile  Justice  (Care  and

Protection of Children) Act, 2000, as amended  in  2006,  and  the  Juvenile

Justice (Care and Protection of Children) Rules, 2007, are  based  on  sound

principles recognized internationally and contained  in  the  provisions  of

the Indian Constitution.

 

  1. There is little doubt that  the  incident,  which  occurred  on  the

night of 16th December, 2012, was not only gruesome, but almost maniacal  in

its content, wherein one juvenile, whose role is yet to be established,  was

involved, but such an incident, in comparison to the vast number  of  crimes

occurring in India, makes it an aberration rather than the  Rule.   If  what

has come out from the reports of the Crimes Record  Bureau,  is  true,  then

the number of crimes committed  by  juveniles  comes  to  about  2%  of  the

country’s crime rate.

 

  1. The learned ASG along with  Mr.  Asthana  and  Mr.  Kanth,  took  us

through the history of the enactment  of  the  Juvenile  Justice  (Care  and

Protection of  Children)  Act,  2000,  and  the  Rules  subsequently  framed

thereunder in 2007.  There is a definite thought process,  which  went  into

the enactment of the aforesaid Act.  In order to appreciate the  submissions

made on behalf of the respective parties in regard to the enactment  of  the

aforesaid  Act  and  the  Rules,  it  may  be  appropriate  to  explore  the

background of the laws relating to child protection  in  India  and  in  the

rest of the world.

 

  1. It  cannot  be  questioned  that  children  are  amongst  the  most

vulnerable sections in any society.  They represent almost one-third of  the

world’s population, and unless they are provided with proper  opportunities,

the opportunity of making them grow into responsible  citizens  of  tomorrow

will slip out  of  the  hands  of  the  present  generation.   International

community has been alive  to  the  problem  for  a  long  time.   After  the

aftermath of the First World War, the League of Nations  issued  the  Geneva

Declaration of the Rights of the Child in 1924.  Following the  gross  abuse

and violence of human rights during the Second World War, which  caused  the

death of millions of people, including  children,  the  United  Nations  had

been formed in 1945 and on 10th December, 1948 adopted  and  proclaimed  the

Universal Declaration of Human Rights.   While  Articles  1  and  7  of  the

Declaration proclaimed that all human beings are  born  free  and  equal  in

dignity and rights  and  are  equal  before  the  law,  Article  25  of  the

Declaration specifically provides that motherhood  and  childhood  would  be

entitled to special care and assistance.  The growing consciousness  of  the

world community was further evidenced by the Declaration of  the  Rights  of

the Child, which came to  be  proclaimed  by  the  United  Nations  on  20th

November, 1959, in the best interests of the child.  This  was  followed  by

the Beijing Rules of 1985, the Riyadh Guidelines of  1990,  which  specially

provided guidelines for the prevention  of  juvenile  delinquency,  and  the

Havana Rules of 14th December, 1990.  The said three sets of Rules  intended

that social policies should be  evolved  and  applied  to  prevent  juvenile

delinquency, to  establish  a  Juvenile  Justice  System  for  juveniles  in

conflict with law, to safeguard fundamental rights and to establish  methods

for social re-integration of young people who had suffered incarceration  in

prison or other corrective institutions.  One of the other principles  which

was sought to be reiterated and adopted was that a juvenile should be  dealt

with for an offence in a manner which  is  different  from  an  adult.   The

Beijing Rules indicated that efforts should be made by member  countries  to

establish within their own national jurisdiction, a set of  laws  and  rules

specially applicable to juvenile offenders.  It was stated that the  age  of

criminal responsibility in legal systems that recognize the concept  of  the

age of criminal responsibility for juveniles should not be fixed at too  low

an age-level,  keeping  in  mind  the  emotional,  mental  and  intellectual

maturity of children.

 

  1. Four years after the adoption  of  the  Beijing  Rules,  the  United

Nations adopted  the  Convention  on  the  Rights  of  the  Child  vide  the

Resolution of the General Assembly No.  44/25  dated  20th  November,  1989,

which came into  force  on  2nd  September,  1990.   India  is  not  only  a

signatory to the said Convention, but has also ratified  the  same  on  11th

December, 1992.  The said Convention sowed the seeds  of  the  enactment  of

the Juvenile Justice (Care and Protection of Children)  Act,  2000,  by  the

Indian Parliament.

 

  1. India developed its own jurisprudence relating to children  and  the

recognition of their rights.  With the adoption of the Constitution on  26th

November 1949, constitutional safeguards, as far as weaker sections  of  the

society, including  children,  were  provided  for.   The  Constitution  has

guaranteed several rights to children, such  as  equality  before  the  law,

free and compulsory primary education to children between the age  group  of

six to fourteen years, prohibition  of  trafficking  and  forced  labour  of

children and  prohibition  of  employment  of  children  below  the  age  of

fourteen  years  in  factories,  mines  or   hazardous   occupations.    The

Constitution enables the State Governments to make  special  provisions  for

  1. To prevent female foeticide,  the  Pre-conception  and  Pre-natal

Diagnostic Techniques (Prohibition of Sex  Selection)  Act  was  enacted  in

  1. One of the latest enactments  by  Parliament  is  the  Protection  of

Children from Sexual Offences Act, 2012.

 

  1. The Juvenile Justice (Care and Protection of  Children)  Act,  2000,

is in  tune  with  the  provisions  of  the  Constitution  and  the  various

Declarations and Conventions adopted by the world community  represented  by

the United Nations.  The basis of fixing of  the  age  till  when  a  person

could be treated as a child at eighteen years in the Juvenile Justice  (Care

and Protection of Children) Act, 2000, was Article 1 of  the  Convention  of

the Rights of the Child, as was brought to our notice  during  the  hearing.

Of course, it has been submitted by  Dr.  Kishor  that  the  description  in

Article 1 of the Convention was a contradiction in terms.   While  generally

treating eighteen to be the age till which a person could be treated  to  be

a child, it also indicates that the same was variable  where  national  laws

recognize the age of majority earlier.  In this regard,  one  of  the  other

considerations which weighed with the  legislation  in  fixing  the  age  of

understanding at eighteen years is on account of the  scientific  data  that

indicates that the brain continues to develop and  the  growth  of  a  child

continues till he reaches at least the age of eighteen years and that it  is

at that point of time  that  he  can  be  held  fully  responsible  for  his

  1. Along with physical growth, mental growth  is  equally  important,

in assessing the maturity of a person below the age of eighteen  years.   In

this connection, reference may be made to the chart provided by  Mr.  Kanth,

wherein the various laws relating to children generally  recognize  eighteen

years to be the age for reckoning a person as a  juvenile/  child  including

criminal offences.

 

  1. In any event, in the absence of any proper data,  it  would  not  be

wise on our part to deviate from the  provisions  of  the  Juvenile  Justice

(Care and Protection of Children) Act, 2000, which represent the  collective

wisdom of Parliament.  It may not be out of place to  mention  that  in  the

Juvenile Justice Act, 1986, male children above the  age  of  sixteen  years

were considered to be adults, whereas girl children were treated  as  adults

on attaining the age of eighteen years.  In the Juvenile Justice  (Care  and

Protection of Children)  Act,  2000,  a  conscious  decision  was  taken  by

Parliament to raise the age of male juveniles/children to eighteen years.

 

  1. In recent years, there has been a spurt in  criminal  activities  by

adults, but not so by juveniles, as the materials produced before  us  show.

The age limit which was  raised  from  sixteen  to  eighteen  years  in  the

Juvenile Justice (Care and Protection of Children) Act, 2000, is a  decision

which was taken by the Government, which is strongly in favour of  retaining

Sections 2(k) and 2(l) in the manner in  which  it  exists  in  the  Statute

 

  1. One misunderstanding of  the  law  relating  to  the  sentencing  of

juveniles, needs to be corrected.  The general understanding of  a  sentence

that can be awarded to a juvenile under Section 15(1)(g)  of  the   Juvenile

Justice (Care and Protection of Children) Act, 2000, prior to its  amendment

in 2006, is that after attaining the age of eighteen years, a  juvenile  who

is found guilty of a  heinous  offence  is  allowed  to  go  free.   Section

15(1)(g), as it stood before  the  amendment  came  into  effect  from  22nd

August, 2006, reads as follows:

 

“15(1)(g)    make an order directing the juvenile to be sent  to

a special home for a period of three years:

 

 

(i) in case of juvenile, over  seventeen  years  but  less  than

eighteen years of age, for a period of not less than two years;

 

 

(ii) in case of any other  juvenile  for  the  period  until  he

ceases to be a juvenile:

 

 

Provided that the Board may, if it is satisfied that having

regard to the nature of the offence and the circumstances of the

case, it is expedient so to do,  for  reasons  to  be  recorded,

reduce the period of stay to such period as it thinks fit.”

 

 

 

 

It was generally perceived that a juvenile was free to go,  even  if

he had committed a heinous crime, when he ceased to be a juvenile.

 

The said understanding needs to  be  clarified  on  account  of  the

amendment which came into force with effect  from  22.8.2006,  as  a  result

whereof Section 15(1)(g) now reads as follows:

 

“Make an order directing the juvenile to be sent  to  a  special

home for a period of three years:

 

 

Provided that the Board may if it is satisfied that  having

regard to the nature of the offence and the circumstances of the

case, it is expedient so to  do,  for  reasons  to  be  recorded

reduce the period of stay to such period as it thinks fit.”

 

 

 

The aforesaid amendment now makes it clear that even if  a  juvenile

attains the age of eighteen years within a  period  of  one  year  he  would

still have to undergo a sentence of three years, which  could  spill  beyond

the period of one year when he attained majority.

 

  1. There is yet another consideration which  appears  to  have  weighed

with the worldwide community, including India, to  retain  eighteen  as  the

upper limit to which persons could be treated  as  children.   In  the  Bill

brought in Parliament for  enactment  of  the  Juvenile  Justice  (Care  and

Protection of Children) Act of 2000, it has been  indicated  that  the  same

was being  introduced  to  provide  for  the  care,  protection,  treatment,

development and rehabilitation of neglected or delinquent juveniles and  for

the  adjudication  of  certain  matters  relating  to  and  disposition   of

delinquent juveniles.   The  essence  of  the  Juvenile  Justice  (Care  and

Protection of Children) Act, 2000, and the Rules framed thereunder in  2007,

is restorative and not retributive, providing  for  rehabilitation  and  re-

integration of children in conflict with law into mainstream  society.   The

age of eighteen has been fixed on account of the  understanding  of  experts

in child psychology and behavioural patterns  that  till  such  an  age  the

children in conflict with law  could  still  be  redeemed  and  restored  to

mainstream society,  instead  of  becoming  hardened  criminals  in  future.

There are, of course, exceptions where a child in the age group  of  sixteen

to eighteen may have developed criminal propensities, which  would  make  it

virtually  impossible  for  him/her  to  be  re-integrated  into  mainstream

society, but such examples are not of such proportions  as  to  warrant  any

change in thinking, since it is probably  better  to  try  and  re-integrate

children with criminal propensities into mainstream society, rather than  to

allow them to develop into hardened criminals, which  does  not  augur  well

for the future.

 

  1. This being the understanding of the Government behind the  enactment

of the Juvenile Justice (Care and Protection of  Children)  Act,  2000,  and

the amendments effected thereto in 2006,  together  with  the  Rules  framed

thereunder in 2007, and the data available with regard to the commission  of

heinous offences by children, within the meaning of Sections 2(k)  and  2(l)

of the Juvenile Justice (Care and Protection of Children) Act, 2000,  we  do

not think that any interference is necessary  with  the  provisions  of  the

Statute till such time as  sufficient  data  is  available  to  warrant  any

change in the provisions of the aforesaid Act and the Rules.  On  the  other

hand, the implementation of the various  enactments  relating  to  children,

would possibly yield better results.

 

  1. The  Writ  Petitions  and  the  Transferred  Case  are,  therefore,

dismissed, with the aforesaid observations.  There  shall,  however,  be  no

order as to costs.

 

 

 

…………………………………………………CJI.

(ALTAMAS KABIR)

 

 

 

 

………………………………………………………J.

(SURINDER SINGH NIJJAR)

 

 

 

 

………………………………………………………J.

(J. CHELAMESWAR)

 

 

 

Third Gender in India land mark judgement by Supreme Court of India.

 

HISTORICAL BACKGROUND OF TRANSGENDERS IN INDIA:

 TG Community comprises of Hijras, eunuchs, Kothis, Aravanis,
Jogappas, Shiv-Shakthis etc. and they, as a group, have got a strong
historical presence in our country in the Hindu mythology and other
religious texts. The Concept of tritiya prakrti or napunsaka has also
been an integral part of vedic and puranic literatures. The word
‘napunsaka’ has been used to denote absence of procreative capability.
13. Lord Rama, in the epic Ramayana, was leaving for the forest upon
being banished from the kingdom for 14 years, turns around to his followers
and asks all the ‘men and women’ to return to the city. Among his
followers, the hijras alone do not feel bound by this direction and decide
to stay with him. Impressed with their devotion, Rama sanctions them the
power to confer blessings on people on auspicious occasions like childbirth
and marriage, and also at inaugural functions which, it is believed set the
stage for the custom of badhai in which hijras sing, dance and confer
blessings.

 

 THE RIGHT TO RECOGNITION BEFORE THE LAW
Everyone has the right to recognition everywhere as a person before
the law. Persons of diverse sexual orientations and gender identities
shall enjoy legal capacity in all aspects of life. Each person’s self-
defined sexual orientation and gender identity is integral to their
personality and is one of the most basic aspects of self-
determination, dignity and freedom. No one shall be forced to undergo
medical procedures, including sex reassignment surgery, sterilisation
or hormonal therapy, as a requirement for legal recognition of their
gender identity. No status, such as marriage or parenthood, may be
invoked as such to prevent the legal recognition of a person’s gender
identity. No one shall be subjected to pressure to conceal, suppress
or deny their sexual orientation or gender identity.
States shall:
A. Ensure that all persons are accorded legal capacity in civil
matters, without discrimination on the basis of sexual orientation
or gender identity, and the opportunity to exercise that capacity,
including equal rights to conclude contracts, and to administer,
own, acquire (including through inheritance), manage, enjoy and
dispose of property;
B. Take all necessary legislative, administrative and other measures
to fully respect and legally recognise each person’s self-defined
gender identity;
C. Take all necessary legislative, administrative and other measures
to ensure that procedures exist whereby all State-issued identity
papers which indicate a person’s gender/sex — including birth
certificates, passports, electoral records and other documents —
reflect the person’s profound self-defined gender identity;
D. Ensure that such procedures are efficient, fair and non-
discriminatory, and respect the dignity and privacy of the person
concerned;
E. Ensure that changes to identity documents will be recognised in all
contexts where the identification or disaggregation of persons by
gender is required by law or policy;
F. Undertake targeted programmes to provide social support for all
persons experiencing gender transitioning or reassignment.

 

ARTICLE 14 AND TRANSGENDERS

Article 14 of the Constitution of India states that the State shall
not deny to “any person” equality before the law or the equal protection of
the laws within the territory of India. Equality includes the full and
equal enjoyment of all rights and freedom. Right to equality has been
declared as the basic feature of the Constitution and treatment of equals
as unequals or unequals as equals will be violative of the basic structure
of the Constitution. Article 14 of the Constitution also ensures equal
protection and hence a positive obligation on the State to ensure equal
protection of laws by bringing in necessary social and economic changes, so
that everyone including TGs may enjoy equal protection of laws and nobody
is denied such protection. Article 14 does not restrict the word ‘person’
and its application only to male or female. Hijras/transgender persons who
are neither male/female fall within the expression ‘person’ and, hence,
entitled to legal protection of laws in all spheres of State activity,
including employment, healthcare, education as well as equal civil and
citizenship rights, as enjoyed by any other citizen of this country.

ARTICLES 15 & 16 AND TRANSGENDERS

Articles 15 and 16 prohibit discrimination against any citizen on
certain enumerated grounds, including the ground of ‘sex’. In fact, both
the Articles prohibit all forms of gender bias and gender based
discrimination.

Article 15 states that the State shall not discriminate against any
citizen, inter alia, on the ground of sex, with regard to
(a) access to shops, public restaurants, hotels and places of public
entertainment; or
(b) use of wells, tanks, bathing ghats, roads and places of public resort
maintained wholly or partly out of State funds or dedicated to the use
of the general public.
The requirement of taking affirmative action for the advancement of
any socially and educationally backward classes of citizens is also
provided in this Article.

ARTICLE 19(1)(a) AND TRANSGENDERS

Article 19(1) of the Constitution guarantees certain fundamental
rights, subject to the power of the State to impose restrictions from
exercise of those rights. The rights conferred by Article 19 are not
available to any person who is not a citizen of India. Article 19(1)
guarantees those great basic rights which are recognized and guaranteed as
the natural rights inherent in the status of the citizen of a free country.
Article 19(1) (a) of the Constitution states that all citizens shall have
the right to freedom of speech and expression, which includes one’s right
to expression of his self-identified gender. Self-identified gender can be
expressed through dress, words, action or behavior or any other form. No
restriction can be placed on one’s personal appearance or choice of
dressing, subject to the restrictions contained in Article 19(2) of the
Constitution.

ARTICLE 21 AND THE TRANSGENDERS

67. Article 21 of the Constitution of India reads as follows:
“21. Protection of life and personal liberty – No person shall be
deprived of his life or personal liberty except according to procedure
established by law.”

Article 21 is the heart and soul of the Indian Constitution, which
speaks of the rights to life and personal liberty. Right to life is one
of the basic fundamental rights and not even the State has the authority to
violate or take away that right. Article 21 takes all those aspects of
life which go to make a person’s life meaningful. Article 21 protects the
dignity of human life, one’s personal autonomy, one’s right to privacy,
etc. Right to dignity has been recognized to be an essential part of the
right to life and accrues to all persons on account of being humans.

 

 

 

——————————————————————————————————————————————————————————————————

REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL ORIGINAL JURISDICTION
WRIT PETITION (CIVIL) NO.400 OF 2012
National Legal Services Authority … Petitioner
Versus
Union of India and others … Respondents
WITH
WRIT PETITION (CIVIL) NO.604 OF 2013
J U D G M E N T
K.S. Radhakrishnan, J.
1. Seldom, our society realizes or cares to realize the trauma, agony
and pain which the members of Transgender community undergo, nor
appreciates the innate feelings of the members of the Transgender
community, especially of those whose mind and body disown their biological
sex. Our society often ridicules and abuses the Transgender community and
in public places like railway stations, bus stands, schools, workplaces,
malls, theatres, hospitals, they are sidelined and treated as untouchables,
forgetting the fact that the moral failure lies in the society’s
unwillingness to contain or embrace different gender identities and
expressions, a mindset which we have to change.

2. We are, in this case, concerned with the grievances of the members of
Transgender Community (for short ‘TG community’) who seek a legal
declaration of their gender identity than the one assigned to them, male or
female, at the time of birth and their prayer is that non-recognition of
their gender identity violates Articles 14 and 21 of the Constitution of
India. Hijras/Eunuchs, who also fall in that group, claim legal status as
a third gender with all legal and constitutional protection.

3. The National Legal Services Authority, constituted under the Legal
Services Authority Act, 1997, to provide free legal services to the weaker
and other marginalized sections of the society, has come forward to
advocate their cause, by filing Writ Petition No. 400 of 2012. Poojaya
Mata Nasib Kaur Ji Women Welfare Society, a registered association, has
also preferred Writ Petition No. 604 of 2013, seeking similar reliefs in
respect of Kinnar community, a TG community.

4. Laxmi Narayan Tripathy, claimed to be a Hijra, has also got impleaded
so as to effectively put across the cause of the members of the transgender
community and Tripathy’s life experiences also for recognition of their
identity as a third gender, over and above male and female. Tripathy says
that non-recognition of the identity of Hijras, a TG community, as a third
gender, denies them the right of equality before the law and equal
protection of law guaranteed under Article 14 of the Constitution and
violates the rights guaranteed to them under Article 21 of the Constitution
of India.

5. Shri Raju Ramachandran, learned senior counsel appearing for the
petitioner – the National Legal Services Authority, highlighted the
traumatic experiences faced by the members of the TG community and
submitted that every person of that community has a legal right to decide
their sex orientation and to espouse and determine their identity. Learned
senior counsel has submitted that since the TGs are neither treated as male
or female, nor given the status of a third gender, they are being deprived
of many of the rights and privileges which other persons enjoy as citizens
of this country. TGs are deprived of social and cultural participation and
hence restricted access to education, health care and public places which
deprives them of the Constitutional guarantee of equality before law and
equal protection of laws. Further, it was also pointed out that the
community also faces discrimination to contest election, right to vote,
employment, to get licences etc. and, in effect, treated as an outcast and
untouchable. Learned senior counsel also submitted that the State cannot
discriminate them on the ground of gender, violating Articles 14 to 16 and
21 of the Constitution of India.

6. Shri Anand Grover, learned senior counsel appearing for the
Intervener, traced the historical background of the third gender identity
in India and the position accorded to them in the Hindu Mythology, Vedic
and Puranic literatures, and the prominent role played by them in the royal
courts of the Islamic world etc. Reference was also made to the repealed
Criminal Tribes Act, 1871 and explained the inhuman manner by which they
were treated at the time of the British Colonial rule. Learned senior
counsel also submitted that various International Forums and U.N. Bodies
have recognized their gender identity and referred to the Yogyakarta
Principles and pointed out that those principles have been recognized by
various countries around the world. Reference was also made to few
legislations giving recognition to the trans-sexual persons in other
countries. Learned senior counsel also submitted that non-recognition of
gender identity of the transgender community violates the fundamental
rights guaranteed to them, who are citizens of this country.

7. Shri T. Srinivasa Murthy, learned counsel appearing in I.A. No. 2 of
2013, submitted that transgender persons have to be declared as a socially
and educationally backward classes of citizens and must be accorded all
benefits available to that class of persons, which are being extended to
male and female genders. Learned counsel also submitted that the right to
choose one’s gender identity is integral to the right to lead a life with
dignity, which is undoubtedly guaranteed by Article 21 of the Constitution
of India. Learned counsel, therefore, submitted that, subject to such
rules/regulations/protocols, transgender persons may be afforded the right
of choice to determine whether to opt for male, female or transgender
classification.

8. Shri Sanjeev Bhatnagar, learned counsel appearing for the petitioner
in Writ Petition No.604 of 2013, highlighted the cause of the Kinnar
community and submitted that they are the most deprived group of
transgenders and calls for constitutional as well as legal protection for
their identity and for other socio-economic benefits, which are otherwise
extended to the members of the male and female genders in the community.

9. Shri Rakesh K. Khanna, learned Additional Solicitor General,
appearing for the Union of India, submitted that the problems highlighted
by the transgender community is a sensitive human issue, which calls for
serious attention. Learned ASG pointed out that, under the aegis of the
Ministry of Social Justice and Empowerment (for short “MOSJE”), a
Committee, called “Expert Committee on Issues relating to Transgender”,
has been constituted to conduct an in-depth study of the problems relating
to transgender persons to make appropriate recommendations to MOSJE. Shri
Khanna also submitted that due representation would also be given to the
applicants, appeared before this Court in the Committee, so that their
views also could be heard.

10. We also heard learned counsel appearing for various States and Union
Territories who have explained the steps they have taken to improve the
conditions and status of the members of TG community in their respective
States and Union Territories. Laxmi Narayan Tripathy, a Hijra, through a
petition supported by an affidavit, highlighted the trauma undergone by
Tripathy from Tripathy’s birth. Rather than explaining the same by us, it
would be appropriate to quote in Tripathy’s own words:
“That the Applicant has born as a male. Growing up as a child, she
felt different from the boys of her age and was feminine in her ways.
On account of her femininity, from an early age, she faced repeated
sexual harassment, molestation and sexual abuse, both within and
outside the family. Due to her being different, she was isolated and
had no one to talk to or express her feelings while she was coming to
terms with her identity. She was constantly abused by everyone as a
‘chakka’ and ‘hijra’. Though she felt that there was no place for
her in society, she did not succumb to the prejudice. She started to
dress and appear in public in women’s clothing in her late teens but
she did not identify as a woman. Later, she joined the Hijra
community in Mumbai as she identified with the other hijras and for
the first time in her life, she felt at home.
That being a hijra, the Applicant has faced serious discrimination
throughout her life because of her gender identity. It has been clear
to the Applicant that the complete non-recognition of the identity of
hijras/transgender persons by the State has resulted in the violation
of most of the fundamental rights guaranteed to them under the
Constitution of India….”

Siddarth Narrain, eunuch, highlights Narrain’s feeling, as follows:
”Ever since I can remember, I have always identified myself as a
woman. I lived in Namakkal, a small town in Tamil Nadu. When I was
in the 10th standard I realized that the only way for me to be
comfortable was to join the hijra community. It was then that my
family found out that I frequently met hijras who lived in the city.
One day, when my father was away, my brother, encouraged by my mother,
started beating me with a cricket bat. I locked myself in a room to
escape from the beatings. My mother and brother then tried to break
into the room to beat me up further. Some of my relatives intervened
and brought me out of the room. I related my ordeal to an uncle of
mine who gave me Rs.50 and asked me to go home. Instead, I took the
money and went to live with a group of hijras in Erode.”

Sachin, a TG, expressed his experiences as follows:
“My name is Sachin and I am 23 years old. As a child I always
enjoyed putting make-up like ‘vibhuti’ or ‘kum kum’ and my parents
always saw me as a girl. I am male but I only have female feelings.
I used to help my mother in all the housework like cooking, washing
and cleaning. Over the years, I started assuming more of the domestic
responsibilities at home. The neighbours starting teasing me. They
would call out to me and ask: ‘Why don’t you go out and work like a
man?’ or ‘Why are you staying at home like a girl?’ But I liked
being a girl. I felt shy about going out and working. Relatives
would also mock and scold me on this score. Every day I would go out
of the house to bring water. And as I walked back with the water I
would always be teased. I felt very ashamed. I even felt suicidal.
How could I live like that? But my parents never protested. They
were helpless.”
We have been told and informed of similar life experiences faced by
various others who belong to the TG community.

11. Transgender is generally described as an umbrella term for
persons whose gender identity, gender expression or behavior does not
conform to their biological sex. TG may also takes in persons who do not
identify with their sex assigned at birth, which include Hijras/Eunuchs
who, in this writ petition, describe themselves as “third gender” and they
do not identify as either male or female. Hijras are not men by virtue of
anatomy appearance and psychologically, they are also not women, though
they are like women with no female reproduction organ and no menstruation.
Since Hijras do not have reproduction capacities as either men or women,
they are neither men nor women and claim to be an institutional “third
gender”. Among Hijras, there are emasculated (castrated, nirvana) men, non-
emasculated men (not castrated/akva/akka) and inter-sexed persons
(hermaphrodites). TG also includes persons who intend to undergo Sex Re-
Assignment Surgery (SRS) or have undergone SRS to align their biological
sex with their gender identity in order to become male or female. They are
generally called transsexual persons. Further, there are persons who like
to cross-dress in clothing of opposite gender, i.e transvestites.
Resultantly, the term “transgender”, in contemporary usage, has become an
umbrella term that is used to describe a wide range of identities and
experiences, including but not limited to pre-operative, post-operative and
non-operative transsexual people, who strongly identify with the gender
opposite to their biological sex; male and female.

HISTORICAL BACKGROUND OF TRANSGENDERS IN INDIA:
12. TG Community comprises of Hijras, eunuchs, Kothis, Aravanis,
Jogappas, Shiv-Shakthis etc. and they, as a group, have got a strong
historical presence in our country in the Hindu mythology and other
religious texts. The Concept of tritiya prakrti or napunsaka has also
been an integral part of vedic and puranic literatures. The word
‘napunsaka’ has been used to denote absence of procreative capability.
13. Lord Rama, in the epic Ramayana, was leaving for the forest upon
being banished from the kingdom for 14 years, turns around to his followers
and asks all the ‘men and women’ to return to the city. Among his
followers, the hijras alone do not feel bound by this direction and decide
to stay with him. Impressed with their devotion, Rama sanctions them the
power to confer blessings on people on auspicious occasions like childbirth
and marriage, and also at inaugural functions which, it is believed set the
stage for the custom of badhai in which hijras sing, dance and confer
blessings.

14. Aravan, the son of Arjuna and Nagakanya in Mahabharata, offers to be
sacrificed to Goddess Kali to ensure the victory of the Pandavas in the
Kurukshetra war, the only condition that he made was to spend the last
night of his life in matrimony. Since no woman was willing to marry one
who was doomed to be killed, Krishna assumes the form of a beautiful woman
called Mohini and marries him. The Hijras of Tamil Nadu consider Aravan
their progenitor and call themselves Aravanis.
15. Jain Texts also make a detailed reference to TG which mentions the
concept of ‘psychological sex’. Hijras also played a prominent role in the
royal courts of the Islamic world, especially in the Ottaman empires and
the Mughal rule in the Medieval India. A detailed analysis of the
historical background of the same finds a place in the book of Gayatri
Reddy, “With Respect to Sex: Negotiating Hijra Identity in South India” –
Yoda Press (2006).
16. We notice that even though historically, Hijras/transgender persons
had played a prominent role, with the onset of colonial rule from the 18th
century onwards, the situation had changed drastically. During the
British rule, a legislation was enacted to supervise the deeds of Hijras/TG
community, called the Criminal Tribes Act, 1871, which deemed the entire
community of Hijras persons as innately ‘criminal’ and ‘addicted to the
systematic commission of non-bailable offences’. The Act provided for
the registration, surveillance and control of certain criminal tribes and
eunuchs and had penalized eunuchs, who were registered, and appeared to be
dressed or ornamented like a woman, in a public street or place, as well as
those who danced or played music in a public place. Such persons also
could be arrested without warrant and sentenced to imprisonment up to two
years or fine or both. Under the Act, the local government had to
register the names and residence of all eunuchs residing in that area as
well as of their properties, who were reasonably suspected of kidnapping or
castrating children, or of committing offences under Section 377 of the
IPC, or of abetting the commission of any of the said offences. Under the
Act, the act of keeping a boy under 16 years in the charge of a registered
eunuch was made an offence punishable with imprisonment up to two years or
fine and the Act also denuded the registered eunuchs of their civil rights
by prohibiting them from acting as guardians to minors, from making a gift
deed or a will, or from adopting a son. Act has, however, been repealed in
August 1949.

17. Section 377 of the IPC found a place in the Indian Penal Code, 1860,
prior to the enactment of Criminal Tribles Act that criminalized all penile-
non-vaginal sexual acts between persons, including anal sex and oral sex,
at a time when transgender persons were also typically associated with the
prescribed sexual practices. Reference may be made to the judgment of the
Allahabad High Court in Queen Empress v. Khairati (1884) ILR 6 All 204,
wherein a transgender person was arrested and prosecuted under Section 377
on the suspicion that he was a ‘habitual sodomite’ and was later acquitted
on appeal. In that case, while acquitting him, the Sessions Judge stated
as follows:
“This case relates to a person named Khairati, over whom the police
seem to have exercised some sort of supervision, whether strictly
regular or not, as a eunuch. The man is not a eunuch in the literal
sense, but he was called for by the police when on a visit to his
village, and was found singing dressed as a woman among the women of a
certain family. Having been subjected to examination by the Civil
Surgeon (and a subordinate medical man), he is shown to have the
characteristic mark of a habitual catamite – the distortion of the
orifice of the anus into the shape of a trumpet and also to be
affected with syphilis in the same region in a manner which distinctly
points to unnatural intercourse within the last few months.”
18. Even though, he was acquitted on appeal, this case would demonstrate
that Section 377, though associated with specific sexual acts, highlighted
certain identities, including Hijras and was used as an instrument of
harassment and physical abuse against Hijras and transgender persons. A
Division Bench of this Court in Suresh Kumar Koushal and another v. Naz
Foundation and others [(2014) 1 SCC 1] has already spoken on the
constitutionality of Section 377 IPC and, hence, we express no opinion on
it since we are in these cases concerned with an altogether different issue
pertaining to the constitutional and other legal rights of the transgender
community and their gender identity and sexual orientation.

GENDER IDENTITY AND SEXUAL ORIENTATION

19. Gender identity is one of the most-fundamental aspects of life which
refers to a person’s intrinsic sense of being male, female or transgender
or transsexual person. A person’s sex is usually assigned at birth, but a
relatively small group of persons may born with bodies which incorporate
both or certain aspects of both male and female physiology. At times,
genital anatomy problems may arise in certain persons, their innate
perception of themselves, is not in conformity with the sex assigned to
them at birth and may include pre and post-operative transsexual persons
and also persons who do not choose to undergo or do not have access to
operation and also include persons who cannot undergo successful operation.
Countries, all over the world, including India, are grappled with the
question of attribution of gender to persons who believe that they belong
to the opposite sex. Few persons undertake surgical and other procedures
to alter their bodies and physical appearance to acquire gender
characteristics of the sex which conform to their perception of gender,
leading to legal and social complications since official record of their
gender at birth is found to be at variance with the assumed gender
identity. Gender identity refers to each person’s deeply felt internal and
individual experience of gender, which may or may not correspond with the
sex assigned at birth, including the personal sense of the body which may
involve a freely chosen, modification of bodily appearance or functions by
medical, surgical or other means and other expressions of gender, including
dress, speech and mannerisms. Gender identity, therefore, refers to an
individual’s self-identification as a man, woman, transgender or other
identified category.

20. Sexual orientation refers to an individual’s enduring physical,
romantic and/or emotional attraction to another person. Sexual orientation
includes transgender and gender-variant people with heavy sexual
orientation and their sexual orientation may or may not change during or
after gender transmission, which also includes homo-sexuals, bysexuals,
heterosexuals, asexual etc. Gender identity and sexual orientation, as
already indicated, are different concepts. Each person’s self-defined
sexual orientation and gender identity is integral to their personality and
is one of the most basic aspects of self-determination, dignity and freedom
and no one shall be forced to undergo medical procedures, including SRS,
sterilization or hormonal therapy, as a requirement for legal recognition
of their gender identity.

UNITED NATIONS AND OTHER HUMAN RIGHTS BODIES – ON GENDER IDENTITY AND
SEXUAL ORIENTATION
21. United Nations has been instrumental in advocating the protection and
promotion of rights of sexual minorities, including transgender persons.
Article 6 of the Universal Declaration of Human Rights, 1948 and Article 16
of the International Covenant on Civil and Political Rights, 1966 (ICCPR)
recognize that every human being has the inherent right to live and this
right shall be protected by law and that no one shall be arbitrarily denied
of that right. Everyone shall have a right to recognition, everywhere as a
person before the law. Article 17 of the ICCPR states that no one shall
be subjected to arbitrary or unlawful interference with his privacy,
family, home or correspondence, nor to unlawful attacks on his honour and
reputation and that everyone has the right to protection of law against
such interference or attacks. International Commission of Jurists and the
International Service for Human Rights on behalf of a coalition of human
rights organizations, took a project to develop a set of international
legal principles on the application of international law to human rights
violations based on sexual orientation and sexual identity to bring greater
clarity and coherence to State’s human rights obligations. A
distinguished group of human rights experts has drafted, developed,
discussed and reformed the principles in a meeting held at Gadjah Mada
University in Yogyakarta, Indonesia from 6 to 9 November, 2006, which is
unanimously adopted the Yogyakarta Principles on the application of
International Human Rights Law in relation to Sexual Orientation and Gender
Identity. Yogyakarta Principles address a broad range of human rights
standards and their application to issues of sexual orientation gender
identity. Reference to few Yogyakarta Principles would be useful.

YOGYAKARTA PRINCIPLES:
22. Principle 1 which deals with the right to the universal enjoyment of
human rights, reads as follows :-
“1. THE RIGHT TO THE UNIVERSAL ENJOYMENT OF HUMAN RIGHTS
All human beings are born free and equal in dignity and rights. Human
beings of all sexual orientations and gender identities are entitled
to the full enjoyment of all human rights.
States shall:
A. Embody the principles of the universality, interrelatedness,
interdependence and indivisibility of all human rights in their
national constitutions or other appropriate legislation and
ensure the practical realisation of the universal enjoyment of
all human rights;
B. Amend any legislation, including criminal law, to ensure its
consistency with the universal enjoyment of all human rights;
C. Undertake programmes of education and awareness to promote and
enhance the full enjoyment of all human rights by all persons,
irrespective of sexual orientation or gender identity;
D. Integrate within State policy and decision-making a pluralistic
approach that recognises and affirms the interrelatedness and
indivisibility of all aspects of human identity including sexual
orientation and gender identity.
2. THE RIGHTS TO EQUALITY AND NON-DISCRIMINATION
Everyone is entitled to enjoy all human rights without discrimination
on the basis of sexual orientation or gender identity. Everyone is
entitled to equality before the law and the equal protection of the
law without any such discrimination whether or not the enjoyment of
another human right is also affected. The law shall prohibit any such
discrimination and guarantee to all persons equal and effective
protection against any such discrimination.
Discrimination on the basis of sexual orientation or gender identity
includes any distinction, exclusion, restriction or preference based
on sexual orientation or gender identity which has the purpose or
effect of nullifying or impairing equality before the law or the equal
protection of the law, or the recognition, enjoyment or exercise, on
an equal basis, of all human rights and fundamental freedoms.
Discrimination based on sexual orientation or gender identity may be,
and commonly is, compounded by discrimination on other grounds
including gender, race, age, religion, disability, health and economic
status.
States shall:
A. Embody the principles of equality and non-discrimination on the
basis of sexual orientation and gender identity in their national
constitutions or other appropriate legislation, if not yet
incorporated therein, including by means of amendment and
interpretation, and ensure the effective realisation of these
principles;
B. Repeal criminal and other legal provisions that prohibit or are, in
effect, employed to prohibit consensual sexual activity among
people of the same sex who are over the age of consent, and ensure
that an equal age of consent applies to both same-sex and different-
sex sexual activity;
C. Adopt appropriate legislative and other measures to prohibit and
eliminate discrimination in the public and private spheres on the
basis of sexual orientation and gender identity;
D. Take appropriate measures to secure adequate advancement of persons
of diverse sexual orientations and gender identities as may be
necessary to ensure such groups or individuals equal enjoyment or
exercise of human rights. Such measures shall not be deemed to be
discriminatory;
E. In all their responses to discrimination on the basis of sexual
orientation or gender identity, take account of the manner in which
such discrimination may intersect with other forms of
discrimination;
F. Take all appropriate action, including programmes of education and
training, with a view to achieving the elimination of prejudicial
or discriminatory attitudes or behaviours which are related to the
idea of the inferiority or the superiority of any sexual
orientation or gender identity or gender expression.
3. THE RIGHT TO RECOGNITION BEFORE THE LAW
Everyone has the right to recognition everywhere as a person before
the law. Persons of diverse sexual orientations and gender identities
shall enjoy legal capacity in all aspects of life. Each person’s self-
defined sexual orientation and gender identity is integral to their
personality and is one of the most basic aspects of self-
determination, dignity and freedom. No one shall be forced to undergo
medical procedures, including sex reassignment surgery, sterilisation
or hormonal therapy, as a requirement for legal recognition of their
gender identity. No status, such as marriage or parenthood, may be
invoked as such to prevent the legal recognition of a person’s gender
identity. No one shall be subjected to pressure to conceal, suppress
or deny their sexual orientation or gender identity.
States shall:
A. Ensure that all persons are accorded legal capacity in civil
matters, without discrimination on the basis of sexual orientation
or gender identity, and the opportunity to exercise that capacity,
including equal rights to conclude contracts, and to administer,
own, acquire (including through inheritance), manage, enjoy and
dispose of property;
B. Take all necessary legislative, administrative and other measures
to fully respect and legally recognise each person’s self-defined
gender identity;
C. Take all necessary legislative, administrative and other measures
to ensure that procedures exist whereby all State-issued identity
papers which indicate a person’s gender/sex — including birth
certificates, passports, electoral records and other documents —
reflect the person’s profound self-defined gender identity;
D. Ensure that such procedures are efficient, fair and non-
discriminatory, and respect the dignity and privacy of the person
concerned;
E. Ensure that changes to identity documents will be recognised in all
contexts where the identification or disaggregation of persons by
gender is required by law or policy;
F. Undertake targeted programmes to provide social support for all
persons experiencing gender transitioning or reassignment.
4. THE RIGHT TO LIFE
Everyone has the right to life. No one shall be arbitrarily deprived
of life, including by reference to considerations of sexual
orientation or gender identity. The death penalty shall not be imposed
on any person on the basis of consensual sexual activity among persons
who are over the age of consent or on the basis of sexual orientation
or gender identity.
States shall:
A. Repeal all forms of crime that have the purpose or effect of
prohibiting consensual sexual activity among persons of the same
sex who are over the age of consent and, until such provisions are
repealed, never impose the death penalty on any person convicted
under them;
B. Remit sentences of death and release all those currently awaiting
execution for crimes relating to consensual sexual activity among
persons who are over the age of consent;
C. Cease any State-sponsored or State-condoned attacks on the lives
of persons based on sexual orientation or gender identity, and
ensure that all such attacks, whether by government officials or by
any individual or group, are vigorously investigated, and that,
where appropriate evidence is found, those responsible are
prosecuted, tried and duly punished.
6. THE RIGHT TO PRIVACY
Everyone, regardless of sexual orientation or gender identity, is
entitled to the enjoyment of privacy without arbitrary or unlawful
interference, including with regard to their family, home or
correspondence as well as to protection from unlawful attacks on their
honour and reputation. The right to privacy ordinarily includes the
choice to disclose or not to disclose information relating to one’s
sexual orientation or gender identity, as well as decisions and
choices regarding both one’s own body and consensual sexual and other
relations with others.
States shall:
A. Take all necessary legislative, administrative and other measures
to ensure the right of each person, regardless of sexual
orientation or gender identity, to enjoy the private sphere,
intimate decisions, and human relations, including consensual
sexual activity among persons who are over the age of consent,
without arbitrary interference;
B. Repeal all laws that criminalise consensual sexual activity among
persons of the same sex who are over the age of consent, and ensure
that an equal age of consent applies to both same-sex and different-
sex sexual activity;
C. Ensure that criminal and other legal provisions of general
application are not applied to de facto criminalise consensual
sexual activity among persons of the same sex who are over the age
of consent;
D. Repeal any law that prohibits or criminalises the expression of
gender identity, including through dress, speech or mannerisms, or
that denies to individuals the opportunity to change their bodies
as a means of expressing their gender identity;
E. Release all those held on remand or on the basis of a criminal
conviction, if their detention is related to consensual sexual
activity among persons who are over the age of consent, or is
related to gender identity;
F. Ensure the right of all persons ordinarily to choose when, to whom
and how to disclose information pertaining to their sexual
orientation or gender identity, and protect all persons from
arbitrary or unwanted disclosure, or threat of disclosure of such
information by others
9. THE RIGHT TO TREATMENT WITH HUMANITY WHILE IN DETENTION
Everyone deprived of liberty shall be treated with humanity and with
respect for the inherent dignity of the human person. Sexual
orientation and gender identity are integral to each person’s dignity.
States shall:
A. Ensure that placement in detention avoids further marginalising
persons on the basis of sexual orientation or gender identity or
subjecting them to risk of violence, ill-treatment or physical,
mental or sexual abuse;
B. Provide adequate access to medical care and counselling appropriate
to the needs of those in custody, recognising any particular needs
of persons on the basis of their sexual orientation or gender
identity, including with regard to reproductive health, access to
HIV/AIDS information and therapy and access to hormonal or other
therapy as well as to gender-reassignment treatments where desired;
C. Ensure, to the extent possible, that all prisoners participate in
decisions regarding the place of detention appropriate to their
sexual orientation and gender identity;
D. Put protective measures in place for all prisoners vulnerable to
violence or abuse on the basis of their sexual orientation, gender
identity or gender expression and ensure, so far as is reasonably
practicable, that such protective measures involve no greater
restriction of their rights than is experienced by the general
prison population;
E. Ensure that conjugal visits, where permitted, are granted on an
equal basis to all prisoners and detainees, regardless of the
gender of their partner;
F. Provide for the independent monitoring of detention facilities by
the State as well as by non-governmental organisations including
organisations working in the spheres of sexual orientation and
gender identity;
G. Undertake programmes of training and awareness-raising for prison
personnel and all other officials in the public and private sector
who are engaged in detention facilities, regarding international
human rights standards and principles of equality and non-
discrimination, including in relation to sexual orientation and
gender identity.
18. PROTECTION FROM MEDICAL ABUSES
No person may be forced to undergo any form of medical or
psychological treatment, procedure, testing, or be confined to a
medical facility, based on sexual orientation or gender identity.
Notwithstanding any classifications to the contrary, a person’s sexual
orientation and gender identity are not, in and of themselves, medical
conditions and are not to be treated, cured or suppressed.
States shall:
A. Take all necessary legislative, administrative and other measures
to ensure full protection against harmful medical practices based
on sexual orientation or gender identity, including on the basis of
stereotypes, whether derived from culture or otherwise, regarding
conduct, physical appearance or perceived gender norms;
B. Take all necessary legislative, administrative and other measures
to ensure that no child’s body is irreversibly altered by medical
procedures in an attempt to impose a gender identity without the
full, free and informed consent of the child in accordance with the
age and maturity of the child and guided by the principle that in
all actions concerning children, the best interests of the child
shall be a primary consideration;
C. Establish child protection mechanisms whereby no child is at risk
of, or subjected to, medical abuse;
D. Ensure protection of persons of diverse sexual orientations and
gender identities against unethical or involuntary medical
procedures or research, including in relation to vaccines,
treatments or microbicides for HIV/AIDS or other diseases;
E. Review and amend any health funding provisions or programmes,
including those of a development-assistance nature, which may
promote, facilitate or in any other way render possible such
abuses;
F. Ensure that any medical or psychological treatment or counselling
does not, explicitly or implicitly, treat sexual orientation and
gender identity as medical conditions to be treated, cured or
suppressed.
19. THE RIGHT TO FREEDOM OF OPINION AND EXPRESSION
Everyone has the right to freedom of opinion and expression,
regardless of sexual orientation or gender identity. This includes the
expression of identity or personhood through speech, deportment,
dress, bodily characteristics, choice of name, or any other means, as
well as the freedom to seek, receive and impart information and ideas
of all kinds, including with regard to human rights, sexual
orientation and gender identity, through any medium and regardless of
frontiers.
States shall:
A. Take all necessary legislative, administrative and other measures
to ensure full enjoyment of freedom of opinion and expression,
while respecting the rights and freedoms of others, without
discrimination on the basis of sexual orientation or gender
identity, including the receipt and imparting of information and
ideas concerning sexual orientation and gender identity, as well as
related advocacy for legal rights, publication of materials,
broadcasting, organisation of or participation in conferences, and
dissemination of and access to safer-sex information;
B. Ensure that the outputs and the organisation of media that is
State-regulated is pluralistic and non-discriminatory in respect of
issues of sexual orientation and gender identity and that the
personnel recruitment and promotion policies of such organisations
are non-discriminatory on the basis of sexual orientation or gender
identity;
C. Take all necessary legislative, administrative and other measures
to ensure the full enjoyment of the right to express identity or
personhood, including through speech, deportment, dress, bodily
characteristics, choice of name or any other means;
D. Ensure that notions of public order, public morality, public health
and public security are not employed to restrict, in a
discriminatory manner, any exercise of freedom of opinion and
expression that affirms diverse sexual orientations or gender
identities;
E. Ensure that the exercise of freedom of opinion and expression does
not violate the rights and freedoms of persons of diverse sexual
orientations and gender identities;
F. Ensure that all persons, regardless of sexual orientation or gender
identity, enjoy equal access to information and ideas, as well as
to participation in public debate.”

 

23. UN bodies, Regional Human Rights Bodies, National Courts, Government
Commissions and the Commissions for Human Rights, Council of Europe, etc.
have endorsed the Yogyakarta Principles and have considered them as an
important tool for identifying the obligations of States to respect,
protect and fulfill the human rights of all persons, regardless of their
gender identity. United Nations Committee on Economic, Social and Cultural
Rights in its Report of 2009 speaks of gender orientation and gender
identity as follows:-
“Sexual orientation and gender identity
‘Other status’ as recognized in article 2, paragraph 2, includes
sexual orientation. States parties should ensure that a person’s
sexual orientation is not a barrier to realizing Covenant rights, for
example, in accessing survivor’s pension rights. In addition, gender
identity is recognized as among the prohibited grounds of
discrimination, for example, persons who are transgender, transsexual
or intersex, often face serious human rights violations, such as
harassment in schools or in the workplace.”

 

24. In this respect, reference may also be made to the General Comment
No.2 of the Committee on Torture and Article 2 of the Convention against
Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment in
2008 and also the General Comment No.20 of the Committee on Elimination of
Discrimination against Woman, responsible for the implementation of the
Convention on the Elimination of All Forms of Discrimination against Woman,
1979 and 2010 report.

SRS and Foreign Judgments

25. Various countries have given recognition to the gender identity of
such persons, mostly, in cases where transsexual persons started asserting
their rights after undergoing SRS of their re-assigned sex. In Corbett
v. Corbett (1970) 2 All ER 33, the Court in England was concerned with the
gender of a male to female transsexual in the context of the validity of a
marriage. Ormrod, J. in that case took the view that the law should adopt
the chromosomal, gonadal and genital tests and if all three are congruent,
that should determine a person’s sex for the purpose of marriage. Learned
Judge expressed the view that any operative intervention should be ignored
and the biological sexual constitution of an individual is fixed at birth,
at the latest, and cannot be changed either by the natural development of
organs of the opposite sex or by medical or surgical means. Later, in R v.
Tan (1983) QB 1053, 1063-1064, the Court of Appeal applied Corbett approach
in the context of criminal law. The Court upheld convictions which were
imposed on Gloria Greaves, a post-operative male to female transsexual,
still being in law, a man.

26. Corbett principle was not found favour by various other countries,
like New Zealand, Australia etc. and also attracted much criticism, from
the medical profession. It was felt that the application of the Corbett
approach would lead to a substantial different outcome in cases of a post
operative inter-sexual person and a post operative transsexual person. In
New Zealand in Attorney-General v. Otahuhu Family Court (1995) 1 NZLR 603,
Justice Ellis noted that once a transsexual person has undergone surgery,
he or she is no longer able to operate in his or her original sex. It was
held that there is no social advantage in the law for not recognizing the
validity of the marriage of a transsexual in the sex of reassignment. The
Court held that an adequate test is whether the person in question has
undergone surgical and medical procedures that have effectively given the
person the physical conformation of a person of a specified sex. In Re
Kevin (Validity of Marriage of Transsexual) (2001) Fam CA 1074, in an
Australian case, Chisholm J., held that there is no ‘formulaic solution’ to
determine the sex of an individual for the purpose of the law of marriage.
It was held that all relevant matters need to be considered, including the
person’s life experiences and self-perception. Full Court of the Federal
Family Court in the year 2003 approved the above-mentioned judgment holding
that in the relevant Commonwealth marriage statute the words ‘man’ and
‘woman’ should be given their ordinary, everyday contemporary meaning and
that the word ‘man’ includes a post operative female to male transsexual
person. The Full Court also held that there was a biological basis for
transsexualism and that there was no reason to exclude the psyche as one of
the relevant factors in determining sex and gender. The judgment Attorney-
General for the Commonwealth & “Kevin and Jennifer” & Human Rights and
Equal Opportunity Commission is reported in (2003) Fam CA 94.

27. Lockhart, J. in Secretary, Department of Social Security v. “SRA”,
(1993) 43 FCR 299 and Mathews, J. in R v. Harris & McGuiness (1988) 17
NSWLR 158, made an exhaustive review of the various decisions with regard
to the question of recognition to be accorded by Courts to the gender of a
transsexual person who had undertaken a surgical procedure. The Courts
generally in New Zealand held that the decision in Corbett v. Corbett
(supra) and R v. Tan (supra) which applied a purely biological test, should
not be followed. In fact, Lockhart. J. in SRA observed that the
development in surgical and medical techniques in the field of sexual
reassignment, together with indications of changing social attitudes
towards transsexuals, would indicate that generally they should not be
regarded merely as a matter of chromosomes, which is purely a psychological
question, one of self-perception, and partly a social question, how society
perceives the individual.
28. A.B. v. Western Australia (2011) HCA 42 was a case concerned with the
Gender Reassignment Act, 2000. In that Act, a person who had undergone a
reassignment procedure could apply to Gender Reassignment Board for the
issue of a recognition certificate. Under Section 15 of that Act, before
issuing the certificate, the Board had to be satisfied, inter alia, that
the applicant believed his or her true gender was the person’s reassigned
gender and had adopted the lifestyle and gender characteristics of that
gender. Majority of Judges agreed with Lockhart, J. in SRA that gender
should not be regarded merely as a matter of chromosomes, but partly a
psychological question, one of self-perception, and partly a social
question, how society perceives the individual.

29. The House of Lords in Bellinger v. Bellinger (2003) 2 All ER 593 was
dealing with the question of a transsexual. In that case, Mrs. Bellinger
was born on 7th September, 1946. At birth, she was correctly classified
and registered as male. However, she felt more inclined to be a female.
Despite her inclinations, and under some pressure, in 1967 she married a
woman and at that time she was 21 years old. Marriage broke down and
parties separated in 1971 and got divorce in the year 1975. Mrs. Bellinger
dressed and lived like a woman and when she married Mr. Bellinger, he was
fully aware of her background and throughout had been supportive to her.
Mr. and Mrs. Bellinger since marriage lived happily as husband and wife and
presented themselves in that fashion to the outside world. Mrs.
Bellinger’s primary claim was for a declaration under Section 55 of the
Family Law Act, 1986 that her marriage to Mr. Bellinger in 1981 was “at its
inception valid marriage”. The House of Lords rejected the claim and
dismissed the appeal. Certainly, the “psychological factor” has not been
given much prominence in determination of the claim of Mrs. Bellinger.
30. The High Court of Kuala Lumpur in Re JG, JG v. Pengarah Jabatan
Pendaftaran Negara (2006) 1 MLJ 90, was considering the question as to
whether an application to amend or correct gender status stated in National
Registration Identity Card could be allowed after a person has undergone
SRS. It was a case where the plaintiff was born as a male, but felt more
inclined to be a woman. In 1996 at Hospital Siroros she underwent a gender
reassignment and got the surgery done for changing the sex from male to
female and then she lived like a woman. She applied to authorities to
change her name and also for a declaration of her gender as female, but her
request was not favourably considered, but still treated as a male. She
sought a declaration from the Court that she be declared as a female and
that the Registration Department be directed to change the last digit of
her identity card to a digit that reflects a female gender. The Malaysian
Court basically applied the principle laid down in Corbett (supra),
however, both the prayers sought for were granted, after noticing that the
medical men have spoken that the plaintiff is a female and they have
considered the sex change of the plaintiff as well as her “psychological
aspect”. The Court noticed that she feels like a woman, lives like one,
behaves as one, has her physical body attuned to one, and most important of
all, her “psychological thinking” is that of a woman.
31. The Court of Appeal, New South Wales was called upon to decide the
question whether the Registrar of Births, Deaths and Marriages has the
power under the Births, Deaths and Marriages Act, 1995 to register a change
of sex of a person and the sex recorded on the register to “non-specific”
or “non-specified”. The appeal was allowed and the matter was remitted
back to the Tribunal for a fresh consideration in accordance with law,
after laying down the law on the subject. The judgment is reported as
Norrie v. NSW Registrar of Births, Deaths and Marriages (2013) NSWCA 145.
While disposing of the appeal, the Court held as follows:-
“The consequence is that the Appeal Panel (and the Tribunal and the
Registrar) were in error in construing the power in S.32DC(1) as
limiting the Registrar to registering a person’s change of sex as only
male or female. An error in the construction of the statutory
provision granting the power to register a person’s change of sex is
an error on a question of law. Collector of Customs v. Pozzolanic
Enterprises Pty. Ltd. [1993] FCA 322; (1993) 43 FCR 280 at 287. This
is so notwithstanding that the determination of the common
understanding of a general word used in the statutory provision is a
question of fact. The Appeal Panel (and the Tribunal and the
Registrar) erred in determining that the current ordinary meaning of
the word “sex” is limited to the character of being either male or
female. That involved an error on a question of fact. But the Appeal
Panel’s error in arriving at the common understanding of the word
“sex” was associated with its error in construction of the effect of
the statutory provision of S.32DC (and also of S.32DA), and
accordingly is of law: Hope v. Bathurst City Council [1980] HCA 16,
(1980) 144 CLR 1 at 10.”
32. In Christine Goodwin v. United Kingdom (Application No.28957/95 -
Judgment dated 11th July, 2002), the European Court of Human Rights
examined an application alleging violation of Articles 8, 12, 13 and 14 of
the Convention for Protection of Human Rights and Fundamental Freedoms,
1997 in respect of the legal status of transsexuals in UK and particularly
their treatment in the sphere of employment, social security, pensions and
marriage. Applicant in that case had a tendency to dress as a woman from
early childhood and underwent aversion therapy in 1963-64. In the mid-
1960s she was diagnosed as a transsexual. Though she married a woman and
they had four children, her inclination was that her “brain sex” did not
fit her body. From that time until 1984 she dressed as a man for work but
as a woman in her free time. In January, 1985, the applicant began
treatment at the Gender Identity Clinic. In October, 1986, she underwent
surgery to shorten her vocal chords. In August, 1987, she was accepted on
the waiting list for gender re-assignment surgery and later underwent that
surgery at a National Health Service hospital. The applicant later
divorced her former wife. She claimed between 1990 and 1992 she was
sexually harassed by colleagues at work, followed by other human rights
violations. The Court after referring to various provisions and
Conventions held as follows:-

“Nonetheless, the very essence of the Convention is respect for human
dignity and human freedom. Under Article 8 of the Convention in
particular, where the notion of personal autonomy is an important
principle underlying the interpretation of its guarantees, protection
is given to the personal sphere of each individuals, including the
right to establish details of their identity as individual human
beings (see, inter alia, Pretty v. the United Kingdom no.2346/02,
judgment of 29 April 2002, 62, and Mikulic v. Croatia, no.53176/99,
judgment of 7 February 2002, 53, both to be published in ECHR 2002…).
In the twenty first century the right of transsexuals to personal
development and to physical and moral security in the full sense
enjoyed by others in society cannot be regarded as a matter of
controversy requiring the lapse of time to cast clearer light on the
issues involved. In short, the unsatisfactory situation in which post-
operative transsexuals live in an intermediate zone as not quite one
gender or the other is no longer sustainable.”
33. The European Court of Human Rights in the case of Van Kuck v. Germany
(Application No.35968/97 – Judgment dated 12.9.2003) dealt with the
application alleging that German Court’s decisions refusing the applicant’s
claim for reimbursement of gender reassignment measures and the related
proceedings were in breach of her rights to a fair trial and of her right
to respect for her private life and that they amounted to discrimination on
the ground of her particular “psychological situation”. Reliance was
placed on Articles 6, 8, 13 and 14 of the Convention for Protection of
Human Rights and Fundamental Freedoms, 1997. The Court held that the
concept of “private life” covers the physical and psychological integrity
of a person, which can sometimes embrace aspects of an individual’s
physical and social identity. For example, gender identifications, name
and sexual orientation and sexual life fall within the personal sphere
protected by Article 8. The Court also held that the notion of personal
identity is an important principle underlying the interpretation of various
guaranteed rights and the very essence of the Convention being respect for
human dignity and human freedom, protection is given to the right of
transsexuals to personal development and to physical and moral security.
34. Judgments referred to above are mainly related to transsexuals, who,
whilst belonging physically to one sex, feel convinced that they belong to
the other, seek to achieve a more integrated unambiguous identity by
undergoing medical and surgical operations to adapt their physical
characteristic to their psychological nature. When we examine the rights
of transsexual persons, who have undergone SRS, the test to be applied is
not the “Biological test”, but the “Psychological test”, because
psychological factor and thinking of transsexual has to be given primacy
than binary notion of gender of that person. Seldom people realize the
discomfort, distress and psychological trauma, they undergo and many of
them undergo “Gender Dysphoria’ which may lead to mental disorder.
Discrimination faced by this group in our society, is rather unimaginable
and their rights have to be protected, irrespective of chromosomal sex,
genitals, assigned birth sex, or implied gender role. Rights of
transgenders, pure and simple, like Hijras, eunuchs, etc. have also to be
examined, so also their right to remain as a third gender as well as their
physical and psychological integrity. Before addressing those aspects
further, we may also refer to few legislations enacted in other countries
recognizing their rights.

LEGISLATIONS IN OTHER COUNTRIES ON TGs

35. We notice, following the trend, in the international human rights law,
many countries have enacted laws for recognizing rights of transsexual
persons, who have undergone either partial/complete SRS, including United
Kingdom, Netherlands, Germany, Australia, Canada, Argentina, etc. United
Kingdom has passed the General Recommendation Act, 2004, following the
judgment in Christine Goodwin (supra) passed by the European Courts of
Human Rights. The Act is all encompassing as not only does it provide
legal recognition to the acquired gender of a person, but it also lays down
provisions highlighting the consequences of the newly acquired gender
status on their legal rights and entitlements in various aspects such as
marriage, parentage, succession, social security and pensions etc. One
of the notable features of the Act is that it is not necessary that a
person needs to have undergone or in the process of undergoing a SRS to
apply under the Act. Reference in this connection may be made to the
Equality Act, 2010 (UK) which has consolidated, repealed and replaced
around nine different anti-discrimination legislations including the Sex
Discrimination Act, 1986. The Act defines certain characteristics to be
“protected characteristics” and no one shall be discriminated or treated
less favourably on grounds that the person possesses one or more of the
“protected characteristics”. The Act also imposes duties on Public Bodies
to eliminate all kinds of discrimination, harassment and victimization.
Gender reassignment has been declared as one of the protected
characteristics under the Act, of course, only the transsexuals i.e. those
who are proposing to undergo, is undergoing or has undergone the process of
the gender reassignment are protected under the Act.

36. In Australia, there are two Acts dealing with the gender identity,
(1) Sex Discrimination Act, 1984; and (ii) Sex Discrimination Amendment
(Sexual Orientation, Gender Identity and Intersex Status) Act, 2013 (Act
2013). Act 2013 amends the Sex Discrimination Act, 1984. Act 2013
defines gender identity as the appearance or mannerisms or other gender-
related characteristics of a person (whether by way of medical intervention
or not) with or without regard to the person’s designated sex at birth.
Sections 5(A), (B) and (C) of the 2013 Act have some relevance and
the same are extracted hereinbelow:-
“5A  Discrimination on the ground of sexual orientation

(1)  For the purposes of this Act, a person (the discriminator)
discriminates against another person (the aggrieved person) on the
ground of the aggrieved person’s sexual orientation if, by reason of:
(a)  the aggrieved person’s sexual orientation; or
(b)  a characteristic that appertains generally to persons who have
the same sexual orientation as the aggrieved person; or
(c)  a characteristic that is generally imputed to persons who have
the same sexual orientation as the aggrieved person;
the discriminator treats the aggrieved person less favourably than, in
circumstances that are the same or are not materially different, the
discriminator treats or would treat a person who has a different
sexual orientation.
(2)  For the purposes of this Act, a person (the discriminator)
discriminates against another person (the aggrieved person) on the
ground of the aggrieved person’s sexual orientation if the
discriminator imposes, or proposes to impose, a condition, requirement
or practice that has, or is likely to have, the effect of
disadvantaging persons who have the same sexual orientation as the
aggrieved person.
(3)  This section has effect subject to sections 7B and 7D.
5B  Discrimination on the ground of gender identity
(1)  For the purposes of this Act, a person (the discriminator)
discriminates against another person (the aggrieved person) on the
ground of the aggrieved person’s gender identity if, by reason of:
(a)  the aggrieved person’s gender identity; or
(b)  a characteristic that appertains generally to persons who have
the same gender identity as the aggrieved person; or
(c)  a characteristic that is generally imputed to persons who have
the same gender identity as the aggrieved person;
the discriminator treats the aggrieved person less favourably than, in
circumstances that are the same or are not materially different, the
discriminator treats or would treat a person who has a different
gender identity.
(2)  For the purposes of this Act, a person (the discriminator)
discriminates against another person (the aggrieved person) on the
ground of the aggrieved person’s gender identity if the discriminator
imposes, or proposes to impose, a condition, requirement or practice
that has, or is likely to have, the effect of disadvantaging persons
who have the same gender identity as the aggrieved person.
(3)  This section has effect subject to sections 7B and 7D.
5C  Discrimination on the ground of intersex status
(1)  For the purposes of this Act, a person (the discriminator)
discriminates against another person (the aggrieved person) on the
ground of the aggrieved person’s intersex status if, by reason of:
(a)  the aggrieved person’s intersex status; or
(b)  a characteristic that appertains generally to persons of
intersex status; or
(c)  a characteristic that is generally imputed to persons of
intersex status;
the discriminator treats the aggrieved person less favourably than, in
circumstances that are the same or are not materially different, the
discriminator treats or would treat a person who is not of intersex
status.
(2)  For the purposes of this Act, a person (the discriminator)
discriminates against another person (the aggrieved person) on the
ground of the aggrieved person’s intersex status if the discriminator
imposes, or proposes to impose, a condition, requirement or practice
that has, or is likely to have, the effect of disadvantaging persons
of intersex status.
(3)  This section has effect subject to sections 7B and 7D.”
Various other precautions have also been provided under the Act.

37. We may in this respect also refer to the European Union Legislations
on transsexuals. Recital 3 of the Preamble to the Directive 2006/54/EC of
European Parliament and the Council of 5 July 2006 makes an explicit
reference to discrimination based on gender reassignment for the first time
in European Union Law. Recital 3 reads as under :-
“The Court of Justice has held that the scope of the principle of
equal treatment for men and women cannot be confined to the
prohibition of discrimination based on the fact that a person is of
one or other sex. In view of this purpose and the nature of the
rights which it seeks to safeguard, it also applies to discrimination
arising from the gender reassignment of a person.”
38. European Parliament also adopted a resolution on discrimination
against transsexuals on 12th September, 1989 and called upon the Member
States to take steps for the protection of transsexual persons and to pass
legislation to further that end. Following that Hungary has enacted Equal
Treatment and the Promotion of Equal Opportunities Act, 2003, which
includes sexual identity as one of the grounds of discrimination. 2010
paper on ‘Transgender Persons’ Rights in the EU Member States prepared by
the Policy Department of the European Parliament presents the specific
situation of transgender people in 27 Member States of the European Union.
In the United States of America some of the laws enacted by the States are
inconsistent with each other. The Federal Law which provides protection
to transgenders is The Matthew Shepard and James Byrd. Jr. Hate Crimes
Prevention Act, 2009, which expands the scope of the 1969 United States
Federal Hate-crime Law by including offences motivated by actual or
perceived gender identity. Around 15 States and District of Colombia in
the United States have legislations which prohibit discrimination on
grounds of gender identity and expression. Few States have issued
executive orders prohibiting discrimination.

39. The Parliament of South Africa in the year 2003, enacted Alteration of
Sex Description and Sex Status Act, 2003, which permits transgender persons
who have undergone gender reassignment or people whose sexual
characteristics have evolved naturally or an intersexed person to apply to
the Director General of the National Department of Home Affairs for
alteration of his/her sex description in the birth register, though the
legislation does not contemplate a more inclusive definition of
transgenders.

40. The Senate of Argentina in the year 2012 passed a law on Gender
Identity that recognizes right by all persons to the recognition of their
gender identity as well as free development of their person according to
their gender identity and can also request that their recorded sex be
amended along with the changes in first name and image, whenever they do
not agree with the self-perceived gender identity. Not necessary that they
seemed to prove that a surgical procedure for total or partial genital
reassignment, hormonal therapies or any other psychological or medical
treatment had taken place. Article 12 deals with dignified treatment,
respecting the gender identity adopted by the individual, even though the
first name is different from the one recorded in their national identity
documents. Further laws also provide that whenever requested by the
individual, the adopted first name must be used for summoning, recording,
filing, calling and any other procedure or service in public and private
spaces.
41. In Germany, a new law has come into force on 5th November, 2013,
which allows the parents to register the sex of the children as ‘not
specified’ in the case of children with intersex variation. According to
Article 22, Section 3 of the German Civil Statutes Act reads as follows:-
“If a child can be assigned to neither the female nor the male sex
then the child has to be named without a specification”
42. The law has also added a category of X, apart from “M” and “F” under
the classification of gender in the passports.

Indian Scenario
43. We have referred exhaustively to the various judicial pronouncements
and legislations on the international arena to highlight the fact that the
recognition of “sex identity gender” of persons, and “guarantee to equality
and non-discrimination” on the ground of gender identity or expression is
increasing and gaining acceptance in international law and, therefore, be
applied in India as well.

44. Historical background of Transgenders in India has already been
dealth in the earlier part of this Judgment indicating that they were once
treated with great respect, at least in the past, though not in the
present. We can perceive a wide range of transgender related identities,
cultures or experiences which are generally as follows:
“Hijras: Hijras are biological males who reject their ‘masculine’
identity in due course of time to identify either as women, or “not-
men”, or “in-between man and woman”, or “neither man nor woman”.
Hijras can be considered as the western equivalent of
transgender/transsexual (male-to-female) persons but Hijras have a
long tradition/culture and have strong social ties formalized through
a ritual called “reet” (becoming a member of Hijra community). There
are regional variations in the use of terms referred to Hijras. For
example, Kinnars (Delhi) and Aravanis (Tamil Nadu). Hijras may earn
through their traditional work: ‘Badhai’ (clapping their hands and
asking for alms), blessing new-born babies, or dancing in ceremonies.
Some proportion of Hijras engage in sex work for lack of other job
opportunities, while some may be self-employed or work for non-
governmental organisations.” (See UNDP India Report (December, 2010).
Eunuch: Eunuch refers to an emasculated male and intersexed to a
person whose genitals are ambiguously male-like at birth, but this is
discovered the child previously assigned to the male sex, would be
recategorized as intesexexd – as a Hijra.
“Aravanis and ‘Thirunangi’ – Hijras in Tamil Nadu identify as
“Aravani”. Tamil Nadu Aravanigal Welfare Board, a state government’s
initiative under the Department of Social Welfare defines Aravanis as
biological males who self-identify themselves as a woman trapped in a
male’s body. Some Aravani activists want the public and media to use
the term ‘Thirunangi’ to refer to Aravanis.
Kothi – Kothis are a heterogeneous group. ‘Kothis’ can be described
as biological males who show varying degrees of ‘femininity’ – which
may be situational. Some proportion of Kothis have bisexual behavior
and get married to a woman. Kothis are generally of lower
socioeconomic status and some engage in sex work for survival. Some
proportion of Hijra-identified people may also identify themselves as
‘Kothis’. But not all Kothi identified people identify themselves as
transgender or Hijras.
Jogtas/Jogappas: Jogtas or Jogappas are those persons who are
dedicated to and serve as a servant of goddess Renukha Devi (Yellamma)
whose temples are present in Maharashtra and Karnataka. ‘Jogta’
refers to male servant of that Goddess and ‘Jogti’ refers to female
servant (who is also sometimes referred to as ‘Devadasi’). One can
become a ‘Jogta’ (or Jogti) if it is part of their family tradition or
if one finds a ‘Guru’ (or ‘Pujari’) who accepts him/her as a ‘Chela’
or ‘Shishya’ (disciple). Sometimes, the term ‘Jogti Hijras’ is used
to denote those male-to-female transgender persons who are
devotees/servants of Goddess Renukha Devi and who are also in the
Hijra communities. This term is used to differentiate them from
‘Jogtas’ who are heterosexuals and who may or may not dress in woman’s
attire when they worship the Goddess. Also, that term differentiates
them from ‘Jogtis’ who are biological females dedicated to the
Goddess. However, ‘Jogti Hijras’ may refer to themselves as ‘Jogti’
(female pronoun) or Hijras, and even sometimes as ‘Jogtas’.
Shiv-Shakthis: Shiv-Shakthis are considered as males who are
possessed by or particularly close to a goddess and who have feminine
gender expression. Usually, Shiv-Shakthis are inducted into the Shiv-
Shakti community by senior gurus, who teach them the norms, customs,
and rituals to be observed by them. In a ceremony, Shiv-Shakthis are
married to a sword that represents male power or Shiva (deity). Shiv-
Shakthis thus become the bride of the sword. Occasionally, Shiv-
Shakthis cross-dress and use accessories and ornaments that are
generally/socially meant for women. Most people in this community
belong to lower socio-economic status and earn for their living as
astrologers, soothsayers, and spiritual healers; some also seek alms.”
(See Serena Nanda, Wadsworth Publishing Company, Second Edition
(1999)
45. Transgender people, as a whole, face multiple forms of oppression in
this country. Discrimination is so large and pronounced, especially in the
field of health care, employment, education, leave aside social exclusion.
A detailed study was conducted by the United Nations Development Programme
(UNDP – India) and submitted a report in December, 2010 on
Hijras/transgenders in India: “HIV Human Rights and Social Exclusion”. The
Report states that the HIV Human Immunodeficiency Virus and Sexually
Transmitted Infections (STI) is now increasingly seen in
Hijras/transgenders population. The estimated size of men who have sex
with men (MSM) and male sex workers population in India (latter presumably
includes Hijras/TG communities) is 2,352,133 and 235,213 respectively. It
was stated that no reliable estimates are available for Hijras/TG women.
HIV prevalence among MSM population was 7.4% against the overall adult HIV
prevalence of 0.36%. It was stated recently Hijras/TG people were included
under the category of MSM in HIV sentinel serosurveillance. It is also
reported in recent studies that Hijras/TG women have indicated a very high
HIV prevalence (17.5% to 41%) among them. Study conducted by NACO also
highlights a pathetic situation. Report submitted by NACI, NACP IV Working
Group Hijras TG dated 5.5.2011 would indicate that transgenders are
extremely vulnerable to HIV. Both the reports highlight the extreme
necessity of taking emergent steps to improve their sexual health, mental
health and also address the issue of social exclusion. The UNDP in its
report has made the following recommendations, which are as under:
“Multiple problems are faced by Hijras/TG, which necessitate a variety
of solutions and actions. While some actions require immediate
implementation such as introducing Hijra/TG-specific social welfare
schemes, some actions need to be taken on a long-term basis changing
the negative attitude of the general public and increasing accurate
knowledge about Hijra/TG communities. The required changes need to be
reflected in policies and laws; attitude of the government, general
public and health care providers; and health care systems and
practice. Key recommendations include the following:
1. Address the gape in NACP-III: establish HIV sentinel
serosurveillance sites for Hijras/TG at strategic locations;
conduct operations research to design and fine-tune culturally-
relevant package of HIV prevention and care interventions for
Hijras/TG; provide financial support for the formation of CBOs run
by Hijras/TG; and build the capacity of CBOs to implement effective
rogrammes.
2. Move beyond focusing on individual-level HIV prevention activities
to address the structural determinants of risks and mitigate the
impact of risks. For example, mental health counseling, crisis
intervention (crisis in relation to suicidal tendencies, police
harassment and arrests, support following sexual and physical
violence), addressing alcohol and drug abuse, and connecting to
livelihood programs all need to be part of the HIV interventions.
3. Train health care providers to be competent and sensitive in
providing health care services (including STI and HIV-related
services) to Hijras/TG as well as develop and monitor
implementation of guidelines related to gender transition and sex
reassignment surgery (SRS).
4. Clarify the ambiguous legal status of sex reassignment surgery and
provide gender transition and SRS services (with proper pre-and
post-operation/transition counseling) for free in public hospitals
in various parts in India.
5. Implement stigma and discrimination reduction measures at various
settings through a variety of ways: mass media awareness for the
general public to focused training and sensitization for police and
health care providers.
6. Develop action steps toward taking a position on legal recognition
of gender identity of Hijras/TG need to be taken in consultation
with Hijras/TG and other key stakeholders. Getting legal
recognition and avoiding ambiguities in the current procedures that
issue identity documents to Hijras/TGs are required as they are
connected to basic civil rights such as access to health and public
services, right to vote, right to contest elections, right to
education, inheritance rights, and marriage and child adoption.
7. Open up the existing Social Welfare Schemes for needy Hijras/TG and
create specific welfare schemes to address the basic needs of
Hijras/TG including housing and employment needs.
8. Ensure greater involvement of vulnerable communities including
Hijras/TG women in policy formulation and program development.”

 

46. Social exclusion and discrimination on the ground of gender stating
that one does not conform to the binary gender (male/female) does prevail
in India. Discussion on gender identity including self-identification of
gender of male/female or as transgender mostly focuses on those persons who
are assigned male sex at birth, whether one talks of Hijra transgender,
woman or male or male to female transgender persons, while concern voiced
by those who are identified as female to male trans-sexual persons often
not properly addressed. Female to male unlike Hijra/transgender persons are
not quite visible in public unlike Hijra/transgender persons. Many of
them, however, do experience violence and discrimination because of their
sexual orientation or gender identity.

INDIA TO FOLLOW INTERNATIONAL CONVENTIONS
47. International Conventions and norms are significant for the purpose
of interpretation of gender equality. Article 1 of the Universal
declaration on Human Rights, 1948, states that all human-beings are born
free and equal in dignity and rights. Article 3 of the Universal
Declaration of Human Rights states that everyone has a right to life,
liberty and security of person. Article 6 of the International Covenant on
Civil and Political Rights, 1966 affirms that every human-being has the
inherent right to life, which right shall be protected by law and no one
shall be arbitrarily deprived of his life. Article 5 of the Universal
Declaration of Human Rights and Article 7 of the International Covenant on
Civil and Political Rights provide that no one shall be subjected to
torture or to cruel inhuman or degrading treatment or punishment. United
Nations Convention against Torture and Other Cruel Inhuman and Degrading
Treatment or Punishment (dated 24th January, 2008) specifically deals with
protection of individuals and groups made vulnerable by discrimination or
marginalization. Para 21 of the Convention states that States are obliged
to protect from torture or ill-treatment all persons regardless of sexual
orientation or transgender identity and to prohibit, prevent and provide
redress for torture and ill-treatment in all contests of State custody or
control. Article 12 of the Universal Declaration of Human Rights and
Article 17 of the International Covenant on Civil and Political Rights
state that no one shall be subjected to “arbitrary or unlawful interference
with his privacy, family, home or correspondence”.

48. Above-mentioned International Human Rights instruments which are
being followed by various countries in the world are aimed to protect the
human rights of transgender people since it has been noticed that
transgenders/transsexuals often face serious human rights violations, such
as harassment in work place, hospitals, places of public conveniences,
market places, theaters, railway stations, bus stands, and so on.

49. Indian Law, on the whole, only recognizes the paradigm of binary
genders of male and female, based on a person’s sex assigned by birth,
which permits gender system, including the law relating to marriage,
adoption, inheritance, succession and taxation and welfare legislations.
We have exhaustively referred to various articles contained in the
Universal Declaration of Human Rights, 1948, the International Covenant on
Economic, Social and Cultural Rights, 1966, the International Covenant on
Civil and Political Rights, 1966 as well as the Yogyakarta principles.
Reference was also made to legislations enacted in other countries dealing
with rights of persons of transgender community. Unfortunately we have no
legislation in this country dealing with the rights of transgender
community. Due to the absence of suitable legislation protecting the
rights of the members of the transgender community, they are facing
discrimination in various areas and hence the necessity to follow the
International Conventions to which India is a party and to give due respect
to other non-binding International Conventions and principles.
Constitution makers could not have envisaged that each and every human
activity be guided, controlled, recognized or safeguarded by laws made by
the legislature. Article 21 has been incorporated to safeguard those
rights and a constitutional Court cannot be a mute spectator when those
rights are violated, but is expected to safeguard those rights knowing the
pulse and feeling of that community, though a minority, especially when
their rights have gained universal recognition and acceptance.
50. Article 253 of the Constitution of India states that the Parliament
has the power to make any law for the whole or any part of the territory of
India for implementing any treaty, agreement or convention. Generally,
therefore, a legislation is required for implementing the international
conventions, unlike the position in the United States of America where the
rules of international law are applied by the municipal courts on the
theory of their implied adoption by the State, as a part of its own
municipal law. Article VI, Cl. (2) of the U.S. Constitution reads as
follows:
“……..all treaties made, or which shall be made, under the authority of
the united States, shall be the supreme law of the land, and the
judges in every State shall be bound thereby, anything in the
Constitution or laws of any State to the contrary not-withstanding.”

51. In the United States, however, it is open to the courts to supersede
or modify international law in its application or it may be controlled by
the treaties entered into by the United States. But, till an Act of
Congress is passed, the Court is bound by the law of nations, which is part
of the law of the land. Such a ‘supremacy clause’ is absent in our
Constitution. Courts in India would apply the rules of International law
according to the principles of comity of Nations, unless they are
overridden by clear rules of domestic law. See: Gramophone Company of
India Ltd. v. Birendra Bahadur Pandey (1984) 2 SCC 534 and Tractor Export
v. Tarapore & Co. (1969) 3 SCC 562, Mirza Ali Akbar Kashani v. United Arab
Republic (1966) 1 SCR 391. In the case of Jolly George Varghese v. Bank
of Cochin (1980) 2 SCC 360, the Court applied the above principle in
respect of the International Covenant on Civil and Political Rights, 1966
as well as in connection with the Universal Declaration of Human Rights.
India has ratified the above mentioned covenants, hence, those covenants
can be used by the municipal courts as an aid to the Interpretation of
Statutes by applying the Doctrine of Harmonization. But, certainly, if
the Indian law is not in conflict with the International covenants,
particularly pertaining to human rights, to which India is a party, the
domestic court can apply those principles in the Indian conditions. The
Interpretation of International Conventions is governed by Articles 31 and
32 of the Vienna Convention on the Law of Treaties of 1969.

52. Article 51 of the Directive Principles of State Policy, which falls
under Part IV of the Indian Constitution, reads as under:
“Art. 51. The State shall endeavour to –
a) promote international peace and security;
b) maintain just and honourable relations between nations;
c) Foster respect for international law and treaty obligation in the
dealings of organised peoples with one another; and
d) Encourage settlement of international disputes by arbitration.”

 

53. Article 51, as already indicated, has to be read along with Article
253 of the Constitution. If the parliament has made any legislation which
is in conflict with the international law, then Indian Courts are bound to
give effect to the Indian Law, rather than the international law. However,
in the absence of a contrary legislation, municipal courts in India would
respect the rules of international law. In His Holiness Kesavananda
Bharati Sripadavalvaru v. State of Kerala (1973) 4 SCC 225, it was stated
that in view of Article 51 of the Constitution, the Court must interpret
language of the Constitution, if not intractable, in the light of United
Nations Charter and the solemn declaration subscribed to it by India. In
Apparel Export Promotion Council v. A. K. Chopra (1999) 1 SCC 759, it was
pointed out that domestic courts are under an obligation to give due regard
to the international conventions and norms for construing the domestic
laws, more so, when there is no inconsistency between them and there is a
void in domestic law. Reference may also be made to the Judgments of this
Court in Githa Hariharan (Ms) and another v. Reserve Bank of India and
another (1999) 2 SCC 228, R.D. Upadhyay v. State of Andhra Pradesh and
others (2007) 15 SCC 337 and People’s Union for Civil Liberties v. Union
of India and another (2005) 2 SCC 436. In Vishaka and others v. State of
Rajasthan and Others (1997) 6 SCC 241, this Court under Article 141 laid
down various guidelines to prevent sexual harassment of women in working
places, and to enable gender equality relying on Articles 11, 24 and
general recommendations 22, 23 and 24 of the Convention on the Elimination
of All Forms of Discrimination against Women. Any international convention
not inconsistent with the fundamental rights and in harmony with its spirit
must be read into those provisions, e.g., Articles 14, 15, 19 and 21 of the
Constitution to enlarge the meaning and content thereof and to promote the
object of constitutional guarantee. Principles discussed hereinbefore on
TGs and the International Conventions, including Yogyakarta principles,
which we have found not inconsistent with the various fundamental rights
guaranteed under the Indian Constitution, must be recognized and followed,
which has sufficient legal and historical justification in our country.

ARTICLE 14 AND TRANSGENDERS

54. Article 14 of the Constitution of India states that the State shall
not deny to “any person” equality before the law or the equal protection of
the laws within the territory of India. Equality includes the full and
equal enjoyment of all rights and freedom. Right to equality has been
declared as the basic feature of the Constitution and treatment of equals
as unequals or unequals as equals will be violative of the basic structure
of the Constitution. Article 14 of the Constitution also ensures equal
protection and hence a positive obligation on the State to ensure equal
protection of laws by bringing in necessary social and economic changes, so
that everyone including TGs may enjoy equal protection of laws and nobody
is denied such protection. Article 14 does not restrict the word ‘person’
and its application only to male or female. Hijras/transgender persons who
are neither male/female fall within the expression ‘person’ and, hence,
entitled to legal protection of laws in all spheres of State activity,
including employment, healthcare, education as well as equal civil and
citizenship rights, as enjoyed by any other citizen of this country.

55. Petitioners have asserted as well as demonstrated on facts and
figures supported by relevant materials that despite constitutional
guarantee of equality, Hijras/transgender persons have been facing extreme
discrimination in all spheres of the society. Non-recognition of the
identity of Hijras/transgender persons denies them equal protection of law,
thereby leaving them extremely vulnerable to harassment, violence and
sexual assault in public spaces, at home and in jail, also by the police.
Sexual assault, including molestation, rape, forced anal and oral sex, gang
rape and stripping is being committed with impunity and there are reliable
statistics and materials to support such activities. Further, non-
recognition of identity of Hijras /transgender persons results in them
facing extreme discrimination in all spheres of society, especially in the
field of employment, education, healthcare etc. Hijras/transgender persons
face huge discrimination in access to public spaces like restaurants,
cinemas, shops, malls etc. Further, access to public toilets is also a
serious problem they face quite often. Since, there are no separate
toilet facilities for Hijras/transgender persons, they have to use male
toilets where they are prone to sexual assault and harassment.
Discrimination on the ground of sexual orientation or gender identity,
therefore, impairs equality before law and equal protection of law and
violates Article 14 of the Constitution of India.

ARTICLES 15 & 16 AND TRANSGENDERS

56. Articles 15 and 16 prohibit discrimination against any citizen on
certain enumerated grounds, including the ground of ‘sex’. In fact, both
the Articles prohibit all forms of gender bias and gender based
discrimination.

57. Article 15 states that the State shall not discriminate against any
citizen, inter alia, on the ground of sex, with regard to
(a) access to shops, public restaurants, hotels and places of public
entertainment; or
(b) use of wells, tanks, bathing ghats, roads and places of public resort
maintained wholly or partly out of State funds or dedicated to the use
of the general public.
The requirement of taking affirmative action for the advancement of
any socially and educationally backward classes of citizens is also
provided in this Article.

58. Article 16 states that there shall be equality of opportunities for
all the citizens in matters relating to employment or appointment to any
office under the State. Article 16 (2) of the Constitution of India reads
as follows :
“16(2). No citizen shall, on grounds only of religion, race, caste,
sex, descent, place of birth, residence or any of them, be ineligible
for, or discriminated against in respect or, any employment or office
under the State.”

Article 16 not only prohibits discrimination on the ground of sex in
public employment, but also imposes a duty on the State to ensure that all
citizens are treated equally in matters relating to employment and
appointment by the State.

59. Articles 15 and 16 sought to prohibit discrimination on the basis of
sex, recognizing that sex discrimination is a historical fact and needs to
be addressed. Constitution makers, it can be gathered, gave emphasis to
the fundamental right against sex discrimination so as to prevent the
direct or indirect attitude to treat people differently, for the reason of
not being in conformity with stereotypical generalizations of binary
genders. Both gender and biological attributes constitute distinct
components of sex. Biological characteristics, of course, include
genitals, chromosomes and secondary sexual features, but gender attributes
include one’s self image, the deep psychological or emotional sense of
sexual identity and character. The discrimination on the ground of ‘sex’
under Articles 15 and 16, therefore, includes discrimination on the ground
of gender identity. The expression ‘sex’ used in Articles 15 and 16 is not
just limited to biological sex of male or female, but intended to include
people who consider themselves to be neither male or female.

60. TGs have been systematically denied the rights under Article 15(2)
that is not to be subjected to any disability, liability, restriction or
condition in regard to access to public places. TGs have also not been
afforded special provisions envisaged under Article 15(4) for the
advancement of the socially and educationally backward classes (SEBC) of
citizens, which they are, and hence legally entitled and eligible to get
the benefits of SEBC. State is bound to take some affirmative action for
their advancement so that the injustice done to them for centuries could be
remedied. TGs are also entitled to enjoy economic, social, cultural and
political rights without discrimination, because forms of discrimination on
the ground of gender are violative of fundamental freedoms and human
rights. TGs have also been denied rights under Article 16(2) and
discriminated against in respect of employment or office under the State on
the ground of sex. TGs are also entitled to reservation in the matter of
appointment, as envisaged under Article 16(4) of the Constitution. State
is bound to take affirmative action to give them due representation in
public services.

61. Articles 15(2) to (4) and Article 16(4) read with the Directive
Principles of State Policy and various international instruments to which
Indian is a party, call for social equality, which the TGs could realize,
only if facilities and opportunities are extended to them so that they can
also live with dignity and equal status with other genders.

ARTICLE 19(1)(a) AND TRANSGENDERS

62. Article 19(1) of the Constitution guarantees certain fundamental
rights, subject to the power of the State to impose restrictions from
exercise of those rights. The rights conferred by Article 19 are not
available to any person who is not a citizen of India. Article 19(1)
guarantees those great basic rights which are recognized and guaranteed as
the natural rights inherent in the status of the citizen of a free country.
Article 19(1) (a) of the Constitution states that all citizens shall have
the right to freedom of speech and expression, which includes one’s right
to expression of his self-identified gender. Self-identified gender can be
expressed through dress, words, action or behavior or any other form. No
restriction can be placed on one’s personal appearance or choice of
dressing, subject to the restrictions contained in Article 19(2) of the
Constitution.

63. We may, in this connection, refer to few judgments of the US Supreme
Courts on the rights of TG’s freedom of expression. The Supreme Court of
the State of Illinois in the City of Chicago v. Wilson et al., 75 III.2d
525(1978) struck down the municipal law prohibiting cross-dressing, and
held as follows “-
“the notion that the State can regulate one’s personal appearance,
unconfined by any constitutional strictures whatsoever, is
fundamentally inconsistent with “values of privacy, self-identity,
autonomy and personal integrity that ….. the Constitution was
designed to protect.”
64. In Doe v. Yunits et al., 2000 WL33162199 (Mass. Super.), the Superior
Court of Massachusetts, upheld the right of a person to wear school dress
that matches her gender identity as part of protected speech and expression
and observed as follows :-
“by dressing in clothing and accessories traditionally associated with
the female gender, she is expressing her identification with the
gender. In addition, plaintiff’s ability to express herself and her
gender identity through dress is important for her health and well-
being. Therefore, plaintiff’s expression is not merely a personal
preference but a necessary symbol of her identity.”
65. Principles referred to above clearly indicate that the freedom of
expression guaranteed under Article 19(1)(a) includes the freedom to
express one’s chosen gender identity through varied ways and means by way
of expression, speech, mannerism, clothing etc.

66. Gender identity, therefore, lies at the core of one’s personal
identity, gender expression and presentation and, therefore, it will have
to be protected under Article 19(1)(a) of the Constitution of India. A
transgender’s personality could be expressed by the transgender’s behavior
and presentation. State cannot prohibit, restrict or interfere with a
transgender’s expression of such personality, which reflects that inherent
personality. Often the State and its authorities either due to ignorance
or otherwise fail to digest the innate character and identity of such
persons. We, therefore, hold that values of privacy, self-identity,
autonomy and personal integrity are fundamental rights guaranteed to
members of the transgender community under Article 19(1)(a) of the
Constitution of India and the State is bound to protect and recognize those
rights.

ARTICLE 21 AND THE TRANSGENDERS

67. Article 21 of the Constitution of India reads as follows:
“21. Protection of life and personal liberty – No person shall be
deprived of his life or personal liberty except according to procedure
established by law.”

Article 21 is the heart and soul of the Indian Constitution, which
speaks of the rights to life and personal liberty. Right to life is one
of the basic fundamental rights and not even the State has the authority to
violate or take away that right. Article 21 takes all those aspects of
life which go to make a person’s life meaningful. Article 21 protects the
dignity of human life, one’s personal autonomy, one’s right to privacy,
etc. Right to dignity has been recognized to be an essential part of the
right to life and accrues to all persons on account of being humans. In
Francis Coralie Mullin v. Administrator, Union Territory of Delhi (1981) 1
SCC 608 (paras 7 and 8), this Court held that the right to dignity forms an
essential part of our constitutional culture which seeks to ensure the full
development and evolution of persons and includes “expressing oneself in
diverse forms, freely moving about and mixing and comingling with fellow
human beings”.

68. Recognition of one’s gender identity lies at the heart of the
fundamental right to dignity. Gender, as already indicated, constitutes
the core of one’s sense of being as well as an integral part of a person’s
identity. Legal recognition of gender identity is, therefore, part of
right to dignity and freedom guaranteed under our Constitution.
69. Article 21, as already indicated, guarantees the protection of
“personal autonomy” of an individual. In Anuj Garg v. Hotel Association
of India (2008) 3 SCC 1 (paragraphs 34-35), this Court held that personal
autonomy includes both the negative right of not to be subject to
interference by others and the positive right of individuals to make
decisions about their life, to express themselves and to choose which
activities to take part in. Self-determination of gender is an integral
part of personal autonomy and self-expression and falls within the realm of
personal liberty guaranteed under Article 21 of the Constitution of India.
LEGAL RECOGNITION OF THIRD/TRANSGENDER IDENTITY
70. Self-identified gender can be either male or female or a third
gender. Hijras are identified as persons of third gender and are not
identified either as male or female. Gender identity, as already
indicated, refers to a person’s internal sense of being male, female or a
transgender, for example Hijras do not identify as female because of their
lack of female genitalia or lack of reproductive capability. This
distinction makes them separate from both male and female genders and they
consider themselves neither man nor woman, but a “third gender”. Hijras,
therefore, belong to a distinct socio-religious and cultural group and
have, therefore, to be considered as a “third gender”, apart from male and
female. State of Punjab has treated all TGs as male which is not legally
sustainable. State of Tamil Nadu has taken lot of welfare measures to
safeguard the rights of TGs, which we have to acknowledge. Few States like
Kerala, Tripura, Bihar have referred TGs as “third gender or sex”. Certain
States recognize them as “third category”. Few benefits have also been
extended by certain other States. Our neighbouring countries have also
upheld their fundamental rights and right to live with dignity.
71. The Supreme Court of Nepal in Sunil Babu Pant & Ors. v. Nepal
Government (Writ Petition No.917 of 2007 decided on 21st December, 2007),
spoke on the rights of Transgenders as follows:-

“the fundamental rights comprised under Part II of the Constitution
are enforceable fundamental human rights guaranteed to the citizens
against the State. For this reason, the fundamental rights stipulated
in Part III are the rights similarly vested in the third gender people
as human beings. The homosexuals and third gender people are also
human beings as other men and women are, and they are the citizens of
this country as well…. Thus, the people other than ‘men’ and ‘women’,
including the people of ‘third gender’ cannot be discriminated. The
State should recognize the existence of all natural persons including
the people of third gender other than the men and women. And it
cannot deprive the people of third gender from enjoying the
fundamental rights provided by Part III of the Constitution.”

 

72. The Supreme Court of Pakistan in Dr. Mohammad Aslam Khaki & Anr. V.
Senior Superintendent of Police (Operation) Rawalpindi & Ors. (Constitution
Petition No.43 of 2009) decided on 22nd March, 2011, had occasion to
consider the rights of eunuchs and held as follows:-

“Needless to observe that eunuchs in their rights are citizens of this
country and subject to the Constitution of the Islamic Republic of
Pakistan, 1973, their rights, obligations including right to life and
dignity are equally protected. Thus no discrimination, for any
reason, is possible against them as far as their rights and
obligations are concerned. The Government functionaries both at
federal and provincial levels are bound to provide them protection of
life and property and secure their dignity as well, as is done in case
of other citizens.”
73. We may remind ourselves of the historical presence of the third
gender in this country as well as in the neighbouring countries.

74. Article 21, as already indicated, protects one’s right of self-
determination of the gender to which a person belongs. Determination of
gender to which a person belongs is to be decided by the person concerned.
In other words, gender identity is integral to the dignity of an individual
and is at the core of “personal autonomy” and “self-determination”.
Hijras/Eunuchs, therefore, have to be considered as Third Gender, over and
above binary genders under our Constitution and the laws.
75. Articles 14, 15, 16, 19 and 21, above discussion, would indicate, do
not exclude Hijras/Transgenders from its ambit, but Indian law on the whole
recognize the paradigm of binary genders of male and female, based on one’s
biological sex. As already indicated, we cannot accept the Corbett
principle of “Biological Test”, rather we prefer to follow the psyche of
the person in determining sex and gender and prefer the “Psychological
Test” instead of “Biological Test”. Binary notion of gender reflects in
the Indian Penal Code, for example, Section 8, 10, etc. and also in the
laws related to marriage, adoption, divorce, inheritance, succession and
other welfare legislations like NAREGA, 2005, etc. Non-recognition of the
identity of Hijras/Transgenders in the various legislations denies them
equal protection of law and they face wide-spread discrimination.

 

76. Article 14 has used the expression “person” and the Article 15 has
used the expression “citizen” and “sex” so also Article 16. Article 19 has
also used the expression “citizen”. Article 21 has used the expression
“person”. All these expressions, which are “gender neutral” evidently
refer to human-beings. Hence, they take within their sweep
Hijras/Transgenders and are not as such limited to male or female gender.
Gender identity as already indicated forms the core of one’s personal self,
based on self identification, not on surgical or medical procedure. Gender
identity, in our view, is an integral part of sex and no citizen can be
discriminated on the ground of gender identity, including those who
identify as third gender.

77. We, therefore, conclude that discrimination on the basis of sexual
orientation or gender identity includes any discrimination, exclusion,
restriction or preference, which has the effect of nullifying or
transposing equality by the law or the equal protection of laws guaranteed
under our Constitution, and hence we are inclined to give various
directions to safeguard the constitutional rights of the members of the TG
community.

 

..………………………..J
(K.S. Radhakrishnan)
A.K. SIKRI,J.

78. I have carefully, and with lot of interest, gone through the
perspicuous opinion of my brother Radhakrishnan,J. I am entirely in
agreement with the discussion contained in the said judgment on all the
cardinal issues that have arisen for consideration in these proceedings. At
the same time, having regard to the fact that the issues involved are of
seminal importance, I am also inclined to pen down my thoughts.

79. As is clear, these petitions essentially raise an issue of
“Gender Identity”, which is the core issue. It has two facets, viz.:
“(a) Whether a person who is born as a male with predominantly
female orientation (or vice-versa), has a right to get himself to be
recognized as a female as per his choice moreso, when such a person
after having undergone operational procedure, changes his/her sex as
well;
(b) Whether transgender (TG), who are neither males nor females, have
a right to be identified and categorized as a “third gender”?
80. We would hasten to add that it is the second issue with which we are
primarily concerned in these petitions though in the process of discussion,
first issue which is somewhat inter-related, has also popped up.

81. Indubitably, the issue of choice of gender identify has all the
trappings of a human rights. That apart, as it becomes clear from the
reading of the judgment of my esteemed Brother Radhakrishnan,J., the issue
is not limited to the exercise of choice of gender/sex. Many rights which
flow from this choice also come into play, inasmuch not giving them the
status of a third gender results in depriving the community of TGs of many
of their valuable rights and privileges which other persons enjoy as
citizens of this Country. There is also deprivation of social and cultural
participation which results into eclipsing their access to education and
health services. Radhakrishnan,J. has exhaustively described the term
‘Transgender’ as an umbrella term which embraces within itself a wide range
of identities and experiences including but not limited to pre-
operative/post-operative trans sexual people who strongly identify with the
gender opposite to their biological sex i.e. male/ female. Therein, the
history of transgenders in India is also traced and while doing so, there
is mention of upon the draconian legislation enacted during the British
Rule, known as Criminal Tribes Act, 1871 which treated, per se, the entire
community of Hizra persons as innately ‘criminals’, ‘addicted to the
systematic commission of non-bailable offences’.

82. With these introductory remarks, I revert to the two facets of
pivotal importance mentioned above. Before embarking on the discussion, I
may clarify that my endeavour would be not to repeat the discussion
contained in the judgment of my Brother Radhakrishnan, J., as I agree with
every word written therein. However, at times, if some of the observations
are re-narrated, that would be only with a view to bring continuity in the
thought process.
(1) Re: Right of a person to have the gender of his/her choice.
When a child is born, at the time of birth itself, sex is assigned to
him/her. A child would be treated with that sex thereafter, i.e. either a
male or a female. However, as explained in detail in the accompanying
judgment, some persons, though relatively very small in number, may born
with bodies which incorporate both or certain aspects of both male or
female physiology. It may also happen that though a person is born as a
male, because of some genital anatomy problems his innate perception may be
that of a female and all his actions would be female oriented. The position
may be exactly the opposite wherein a person born as female may behave like
a male person.

83. In earlier times though one could observe such characteristics, at
the same time the underlying rationale or reason behind such a behavior was
not known. Over a period of time, with in depth study and research of such
physical and psychological factors bevaviour, the causes of this behaviour
have become discernable which in turn, has led to some changes in societal
norms. Society has starting accepting, though slowly, these have accepted
the behavioral norms of such persons without treating it as abnormal.
Further, medical science has leaped forward to such an extent that even
physiology appearance of a person can be changed through surgical
procedures, from male to female and vice-versa. In this way, such persons
are able to acquire the body which is in conformity with the perception of
their gender/gender characteristics. In order to ensure that law also
keeps pace with the aforesaid progress in medical science, various
countries have come out with Legislation conferring rights on such persons
to recognize their gender identity based on reassigned sex after undergoing
Sex Re-Assignment Surgery (SRS). Law and judgments given by the courts in
other countries have been exhaustively and grandiloquently traversed by my
learned Brother in his judgment, discussing amongst others, the Yogyakarta
principles, the relevant provisions of the Universal Declaration of Human
Rights 1948 and highlighting the statutory framework operating in those
countries.

84. The genesis of this recognition lies in the acknowledgment of another
fundamental and universal principal viz. “right of choice” given to an
individual which is the inseparable part of human rights. It is a matter
of historical significance that the 20th Century is often described as “the
age of rights”.

85. The most important lesson which was learnt as a result of Second
World War was the realization by the Governments of various countries about
the human dignity which needed to be cherished and protected. It is for
this reason that in the U.N.Charter, 1945, adopted immediately after the
Second World War, dignity of the individuals was mentioned as of core
value. The almost contemporaneous Universal Declaration of Human Rights
(1948) echoed same sentiments.

86. The underlined message in the aforesaid documents is the
acknowledgment that human rights are individual and have a definite linkage
of human development, both sharing common vision and with a common purpose.
Respect for human rights is the root for human development and realization
of full potential of each individual, which in turn leads to the
augmentation of human resources with progress of the nation. Empowerment of
the people through human development is the aim of human rights.

87. There is thus a universal recognition that human rights are rights
that “belong” to every person, and do not depend on the specifics of the
individual or the relationship between the right-holder and the right-
grantor. Moreover, human rights exist irrespective of the question whether
they are granted or recognized by the legal and social system within which
we live. They are devices to evaluate these existing arrangements: ideally,
these arrangements should not violate human rights. In other words, human
rights are moral, pre-legal rights. They are not granted by people nor can
they be taken away by them.

88. In international human rights law, equality is found upon two
complementary principles: non-discrimination and reasonable
differentiation. The principle of non-discrimination seeks to ensure that
all persons can equally enjoy and exercise all their rights and freedoms.
Discrimination occurs due to arbitrary denial of opportunities for equal
participation. For example, when public facilities and services are set on
standards out of the reach of the TGs, it leads to exclusion and denial of
rights. Equality not only implies preventing discrimination (example, the
protection of individuals against unfavourable treatment by introducing
anti- discrimination laws), but goes beyond in remedying discrimination
against groups suffering systematic discrimination in society. In concrete
terms, it means embracing the notion of positive rights, affirmative action
and reasonable accommodation.

89. Nevertheless, the Universal Declaration of Human Rights recognizes
that all human beings are born free and equal in dignity and rights and,
since the Covenant’s provisions apply fully to all members of society,
persons with disabilities are clearly entitled to the full range of rights
recognized in the Covenant. Moreover, the requirement contained in Article
2 of the Covenant that the rights enunciated will be exercised without
discrimination of any kind based on certain specified grounds or other
status clearly applies to cover persons with disabilities.

90. India attained independence within two years of adoption of the
aforesaid U.N.Charter and it was but natural that such a Bill of Rights
would assume prime importance insofar as thinking of the members of the
Constituent Assembly goes. It in fact did and we found chapter on
fundamental rights in Part-III of the Constitution. It is not necessary for
me, keeping in view the topic of today’s discussion, to embark on detailed
discussion on Chapter-III. Some of the provisions relevant for our purposes
would be Article 14, 15,16 and 21 of the Constitution which have already
been adverted to in detail in the accompanying judgment. At this juncture
it also needs to be emphasized simultaneously is that in addition to the
fundamental rights, Constitution makers also deemed it proper to impose
certain obligations on the State in the form of “Directive Principles of
State Policy” (Part-IV) as a mark of good governance. It is this part which
provides an ideal and purpose to our Constitution and delineates certain
principles which are fundamental in the governance of the country.
Dr.Ambedkar had explained the purpose of these Directive Principles in the
following manner (See Constituent Assembly debates):
“The Directive Principles are like the Instruments of
Instructions which were issued to the Governor-General and the
Governors of Colonies, and to those of India by the British
Government under the 1935 Government of India Act. What is called
“Directive Principles” is merely another name for the Instrument
of Instructions. The only difference is that they are
instructions to the legislature and the executive. Whoever
capture power will not be free to do what he likes with it. In
the exercise of it he will have to respect these instruments of
instructions which are called Directive Principles”.
91. The basic spirit of our Constitution is to provide each and every
person of the nation equal opportunity to grow as a human being,
irrespective of race, caste, religion, community and social status.
Granville Austin while analyzing the functioning of Indian Constitution in
first 50 years ha described three distinguished strands of Indian
Constitution: (i)protecting national unity and integrity, (ii)establishing
the institution and spirit of democracy; and (iii) fostering social
reforms. The Strands are mutually dependent, and inextricably intertwined
in what he elegantly describes as “a seamless web”. And there cannot be
social reforms till it is ensured that each and every citizen of this
country is able to exploit his/her potentials to the maximum. The
Constitution, although drafted by the Constituent Assembly, was meant for
the people of India and that is why it is given by the people to themselves
as expressed in the opening words “We the People”. What is the most
important gift to the common person given by this Constitution is
“fundamental rights” which may be called Human Rights as well.
92. The concept of equality in Article 14 so also the meaning of the words
‘life’, ‘liberty’ and ‘law’ in Article 21 have been considerably enlarged
by judicial decisions. Anything which is not ‘reasonable, just and fair’ is
not treated to be equal and is, therefore, violative of Article 14.
93. Speaking for the vision of our founding fathers, in State of
Karnataka v. Rangnatha Reddy (AIR 1978 SC 215), this Court speaking through
Justice Krishna Iyer observed:
“The social philosophy of the Constitution shapes
creative judicial vision and orientation. Our nation has, as
its dynamic doctrine, economic democracy sans which political
democracy is chimerical. We say so because our Constitution, in
Parts III and IV and elsewhere, ensouls such a value system, and
the debate in this case puts precisely this soul in peril….Our
thesis is that the dialectics of social justice should not be
missed if the synthesis of Parts III and Part IV is to influence
State action and court pronouncements. Constitutional problems
cannot be studied in a socio-economic vacuum, since socio-
cultural changes are the source of the new values, and sloughing
off old legal thought is part of the process the new equity-
loaded legality. A judge is a social scientist in his role as
constitutional invigilator and fails functionally if he forgets
this dimension in his complex duties.”

94. While interpreting Art. 21, this Court has comprehended such diverse
aspects as children in jail entitled to special treatment (Sheela Barse vs.
Union of India [(1986)3 SCC 596], health hazard due to pollution (Mehta
M.C. v. Union of India [(1987) 4 SCC 463], beggars interest in housing
(Kalidas Vs. State of J&K [(1987) 3 SCC 430] health hazard from harmful
drugs (Vincent Panikurlangara Vs. Union of India AIR 1987 SC 990), right of
speedy trial (Reghubir Singh Vs. State of Bihar, AIR 1987 SC 149),
handcuffing of prisoners(Aeltemesh Rein Vs. Union of India, AIR 1988 SC
1768), delay in execution of death sentence, immediate medical aid to
injured persons(Parmanand Katara Vs. Union of India, AIR 1989 SC 2039),
starvation deaths(Kishen Vs. State of Orissa, AIR 1989 SC 677), the right
to know(Reliance Petrochemicals Ltd. Vs. Indian Express Newspapers Bombay
Pvt. Ltd. AIR 1989 SC 190), right to open trial(Kehar Singh Vs. State
(Delhi Admn.) AIR 1988 SC 1883), inhuman conditions an after-care
home(Vikram Deo Singh Tomar Vs. State of Bihar, AIR 1988 SC 1782).

95. A most remarkable feature of this expansion of Art.21 is that many of
the non-justiciable Directive Principles embodied in Part IV of the
Constitution have now been resurrected as enforceable fundamental rights by
the magic wand of judicial activism, playing on Art.21 e.g.
(a) Right to pollution-free water and air (Subhash Kumar Vs. State of
Bihar, AIR 1991 SC 420).
(b) Right to a reasonable residence (Shantistar Builders Vs. Narayan
Khimalal Totame AIR 1990 SC 630).
(c) Right to food (Supra note 14), clothing, decent environment
(supra note 20) and even protection of cultural heritage (Ram Sharan
Autyanuprasi Vs. UOI, AIR 1989 SC 549) .
(d) Right of every child to a full development (Shantistar Builders
Vs. Narayan Khimalal Totame AIR 1990 SC 630).
(e) Right of residents of hilly-areas to access to roads(State of
H.P. Vs. Umed Ram Sharma, AIR 1986 SC 847).
(f) Right to education (Mohini Jain Vs. State of Karnataka, AIR 1992
SC 1858), but not for a professional degree (Unni Krishnan J.P. Vs. State
of A.P., AIR 1993 SC 2178).

96. A corollary of this development is that while so long the negative
language of Art.21 and use of the word ‘deprived’ was supposed to impose
upon the State the negative duty not to interfere with the life or liberty
of an individual without the sanction of law, the width and amplitude of
this provision has now imposed a positive obligation (Vincent
Panikurlangara Vs. UOI AIR 1987 SC 990) upon the State to take steps for
ensuring to the individual a better enjoyment of his life and dignity, e.g.

(i) Maintenance and improvement of public health (Vincent
Panikurlangara Vs. UOI AIR 1987 SC 990).
(ii) Elimination of water and air pollution (Mehta M.C. Vs. UOI
(1987) 4 SCC 463).
(iii) Improvement of means of communication (State of H.P. Vs. Umed
Ram Sharma AIR 1986 SC 847).
(iv) Rehabilitation of bonded labourers (Bandhuva Mukti Morcha Vs.
UOI, AIR 1984 SC 802).
(v) Providing human conditions if prisons (Sher Singh Vs. State of
Punjab AIR 1983 SC 465) and protective homes (Sheela Barse Vs. UOI (1986)
3 SCC 596).
(vi) Providing hygienic condition in a slaughter-house (Buffalo
Traders Welfare Ass. Vs. Maneka Gandhi (1994) Suppl (3) SCC 448) .

97. The common golden thread which passes through all these
pronouncements is that Art.21 guarantees enjoyment of life by all citizens
of this country with dignity, viewing this human rights in terms of human
development.

98. The concepts of justice social, economic and political, equality of
status and of opportunity and of assuring dignity of the individual
incorporated in the Preamble, clearly recognize the right of one and all
amongst the citizens of these basic essentials designed to flower the
citizen’s personality to its fullest. The concept of equality helps the
citizens in reaching their highest potential.

99. Thus, the emphasis is on the development of an individual in all
respects. The basic principle of the dignity and freedom of the individual
is common to all nations, particularly those having democratic set up.
Democracy requires us to respect and develop the free spirit of human being
which is responsible for all progress in human history. Democracy is also a
method by which we attempt to raise the living standard of the people and
to give opportunities to every person to develop his/her personality. It is
founded on peaceful co-existence and cooperative living. If democracy is
based on the recognition of the individuality and dignity of man, as a
fortiori we have to recognize the right of a human being to choose his
sex/gender identity which is integral his/her personality and is one of the
most basic aspect of self-determination dignity and freedom. In fact, there
is a growing recognition that the true measure of development of a nation
is not economic growth; it is human dignity.

100. More than 225 years ago, Immanuel Kant propounded the doctrine of
free will, namely the free willing individual as a natural law ideal.
Without going into the detail analysis of his aforesaid theory of justice
(as we are not concerned with the analysis of his jurisprudence) what we
want to point out is his emphasis on the “freedom” of human volition. The
concepts of volition and freedom are “pure”, that is not drawn from
experience. They are independent of any particular body of moral or legal
rules. They are presuppositions of all such rules, valid and necessary for
all of them.

101. Over a period of time, two divergent interpretations of the Kantian
criterion of justice came to be discussed. One trend was an increasing
stress on the maximum of individual freedom of action as the end of law.
This may not be accepted and was criticized by the protagonist of ‘hedonist
utilitarianism’, notably Benthem. This school of thoughts laid emphasis on
the welfare of the society rather than an individual by propounding the
principle of maximum of happiness to most of the people. Fortunately, in
the instant case, there is no such dichotomy between the individual
freedom/liberty we are discussing, as against public good. On the contrary,
granting the right to choose gender leads to public good. The second
tendency of Kantian criterion of justice was found in re-interpreting
“freedom” in terms not merely of absence of restraint but in terms of
attainment of individual perfection. It is this latter trend with which we
are concerned in the present case and this holds good even today. As
pointed out above, after the Second World War, in the form of U.N.Charter
and thereafter there is more emphasis on the attainment of individual
perfection. In that united sense at least there is a revival of natural law
theory of justice. Blackstone, in the opening pages in his ‘Vattelian
Fashion’ said that the principal aim of society “is to protect individuals
in the enjoyment of those absolute rights which were vested in them by the
immutable laws of nature……”

102. In fact, the recognition that every individual has fundamental right
to achieve the fullest potential, is founded on the principle that all
round growth of an individual leads to common public good. After all, human
beings are also valuable asset of any country who contribute to the growth
and welfare of their nation and the society. A person who is born with a
particular sex and his forced to grow up identifying with that sex, and not
a sex that his/her psychological behavior identifies with, faces
innumerable obstacles in growing up. In an article appeared in the magazine
“Eye” of the Sunday Indian Express (March 9-15, 2014) a person born as a
boy but with trappings of female ( who is now a female after SRS) has
narrated these difficulties in the following manner:

“The other children treated me as a boy, but I preferred playing
with girls. Unfortunately, grown-ups consider that okay only as
long as you are a small child. The constant inner conflict made
things difficult for me and, as I grew up, I began to dread
social interactions”.

 

103. Such a person, carrying dual entity simultaneously, would encounter
mental and psychological difficulties which would hinder his/her normal
mental and even physical growth. It is not even easy for such a person to
take a decision to undergo SRS procedure which requires strong mental state
of affairs. However, once that is decided and the sex is changed in tune
with psychological behavior, it facilitates spending the life smoothly.
Even the process of transition is not smooth. The transition from a
man to a woman is not an overnight process. It is a “painfully” long
procedure that requires a lot of patience. A person must first undergo
hormone therapy and, if possible, live as a member of the desired sex for a
while. To be eligible for hormone therapy, the person needs at least two
psychiatrists to certify that he or she is mentally sound, and
schizophrenia, depression and transvestism have to be ruled out first. The
psychiatric evaluation involved a serious a questions on how Sunaina felt,
when she got to know of her confusion and need for sex change, whether she
is a recluse, her socio-economic condition, among other things.

104. In the same article appearing in the “Eye” referred to above, the
person who had undergone the operation and became a complete girl, Sunaina
(name changed) narrates the benefit which ensued because of change in sex,
in harmony with her emotional and psychological character, as is clear from
the following passage in that article:
“Like many other single people in the city, she can spend hours
watching Friends, and reading thrillers and Harry Potter. A new
happiness has taken seed in her and she says it does not feel that
she ever had a male body. “I am a person who likes to laugh. Till
my surgery, behind every smile of mine, there was a struggle. Now
it’s about time that I laughed for real. I have never had a
relationship in my life, because somewhere, I always wanted to be
treated as a girl. Now, that I am a woman, I am open to a new
life, new relationships. I don’t have to hide anymore, I don’t
feel trapped anymore. I love coding and my job. I love cooking. I
am learning French and when my left foot recovers fully, I plan to
learn dancing. And, for the first time this year, I will vote with
my new name. I am looking forward to that,” she says.

 

105. If a person has changed his/her sex in tune with his/her gender
characteristics and perception ,which has become possible because of the
advancement in medical science, and when that is permitted by in medical
ethics with no legal embargo, we do not find any impediment, legal or
otherwise, in giving due recognition to the gender identity based on the
reassign sex after undergoing SRS.
106. For these reasons, we are of the opinion that even in the absence
of any statutory regime in this country, a person has a constitutional
right to get the recognition as male or female after SRS, which was not
only his/her gender characteristic but has become his/her physical form as
well.
(2) Re: Right of TG to be identified and categorized as “third
gender”.

107. At the outset, it may be clarified that the term ‘transgender’ is
used in a wider sense, in the present age. Even Gay, Lesbian, bisexual are
included by the descriptor ‘transgender’. Etymologically, the term
‘transgender’ is derived from two words, namely ‘trans’ and ‘gender’.
Former is a Latin word which means ‘across’ or ‘beyond’. The grammatical
meaning of ‘transgender’, therefore, is across or beyond gender. This has
come to be known as umbrella term which includes Gay men, Lesbians,
bisexuals, and cross dressers within its scope. However, while dealing with
the present issue we are not concerned with this aforesaid wider meaning of
the expression transgender.

108. It is to be emphasized that Transgender in India have assumed
distinct and separate class/category which is not prevalent in other parts
of the World except in some neighbouring countries . In this country, TG
community comprise of Hijaras, enunch, Kothis, Aravanis, Jogappas, Shiv-
Shakthis etc. In Indian community transgender are referred as Hizra or the
third gendered people. There exists wide range of transgender-related
identities, cultures, or experience –including Hijras, Aravanis, Kothis,
jogtas/Jogappas, and Shiv-Shakthis (Hijras: They are biological males who
reject their masculinity identity in due course of time to identify either
as women, or ‘not men’. Aravanis: Hijras in Tamil Nadu identify as
‘Aravani’. Kothi: Kothis are heterogeneous group. Kothis can be described
as biological males who show varying degrees of ‘feminity’.
Jogtas/Jogappas: They are those who are dedicated to serve as servant of
Goddess Renukha Devi whose temples are present in Maharashtra and
Karnataka. Sometimes, Jogti Hijras are used to denote such male-to-female
transgender persons who are devotees of Goddess Renukha and are also from
the Hijra community. Shiv-Shakthis: They are considered as males who are
possessed by or particularly close to a goddess and who have feminine
gender expression). The way they behave and acts differs from the normative
gender role of a men and women. For them, furthering life is far more
difficult since such people are neither categorized as men nor women and
this deviation is unacceptable to society’s vast majority. Endeavour to
live a life with dignity is even worse. Obviously transvestites, the hijra
beg from merchants who quickly, under threat of obscene abuse, respond to
the silent demands of such detested individuals. On occasion, especially
festival days, they press their claims with boisterous and ribald singing
and dancing.( A Right to Exist: Eunuchs and the State in Nineteenth-Century
India Laurence W. Preston Modern Asian Studies, Vol.21,No.2 (1987), pp.371-
387).

109. Therefore, we make it clear at the outset that when we discuss
about the question of conferring distinct identity, we are restrictive in
our meaning which has to be given to TG community i.e. hijra etc., as
explained above.

110. Their historical background and individual scenario has been stated
in detail in the accompanying judgment rendered by my learned Brother. Few
things which follow from this discussion are summed up below:
“(a) Though in the past TG in India was treated with great respect,
that does not remain the scenario any longer. Attrition in their
status was triggered with the passing of the Criminal Tribes Act, 1871
which deemed the entire community of Hijara persons as innately
‘criminal’ and ‘adapted to the systematic commission of non-bailable
offences’. This dogmatism and indoctrination of Indian people with
aforesaid presumption, was totally capricious and nefarious. There
could not have been more harm caused to this community with the
passing of the aforesaid brutal Legislation during British Regime with
the vicious and savage this mind set. To add insult to the irreparable
injury caused, Section 377 of the Indian Penal Code was misused and
abused as there was a tendency, in British period, to arrest and
prosecute TG persons under Section 377 merely on suspicion. To undergo
this sordid historical harm caused to TGs of India, there is a need
for incessant efforts with effervescence.
(b) There may have been marginal improvement in the social and
economic condition of TGs in India. It is still far from satisfactory
and these TGs continue to face different kinds of economic blockade
and social degradation. They still face multiple forms of oppression
in this country. Discrimination qua them is clearly discernable in
various fields including health care, employment, education, social
cohesion etc.
(c) The TGs are also citizens of this country. They also have equal
right to achieve their full potential as human beings. For this
purpose, not only they are entitled to proper education, social
assimilation, access to public and other places but employment
opportunities as well. The discussion above while dealing with the
first issue, therefore, equally applies to this issue as well.
111. We are of the firm opinion that by recognizing such TGs as third
gender, they would be able to enjoy their human rights, to which they are
largely deprived of for want of this recognition. As mentioned above, the
issue of transgender is not merely a social or medical issue but there is a
need to adopt human right approach towards transgenders which may focus on
functioning as an interaction between a person and their environment
highlighting the role of society and changing the stigma attached to them.
TGs face many disadvantages due to various reasons, particularly for gender
abnormality which in certain level needs to physical and mental disability.
Up till recently they were subjected to cruelty, pity or charity.
Fortunately, there is a paradigm shift in thinking from the aforesaid
approach to a rights based approach. Though, this may be the thinking of
human rights activist, the society has not kept pace with this shift. There
appears to be limited public knowledge and understanding of same-sex sexual
orientation and people whose gender identity and expression are incongruent
with their biological sex. As a result of this approach, such persons are
socially excluded from the mainstream of the society and they are denied
equal access to those fundamental rights and freedoms that the other people
enjoy freely.(See, Hijras/Transgender Women in India: HIV, Human Rights and
Social Exclusion, UNDP report on India Issue: December, 2010).

 

112. Some of the common and reported problem that transgender most
commonly suffer are: harassment by the police in public places, harassment
at home, police entrapment, rape, discriminations, abuse in public places
et.al. The other major problems that the transgender people face in their
daily life are discrimination, lack of educational facilities, lack of
medical facilities, homelessness, unemployment, depression, hormone pill
abuse, tobacco and alcohol abuse, and problems related to marriage and
adoption. In spite of the adoption of Universal Declaration of Human Rights
(UDHR) in the year 1948, the inherent dignity, equality, respect and rights
of all human beings throughout the world, the transgender are denied basic
human rights. This denial is premised on a prevalent juridical assumption
that the law should target discrimination based on sex (i.e., whether a
person is anatomically male or female), rather than gender (i.e., whether
a person has qualities that society consider masculine or feminine
(Katherine M.Franke, The Central Mistake of Sex Discrimination Law: the
Disaggregation of Sex from Gender, 144 U.Pa.Rev.1,3 (1995) (arguing that by
defining sex in biological terms, the law has failed to distinguish sex
from gender, and sexual differentiation from sex discrimination).
Transgender people are generally excluded from the society and people think
transgenderism as a medical disease. Much like the disability, which in
earlier times was considered as an illness but later on looked upon as a
right based approach. The question whether transgenderism is a disease is
hotly debated in both the transgender and medical-psychiatric communities.
But a prevalent view regarding this is that transgenderism is not a disease
at all, but a benign normal variant of the human experience akin to left-
handedness.

113. Therefore, gender identification becomes very essential component
which is required for enjoying civil rights by this community. It is only
with this recognition that many rights attached to the sexual recognition
as ‘third gender’ would be available to this community more meaningfully
viz. the right to vote, the right to own property, the right to marry, the
right to claim a formal identity through a passport and a ration card, a
driver’s license, the right to education, employment, health so on.

114. Further, there seems to be no reason why a transgender must be
denied of basic human rights which includes Right to life and liberty with
dignity, Right to Privacy and freedom of expression, Right to Education and
Empowerment, Right against violence, Right against Exploitation and Right
against Discrimination. Constitution has fulfilled its duty of providing
rights to transgenders. Now it’s time for us to recognize this and to
extend and interpret the Constitution in such a manner to ensure a
dignified life of transgender people. All this can be achieved if the
beginning is made with the recognition that TG as third gender.

115. In order to translate the aforesaid rights of TGs into reality, it
becomes imperative to first assign them their proper ‘sex’. As is stated
earlier, at the time of birth of a child itself, sex is assigned. However,
it is either male or female. In the process, the society as well as law,
has completely ignored the basic human right of TGs to give them their
appropriate sex categorization. Up to now, they have either been treated as
male or female. This is not only improper as it is far from truth, but
indignified to these TGs and violates their human rights.

116. Though there may not be any statutory regime recognizing ‘third
gender’ for these TGs. However, we find enough justification to recognize
this right of theirs in natural law sphere. Further, such a justification
can be traced to the various provisions contained in Part III of the
Constitution relating to ‘Fundamental Rights’. In addition to the powerful
justification accomplished in the accompanying opinion of my esteemed
Brother, additional raison d’etre for this conclusion is stated
hereinafter.

117. We are in the age of democracy, that too substantive and liberal
democracy. Such a democracy is not based solely on the rule of people
through their representatives’ namely formal democracy. It also has other
percepts like Rule of Law, human rights, independence of judiciary,
separation of powers etc.

118. There is a recognition to the hard realty that without protection
for human rights there can be no democracy and no justification for
democracy. In this scenario, while working within the realm of separation
of powers (which is also fundamental to the substantive democracy), the
judicial role is not only to decide the dispute before the Court, but to
uphold the rule of law and ensure access to justice to the marginalized
section of the society. It cannot be denied that TGs belong to the
unprivileged class which is a marginalized section.

119. The role of the Court is to understand the central purpose and theme
of the Constitution for the welfare of the society. Our Constitution, like
the law of the society, is a living organism. It is based on a factual and
social realty that is constantly changing. Sometimes a change in the law
precedes societal change and is even intended to stimulate it. Sometimes, a
change in the law is the result in the social realty. When we discuss about
the rights of TGs in the constitutional context, we find that in order to
bring about complete paradigm shift, law has to play more pre-dominant
role. As TGs in India, are neither male nor female, treating them as
belonging to either of the aforesaid categories, is the denial of these
constitutional rights. It is the denial of social justice which in turn has
the effect of denying political and economic justice.

120. In Dattatraya Govind Mahajan vs. State of Maharashtra (AIR 1977 SC
915) this Court observed:
“Our Constitution is a tryst with destiny, preamble with
luscent solemnity in the words ‘Justice – social, economic and
political.’ The three great branches of Government, as creatures
of the Constitution, must remember this promise in their
fundamental role and forget it at their peril, for to do so will
be a betrayal of chose high values and goals which this nation
set for itself in its objective Resolution and whose elaborate
summation appears in Part IV of the Paramount Parchment. The
history of our country’s struggle for independence was the story
of a battle between the forces of socio-economic exploitation and
the masses of deprived people of varying degrees and the
Constitution sets the new sights of the nation…..Once we grasp
the dharma of the Constitution, the new orientation of the karma
of adjudication becomes clear. Our founding fathers, aware of our
social realities, forged our fighting faith and integrating
justice in its social, economic and political aspects. While
contemplating the meaning of the Articles of the Organic Law, the
Supreme Court shall not disown Social Justice.”

 

121. Oliver Wendlle Holmes said: “the life of law has been logical; it
has been experience”. It may be added that ‘the life of law is not just
logic or experience. The life of law is renewable based on experience and
logic, which adapted law to the new social realty’. Recognizing this fact,
the aforesaid provisions of the Constitution are required to be given new
and dynamic meaning with the inclusion of rights of TGs as well. In this
process, the first and foremost right is to recognize TGs as ‘third gender’
in law as well. This is a recognition of their right of equality enshrined
in Art.14 as well as their human right to life with dignity, which is the
mandate of the Art.21 of the Constitution. This interpretation is in
consonance with new social needs. By doing so, this Court is only bridging
the gap between the law and life and that is the primary role of the Court
in a democracy. It only amounts to giving purposive interpretation to the
aforesaid provisions of the Constitution so that it can adapt to the
changes in realty. Law without purpose has no raison d’etre. The purpose of
law is the evolution of a happy society. As Justice Iyer has aptly put:
“The purpose of law
is the establishment of the welfare of society “and a society
whose members enjoy welfare and happiness may be described as a
just society. It is a negation of justice to say that some
members, some groups, some minorities, some individuals do not
have welfare: on the other hand they suffer from ill-fare. So it
is axiomatic that law, if it is to fulfil itself, must produce a
contented, dynamic society which is at once meting out justice to
its members.”

122. It is now very well recognized that the Constitution is a living
character; its interpretation must be dynamic. It must be understood in a
way that intricate and advances modern realty. The judiciary is the
guardian of the Constitution and by ensuring to grant legitimate right that
is due to TGs, we are simply protecting the Constitution and the democracy
inasmuch as judicial protection and democracy in general and of human
rights in particular is a characteristic of our vibrant democracy.

123. As we have pointed out above, our Constitution inheres liberal and
substantive democracy with rule of law as an important and fundamental
pillar. It has its own internal morality based on dignity and equality of
all human beings. Rule of law demands protection of individual human
rights. Such rights are to be guaranteed to each and every human being.
These TGs, even though insignificant in numbers, are still human beings and
therefore they have every right to enjoy their human rights.

124. In National Human Rights Commission vs. State of Arunachal Pradesh
(AIR 1996 SC 1234), This Court observed:
“We are a country governed by the Rule of Law. Our
Constitution confers certain rights on every human being and
certain other rights on citizens. Every person is entitled to
equality before the law and equal protection of the laws.”

 

125. The rule of law is not merely public order. The rule of law is
social justice based on public order. The law exists to ensure proper
social life. Social life, however, is not a goal in itself but a means to
allow the individual to life in dignity and development himself. The human
being and human rights underlie this substantive perception of the rule of
law, with a proper balance among the different rights and between human
rights and the proper needs of society. The substantive rule of law “is the
rule of proper law, which balances the needs of society and the
individual.” This is the rule of law that strikes a balance between
society’s need for political independence, social equality, economic
development, and internal order, on the one hand, and the needs of the
individual, his personal liberty, and his human dignity on the other. It is
the duty of the Court to protect this rich concept of the rule of law.

126. By recognizing TGs as third gender, this Court is not only
upholding the rule of law but also advancing justice to the class, so far
deprived of their legitimate natural and constitutional rights. It is,
therefore, the only just solution which ensures justice not only to TGs but
also justice to the society as well. Social justice does not mean equality
before law in papers but to translate the spirit of the Constitution,
enshrined in the Preamble, the Fundamental Rights and the Directive
Principles of State Policy into action, whose arms are long enough to bring
within its reach and embrace this right of recognition to the TGs which
legitimately belongs to them.

127. Aristotle opined that treating all equal things equal and all
unequal things unequal amounts to justice. Kant was of the view that at the
basis of all conceptions of justice, no matter which culture or religion
has inspired them, lies the golden rule that you should treat others as you
would want everybody to treat everybody else, including yourself. When
Locke conceived of individual liberties, the individuals he had in mind
were independently rich males. Similarly, Kant thought of economically self-
sufficient males as the only possible citizens of a liberal democratic
state. These theories may not be relevant in today’s context as it is
perceived that the bias of their perspective is all too obvious to us. In
post-traditional liberal democratic theories of justice, the background
assumption is that humans have equal value and should, therefore, be
treated as equal, as well as by equal laws. This can be described as
‘Reflective Equilibrium’. The method of Reflective Equilibrium was first
introduced by Nelson Goodman in ‘Fact, Fiction and Forecast’ (1955).
However, it is John Rawls who elaborated this method of Reflective
Equilibrium by introducing the conception of ‘Justice as Fairness’. In his
‘Theory of Justice’, Rawls has proposed a model of just institutions for
democratic societies. Herein he draws on certain pre-theoretical elementary
moral beliefs (‘considered judgments’), which he assumes most members of
democratic societies would accept. “[Justice as fairness [….] tries to draw
solely upon basic intuitive ideas that are embedded in the political
institutions of a constitutional democratic regime and the public
traditions of their interpretations. Justice as fairness is a political
conception in part because it starts from within a certain political
tradition. Based on this preliminary understanding of just institutions in
a democratic society, Rawls aims at a set of universalistic rules with the
help of which the justice of present formal and informal institutions can
be assessed. The ensuing conception of justice is called ‘justice as
fairness’. When we combine Rawls’s notion of Justice as Fairness with the
notions of Distributive Justice, to which Noble Laureate Prof. Amartya Sen
has also subscribed, we get jurisprudential basis for doing justice to the
Vulnerable Groups which definitely include TGs. Once it is accepted that
the TGs are also part of vulnerable groups and marginalized section of the
society, we are only bringing them within the fold of aforesaid rights
recognized in respect of other classes falling in the marginalized group.
This is the minimum riposte in an attempt to assuage the insult and
injury suffered by them so far as to pave way for fast tracking the
realization of their human rights.

128. The aforesaid, thus, are my reasons for treating TGs as ‘third
gender’ for the purposes of safeguarding and enforcing appropriately their
rights guaranteed under the Constitution. These are my reasons in support
of our Constitution to the two issues in these petitions.

…………………….J.
(A.K.Sikri)
129. We, therefore, declare:
(1) Hijras, Eunuchs, apart from binary gender, be treated as “third
gender” for the purpose of safeguarding their rights under Part III
of our Constitution and the laws made by the Parliament and the
State Legislature.
(2) Transgender persons’ right to decide their self-identified gender
is also upheld and the Centre and State Governments are directed to
grant legal recognition of their gender identity such as male,
female or as third gender.
(3) We direct the Centre and the State Governments to take steps to
treat them as socially and educationally backward classes of
citizens and extend all kinds of reservation in cases of admission
in educational institutions and for public appointments.
(4) Centre and State Governments are directed to operate separate HIV
Sero-survellance Centres since Hijras/ Transgenders face several
sexual health issues.
(5) Centre and State Governments should seriously address the problems
being faced by Hijras/Transgenders such as fear, shame, gender
dysphoria, social pressure, depression, suicidal tendencies, social
stigma, etc. and any insistence for SRS for declaring one’s gender
is immoral and illegal.
(6) Centre and State Governments should take proper measures to provide
medical care to TGs in the hospitals and also provide them separate
public toilets and other facilities.
(7) Centre and State Governments should also take steps for framing
various social welfare schemes for their betterment.
(8) Centre and State Governments should take steps to create public
awareness so that TGs will feel that they are also part and parcel
of the social life and be not treated as untouchables.
(9) Centre and the State Governments should also take measures to
regain their respect and place in the society which once they
enjoyed in our cultural and social life.
130. We are informed an Expert Committee has already been constituted to
make an in-depth study of the problems faced by the Transgender community
and suggest measures that can be taken by the Government to ameliorate
their problems and to submit its report with recommendations within three
months of its constitution. Let the recommendations be examined based on
the legal declaration made in this Judgment and implemented within six
months.

131. Writ Petitions are, accordingly, allowed, as above.
…..………………………J.
(K.S. Radhakrishnan)

 
………………………….J.
(A.K. Sikri)
New Delhi,
April 15, 2014.

suit for mandatory injunction.

 

“the petitioner has submitted that admittedly the petitioner-defendant was in exclusive possession of the suit property, therefore, only a suit for possession was maintainable and not a suit for mandatory injunction and that the judgments cited at the Bar had not been properly interpreted and applied by the learned civil judge. Learned Counsel has submitted that the substance of the plaint ought to have been seen and not the prayer only.

usurp her property. He also fabricated some documents and procured electricity connection in his own name without disclosing this to the plaintiff. In the year 2003 the respondent-plaintiff wanted to sell the property because she was in dire need of money and had also received earnest money in the presence of the defendant. The defendant was a witness to the said deed. The defendant had assured her that he would vacate the land but instead he filed a suit for perpetual injunctionagainst the plaintiff on the allegation that he himself was the rightful owner. The said suit is still pending. In these facts and circumstances she terminated his license. Therefore a suit formandatory injunction for directing the defendant to remove his belongings and handing over the peaceful possession was maintainable.”

—————————————————————————————————————————————-

Delhi High Court
Hasan Ali vs Akbari Begum @ Akbari Hajjan on 11 September, 2006
Equivalent citations: 133 (2006) DLT 26
Author: J Singh
Bench: J Singh

JUDGMENT

J.P. Singh, J.

1. This Civil Revision Petition under Section 115 of the Code of Civil Procedure is directed against order dated 18.10.2004 passed by the Civil Judge, Delhi.

2. I have heard Mr. V.L.Madan, Advocate learned Counsel for the petitioner and Mr. Subodh K. Pathak, Advocate learned Counsel for the respondent on the point of admission and have gone through the impugned order and copies of the documents filed with the petition.

3. Briefly the facts are that the respondent-plaintiff (hereinafter referred to as the plaintiff) purchased a property situated at Joga Bai extension by means of GPA, agreement to sell, etc. The plaintiff was residing in Meerut and never personally occupied the said property. It is the case of the plaintiff that she permitted her younger brother (petitioner-defendant, hereinafter referred to as the defendant), who was in financial difficulties, to use the said property as a licensee. The defendant after taking permissive possession started a milk dairy. Later on she wanted to sell the property. The defendant then became dishonest and wanted to grab her property. She terminated the license but the defendant refused to quit. To get back the possession a suit for mandatory injunction and occupation charges was filed. The prayer clause is as under:

It is, therefore most respectfully prayed:

1. To this Hon’ble Court that kindly pass a decree of Mandatory Injunction directing thereby the defendant to remove all the belongings and articles of Milk Diary and business work from the suit premises and handover the physical vacant possession to the plaintiff.

2. This Hon’ble Court may also ordered (sic) to pay the occupation charges at the rate of Rs. 6,500/- per month since the date of issuing the notice till the handing over of the physical possession of the plaintiff and total occupation charges become Rs. 19,500/- till July, 2003. Further occupation charges till the date of handing over the possession.

3. That this Hon’ble Court kindly further directed (sic) to the defendant not to sale, transfer dispose of the suit property in any other person till the pendency of the suit (sic).

4. Any other relief which this Hon’ble Court may deem fit and proper be also passed in favor of the plaintiff and against the defendant, in the interest of justice.

4. The defendant filed written statement raising preliminary objections about the maintainability of the suit, pecuniary jurisdiction of the court and has alleged that he is in possession of the suit property in his own rights. A preliminary issue was framed as under:

Whether the suit of the plaintiff is maintainable in the present form OPP.

5. The learned civil judge held the suit to be maintainable. Hence this petition.

6. Learned Counsel for the petitioner has submitted that admittedly the petitioner-defendant was in exclusive possession of the suit property, therefore, only a suit for possession was maintainable and not a suit for mandatory injunction and that the judgments cited at the Bar had not been properly interpreted and applied by the learned civil judge. Learned Counsel has submitted that the substance of the plaint ought to have been seen and not the prayer only.

7. As against this learned Counsel for the plaintiff has submitted that the defendant is real younger brother of the plaintiff. He was passing through pitiable financial crisis and had no source of livelihood. Being elder sister the plaintiff allowed him to run a milk dairy in her land so that he could pass his difficult days. This happened in the year 1997. The possession was permissive and no license fee was charged but in due course the defendant’s intentions changed and he wanted to usurp her property. He also fabricated some documents and procured electricity connection in his own name without disclosing this to the plaintiff. In the year 2003 the respondent-plaintiff wanted to sell the property because she was in dire need of money and had also received earnest money in the presence of the defendant. The defendant was a witness to the said deed. The defendant had assured her that he would vacate the land but instead he filed a suit for perpetual injunction against the plaintiff on the allegation that he himself was the rightful owner. The said suit is still pending. In these facts and circumstances she terminated his license. Therefore a suit for mandatory injunction for directing the defendant to remove his belongings and handing over the peaceful possession was maintainable.

8. Learned Counsel for the petitioner has vehemently argued that that the learned Civil Judge has wrongly interpreted the following judgments:

(i) Jugal Kishore v. Des Raj Seth reported in Vol. IV (DLT) 1961 571 (FB). In this full bench judgment it was held that while determining the nature of the suit and the relief claimed the plaint has to be read and construed as a whole and its substance should be the guiding factor and not merely the title or the prayer in which the words mandatory injunction might have been used. The facts of the said case are that there was a contract between the parties. It was a business transaction and some consideration as license fee was charged every month. Due to some dispute the license was revoked vide notice and the possession was demanded. Since the possession was not given a suit for mandatory injunction was filed for directing the defendant to vacate the premises and restore the equipment to the plaintiff. The full bench opined that the court has to look and see in each particular case as to what is the real nature of the relief claimed and it is for that purpose that the allegations contained in the plaint as a whole have to be examined. Merely because the expression mandatory injunction is used in the prayer clause cannot always be conclusive against the prayer contemplating a decree for possession and if reading the plaint as a whole it becomes clear that the plaintiff is seeking possession of the property, then it would be open for the court to hold the suit to be one for possession and the suit before the court was found to be for possession and not merely for mandatory injunction. The next question decided by the court was about the value of the suit for the purposes of court fee and jurisdiction, Both the learned Counsel then agreed to fix the value at Rs. 10,000/-. After that the matter was remanded back to the trial court for proceeding in accordance with law. After reading other judgments, I will examine the applicability of this judgment in the present case.

(ii) Sham Lal v. Ramesh Kumar reported in 1971 RLR (N) 65. Brief facts in this case are that appellant was a Railway employee. He gave one room of his allotted house to a neighbour because the said neighbour needed a room for birth of a child to his wife. The defendant did not handover possession. While observing that for determining the question of court fee only the plaint should be looked into and citing the judgment Jugal Kishore v. Des Raj Seth (Supra) relied upon by the respondents, the High Court finally opined that in such circumstances a suit for mandatory injunction directing a licensee defendant to vacate the premises is maintainable and the suit was found to be properly valued and framed. This judgment rather goes against the petitioner-defendant.

(iii) Punjab Exchange v. Rajdhani Grains Ltd. reported in 1975 RLR

485. In the said matter also a suit for mandatory injunction was filed for taking possession of a property. It was a transaction between two companies and document was stated to be a license deed. license fee was regularly paid. On dispute license was revoked. The trial court framed a preliminary issue on maintainability. Relying upon the full Bench judgment in Jugal Kishore (Supra) and after examining the plaint it was found that the suit was for possession and the plaintiff was directed to properly value the suit for the purposes of court fee and jurisdiction. The Civil Revision filed by the plaintiff was dismissed. However permission to amend the plaint was granted.

(iv) Shyam Lal v. Sohan Lal . In the

said matter also the main question was about the revocation of license and prayer for mandatory injunction for vacating the house. After carefully reading /the plaint and revocation of license, it was opined that the claim in substance was for possession and the valuation for the purposes of court fee was governed by Section 7(v) of the Court Fee Act and the plaintiff could not put his own valuation. The High Court opined that the learned munsif had not exercised his jurisdiction illegally or with material irregularity when he directed the plaintiff to pay ad valorem court fee, on the market value of the house in dispute. The revision petition was dismissed.

9. All these judgments including the first cited above, in my view, show that if on facts and circumstances of a given case the suit is found to be for possession then a plaint for grant of mandatory injunction can be allowed to be amended, and payment of court fee can be ordered.

10. As against the above judgments the following judgments have been cited:

(i) Delhi Gate Service Private Limited v. Caltex (India) Ltd. New Delhi (Delhi Bench). Briefly thefacts

in the said matter are that appellant company (Delhi Gate Service) entered into a petrol dealers agreement with Caltex company. There was a second agreement under which Caltex company agreed to supply equipment to the Delhi Gate Service company at a nominal rent of Re.1/- per month. Then there was a third agreement. The gist of all these agreements was that Delhi Gate Service company was required to sell only such quantities of petroleum products as were supplied to them by the Caltex company and the agreements were terminable by either party on giving one months notice. There was yet a fourth agreement called Service Station Agreement in which Delhi Gate Service company was described as a licensee under the Caltex company and entitled only to temporary use of the service station in common with the Caltex company during the continuance of the petrol dealers agreement. Delhi Gate Service company was to remain in sole possession of the property during the continuance of petrol dealers agreement but this was not to be construed as creating any right, interest or tenancy in favor of Delhi Gate Service company and it was only to remain as a licensee. Some license fee was settled depending upon sale of the products.

Caltex company terminated the dealership and sought immediate possession of the equipment and the premises. Delhi Gate Service company instituted a suit for declaration inter alia for restraining Caltex company from forcibly evicting Delhi Gate Service company. Caltex company also filed a suit for mandatory injunction directing the Delhi Gate Service company to vacate the premises. On the suit of Delhi Gate Service company the following issues were framed:

1. Whether the termination of the two agreements in dispute is illegal, wanton and arbitrary etc. as alleged and if so to what effect?

2. If issue No. 1 is proved, whether the defendant is entitled to the relief claimed and can the relief claimed be specifically enforced?

3. Whether the plaintiffs are tenants in the suit premises?

4. Whether the plea taken up in issue No. 3 is open to the plaintiffs?

5. If issues Nos. 3 and 4 are proved, whether the plaintiffs are liable to be dispossessed forcibly?

6. Relief.

On the suit filed by the Caltex company the following issues were framed:

1. Whether this suit has been instituted properly?

2. Whether the defendants are licensees of the plaintiffs in the suit premises.

All the essential points were decided by the lower court in favor of Caltex company. The suit filed by the Caltex company was decreed while that of Delhi Gate company was dismissed. The relevant point of controversy (which has arisen in the present suit also, before this Court) was whether a suit for possession should have been filed instead of a suit for mandatory injunction under Section 55 of the Specific Relief Act. The Punjab High Court (Delhi Bench) referred to the judgment titled Prabirendra Nath v. Narendra Nath in which the owner had allowed his nephew to occupy a portion of his house as a licensee and when he refused to quit, the legal heirs of the licencor brought a suit for mandatory injunction to get back the premises and ultimately succeeded. Relying upon the said judgment the Punjab High Court (Delhi Bench) finally held that both the suits were rightly decided by the courts below i.e. in favor of Caltex company for mandatory injunction and against Delhi Gate Service company.

(ii) E.P. George v.Thomas John reported in AIR 1984 Kerala 224 (DB). Brief facts in the said case are that plaintiff had allowed the defendant to use one room for consideration of Rs. 550/- per month or 6 per cent of the total business turnover whichever was higher. The disputes arose and the said agreement was terminated. A suit for mandatory injunction was filed for directing the defendant to remove his articles and prohibitory injunction for restraining him from entering the said room. The trial court passed a decree directing the defendant to remove his articles. The defendant filed appeal. The first appellate court opined that defendant was in exclusive possession. The matter came up before the High Court and was referred to the Division Bench in view of the earlier contradictory judgments. The DB after examining the definition of licensee opined that where a licencor approaches the court for an injunction within a reasonable time after the license is terminated he is entitled to an injunction (mandatory) and the appeal of the defendant-licensee was dismissed.

(iii) Sant Lal Jain v. Avtar Singh reported in 2004 Rajdhani Law Reporter 464. The Supreme Court opined that the relief could not be denied merely because plaintiff had couched the plaint in the form of a suit for mandatory injunction. The facts in the said case in brief are that the plaintiff took a plot of land on lease from the owner and gave the said land and a shed over it to the defendant on a license for one year. The license was terminated but the defendant did not handover possession. So the plaintiff filed a suit for mandatory inunction. The defendant alleged that there was a relationship of landlord and tenant, therefore, suit for mandatory injunction was not maintainable. The trial court decided the matter in favor of the defendant. The Additional District Judge on appeal held that there was relationship of licencor and licensee. Ultimately the matter reached the supreme court. The Supreme Court opined that the defendant had become a licensee under the lessee of the property. The license was revoked before institution of the suit for mandatory injunction and the suit was filed without unreasonable delay after termination of the license. Therefore, Section 7(v) of the Court Fee Act was not attracted and since the relief for grant of injunction was discretionary and even if there was some delay, attempt should be made to avoid multiplicity of the suits and the licencor should not be driven to another round of litigation with all the attendant delay, trouble and expense. The suit is in effect was one for possession though couched in the form of mandatory injunction as what would be given to the plaintiff in case he succeeds is possession of the property to which he may be found entitled. Therefore, the suit for mandatory injunction was held to be in order. The appeal of the licencor was allowed with cost throughout. The licensee was directed to deliver the possession of the property to the licencor.

11. As regards the facts and circumstances of the case before this Court the same can be summed up as under:

The plaintiff is elder sister of the defendant. She had a plot of land. Her younger brother the defendant was having hard times. Apparently out of love and affection she bestowed mercy on her brother. She allowed him to run a milk- diary from the said plot of land. No rent or licensee fee was ever charged. It prima facie appears to be a permissive possession to help a brother in crisis. After about 6 years she needed money and wanted to sell the said land. In the sale agreement, the defendant was a witness and had assured the plaintiff that he would quit the plot, but then had second thoughts and refused to give back the plot of land to his sister, rather claimed to be owner. Therefore, his license was terminated vide notice dated 2.5.2003. The suit was filed on 2.8.2003, i.e., soon after the notice. On the basis of the written statement a preliminary issue about maintainability of the suit was framed and the suit for mandatory injunction was found to be maintainable.

12. In the above mentioned facts and circumstances, I am of the opinion that the judgments relied upon by the learned Counsel for the respondent-licencor are applicable and those cited by the learned Counsel for the petitioner-defendant are not attracted in this case. The impugned order, in my opinion, is well reasoned. There is no illegality, or gross irregularity or error in the exercise of jurisdiction in the impugned order so as to call for interference under Section 115 of the Code of Civil Procedure. The petition is, therefore, dismissed.

13. Nothing said herein will tantamount to expression of opinion on the merits of the case.

 

suit for permanent injunction.

 

Petitioner (in C.R. No. 88/80) brought Title Suit No. 134 of 1978 in the court of the Munsif, Kendrapara for a declaration of title to the suit lands and for a permanent injunctionrestraining the defendant from interfering with his peaceful possession. The suit lands having come under the consolidation operation the defendant filed a petition on 22-12-1976 for an order of abatement of the suit under Section 4(4) of the Act. While the petition for abatement of the suitwas pending, the plaintiff amended the plaint by deleting the prayer for declaration of title and contended that the suit being one for permanent injunction only it should not abate. The learned Munsif by his order D/-20-12-79 having passed an order that the suit would abate under Section 4(4) of the Act, the plaintiff has come up in revision to this Court. The facts of the case in C.R. No. 191/79 are almost identical.

12. The impugned orders in both the revisions before us have been passed by Mr. S. P. Acharya, Munsif, Kendrapara, in 1979 in two suits much prior to the decision of the Division Bench, AIR 1982 Orissa 48. In both the suits, the question that has arisen is as to whether the two suits forpermanent injunction abate under, Section 4(4) of the Act and the learned Munsif has held that the suits abate

Orissa 48 (supra) that a suit for permanent injunction pending in the Civil Court does not abate under Section 4(4) of the Act. This Bench is thankful to Mr. R.K. Mohapatra, an Advocate of the High Court Bar Association, who volunteered to address us at the hearing and was permitted to do so regard being had to the importance of the question involved. Mr. Mohapatra mainly dealt with the relative scope of Section 4(4) and that of Section 51 of the Act and in particular, submitted that the expression “Entertain any suit or proceeding” occurring in Section 51 of the Act would refer both to pending and future suits.

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Orissa High Court
Duruju Mallik And Etc. vs Krupasindhu Swain And Ors. Etc. on 31 August, 1984
Equivalent citations: AIR 1985 Ori 202
Author: J Mohanty
Bench: D P Mohanty, B Behera

JUDGMENT

J.K. Mohanty, J.

1. The question that arises for consideration in these revisions is whether a suit for permanent injunction restraining the defendants from interfering with the plaintiffs’ possession over the disputed lands will abate under the provisions of Section 4(4) of the Orissa Consolidation of Holdings and Prevention of Fragmentation of Land Act, 1972 (Orissa Act 21 of 1972) (hereinafter referred to as the ‘Act’). One of these cases (C.R. No. 88/80) was placed before a learned single Judge of this Court Mr. Justice P. K. Mohanti (as he then was) and his Lordship was pleased to refer the case to a Division Bench as the reasoning given by a Division Bench of this Court in a case reported in AIR 1982 Orissa 48 : (1982) 54 Cut LT 143 (Rahas Bewa v. Kanduri Charan Sutar) was not accepted. Thereafter the case came up before a Division Bench consisting of Mr. Justice P. K. Mohanti (as he then was) and Hon’ble Mr. Justice D. P. Mohapatra and their Lordships thought it proper to refer the same to a Full Bench for consideration of the above point of law. Accordingly the matter was placed before the Hon’ble the Chief Justice for constitution of a Full Bench and as common question of law arose in both the revisions, these were heard analogously.

2. Petitioner (in C.R. No. 88/80) brought Title Suit No. 134 of 1978 in the court of the Munsif, Kendrapara for a declaration of title to the suit lands and for a permanent injunction restraining the defendant from interfering with his peaceful possession. The suit lands having come under the consolidation operation the defendant filed a petition on 22-12-1976 for an order of abatement of the suit under Section 4(4) of the Act. While the petition for abatement of the suit was pending, the plaintiff amended the plaint by deleting the prayer for declaration of title and contended that the suit being one for permanent injunction only it should not abate. The learned Munsif by his order D/-20-12-79 having passed an order that the suit would abate under Section 4(4) of the Act, the plaintiff has come up in revision to this Court. The facts of the case in C.R. No. 191/79 are almost identical.

3. The question of law that arises for consideration as mentioned above was before a Division Bench of this Court earlier consisting of Hon’ble Mr. Justice R.N. Misra, C.J. and Hon’ble Mr. Justice R.C. Patnaik in a case reported in AIR 1982 Orissa 48 : (1982) 54 Cut LT 143 (supra). In that case the plaintiffs suit was for permanent injunction restraining the defendants from interfering with her possession and enjoyment of the property. The trial Court has declared that the suit would partly abate under the Act. Therefore the plaintiff filed the Civil Revision challenging the order of the trial Court. The revision application came up before a single Judge and it was directed to be placed before a Division Bench as some single Judge decisions (to which reference has been made in the decision) took contradictory views on the point in issue. The Division Bench observed :

“The relief of injunction, as already pointed out, was an existing remedy at common law. No provision has been made in the Act empowering the authorities to grant injunction. Can the existing remedy at common law for which there is a pending action, in the circumstances, be held to have abated?

Undoubtedly, even to grant injunction it would be necessary for the Court to adjudicate upon the question of title or possession. There would be many suits where who the rightful owner is has to be ascertained even when the relief is one of permanent injunction simpliciter. Invariably, the question of possession in present will have to be taken into account. There is force in the submission of counsel for opposite parties that possession is an ‘interest’ in land. A suit for declaration of right or interest including possession would, therefore, abate, as required by Section 4(4) of the Act. The main plank in the stand taken by counsel for the defendants opposite parties is that if a suit for declaration of right or interest abates, since even in a suit for injunction simpliciter, right and/or interest has to be ascertained before relief can be granted, it must follow that the mischief of abatement must extend even to a suit for permanent injunction only.

The legislative policy behind the Orissa Act 21 of 1972 is clear. In providing for abatement and temporarily taking away the jurisdiction of the court during the currency of the notification under the Act, the legislature has intended that when the consolidation operation is on, all relevant disputes should come before the consolidation authorities and two forums should not be dealing with the same matter, as in that event there was likelihood of inconsistent situation arising.

XX XX XX

We may advert to Section 15 of the Orissa Land Reforms Act. Sub-section (7)’thereof clothed the Revenue Officer with jurisdiction to pass interim orders relating to appointment of receiver. Jurisdiction to pass order of injunction had not been vested. When dispute arose as to whether the Revenue Officer could restrain one party from interfering with the possession of the other, and whether a relief for such purpose would be barred by Section 67 of the Land Reforms Act, the legislature advisedly amended Sub-section (7) in incorporating therein words “restraining’ the landlord from interfering with the tenant’s cultivation of the land or for such other purposes”. Mrs. Padhi for the opposite parties does not contend that even in the absence of the power to grant injunction, the Consolidation Officer would have a right to pass an order of that type. It becomes difficult for us, therefore, to accept the submission that a suit for permanent injunction pending at common law would stand abated as a result of the notification under the Orissa Act 21 of 1972 even though the relief of injunction is not available under the Act.”

As a matter of fact their Lordships indicated that the legislature should step in and confer the jurisdiction on consolidation authorities to grant injunction, both temporary and permanent, in regard to lands which are the subject matter of consolidation proceedings and orders of permanent injunction should be deemed to be ‘decrees’ for purposes of execution so that the inconvenience which arises may not continue and the legislative intention may be effectively worked out. Their Lordships further observed : –

“Until all that has been done, merely by construction of the scheme under the Orissa Act 21 of 1972, it becomes difficult to hold that the remedy at common law of permanent injunction is no more available either in the Civil Court or before the authorities under the Act, once there is a notification under’ Section 3 of the Act.”

The learned Judges ultimately held : –

“We are inclined, therefore, to hold that the suit for permanent injunction in the instant case did not abate. The view taken by P.K. Mohanti, J., in the case of Puni Bewa v. Ananta Sahoo, (1979) 47 Cut LT 494, where the learned Judge held that so far as the reliefs which relate to matters which are beyond the purview of the Act, the suit would not abate, and the single Judge decision inChintamani Bhanja v. Gokula Chandra Bhanja, (Civil Revn. No. 195 of 1979, disposed of on 27th Feb. 1981) (Reported in AIR 1982 Orissa 113) appear to be correct. The subsequent decision of our learned brother P. K. Mohanty, J. in Bhagaban Prasad Das v. Narayan Prasad Das, AIR 1980 Orissa 33, where he took a contrary view to his own in the earlier decision, in our opinion, does not state the correct position of the law.”

The above principles has been accepted by this Court in the cases reported in (1984) 57 Cut LT 239 : (AIR 1984 NOC 202) (Narendra Naik v. Kela Lenka), (1984) 57 Cut LT 417 Sridhar Mohanty v. Kamal Kumar Agarwal, and (1984) Orissa LR 333 (Rusava Hota v. State of Orissa). The matter, therefore, requires careful consideration.

4. The Government may issue a notification under Section 3 of the Act to the effect that any area specified in the notification may be brought under consolidation operations. Section 4 of the Act enumerates the consequences that shall ensue upon publication of such notification. Abatement of the suit is one of the consequences of the notification issued under Section 3(1) of the Act as provided under Sub-section (4) of Section 4 of the Act. Section 4(4) of the Act provides : –

“4(4). Every suit and proceedings for declaration of any right or interest in any land situate within the consolidation area in regard to which proceedings could be or ought to be started under this Act, which is pending before any Civil Court, whether of the first instance or appeal, reference or revision shall, on an order being passed in that behalf by the Court before which such suit or proceeding is pending, stand abated :

Provided that no such order shall be passed without giving the parties concerned an opportunity of being heard;

Provided further that on the issue of a notification under Sub-section (1) of Section 5 in respect of the said area or part thereof, –

(a) every order passed by the Court under Clause (4) in relation to the lands situate in such area or part thereof, as the case may be, shall stand vacated; and

(b) All such suits and proceedings as are referred to in Clause (3) or Clause (4) which relate to lands situate in such area or part thereof, as the case may be, shall be proceeded with and disposed of in accordance with the law as if they had never abated :

Provided also that such abatement shall be without prejudice to the right of the person affected to agitate the right or interest which formed the subject matter of the said suit or ” proceeding, before the proper consolidation authority in accordance with the provisions of this Act or the Rules made thereunder.”

The aforesaid provisions go to show that if the matter can be gone into by the consolidation authorities, then the suit in respect of the same would abate under Section 4(4) of the Act. The intention of the legislature is quite clear and is in conformity with the well recognised principle that two forums should not be dealing with the same matter, as in that case there is likelihood of inconsistent situation arising.

5. As held by the Division Bench in the case-reported in AIR 1982 Orissa 48 (supra) the relief of injunction is an existing remedy at common law. No provision has been made in the Act empowering the authorities to grant injunction.

It is well established in law that an exclusion of jurisdiction of the Civil Court is not to be readily inferred unless such exclusion is either expressly spelt out in the special statute or clearly implied. Obviously there is no express provision in the Act giving jurisdiction to the consolidation authorities to grant relief of injunction and, therefore, the jurisdiction of the Civil Court cannot be taken to have been ousted. When the special statute does not provide adequate remedy, which the Civil Court can grant, the jurisdiction of the Civil Court cannot be taken to have been ousted by necessary implication. In this case it is useful to refer to the oft-quoted dictum of Willes J., in Weverhampton New Waterworks Co. v. Hawkesford, (1859) 6 CB (NS) 336, which is to the following effect: –

`”There are three classes of cases in which a liability might be established, founded upon statute. One is where there was a liability existing at common law, and that liability is affirmed by a statute which gives a special and peculiar form of remedy different from the remedy which existed at common law; there, unless the statute contains words which expressly or by necessary implication excludes the common law remedy, the party suing has his election to pursue either that or the statutory remedy. The second class of cases is, where the statute gives the right to sue merely, but provides no particular form or remedy; there, the party can only proceed by action at common law. But there is a third class, viz., where a liability not existing at common law is created by a statute which at the same time gives a special and particular remedy for enforcing it. The remedy provided by the statute must be followed, and it is not competent to the party to pursue the course applicable to cases of the second class.”

In AIR 1969 SC 78 (Dhulabhai v. State of Madhya Pradesh) the following principles regarding exclusion of jurisdiction of Civil Court have been laid down : –

“(1) Where the statute gives a finality to the orders of the special tribunals the Civil Court’s jurisdiction must be held to be excluded if there is adequate remedy to do what the Civil Court would normally do in a suit. Such provision, however, does not exclude those cases where the provisions of the particular Act have not been complied with or the statutory tribunal has not acted in conformity with the fundamental principles of judicial procedure.

(2) Where there is an express bar of the jurisdiction of the Court, an examination of the scheme of the particular Act to find the adequacy or the sufficiency of the remedies provided may be relevant but is not decisive to sustain the jurisdiction of the Civil Court. Where there is no express exclusion the examination of the remedies and the scheme of the particular Act to find out the intendment becomes necessary and the result of the inquiry may be decisive. In the latter case it is necessary to see if the statute creates a special right or a liability and provides for the determination of the right or liability and further lays down that all questions about the said right and liability shall be determined by the tribunals so constituted, and whether remedies normally associated with actions in Civil Courts are prescribed by the said statute or not.

xx xx xx

(7) An exclusion of the jurisdiction of the Civil Court is not readily to be inferred unless the conditions above set down apply.”

The Supreme Court in the facts and circumstances of the case held that the suit in question for declaration that the provisions of the law relating to assessment under the M.B. Sales Tax Act (30 of 1950) were ultra vires and for refund of the amount of the tax illegally collected was not barred by Section 17 of the Act.

It is well known that a party cannot be nonsuited when under the law he does not have any alternative forum for the redressal of his grievances. When his rights are of civil nature, the reliefs which flow from such rights and which he is entitled to get should be available from the Civil Court where the officer or authority has not been empowered to grant the same.

6. In view of what has been discussed above, we agree with the view expressed by the Division Bench of this Court in the case reported in AIR 1982 Orissa 48 (supra) that it becomes difficult to accept the submission that a suit for permanent injunction pending at common law shall stand abated as a result of the notification under the Orissa Act 21 of 1972 even though the relief of injunction is not available under the Act.

7. The next question arises for consideration is whether it is permissible under law to obtain the prohibited reliefs from the Civil Court in the garb of a suit for permanent injunction? This matter was considered by Hon’ble Mr. Justice P.C. Misra, in the decision reported in (1984) 57 Cut LT417 (supra). The learned Judge observed : –

“In suits relating to land a suit for permanent injunction restraining interference with possession cannot be maintained if the plaintiff had no legal possession of the property. Thus where the grant of injunction depends upon the determination of the title a suit for mere injunction may not be maintainable. It is not possible to lay down any formula or an exhaustive list of the nature of cases where a suit for injuction simpliciter is maintainable. Each case is to be decided in the facts of its own keeping in view the judicial precedence and guidelines given in cases dealing with the subject. It is equally true that merely because the question of title or possession may be required to be gone into incidentally would not make the suit for injunction simpliciter incompetent. Therefore, in order to determine whether the suit for injunction simpliciter is maintainable or not the substance of the pleadings has to be looked into and not merely the form of pleadings of the plaintiff alone or the prayer made by him. Their Lordships in a decision reported in Jagardeo Shukla v. Chandradeo Singh (1981 All LJ 936) in dealing with such a question have held that notwithstanding the form in which the relief is couched in the plaint the suit would abate as the grant for relief for injunction claimed by the plaintiff was dependant squarely upon the conclusion that the plaintiff was Bhumidhar of the plot. The Hon’ble Supreme Court in the decision reported in Gorakh Nath Dube v. Hari Narain Singh (AIR 1973 SC 2451) while approved the view of the Allahabad High Court in Jagarnath Shukla’s case (1969 All LJ 768), that it is the substance of the claim and not its form, which is decisive.”

Thus where the grant of injunction depends upon the determination of the right or interest in any land situated within the consolidation area, the suit for permanent injunction may not be maintainable. In order to determine whether the suit for injunction sirnpliciter is maintainable or not, the substance of the pleadings has to be looked into and not merely the form of pleadings of the plaintiff alone or the prayer made by him. Each case is to be decided in the facts of its own.

8. Before parting with this case we reiterate the observation made in, the Division Bench decision of this Court reported in AIR 1982 Orissa 48 that it is high time, the legislature should step in and confer the jurisdiction on the consolidation authorities to grant injunction, both temporary and permanent, in regard to lands which are the subject matter of consolidation proceedings and orders of permanent injunction should be deemed to he ‘decrees’ for purposes of execution so that the inconvenience which arises may not continue and the legislative intention may be effectively worked out.

The matters he now placed before a learned single Judge for disposal.

Pathak, C.J.

9. I have read the judgments prepared by my learned brothers J.K. Mohanty and B.K. Behera, JJ. I agree that a suit for permanent injunction does not abate under the provisions of the Act, as correctly decided by the Division Bench in AIR 1982 Orissa 48 (supra). This is the only question raised b these revisions. The revisions are allowed and the orders psssed by the learned Munsif holding that the suits abate are vacated. The parties in these revisions shall bear their own costs.

Behera, J.

10. For the reasons to follow, I agree that a suit for permanent injunction pending in the Civil Court does not abate under Section 4(4) after the issue of a notification under Section 3(1) of the Act, as recorded in paragraph 6 of this judgment.

11. A Division Bench of this Court has observed to AIR 1982 Orissa 48 (supra) that the Legislature may step in and confer jurisdiction on the Consolidation Authorities to grant injunction, both permanent and temporary. With respect, I have not been able to persuade myself to agree that the Consolidation Authorities created under a temporary Act should be clothed with the power to grant permanent injunction and that they should be given larger jurisdiction by limiting further the jurisdiction of the Civil Court. The Legislature has conferred such jurisdiction with regard to matters enumerated in the Act as has been considered to be legal, reasonable and proper. Authorities under the Act are statutory authorities exercising jurisdiction in respect of some specified purposes enumerated in the Act which is of a temporary nature and will spend its force on the completion of the consolidation operations in the State. In my view, the jurisdiction of the Consolidation Authorities may not be enlarged, as suggested and their jurisdiction may be : thus far and no further.

12. The impugned orders in both the revisions before us have been passed by Mr. S. P. Acharya, Munsif, Kendrapara, in 1979 in two suits much prior to the decision of the Division Bench, AIR 1982 Orissa 48. In both the suits, the question that has arisen is as to whether the two suits for permanent injunction abate under, Section 4(4) of the Act and the learned Munsif has held that the suits abate as the Civil Court has no jurisdiction in view of the provisions made in the Act.

13. In Civil Revision No. 88 of 1980, P.K. Mohanti, J. (as he then was) has referred to some decisions of the Supreme Court and this Court and it has been stated that Mr. M. Patra, the learned counsel for the opposite party, does not accept the reasoning adopted by the Division Bench of this Court in AIR 1982 Orissa 48 (supra). Civil Revision No. 191 of 1979 has been referred by a Division Bench of this Court consisting of P. K. Mohanti and D. P. Mohapatra, JJ. because one of the learned Judges (P.K. Mohanti, J.) has referred the same question in the other revision. At the hearing of the two revisions by this Bench, Mr. Misra for the petitioner in Civil Revision No. 191 of 1979, Mr. B. H. Mohanty for the petitioner in Civil Revision No. 88 of 1980, Mr. Deepak Misra for the opposite parties in Civil Revision No. 191 of 1979 and Mr. M Patra for the opposite party in Civil Revision No. 88 of 1980, have submitted that the Division Bench has correctly decided in AIR 1982 Orissa 48 (supra) that a suit for permanent injunction pending in the Civil Court does not abate under Section 4(4) of the Act. This Bench is thankful to Mr. R.K. Mohapatra, an Advocate of the High Court Bar Association, who volunteered to address us at the hearing and was permitted to do so regard being had to the importance of the question involved. Mr. Mohapatra mainly dealt with the relative scope of Section 4(4) and that of Section 51 of the Act and in particular, submitted that the expression “Entertain any suit or proceeding” occurring in Section 51 of the Act would refer both to pending and future suits.

14. Section 4(4) of the Act provides that every suit and proceeding for declaration of any right or interest in any land situate within the consolidation area in regard to which proceedings could be or ought to be started under the Act, which is pending before any Civil Court, whether of the first instance or appeal, reference or revision, shall, on an order being passed in that behalf by the Court before which such suit or proceeding is pending, stand abated and as provided therein, this order shall be passed after giving the parties an opportunity of being heard.

15. Section 51 of the Act providing for bar of jurisdiction of Civil Courts reads : –

“Notwithstanding anything contained in any other law for the time being in force, but subject to the provisions contained in Clause (3) of Section 4 and Sub-section (1) of Section 7–

(1) all questions relating to right, title, interest and liability in land lying in the consolidation area, except, those coming within the jurisdiction of Revenue Courts or authorities under any local law for the time being in force, shall be decided under the provisions of this Act by the appropriate authority during the consolidation operations; and

(2) no Civil Court shall entertain any suit or proceeding in respect of any matter which an Officer or authority empowered under this Act is competent to decide.”

16. While Section 4(4) of the Act relates to a ‘ pending suit, Section 51 debars the Civil Court from entertaining any suit or proceeding in respect of which a consolidation authority has been empowered under the Act to decide. Whether the expression “entertain any suit or proceeding” would cover suits or proceedings both pending on the date of the notification under Section 3(1) of the Act and also instituted, thereafter may appropriately be decided when such a question arises. Plainly, however, as Section 4(4) provides, only suits and proceedings for declaration of any right or interest in any land shall abate.

17. In the case of Puni Bewa v. Ananta Sahoo (1979) 47 Cut LT494, P. K. Mohanti, J. observed and held:

“…………. The Consolidation Authorities have not been vested with power to give a declaration of status or to set aside a decree or order of a competent Court. They have also no power to grant the relief of permanent injunction. The Civil Court’s jurisdiction to grant such reliefs is not expressly or impliedly barred under the provisions of the Act.”

18. The same learned Judge, however, took a contrary view in the case of Bhagaban Prasad Das v. Narayan Prasad Das, AIR 1980 Orissa 33 although he had himself decided otherwise in the earlier case. It was for this reason that the then learned Chief Justice observed in AIR 1982 Orissa 113, Chintamani Bhanja (deceased by L.R.) v. Gokula Chandra Bhanja that P. K. Mohanti, J. had changed his view in the latter case, AIR 1980 Orissa 33 unfortunately without referring to any of the reported decisions including his own and further observed (at p. 114) :

“……………. A learned single Judge is not entitled to take a different view from reported decisions of the Court even though they may be single Judges, and in case he is inclined to have a view of the legal position it is open to him to refer the matter to a larger Bench……….” .

19. I may quote an extract from AIR 1977 SC 1177, Eknath Shankar Rao Mukkawar v. State of Maharashtra. Their Lordships observed (para 25) :

“Our attention is drawn to a disquieting feature in the procedure adopted by the learned single Judge (G.N. Vaidya, J.) in disposing of the appeal. The learned Judge ignored the decision of another single Judge of the same Court (J.M. Gandhi, J.) who had earlier held in a similar case that the appeal by the State was not competent under Section 377(1) Cr. P.C. It is true that the decision is pending before this Court in appeal by special leave. That, however, cannot be sufficient reason for the learned Judge to ignore it and observe that it is ‘unnecessary to keep back this matter till the Supreme Court decides the matter’. When there was a decision of a co-ordinate court, it was open to the learned Judge to differ from it but in that case the only judicial alternative was to refer it to a larger Bench and not to dispose of the appeal by taking a contrary view. Judicial discipline as well as decorum should suggest that as the only course.”

20. The decision taken by P. K. Mohanti, J. in AIR 1980 Orissa33 (supra) was overruled in AIR 1982 Orissa 48 (supra).

21. As provided in Section 9 of the Civil P.C the civil court has plenary jurisdiction and it lays down that such court “shall have jurisdiction to try all suits of a civil nature excepting suits of which their cognizance is either expressly or impliedly barred”. In other words, a civil court has jurisdiction in respect of all civil matters except those for which tribunals are constituted under special statutes and such tribunals have limited jurisdiction as provided in the statutes under which they exercise their jurisdiction. If a statute purports to exclude the ordinary jurisdiction of a civil court, it must do so either by express terms or by the use of such terms as would necessarily lead to the inference of such exclusion. The Judicial Committee has observed in Secretary of State v. Mask & Co., AIR 1940 PC 105 :

“It is settled law that the exclusion of the jurisdiction of the Civil Courts is not to be readily inferred, but that such exclusion must either be explicitly expressed or clearly implied. It is also well settled that even if jurisdiction is so excluded, the Civil Courts have jurisdiction to examine into cases where the provisions of the Act have not been complied with, or the statutory tribunal has not acted in conformity with the fundamental principles of judicial procedure.”

22. One of the points which is often treated ‘as relevant in dealing with the question about the exclusion of the jurisdiction of the civil court is as to whether the special statute which, it is urged, excludes such jurisdiction has used clear and unambiguous words indicating that intention. Another test is as to whether the statute provides for adequate and satisfactory alternative remedy to an aggrieved party. (See AIR 1966 SC 893, Ram Swarup v. Shikar Chand).

23. In AIR 1966 SC 1718, Abdul Waheed Khan v. Bhawani, it has been laid down :

“Under Section 9 of the Civil PC., a Civil Court can entertain a suit of a civil nature except a suit of which its cognizance is expressly or impliedly barred. It is settled principle that it is for the party who seeks to oust the jurisdiction of a civil court to establish his contention. It is also equally well settled that a statute ousting the jurisdiction of a civil Court must be strictly construed.”

In this connection, reference may also be made to the principles laid down in AIR 1967 SC 781.Shree Vedagiri Lakshmi Narasimha Swami Temple v. Induru Pattabhirani Reddi.

24. A Full Bench of this Court has examined the question relating to the jurisdiction of a civil court in the case of Magulu Jal v Bhagaban Rai. AIR 1975 Orissa 219 : (1975) 41 Cut LT 526. After referring to a number of authorities, G.K. Misra, C.J., speaking for the Court, with P.K. Mohanti and N. K. Das, JJ. agreeing with the learned Chief Justice, observed and held (at pp. 228-229)

“The following principles may be laid down as well settled by the aforesaid authorities :

(i) Exclusion of the jurisdiction of the Civil Court is not to be readily inferred. Such exclusion must either be explicitly expressed or clearly implied.

(ii) Even if jurisdiction is so excluded. Civil Courts have jurisdiction to examine into cases where the provisions of the Act have not been complied with or the statutory tribunal has not acted in conformity with the fundamental principles of judicial procedure. Civil Court would interfere if it finds the order of the special tribunal is unfair, capricious or arbitrary.

(iii) Where a liability not existing at common law is created by statute which at the same time gives a special and particular remedy for enforcing it, a remedy provided by the statute must be followed and the Court’s jurisdiction is ousted. The scheme of the particular Act is to be examined to see if remedies normally associated with actions in civil suits are prescribed by the statute.

(iv) The Legislature may entrust the special tribunal or body with a jurisdiction which includes the jurisdiction to determine whether the preliminary state of facts exists as well as the jurisdiction, on finding that it does exist, to proceed further or to do something more. The legislature shall have to consider whether there shall be an appeal from the decision of the tribunal as otherwise there will be none. In cases of this nature, the tribunal has jurisdiction to determine all facts including the existence of preliminary facts on which exercise of further jurisdiction depends. In the exercise of the jurisdiction the tribunal may decide facts wrongly or if no appeal is provided therefrom there is no appeal from the exercise of such jurisdiction.

(v) Even in a case when the Civil Court would have jurisdiction on a finding that the special tribunal has acted beyond the scope of its authority as in point No. (ii) it cannot substitute its own decision for that of the tribunal but would give a direction to dispose of the case in accordance with law.”

25, Statute affecting jurisdiction of Courts are to be construed, as far as possible, to avoid the effect of transferring the determination of rights and liabilities from the ordinary Courts to other authorities.

26. In AIR 1974 SC 1126, Smt. Ganga Bai v. Vijay Kumar, the Supreme Court has observed (Para 15):

“There is an inherent right in every person to bring a suit of a civil nature and unless the suit is barred by statute one may, at one’s peril, bring a suit of one’s choice. It is no answer to a suit, howsoever frivolous the claim, that the law confers no such right to sue. A suit for its maintainability requires no authority of law and it is enough that no statute bars the suit………”

This principle has been followed by a Division Bench of the Allahabad High Court in AIR 1984 All 147,’ Smt. Ram Pyari v. Dharam Das.

27. On a careful consideration of the provisions contained in the Act, the Division Bench of this Court in AIR 1982 Orissa 48 (supra) has, in clear terms, accepted the contention that a suit for permanent injunction does not abate under Section 4(4) of the Act as the Consolidation Authorities under the Act have no jurisdiction to grant injunction. Reference has been made to some decisions of the Supreme Court including the one reported in AIR 1973 SC 2451, Gorakh Nath Dube v. Hari Narain Singh and some decisions of this Court. As noticed by me earlier, the same view has been taken by the then learned Chief Justice in AIR 1982 Orissa 113 (supra). It was observed and held (at p. 114):

“……The position, therefore, would be a suit for permanent injunction would not abate in view of the fact that such a relief is not possible to be granted by the Consolidation Authorities. It may be, as has been pointed out occasionally, that while dealing with a claim for interim injunction, the question of title as also possession would be ancillarily gone into. That, however, does not give rise to a situation where the logic, that declaration of title is within the ambit of the Consolidation Authorities’ authority, would operate so as to make a suit for permanent injunction not maintainable in the Civil Court.”

28. I have said earlier and I repeat, Section 4(4) of the Act would operate in respect of suits and proceedings for “declaration of any right or interest” under Section 4(4) of the Act. Section 51 of the Act provides that “no civil Court shall entertain any suit or proceedings in respect of any matter which an officer or authority empowered under this Act is competent to decide”. In order, therefore, to oust the jurisdiction of the civil Court, an officer or authority empowered under the Act must be competent to decide the question of permanent injunction and there can be no doubt, as has been submitted at the Bar with reference to the provisions of the Act and the reported cases, that a Consolidation Authority has no power to grant injunction. In the absence of any materials placed before us, it cannot be said that the two suits out of which the revisions arise had been instituted only in the garb of suits for permanent injunction. The opposite parties had not raised any objection to that effect in the Court below. No such contention has been raised on behalf of the opposite parties at the hearing of these revisions.

29. I would now proceed to record some decisions of this Court which have either been placed at the Bar or have come to my notice in which the scope of Sections 4(4) and 51 of the Act has been dealt with and in particular, cases in which it has been held in respect of the subject-matter of controversy that the Consolidation Authorities have no jurisdiction to decide the dispute for which the pending suits do not abate under Section 4(4) of the Act

30. A Full Bench of this Court has decided in the negative the question as to whether a final decree proceeding abates under Section 4(4) of the Act in the case of Srinibas Jena v. Janardan, (1980) 50 Cut LT 337 : (Am 1981 Orissa 1).

Dealing with Section 4(4) and Section 51 of the Act, it was observed and held (para 17):

” In deciding the true scope and effect of the relevant words in any statutory provision, the context in which the provision has been made, and the policy underlying the statute assume relevance and become material The whole object of the provision of Section 4(4) of the Act is to oust the jurisdiction of the ordinary Civil Courts for the duration of the consolidation operations. Adjudication of right or interest by the Consolidation authorities was considered more suitable and efficacious for speedy decision which had to be taken in order to enable the consolidation operations to be finalised within a reasonable time. In order to achieve this object, the Legislature in its wisdom and experience provided for abatement of suits under Section 4(4) of the Act The view of the Legislature appears to be that the scheme of consolidation would be inordinately delayed if ordinary Civil Courts were to decide the questions of right or interest relating to land. It is well known that civil litigation usually takes a long time to come to an end and the litigants feel completely desperate. If this were to be permitted, consolidation proceedings ran the risk of being held up for an indefinite period. It is with this end in view that the word ‘abate’ has been used. The third proviso to Section 4 of the Act lays down that abatement of a suit shall be without prejudice to the right of the person affected to agitate the right or interest which forms subject-matter of the suit or proceedings, before the proper consolidation authority in accordance with the provisions of the Act or the Rules made thereunder. That is why in respect of most of the matters that abate, provision has been made conferring jurisdiction on the consolidation authorities to deal with. Finality is attached to the decisions of the appellate authority and the revisional authority under the Act as provided in Sections 12 and 36(2). Section 36(2) specifically provides that all orders passed under this section shall be final and shall not be called in question in any Court of law. Section 51 bars the jurisdiction of the Civil Court to entertain any suit or proceeding in respect of any matter which the consolidation authorities are competent to decide. Sections 4 and 51 are integral parts of the same scheme, namely, that declaration or rights and interests has to be done under the Consolidation Act and nowhere else. Section 4 covers pending suits and proceedings while Section 51 forbids entertainment of suits and proceedings to that end. Thus, it is abundantly clear that the consolidation authorities have been vested with exclusive jurisdiction to decide right and interest in land during the consolidation operations and the Civil Court’s jurisdiction has been taken away.

31. In the case of Abas AH Khan v. Sahabuddin Khan, (1980) 49 Cut LT 297, P. K. Mohanti, J. (as he then was) had dealtwith the scope and applicability of Section 4(4) of the Act in a suit for recovery of possession and redemption of mortgage and held : –

“It will, thus, be seen that the scope of Section 4(4) of the Act is confined only to suits for declaration of any right or interest in land. In the present case, the plaintiff has sued for recovery of possession on redemption of mortgage. The transfer of interest represented by the mortgage was for the purpose of securing payment of money advanced by way of loan. Security cannot exist after the amount of loan had been paid up or validly tendered. The mortgage-money was validly tendered to the mortgagee and he refused to accept the same. Therefore, the right of the mortgagee to remain in possession came to an end. The mortgagee is bound to deliver possession of the mortgaged property to the mortgagor and to deliver to him the mortgage deed and other documents relating to the mortgaged property. No question of declaration of any right or interest in land is involved in the suit I am, therefore, of the view that Section 4(4) of the Act 21 of 1972 is not applicable to the present suit”

32. My learned brother R.C. Patnaik, J. has observed in (1984) 58 Cut LT 86, Banambar Tripathy v. Collector of Ganjam :

“The Civil Court has jurisdiction to entertain and try a lis unless its jurisdiction is ousted expressly or by necessary implication. Can one say on reading the provisions contained in Section 4(4) and Section 51 of the Act that jurisdiction of the Civil Court to entertain and try a suit wherein the reliefs for damages and for declaration that certain encroachment proceeding is illegal has been ousted or a proceeding under the Act seeking identical relief could be or ought to be started? A proceeding under the Act could be or ought to be started if the authority under the Act is competent and has jurisdiction to grant the reliefs. The provisions contained in Sections 4(4) and 51 have, therefore, to be given a purposive interpretation in harmony with the general principle that under our jurisprudence a party is not left without a remedy.

Sub-section (2) of Section 51 says that no Civil Court shall entertain any suit or proceeding in respect of any matter which an officer or authority empowered under the Act is competent to decide. In my humble opinion, when an officer or authority is not competent to grant a relief not having been empowered under the Act to do so a suit in the Civil Court is entertainable and where the reliefs claimed can only be granted by the Civil Court but not by an officer or authority under the Act the suit does not abate. This follows from a plain reading of the provisions.”

Following the principle laid down in AIR 1982 Orissa 48 (supra), the same learned Judge has held in Civil Revision No. 639 of 1980 (Jadunath Rout v. Bhagabat Panda), decided on November 16, 1983 (1984) 57 Cut LT (SN) 13, that a suit for permanent injunction does not abate under Section 4(4) of the Act.

33. My learned brother P.C. Misra, J. in (1984) 57 Cut LT 405: (1984) 1 Orissa LR 512 : Basudev Pani v. Jagannath, while dealing with the question as to whether a suit involving the question of adoption would abate under Section 4(4) of the Act and giving the answer in the negative has held:

“Civil Court would not entertain a suit or proceeding which can be entertained and decided by the consolidation authorities and if such a suit is pending, the same should abate under Section 4(4) of the Act Thus, the Civil Court’s jurisdiction has been taken away in those matters for the adjudication of which the consolidation authorities have been vested with exclusive jurisdiction.”

“In (1984) 57 Cut LT 417 (supra), the same learned Judge has examined the question as to whether a suit for permanent injunction abates under Section 4(4) of the Act and referring to some decisions of this Court including the Division Bench case AIR 1982 Orissa 48, has observed and held:

“…….It is well established in law that an exclusion of jurisdiction of the Civil Court is not readily to be inferred unless such exclusion is either expressly spelt out in the special statute or clearly implied There is no express provision in the Consolidation Act giving jurisdiction to the Consolidation Authorities to grant of injunction and, therefore, the jurisdiction of the Civil Court cannot be taken to have been ousted. If the special statute does not provide adequate remedy, which the Civil Court could grant, the jurisdiction of the Civil Court cannot be taken to have been ousted by necessary implication.”

In that case, however, it was held that as the question of title and possession were not to be gone into incidentally in view of the pleadings of the parties, the suit would abate under Section 4(4) of the Act. This view had been taken on the facts and in the circumstances of that case.

34. In (1983) 56 Cut LT 459 : (1984) 1 Orissa LR 55, Radhashyam Jena v. Jagannath Jena, my learned brother G.B. Patnaik, J. has held that a suit for preferential claim under Section 22(2) of the Hindu Succession Act does not abate under the provisions of the Act as the Consolidation Authorities have no jurisdiction to decide this question.

35. My learned brother D.P. Mohapatra, J. referring to and relying on the principle laid down by the Division Bench in AIR 1982 Orissa 113 (supra), has held in (1984) 1 Orissa LR 333 (supra) that a suit for injunction does not abate under Section 4(4) of the Act.

The same learned Judge has held in (1984) 57 Cut LT 239 : (1984) 1 Orissa LR NOC 27 : (AIR 1984 NOC 202) (supra) that a suit for permanent injunction pending at common law does not abate under Section 4(4) of the Act. Reliance had been placed on the same Division Bench decision of this Court.

36. In Civil Revision No. 53 of 1982 (Jadunath Mallik v. Sisirkanta Mohapatra), decided on August 17, 1982, (1983) 55 Cut LT (SN) 164 and Civil Revision No. 98 of 1981 (Bhagaban Behera v. Sk. Ismile), decided on Novembers, 1982, (1983) 55 Cut LT (SN) 67, I had occasions to examine the same question, In the first-mentioned case, it has been held : ;

“For the purpose of determination as to whether the suit would be competent, the reliefs claimed and prayed for would be the criterion and not what might be the ultimate result at the conclusion of the trial. Among the reliefs claimed, one is for permanent injunction. The view of Mr. Justice P.K. Mohanti of this Court (AIR 1980 Orissa 33 –Bhagaban Prasad Das v. Narayan Prasad Das) that a suit for permanent injunction involving question of title would abate is no longer good law as it has been overruled by a Division Bench of this Court consisting of the learned Chief Justice and Mr. Justice R. C. Patnaik in AIR 1982 Orissa 48, Rahas Bewa v. Kanduri Charan Sutar. The learned Chief Justice has dissented from the view taken by the learned single Judge in AIR 1980 Orissa 33 (supra) in the case of Chintamoni Bhanja (deceased by L.R.) v. Gokul Chandra Bhanja, AIR 1982 Orissa 113. Merely because the question of title may have to be gone into while deciding the question of granting permanent injunction prayed for by a party the suit would not abate as the Consolidation Authorities have no power to grant this relief under the Act”

I have taken the same view in the other Civil Revision.

37. It would thus be noticed that my learned brothers R.C. Patnaik, P.C. Misra and D.P. Mohapatra, JJ. have accepted the view taken by the Division Bench in AIR 1982 Orissa 48 (supra) that a suit for permanent injunction does not abate under Section 4(4) of the Act and I have also followed the principle laid down therein.

38. For all these reasons, it is found that the Division Bench of this Court had correctly decided the question of abatement of a suit for permanent injunction under Section 4(4) of the Act in the negative in AIR 1982 Orissa 48 : (1984) 54 Cut LT 143 (supra). A suit for permanent injunction pending in the civil Court does not abate under Section 4(4) of the Act on the issue of a notification under Section 3(1) of the Act.

39. Both the revisions have been referred to a Full Bench for final decisions. The learned counsel for both the sides have submitted that a suit for permanent injunction does not abate under Section 4(4) of the Act and no other question has been raised by them at the hearing. The two revisions are, therefore, to be finally decided by this Bench.

40. The revisions succeed and the orders of the Court below holding that the suits abate under Section 4(4) of the Act stand vacated leaving the parties to bear their costs in these revisions. The learned Munsif shall now proceed with the suits in accordance with law.

 

suit for injunction

“The first and the most important contention urged by the learned Counsel for the defendant is that the present suit for injunction is not maintainable under section 6(4) of the Specific Relief Act. It is argued that under that sub-section the plaintiff’s remedy is only to file a suit for possession and not for injunction. It is further submitted that when the defendant has obtained a valid decree under sub-section (1) of section 6, if a suit for injunction is entertained and a decree for injunction is passed, then the provisions of section 6(1) of the Act becomes nugatory. It was therefore submitted that the suit under section 6(4) can never be for injunction

That was also a case where a plaintiff had obtained a decree for possession under section 9 of the Former Specific Relief Act, which correspondence to section 6 of the Specific Relief Act of 1963. The earlier suit was decreed for possession. Then the defendants of that suit filed a suit for declaration of title and for permanent injunction and also for a declaration that the previous decree is incapable of execution. The suit came to the decreed. The defendant of that suit took the matter in appeal before this Court and raised similar contentions namely that the suit forinjunction was not maintainable when he has already obtained a decree for possession in the previous suit under section 9 of the Specific Relief Act. The learned Single Judge who decided that appeal held that the defendant who suffered decree in a previous suit can file a fresh suit to establish his title. Since, he was already in possession, the only further relief he could ask is the relief of injunction to protect his possession. Therefore the High Court held that the second suitfor declaration of title and injunction was maintainable and dismissed the appeal.

decision cannot be applicable to the facts of the present case. There is no merit in this submission. The question in the said appeal and in the present suit is one and same namely whether the defendant who has suffered a decree in a summary suit under section 6(1) of the Specific Relief Act can maintain a suit for establishment of title and injunction or he must file only a suit for possession.”

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Bombay High Court
The East India Hotels Ltd. vs Syndicate Bank on 7 August, 1996
Equivalent citations: 1997 (1) BomCR 234
Author: R Vaidyanatha
Bench: R Vaidyanatha

JUDGMENT

R.G. Vaidyanatha, J.

1. This is a suit for declaration and permanent injunction filed by the plaintiffs. The defendant has contested the suit by filing written statement. Issues were framed. Oral evidence was recorded on Commission. Two witnesses have been examined by the plaintiff and two witnesses on behalf of the defendants. Lengthy arguments were addressed by the respective Counsel of both the parties.

2. Plaintiffs case is as follows:

Plaintiff is a Company which is running hotels at different places including the Hotel Oberoi Towers at Nariman Point, Bombay. On the mezzanine of the ground floor 15000 sq. ft. was given to the defendant on Leave and Licence basis as per licence Deed dated 27th December, 1974 for a period of 12 years under which the defendant had agreed to give loan of Rs. 30 lacs to the plaintiffs. The Licence Fee was fixed at Rs. 60,000/-, which has to be adjusted towards the said loan. Well before the expiry of the period of 12 years of the licence period, the plaintiff wrote the letter in April 1986 to the defendant to vacate the premises on the expiry of 12 years. Then the defendant wrote a letter dated 8th July, 1986 to the plaintiffs seeking renewal of the Deed for 12 more years. Plaintiff has rejected the request for renewal. The defendant was called upon again to vacate the premises on the date of the expiry of the licence period. The plaintiff went on pressing the defendant to vacate the premises. Subsequently, the defendant wrote a letter dated 22nd July, 1989 stating that the Bank will not vacate the suit premises. Then there was further exchange of letters and notices between the parties. Fire broke out in the plaintiffs’ Hotel including suit premises. Then defendant vacated the suit premises. Then subsequently, the defendant wrote a letter to the plaintiff to give back possession at the earliest but the plaintiffs’ contention is that since the licence period has expired, the defendant has no right to ask for possession of the suit premises. Then defendant filed a suit in this Court in Suit No. 2735 of 1990 for possession of the suit premises under section 6 of the Specific Reliefs Act. A concession was made on behalf of the plaintiff in that suit that the plaintiff in that suit had been dispossessed as alleged in the plaint of that suit and this concession was made with prejudice only for the purpose of that suit. Then, after hearing both the parties, this Court decreed that suit by Judgment dated 6-11-1990. Inspite of that decree, the plaintiff is in continuous active possession of the suit premises. It is alleged that defendant has no right to use or occupy the suit premises. After expiry of the licence period the defendants occupation in the suit premises was of a trespassers and this position was neither agreed nor acquiesced by the plaintiffs at any time. Hence the suit is filed for declaration that the defendants have no right whatever to occupy the suit premises and that plaintiff is exclusively entitled to the same; for a declaration that the decree dated 6-11-1990 in Suit No. 2735 of 1990 is inoperative and incapable of execution except regarding the moveable properties; for an order of permanent injunction to restrain the defendant from executing the said decree dated 6-11-1990 except regarding movables.

3. The defence is as follows:

It is admitted that in 1974 the plaintiffs approached the defendant bank for a loan and accordingly, the defendant gave loan of Rs. 30 lacs at that time, on the request of defendants, the plaintiffs gave the suit premises to the defendant on licence for a period of 12 years subject to payment of licence fee or compensation of Rs. 60,000/- per month. The loan amount has been adjusted out of the licence fee and it is fully repaid. Then there is a reference in the written statement to several clauses of the licence Deed including a clause for renewal. It is stated that the defendant exercised its option for renewal of the period for a period 12 years. The plaintiff expressed unwillingness to renew the leave and licence agreement. The plaintiff has not been encashing the cheques sent by the defendant towards licence fees. It is stated that after the fire broke out on 12th April, 1990, the defendant wanted to keep the damaged furniture, articles etc., in the same position for the purpose of examination by the Insurance Surveyor but the plaintiffs took the law in its own hand and forcibly removed the defendants furniture articles etc., from the suit premises. It is alleged that the plaintiffs unlawfully and forcibly dispossessed the defendant from the suit premises. Exchange of letters between the parties is admitted regarding plaintiffs’ demand asking the defendant to vacate. Then it is stated without prejudice to those averments, the defendant has a valid and good title to the suit premises. It is stated that on a true construction of the agreement dated 27th December, 1994, it is clear that the intention of the parties was to create a lease regarding the suit premises. Hence it is stated that the transaction is one of lease as could be seen from the terms of the Deed. Then it is further stated alternatively that the defendant had a right to renew the agreement and has exercised their right of option and therefore, the agreement should continue for a further period of 12 years. The suit is not maintainable. The plaintiff cannot seek injunction to restrain the defendant from executing the decree. The relief asked in the plaint relates to the possession of the suit premises and the plaintiffs’ claim is one of seeking the relief against a licensee on the ground of expiry of the period of licence. Such a suit is triable exclusively by a Small Cause Court under section 41 of the Presidency Small Causes Courts Act. Hence this Court has no jurisdiction to try the present suit. It is further stated that the actual relationship between the parties is that of a landlord and tenant. Even such a suit between the landlord or tenant can be tried only by the competent Court under the Bombay Rent Act. Even on this ground this Court had no jurisdiction to try the present suit. The plaintiffs cannot maintain a suit of this type unless the plaintiff restores the possession obtained prior to previous suit viz., Suit No. 2735 of 1995 under section 6 of the Specific Relief Act. The plaintiff cannot ask for relief of injunction when they have taken wrongful possession of the suit premises. The person who has taken law into his own hand cannot ask such a relief of injunction. If a suit of this type is decreed then the provisions of section 6 of the Specific Reliefs Act become negative. The defendant has suffered due to the conduct of the plaintiffs for which the defendant has already filed a suit for damages against the plaintiffs in Suit No. 1883 of 1993 in this Court. The defendant was in exclusive possession of the suit premises as a tenant and the defendant is protected by the provisions of the Bombay Rent Act. The defendant is entitled to remain in possession of the suit premises till the defendant’s tenancy is validly terminated in a Court of Law. Hence the plaintiff has no right to immediate possession of the suit premises. It is also alleged that defendant has become a tenant of the suit premises by adverse possession. It is denied that the agreement of Leave and Licence and the advance of loan of Rs. 30,00,000/- was a composite transaction. The defendant has every right to execute the decree passed in Suit No. 2735 of 1990. Hence it is prayed that the suit be dismissed with costs.

4. The issues framed in this case are as follows :

(1) Whether this Hon’ble Court has no jurisdiction to entertain this suit in view of the provisions of section 41 of Presidency Small Cause Court Act as contended in para 17 of the Written Statement?

(1A) Whether the suit is not maintainable in law in so far as prayers (b) and (c) of the plaint are concerned for the reasons alleged in paras 19, 20 and 21 of the Written Statement?

(2) Whether the plaintiffs prove that by an agreement of licence dated 27th December, 1974 the plaintiffs had granted licence to the defendants to use the suit premises for a period of 12 years commencing from 27th December, 1974 as alleged in paras 5 and 6 of the plaint?

(2A) If so, whether the said agreement stood renewed for a further period of 12 years commencing from December 1986 by reason of the alleged exercise of option to renew the Agreement as alleged in para 13 of the Written Statement?

(3) Whether the defendants prove that the defendants were and are tenant in respect of the suit premises as contended in paras 17 and 23 of the Written Statement?

(4) Whether the defendants have no right, title and interest in the suit premises?

(5) Whether the plaintiffs are entitled to remain in possession of the suit premises by virtue of their title thereto?

(6) Whether the Decree dated 6th November, 1990 passed by this Court in Suit No. 2735 of 1990, is inoperative and the defendants are liable to be permanently restrained from executing the said decree except in so far as the said decree directs the plaintiffs to hand over to the defendants equipments, records, books of accounts, furniture, articles and other movables belonging to the defendants Bank?

(7) Whether the plaintiffs are entitled to obtain any reliefs against the defendants and, if so, what?

(8) Generally.

Issue No. 1

5. This issue has already been answered in the negative by this Court and I am told that the appeal filed by the defendant is pending before the Appeal Bench.

Issue No. 1(A)

6. Before considering the several issues, it is better to recapitulate the admitted facts and contentions of the parties.

Admittedly, the plaintiff took a vacant land on lease from the Government for a period of 99 years under Lease Deed dated 12-8-1971 Exh. A. The plaintiff has constructed a big hotel which is Hotel Oberoi Tower, on the said land. The mezzanine floor of the ground floor was given by the plaintiff to the defendant for running its international division. The defendant is Syndicate Bank, which is a nationalised bank. It is common ground that the premises were given to the defendant by the plaintiff under a Leave and Licence Agreement dated 27-12-1974, but now the defendant’s contention is that the document though styled as a Licence Deed, it in fact creates relationship of landlord and tenant between the parties. The period of license mentioned in the agreement was 12 years. Well before the expiry of 12 years the plaintiff wrote to the defendant to vacate the premises on the expiry of 12 years. Then one more reminding letter was written by the plaintiff to the same effect on 18-4-1986. Subsequently, the bank wrote a letter asking for renewal of the licence, which was rejected by the plaintiff.

Admittedly, fire broke out in the hotel on 12-4-1990.

7. According to the plaintiff, the defendant voluntarily vacated the suit premises and shifted its office to some other building. But the defendant’s contention is that plaintiff took wrongful and forcible possession of the suit premises. That is why the defendant filed the previous Suit No. 2735/90 praying for possession of the suit premises under section 6(1) of Specific Relief Act. The present plaintiff contested that suit. However, for the purpose of that suit, a concession was made that the plaintiff in that suit was dispossessed as alleged in the plaint. The parties did not adduce any evidence. Then on hearing both the sides this Court by Judgment dated 6-11-1990 decreed the suit. The present plaintiff who was the defendant in that suit filed an appeal before the Supreme Court. The appeal was heard by two learned Judges, who disagreed about the maintainability of the suit. Then matter was placed before another Bench. In the meanwhile the present suit had been filed by the present plaintiff. The Supreme Court by order dated 21st September, 1994 in Civil Appeal No. 3697/91 disposed of the appeal stating that since the present suit is pending the parties can work out their rights and hence there is no necessity for deciding the said appeal on merits and further directed that the decree in appeal in that suit should not be executed till the disposal of this suit.

8. The plaintiff examined two witnesses. P.W. 1 Mr. J.J. Bhatia, who was the former Administrative Officer in the plaintiff/hotel. P.W. 2 Mr. A.K. Madhok was the former General Manager & Vice President of the plaintiff-Hotel. Both the witnesses have given evidence about the nature of the transaction and they have referred to number of documents.

As against this, the defendant has examined two witnesses. D.W. 1 Mr. K.N. Babu Rajan, Former Officer of the Bank and D.W. 2 Fernandes, clerk in the defendant-bank; have given evidence about some documents and also about possession of the defendant.

I have gone through the evidence of all the four witnesses. For one thing the oral evidence is interested, since the witnesses of both the sides are the former officers of the plaintiff and the defendant respectively. The oral evidence is not helpful in deciding the issues in this suit. There are number of documents which throw light on the disputed issues. I have considered the oral evidence carefully and find that oral evidence is not very helpful for deciding the controversy between the parties.

Now, with this factual background, let me consider the first contention covered by Issue No. 1(A) about the maintainability of this suit. The learned Senior Counsel Mr. Parikh, learned Counsel for the defendant, raised number of points in support of his argument that the suit as brought is not maintainable. On the other hand the learned Senior Counsel Mr. Doctor appearing for the plaintiff contended that the suit is perfectly maintainable and there is no merit in the defence contention that the suit is not maintainable.

9. First contention about the maintainability of the suit is on the ground of want of jurisdiction, which is covered by Issue No. 1. This Court has already held that the suit is maintainable in this Court; as already stated the appeal filed by the defendant before the Division Bench is still pending. The learned Counsel for the plaintiff contended that while deciding Issue No. 1. this Court has also held that the suit is maintainable, which covers Issue No. 1(A) also. While the learned Counsel for the defendant contended that the Court was concerned with only Issue No. 1 and any observation regarding Issue No. 1(A) is only obiter and it is not binding. After hearing both the sides I feel that though the learned Judge was discussing issue No. 1, he has considered the arguments regarding maintainability of the suit covered by Issue No. 1(A) and has given finding that the suit is maintainable. The learned Counsel for the defendant himself has addressed arguments before the learned Judge, by citing authorities and the learned Judge (Justice Dhanuka) by order dated 24th February, 1995 rejected some of the contentions regarding maintainability of the suit, though the learned Judge was considering only Issue No. 1, he has considered arguments addressed by both the sides about the maintainability of the suit and has expressed the opinion. When both the parties had addressed arguments and invited decision from the Court, it is too late in the day to say that the observations of the learned Judge are obiter and are not binding. We are not considering the effect of order of Justice Dhanuka as a precedent, but we have to consider it as an order between the parties and therefore it is binding on the parties. It is well settled that even a wrong order or an erroneous order is binding on the parties to the suit, unless the order is set aside by an appeal Court or any other process according to law. Alternatively, the learned Counsel for the defendant contended that some points regarding maintainability of the suit was not addressed before Justice Dhanuka and no finding is given on those points and therefore, those points can be urged even now. There is no dispute that the points not covered by the order of Justice Dhanuka can be now pressed into service. Since, both the sides have addressed arguments on points covered by Justice Dhanuka’s order and also other points, I will give my finding though I hold that order of Justice Dhanuka is binding on the parties, not only on Issue No. 1, but also on other points decided by him.

10. The first and the most important contention urged by the learned Counsel for the defendant is that the present suit for injunction is not maintainable under section 6(4) of the Specific Relief Act. It is argued that under that sub-section the plaintiff’s remedy is only to file a suit for possession and not for injunction. It is further submitted that when the defendant has obtained a valid decree under sub-section (1) of section 6, if a suit for injunction is entertained and a decree for injunction is passed, then the provisions of section 6(1) of the Act becomes nugatory. It was therefore submitted that the suit under section 6(4) can never be for injunction, but always it should be only for title and possession. The argument is no doubt attractive. But on deeper scrutiny I find that the argument cannot be accepted.

When a person is dispossessed, then he can file a suit under section 6(1) of the Act for possession provided the suit is filed within 6 months from the date of dispossession . It is well settled that question of title cannot be gone into in such a suit; therefore the defendant of such suit can file a fresh suit for title and possession as mentioned in section 6(4) of the said Act. It is well settled that the remedy to sue in section 6(1) of the Act is a summary remedy. It is not a final Judgment determining the rights of parties. No appeal is provided against such Judgment. The party aggrieved by a Judgment in a suit filed under section 6(1) of the Act has to file a Regular Title Suit as provided in section 6(4) of the Act.

11. Section 6(4) of the Specific Relief Act reads as follows:

“Nothing in this section shall bar any person from suit to establish his title to such property and to recover possession thereof.”

This provision is more like a proviso to section 6(1) of the Act. It starts with ‘non-obstante Clause’. That means whatever the nature of decree that is passed under section 6(1) of the Act, the aggrieved party has a right to file a regular title suit. This is only an enabling provision to make it clear that any decree or order under section 6(1) of the Act is not final. It may be a case where the suit of the plaintiff is dismissed under section 6(1) of the Act. He can file a suit for possession on the basis of title. If the suit is decreed, then the defendant can file a suit for possession. Since, section 6(4) is in the nature of non-obstante clause; it cannot be said that the suit must be filed only for title and recovery of possession. In such a title suit there can be a claim for damages for wrongful dispossession or wrongful possession. There may be claim for injunction to restrain the defendant from alienating or from demolishing and constructing of a house etc. It cannot be said that a suit under section 6(4) of the Act must be always only for establishment of title and possession. There are number of decisions of various High Courts including this Court which have taken consistent view that such a suit is perfectly maintainable.

12. The earliest decision on this point is a decision of the learned Single Judge of this Court reported in A.I.R. 1922 Bombay 216, Mari Doddatamma Markundi v. Santaya Ramkrishna Pai. That was also a case where a plaintiff had obtained a decree for possession under section 9 of the Former Specific Relief Act, which correspondence to section 6 of the Specific Relief Act of 1963. The earlier suit was decreed for possession. Then the defendants of that suit filed a suit for declaration of title and for permanent injunction and also for a declaration that the previous decree is incapable of execution. The suit came to the decreed. The defendant of that suit took the matter in appeal before this Court and raised similar contentions namely that the suit for injunction was not maintainable when he has already obtained a decree for possession in the previous suit under section 9 of the Specific Relief Act. The learned Single Judge who decided that appeal held that the defendant who suffered decree in a previous suit can file a fresh suit to establish his title. Since, he was already in possession, the only further relief he could ask is the relief of injunction to protect his possession. Therefore the High Court held that the second suit for declaration of title and injunction was maintainable and dismissed the appeal.

13. The argument of the learned Counsel for the defendant is that it was a decision under the Old Act and there is some change in the provisions of new Specific Relief Act, and therefore that decision cannot be applicable to the facts of the present case. There is no merit in this submission. The question in the said appeal and in the present suit is one and same namely whether the defendant who has suffered a decree in a summary suit under section 6(1) of the Specific Relief Act can maintain a suit for establishment of title and injunction or he must file only a suit for possession.

Another contention is that in the said Judgment the question whether the provisions of section 6(1) of the Act become nugatory if the suit for injunction is filed under section 6(4) of the Specific Relief Act was not considered and therefore that Judgment is not binding on this Court. In my view even this argument has no merit.

By a harmonious construction of section 6(1) and 6(4) of the Specific Relief Act, we can definitely say that the suit for injunction is certainly maintainable under section 6(4) of the Act. There is no question of making the provision of section 6(1) of the Act as nugatory when the law itself provides that notwithstanding any order under section 6(1) the aggrieved party can file a suit under section 6(4) of the Act. As already stated the suit under section 6(1) is a summary remedy, the Judgment is not subject to appeal. In such a case, if a party is still in possession, he can always file a suit for declaration of title and injunction. Even if he files the said suit, the defendant can execute the previous decree and take possession, unless the plaintiff is able to get the relief of temporary injunction. Whether the relief of temporary injunction should be granted or not depends upon the several circumstances which the Court has to take into consideration. In many cases the Court may refuse to grant relief of temporary injunction to restrain the defendant from executing the decree. If no injunction is granted then the defendant can take possession and then the plaintiff will have to amend the plaint to ask relief of possession. If in a given case the plaintiff has made out a good case and gets an order of temporary injunction to restrain the defendant from executing a decree, then there is no bar to grant a decree for injunction if the plaintiff proves his case.

14. In 1967(1) Madras Law Journal 346, R. Gopalkrishnan Pillai v. Venkateshan Pillai, an indentical question was raised. It was held that even though the defendant has obtained a decree for possession under section 9 of the Specific Relief Act (corresponding to section 6 of the present Act of 1963) the plaintiff can still maintain a suit to protect his possession without surrendering such possession in pursuance to the previous decree. It is made clear that nothing in the language of the section to take away the remedies available to a person in possession. It is pointed out that the decree under section 9 of the Specific Relief Act is granted in a summary suit and such a decree is liable to be set aside when the substantive suit is filed on the basis of title. In that case it appears that the plaintiff did not get relief of temporary injunction and lost possession during the pendency of the suit and therefore, the suit was decreed for possession. There is a clear finding that the suit for title and injunction is maintainable.

Same view is taken in a case (Division

Bench), Chunni and another v. Sullahar and another. There it has been held that the decree under section 6(1) of the Act is no bar for a suit for declaration of title and injunction against the defendant. Then the High Court observed that in a given case whether the temporary injunction to restrain execution of decree should be granted or not is left to the discretion of the trial Court. Hence, after holding that the suit is perfectly maintainable, the matter was remanded to the trial Court to decide the application for interim injunction according to law. The learned Counsel for the defendant placed reliance on a contrary view taken by a single Judge in Parmanand v. Chimnavat, and it has to be stated that this decision has been overruled by the Division Bench in Chunni and another v. Sullahar and another.

15. In , Mohd. H. Shaikh v. Batukbai Valjibhai and

others, same view is taken. That was a judgment rendered by His Lordship M.B. Shah (as he then was, who is presently the Chief Justice of Bombay High Court), where His Lordship has taken a view that a suit of this type particularly for title and injunction is maintainable. Even in that case, similar argument was addressed that the provisions of section 6(1) of the Act would become nugatory or frustrated if suit of the present nature is entertained. His Lordship has also mentioned that in a given case where an order of temporary injunction may be granted or not is a different issue and it has no bearing on the question of maintainability of the suit. Hence, His Lordship set aside the order of the trial Court, which had rejected the application for temporary injunction on the ground that the suit is not maintainable and remanded the suit to the trial Court to consider the application for temporary injunction on merits.

In A.I.R. 1955 Tripura (13), Gurga Deo v. Satishchandra. It was held that the suit of this nature is perfectly maintainable, where the plaintiff had asked for declaration of title and for permanent injunction though there was an earlier decree in favour of defendant under section 9 of the Old Specific Relief Act.

In , Jamaluddin and others v. Asimullah, a Division Bench of the High Court held that the suit of the present nature is maintainable.

It is therefore seen that the High Courts of Bombay, Madras, Allahabad, Gujarat and Tripura have taken the view that the suit of this nature is perfectly maintainable.

As against this the learned Counsel for the defendant relied on two authorities. One is , Parmanand v.

Chimavat. It was rendered by a Single Judge, but the same is no longer good law since it has been overruled by Division Bench of the same High Court which is , which I have already

considered above.

The other decision is one Laxmichand v.

Saraladevi; No doubt the said decision supports the stand of the learned Counsel for the defendants that the suit of this type is not maintainable. With great respect I am unable to subscribe to this view. I have already pointed out how section 6(4) is an enabling provision with a non-obstante clause and there is no legal bar to file a suit for injunction or other reliefs. I have also shown how different High Courts have taken view consistently that the suit of this type is maintainable.

In my view the suit of this type is perfectly maintainable. The question whether temporary injunction should be granted to restrain the defendants from executing the decree or not depends upon the facts and circumstances of the case. In the present case, that difficulty does not arise, because the defendant cannot execute the decree in view of the order passed by the Supreme Court in the appeal filed by the present plaintiff against the previous Judgment of this Court. The Apex Court has observed that the previous decree shall not be executed till the disposal of the present suit.

The next objection to the maintainability of the suit is one under section 47 of the Code of Civil Procedure. It is argued that since the relief asked is to restrain the execution of the decree, it cannot be urged in a separate suit, but it must be pleaded in the execution proceedings under section 47 of the C.P.C. and therefore, present suit is barred by the provisions of section 47 of C.P.C. In my view there is no merit in this argument.

A decree passed under section 6(1) of the Specific Relief Act is not final. It is not subject to appeal. It is a summery remedy and such a decree is liable to be set aside in title suit under section 6(4) of the Act and the law itself says that the decree under section 6(1) is not final, but it is subject to the result of title suit filed under section 6(4) of the Act. The argument that the suit is not maintainable has no merit. If the suit is maintainable and the plaintiff is still in possession, he can still ask the relief of injunction to protect his possession or to restrain the execution of the decree. I have already pointed out by referring to number of decisions that such a suit for declaration of title and for permanent injunction is maintainable. It is not a case where the plaintiff is objecting to the execution of the decree within the meaning of section 47 of C.P.C. Here injunction is asked to restrain the execution of the decree on the ground that the plaintiff is in possession on the basis of title and that the defendant has no right to claim possession. To such a suit section 47 of C.P.C. is not applicable.

Another contention urged is that the relief of injunction cannot be granted in view of sections 38 and 41 of the Specific Relief Act.

Since I have already held that a suit for declaration of title and permanent injunction is maintainable and referred to many decisions, which have taken consistent view, the argument that permanent injunction cannot be granted under section 38 of the Specific Relief Act has to be rejected.

16. As far section 41 is concerned, sub-clause (a) is not attracted, since there is no judicial proceedings pending when the present suit was filed. If at all, sub-clause (b) is attracted, which says that the Court should not grant an injunction to restrain a person from prosecuting any proceedings in a Court. The argument is that if relief of injunction is granted in this case, it will prevent the defendant from filing a case for executing the decree. No Court will grant an injunction to restrain the other party from executing a lawful decree.

In my view, though the argument has some force, regarding suits generally, it has no merit so far as a suit filed under section 6(4) of the Specific Relief Act. This is a special procedure provided by the statute. The law is that the decree obtained under section 6(1) is a summary order and not a final one, but it is subject to a title suit filed under section 6(4) of the Act. I have already held that such a suit is maintainable, since a decree under section 6(1) is not final and subject to the result of decree in a title suit, filed under section 6(4) of the Act. There is no harm to grant a decree provided the plaintiff is still in possession. In a given case, whether injunction should be granted or not depends upon the peculiar facts and circumstances of the case, the conduct of the parties equities etc. Whether in the present case the plaintiff should be granted relief of injunction or not will be considered at a later stage. But suffice to say that the suit for injunction is maintainable. In fact, the learned Counsel for the defendant cited some authorities on the point that the Court should not grant injunction to restrain the execution of a decree of co-ordinate jurisdiction. There is no dispute so far as decrees passed in other suits, but so far a decree is passed under section 6(1) of the Act different consideration applies. Reason is that it is a summary procedure and summary remedy and it is subject to result of the title suit under section 6(4) of the Act. Section 6(4) starts with a non-obstante clause. Therefore, notwithstanding a decree passed under section 6(1) of the Act, a plaintiff can agitate his title and get the possession or injunction or any other relief which he is entitled to. Though in normal circumstances the Court will not grant injunction to restrain the execution of a valid decree for which no authority is necessary, it does not apply to special suits filed under section 6(4) of the Act. Hence it is not necessary to consider some of the decisions relied on by the learned Counsel for the defendant about the powers of the Court to grant relief of injunction to restrain the execution of decree generally and those decisions are not in suits filed under section 6(4) of the Act or Injunction asked in respect of a decree under section 6(1) of the Act.

17. The argument about maintainability of the suit under section 34 of the Specific Relief Act does not arise in view of my finding that the present suit asking for relief of title and injunction is maintainable. What was argued was that if the relief of injunction cannot be granted, then a suit for bare declaration of title is not maintainable under section 34 of the Specific Relief Act. But in view of my finding that the suit for declaration of title and injunction is maintainable, section 34 of this Specific Relief Act is not attracted.

The learned Counsel of the defendant placed strong reliance on the decision of the Apex Court , Krishna Ram

Mahale (Dead) by his LRs. v. Mrs. Shobha Venkat Rao, and contented that in view of the observations of the Apex Court a suit of the present type is not maintainable. That was a dispute between a Licensee and the Licensor. According to the facts of that case, even before the expiry of the licence period, the licensor took forcible possession of the licensed premises. Then the licensee filed a suit for possession, suit came to be decreed. It was argued before the Apex Court that since, the license period has subsequently expired, the plaintiff has no right to claim back possession of the licensed premises. The Apex Court has observed that a person in settled possession is entitled to be in possession till he is evicted in due course of law. The Apex Court observed that in view of the conduct of the contesting defendant it is not a fit case for the Supreme Court to exercise discretion in granting Special Leave under Article 136 of the Constitution of India. It was pointed out that the contesting defendant had taken possession unlawfully and he made every attempt to retain the possession. It was pointed out that even after the appeal was dismissed by the Division Bench of the High Court, in stead of complying with the decree or filing an appeal in the Supreme Court, he chose to file a suit which can be described as bogus. Having mentioned about the conduct of the contesting party, the Apex Court observed that it was not a fit case for entertaining the appeal under Article 136 of the Constitution. The Supreme Court has no where observed that a suit for injunction under section 6(4) of the Specific Relief Act does not lie. The Supreme Court was concerned with the conduct of the contesting defendant in that suit and commented on the dilatory tactics adopted by him and about having taken possession of the licensed premises before the expiry of the period and other circumstances and therefore, declined to grant special leave. The maintainability of the second suit was not an issue before the Supreme Court. The Supreme Court has referred to number of attempts made by the appellant to retain possession and in that context observed that he filed one more bogus suit to retain possession obtained unlawfully. Hence, in my view, in a given case the Court may refuse to grant the relief of injunction having regard to the conduct of the plaintiff and other circumstances. I will consider separately whether the plaintiff in this case, took possession wrongfully and whether it is entitled to relief of injunction or not.

In my view none of the arguments of the learned Counsel for the defendant about the maintainability of the suit appeal to me, hence all the contentions are rejected. Issue No. 1(A) is answered in the negative.

Issues Nos. 2 & 3

18. These are two major issues which were pressed into service on behalf of the plaintiff and the defendant respectively. According to the plaintiff the suit transaction is one of leave and licence. The defence is that it is a case of relationship of landlord and tenant between the parties. In other words, the dispute is whether it is a license as alleged by the plaintiff or a lease as alleged by the defendant. Both the learned Counsel have placed reliance on number of authorities in support of their rival contentions. The oral evidence of P.W. 1 and P.W. 2 on the one side and that of D.W. 1 and D. W. 2 on the other do not help us in any way to decide this point. There are number of documents exchanged between the parties. Then there is license deed itself. The Court has to consider the contents of the license deed and number of documents produced by both the sides and pleadings of the previous suit to find out the true nature of the suit transaction. Before going to consider the evidence produced by the parties on this point, let me straightway consider the question of law that is involved.

A lease according to section 105 of the Transfer of Property Act is a transfer of an interest in immoveable property. On the other hand a licence as defined in section 52 of the Easement And Licence Act is a permission given by one to the other to make use of a immoveable property. In many cases the distinction between a licence and a lease is very thin. The settled position is that the Court has to take into consideration the written document between the parties, the surrounding circumstances, the conduct of the parties to find out the real intention of the parties about the nature of the transaction namely whether they intended to create a license or lease.

Since law bearing on the point is directly covered by decisions of the Supreme Court and this Court, it is not necessary to refer to English decisions or the decisions of other High Courts.

The learned Counsel for the defendant seriously contended that irrespective of the contents of the document, the intention of the parties and particularly exclusive possession of the property must be taken into consideration to find out the nature of the transaction. He placed reliance on some authorities.

In , Associated Hotels of India Ltd. v. S.B. Sardar Ranjit Singh, where the hotel had given some rooms to some shops. The question was whether it was a lease or license. It is pointed out that exclusive possession of the property is important, but not conclusive. On facts it was held that it is a case of lease.

In , Qudrat Ullah v. Municipal Board, Bareilly, it was a case of shop and shed and road and path in a municipal market. On facts it was held that as far shop and shed are concerned it was a case of lease and as far as road and paths are concerned it was a case of license.

In , Capt. B.V. D’Souza v. Antonio Fausto Fernandes, Again it was held on facts that it was a case of lease. It is observed that to find out the nature of document, substance of the document must be preferred to form; that exclusive possession of the party is relevant but not conclusive. Then the other test is whether the document creates any interest in the property.

In , Associated Hotels of India Ltd. v. R.N. Kapoor; It was again a case of room in a hotel. It appears that the room had been given for running business of hairdresser. The question was whether it was a case of license or lease. No doubt the document had been written as a licence deed. The Supreme Court analysed the terms of the deed and posed a question whether as to what is the substance of this document. Then it was held on facts that it was a case of lease though the document was styled as a license deed. It was further pointed out that the intention of the parties is very clear and it shows that it was a case of lease. As far as exclusive possession is concerned, it was observed that prima facie it shows that the person is a tenant, but circumstances may be established to negative the intention to create a lease.

In 67 B.L.R. 452, Miss Aninha D’Costa v. Mrs. Parvatibai M. Thakur; It was again a case of license or lease. Though the document was styled as a license deed, on interpreting the document and taking into consideration the circumstances of the case and the conduct of the parties, it was held that it was a case of lease. Another circumstances which was taken into consideration was that the parties were strangers and it was not a case of one party accommodating the other, but it was a case of giving property to earn money after giving advertisement in newspaper and hence it was held to be a lease. The Court also took into consideration the object of the law. Since, Bombay Rent Act was in force, there was every chance of a landlord and tenant taking undue advantage and giving property on lease or sub-lease, but creating documents in the form of license deed. It was again a decision based on the peculiar facts of that case. It is also pointed out that it was a case of renewal of the license at the option of the licensee.

In 68 Bom.L.R. 400, Sohanlal Naraindas v. Laxmidas Raghunath Gadit; It is pointed out that the intention of the party is relevant to decide whether a transaction is lease or license. It is subsequently pointed out that mere exclusive possession is not sufficient. It was again a case of giving a property for consideration of money. On facts it has held that it is a case of lease. This decision was carried in appeal before the Supreme Court, which is reported in 74, Bom.L.R. 145: The Apex Court pointed out that defendant had been given exclusive possession and plaintiff had not reserved possession of any part of the premises or a right of entry therein. Except monetary consideration there was no other reason for the transaction. It was a case of deliberate camouflaging the real transaction by writing the document as license and hence on facts it was held that it was a case of lease.

In 78 Bom.L.R. 195, M/s. Mohan Sons (Bombay) Pvt. Ltd. v. Lady Sonoo Jamsetji Jeejeebhoy; it was a case where the landlord had filed a suit for eviction of the tenant on the ground of sub-lease. Tenant denied the sub-lease, but alleged that he had given the property to his licensee. On facts the theory of license was rejected and it was held to be a case of sub-lease. In my view the decision is based on the peculiar facts of the case.

In , Balvantsinghji Anand v. Bhagwantrao Ganpatrao

Deshmukh, it was held that it was a case of lease on the facts of the case.

19. In some of the decisions mentioned above there is reference to the attempts made by unscrupulous landlords to evict a tenant and to take a license deed in order to get over the provisions of Bombay Rent Act. More over the Court can take judicial notice that the tenant will be at the mercy of the landlord and the tenant is eager to get some place for his residence, in such a helpless situation the landlord can dictate terms and ask the tenant to execute a license deed or otherwise he will not give him the possession of the premises. A tenant being helpless will have to execute whatever document the landlord wants. That is why in many decisions the Court has to go behind the document to find out the true nature of the transaction and the intention of the parties. Bearing law laid down in the above decision we will have to examine the terms of the document in question in the present suit, the circumstances of the case and the conduct of the parties to find out as to what was the intention.

As against this the learned Counsel for the plaintiff has also invited attention of the Court to number of decisions of the Apex Court.

The latest decision on the point is one ,

Swaran Singh v. Madan Singh. In that case also an identical question arose, whether the transaction was one of lease or license. The Supreme Court pointed out that the nomenclature of the document is license though it was pointed out that it may not be conclusive. The document further recited that the possession and control shall remain with the owner which means that there is no transfer of interest on immoveable property. Though there was a clause that license will not sublet to others, it was held that such a clause is not inconsistent with a license. Then the Apex Court made an important observation in para 5 as follows:

“Where the document is unambiguous, there is no need to travel beyond the document and look at the attendant circumstances together with the intention of the parties.”

That means if the document is ambiguous, then no doubt the Court will have to consider all other relevant points to find out the intention of the parties. It may be possible that in some cases the defendant may plead that due to pressure of the landlord the document was written in a particular manner and he was helpless and the license deed was taken as a device to get over the provisions of the Rent Act, then also the Court may have to go beyond the document to find out the nature of transaction. In the present case, I will presently point out, that the defendant was not a helpless person who was at the mercy of the plaintiff. It is also not a case about that the defendant pleading that due to certain circumstances the license deed was taken as device to get over the provisions of the Rent Act. There is no such plea at all, though the defendant is no ordinary person, but the Syndicate Bank, which is a nationalised bank wholly owned by the Government of India. Hence, there is no question of defendant being at the mercy of the plaintiff or it is a case of helpless tenant who had to succumb to the pressure of an unscrupulous landlord in signing some documents which the landlord may insist.

Another recent decision on the point is the case , Lilavati Hiranandani v. Usha Tandon. It was a case arising from Bombay. Even in that case the dispute was whether the transaction was one of lease or license. It was found that the document was styled as a license. The document was clear. It was pointed out that Bombay Rent Act was in existence since 1947 and both the parties were aware or deemed to be aware of the prevailing state of law. In spite of this they chose to call the arrangement as a license. The Apex Court observed as follows:

“In our opinion the specific label or nomenclature of the arrangement and the contents of the document should conclude the matter”.

Here again the Apex Court has observed the nomenclature is clear and the contents of the document are unambiguous, then there is no necessity to travel beyond the document to find out the nature of the transaction.

In , Provash Chandra Dalui and another v. Biswanath Banerjee and another, it was pointed out that the Court must look at the words used in the contract and if the words are clear there is very little the Court can do about it. If the words are doubtful or the document is not clear then the Court has to consider the intention of the parties by surrounding circumstances etc.

In , Puran Singh Sahni v. Sundari Bhagwandas Kripalani (Smt) and others, a similar dispute arose. It was observed that test of exclusive possession is not decisive, if there was an intention to create interest in the property, then it is a lease or otherwise it is a license. That was a case where the document was written as a regular license deed, as in the present case. The Supreme Court observed that there is no doubt that ex facie it is leave and licence agreement for use of the flat. It was contended, as in the present case, that since the defendant is given exclusive possession, it must be held to be a case of lease. It was pointed out that exclusive possession by itself will not amount to creation of interest. It was further pointed out that the intention of the parties to an agreement has to be gathered from the terms of the agreement construed in the context of surrounding, precedent and consequent circumstances. If the intention was to create an interest in the property, then it will be a lease.

20. We may also refer to another decision of the Apex Court in , Smt. Rajbir Kaur and another v. M/s. Chokosiri and Co.. In that case the dispute was whether the transaction was a lease or a licence. It has been pointed out that though exclusive possession is a relevant fact, it is not conclusive. It is pointed out that even if there is exclusive possession an idea of license is not necessarily ruled out. It is pointed out that everything depends upon the intention of the parties and there is no single simple litmus test to distinguish one from the other. It is a creation of interest which distinguishes a lease from licence.

In Mrs. M.N. Clubwala and another v. Fida Hussain

Saheb and others. It is pointed out that intention of the parties has to be ascertained from the contents of the agreement or if there is no formal document, then from the surrounding circumstances and conduct of the parties. It is clearly ruled that even if a person is in exclusive possession, it does not mean that transaction is a lease. But if there is a transfer of interest in property coupled with possession, then it is case of lease.

21. The learned Counsel for the plaintiff also invited my attention to an unreported Judgment of a learned Single Judge of this Court dated 7th April, 1992 in Suit No. 214 of 1975, Mrs. Karuna Manoharlal Ohri v. Vipinbhai U. Sanghani, reported at . That was also a case where dispute was whether the transaction was a lease or licence. It is pointed out that apparently document shows that the licensee had no interest in the property though the exclusive possession was given to him and he had a mere right to occupy and make use of the flat. After holding that the defendant was only a licensee, the learned Judge held that since the defendant was occupying the premises as a licensee on the appointed day namely 1st February, 1973, he must be deemed to be a tenant in view of section 15(A) of the Bombay Rent Act. Hence the suit came to be dismissed in view of deemed tenancy as per amended section 15(A) of the Bombay Rent Act.

The plaintiff in that suit carried the matter in appeal before the Division Bench of this Court in Appeal No. 585/92. It is also an unreported Judgment and the copy of the Judgment is placed before me, which is dated 11-2-1994. The Appellate Court agreed with the finding of the Trial Judge that it was a licence only. But still held that in the facts and circumstances of the case, the defendant was not entitled to the protection under section 15(A) of the Rent Act. Accordingly, the appeal was allowed and the suit for possession was decreed.

The defendant in that suit carried the matter to Supreme Court in Civil Appeal No. 2504 of 1994. The Supreme Court by its Judgment dated 8-2-1996 dismissed the appeal, but granted time to the appellant/licensee to vacate premises.

22. From the above decisions relied on by the both the sides we find the main test is as to what was the intention of the parties. Exclusive possession is an important circumstance, but it is not conclusive. The main question will be whether there was transfer of interest in the property in favour of the defendant or not? If there was no transfer of interest then certainly it is a case of licence. The Court has to consider the contents of the agreement between the parties, the surrounding circumstances and the conduct of the parties to find out as to what was the intention of the parties. As pointed out in some of the latest decisions of the Apex Court, if the document is unambiguous then the Court has to look to the substance of the document to find out the nature of the transaction and need not go out side the document. With this background on the point of law bearing on the point, let me analyse the evidence produced by both the parties.

23. Exh. A is a big compilation of documents, which has been marked collectively. The agreement between the parties is at page 45 of Exh. A. It is dated 27-12-1974. It is mentioned in the document that it is an agreement of leave and licence. The defendant is described as a licensee. There is reference to licence fees. The plaintiff has agreed to give the premises on leave and licence basis to the defendant. Therefore the nomenclator of the document is that it is a leave and licence agreement.

It is no doubt mentioned that the licensee includes the successors of the defendant. It was contended that if it is a pure licence then there is no question of using the words successors. It is a usual term in every document and hence that clause does not throw any light on the question of the nature of the transaction.

24. One important clause is that defendant has agreed to give a loan of Rs. 30 lakhs to the plaintiff under a separate agreement and now the defendant bank is giving an option to adjust licence fees towards the said loan.

The oral evidence and the documents produced in the case show that defendant gave a loan of Rs. 30 lakhs to the plaintiff and this has to be adjusted at the rate of Rs. 60,000/- as licence fees. The intention of the parties was not to create an agreement for the purpose of earning money. It was a case of defendant/bank advancing a loan to the plaintiff and the plaintiff/company giving a portion of the premises to the defendant on leave and licence basis. I have already pointed out that in some of the decisions the reasoning in that an unscrupulous landlord may exploit a poor or helpless tenant and therefore may dictate terms and take a document in the nature of a licence just to get over the beneficial provisions of the Bombay Rent Act. Can we say that in this case, the defendant is a helpless and poor tenant, who was at the mercy of the plaintiff and had to sign whatever documents the plaintiff gave it. Can it be said that this is a case of the real nature of the transaction being camouflaged as a licence instead of lease. There is no whisper in the written statement on these two points. It is not defendant’s case that out of pressure of plaintiff or being under the mercy of the plaintiff the document was camouflaged as a licence, though the transaction was intented to be a lease/deed. There is no such plea at all in the written statement.

The defendant, as already pointed out, is a nationalised bank, which is wholly owned by the Government of India. It is an instrumentality of the State. It has a separate legal department and assisted by its own solicitors. If at all, it is the plaintiff was at the mercy of the defendant, since it approached the defendant to give loan of Rs. 30 lakh, if at all the defendant could have dictated the terms to the plaintiff and could have refused to sign the document unless it is written in the manner wanted by it. Hence, this is not a case where a poor or helpless tenant is exploited by a mighty and rich landlord or it is not a case where there is plea much less evidence that real lease transaction was camoufledged as a licence deed to get over the provisions of the Rent Act. There is no pleading much less evidence as to why the defendant signed the licence deed with open eyes, if really the intention was to create a lease transaction, then there is no explanation forthcoming from the defendant either in the written statement or in the evidence of D.W. 1 & D.W. 2.

In Clause (1) of the licence deed, the defendant is given licence to use and occupy the licensed premises for the purpose of carrying on the business of bank for a period 12 years.

25. The learned Counsel for the defendant contended that normally a licence will be for a shorter period, but the fact that 12 years period is mentioned, it must be a case of lease. We must bear in mind that the period is mentioned to cover the repayment facility given to the plaintiff under which the licence fees of Rs. 60,000 per month must be adjust towards the loan of Rs. 30 lakhs. Hence longer period is mentioned in order to clear the loan.

If really parties intended that it should be a lease deed for 12 years, it cannot be done by an unregistered document. A lease of immoveable property for more than one year must be by a registered lease deed. The defendant who has a big law department and has assistance of legal experts cannot be said to be not aware of this legal position that there cannot be a valid lease deed for more than one year unless it is registered. The fact that the document is taken as a licence deed by an unregistered document but with 12 years period shows the intention was to create a transaction of licence and not lease. If the parties intented to create lease, the defendant would have insisted for a registered deed.

Next we find that in Clause (2), though there is provision for renewal of the licence, it is at the discretion of the plaintiff. Though the defendant may express his intention to renew the lease, it is left to the discretion of the plaintiff to grant renewal or refuse the same. This condition is consistent with the transaction being one of licence. The fact that the defendant must pay electricity bill and must keep the premises in good condition is consistent both with licence and lease. In Clause 3(iv) the plaintiff has reserved right to send its representative to inspect the suit premises. The defendant has been told in the next clause to use the premises only for its administrative office and no other purpose. Then what ever internal changes should be made like furniture etc. it must be with the written approval of the plaintiff/company.

Then there is a specific condition that defendant should not do anything to invalidate the plaintiff’s lease deed dated 12-8-1971. That means both the parties are aware about the lease deed dated 12th August, 1971 and its contents when the licence deed was executed. The lease deed between the plaintiff and the Government of Maharashtra is at page 1 of Exh. A. One of the conditions in the said lease deed is that the plaintiff should not sublet any portion of the premises without the previous written consent of the lessor namely the Government of Maharashtra.

26. Plaintiff has built a very big hotel called Hotel Oberoi on the land taken on lease from the Government of Maharashtra under this lease/deed. The defendant is also aware of condition of the lease deed. In the circumstances the party would not have intended to create a sub-lease, since the plaintiff will run the risk of forfeiture of the lease. Therefore, the probabilities are that the plaintiff had intention to create only a licence and never intended to create a lease transaction.

On the other hand the learned Counsel for the defendant contended that because of this clause that plaintiff cannot sublet, a document in the form of licence was taken as a camouflage to cover the real lease transaction. I would have appreciated this argument if the defendant had taken such a stand in the written statement. The defendant could have pleaded in the written statement that in order to get over the provisions of the Rent Act or to avoid the forfeiture clause in the lease deed a device was made to take a licence deed instead of a lease deed. There is no plea much less evidence on that point. Hence, it is too late in the day to submit such an argument at the time of arguments which is based on neither plea nor evidence. On the other hand I will presently point out that defendant itself has admitted in the previous proceedings that it was a case of licence.

27. Then in Clause 3(xii) it is provided that the defendant should not change the lock of the main entrance door without the written consent of the plaintiff. It is also in evidence that the original key of the main entrance door was kept with the plaintiff and the duplicate key was given to the defendant. These two conditions namely giving key of the main door to the plaintiff and defendant agreeing not to change the lock of the door without the written consent of the plaintiff show that the defendant was given right to use and occupy the premises as a licensee and it was never intended to be a lease transaction.

It is also seen from the deed and also from the evidence on record that lift machine and Air-condition machine are in a portion of the suit premises. The plaintiff’s engineers and mechanics are entitled to go to the suit premises at any time to repair the lift machine and to repair air-condition machine. That means the plaintiff had a right of entry for this purpose. This also is consistent with the transaction being a licence. Then the plaintiff has reserved the right of entry to inspect the suit premises at any time during the working hours. Then there is a Clause 7(iii) which shows that the plaintiff shall have full control over the licensed premises subject to use by the licensee for the period mentioned.

Then we come to the most important clause which is Clause 7(i), which reads as follows :—

“This agreement does not create any interest or any other right in favour of licensee in the said licensed premises or any part thereof but it is a mere licence to use the said premises. The key to the main entrance will remain with the company and the duplicate thereof will remain with the licensee and locking arrangement if required to be changed will be changed with the consent of both the parties.”

Above clause clearly shows that the parties agreed with open eyes that the agreement does not create any interest or any right in favour of the licensee, except the right to use the premises.

As already stated we are concerned with a defendant who is the instrumentality of the State and which is a nationalised bank and who was in a position to dominate being a creditor of the plaintiff by loaning Rs. 30 lakhs; if such a defendant who knows or deemed to know the legal position and who has a very big office with a law department and having an opportunity to take legal advice by any senior advocate, signs a licence deed, it is bound by it. There is no explanation by the defendant either in the written statement or in the evidence of D.W. 1 and D.W. 2 as to why they accepted such conditions to be incorporated in the agreement. As already seen the main distinction between a lease and licence is whether there was transfer of interest or not. Here in view of this unequivocal condition, that agreement does not create any interest in favour of the defendant, the transaction can never be called a lease, since it runs contrary to the statutory definition of a lease in section 105 of the Transfer of Property Act. In my view this condition puts an end to the controversy and sufficient to reject the defence of the defendant on this point.

28. In view of the conditions in the licence deed being unambiguous and do not admit any interpretation except that it is licence deed, we need not to go to the other evidence on record in view of the law laid down in the latest decisions of the Apex Court mentioned above. Granting for a moment that in spite of such a deed, the Court can consider the surrounding circumstances and conduct of the parties to find out their real intention, let me refer to some materials on record.

The learned Counsel for the plaintiff pointed out that in number of letters and correspondence the defendant has admitted that it is a case of licence and it is sending licence fee etc. On the other hand the learned Counsel for the defendant contended that in two or three letters of the plaintiff there is a use of word ‘lease or rent’. It may be possible that some clerks of the hotel or bank may not know the legal implication of using the word licence, rent or lease etc. Hence, let me not give much importance to the letters or correspondence between the parties, where there may be mentioning of words like licence, rent and lease etc. and it may not be sufficient to come to one conclusion or the other.

In Exh. A at page 70 there is a letter dated 17-9-1984 written by the plaintiff to the defendant stating that the transaction is a licence and the period expires on 31-12-1996, and called upon the defendant to vacate the premises on the expiry of the licence period. Then one more reminder was sent dated 18-4-1986 at page 74. Defendant had received a letter, wrote a reply dated 8-5-1986 (at page 75 of Exh. A) stating that the matter is under consideration and detailed reply will be sent. Then defendant wrote another letter dated 8-7-1986, (page 76) asking the plaintiff to renew the period for 12 years more. If really the transaction was intended to be lease and not a licence, the tenor of the reply would have been that the defendant is a tenant and is protected under the Rent Control Act and it now not vacate the premises. But the reply is that the defendant asked the plaintiff to renew the period for 12 years. The plaintiff promptly sent a reply dated 9-8-1986 at page 78 rejecting the renewal and again called upon the defendant to vacate the premises on the expiry of the licence period on 31-12-1986. Then the defendant wrote another letter dated 22-7-1989 (at page 86 of Exh. A) stating that the Board of Directors of the defendant have resolved not to vacate the premises. That was the earliest chance for the defendant to say that this is a lease transaction and not a licence, and is not going to vacate the premises. There is no whisper of tenancy or lease even in Exh. 86.

28-A. It may be recalled that the fire broke out in the hotel premises on 12-4-1990. This is also an admitted fact that in view of fire the defendant vacated the suit premises except leaving some furniture. Then defendant wrote a letter dated 21-7-1990 (at page 115 of Exh. A) stating that the defendant had temporarily shifted from the suit premises and called upon the plaintiff to allow them to again occupy the suit premises. The plaintiff sent reply as per letter dated 25-7-1990, which is at page 120, stating that the defendant being a licensee having vacated the premises and the licence period has already expired, it has no right to ask for possession of this premises. Therefore in this letter the plaintiff has told the defendant that it has no right of re-entry since it is only a licence and the licence period has already expired. Now let us see what the defendant has to say in reply to that letter. The defendant’s reply is at page 125 which is dated 7th August, 1990. The only assertion is that the defendant-bank has not vacated the premises and the plaintiff had taken some action clandestinely and unlawfully. Even in this letter, there is no whisper that the defendant is a tenant and therefore has right to occupy the premises and the transaction is not one of licence as alleged in plaintiff’s letter which was under reply. That means even after plaintiff asserted that the defendant is a licensee, the license has expired and defendant has no right of re-entry, there is no denial of licence, much less assertion of lease, in this reply letter dated 7th August, 1990.

Then again plaintiff wrote a letter dated 14-8-1990, which is at page 128 of Exh. A, asserting that the transaction is licence and defendant has no right of re-entry.

Within two weeks after this letter, the previous Suit No. 2735/90 was filed by the plaintiff against the defendant for possession under section 6(1) of the Specific Relief Act on 29-8-1990. The Judgment of the previous suit is at Exh. E (date of filing of the suit is at internal page 5 of the Judgment).

We find that in 3-4 letters the plaintiff has asserted that it is a licence, that licence period has expired and the defendant has no right of re-entry. On receipt of the plaintiff’s last letter dated 14-8-1990 the defendant filed previous suit 15 days later on 29th August, 1990. If really the transaction was a lease and not a licence or real intention was to create a lease and defendant had protection under the Rent Control Act as now contended in the present suit, the defendant who filed the previous suit would have contended that it was in possession of premises and it has been dispossessed contrary to the provisions of Rent Control Act and therefore, wants to be put back in possession. That would have been most important thing with the defendant should have pleaded in the previous suit, if really the transaction was one of lease and not licence, particularly when the plaintiff has all along been asserting in 3-4 letters mentioned above that the bank has no right since licence period has come to an end. Now let us see on what ground the defendant filed the previous suit. Only relevant extract of the plaint is produced in this case, and is marked as Exh. G by consent. In para 2 to the plaint in the previous suit, in Exh. G, the bank who was the plaintiff in that suit has pleaded that the hotel agreed to grant to the bank an area of 15000 sq. ft. to enable the bank to carry on their business activities. It is stated that the period of licence was 12 years and licence fee was Rs. 60,000/- per month in respect of the licence premises. In para 4 there is reference to number of clauses of the licence deed. Even the licence deed was produced in that case as Exh. A to the plaint. It is further mentioned in para 6 that though the leave and licence agreement expires on 26th December, 1986, the hotel is unwilling to renew the licence. The hotel is not encashing the licence fee sent by the plaintiff through cheques.

It is therefore seen that in the previous suit filed by the bank for possession of the suit premises there is reference to the licence deed, terms of the licence, payment of licence fees, but there is no whisper about any lease or rights of tenancy. This is particularly so when the plaintiff has already in 3-4 letters prior to that suit asserted that the bank was only a licensee and it has no rights after the expiry of the licence period. In stead of that, the bank comes to the Court and makes a pleading that it is in possession of the premises as license and since it was forcibly dispossessed it wants back the premises. We must bear in mind that the defendant had the assistance of senior lawyers in filing the suit and in arguing the previous suit, one of the senior advocates of the Bombay Bar addressed argument on behalf of the bank in the previous suit. The stand taken was about the terms of the licence agreement etc. and there was no whisper about any lease transaction.

Now let us see what this Court observed in the previous suit. The learned Single Judge, who heard the parties and gave Judgment (Exh. E) has mentioned in more than one place that the common ground was that it was a transaction of licence. In other words, at page 7 of Exh. E, the learned Judge observed that question is whether the licence stands terminated or not? The learned Judge observed as follows:

“In the present case, the plaintiff are claiming possession under a licence.”

Then the learned Judge observed that plaintiff was in settled position under a licence agreement and hence, cannot be dispossessed except in due course of law. That is why that suit came to be decreed. Again at internal page 25 the learned Judge observed as follows:

“In the present case, it is admitted that the agreement dated 27th December, 1974 is a licence agreement.”

After the suit was decreed the hotel carried the matter in appeal before the Supreme Court in Civil Appeal No. 3697/91, which is . Even in Supreme Court both the parties were represented by senior lawyers. The Bench consisted of Hon’ble N.M. Kasliwal and K. Ramaswamy, JJ. The two Hon’ble Judges disagreed on the question whether plaintiff has to prove juridical possession as on the date of the suit in a summary suit filed under section 6(1) of the Specific Relief Act. Hence, they directed that matter be placed before another Bench for resolving controversy. We have already seen that subsequently the Supreme Court dismissed the appeal allowing the parties to get their rights determined in the present suit, namely, this suit, which had been filed by that time.

What I am no trying to point out is that even before the Apex Court the contention was about the right of the licensee to be in occupation after the expiry of the licence period. I will refer to some of the observations of Hon’ble Justice N.M. Kasliwal to high light this point. At page 36 of the above reported Judgment Hon’ble Lordship Kasliwal mentioned that “admittedly the bank is a licensee and the period of such licence came to an end on December, 31st of 1986.” Again in para 8, page 36, it is observed “that it is an admitted case that plaintiff-bank was in possession as a licensee.”

It may also be noted that the bank filed one more suit against the hotel for damages caused to its furniture, records etc. in Suit No. 1883 of 1993 in this Court and the suit is still pending. Even in that suit, which is filed in 1993, during the pendency of the present suit, the plea taken is that the plaintiff-bank is in possession under agreement dated 26th December, 1986. Exh. O is an extract of the plaint. Even in that suit no plea of tenancy or lease was raised in the plaint.

29. The learned Counsel for the plaintiff contended that in view of the bank’s admission in the previous two suits that it is in possession as a licensee, it can not turn round and say in the present suit that it was in possession as a tenant and the document was a lease. Both the Counsel referred to some authorities on this point. It was pointed out in , Basant Singh v. Janki Singh and others, that

admission by a party in a previous plaint, can be used in subsequent suit though other party can show that the admission is not true.

In , Narayan Bhagwantrao Gosavi Balajiwale v. Gopal Vinayak Gosavi and others, where it is observed at para 11 page 105 as follows:

“An admission is the best evidence that an opposing party can rely upon and though not conclusive, is decisive of the matter, unless successfully withdrawn or proved erroneous.”

30. The learned Counsel for the defendant invited my attention to , Nagubai Ammal and others v. B. Shama Rao and others, where it is observed that admission is not conclusive. It is clearly stated that what a party himself admits to be true may reasonably presumed to be true.

He also placed reliance on , Kalidas Dhanjibhai v. The State of Bombay, where the previous admission was about the legal effect of facts and therefore it was held it does not amount to an admission or estoppel.

31. In my view the question whether the defendant was a licensee or a tenant is a question of fact. The question whether the intention of the party was to create a lease or a licence is a question of fact. If defendant himself pleads in his previous suit that the transaction was one of the leave and licence and that the period is expired, it has been renewed etc., the defendant cannot now turn round and say that the transaction was one of lease. The defendant never pleaded in the previous two suits, that on interpretation of the document it purports to be a licence. The defendant pleaded in the previous suit that it is in possession as a licensee. This is an admission which can be used against the defendant. The defendant can get over this admission if it can show that the admission was made due to mistake etc. No circumstances are placed before me to show as to why such an admission was made and how it can be got over in the present suit. As already stated the defendant was assisted by the Senior Advocates in filing the plaint and in arguing the previous suit and getting a decree, in the absence of any circumstance to the contrary, the admission is binding on the defendant, which means the defendant took the suit premises as a licensee.

32. The learned Counsel for the defendant laid very much stress on the point that defendant was in exclusive possession of the suit premises and therefore, it was a transaction of lease and not a licence. I have already pointed out that though the defendant was given possession of the suit premises, for running its banking office, still under the deed of licence the plaintiff has reserved the right of inspection. The plaintiff has right to send its workmen and engineers for inspection and repair of the lift machine and air-condition machine located in the suit premises. Then the important clause is that “no interest is created in favour of the licensee” under the deed. These things coupled with the admission in the previous plaint is sufficient to come to the conclusion that what was given to the defendant was a possessory licence and not a lease.

33. In my view possessory licence is recognised by law atleast in Bombay city. Whatever may be the position under law of licence under section 52 of the Easement Act, as far as Bombay is concerned, the ‘licence’ has a distinct meaning.

Section 41 of the Presidency Small Cause Courts Act, 1882 provides that a suit between the licensor and licensee or a landlord and tenant, relating to recovery of possession of any immoveable property, shall be filed in the Court of Small Causes. It means law recognises a suit for possession between the licensor and the licensee. In other words even if the licensee is in possession, a suit can be filed for recovery of possession.

Similarly in the Bombay Rent (Hotel and Lodging, Houses) Control Act, 1947, there are some provisions which show that a licensee can be in actual possession of the property. In other words actual physical possession or exclusive possession of the property is not inconsistent with the theory of licence.

In the definition of licence in section 5(iv)(A) it is stated that a person in occupation of the premises under a subsisting agreement of licence is a licensee, then there is section 15(A) of the Act, which provides a licensee in occupation of a premises as on 1st February, 1973 shall be deemed to be a tenant under the Act. This also recognises a possessory licence and if the licensee was in possession on a particular day, he will become a regular tenant of the landlord.

Then we find that as far as license regarding residential premises is concerned, a special forum is created for eviction them. Section 13-A(2) provides that a landlord can recover possession of a residential premises given to a licensee by filing an application before the Competent Authority after the expiry of the licence period. The words used in that section are “delivery of possession”.

Therefore, we find that a possessory licence is recognised by law in Bombay. Hence the argument that if there is exclusive possession, it rules out a theory of licence contended by the learned Counsel for the defendant cannot be accepted. I have already pointed out that in some of the decisions of the Apex Court it is mentioned that though possession is an important ingredient it is not conclusive to decide whether the transaction was a licence or lease.

34. Further more, I may point out that in section 13-A(2) of the Rent Act, in a proceeding filed by the landlord for the eviction of a licensee in respect of residential premises, it is clearly provided that the contents of the licence agreement shall be conclusive evidence of the facts stated therein. That means in a such eviction proceeding the licensee cannot plead that the transaction was not a licence, but it was a case of lease etc. By a special rule of evidence the law has declared that the licence agreement is conclusive of the terms of licence. This matter has been judicially considered and decided by me in a recent decision , Amarjit Singh v.

R.N. Gupta, where I have held that in such a proceeding the contents of the licence deed is conclusive and no other evidence can be let me to prove the nature of the transaction. My view has been subsequently followed by another learned Single Judge of this Court in another case , Swami Attah v. Mrs. Thirty Poonawalla.

It may be that those two decisions referred to a case of eviction of a licensee before the Competent Authority in respect of the residential premises. What I am trying to point out is that a possessory licence is recognised in Bombay by both the two Acts mentioned above. Hence the fact that defendant was given possession of the suit premises is not inconsistent with a theory of licence.

35. The argument of the learned Counsel for the defendant about the plaintiff’s right regarding United Bank or regarding other shop owners is not relevant for our present purpose. We are interpreting the written document between the parties. The defendant cannot get over its unequivocal admission in the previous suit that it was in possession as a licensee and never pleaded that it was in possession as a tenant. The argument that in the licence deed there is a clause that the licensee should not transfer or assign his right to others and this is not consistent with the theory of licence, has also no merit.

Such an argument was pressed and has been rejected by the Apex Court in two of the cases discussed by me above in the earlier part of the judgment which are and .

After giving my anxious consideration to the evidence on record, the law bearing on the point and the arguments addressed before me, I have no hesitation to hold that the transaction between the parties created under the document dated 27-12-1974 was one of licence and not a case of lease. Issue No. 2 is therefore answered in the affirmative and Issue No. 3 is answered in the negative.

Issue No. 2-A

36. The learned Counsel for the defendant contended that though there is no formal renewal of the suit agreement, the agreement must be deemed to have been renewed, since, the defendant has exercised option to renew the agreement.

If the renewal is at the sole option of the defendant, then the licence stands renewed, when once the defendant expressed intention to renew the same. But in my view the suit agreement does not provides for any unilateral renewal of the licence at the sole option of the defendant.

The suit agreement or licence deed is at page 45 of Exh. A. It is dated 27th December, 1974, the period of licence is shown as 12 years, hence the licence comes to an end on 26th December, 1986. But there is a provision for renewing the lease which is found in Clause 2 of the conditions, which is at page 47 and page 48 of Exh. A. Which reads as follows :—

“At the end of the said period of twelve years, the company shall, on the application of the licensee in writing, renew the licence for another period of twelve years if the company so deems fit on the terms and conditions to be mutually agreed upon.”

A mere perusal of the above clause indicates that by the end of the expiry of 12 years on the application of the defendant, the plaintiff may renew a licence, for another term. “If the” plaintiff so deems fit”. Then it is subject to further condition of the terms and conditions to be mutually agreed upon.

37. In this case, admittedly the plaintiff has rejected the request of the defendant for renewal of the licence.

At page 76 of Exh. A we have the defendant’s letter dated 8th July, 1986, requesting the plaintiff to renew the period for 12 years more. The plaintiff’s reply may be found at page 78 of Exh. A which is a letter of the plaintiff dated 9th August, 1986, in which it is stated that request for renewal of the licence cannot be granted.

It is interesting to note that even prior to the defendant applying for renewal as per letter dated 8-7-1986 the plaintiff has made its position very clear that it has no intention of continuing the licence beyond the date of expiry. The plaintiff’s first letter in this behalf is at page 70 of Exh. A, which is dated 17-9-1984, which is written about 2 years prior to the date of the expiry. In this letter the plaintiff informed the defendant to vacate the premises by the end of the licence period. It is also stated that the plaintiff requires the premises for its own use. It is also mentioned that such an advance notice (of more than two years) is given to the defendant, so that it can make alternative arrangement to shift its office from the suit premises to some other building.

Then plaintiff wrote one more letter dated 18-4-1986, which is at page 74 of Exh. A where again the defendant has been called upon to vacate the premises by the date of expiry of the licence period as demanded in the previous letter. This letter is written about 8 months prior to the date of the expiry of the licence period. Then, we come to the defendant’s letter dated 8-7-1986 asking for renewal which has already referred to.

Therefore, we find that right from 1984 itself the plaintiff has made it clear that it wants the suit premises on the date of expiry of the licence period. Then, when a specific request was made by the defendant for renewal of the licence, the plaintiff rejected the same, which I have pointed out above. As already stated, as per the clause in the agreement, a licence can be renewed on the request of the defendant, but at the discretion of the plaintiff. Here the plaintiff has made it’s position very clear that it has no intention of renewing the licence and there is specific rejection of defendant’s application for renewal of the licence.

38. The learned Counsel for the defendant, contended that even after the expiry of 12 years, the defendant has been allowed to continue for 3-4 years and defendant has gone sending the licence fee through pay orders to the plaintiff. As far as, sending the licence fee through pay orders is concerned, it is an admitted position that the plaintiff has not encashed them and this is to the knowledge of the defendant.

As far as allowing the defendant to continue in the premises is concerned, it is not with the consent of the plaintiff. As already seen that even two years prior to the date of expiry, the plaintiff has demanded possession on the expiry of 12 years. This again followed by another letter in 1986. I have already referred to both the letters above. It is in evidence that the plaintiff has been continuously demanding the defendant and had number of meetings with the bank officials and also the Chairman and went on pressing them to vacate the premises. The plaintiff even went to the extent of contacting one of the joint secretaries in the Finance Department of the Central Government to prevail upon the defendant to vacate the premises. We can get all these things from an internal note put up by the defendant’s officials as a note to the Board meeting dated 5-7-1988, which is at page 29 of Exh. C. We can get this idea from some other letters of correspondence between the parties, which are on record.

When the plaintiff has been insisting the defendant to vacate the suit premises, both before and after the date of expiry of the period, the defendant’s continuation of the premises in spite of such demands will not give them any legal right. At any rate there is nothing to show that the licence has been renewed by contract.

39. Hence, considering the entire evidence on record, I have no hesitation to hold that the licence has come to an end and there is no merit in the contention of the defendant that the licence has been renewed or must be deemed to have been renewed as alleged in the written statement. Hence, Issued No. 2-A is answered in negative.

Issue No. 4

40. In view of my finding that defendant has not proved any tenancy right in the suit premises and it is case of licence and the licence period has expired and there is no renewal of the licence, the defendant cannot have any semblance of legal right to be in possession of the suit premises. The only two rights claimed are either tenancy or licence. Tenancy is not proved, the licence has come to an end and the theory of renewal of licence has no legs to stand. Defendant’s possession after expiry of licence period was like that of a trespasser or of a person with no legal rights on the property. Hence, Issue No. 4 is answered accordingly.

Issue Nos. 5 & 6

41. The plaintiff company is admittedly the owner of the suit premises. The plaintiff company is admittedly in possession of the suit property. Hence, the plaintiff wants to retain its possession notwithstanding the decree obtained by the defendant for possession in Suit No 2735/90. The question is whether the plaintiff is entitled to continue in possession and whether the execution of the decree obtained by the defendant, should be restrained by an order of injunction.

The learned Counsel for the defendant contended that if such an injunction is granted in a suit filed under section 6(4) of the Specific Relief Act, then section 6(1) of the Act become nugatory. I have already considered this argument and rejected it while discussing Issues No. 1(A). But while discussing Issue No. 1-A, I have observed that though the suit is maintainable in the present form, the question whether the plaintiff is entitled to relief of injunction whether temporary or permanent, will be decided at a later stage. Now in the facts and circumstances of the case, whether the plaintiff has made out a case for grant of injunction? The learned Counsel for the defendant contended that a party who had taken law in his own hands and who has taken forcible possession should not be granted equitable relief of injunction. There is sufficient force in the argument of the learned Counsel for the defendant. If it is found that the plaintiff has taken law into its own hands and has taken wrongful possession, then the plaintiff will not be entitled to relief of injunction though the suit for injunction is maintainable. We have to make a distinction between the maintainability of the suit and the question whether the plaintiff is entitled to a particular relief. But after going through the materials on record, I find that this is not a case where the plaintiff has taken forcible or illegal possession by taking law in its own hands as now contended by the learned Counsel for the defendant. I will presently point out that this is a case where the defendant itself voluntarily vacated the suit premises after fire broke out to enable the plaintiff to carry out the repairs.

It is true that in the previous suit, the present plaintiff who was defendant stated that with prejudice he is admitting that plaintiff was dispossessed in that suit as mentioned in the plaint and this concession was “only for the purpose of the said suit”. It is a conditional admission for the limited purpose of that suit only. Hence that concession will not ensure to the benefit of the defendant in the present suit.

42. As already seen fire broke out in the plaintiff-hotel including the suit premises on 12-4-1990.

Exh. N is a copy of notification in the letter-head to the defendant bank, which reads as follows :—

“Due to fire that broke out in Hotel Oberoi Tower, Bombay on 12th April, 1990, our International Division will not be able to function from that premises till further notice….. We have shifted out various departments as follows…..”

The notice has been issued by the General Manager of the defendant-bank.

It is therefore clear that the bank voluntarily shifted from the suit premises to some other building due to damage to the building as a result of fire.

In Exh. A at page 109, there is a letter of defendant-bank dated 15-6-1990 and the same latter is also marked as Exh. 1 on behalf of the defendant. That means both the parties are relying on the same letter dated 15-6-1990, written by the defendant-bank to the plaintiff. The subject mentioned as “giving possession of our premises on first floor, Oberoi Hotel.” The bank has requested the plaintiff to carry out the required repairs as early as possibly. For that effect the bank has already handed over duplicate set of keys to the plaintiff for carrying out necessary repairs. Then the prayer is as follows:

“You have also indicated to us that you may be able to hand over our premises within 3-4 months time…..”

The contents of this letter make it very clear that defendant vacated the premises due to fire, the defendant handed over the duplicate keys to the plaintiff to effect necessary repairs and defendant requested the plaintiff to hand over possession of the suit premises. I am unable to see where there is foundation for the argument that the plaintiff has taken forcible possession or illegal possession or plaintiff has taken law into his own hands and therefore, the plaintiff cannot be continued with that illegal possession. It is a simple case of defendant giving possession of the premises to the plaintiff to carry out the repairs voluntarily.

In Exh. A at page 115, there is a letter dated 21st July, 1990 written by the defendant bank to the plaintiff. The relevant sentence is as follows:

“Please note that we have shifted out operations on temporary basis to various premises in order to enable you to carry out the repairs words.”

Here also the position is very clear that it is a case of defendant voluntarily vacating the premises.

It may be the plaintiff’s case is that in view of the fire, the defendant vacated the premises and went away once and for all. If we accept the defence case as mentioned in these letters, it is not a case of the plaintiff taking forcible or wrongful possession of the premises.

Rightly or wrongly, voluntarily the defendant gave possession of the premises to the plaintiff and may be for effecting repairs and with a hope to take back the premises after the repairs are carried out. It may be that after effecting the repairs, the plaintiff did not allow the defendant to occupy the suit premises. But the question is whether the defendant had any such right to enter the premises in 1990. We have already seen that the licence came to an end by December, 1986. The defendant was continuing in the premises in spite of number of letters written by the plaintiff and in spite of repeated demands by the plaintiff calling upon the defendant to vacate the premises. In other words, the defendant has no legal rights to be in occupation of the premises in 1990 or any right to get back the possession of the premises in 1990. In these circumstances, the plaintiff says that there is no necessity of re-delivering the premises, since the period has already expired and the defendant’s renewal offer has been rejected by the plaintiff. Hence, in my view, the defendant had no legal right to ask for possession of the premises and even if the defendant gets back possession by virtue of previous decree, it has to immediately surrender possession to the plaintiff, since it has no right to be in occupation of the premises.

It is well settled that the decree passed under section 6(1) of the Specific Relief Act is not a permanent decree. It is in the form of temporary or conditional decree subject to the result of a title suit under section 6(4) of the said Act. Now the plaintiff has made out a case that it has a right to be in possession of the suit premises and that the defendant has no manner of right to be in possession of the suit premises. In such a case, it would be empty formality of directing the plaintiff to surrender possession in pursuance of the previous decree and then on very next day he can execute this decree and take possession. As already stated decree under section 6(1) of the Act is not a final decree, it does not conclude or decide the rights of the parties. It is a temporary and speedy remedy provided for limited purpose.

Probably the defendant could have executed that decree and taken possession of the suit premises. But, in the appeal, the Supreme Court, passed an order staying the execution of that decree till the disposal of the present suit. Hence, in the circumstances, the plaintiff cannot be found fault with for continuing in possession. The defendant has no defence to the present suit except the previous decree obtained under section 6(1) of the Act. As already pointed out, a decree under section 6(1) of the Act is always subject to the final decree to be passed in a title suit under section 6(4) of the Act. Since, we are now deciding the rights of the parties finally in a suit filed under section 6(4) of the Act, the decree obtained under section 6(1) of the Act becomes inoperative and unexecutable when the plaintiff’s title has been upheld in this suit and further it is held that the defendant has no legal right over the suit property. Hence, in my view, the plaintiff is entitled to continue in possession of the suit premises and further my finding is that the decree under section 6(1) of the Act has now become inoperative and has now become unexecutable in view of the present decree being passed under section 6(4) of the Act. Let me repeat that the decree under section 6(1) of the Act is always subject to the decree passed in a suit under section 6(4) of the Act. Even the Supreme Court has observed in the said appeal that there is no necessity to consider the appeal on merit, since present suit for determination of the rights of parties is pending before this Court and accordingly disposed of the appeal.

For the above reasons Issues No. 5 and 6 are answered in the affirmative.

Issue No. 7

43. In view of my finding on several issues, the plaintiff is admittedly in possession of the suit premises as an owner and defendant has failed to prove any legal right either tenancy or licence and hence, the plaintiff is entitled to a decree as prayed for.

The learned Counsel for the defendant contended that the plaintiff is not entitled to get the relief of injunction and its remedy is to surrender possession and then ask for delivery of possession.

When once the Court finds that the plaintiff is in lawful possession of the suit premises and that the defendant has no legal right over the suit property there is no legal impediment to grant a decree for injunction as prayed for by the plaintiff.

Even granting for a moment that in view of the previous decree, the plaintiff must surrender possession, then what follows ? For some time, I toyed with the idea of passing a decree declaring the right of parties and then directing the plaintiff to surrender possession in persuance of the previous decree and then, he can execute this decree and take possession according to law. It may be that the plaintiff has not asked the relief of possession, but is asking the relief of injunction. Order 7, Rule 7 of C.P.C. clearly provides that the Court can always give general or other relief, which may be just in the circumstances of the case.

I may mention here that in a case , Firm

Sriniwas Ram Kumar v. Mahabir Prasad and others, where the Supreme Court granted a relief which was never asked for in the plaint. The suit was filed claiming a decree for relief of specific performance while denying the agreement of sale the defendant had pleaded that it had taken a loan from the plaintiff. The Supreme Court observed that under Order 7, Rule 7 of C.P.C. the Court can grant a decree for recovery of the loan, which is admitted by the defendant, though there was no prayer in the plaint.

44. I therefore feel that in view of the enabling provision under Order 7, Rule 7 of C.P.C. the Court in a given case can grant reliefs to the parties, which are just and equitable and to avoid multiplicity of proceedings. I could therefore easily direct the plaintiff to surrender the possession to the defendant and then execute this decree and take back possession. That would solve and take care of legal objection raised by the learned Counsel for the defendant.

However, on second thoughts I find that in the circumstances of the case, there is no such necessity. I have already pointed out that the decree under section 6(1) of the Specific Relief Act is a conditional and temporary decree subject to the final result of a decree in a title suit filed under section 6(4) of the Act. As soon as a decree is passed under section 6(4) of the Act, the decree under section 6(1) becomes inoperative and unenforceable. I therefore feel that the suit can be decreed as per the plaint without having recourse to Order 7, Rule 7 of C.P.C. It is well settled that Court must do substantial justice between the parties and not justice on technical consideration. When we have found that the plaintiff is in possession as an owner and that the defendant has failed to prove tenancy or renewal of the licence, there is no difficulty to grant a decree for injunction and for these reasons I hold that the plaintiff is entitled to a decree as prayed for.

I must place on record my appreciation to the able arguments advanced by the Senior Advocate Mr. S.H. Doctor and his assistant Mr. S.U. Kamdar on behalf of the plaintiff, and Mr. Ketan Parikh for the defendant.

45. In the result, the suit is decreed with costs in terms or prayers Clauses (a), (b) and (c) in para 25 of the plaint.

suit for specific performance of an agreement to sell.

 

What is interlocutory orders.

“Clause 15 of the Letters Patent does not define the term ‘judgment’. The Letters Patent is a special law which carves out its own sphere and it would not be possible to project the definition of the word ‘judgment’ as defined in the Code of Civil Procedure. Letters Patent were drafted long before the Code of Civil Procedure of 1882 was enacted. The word ‘judgment’ used in the Letters Patent does not mean a ‘judgment’ as defined in the Code. At the same time it does not include every possible order-final, preliminary or interlocutory passed by a Judge of the High Court. [251 D-E] Mt. Shahzadi Begum v. Alak Nath & Ors. A.I.R. 1935 All

notice under section 80 and the like. An order of the trial Judge rejecting these objections adversely affects a valuable right of the defendant who, if his objections were held to be valid, is entitled to get the suit dismissed on preliminary grounds. Such an order, though it keeps the suit alive, decides an important aspect of the trial which affects a vital right of the defendant and must, therefore, be construed to be a judgment so as to be appealable to a larger bench. [254 F-H; 255 A-B] (3) Intermediary or Interlocutory judgment: Most of the interlocutory orders which contain the quality of finality are clearly specified in clause (a) to (w) of Order 43 Rule

The following considerations should prevail with the Court in deciding whether or not an order is a judgment: (1) The trial Judge being a senior court with vast experience of various branches of law occupying a very high status, should be trusted to pass discretionary or interlocutory orderswith due regard to the well settled principles of civil justice. Thus any discretion exercised or routine orders passed by the trial Judge in the course of the suit which may cause some inconvenience or, to some extent, prejudice one party or the other cannot be treated as a judgment.”

—————————————————————————————————————————————-

 

Supreme Court of India
Shah Babulal Khimji vs Jayaben D. Kania And Anr on 10 August, 1981
Equivalent citations: 1981 AIR 1786, 1982 SCR (1) 187
Author: B F Ali.
Bench: Fazalali, S Murtaza

PETITIONER:

SHAH BABULAL KHIMJI

Vs.

RESPONDENT:

JAYABEN D. KANIA AND ANR.

DATE OF JUDGMENT10/08/1981

BENCH:

FAZALALI, SYED MURTAZA

BENCH:

FAZALALI, SYED MURTAZA

VARADARAJAN, A. (J)

SEN, AMARENDRA NATH (J)

CITATION:

1981 AIR 1786 1982 SCR (1) 187

1981 SCC (4) 8 1981 SCALE (3)1169

CITATOR INFO :

RF 1986 SC1272 (10,108,109)

RF 1988 SC 915 (17)

RF 1990 SC 104 (8)

ACT:

Code of Civil Procedure, 1908-Section 104 Order 43 Rule 1-Scope of-Letters Patent-Clause 15-Right of Appeal under clause 15-If affected by section 104, Order 43 Rule 1.

HEADNOTE:

In a suit for specific performance of an agreement to sell filed on the original side of the Bombay High Court the plaintiff (appellant) prayed for certain interim reliefs. A single Judge of the High Court dismissed the application. A Division Bench of the High Court, on appeal by the plaintiff, held that the appeal was not maintainable on the ground that the impugned order of the single Judge was not a ‘judgment’ within the meaning of clause 15 of the Letters Patent of the High Court.

In appeal to this Court it was contended on behalf of the appellant that since the trial Judge is governed by the procedure prescribed by the Code of Civil Procedure, by virtue of the provisions of section 104 read with Order 43 Rule (1) the impugned order is appealable to a larger Bench; (2) assuming that the Letters Patent was a special law, section 104 read with Order 43 is in no way inconsistent with clause 15 of the Letters Patent; (3) even if section 104 read with Order 43 Rule 1 does not apply an order refusing to appoint a receiver or to grant injunction has the attributes of finality and, therefore, amounts to a judgment’ within the meaning of Letters Patent. Allowing the appeal

^

HELD:

(per Fazal Ali and A. Varadarajan, JJ.)

(Amarendra Nath Sen, J. concurring.)

Since the Order of the trial Judge was one refusing appointment of a receiver and grant of ad-interim injunction, it is a ‘judgment’ within the meaning of the Letters Patent both because order 43 rule 1 applies to internal appeals in the High Court, and such an order even on merits contains the quality of finality and would be a judgment within the meaning of clause 15 of Letters Patent. Hence an appeal is maintainable to the Division Bench. The Division Bench was in error in dismissing the appeal without deciding it on merits. [259 F-G]

188

There is no inconsistency between section 104 read with Order 43 Rule 1, C.P.C. and appeals under Letters Patent. There is nothing to show that Letters Patent in any way excludes or overrides the application of section 104 read with Order 43 Rule 1 or that these provisions do not apply to internal appeals within the High Court. [237 E-F] Code of Civil Procedure 1877, by sections 588 and 589, did not make any distinction between appeals to the High Court from the District Court and internal appeals to the High Court under Letters Patent. Notwithstanding the clear enunciation of law by the Privy Council that section 588 did not affect nor was it inconsistent with the provisions of Letters Patent and that, therefore, orders of a trial Judge which fall beyond section 588 could be appealable to a larger bench under the Letters Patent if its orders amounted to a ‘judgment’ within the meaning of clause 15 of the Letters Patent, there was a serious controversy among the High Courts on this question. Section 104 of the C.P.C., 1908 made it clear that appeals against orders mentioned in Order 43 Rule 1 were not in any way inconsistent with the Letters Patent but merely provide additional remedy by allowing appeals against miscellaneous orders passed by the trial Judge to a larger bench. [205 E-G]

In dealing with a suit the trial Judge has to follow the procedure prescribed by the Code. It is indisputable that any final judgment passed by the trial Judge amounts to a decree and under the provisions of the Letters Patent an appeal lies to a larger bench. Letters Patent itself does not define the term ‘judgment’ and has advisedly not used the word ‘decree’ in respect of a judgment given by the trial Judge. [206 B-D]

Section 5 of the Code empowers the State Government to apply the provisions of the Code where any enactment is silent as to its applicability. Section 5 makes clear that, excepting the Revenue Courts, all other Civil Courts would normally be governed by the provisions of the Code in the matter of procedure.[206H,207A]

Section 4 of the Code which provides that in the absence of any specific provision to the contrary the provisions of the Code do not limit or affect any special or local law, is not applicable in the instant case because even if the Letters Patent is deemed to be a special law within the meaning of this section the provisions of section 104 do not seek to limit or affect the provisions of the Letters Patent. [207 B-C]

By force of section 104 all appeals, as indicated in the various clauses of Order 43 Rule 1, would lie to the appellate court. In short a combined reading of the various provisions of the Code leads to the conclusion that section 104 read with Order 43 Rule 1 clearly applies to proceedings before a trial Judge of the High Court. [207 H; 209 B] In the instant case, therefore, section 104 read with Order 43 Rule 1 does not in any way abridge or interfere with or curb the powers conferred on the trial Judge by clause 15 of Letters Patent. They only give an additional remedy by way of appeal from the orders of the trial Judge to a larger bench. That being so there is no force in the respondent’s argument that these provisions do not apply to internal appeals in the High Court. [209 D-E] 189

Hurrish Chunder Chowdry v. Kali Sundari Debia, 10 I.A. 4, Mt. Sabitri Thakurain v. Savi & Anr. A.I.R. 1921 P.C. 80, Union of India v. Mohindra Supply Co., [1962] 3 S.C.R. 497 and Shankarlal Aggarwal & Ors. v. Shankarlal Poddar & Ors. [1964] 1 S.C.R. 71, referred to.

A number of enactments, as for example, section 202 of the Companies Act, 1956 and section 39 of the Arbitration Act widen, rather than limit, the original jurisdiction of the High Court by conferring additional or supplementary remedy by way of appeal to a Division Bench from the judgment of a single Judge. On a parity of reasoning, therefore, section 104 read with Order 43 Rule 1 expressly authorises and creates a forum for appeal against orders falling under the various clauses of Order 43 Rule 1 to a larger bench of the High Court without disturbing, interfering with or over-riding the Letters Patent jurisdiction.

[211 B-C]

Dayabhai Jiwandas & Ors. v. A.M.M. Murugappa Chettiar, I.L.R. 13 Rangoon 457, Sonbai v. Ahmedbhai Habibhai [1872] 9 Bom. HC Reports. 398, Rajagopal & Ors. (in Re. LPA 8 of 1886) ILR 9 Mad. 447, Ruldu Singh v. Sanwal Singh [1922] ILR 3 Lahore 188, Lea Badin v. Upendra Mohan Roy Chaudhary & Ors. [1934-35] 39 CWN 155, Mathura Sundari Dassi v. Haran Chandra Shaha & Ors. A.I.R. 1916 Cal. 361 Abdul Samad & Ors. v. The State of J & K. A.I.R. 1969 J&K 52, and Kumar Gangadhar Bagla v. Kanti Chunder Mukerjee & Anr., 40 CWN 1264, approved.

Ram Sarup v. Kaniz Ummehani, ILR 1937 All. 386 over- ruled.

Assuming that Order 43 Rule 1 does not apply to Letters Patent appeals the principles governing these provisions would apply by process of analogy. The provisions of Order 43 Rule 1 possess the traits, trappings and qualities and characteristics of a final order. Although the word ‘judgment’ has not been defined in the Letters Patent but whatever test may be applied the order passed by the trial Judge appealed against must have the traits and trappings of finality. The appealable orders indicated in the various clauses of Order 43 Rule 1 are matters of moment deciding valuable rights of the parties and are in the nature of final orders so as to fall within the definition of ‘judgment’. [237G; 225 E-F]

Radhey Shyam v. Shyam Behari Singh [1971] 1 S.C.R. 783 referred to.

Pandy Walad Dagadu Mahar & Anr. v. Jamnadas Chotumal Marwadi, A.I.R. 1923 Bom. 218; Vaman Ravi Kulkarni v. Nagesh Vishnu Joshi & Ors, A.I.R. 1940 Bom. 216; Vishnu Pratap & Ors. v. Smt. Revati Devi & Ors. A.I.R. 1953 All. 647; Madhukar Trimbaklal v. Shri Sati Godawari Upasani Maharaj of Sakori & Ors. A.I.R. 1940 Nagpur 39; Ratanlal Jankidas Agarwal v. Gajadhar & Ors.; A.I.R. 1949 Nagpur 188; Beads Factory & Anr. v. Shri Dhar & Ors. A.I.R. 1960 All. 692; J. K. Chemicals Ltd. v. Kreba & Co.; A.I.R. 1967 Bom. 56, overruled.

Having regard to the nature of the orders contemplated in the various clauses of Order 43 Rule 1 which purport to decide valuable rights of the parties in the ancillary proceedings even though the suit is kept alive these orders possess the attributes or characteristics of finality so as to be judgments within the meaning of clause 15 of the Letters Patent. They are therefore, appealable to a larger 190

bench. The concept of the Letters Patent governing only the internal appeals in the High Courts and the Code of Civil Procedure having no application to such appeals is based on a serious misconception of the legal position. [237H-238A-B] The question to be decided in this case which is a vexed and controversial one is as to what is the real concept and purport of the word ‘judgment’ used in the Letters Patent. The meaning of the word ‘judgment’ has been the subject matter of conflicting decisions of the various High Courts raging for almost a century and over which despite the length of time no unanimity had been reached and it is high time that this controversy should be settled once and for all as far as possible. [238 E-F] Out of the numerous authorities cited three leading judgments have spelt out certain tests for determining as to when an order passed by a trial Judge can be said to be a ‘judgment’ within the meaning of clause 15 of the Letters Patent and we are inclined to agree generally with the tests laid down in these cases though some of the tests laid down are far too wide and may not be correct. [238 G-H] While the view taken in the Justices of the Peace for Calcutta v. The Oriental Gas Company (VIII Bengal L.R. 433) is much too strict, the one taken in T. V. Tuljaram Row v. M.K.R.V. Alagappa Chettiar (ILR 35 Madras 1) is much too wide. The correct test seems to lie somewhere in between the tests laid down in these cases. Similarly the full Bench decision in Manohar Damodar Bhoot v. Baliram Ganpat Bhoot (AIR 1952 Nagpur 357) pithily described the essential requisites and the exact meaning of the word ‘judgment’ as used in the Letters Patent. The pointed observations made in this case try to synthesize the conflicting views taken by the Calcutta and Madras High Courts. They represent the true scope and import of the word ‘judgment’ as used in the Letters Patent.

[The Court reviewed the entire case law on the subject laying down various tests to determine what a judgment is.]

The test for determining as to when an order passed by a trial Judge can be said to be a ‘judgment’ within the meaning of the Letters Patent are:

(1) Where an order, which is the foundation of the jurisdiction of the Court or one which goes to the root of the action, is passed against a particular party, it amounts to a judgment. [248 B-C]

Asrumati Debi v. Kumar Rupendra Deb Raikot [1953] SCR 1159

(2) An order dismissing an application for review would be appealable under the Letters Patent being a judgment, though it is not made appealable under Order 43 rule 1. [249 B]

State of Uttar Pradesh v. Dr. Vijay Anand Maharaj [1963] 1 SCR 1.

(3) The Companies Act, 1956 which confers original jurisdiction on the trial Judge expressly makes an order passed by the trial Judge under section 202 appealable and, therefore, any order passed under that section would be appealable under the Companies Act and is, therefore, a judgment. [249 C-D]

191

Shankarlal Aggarwal v. Shankerlal Poddar [1964] 1 SCR 717

(4) Whenever a trial Judge decides a controversy which effects valuable rights of one of the parties it is a judgment within the meaning of the Letters Patent. [249 H] Radhey Shyam v. Shyam Behari Singh [1971] 1 SCR 783. (5) Where an order passed by the trial Judge allowing amendment of the plaint, takes away from the defendant the defence of immunity from any liability by reason of limitation, it is a judgment within the meaning of clause 15 of the Letters Patent. [250 A-B]

Shanti Kumar R. Canji v. The Home Insurance Co. of New York [1975] 1 SCR 550.

(6) Clause 15 of the Letters Patent does not define the term ‘judgment’. The Letters Patent is a special law which carves out its own sphere and it would not be possible to project the definition of the word ‘judgment’ as defined in the Code of Civil Procedure. Letters Patent were drafted long before the Code of Civil Procedure of 1882 was enacted. The word ‘judgment’ used in the Letters Patent does not mean a ‘judgment’ as defined in the Code. At the same time it does not include every possible order-final, preliminary or interlocutory passed by a Judge of the High Court. [251 D-E] Mt. Shahzadi Begum v. Alak Nath & Ors. A.I.R. 1935 All

628.

Under the Code of Civil Procedure a judgment consists of reasons and grounds for a decree passed by a Court. As a judgment constitutes the reasons for the decree, it follows as a matter of course that the judgment must be a formal adjudication which conclusively determines the rights of the parties with regard to all or any of the matters in controversy. The concept of a judgment as defined in the Code seems to be rather narrow and the limitations engrafted by section 2(2) cannot be physically imported into the definition of the word ‘judgment’ as used in clause 15 of the Letters Patent because the Letters Patent has advisedly not used the terms ‘order’ or ‘decree’ anywhere. The intention of the givers of the Letters Patent was that the word ‘judgment’ should receive a much wider and more liberal interpretation than the word ‘judgment’ used in the Code of Civil Procedure. At the same time, it cannot be said that any order passed by a trial Judge would amount to a judgment; otherwise there will be no end to the number of orders which would be appealable under the Letters Patent. The word ‘judgment’ has a concept of finality in a broader and not a narrower sense. [2 52 G-H; 253 A-C] A judgment can be of three kinds:

(1) A final judgment: A judgment, which decides all the questions or issues in controversy so far as the trial Judge is concerned and leaves nothing else to be decided is a final judgment. This would mean that by virtue of the judgment, the suit or action brought by the plaintiff is dismissed or decreed in part or in full. Such an order passed by the trial Judge is a judgment within the 192

meaning of the Letters Patent and amounts to a decree so that an appeal would lie from such a judgment to a Division Bench. [254 D-E]

(2) A preliminary judgment: A preliminary judgment may be of two forms: (i) where the trial Judge by an order dismisses the suit without going into the merits of the suit but only on a preliminary objection raised by the defendant or the party opposing on the ground that the suit is not maintainable. Since the suit is finally decided one way or the other, the order passed by the trial judge would be a ‘judgment’ finally deciding the cause so far as the trial Judge is concerned and, therefore, appealable to a larger bench; (ii) where the trial Judge passes an order after hearing the preliminary objections raised by the defendant relating to the maintainability of the suit as for example, bar of jurisdiction, res judicata, a manifest defect in the suit, absence of notice under section 80 and the like. An order of the trial Judge rejecting these objections adversely affects a valuable right of the defendant who, if his objections were held to be valid, is entitled to get the suit dismissed on preliminary grounds. Such an order, though it keeps the suit alive, decides an important aspect of the trial which affects a vital right of the defendant and must, therefore, be construed to be a judgment so as to be appealable to a larger bench. [254 F-H; 255 A-B] (3) Intermediary or Interlocutory judgment: Most of the interlocutory orders which contain the quality of finality are clearly specified in clause (a) to (w) of Order 43 Rule

1. They are judgments within the meaning of the Letters Patent and, therefore, appealable. There may also be interlocutory orders not covered by Order 43 Rule 1 but possessing the characteristics and trappings of finality because they adversely affect a valuable right of the party or decide an important aspect of the trial in an ancillary proceeding. Before such an order can be a judgment the adverse effect on the party concerned must be direct and immediate rather than indirect or remote. Thus when an order vitally affects a valuable right of the defendant it will be a judgment within the meaning of Letters Patent so as to be appealable to a larger bench. [255 C-E; 256 A] Every interlocutory order cannot be regarded as a judgment but only those orders would be judgments which decide matters of moment or affect vital and valuable rights of the parties and which work serious injustice to the party concerned. [256 H-257 A]

The following considerations should prevail with the Court in deciding whether or not an order is a judgment: (1) The trial Judge being a senior court with vast experience of various branches of law occupying a very high status, should be trusted to pass discretionary or interlocutory orders with due regard to the well settled principles of civil justice. Thus any discretion exercised or routine orders passed by the trial Judge in the course of the suit which may cause some inconvenience or, to some extent, prejudice one party or the other cannot be treated as a judgment.[258D-E]

(2) An interlocutory order, in order to be a judgment, must contain the traits and trappings of finality either when the order decides the question in controversy in ancillary proceeding or in the suit itself or in a part of the proceedings. [258 G]

193

It is not the form of adjudication which has to be seen but its actual effects on the suit or proceedings. [243 H] If irrespective of the form of the suit or proceeding, the order impugned puts an end to the suit or proceeding it doubtless amounts to a judgment. [244A]

If the effect of the order, if not complied with, is to terminate the proceedings, the said order would amount to a judgment. [244 B]

An order in an independent proceeding which is ancillary to the suit, (not being a step towards judgment) but is designed to render the judgment effectively can also be termed as judgment within the meaning of the Letters Patent. [244C]

An order may be a judgment even if it does not affect the merits of the suit or proceedings or does not determine any rights in question raised in the suit or proceedings. [244 D-E]

An adjudication based on a refusal to exercise discretion, the effect of which is to dispose of the suit, so far as that particular adjudication is concerned, would amount to a judgment within the meaning of the Letters Patent. [244 E-F]

Some illustrations of interlocutory orders which may be treated as judgments may be stated thus:

(1) An order granting leave to amend the plaint by introducing a new cause of action which completely alters the nature of the suit and takes away a vested right of limitation or any other valuable right accrued to the defendant.

[258 B-C]

(2) An order rejecting the plaint. [258 C] (3) An order refusing leave to defend the suit in an action under Order 37, Code of Civil Procedure. [258 C] (4) An order rescinding leave to the trial Judge granted by him under clause 12 of the Letters Patent. [258 D]

(5) An order deciding a preliminary objection to the maintainability of the suit on the ground of limitation, absence of notice under section 80, bar against competency of the suit against the defendant even though the suit is kept alive. [258 D-E]

(6) An order rejecting an application for a judgment on admission under Order 12 Rule 6. [258 E-F] (7) An order refusing to add necessary parties in a suit under section 92 of the Code of Civil Procedure. [258 F]

(8) An order varying or amending a decree. [258 F-G] (9) An order refusing leave to sue in forma pauperis. [258 F-G]

(10) An order granting review. [258 F-G]

194

(11) An order allowing withdrawal of the suit with liberty to file a fresh one. [258 G-H]

(12) An order holding that the defendants are not agriculturists within the meaning of the special law. [258 G-H]

(13) An order staying or refusing to stay a suit under section 10 of the Code of Civil Procedure. [258 H] (14) An order granting or refusing to stay execution of the decree. [259A]

(15) An order deciding payment of court fee against the plaintiff. [259 B]

(per Amarendra Nath Sen J concurring)

On a plain reading and proper construction of the various provisions of the Code of Civil Procedure, section 104 of the Code applies to the original side of the High Court of Bombay and the impugned order of the single Judge is appealable to a Division Bench under this section read with Order 43 thereof.

[279 H; 280 A]

The right of appeal under clause 15 of the Letters Patent is in no way curtailed or affected by section 104. By virtue of the provisions of section 104(1) a litigant enjoys the right of preferring an appeal in respect of various orders mentioned therein, even though such orders may or may not be appealable under clause 15 of the Letters Patent as a judgment and the right of appeal under clause 15 remains clearly unimpaired. [275 E-G]

The argument of the respondent, based mainly on the provisions of sections 3 and 4 of the Code of Civil Procedure that even if various other provisions of the Code apply to the Bombay High Court, including its original side, the provisions of section 104 read with Order 43 could not apply to the original side of a Chartered High Court because the jurisdiction conferred by clause 15 of the Letters Patent is a special jurisdiction is without force. [267 B-C] That by virtue of section 1 (which provides for territorial extent of the operation of the Code) the Civil Procedure Code applies to the State of Maharashtra cannot be disputed. [268 E-F]

Section 3 which deals with subordination of Courts to the High Court has no bearing on the point in issue and does not create any bar to the competence and maintainability of an appeal from an order passed by a single Judge on the original side if the order is otherwise appealable. While dealing with any matter on the original side of the High Court a single Judge is in no way subordinate to the High Court. Nor again, could there be a question of his being a subordinate to the Division Bench which hears an appeal from his judgment. If any order passed by him on the original side is a ‘judgment’ within the meaning of clause 15 of the Letters Patent an appeal lies to a Division Bench. [272 E-G] Similarly there is no force in the argument that since section 104 and Order 43 of the Code affect the special jurisdiction conferred on the High Court under 195

clause 15 of Letters Patent these provisions are not applicable to the present case. [273 C-D] Section 4 of the Code cannot be said to be in conflict with the provisions of clause 15; nor can it be said that it limits or otherwise affects the power and jurisdiction of the High Court under clause 15. [274 A-B] Section 4 provides that nothing in the Code shall be deemed to limit or otherwise affect any special or local law in force or any special jurisdiction conferred by or under any law for the time being in force. Clause 15 confers on the litigant a right to prefer an appeal from the court of original jurisdiction to the High Court in its appellate jurisdiction. It confers a right of appeal from a judgment of any Judge on the original side to the High Court. Though this clause is a special provision it cannot be said that it is intended to lay down that no appeal would lie from an order of a single Judge on the original side even if specific provision is made in any statute making the order appealable. By virtue of this provision any order considered to be a judgment would be appealable. If a statute confers on the litigant right of appeal, it cannot be said that such provision would affect the special provisions of clause 15. This special power is in no way affected and is fully retained. In addition, the High Court may be competent to entertain other appeals by virtue of specific statutory provisions. [273 C-H: 274 A]

On the contrary, the Code contains specific provisions indicating cases in which its provisions are or are not applicable, as for example section 5, which makes specific provision regarding the nature and manner of applicability of the Code to revenue courts. Sections 116 to 120 clearly indicate that section 104 and order 43 apply to the original side of the High Court. Section 104 and Order 43 which is attracted by section 104, clearly provide that an appeal shall lie from the orders mentioned in rule 1 of Order 43. The impugned order is one such order and is clearly appealable. When the legislature conferred such a right on the litigant a Court would be slow to deprive him of the statutory right merely on the ground that the order had been passed by a single Judge on the original side of the High Court. [274 B-E]

Section 104 recognises that, apart from the orders made appealable under the Code, there may be other orders appealable by any law for the time being in force. It further provides that no appeal will lie from any orders other than orders expressly provided in the Code or by any other law in force. The right of appeal against a judgment of a single Judge on the original side under clause 15 is a right conferred by “any other law in force”. [275 C-E] Union of India v. Mohindra Supply Co.[1962] 3 SCR 497 and Mt. Savitri Thakurain v. Savi and Anr. [1921] P.C. 80 referred to.

Mathura Sundari Dassi v. Haran Chandra Shaha, A.I.R. 1916 Cal. 361 and Lea Badin v. Upendra Mohan Roy Choudhary, A.I.R. 1935 Cal. 35 approved.

Vaman Raoji Kulkarni v. Nagesh Vishnu Joshi, A.I.R. 1940 Bom. 216 overruled.

Hurrish Chander Chowdhry v. Kali Sundari Debia, 10 I.A. 4, held in applicable.

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Unless a right is conferred on him by law, a litigant does not have an inherent right of appeal. An order appealable under the C.P.C. or any other statute becomes appealable because the concerned statute confers a right of appeal on the litigant. But yet such an order may or may not be appealable as ‘judgment’ under clause 15 of the Letters Patent. An order appealable under clause 15 as a ‘judgment’ becomes appealable because the Letters Patent confers the right of appeal against such order as ‘judgment’. Similarly an order appealable under the Letters Patent may or may not be appealable under the Code. [281 C-E]

The Letters Patent, by clause 15, confers a right of appeal against a ‘judgment’ and therefore an order which satisfies the requirements of ‘judgment’ within the meaning of clause 15 becomes appealable. What kind of order will constitute a ‘judgment’ within the meaning of this clause and become appealable as such must necessarily depend on the facts and circumstances of each case and on the nature and character of the order passed. [281 F-G]

A comprehensive definition of ‘judgment’ contemplated by clause 15 cannot properly be given. Letters Patent itself does not define ‘judgment’. The expression has necessarily to be construed and interpreted in each case. But yet it is safe to say that if an order has the effect of finally determining any controversy forming the subject matter of the suit itself or any part thereto or the same affects the question of the Court’s jurisdiction or the question of limitation, it normally constitutes ‘judgment’ within the meaning of clause 15 of Letters Patent.

[282 E-G]

JUDGMENT:

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 662 of 1981

Appeal by special leave from the judgment and order dated the 15th January, 1981 of the Bombay High Court in Letters Patent Appeal No. 611 of 1980.

Soli J. Sorabji G.L. Sanghi, P.H. Parekh, P.K. Shroff and Gautam Philips for the Appellant.

R.P. Khambata, B.R. Agarwala, K.P. Khambata, Ashok C. Mehta and Miss Halida Khatun for Respondent No. 1. K.K. Venugopal, R. Vaidya, M.B. Rele, Rajiv K. Garg and N.D. Garg for Respondent No. 2.

The following judgments were delivered:

FAZAL ALI, J. This appeal by special leave is directed against an Order dated January 15, 1981 of the Division Bench of the Bombay High Court by which the appeal filed by the appellant against the Order of the Trial Judge was dismissed on the ground that the appeal was not maintainable as the Order impugned was

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not a judgment within the meaning of clause 15 of the Letters Patent of the High Court.

After hearing counsel for the parties at great length we passed the following Order on April 22, 1981:- “We have heard counsel for the parties at great length. In our opinion, the appeal before the High Court was maintainable and the High Court should have entertained and decided it on merits.

We, therefore, allow this appeal, set aside the judgment dated January 15, 1981 of the Division Bench of the Bombay High Court and remand the case to the same and decide it on merits. The High Court will dispose of the appeal as quickly as possible. The interim order passed by this Court on February 16, 1981 will continue until the High Court disposes of the appeal. Liberty to parties to approach the High Court for fixing an early date of hearing. In the circumstances, there will be no order as to costs. Reasoned judgment will follow.”

We now set out to give the reasons for the formal Order allowing the appeal which was passed by us on the aforesaid date.

As we are not at all concerned with the facts of the case it is not necessary to detail the same in this judgment. Suffice it to say that the plaintiff-appellant had filed a suit on the original side of the Bombay High Court for specific performance of a contract and prayed for an interim relief by appointing a receiver of the suit property and injuncting the defendant from disposing of the suit property during the pendency of the suit. The single Judge after hearing the notice of motion dismissed the application for appointment of receiver as also for interim injunction. Thereafter, the plaintiff-appellant filed an appeal before the Bombay High Court which dismissed the appeal as being non-maintainable on the ground that the Order impugned (order of the Single Judge) was not a judgment as contemplated by clause 15 of the letters patent of the High Court. Hence, this appeal by special leave. The substantial questions of law raised in this appeal by the Counsel for the parties are as to the scope, ambit and meaning of

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the word ‘judgment’ appearing in clause 15 of the Letters Patent of the Bombay High Court and corresponding clauses in the Letters Patent of other High Courts. We might mention here that the significance of the word ‘judgment’ assumes a special importance in those High Courts which have ordinary civil jurisdiction depending on valuation of the suit or the action. These High Courts are Calcutta, Bombay, Madras as also Delhi and Jammu & Kashmir. The other High Courts do not have any ordinary civil jurisdiction but their original jurisdiction is confined only to a few causes like probate and administration, admiralty and cases under Companies Act. It seems to us that the interpretation of the word ‘judgment’ appearing in the Letters Patent of the High Court has been the subject-matter of judicial interpretation by decisions rendered by various High Courts in India. Unfortunately, however, the decisions are by no means consistent or unanimous. On the other hand, there appears to be a serious divergence of judicial opinions and a constant conflict between the High Courts regarding the true scope, ambit and meaning of the word ‘judgment’ appearing in the Letters Patent so much so that a colossal controversy has been raging in this country for more than a century. Several tests have been laid down by leading judgments of the Calcutta, Madras and Rangoon High Courts. Other High Courts have either followed one or the other of the leading judgments regarding the validity of the tests laid down by the three High Courts. The Calcutta High Court appears to have followed the leading case of its court in The Justices of the Peace for Calcutta v. The Oriental Gas Company where Sir Richard Couch, C.J. had laid down a particular test on a rather strict and literal interpretation of the Letters Patent. Later decisions of the Calcutta High Court have followed this decision of Sir Richard Couch, C.J. with some modifications and clarifications. The Madras High Court has taken a very liberal view in its decision in T.V. Tuljaram Row v. M.K.R.V. Alagappa Chettiar. The Bombay High Court seems to have consistently taken the view that no interlocutory order can ever be said to be a judgment within the meaning of the Letters Patent so as to be appealable from the order of a Single Judge exercising original civil jurisdiction (hereinafter referred to as ‘Trial Judge’) to a larger Bench. The Rangoon High Court speaking through Sir Page, C.J. in In Re Dayabhai Jiwandas & Ors v. A.M.M. Murugappa Chettiur has placed a very narrow interpretation on

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the term ‘judgment’ and has almost equated it with a decree passed by a civil court.

This Court also has incidentally gone into the interpretation of the word ‘judgment’ and has made certain observations but seems to have decided the cases before it on the peculiar facts of each case without settling the conflict or the controversy resulting from the divergent views of the High Courts. This Court, however, has expressed a solemn desire and a pious wish that the controversy and the conflict between the various decisions of the High Courts has to be settled once for all some time or the other. In this connection, in Asrumati Debi v. Kumar Rupendra Deb Raikot & Ors. this Court observed as follows:- “In view of this wide divergence of judicial opinion, it may be necessary for this Court at some time or other to examine carefully the principles upon which the different views mentioned above purport to be based and attempt to determine with as much definiteness as possible the true meaning and scope of the word ‘judgment’ as it occurs in clause 15 of the Letters Patent of the Calcutta High Court and in the corresponding clauses of the Letters Patent of the other High Courts. We are, however, relieved from embarking on such enquiry in the present case as we are satisfied that in none of the views referred to above could an order of the character which we have before us, be regarded as a ‘judgment’ within the meaning of clause 15 of the Letters Patent”.

(Emphasis supplied)

Similarly, in the case of State of Uttar Pradesh v. Dr. Vijay Anand Maharaj, this Court noticed the divergence of judicial opinions on the subject and observed as follows :- “The scope of the expression “judgment” came under the judicial scrutiny of the various High Courts, there is a cleavage of opinion on that question. … … … …

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The foregoing brief analysis of judgment shows that the definition given by the Madras High Court is wider than that given by the Calcutta and Nagpur High Courts. It is not necessary in this case to attempt to reconcile the said decision or to give a definition of our own, for on the facts of the present case the order of Mehrotra, J., would be a judgment within the meaning of the narrower definition of that expression”. After, however, analysing the various judgments this Court did not think it necessary to give any definition of its own and refrained from giving a final decision on the question as to the scope and meaning of the word ‘judgment’ appearing in the Letters Patent. Mudholkar, J. in his concurring judgment expressly refrained from expressing any opinion on the subject.

Again in a later decision in Shankarlal Aggarwal & Ors. v. Shankarlal Poddar & Ors. the conflict in the various decisions of various High Courts was again noticed and this Court observed as follows:

“There has been very wide divergence of opinion between the several High Court in India as to the content of the expression ‘judgment’ occurring in Cl. 15 of the Letters Patent…………….We consider that occasion has not arisen before us either since in view of the construction which we have adopted of s. 202 of the Indian Companies Act the scope of the expression ‘judgment’ in the Letters Patent does not call for examination or final decision”.

(Emphasis ours)

There are other decisions of this Court also which have touched the fringes of the question but did not choose to give a final verdict on the vexed question and preferred to decide the cases on their own facts. We shall briefly refer to these decisions at a later stage of this judgment. With due deference to the desire of this Court to settle the controversy in question once for all, the very able, detailed and lengthy arguments advanced by counsel for the parties on various shades, features and aspects of the interpretation of the word ‘judg-

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ment’ appearing in the Letters Patent, the serious legal controversy raging in this country for over a century between the various High Courts resulting in an irreconciliable element of judicial uncertainty in the interpretation of the law and further having regard to the huge backlog and accumulation of arrears in the High Courts, we are clearly of the opinion that the time has now come when the entire controversy on the subject should be set at rest and an authoritative pronouncement on the matter may be given by us so as to maintain complete consistency in deciding the matter by the High Courts whenever it arises. Mr. Sorabjee, learned counsel for the appellants has submitted four important points of law dwelling on the various facts of the question at issue:

(1) It was contended that the provisions of s. 104 read with order 43 Rule 1 of the Code of Civil Procedure, 1908 (hereinafter referred to as ‘Code of 1908′) does not impose any bar on the trial held by the Trial Judge and thus by virtue of these provisions the order impugned (the order of the trial court refusing to appoint Receiver and to grant injunction) falls squarely under clauses (r) and (s) of order 43 Rule 1 of the Code of 1908 and is therefore appealable to a larger Bench. In amplification of this contention it was submitted that the Trial Judge is governed by the procedure prescribed by the Code of 1908 in all matters and hence there is no reason why order 43 Rule 1 should not apply to any order passed by the Trial Judge under any of the clauses of order 43 Rule 1 read with s.

104.

(2) Even if we assume that the Letters Patent was a special law which overrides the provisions of the Code of Civil Procedure, the power under s. 104 read with order 43 Rule 1 is in no way inconsistent with cl. 15 of the Letters Patent. Section 104 merely provides an additional remedy and confers a new jurisdiction on the High Court without at all interfering with or overriding the existing provisions of the Letters Patent. 202

(3) Even if order 43 Rule 1 did not apply in terms, the orders which have been mentioned as being appealable to a larger Bench could form valuable guidelines for the Court in arriving at the conclusion that such orders amount to judgments of the Single Judge as contemplated by the Letters Patent.

(4) Even if s. 104 read with order 43 Rule 1 does not apply, an order refusing to appoint a receiver or to grant injunction has the trappings and attributes of finality as it affects valuable rights of the plaintiff in an ancillary proceeding though the suit is kept alive and would, therefore, amount to a judgment within the meaning of the Letters Patent.

The learned counsel for the respondents while countering the arguments of Mr. Sorabjee submitted the following propositions:

(1) S. 104 read with order 43 Rule 1 could not apply to the original trial by the Trial Judge which is governed by the Letters Patent alone.

(2) It was further argued that the forum for an appeal contemplated by s. 104 is the same as that for appeals under sections 96 to 100 of the Code of 1908, that is to say, appeals from the courts in the mofussil (district courts) to the High Court and it has no application to internal appeals within the High Court. In other words, the forum under which an appeal lies from one Judge of the High Court to a larger Bench is not a forum contemplated by s. 104 at all but is created by the Letters Patent.

(3) If s. 104 of the Code of 1908 is held to be applicable to proceedings before the Trial Judge of the High Court certain strange anomalies will arise, viz., where an appeal lies from a district court under order 43 Rule 1 before a Single Judge, a further appeal will have to lie before a larger Bench against the order of the Trial Judge although s. 104 prevents a second appeal against miscellaneous orders under order 43 Rule 1 and permits only one appeal. This will, therefore, lead to an inconsistent and anomalous position. 203

(4) The word ‘judgment’ should be strictly construed as was done by Sir Richard Couch, C.J. in Oriental Gas Company’s case (supra) so as to include only those orders of the Trial Judge which are of a final nature and effectively decide the controversy of the issues in dispute.

We would first deal with the point relating to the applicability of s. 104 read with order 43 Rule 1 of the Code of 1908 because it seems to us that the arguments of Mr. Sorabjee on this score are well-founded and must prevail. Moreover, some of the decisions of this Court, those of the Privy Council and other High Courts support the propositions adumbrated by Mr. Sorabjee.

In order, however, to appreciate the applicability of s. 104 read with Order 43 Rule 1, it may be necessary to examine some important provisions of the Code of Civil Procedure as also the previous history which led to the enactment of s. 104 by the Code of 1908. It appears that prior to the Code of 1908 in the earlier Code of Civil Procedure there were two kinds of appeals to the High Court- (1) appeals against judgments and decrees of the Trial Judge, and (2) appeals against orders, either interlocutory or quasi-final, passed by the court during the pendency of the suit or proceedings. In the Civil Procedure Code of 1877 the section corresponding to order 43 Rule 1 of the Code of 1908 was s. 588 which provided for appealable orders under clauses (a) to (t). Section 588 of the Code of 1877 provided that an appeal from any order specified in s. 588 shall lie to the High Court or when an appeal from any other order is allowed by the Chapter it would lie to the Court to which an appeal would lie from the decree in the suit in respect of which such order was made or when such order is passed by a court other than the High Court, then to the High Court. A perusal of ss. 588 and 589 of the Code of 1877 would clearly show that the statute made no distinction between appeals to the High Courts from the district courts in the mofussils or internal appeals to the High Courts under the Letters Patent. Section 591 clearly provided that except the orders mentioned in s. 588 no further appeal could lie from any order passed by any court in exercise of its original or appellate jurisdiction. Section 591 may be extracted thus:- “591. No other appeal from orders; but error therein may be set forth in memorandum of appeal against decree.

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“Except as provided in this chapter, no appeal shall lie from any order passed by any Court in the exercise of its original or appellate jurisdiction but if any decree be appealed against, any error, defect or irregularity in any such order, affecting the decision of the case, may be set forth as a ground of objection in the memorandum of appeal”.

In other words, the position was that while the statute provided only for appeals against orders, all other appeals could only be against a decree passed by the court concerned. The statute there fore, did not contemplate any other appeal except those mentioned in ss. 588 and 591. The Code of 1877 was later on replaced by the Code of 1882 but the provisions remained the same. In view of the rather vague and uncertain nature of the provisions of ss. 588 to 591 a serious controversy arose between the various High Courts regarding the interpretation of s. 588. The Bombay and Madras High Courts held that under cl. 15 of the Letters Patent of the said High Courts, an appeal could lie only from orders passed under s. 588 and not even under the Letters Patent. In Sonba’i v. Ahmedbha’i Habibha’i a Full Bench of the Bombay High Court held that under cl. 15 of the Letters Patent an appeal to the High Court from an interlocutory order made by one of the Judges lies only in those cases in which an appeal was allowed under the Code of Civil Procedure, that is to say, under ss. 588 and 591 of the Code of 1877. The Madras High Court in Rajgopal & Ors (in Re: L.P.A. No. 8 of 1886 took the same view. Then came the decision of the Privy Council in the case of Hurrish Chunder Chowdry v. Kali Sundari Debia which while considering s. 588 made the following observations:- “It only remains to observe that their Lordships do not think that s. 588 of Act X of 1877, which has the effect of restricting certain appeals is from one of the Judges of the Court to the full Court.” (Emphasis ours)

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This judgment gave rise to a serious conflict of opinions in the High A Courts in India. The High Courts of Calcutta, Bombay and Madras held that in view of the decision of the Privy Council in the aforesaid case, even though an order may not have been appealable under s. 588 it could be appealable provided it was a judgment within the meaning of cl. 15 of the Letters Patent of the respective High Courts. Toolsee Money Dassee v. Sudevi Dassee,, Secretary of State v. Jehangir; Chappan v. Modin Kutti, However, the Allahabad High Court in Banno Bibi v. Mehdi Husain held that if an order was not appealable under ss. 588 and 591 of the Code of 1877 it could not be appealed against even under the Letters Patent of the High Court. This view was affirmed by a later decision of the same High Court in Muhammad Naim-ul- Lah Khan v. Ihsan-ul-Lah Khan.

With due respect we would like to point out that the pointed and terse observations of the Privy Council did not leave any room for any doubt or speculation in the matter. While construing s. 588, the Judicial Committee in Hurrish Chunder Chowdry’s case (supra) had made it clear that appeals would lie under s. 588 to the High Court and the section did not contain any restriction to the effect that appeal against the orders of the Trial Judge mentioned in s. 588 would not lie to a larger Bench of the High Court. In other words, the Privy Council intended to lay down clearly that s. 588 did not affect nor was it inconsistent with the provisions of the Letters Patent and hence those orders of the Trial Judge which fell beyond s. 588 could be appealable to a larger Bench under the Letters Patent if those orders amounted to judgment within the meaning of cl. 15 of the Letters Patent. Therefore, the views taken by the Calcutta, Bombay and Madras High Courts, referred to above, were undoubtedly correct. At any rate, since a fresh controversy had arisen, the legislature stepped in to settle the controversy by enacting the new s. 104 in the Code of 1908. Section 104 made it clear that appeals against orders mentioned in order 43 Rule 1 were not in any way inconsistent with the Letters Patent and merely provided an additional remedy by allowing appeals against miscellaneous Orders passed by the Trial Judge to a larger Bench. In other words, the legislature gave full statutory effect to the views of the Calcutta,

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Bombay and Madras High Courts. Even after the introduction of s. 104, the conflict between the various High Courts still continued as to whether or not s. 104 would apply to internal appeals in the High Court. That is the question which we shall now discuss.

To begin with, it is not disputed that a Trial Judge has to follow the entire procedure laid down by the Code of 1908 starting from the presentation of the plaint right up to the delivery of the judgment. The only difference in the assumption of jurisdiction by the High Court is that a suit of a particular valuation has to be instituted in the High Court rather than in the District court. Secondly, it is indisputable that any final judgment that the Trial Judge passes deciding the suit one way or the other amounts to a decree and under the provisions of the Letters Patent an appeal lies to a larger Bench which normally is a Division Bench as provided for under the Rules made by various High Courts. Thirdly, the Letters Patent itself does not define the term ‘judgment’ and has advisedly not used the word ‘decree’ in respect of any judgment that may be given by the Trial Judge. Section 5 of the Code of 1908 may be extracted thus:

“5. Application of the Code to Revenue Courts: (1) Where any Revenue Courts are governed by the provisions of this Code in those matters of procedure upon which any special enactment applicable to them is silent the State Government may, by notification in the Official Gazette, declare that any portions of those pro visions which are not expressly made applicable by this Code shall not apply to those Courts, or shall only apply to them with such modifications as the State Government may prescribe.

(2) “Revenue Court” in Sub-section (1) means a court having jurisdiction under any local law to entertain suits of other proceedings relating to the rent, revenue or profits of land used for agricultural purposes, but does not include a Civil Court having original jurisdiction under this Code to try such suits or proceedings as being suits or proceedings of a civil nature ” The importance of this section is that wherever the provisions of the Code of Civil Procedure are sought to be excluded by any special enactment which may be silent on the point, the State

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Government can by notification apply the provisions of the Code to Revenue courts. A bare perusal of this section would clearly reveal that excepting Revenue courts all other Civil courts would normally be governed by the provisions of the Code of Civil Procedure in the matter of procedure. Section 4(1) of the Code of 1908 which is a saving provision clearly provides that in the absence of any specific provision to the contrary the provisions of the Code does not limit or affect any special or local law. Thus, the test contained in s. 4 is not applicable in the instant case because even if the Letters Patent of the High Court be deemed to be a special law as contemplated by s. 4, the provisions of s. 104 do not seek to limit or affect the provisions of the Letters Patent.

This now takes us to s. 104 of the Code of 1908, the relevant portion of which may be extracted thus:- “104.(1) An appeal shall lie from the following orders, and save as otherwise expressly provided in the body of this Code or by any law for the time being in force, from no other orders:-

(a) to (f) annulled;

(ff) an order under section 35-A

(g) an order under section 95;

(h) an order under any of the provisions of this Code imposing a fine or directing the arrest or detention in the civil prison of any person except where such arrest or detention is in execution of a decree;

(1) any order made under rules from which an appeal is expressly allowed by rules:

(2) No appeal shall lie from any order passed in appeal under this section.”

Thus by the force of s. 104 all appeals as indicated in the various clauses of order 43 Rule 1 viz. (a) to (w) would lie to the appellate court. Section 105 clearly provides that no appeal shall lie from any order of a Court made in the exercise of its original or appellate 208

jurisdiction except according to the procedure laid down by the Code. The relevant part of s. 105 (1) may be extracted thus:

“105. (1) Save as otherwise expressly provided no appeal shall lie from any order made by a Court in the exercise of its original or appellate jurisdiction; but where a decree is appealed from, any error, defect or irregularity in any order, affecting the decision of the case, may be set forth as a ground of objection in the memorandum of appeal.”

Finally, order, 49 Rule 3 expressly exempts matters contained in clauses (1) to (6) of Rule 3 from the operation of the extraordinary original civil jurisdiction of the chartered High Courts, that is to say, the jurisdiction conferred on the High Court by the Letters Patent. The relevant portion of this provision may be extracted thus: “O. 49.

(3) The following rules shall not apply to any Chartered High Court in the exercise of its ordinary or extraordinary original civil jurisdiction, namely:-

(1) rule 10 and rule 11, clauses (b) & (c), of order VII;

(2) rule 3 of order X;

(3) rule 2 of order XVI;

(4) rules 5, 6, 8, 9, 10, 11, 13, 14, 15, and 16 (so far as relates to the manner of taking evidence) of Order XVIII;

(5) rules 1 to 8 of order XX; and

(6) rule 7 of order XXXIII (so far as relates to the making of a memorandum);

and rule 35 of order XLI shall not apply to any such High Court in the exercise of its appellate jurisdiction”

It may be pertinent to note that although a number of rules have been exempted from the operation of the Code, order 43 Rule

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1 and the clauses thereunder have not been mentioned in any of these clauses.

Thus, a combined reading of the various provisions of the Code of Civil Procedure referred to above lead to the irresistible conclusion that s. 104 read with order 43 Rule 1 clearly applies to the proceedings before the Trial Judge of the High Court. Unfortunately, this fact does not appear to have been noticed by any of the decisions rendered by various High Courts.

We might further point out that s. 117 of the Code of 1908 expressly applies the provisions of the Code to High Courts also. Section 117 may be extracted thus: “117. Save as provided in this Part or in Part X or in rules, the provisions of this Code shall apply to such High Courts”.

We find ourselves in complete agreement with the arguments of Mr. Sorabjee that in the instant case s. 104 read with Order 43 Rule 1 does not in any way abridge, interfere with or curb the powers conferred on the Trial Judge by cl. 15 of the Letters Patent. What s. 104 read with order 43 Rule 1 does is merely to give an additional remedy by way of an appeal from the orders of the Trial Judge to a larger Bench. Indeed, if this is the position then the contention of the respondent that s. 104 will not apply to internal appeals in the High Courts cannot be countenanced. In fact, the question of application of the Code of Civil Procedure to internal appeals in the High Court does not arise at all because the Code of Civil Procedure merely provides for a forum and if order 43 Rule 1 applies to a Trial Judge then the forum created by the Code would certainly include a forum within the High Court to which appeals against the judgment of a Trial Judge would lie. It is obvious that when the Code contemplates appeals against orders passed under various clauses of order 43 Rule 1 by a Trial Judge, such an appeal can lie to a larger Bench of the High Court and not to any court subordinate to the High Court. Hence, the argument that order 43 Rule 1 cannot apply to internal appeals in the High Court does not appeal to us although the argument has found favour with some of the High Courts.

We might also reiterate that prior to the Code of 1908, in the Code of 1877 an identical provision like order 43 Rule 1 also existed in the shape of s. 588 which was absolutely in the same terms

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as order 43 Rule 1 and its various clauses. Of course, section 104 was conspicuously absent from the Codes of 1877 or 1882. As indicated earlier, the question of the application of s. 588 (now Order 43 Rule 1) was considered as early as 1882 in Hurrish Chunder Chowdary’s case (supra) where the Privy Council in very categorical terms observed thus:-

“It only remains to observe that their Lordships do not think that s. 588 of Act X of 1877, which has the effect of restricting certain appeals, applies to such a case as this, where the appeal is from one of the Judges of the Court to the full Court.” We have already shown that a perusal of these observations leaves no room for doubt that the Privy Council clearly held that s. 588 undoubtedly applied to appeal from one of the Judges of the High Court to the Full Court, which really now means the Division Bench constituted under the Rules. In spite of the clear exposition of the law on the subject by the Privy Council it is rather unfortunate that some High Courts have either misinterpreted these observations or explained them away or used them for holding that s.588 does not apply to High Courts. We shall deal with those judgments and point out that the view taken by the High Courts concerned is not at all borne out by the ratio decidendi of the Privy Council. So far as the applicability of s. 588 to proceedings in the High Courts is concerned, in a later decision the Privy Council reiterated its view in unmistakable terms. In Mt. Sabitri Thakurain v. Savi & Anr., their Lordships observed as follows:

“Section 15 of the Letters Patent is such a law and what it expressly provides, namely an appeal to the High Court’s appellate jurisdiction from a decree of the High Court in its original ordinary jurisdiction, is thereby saved. Thus regulations duly made by orders and Rules under the Code of Civil Procedure, 1908 are applicable to the jurisdiction exercisable under the Letters Patent, except that they do not restrict the express Letters Patent appeal”.

Though not directly, some observations made by this Court also support the consistent view taken by the Privy Council that order 43 Rule 1 applies to the original proceedings before the Trial

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Judge. In Union of India v. Mohindra Supply Co., this Court made the following observations:-

“The intention of the legislature in enacting sub- s. (1) of s. 104 is clear: the right to appeal conferred by any other law for the time being in force is expressly preserved. This intention is emphasised by s. 4 which provides that in the absence of any specific provision to the contrary nothing in the Code is intended to limit or otherwise affect any special jurisdiction or power conferred by or under any other law for the time being in force. The right to appeal against judgments (which did not amount to decrees) under the Letters Patent, was therefore not affected by s. 104 (1) of the Code of Civil Procedure, 1908″. Thus, this Court has clearly held that the right to appeal against judgments under the Letters Patent was not affected by s. 104 (1) of the Code of 1908 and the decision therefore fully supports the argument of Mr. Sorabjee that there is no inconsistency between the Letters Patent jurisdiction and s. 104 read with order 43 Rule 1 of the Code of 1908. Similarly, in Shankarlal Aggarwal’s case (supra) this Court while construing the provisions of s. 202 of the Indian Companies Act observed as follows:- “There was no doubt either that most of the orders or decisions in winding up would not be comprehended within the class of appealable orders specified in s. 104 or O. 43 r.1. If therefore the contention of the respondent were accepted it would mean that in the case of orders passed by the District Courts appeals would lie only against what would be decrees under the Code as well as appealable orders under s. 104 and o. 43 r.1. and very few of the orders passed in the Courts of the winding up would fall within these categories. On the other hand, the expression “judgment” used in cl. 15 is wider. The learned Judge therefore rejected a construction which would have meant that the same orders passed by District Courts and by a Single Judge of a High Court would be subject to different rules as to appealability”.

There is yet another aspect of the matter which shows that s. 104 merely provides an additional or supplemental remedy by way

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of appeal and, therefore, widens rather than limits the original jurisdiction of the High Court. For instance, in this very case with which this Court was dealing, an order passed under s. 202 of the Companies Act was appealable to a larger Bench and yet it was argued that the order being of an interlocutory nature would not be a judgment and therefore no appeal would lie to the Division Bench. This contention was negatived by the Supreme Court and it was held that against the order passed by a Trial Judge under the Companies Act, an appeal would lie to the Division Bench. On a parity of reasoning, therefore, s. 104 read with order 43 Rule 1 expressly authorises and creates a forum for appeal against orders falling under various clauses of order 43 Rule 1, to a larger Bench of the High Court without at all disturbing, interfering with or overriding the Letters Patent jurisdiction. There are a number of other Acts also which confer additional powers of appeal to a larger Bench within the High Court against the order of a Trial Judge. Take, for instance, a case under the Arbitration Act. Suppose in a suit the matter is referred to arbitration and after the award is filed by the Arbitrator certain objections are taken, under s. 39 of the Arbitration Act an appeal would lie to a Larger Bench from the order of a Single Judge disposing of the objections taken by the parties against the award. Section 39 runs thus: “39. Appealable orders.-(1) An Appeal shall lie from the following orders passed under this Act (and from no others) to the Court authorised by law to hear appeals from original decree of the Court passing the orders; An Order- (i) superseding an arbitration;

(ii) on an award stated in the form of a special case; (iii)Modifying or correcting an award;

(iv) filing or refusing to file an arbitration agreement;

(v) staying or refusing to stay legal proceedings where there is an arbitration agreement;

(vi)setting aside or refusing to set aside an award: Provided that the provisions of this section shall not apply to any order passed by a small Cause Court.

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(2) No second appeal shall lie from an order passed in appeal under this section, but nothing in this section shall affect or take away any right to appeal to the Supreme Court”.

It cannot be contended by any show of force that the Order passed by the Trial Judge being an interlocutory order, no appeal would lie to the Division Bench or that the provisions of the Arbitration Act giving a right of appeal to a litigant from the order of a Trial Judge to the Division Bench in any way fetter or override the provisions of the Letters Patent.

There are, however, a number of decisions of the various High Courts which have held that the provisions of order 43 Rule 1 clearly apply to a Trial Judge. As early as 1872, the Bombay High Court in Sonba’i’s case (supra) held that in regard to appeals against orders of the Trial Judge the practice of the Bombay High Court has been that in all matters the provisions of the Code concerned would be applicable. In this connection, Sargent, Acting C.J., speaking for the court observed as follows:- “the word “judgment” may be taken to include any preliminary or interlocutory judgment, decree, order, or sentence within the meaning of clause 40, and effect may be given to section 37 by limiting the orders open to appeal to those orders which are expressly declared appealable in the various sections of the Civil Procedure Code, or in other words by incorporating the provisions of the Civil Procedure Code relating to appeals with Sec. IS of the Letters Patent, and holding the word ‘judgment’ to mean all judgments and orders which are appealable under the provisions of the Civil Procedure Code”.

This case was followed by a Division Bench of the Madras High Court which clearly held that an order passed under s. 592 was controlled by s. 588. We have already pointed out that in the Code prior to 1882, order 43 Rule 1 appeared in the shape of s. 588 and even under order 43 Rule 1 an order rejecting an appeal in forma pauperis is not appealable and does not appear in any of the clauses of order 43 Rule 1. The Madras High Court in Rajgopal’s case (supra), relying on the decision of the Bombay High Court, observed thus: 214

“An order passed under s. 592 of the Code of Civil Procedure rejecting an appeal in forma pauperis is not appealable under s. 588, which provides that no appeal shall lie from orders not specified in that section. It has already been decided in Achaya v. Ratnavelu (ILR 9 Mad. 253) that s. 15 of the Letters Patent is controlled by a similar section in the Civil Procedure Code, which provided that an order shall be final, and that enactments to such effect are not beyond the legislative powers of the Governor-General in Council”. Thus, even in the earlier times the High Court had veered round to the view that s. 588 would be applicable to the High Courts also even in respect of internal appeals in, the High Court.

Similarly, in Ruldu Singh v. Sanwal Singh, Shadi Lal, C.J. Speaking for the court observed thus;- Now, section 588 of the old Code, which has now been replaced by section 104 and Order XLIII, rule of the new Code, enacted that an appeal lay from the orders specified in that section and from no other orders”; and it was consequently decided by a Full Bench of that Court in Muhammad Naim-ul-Lah Khan v. Ihsan Ullah Khan (1892) ILR 14 All. 226 that clause 10 of the Letters Patent was controlled in its operation by section 588, and that no appeal lay under the Letters Patent from an order made under the Code if it was not one of the orders enumerated in that section. Section 104 of the new Code, however, expressly saves the right of appeal otherwise provided by ‘any law for the time being in force’…It seems to us that the object of the Legislature in enacting sub-section (2) was to make it clear that there was no second appeal under the Code from the orders specified in Sub-section (1) of section 104, and that sub-section (2) was not intended to override the express provisions of the letters patent.”

The Lahore High Court relied on the decision of the Privy Council in Hurrish Chunder Chowdrys case (supra). The High Court further held that s. 104 does not in any way take away the

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right of appeal conferred by the Letters but Patent of the High Court merely bars a second appeal from orders passed under O.43 R. 1 to Division Bench. A contrary view was taken by the Allahabad High Court in Ram Sarup v. Kaniz Ummehani where the following observations were made:- “It may, however, be conceded that this saving clause does not occur in sub-section (2) of section

104. But under the corresponding section 588 of the old Code, where the words were “orders passed in appeal under this section shall be final”, their Lordships of the Privy Council in Hurrish Chunder Chowdhry v. Kalisunduti Debi (1882) ILR 9 Cal. 482 observed that section 588, which had the effect of restricting certain appeals, did not apply to a case where the appeal is from one of the Judges of the High Court to the Full Court to the full Court.. In any case section 104 (2) does not contain any express provision which would suggest that the provisions of the Letters Patent have been abrogated. We accordingly hold that under clause 10 of the Letters Patent an appeal lies from the order of a single Judge passed in appeal.” With due deference to the Hon’ble Judges we are of the opinion that the decision of the Allahabad High Court on this point is based on a serious misconception of the legal position. It is true that s. 104 was introduced by the Code of 1908 and the aforesaid section, as we have already indicated, clearly saved the Letters Patent jurisdiction of the High Court. From this, however, it does not necessarily follow that the restriction that there is no further appeal from the order of a Trial Judge to a larger Bench would be maintainable or permissible. In the first place, once s. 104 applies and there is nothing in the Letters Patent to restrict the application of s. 104 to the effect that even if one appeal lies to the Single Judge, no further appeal will lie to the Division Bench. Secondly, a perusal of clause 15 of the Letters Patent of the Presidency High Courts and identical clauses in other High Courts, discloses that there is nothing to show that the Letters Patent ever contemplated that even after one appeal lay from the subordinate court to the Single Judge, a second appeal would again lie to a Division Bench of the Court. All that the Letters Patent provides for is that where the Trial Judge passes an order, an appeal against the judgment of the said Trial Judge would

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lie to a Division Bench. Furthermore, there is an express provision in the Letters Patent where only in one case a further or a second appeal could lie to a Division Bench from an appellate order of the Trial Judge and that is in cases of appeals decided by a Single Judge under s. 100 of the Code of Civil Procedure. Such a further appeal would lie to a Division Bench only with the leave of the court and not otherwise. The relevant portion of cl. 15 of the Letters Patent may be extracted thus:

“And we do further ordain that an appeal shall lie to the said High Court of Judicature at Madras, Bombay, Fort William in Bengal from the judgment.. Of one Judge of the said High Court or one Judge of any Division Court, pursuant to section 108 of the Government of India Act, and that notwithstanding anything hereinbefore provided, an appeal shall lie to the said High Court from a judgment of one Judge of the said High Court or one Judge of any Division Court, pursuant to section 108 of the Government of India Act, made (on or after the first day of February, 1929) in the exercise of appellate jurisdiction in respect of a decree or order made in the exercise of appellate jurisdiction by a Court subject to the superintendence of the said High Court where the Judge who passed the judgment declares that the case is a fit one for appeal.”

A perusal of the Letters Patent would clearly reveal two essential incidents-(1) that an appeal shall lie against any order passed by the Trial Judge to a larger Bench of the same High Court, and (2) that where the Trial Judge decides an appeal against a judgment or decree passed by the district courts in the mofussil, a further appeal shall lie only where the judge concerned declares it to be a fit one for appeal to a Division Bench. Thus, the special law, viz., the Letters Patent, contemplates only these two kinds of appeals and no other. There is, therefore, no warrant for accepting the argument of the respondent that if order 43 Rule 1 applies, then a further appeal would also lie against the appellate order of the Trial Judge to a Division Bench. As this is neither contemplated nor borne out by the provisions of the Letters Pantent extracted above, the contention of the respondent on this score must be overruled.

A further second appeal Lying to a Division Bench from an appellate order of the Trial Judge passed under order 43 Rule 1 is wholly foreign to the scope and spirit of the Letters Patent. Un-

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fortunately however, the Allahabad High Court in Ram Sarup’s case (supra) refused to follow a Division Bench decision in Piari Lal v. Madan Lal and also tried to explain away the Full Bench decision in Ram Sarup’s case (supra) where it was clearly pointed out that in such cases no further appeal would lie to the Division Bench under the Letters Patent. The distinction drawn by the Allahabad High Court regarding the application of s. 104 is a distinction without any difference. Sir John Edge, C.J., in Muhammad Naim-ul-lah Khan’s case (supra) dealing with this aspect of the matter observed thus:-

“It appears to me that the Code of Civil Procedure (Act No. XIV of 1882), as did Act No. X of 1877, contemplates a High Court in two aspects. It contemplates a High Court doing the ordinary work of a Court of original and appellate jurisdiction; having the necessary powers of review and revision in certain cases and certain other powers such as are generally found vested in the Courts of the importance of High Courts…whatever those powers may be, it is quite clear to my mind that the power conferred on a High Court under Chapter XLV of the Code of Civil Procedure are special powers and entirely distinct from the ordinary powers required by the High Court in the carrying on of its ordinary judicial business.” and Mahmood, J. Observed thus:

“To hold then that where this statute of ours, namely, our present Code of Civil Procedure, declares a decree or order non-appealable, such decree or order can be made the subject of consideration by the whole of this Court under the Letters Patent, is to hold that wherever no appeal lies to this Court the ceremony of presenting it to this Court to a Single Judge of this Court who would undoubtedly reject the appeal, makes it the subject of consideration by a Bench of the Court.” The other Judges agreed with the view taken by the Chief Justice and Mahmood, J. In Piari Lal’s case (supra) which was decided after s. 104 was introduced in the Code of 1908, the following observations were made:-

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“A preliminary objection has been taken to the hearing of the appeal based on the Full Bench decision in the case of Muhammad Naimullah Khan v. Ihsan-ullah Khan (1892) ILR 14 All. 226. Section 104 of the Code of Civil Procedure provides for the cases in which an appeal shall lie against an “order’. Clause (ii) provides that “No appeal shall lie from any order passed in appeal under this section”. The contention of the respondent in the preliminary objection is that no second appeal lies and reliance is placed upon the authority quoted to show that even a Letters Patent appeal is not permissible. We are of course bound by the Full Bench ruling of this Court. It is contended, however, that the words in section 588 of the Code of Civil Procedure, which was in force when the decision in the Full Bench case was given, differed from the words of the present Code. The only difference is that in the old Code the words were “The order passed in appeals under this section shall be final”, whereas in the present Code the words are “No appeal shall lie”. We cannot see how the change in the words can in any way help the appellant. Possibly the reason for the change is that under the words in the old Code it might have been argued that even a “revision” or a “review of judgment” would not lie against an order passed by an appellate court. We think the preliminary objection must prevail and we accordingly dismiss the appeal with costs.”

Thus, in these two cases it was clearly held that where a Trial Judge had passed an order in an appeal against an order passed by the district judge under order 43 Rule 1, a further appeal under the Letters Patent was not maintainable. This view is fully supported by the express language in which clause 15 of the Letters Patent has been couched, as referred to above. Thus the latter decision of the Allahabad High Court in Ram Sarup’s case (supra) was clearly wrong in holding that an appeal under the Letters Patent would lie even against an appellate order of the Trial Judge passed under O.43, R. 1 even though it was prohibited by s. 104 (2) of the Code.

Similarly, in Chappan’s case (supra) the Court on an interpretation of s. 588 (which now corresponds to the present Order 43 Rule 1 clearly held that an appeal would lie to the High Court

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against the orders contemplated in various clauses of s. 588 of the Code of 1877. The Court held thus:- “The result of this judgment (so far as it applies to the question before us) appears to me to come to this, that if the order made by a single Judge only amounts to an order such as is intended by chapter XLII of the Code, it is not appealable unless it is within section 588.”

The Madras case heavily relied on the decision of the Privy Council in Hurrish Chunder Chowdry’s case (supra). In Lea Badin v. Upendra Mohan Roy Chaudhury & Ors. while criticising the judgment of Sir Richard Couch, C.J. in The Justice of the Peace for Calcutta (supra) the Court as an alternative argument clearly held that order 43 Rule 1 would apply pro tanto to the Trial Judge and on this ground also the order would be appealable to a Division Bench. In this connection, the celebrated jurist Sir Manmatha Nath Mookerjee, J. Observed as follows:-

“But there is another and a far simpler ground on which it must be held that an appeal is competent. The order in the present case is one for which a right of appeal is provided in cl. (s) of r. 1 of or 43 of the Code. Under the present Code (Act V of 1908) it cannot be contended that the Code and the Rules made under it do not apply to an appeal from a learned Judge of the High Court “

Another important decision regarding the applicability of order 43 Rule 1 to an order passed by the Trial Judge was rendered by a Full Bench in Mathura Sundari Dassi v. Haran Chandra Shaha & Ors. where Sanderson, C.J. Observed thus:- “By the terms of s. 117, the Code is made applicable to the High Court, and O. 43, R. 1 gives a right of appeal in the very case under discussion. But it is said that this Code and the rules made under it do not apply to an appeal from a learned Judge of the High Court. I cannot follow that argument. It is part of the defendant’s case that O.9 R. 8 applies. That order is in effect a part of the Civil Procedure Code. It seems to me strange that the plaintiff 220

should be subjected to O. 9, R. 8 and be liable to have his suit dismissed for want of appearance, yet when he has had his suit dismissed under one of the rules of the Code and wants to call in aid another of the rules which-when his application for reinstatement has been refused-gives him a right of appeal against that refusal, he is met with the argument that he cannot call in aid that rule because there is no appeal from the learned Judge of the High Court under the Civil Procedure Code. I think this is not a true view or a reasonable construction to put upon the Code and the rules made under it. In my judgment, the Code and the rules do apply and the plaintiff has a right of appeal.”

and Woodroffo ‘J’ made similar observations:- “Whether or not as a question of jurisdiction an appeal lies under clause 15 of the Letters Patent in a case in which an appeal is allowed under the Code, I think it may be said that there are prima facie grounds for holding that an appeal should be held to lie under the Letters Patent where it is allowed under the Code; for the fact that the Legislature has in the Code allowed an appeal in a particular case, a affords to my mind prima facie grounds for supposing that case is of a class which this Court considers appealable under its Letters Patent.. Looking at the nature of the order appealed from, I think I should hold that it is appealable as a ‘judgement’ under the Letters Patent.” and Mookerjee, J. Observed thus:-

“The term “Rule” which finds a place in s. 117 is defined in clause 18 of s. 2 of the Code to mean “a rule contained it the First Schedule or made under s. 122 or s. 125.” our attention has not been drawn to any such rule which makes O. 43, R, 1, clause (c) inapplicable. On the other hand, O. 49, R. 3 which excludes the operation of other rules, lends support to the contention of the appellant that O. 43, R. 1 clause (c) is applicable to the present appeal.

“S. 104 of the Code of 1908 is materially different from S. 588 of the Code of 1882. It provides that lie from

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the orders mentioned in the first clause of that section and, save as otherwise expressly provided in the body of the Code or by any law for the time being in force from no other orders.” The effect of s. 104 is thus, not to take away a right of appeal given by clause 15 of the Letters Patent, but to create a right of appeal in cases even where clause 15 of the Letters Patent is not applicable.. I hold accordingly that this appeal is competent under Clause (c), R. 1, O. 43 of the Civil Procedure Code.

I am further of opinion that the appeal is competent also under Clause 15 of the Letters Patent.” (Emphasis ours)

We find ourselves in complete agreement with the view taken and the reasons given by the three eminent Judges in the aforesaid case which furnishes a complete answer to the arguments of the respondents that order 43, Rule I will have no application to internal appeals in the High Court under the provisions of the Letters Patent.

A similar view was taken in Lea Badin’s case (supra) where the following observations regarding the applicability of order 43 Rule I in respect of an order passed by a Trial Judge were made:-

“As an order refusing an application for the appointment of a receiver based on provision in the indenture of hypothecation, that on a breach of any one of the covenants contained therein the plaintiff’s assignor would be entitled to have a receiver appointed, the order has determined a right which is one of the matters in the controversy itself, and so it satisfies the definition of Couch, C.J., as well. The order appealed from in this case is, in our opinion, a judgment’ within the meaning of Cl. IS, Letters Patent. We may add that there are decisions of this Court in which orders discharging or refusing to discharge a receiver appointed in a suit, after the suit had come to an end or had become infectious, have been held to be ‘ judgments’ and so appealable…But there is another and a far simpler ground on which it must be held that an appeal is competent. The order in the present case is one for which a right of appeal is provided in cl. (s), R. 1,

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O. 43 of the Code. Under the present Code (Act S of 1908) it cannot be contended that the Code and the Rules made under it do not apply to an appeal from a learned Judge of the High Court, such a contention was elaborately dealt with and repelled in the case of Malhura Sundari Dassi v. Haran Chandra Shaha & Ors. (AIR 1916 Ca. 361)”.

(Emphasis ours)

In Toolsee Money Dassee & Ors. v. Sudevi Dassee & ors. (supra) Maclean, C.J. while relying on the decision of the Judicial Committee in Hurrish Chunder Chowdry’s case made the following pithy observations:

“To my mind the first of these points has been authoritatively decided against the view of the present respondents by the Judicial Committee of the Privy Council in the case of Hurrish Chunder Chowdhry v. Kali Sunderi Debi (10 I. A. 4). I need not travel into the facts of that case, but there their Lordships said at page 494 of the report in the Indian Law Reports: “It only remains to observe that their Lordships do not think that section 588 of Act X of 1877, which has the effect of restricting certain appeals, applies to such a case as this where the appeal is from one of the Judges of the Court to the Full Court.” It is clear from the report that the point was elaborately argued, and the clear expression of their Lordships’ opinion must be read in connection with that argument.” and Prinsep, J. who agreed with the Chief Justice, made the following identical observations:-

“We have it, therefore, that if beyond clause 15 of the Letters Patent, 1865, section 588 of the Code of Civil Procedure gives the right of appeal against any order of the description specified therein, there is no Court of Appeal constituted to hear it, if such order not being a judgment had been made by the Judge on the original Side of the High Court.

… … …

I understand this to mean that section 588 does not affect any matter coming within clause 15 of the Letters

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Patent, and if I may venture to say so, the reasons which led to the expression of that opinion and which have not been given in the judgment reported may be those stated by me for arriving at the same conclusion. I have no doubt that we are bound to follow to the fullest extent the opinion expressed by their Lordships of the Privy Council that section 588 of the Code does not apply to the case now before us, and that this matter has thus become settled law”.

And Ammer Ali, J. while dissenting from the applicability of s. 588 held that the order appealable under s. 588 was a judgment within the meaning of the Letters Patent. Two decisions of the Rangoon High Court also have consistently taken the view that the provisions of s. 104 read with order 43 Rule I apply to the Trial Judge. In P. Abdul Gaffor v. The Official Assignee (1) the following observations were made:

For an order made in exercise of the ordinary original civil jurisdiction to be appealable, it must come either under order XLIII, Rule 1 or be a judgment within the meaning of Section 13 of the Letters Patent, so that for the purpose of this application the appellant must establish that it is a judgment within the meaning of section 13″.

(Emphasis ours)

The question of the applicability of order 43 Rule I to an appeal from the Trial Judge under the Letters Patent was raised and decided by the Jammu & Kashmir High Court in Abdul Samad & Ors. v. The State of J & K (2) a decision to which one of us (Fazal Ali, C.J. as he then was) was a party. After an exhaustive review of various decisions on the subject, the High Court observed as follows:- G The legal position that emerges, therefore, is that orders of the character specified in Section 104 and order 43, Rule I, Civil P.C. excepting clause (JJ) thereof, would

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be construed as judgments and an appeal against any one of such orders would lie to the.. Division Bench of the High Court notwithstanding the fact that it is passed by one of the judges of the High Court sitting on the original side”.

It may be mentioned that like the Presidency High Courts, the High Court of Jammu & Kashmir had also been invested with ordinary civil original jurisdiction. The question of the applicability of order 43 Rule 1 to an appeal against an order of a Trial Judge to the Division Bench was directly in point and fully considered by a Division Bench of the Calcutta High Court and a Full Bench of the Rangoon High Court. In Kumar Gangadhar Bagla v. Kanti Chunder Mukerjee & Anr. while dwelling on this aspect of the matter it was observed as follows:

“Mr. Bose did not seek to argue, that the formal order of the 7th of June, 1935, was one of the appealable orders provided for in the Code of Civil Procedure. On the contrary, he went so far as to aver- with considerable vehemence – that neither sec. 104 nor order XLIII, r. l of the Civil Procedure Code has any application to the High Court. I would point out that it is clear from sec. 117 of Code of Civil Procedure and still clearer from Or. XLIX, r. 3, C.P.C., that both sec. 104 and Or. XLIII, r. 1, do apply to the High Court”.

(Emphasis ours)

It is manifest from the observations made above that in view of the clear and explicit provisions of s. 117 and order 49 Rule 3 which while exempting other provisions from the jurisdiction of the High Court did not exempt the various clauses of order 43 Rule 1. An identical view seems to have been taken by Sir Page, C.J. in a Full Bench decision of the Rangoon High Court in In re: Dayabhai Jiwandas & Ors. (supra) where the Chief Justice pithily observed as follows :-

“In many statutes in India, of course, a Right of appeal from an order passed pursuant to the statute is expressly provided, and in such cases an appeal will lie on the terms and conditions therein prescribed. I will not pause to enumerate or discuss these enactments, although

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many such statutes were cited at the Bar. But, except A where otherwise a right of appeal adhoc is given under some statute or enactment having the force of a statute, the right of appeal from orders that do not amount to “judgment” is regulated by the provisions of the Code of Civil Procedure; (see section 104 and order 43, Rule 1)”.

Thus, there appears to be a general consensus of judicial opinions on the question of the applicability of order 43 Rule 1 to Letters Patent appeals. This now brings us to the second limb of the argument of Mr. Sorabjee that even assuming that order 43 Rule I does not apply to the High Court so far as the Trial Judge of the said court is concerned, there can be no doubt that the orders indicated in various clauses of order 43 Rule 1 possess the attributes and incidents of a final order which conclusively decides a particular issue so far as the Trial Court is concerned. Thus, there can be no difficulty, even without applying order 43 Rule 1 to hold by a process of analogical reasoning that the appeals and orders mentioned in the various sub-clauses would amount to a judgment within the meaning of cl. 15 of the Letters Patent because they contain the traits, trappings and qualities and characteristics of a final order. In other words, the argument advanced was that we could still apply the provisions of order 43 Rule 1 by the process of analogy. We fully agree with this argument because it is manifest that the word ‘judgment’ has hot been defined in the Letters Patent but whatever tests may be applied, the order passed by the Trial Judge appealed against must have the traits and trappings of finality and there can be no doubt that the appealable orders indicated in various clauses of order 43 Rule I are matters of moment deciding valuable rights of the parties and in the nature of final orders so as to fall `within the definition of ‘judgment’.

This Court in Radhey Shyam v. Shyam Behari Singh (1) clearly held that an application under order 21 rule 90 to set aside the auction-sale is a judgment as the proceeding raises a controversy between the parties regarding their valuable rights. In this connection, this Court observed thus :-

“In our view an order in a proceeding under o. XXI, r. 90 is a “judgment” inasmuch as a proceeding raises

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a controversy between the parties therein affecting their valuable rights and the order allowing the application certainly deprives the purchaser of rights accrued to him as a result of the auction-sale”.

On a parity of reasoning, an order refusing to appoint a receiver or grant an injunction and similar orders mentioned in various clauses of order 43, Rule 1 fall within the tests laid down by this Court in the aforesaid case. We are aware that there are some decisions which have taken a contrary view by holding that s. 104 read with order 43 Rule I does not apply to a Trial Judge under the Letters Patent. These decisions do not appear to have considered the various shades and aspects and the setting of the provisions of ss. 104 and 117 and order 49 Rule 3 but seem to have proceeded on the basis that the Letters Patent being a special law or a special jurisdiction, the same over-rides s. 104 which in terms does not apply where a special law makes certain special provisions.

We now proceed to discuss these cases briefly. In Pandy Walad Dagadu Mahar & Anr. v. Jammadas Chotumal Marwadi (1) the identical point which is at issue in the instant appeal was not involved and the finding given by the High Court was merely incidental. The Division Bench seems to have relied on a judgment of Sir Basil Scott and Hayward, JJ. where the question was only incidentally dealt with. Martin, J. In Pandy’s case observed thus :-

“Shortly stated, therefore, this Full Bench decision amounts to this,. that appeals under the Letters Patent are governed by the Letters Patent, and appeals under Code are governed by the Code. Further, the Code only deals with appeals from certain Courts and it does not deal with appeals within the High Court from the decision of one Judge of the Court to another. That is in my opinion, the true view of the relative position of the Letters Patent and the Code”. With due respect, a close analysis of this decision would reveal that the Judges followed a fallacious process of reasoning, According to their opinion, the appeals under the Code of Civil

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Procedure and those under the Letters Patent were, so to say two separate compartments having different spheres of their own. With due deference, we might point out that such a view is based on a total misinterpretation and misconstruction of the true nature and object of the Code of Civil Procedure and the Letters Patent. In fact, as we have pointed out earlier, there is no inconsistency, whatsoever between the Letters Patent and s. 104 read with order 43 Rule l; The first premise of the Court that internal appeals in the High Court were governed by the Letters Patent alone and not by the Code appears to be legally fallacious. We have already pointed out that a large number of decisions, including the Privy Council, have clearly taken the view that although the Letters Patent is a special law certain provisions of the Code of Civil Procedure in the matter of procedure do apply to appeals against the decision of a Trial Judge to a larger Bench or to quote the Bombay Judges to ‘internal appeals’. Secondly, the Court completely overlooked the legal effect of s. 117 and order 49 Rule 3 which completely demolishes the presumptuous process of logic adopted by the court. Thirdly, the Court appears to have overlooked that far from excluding the Code there could be other special Acts which could and did confer additional jurisdiction even in internal appeals to the High Court, viz., from an order passed by a Trial Judge to a larger Bench, for instance, s. 39 of the Arbitration Act or s. 202 of the Indian Companies Act and other similar local or special Acts. If these special Acts could without affecting the jurisdiction of the Letters Patent or overriding the same provided a supplementary or additional jurisdiction, there was no reason why the Code of Civil Procedure also could not do the same particularly when the Trial Judge had to adopt the procedure contained in the Code, starting from the presentation of the plaint to the delivery of judgment. Fourthly, the Division Bench does not seem to have considered the fact that what the Letters Patent did was merely to confer original civil jurisdiction on the High Court to be exercised by a Single Judge, who would undoubtedly be a Trial Judge, but of an elevated status so that only such suits could be filed in the Court of the said Judge as are of a very high valuation which may differ from High Court to High Court. This was done in order that in heavy suits involving substantial questions of fact and law, the hearing of the suit by a senior Court of the status of a High Court Judge would repose, endeanr and generate greater confidence in the people. Thus if, interlocutory orders passed by District courts in the mofussil could be appealable to the High Court, there was no reason why inter 228

locutory orders passed by a Trial Judge could not be appealable to a larger Bench irrespective of the question whether or not they were judgments within the meaning of cl. 15 of the Letters Patent. This appears to us to be the cardinal philosophy of the Code in applying the provisions of order 43 Rule I, to the original suit tried by the Single Judge (Trial Judge).

Furthermore, the concept of internal appeals in the High Court seems to be a legal fiction without any factual existence imported by some of the High Courts in order to get rid of some of the provisions of the Code of Civil Procedure which is totally opposed not only to the aim and object of the Code but also to the very spirit of the Letters Patent. In a later judgment of the Bombay High Court in Vaman Ravji Kulkarni v. Nagesh Vishnu Joshi & Ors.,(1) the following observations were made:-

“I am, with respect, of opinion that the view taken by the full Bench of the Madras and Calcutta High Courts in the cases referred to above is correct, and that the question must be regarded as having been finally settled by the decision of the Privy Council in 10 I. A. 4. (Hurrish Chunder Chowdry v. Kali Sundari Debi) S. 104. Civil P.C., which refers only to appeals to the High Court from Courts subordinate to it, cannot apply to appeals filed under Cl. 15 of the Letters Patent from a single Judge OF the High Court to a bench. (Wadia, J.)

… … … …

There can be no doubt that the provisions of the Letters Patent have conferred special powers regarding appeals within the High Court. Those powers are not specifically taken away by s. 104, Civil P.C. and are not, therefore, affected by it . ..Special enactments are not repealed by later general Acts unless there be some express reference to the previous legislation or a necessary inconsistency in the two Acts standing together, which prevents the maxim from being applied. Sub-section (2) of s. 104, Civil P.C., does not refer to the Letters Patent and say that in spite of Cl. 15 of the Letters Patent no appeal lies from any order passed in an appeal under Sub-s. (1). Sub-s. (2) is in no way

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inconsistent with cl. 15 of the Letters Patent and the two can stand together, the former applying to appeals under the Code, and the latter to special appeals within the High Court…I am satisfied that s. 104, Civil P.C . does not control cl. 15 of the Letters Patent, and in spite of the absence of a saving clause in sub-s. (2) of s. 104 does not affect or cut down the right of appeal conferred by the Letters Patent.” (Lokur, J.)

As regards the first part of the observations of Wadia, J, we are constrained to observe that the learned Judge has not correctly construed the true ratio of the decision of the Privy Council in Hurrish Chunder Chowdry’s case (supra) where, as indicated, the Privy Council has in express terms held that s. 588 (which now corresponds to order 43 Rule 1) clearly applies to appeals against orders of a Trial Judge to a larger Bench of the High Court. Similarly, the observations made by Lokur, J. run against the plain interpretation of s. 104 by assuming that there is a conflict between s. 104 read with order 43 Rule I and the Letters Patent when in fact, as pointed out, there is no such conflict at all-all that s. 104 does is to give an additional jurisdiction apart from the Letters Patent which is in no way unconstitutional with the Letters Patent. We may like to observe here that there is no non-obstante clause in the provisions of the Letters Patent to indicate that the provisions of the Code of Civil Procedure, particularly s. 104 would not apply either expressly or by necessary intendment. In this view of the matter, therefore, we are clearly of the opinion that the Bombay decisions are wrongly decided and must, therefore, be overruled. In Vishnu Pratap and Ors. v. Smt. Revati Devi and Ors.(l) the Court held that no appeal against an order passed by a Trial Judge under s. 202 of the Companies Act would lie to a Division Bench in view of the Letters Patent. This argument was negatived and overruled in Shankarlal Aggarwal’s case (supra) as already discussed above. As regards the applicability of order 43, the following observations were made in Vishnu Pratap’s case: “It is true that orders 40 & 43 both apply to the High Court but the question here is whether o. 43 makes provision for an appeal from one court to another or it is intended to cover cases of an appeal from one Judge to a bench of

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the same Court.. While s. 96 deals with original decree, s. 104 Civil P.C. deals with orders, not being decrees, and the orders that are appealable are set out under o. 43, C.P.C. The question of an appeal from one Court to another Court is no doubt governed by the provisions of the Code of Civil Procedure but the provision for appeal from one Judge of a Court to a bench of the same Court is not provided for by the Code and must be governed by the Letters Patent. If s. 104 read with O. 43 makes all these orders appealable then what would be the Court to which appeals would lie from an order passed by a Division Bench and not by a single Judge. We are not satisfied that s. 104 or O. 43 ever intended to deal with appeals from a Judge or Judges of one Court to a larger number of Judges in the same Court. It is no doubt true, as has been held by their Lordships of the Judicial Committee. in-‘Mt. Sabitri Thakurain v. Savi’ (AIR 1921 PC 80) that s. 104 as well as o. 43 apply to High Courts but it does not mean that they give any right to an appeal from an order by a Judge or Judges of that Court to a larger number of Judges of the same Court independently of the Letters Patent of the Court. As we have said if o. 43 or s. 104, Civil P.C., were made applicable per se, without reference to the Letters Patent, then even an order passed by a bench would come under those provisions, but before an appeal can be filed there will have to be a Court constituted for hearing an appeal and the only provision for hearing an appeal, from the judgment of a single Judge, by a bench of two or more Judges of the same Court is contained in the Letters Patent of the Chartered High Courts. An order, to come under the Letters Patent must be a judgment, and, if an order is not a judgment, then cl. 10 of the Letters Patent would not apply and there is no provision for constituting a bench of more than one Judge to hear such an appeal. We, therefore, fail to understand how O. 43 R. 1, or s. 104, Civil P.C. without any reference to cl. 10 of the Letters Patent, can help the appellants.’

In this case also, the line of reasoning adopted by the court is the same as that of the Bombay High Court referred to above.

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One of the reasons given is that while order 43 makes provision for A appeal from one court to another, it is not intended to apply to an appeal from one Judge of the High Court to a bench of the same Court. No reasons have been given by the Judges for holding why this is not so particularly in the face of the clear provisions of s. 117 and order 49 Rule 3, as discussed above. Thus, the first part of R the reasoning of the High Court is totally irrelevant and wholly unintelligible. The point at issue is if s. 104 read with order 43, Rule I applies to an order passed by District Courts in the mofussil, why could it not apply to the one passed by the Trial Judge when the Letters Patent does not in any way bar such an appeal. Another ground taken by the Court is that if order 43 Rule I is made applicable to the High Court then a strange anomaly will arise in that where an appeal lies to the Division Bench, how could a further appeal lie to some other bench of the court. This argument also is based on a misconception of order 43 Rule 1. It is manifest that if order 43 Rule I were to apply to orders passed by the Trial Judge, the order would be one passed by only one Judge of the High Court and, therefore, in the context of the original jurisdiction exercised by a Single Judge of the High Court, the appellate jurisdiction would lie with the Division Bench as contemplated by the Letters Patent and the Rules framed by the High Court. We are unable to see any anomaly or inconsistency in this position. Thirdly, the court seems to have relied on a decision of the Privy Council in Mt. Sabitri Thakurain v. Savi (AIR 1921 PC 80) and has interpreted the ratio of this case to mean that s. 104 would not apply to High Courts which is exactly what the Privy Council does not say. With due respect, therefore, the learned Judges have not correctly appreciated the decision of the Privy Council which has nowhere indicated that order 43 Rule I would not apply to internal appeals in the High Court. On the other hand their Lordships of the Privy Council had held to the contrary as discussed above. For these reasons, therefore, we are of the opinion that this case has also not been correctly decided and we disapprove the reasons given and the decision taken in this case. We might also notice a full Bench decision of the Nagpur High Court in Madhukar Trimbaklal v. Shri Sati Godawari Upasani Maharaj

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of Sakori & Ors. (1) where Niyogi, J. Observed as follows :- “Clause 10, Letters Patent defines the appellate jurisdiction of the High Court vis-a-vis the judgment passed by a single Judge of that Court. It should be observed that the Civil Procedure Code does not make any provision in this behalf. The right of appeal from a decree of a single Judge to the High Court is not governed by s. 96 or s. 100 or s. 104, Civil P.C., but by cl. 10, Letters Patent.. This right of appeal depends on the special provision made in the Charter. S. 4, Civil P.C., provides that the Code does not affect any special jurisdiction or power conferred, or any special form of procedure prescribed by or under any other law for the time being in force. Since the special jurisdiction or power is conferred on the High Court by cl. 10, Letters Patent the provisions in the Civil Procedure Code regarding appeals cannot come into operation in regard to an appeal from a single Judge of the High Court to the High Court”.

With due respect, we are unable to agree with the opinion expressed by Niyogi, J. who has made a bald statement that the Code of Civil Procedure does not make any provision in regard to an appeal from an order passed by a Trial Judge to a Division Bench and that the right of appeal from a decree of a Civil Judge to a High Court is not governed by s. 100 or s. 104 but by cl. 10 of the Letters Patent of the Nagpur High Court. Here again, the learned Judge seems to have committed an error apparent on the face of the record. An examination of the language of sections 96 to 100 would clearly show that the scope of these sections is quite different from that of s. 104. Sections 96 to 100 expressly deal with the forum of appeal provided by the Code against decrees or orders amounting to decrees passed by the District Court in the mofussil. Section 104 is couched in very general terms and cannot be limited to appeals against orders passed by the courts contemplated in sections 96 to

100. Moreover, s. 104 does not deal with appeal against a decree at all but provides a forum for appeal against orders under order 43 Rule I which are mainly orders of a final or quasi-final nature passed during the pendency of a suit. Section 104, therefore, has a much wider application, as discussed above, and neither overrides the Letters Patent nor is it inconsistent with the same. For these reasons, therefore, we are unable to accept the line of reasoning adopted by the aforesaid High Court in holding 233

that s. 104 does not apply to internal appeals in the High Court and A we accordingly overrule this decision. A some what identical view was taken by a later decision of the Nagpur High Court in Ratanlal Jankidas Agarwal v. Gajadhar & Ors. (l) Where the following observations were made -

“Firstly, O. 43 has not been made applicable to appeals from appellate decrees by o. 43, R. 1, though the rules of o. 41 have been made applicable to them. So s. 104 bars an appeal from the order. Moreover, the Civil Procedure Code makes no provision for an appeal within the High Court, that is to say, from a single Judge of the High Court.. Power is given to a Division Bench of the High Court to hear appeals from decisions of a single ” Judge of the High Court only under cl. 10 of the Letters Patent”.

For the reasons which we have already given above, we hold that the learned Judges have fallen into the same error which was committed by the earlier Nagpur case. The first reasoning given by Mangalmurti, J. that order 43 is not applicable to appeals from appellate decrees is wholly irrelevant because the question is whether under order 43 Rule 1, an appeal could lie from a Trial Judge to a Division Bench of the High Court. Secondly, the learned Judge says that s. 104 bars a second appeal from the order and that the Code of Civil Procedure makes no provision for appeal within the High Court. Here again, the learned Judge is wrong because we have already pointed out that as far back as Hurrish Chunder Chowdry’s case (supra) it was clearly held by the Judicial Committee that s. 588 was applicable even to internal appeals in the High Court. On a parity of reasoning, therefore, on the basis of which we have overruled the decisions of the other High Courts, taking a similar view we find ourselves unable to agree with the view taken by Mangalmurti and Bose, JJ. in the aforesaid case and hold that this case is not correctly decided. A later decision of the Allahabad High Court also seems to have taken the same view. In Standard Glass Beads Factory & Anr. v. Shri Dhar & Ors. (2) the following observations were made :-

“Such an order if made by a subordinate court is appealable under or. 43 R. 1, C.P.C.; it is, as we have seen an order from which in England an appeal lies, without

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leave, to the Court of Appeal. If the narrower view of the meaning of the word ‘judgment’ be correct such an order when made by a Judge of a High Court in India exercising original jurisdiction would not be appealable”.

Here also with due deference to the Judges constituting the Full Bench, we are of opinion that they committed an error in drawing inspiration from the procedure prevailing in England in the court of appeal. In the first place the hierarchy of the Courts in India under the Civil Procedure Code is essentially different from that in the United Kingdom. Secondly, there is no provision existing in the English law corresponding to Order 43 Rule 1 of an appeal from a Trial Judge to a Division Bench under various circumstances. Lastly, this case does not seem to have considered a large number of decisions referred to by us, clearly holding that s. 104 read with order 43 Rule I applies to appeals under the Letters Patent in the High Court. For these reasons, therefore, we hold that this case also was not correctly decided and must be overruled. Another case taking a contrary view is again a case of the Bombay High Court which also makes a rather interesting reading. In J.K Chemicals Ltd. v. Kreba and Co. (1) Desai, J. speaking for the court observed on this part of the case thus:

“The reply to the said argument is that the provisions of s. 104 and O. 43, R. I provide for an appeal only from the subordinate Court to the higher Court and not from one part of the Court to the other. It has been held that the provisions relating to appeals contained in the Civil Procedure Code deal with appeals from subordinate Courts to higher Courts and do not deal with appeals from the decisions and decrees of the High Court in the exercise of its ordinary or extra-ordinary civil jurisdiction except so far as the appeal to the Supreme Court is concerned. The subject of an appeal from the decision of a single Judge of the High Court to a Division Bench of the same High Court is dealt with only under the Letters Patent and such right is not governed by the provisions of the Civil Procedure Code relating to appeals. This view has been taken consistently by the High Courts in India and also by the Privy Council (see Hurrish Chunder v. Kali Sunderi Debi-(1883) ILR 9 Cal. 482 at p. 494)”. 235

The first part of the observations follows the reasonings of the A two decisions of the Bombay High Court, discussed above, and are therefore open to the same criticism which we have levelled against the previous decisions. Secondly, the court seems to think that all the High Courts in India have consistently taken the view that order 43 Rule 1 does not apply to internal appeals in the High Courts. This is doubtless factually incorrect because we have referred to a large number of decisions which have taken a contrary view. The High Court was, therefore, not quite correct in observing that the High Courts in India had taken a consistent view in regard to this matter. Thirdly, the High Court seems to have relied heavily on the decision of the Privy Council in Hurrish Chunder Chowdry’s case (supra) and on Chappan’s case (supra) in holding that order 43 did not apply to internal appeals in the High Courts which were governed by the Letters Patent alone. Here also, with due respect, the High Court has gravely erred. We have pointed out while dealing with Hurrish Chunder Chowdry’s case (supra) that the Privy Council had clearly laid down that s. 588 applied to the High Court and this position has been understood in this very sense by several judgments discussed above. The High Court, therefore, has not correctly appreciated the real ratio of the Privy Council case, referred to above.

As regards Chappan’s case (supra), the conclusion of the High Court is not borne out by the ratio of the Full Bench in the said case. It would appear that the Full Bench in the aforesaid case was concerned with two questions: (1) Whether in view of s. 622 of the old Code (which corresponds to s. 115 of the Code of 1908) an order passed by a trial Judge could be revised by a larger Bench, and

(2) Whether the right of appeal given by cl. 15 of the Letters Patent against an order passed by a trial Judge was controlled and limited by ss. 588 and 591 of the Code of 1877 (which now corresponds to order 43 Rule 1).

In the instant case we are not concerned with the revisional power but only with what old section 588 was. Far from deciding that s. 588 was not controlled by the Letters Patent, the learned Judge decided to the contrary. To begin with, Benson, J. formulated

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the questions referred to the Full Bench thus :- (1) Whether the jurisdiction exercised by the High Court under section 622, Civil Procedure Code, is included in the expression “appellate jurisdiction” as used in section 13 of the High Court Act (24 and 25 Vict. Chap. 104 and in section 36 of the Letters Patent of 1866, and (2) Whether the right of appeal given by section 15 of the Letters Patent against an order passed by a single Judge of the High Court is controlled and limited by sections 588 and 591, Civil Procedure Code?

I am of opinion that both of these questions must be answered in the affirmative”.

and Shephard, Acting C.J. Observed as follows: “Accordingly I think it must be assumed that the judgment of a single Judge acting under section 622 of the Code is open to appeal, unless the right of appeal has been taken away by section 588 of that Code. On that question I entirely agree with Mr. Justice Subramania Ayyar. The question is, in my opinion, concluded by authority which it is beyond our province to criticise”.

and Boddam, J. expressed the following opinion :- “The result of this judgment (so far as it applies to the question before us) appears to me to come to this, that if the order made by a single Judge only amounts to an order such as is intended by chapter XLIII of the Code, it is not appealable unless it is within section 588″.

and Moore, J. Observed as follows :-

“It is clear, however, that this could not have been done, for the provisions of sections 588 and 591 do, in certain cases, most certainly apply to the High Court. For example, section 588, clause 1, provides that if a District Munsif passes an order under section 20 of the Code, an appeal lies to the District Judge, but that there is no second appeal to the High Court, while if a District Judge passes

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such an order an appeal can be preferred to the High Court. Whatever view be taken of section IS of the Letters Patent it would have been impossible to include section 588 among those sections that do not apply to the High Court”.

Thus, the ratio decidendi of the decision clearly goes to indicate that the Full Bench of the Madras High Court had held in no uncertain terms that s. 588 applied to the High Court and orders mentioned therein passed by a Trial Judge would be appealable to a larger Bench. This, therefore, knocks the bottom out of the decision of the Bombay High Court when Chappan’s case (supra) in no way supported the view taken by them. For the reasons given above, we hold that J.K Chemicals’s case (supra) was also wrongly decided and can no longer be treated as good law. It is rather unfortunate that despite clear, explicit, pointed and pragmatic observations of the Privy Council in Hurrish Chunder Chowdry’s case (supra) and further clarification by the legislature by introducing s. 104 of the Code of 1908, some of the High Courts n seem to have stuck to the antiquated view that the provisions of order 43 Rule I do not apply to internal appeals within the High Courts.

Thus after considering the arguments of counsel for the parties on the first two limbs of the questions, our conclusions are :-

(1) That there is no inconsistency between s. 104 read with order 43 Rule I and the appeals under the Letters Patent and there is nothing to show that the Letters Patent in any way excludes or overrides the application of s. 104 read with order 43 Rule I or to show that these provisions would not apply to internal appeals within the High Court.

(2) That even if it be assumed that order 43 Rule I does not apply to Letters Patent appeals, the principles governing these provisions would apply by process of analogy.

(3) That having regard to the nature of the orders contemplated in the various clauses of order 43 Rule 1, there can be no doubt that these orders purport to decide valuable rights of the parties in ancillary proceedings even though the suit is kept alive and

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that these orders do possess the attributes or character of finality so as to be judgments within the meaning of cl. 15 of the Letters Patent and hence. appealable to a larger Bench.

(4) The concept of the Letters Patent governing only the internal appeals in the High Courts and the Code of Civil Procedure having no application to such appeals is based on a serious misconception of the legal position.

This now brings us to the second important point which is involved in this appeal. Despite our finding that s. 104 read with order 43 Rule I applies to Letters Patent appeals and all orders passed by a Trial Judge under clauses (a) to (w) would be appealable to the Division Bench, there would still be a large number of orders passed by a Trial Judge which may not be covered by order 43 Rule l. The next question that arises is under what circumstances orders passed by a Trial Judge not covered by order 43 Rule 1 would be appealable to a Division Bench. In such cases, the import, definition and the meaning of the word ‘judgment’ appearing in cl. 15 assumes a real significance and a new complexion because the term ‘judgment’ appearing in the Letters Patent does not exclude orders not falling under the various clauses of order 43 Rule 1. Thus the serious question to be decided in this case and which is indeed a highly vexed and controversial one is as to what is the real concept and purport of the word ‘judgment’ used in cl. IS of the Letters Patent. The meaning of the word ‘judgment’ has been the subject matter of conflicting decisions of the various High Courts raging for almost a century and in spite of such length of time, unfortunately, no unanimity has so far been reached. As held by us earlier it is high time that we should now settle this controversy once for all as far as possible.

We now proceed to deal with the main controversy as to what is the true scope, meaning and purport of the word ‘judgment’ used in cl. 15 of the Letters Patent. Numerous authorities on both sides were cited before us in the course of the very able arguments advanced by counsels for the parties and it appears that there are three leading judgments which have spelt out certain tests to determine as to when an order passed by a Trial Judge can be said to be a ‘judgment’ within the meaning of. cl IS of the Letters Patent. A very narrow view on this point was taken by a Division Bench

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Of the Calcutta High Court in the case of The Justice of the Peace for Calcutta (supra) where Sir Couch, C.J. On an interpretation of cl. 15 of the Letters Patent observed thus:

“We think that “judgment” in clause 15 means a decision which affects the merits of the question between the parties by determining some right or liability. It may be either final, or preliminary, or interlocutory, the difference between them being that a final judgment determines the whole cause or suit, and a preliminary or interlocutory judgment determines only a part of it, leaving other matters to be determined.” An analysis of the observations of the Chief Justice would reveal that the following tests were laid down by him in order to decide whether or not an order passed by the Trial Judge would be a judgment:

(1) a decision which affects the merits of the question between the parties;

(2) by determining some right or liability; (3) the order determining the right or liability may be final, preliminary or interlocutory, but the determination must be final or one which decides even a part of the controversy finally leaving other matters to be decided later.

Thus, examining the tests laid down by Sir Richard Couch, C.J,, it seems to us that the view taken by the learned Chief Justice appears to place a very strict and narrow interpretation on the word ‘judgment’ under which orders deciding matters of moment or valuable right of the parties without finally deciding the suit may not amount to a judgment and hence, not appealable. In giving this interpretation the learned Chief Justice was guided by two considerations: (I) that a liberal interpretation may allow vexed litigants to carry any discretionary order of the Trial Court in appeal, and (2) that it would confer more extensive right to appeal against the Judge sitting on the original side than the right of appeal given to a Trial Judge sitting in the mofussil. We are doubtless impressed with the argument of the Chief Justice and fully appreciate the force of the reasons given by him but we feel that despite those considerations the law must be interpreted as it stands and a court is not

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justified in interpreting a legal term which amounts to a complete distortion of the word ‘judgment’ so as to deny appeals even against unjust orders to litigants having genuine grievances so as to make them scapegoats in the garb of protecting vexatious appeals. In such cases, a just balance must he struck so as to advance the object of the statute and give the desired relief to the litigants, if possible. Although it is true that this decision is practically the locus classicus so far as the Calcutta High court is concerned and has been consistently followed by later decisions at the same time it cannot be denied that in a number of cases the conscience of the Judges was so shocked that they tried to whittle down or soften the rigours of this decision so much so that in one case the observations of the Chief Justice were not only not followed but were described as antiquated and in other cases the Judges strongly expressed them selves that the High court should give up its fondness to stick to the principles laid down by the learned Chief Justice. It is not necessary for us to burden this judgment with later decisions of the Calcutta High court in trying to comment on the correctness of the principles laid down by sir Couch, c J. but a few instances may be quite revealing.

In Chandi Charan Saha v. Jnanendra Nath Bhattacharjee and Ors.,(l) Sir Asutosh Mookerjee in his leading judgment modified the strict rule of interpretation of ‘judgment’ laid down by sir Couch, C.J. and pointed out that the words ‘merits of the question between the parties by determining a right of liability’ were not to be confined or restricted to the controversy in a suit itself but could take within its fold any right involved in any application which puts an end to the suit or the proceeding. sir Mookerjee, J. has widened the scope of the observations of sir Couch, c.J and adopted some of the observations of Sir White, C.J. in Tuljaram Row’s case (supra) and in this connection observed thus:- “It is plain that the expression ‘some right or liability is not restricted to the right in controversy in the suit itself on the other hand, if we adopt the wider definition formulated by White C.J. in the case of Tuljaram Row v. Alagappa Chettiar (ILR 35 Mad. 1), the decision is unquestionably a judgment within the meaning of the Letters Patent. The test is, not what the form of the adjudication is, but what is its effect in the suit or proceeding in which

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it is made. If its effect, whatever its form may be and whatever may be the nature of the application on which it is made, is to put an end to the suit or proceeding so far as the Court before which the suit or proceeding is pending is concerned, or if its effect, if it is not complied with, is to put an end to the suit or proceeding, the adjudication is a judgment: Mathura v. Haran (1915 ILR 43 Cal. 857).”

In Lea Badin’s case (supra), the following observations were made:

“To remove the incongruity which appears in the decision of this Court and to lay down some definite rule by which orders might be tested when it has to be determined whether or not they are ‘judgments’ within the meaning of the clause, this Court will some day have to abandon its fond adherence to the antiquated definition of Couch, C.J., and boldly acknowledge its allegiance to the tests laid down by White, C.J.” (Emphasis supplied)

After making these observations the Court further reiterated the position in the following words. “In more decisions than one of this Court this definition of ‘Judgment’ given by Couch, C.J. has been described as classical, and yet in a long course of decisions this Court has repeatedly expressed the view that the definition is absolutely exhaustive. Treating this definition as not of an inflexible character and yet not expressly purporting to extend it, the Court has in numerous cases emphasised the necessity of scrutinizing the nature of the decision in each particular case in order to find out whether the decision amounts to a ‘judgment’ within the meaning of the Clause.

In Shorab Merwanji Modi and Anr. v. Mansata Film Distributors and Anr., the following observations were made: “On a strict construction of the Calcutta test, the Tight or liability must mean some right or liability which is

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a subject-matter of controversy in the suit or proceeding but in its application to individual cases, that strict construction has not been adhered to and was indeed often departed from by Couch, J., himself who was the author of the test. Orders concerning the jurisdiction of the Court to entertain a suit, as distinguished from matters of the actual dispute between the parties, were held by him to come within the category of judgments.”

In Mooammed Felumeah v. S. Mondal & Ors. the Court pithily observed as follows:

“Now, so far as this Court is concerned, there is a considerable body of judicial opinion, which, while holding that Sir Richard Couch’s above definition is classical and of pre-eminent practical importance and usefulness, has consistently refused to regard it as, in any sense. exhaustive or inflexible. Indeed, in essence and truth, it has been accepted merely as the starting point on a broad open field, stretched in front of it in all its vastness and immense magnitude, and Judges have always endeavoured to extend it and expand the different aspects of the term and to give it a wide and extended meaning, though, of course, within certain limits.”

The other leading case which puts even a narrower interpretation and in our opinion, a clearly wrong one, on the word ‘judgment’ is the Full Bench decision of the Rangoon High Court In Re Dayabhai Jiwandas’s case (supra) where the following observations were made: “I am of opinion that in the Letters Patent of the High Courts the word judgment’ means and is a decree in a suit by which the rights of the parties at issue in the suit are determined.”

With due respect to the learned Chief Justice and the Judges who agreed with him, we are unable to accept the interpretation of the word judgment’ given by the Chief Justice which runs counter to the very spirit and object of the word ‘judgment’ appearing in cl. 15 of the Letters Patent. The learned Chief Justice seems to 243

have fallen into the error of equating the word ‘judgment’ with ‘decree’ as used in the Code of Civil Procedure when, as pointed out above, the words ‘judgment’ and ‘decree’ used in the Code cannot form a safe basis to determine the definition of the word ‘judgment’ in the Letters Patent particularly when the Letters has deliberately dropped the word ‘decree from judgment.’ We are, therefore, unable to hold that the view taken by the Chief Justice, Sir Page, is correct and accordingly overrule the same. The next leading case which lays down the test of a ‘judgment’ and which seems to have found favour with most of the High Courts in India is the test laid down by Sir Arnold White, C.J. in Tuljaram Row’s case (supra) where the learned Chief Justice pointedly spelt out various tests and observed thus:-

“The test seems to me to be not what is the form of the adjudication but what is its effect in the suit or proceeding in which it is made. If its effect, whatever its form may be, and whatever may be the nature of the application on which it is made, is to put an end to the suit or proceeding so far as the Court before which the suit or proceeding is pending is concerned, or if its effect, if it is not complied with, is to put an end to the suit or proceeding, I think the adjudication is a judgment within the meaning of the clause. An adjudication on an application which is nothing more than a step towards obtaining a final adjudication in the suit is not, in my opinion, a judgment within the meaning of the Letters Patent.” I think, too, an order on an independent proceeding which is ancillary to the suit (not instituted as a step towards judgment, but with a view to rendering the judgment effective if obtained) – e.g., an order on an application for an interim injunction, or for the appointment of a receiver is a ‘judgment’ within the meaning of the clause.” Analysing the observations of the learned Chief Justice it would appear that he has laid down the following tests in order to assess the import and definition of the word ‘judgment’ as used in cl. IS of the Letters Patent :- (1) It is not the form of adjudication which is to be seen but its actual effect on the suit or proceeding;

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(2) If, irrespective of the form of the suit or proceeding, the order impugned puts an end to the suit or proceeding it doubtless amounts to a judgment;

(3) Similarly, the effect of the order, if not complied with, is to terminate the proceedings, the said order would amount to a judgment; (4) Any order in an independent proceeding which is ancillary to the suit (not being a step towards judgment) but is designed to render the judgment effective can also be termed as judgment within the meaning of the Letters Patent.

So far as this test is concerned, the learned Chief Justice had in mind orders passed by the Trial Judge granting or refusing ad-interim injunction or appointing or refusing to appoint a receiver.

(5) An order may be a judgment even if it does not affect the merits of the suit or proceedings or does not determine any rights in question raised in the suit or proceedings.

(6) An adjudication based on a refusal to exercise discretion the effect of which is to dispose of the suit, so far as that particular adjudication is concerned, would certainly amount to a judgment within the meaning of the Letters Patent. Similarly, Krishnaswami Ayyar, J., who agreed with tile Chief Justice in the above case, pointed out that even an interlocutory judgment which determines some preliminary or subordinate point or plea or settles some step without adjudicating the ultimate right of the parties may amount to a judgment. With due respect we think that if the observations of Krishnaswamy Ayyar, J. are carried to its logical limit every interlocutory order would have to be held to be appealable.

So far as the tests laid down by White, C.J., and as analysed by us, are concerned we are inclined to agree generally with these tests though we feel that some of the tests laid down are far too

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wide and may not be quite correct. While the view taken by Sir Richard Couch, C.J. in The Justice of the Peace for Calcutta (supra) is much too strict, the one taken by Sir White, C.J. is much too wide. The correct test seems to lie somewhere in between the tests laid down by the aforesaid jurists.

We might point out that the tests laid down by the Calcutta High Court have been consistently followed by the Bombay High Court and also by a large majority of the later decisions of the Calcutta High Court in Lea Badin v. Upendra Roy Chaudhury, Kumar Gangadhar v. Kanti Chunder Mukherjee, Shorab Merwanji Modi v. Mansata Film Distributors, Mohammed Felumeah v. S. Mondal.(supra) Some of the decisions have sounded a discordant note and have gone to the extent of characterising the view of Sir Couch, C.J, as being antiquated and have strongly expressed the view that the Calcutta High Court should give up its fondness for the strict test laid down by Sir Couch in The Justice of the Peace for Calcutta’s case. On the other hand, the tests laid down by Sir White, C.J. in Tuljaram Row’s case have been followed by the Lahore High Court in Ruldu Singh v. Sanwal Singh and by some other High Courts in Standard Glass Beads Factory Shri Dhar & Ors. and later decisions of the Madras High Court as also by Andhra Pradesh High Court in Kuppa Viswappathi v. Kuppa Venkata Krishua Sastry. A Full Bench of the Allahabad High Court, however, in Mt. Shahzadi Begam v. Alak Nath dissented from the view taken by the Madras High Court and held that the tests laid down by that High Court in the aforesaid case were rather too wide. In this connection, Sulaiman, C.J., speaking for the Court observed as follows :-

“We would like to point out that the test laid down by the learned Chief Justice of the Madras High Court is put in too wide a language and cannot be accepted as laying down the correct criterion”. Similarly, in a later Full Bench decision of the Nagpur High Court in Manohar Damodar Bhoot v. Baliram Ganpat Bhoot, Hidayatullah. J. (as he then was) who wrote the leading judgment, very pithily described the essential requisites and the exact meaning

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of the word ‘judgment’ as used in the Letters Patent and observed thus:

“A judgment means a decision in an action whether final, preliminary or interlocutory which decides either wholly or partially, but conclusively in so far as the Court is concerned, the controversy which is the subject of the action. It does not include a decision which is on a matter of procedure, nor one which is ancillary to the action even though it may either imperil the ultimate decision or tend to make it effective. The decision need not be immediately executable ‘per se’ but if left untouched must result inevitably without anything further, save the determination of consequential details, in a decree or decretal orders, that is to say, an executive document directing something to be done or not to be done in relation to the facts of the controversy. The decision may itself order that thing to be done or not to be done or it may leave that over till after the ascertainment of some details but it must not be interlocutory having for its purpose the ascertainment of some matters or details prior to the determination of the whole or any part of the controversy”. The pointed observations of the Hon’ble Judge try to synthesize the conflicting views taken by the Calcutta and the Madras High Courts and, in our opinion, they represent the true scope and import of the word ‘judgment’ as used in the Letters Patent. The learned Judge while making these observations has made an exhaustive analysis of a large number of cases.

Having dealt with the main cases of the various High Courts reflecting different and variant views, we do not think it necessary to multiply authorities on this subject which have been fully debated in the decisions we have referred to. We shall now proceed to refer to the decisions of this Court with respect to the incidental observations made by them regarding the scope and meaning of the word ‘judgment’ before giving our own view of the matter. Before, however, dealing with the cases of this Court we might indicate that in view of the decisions taken by us regarding the applicability of s. 104 read with order 43 Rule 1 even to internal appeals in the High Court, the controversy regarding the meaning of the word ‘judgment’ has been largely narrowed down and sufficiently abridged because the orders mentioned in clauses (a) to (w) of order 43 Rule 1 having

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been held to be appealable, there would be only a few cases left in A which the question as to whether or not the orders passed by the Trial Judge are judgments would arise. After discussing the decisions of this Court, we shall give a list of illustrative cases which may justly be described as ‘judgment’ within the meaning of the Letters Patent so as to cover almost the entire field though a few cases still may have to be determined according to the principles laid down. The first decision of this Court which is relevant is Asrumati Debi’s case (supra). In this case the only question involved was whether an order transferring a suit under cl. 13 of the Letters Patent satisfied the tests of a judgment as mentioned in cl. 15 of the Letters Patent. This Court referring to the Calcutta and Madras decisions refrained from giving any particular decision except that they held that the mere order of transfer under cl. 13 of the Letters Patent could not be said to be a judgment and was therefore not appealable. This Court pointed out that the order neither affected the merits of the controversy not did it terminate or dispose of the suit. In this connection, the Court observed as follows:

“The judgment must be the final pronouncement which puts an end to the proceeding so far as the court dealing with it is concerned. It certainly involves the determination of some right or liability, though it may not be necessary that there must be a decision on the merits.

… … …

We have indicated that the essential features of a ‘judgment’ are according to both the, Calcutta and the Madras High Courts and all that we need say is that, in our opinion, an order under clause 13 of the Letters Patent does not satisfy the tests of a ‘judgment’ as formulated by either of these High Courts”. Apart from this what is more important is that the Court clearly observed that as an order granting leave under cl. 12 of the Letters Patent constitutes the very foundation of the suit, hence if by an order such leave is rescinded the suit automatically comes to an end and there can be no doubt that such an order would be a judgment. In this connection, this Court observed as follows:- “Leave granted under clause 12 of the Letters Patent constitutes the very foundation of the suit which is

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instituted on its basis. If such leave is rescinded, the suit automatically comes to an end and there is no doubt that such an order would be a judgment”. Thus, from this case an important test that can be spelt out is that where an order which is the foundation of the jurisdiction of the Court or one which goes to the root of the action, is passed against a particular party, it doubtless amounts to a judgment. As we have already pointed out apart from these observations this Court refused to embark on an enquiry as to in what cases an order passed by a Trial Judge would be a ‘judgment’ for purposes of appeal before a larger Bench.

Again in Union of India v. Mohindra Supply Co. (supra) this Court clearly held that in enacting s. 104 the intention of the Legislature was to preserve the Letters Patent jurisdiction of the High Court and provided for a right to appeal from the Trial Judge to the Division Bench without affecting the provisions of the Code of 1908. In this connection, the Court observed as follows :- “Under the Code, as amended, the view has consistently been taken that interlocutory judgments (i.e., decisions though not amounting to decrees which affect the merits of the questions between the parties by determining some right or liability) passed by single Judges of Chartered High Courts were appealable under the Letters Patent”.

We might mention here that the observations of this Court completely demolish the arguments of some of the High Courts that s. 104 does not apply to internals in the High Court because this Court while referring to the Code made specific reference to s. 104 in the previous paragraph. Apart from this, there is no observation by this Court regarding essential requisites of a Judgment. In State of U.P. v. Dr. Vijay Anand Maharaj (supra) the order impugned passed by the Single Judge was an order dismissing an application filed by the applicant to review the order of the Trial Judge. The question for determination was whether the order was a judgment so as to be appealable to the Division Bench. This Court referred to the observations of Hidayatullah, J. extracted in Manohar V. Baliram (supra) and though they did not expressly approve this decision they indirectly seem to have been impressed by the reasons given by Hidayatullah, J. Nothing further was said by this Court because it held that on the facts of that case the 249

order of the Trial Judge dismissing the application for review was A appealable. We might mention here that under clause (w) of order 43 Rule 1 an order granting an application for review is appealable.

On a parity of reasoning, therefore, an order dismissing an application for review would also be appealable under the Letters Patent being a judgment though it is not made appealable under order 43 Rule 1.

In Shankarlal Aggarwal’s case (supra) while indicating the divergence of judicial opinion on the subject this Court held that an order under s. 202 of the Indian Companies Act was a judgment within the meaning of Letters Patent and therefore appealable. We might mention here that the Companies Act which confers additional original jurisdiction on the Trial Judge expressly makes an order passed by the Trial Judge under s. 202 appealable and, therefore, it is manifest that any order passed under s. 202 would have to be appealable under the Companies Act and therefore it was rightly construed as a judgment.

In Radhey Shyam v. Shyam Behari (supra) the question was whether in an application under order 21 rule 90 to set aside an auction sale an order passed by the Court would be a judgment affecting valuable rights. This Court held that an order in such proceedings affected valuable rights and was therefore appealable. In this connection, the Court observed as follows:-

“In our view an order in a proceeding under O. XXI, r. 90 is a “judgment” in as much as such a proceeding raises a controversy between the parties therein affecting their valuable rights and the order allowing the application certainly deprives the purchaser of rights accrued to him as a result of the auction-sale.”

Thus, the only point which emerges from this decision is that whenever a Trial Judge decides a controversy which affected valuable rights of one of the parties, it must be treated to be a judgment within the meaning of the Letters Patent.

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The last case of this Court to which our attention has been drawn is Shanti Kumar R. Canji v. The Home Insurance Co. Of New York where the court was considering the effect of an order passed by the Trial Judge allowing amendment of the plaint and the question at issue was whether such an order would be a judgment within the meaning of the Letters Patent. The following observations were made by this Court in the aforesaid case.

“We are in agreement with the view expressed by the High Court at Calcutta in the M.B. Sirkar’s case (AIR 1956 Cal. 630) as to when an order on an application for amendment can become a judgment within the meaning of clause 15 of the Letters Patent. If an amendment merely allows the plaintiff to state a new cause of action or to ask a new relief or to include a new ground of relief all that happens is that it is possible for the plaintiff to raise further contentions in the suit, but it is not decided whether the contentions are right. Such an amendment does nothing more than regulate the procedure applicable to the suit. It does not decide any question which touches the merits of the controversy between the parties. Where, on the other hand, an amendment takes away from the defendant the defence of immunity from any liability by reason of limitation, it is a judgment within the meaning of clause 15 of the Letters Patent. The reason why it becomes a judgment is that it is a decision affecting the merits of the question between the parties by determining the right or liability based on limitation. It is the final decision as far as the trial court is concerned.

In finding out whether the order is a judgment within the meaning of clause 15 of the Letters Patent it has to be found out that the order affects the merits of the action between the parties by determining some right or liability. The right or liability is to be found out by the court. The nature of the order will have to be examined in order to ascertain whether there has been a determination of any right or liability”. (Emphasis ours)

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Thus, having noticed the ratio of some of the cases of this Court referred to above, regarding the tests to determine the import and meaning of the word ‘judgment’ we now proceed to deal with the specific question after interpreting cl.15 of the Letters Patent of the Bombay High Court and the corresponding clauses of Letters Patent of other High Courts. We shall endeavour to interpret the connotation and the import of the word ‘judgment’ particularly in the light of pertinent and pointed observations made by this Court on earlier occasions as discussed above.

The relevant portion of cl. 15 of the Letters Patent may be extracted thus :-

“We do further ordain that an appeal shall lie to the said High Court of Judicature at Madras, Bombay, Fort William in Bengal from the judgment.. ……. of one Judge of the said High Court.. “

Clause 15 makes no attempt to define what a judgment is. As Letters Patent is a special law which carves out its own sphere, it would not be possible for us to project the definition of the word ‘judgment’ appearing in s. 2 (9) of the Code of 1908, which defines ‘judgment’ into the Letters Patent:

“judgment’ means the statement given by the Judge of the grounds of a decree or order”.

In Mt. Shahzadi Begam v. Alak Nath and Ors., Sulaiman, C.J., very rightly pointed out that as the Letters Patent were drafted long before even the Code of 1882 was passed, the word ‘judgment’ used in the Letters Patent cannot be relatable to or confined to the definition of ‘judgment’ as contained in the Code of Civil Procedure which came into existence long after the Letters Patent were given. In this connection, the Chief Justice observed as follows :- “It has been held in numerous cases that as the Letters Patent were drafted long before even the earlier Code of 1882 was passed, the word ‘judgment’ used therein does not

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mean the judgment as defined in the existing Code of Civil Procedure. At the same time the word ‘judgment’ does not include every possible order, final, preliminary or interlocutory passed by a Judge of the High Court”.

We find ourselves in complete agreement with the observations made by the Allahabad High Court on this aspect of the matter.

The definition of the word ‘judgment’ in sub-s. (9) of s. 2 of the Code of 1908 is linked with the definition of ‘decree’ which is defined in sub-s. (2) of s. 2 thus: “decree” means the formal expression of an adjudication which, so far as regards the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final. It shall be deemed to include the rejection of a plaint and the determination of any question within section 47 or section 144, but shall not include-

(a) any adjudication from which an appeal lies as an appeal from an order, or

(b) any order of dismissal for default.

Explanation:-A decree is preliminary when further proceedings have to be taken before the suit can be completely disposed of. It is final when such adjudication completely disposes of the suit. It may be partly preliminary and partly final”.

Thus, under the Code of Civil Procedure, a judgment consists of the reasons and grounds for a decree passed by a court. As a judgment constitutes the reasons for the decree it follows as a matter of course that the judgment must be a formal adjudication which conclusively determines the rights of the parties with regard to all or any of the matters in controversy. The concept of a judgment as defined by the Code of Civil Procedure seems to be rather narrow and the limitations engrafted by sub-s. (2) of s. 2 253

cannot be physically imported into the definition of the word ‘judgment’ as used in cl. 15 of the Letters Patent because the Letters Patent has advisedly not used the terms ‘order’ or ‘decree’ anywhere. The intention, therefore, of the givers of the Letters Patent was that the word ‘judgment’ should receive a much wider and more liberal interpretation than the word ‘judgment’ used in the Code of Civil Procedure. At the same time, it cannot be said that any order passed by a Trial Judge would amount to a judgment; otherwise there will be no end to the number of orders which would be appealable under the Letters Patent. It seems to us that the word ‘judgment’ has undoubtedly a concept of finality in a broader and not a narrower sense. In other words, a judgment can be of three kinds :. (1) A Final Judgment-a judgment which decides all the questions or issues in controversy so far as the Trial Judge is concerned and leaves nothing else to be decided. This would mean that by virtue of the judgment, the suit or action brought by the plaintiff is dismissed or decreed in part or in full. Such an order passed by the Trial Judge indisputably and unquestionably is a judgment within the meaning of the Letters Patent and even amounts to a decree so that an appeal would lie from such a judgment to a Division Bench

(2) A preliminary judgment-This kind of a judgment may take two forms-(a) where the Trial Judge by an order dismisses the suit without going into the merits of the suit but only on a preliminary objection raised by the defendant or the party opposing on the ground that the suit is not maintainable. Here also, as the suit is finally decided one way or the other, the order passed by the Trial Judge would be a judgment finally deciding the cause so far as the Trial Judge is concerned and therefore appealable to the larger Bench. (b) Another shape which a preliminary judgment may take is that where the Trial Judge passes an order after hearing the preliminary objections raised by the defendant relating to maintainability of the suit, e.g., bar of jurisdiction, res Judicata, a manifest defect in the suit, absence of notice under section 80 and the like, and these objections are decided by the Trial Judge

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against the defendant, the suit is not terminated but continues and has to be tried on merits but the order of the Trial Judge rejecting the objections doubtless adversely affects a valuable right of the defendant who, if his objections are valid, is entitled to get the suit dismissed on preliminary grounds. Thus, such an R order even though it keeps the suit alive, undoubtedly decides an important aspect of the trial which affects a vital right of the defendant and must, therefore, be construed to be a judgment so as to be appealable to larger Bench.

(3) Intermediary or Interlocutory judgment-Most of the interlocutory orders which contain the quality of finality are clearly specified in clauses (a) to (w) of order 43 Rule 1 and have already been held by us to be judgments within the meaning of the Letters Patent and, therefore, appealable. There may also be interlocutory orders which are not covered by o. 43 R.1 but which also possess the characteristics and trappings of finality in that, the orders may adversely affect a valuable right of the party or decide an important aspect of the trial in an ancillary proceeding. Before such an order can be a judgment the adverse effect on the party concerned must be direct and immediate rather than indirect or remote. For instance, where the Trial Judge in a suit under order 37 of the Code of Civil Procedure refuses the defendant leave to defend the suit, the order directly affects the defendant because he loses a valuable right to defend the suit and his remedy is confined only to contest the plaintiff’s case on his own evidence without being given a chance to rebut that evidence. As such an order vitally affects a valuable right of the defendant it will undoubtedly be treated as a judgment within the meaning of the Letters Patent so as to be appealable to a larger Bench. Take the converse case in a similar suit where the trial Judge allows the defendant to defend the suit in which case although the plaintiff is adversely affected but the damage or prejudice caused to him is not direct or immediate but of a minimal nature and rather too remote because the plaintiff still possesses his full right to show that the defence is

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false and succeed in the suit. Thus, such an Order passed by the Trial Judge would not amount to a judgment within the meaning of cl. 15 of the Letters Patent but will be purely an interlocutory order.

Similarly, suppose the Trial Judge passes an Order setting aside an exparte decree against the defendant, which is not appealable under any of the clauses of O. 43 R.1 though an order rejecting an application to set aside the decree passed exparte falls within O. 43 R.l cl. (d) and is appealable, the serious question that arises is whether or not the order first mentioned is a judgment within the meaning of Letters Patent. The fact, however, remains that the order setting aside the ex-parte decree puts the defendant to a great advantage and works serious injustice to the plaintiff because as a consequence of the order, the plaintiff has now to contest the suit and is deprived of the fruits of the decree passed in his favour. In these circumstances, therefore, the order passed by the Trial Judge setting aside the ex parte decree vitally affects the valuable rights of the plaintiff and hence amounts to an interlocutory judgment and is therefore, appealable to a larger Bench.

In the course of the trial, the Trial Judge may pass a number of orders whereby some of the various steps to be taken by the parties in prosecution of the suit may be of a routine nature while other orders may cause some inconvenience to one party or the other, e.g., an order refusing an adjournment, an order refusing to summon an additional witness or documents, an order refusing to condone delay in filing documents, after the first date of hearing an order of costs to one of the parties for its default or an order exercising discretion in respect of a procedural matter against one party or the other. Such orders are purely interlocutory and cannot constitute judgments because it will always be open to the aggrieved party to make a grievance of the order passed against the party concerned in the appeal against the final judgment passed by the Trial Judge.

Thus, in other words every interlocutory order cannot be regarded as a judgment but only those orders would be judgments which decide matters of moment or affect vital and valuable rights

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of the parties and which work serious injustice to the party concerned. Similarly, orders passed by the Trial Judge deciding question of admissibility or relevancy of a document also cannot be treated as judgments because the grievance on this score can be corrected by the appellate court in appeal against the final judgment. We might give another instance of an interlocutory order which amounts to an exercise of discretion and which may yet amount to a judgment within the meaning of the Letters Patent. Suppose the Trial Judge allows the plaintiff to amend his plaint or include a cause of action or a relief as a result of which a vested right of limitation accrued to the defendant is taken away and rendered nugatory. It is manifest that in such cases, although the order passed by the trial Judge is purely discretionary and interlocutory it causes gross injustice to the defendant who is deprived of a valuable right of defence to the suit. Such an order, therefore, though interlocutory in nature contains the attributes and characteristics of finality and must be treated as a judgment within the meaning of the Letters Patent. This is what was held by this Court in Shanti Kumar’s case (supra), as discussed above. Let us take another instance of a similar order which may not amount to a judgment. Suppose the Trial Judge allows the plaintiff to amend the plaint by adding a particular relief or taking an additional ground which may be inconsistent with the pleas taken by him but is not barred by limitation and does not work serious injustice to the defendant wh o would have ample opportunity to disprove the amended plea taken by plaintiff at the trial. In such cases, the order of the Trial Judge would only be a simple interlocutory order without containing any quality of finality and would therefore not be a judgment within the meaning of cl. 15 of the Letters Patent

The various instances given by us would constitute sufficient guidelines to determine whether or not an order passed by the Trial Judge is a judgment within the meaning of the Letters Patent. We must however hasten to add that instances given by us are illustrative and not exhaustive. We have already referred to the various tests laid down by the Calcutta, Rangoon and Madras High Courts. So far as the Rangoon High Court is concerned we have already pointed out that the strict test that an order passed by the Trial Judge would be a judgment only if it amounts to a decree 257

under the Code of Civil Procedure, is legally erroneous and opposed to the very tenor and spirit of the language of the Letters Patent. We, therefore, do not approve of the test laid down by the Rangoon High Court and that decision therefore has to be confined only to the facts of that particular case because that being a case of transfer, it is manifest that no question of any finality was involved in the order of transfer. We would like to adopt and approve of generally the tests laid down by Sir White, C.J. in Tuljaram Row’s case (supra) (which seems to have been followed by most of the High Courts) minus the broader and the wider attributes adumbrated by Sir White, C.J. Or more explicitly by Krishnaswamy Ayyar, J. as has been referred to above. Apart from the tests laid down by Sir White, C.J., the following considerations must prevail with the court: (1) That the Trial Judge being a senior court with vast experience of various branches of law occupying a very high status should be trusted to pass discretionary or interlocutory orders with due regard to the well settled principles of civil justice. Thus, any discretion exercised or routine orders passed by the Trial Judge in the course of the suit which may cause some inconvenience or, to some extent, prejudice one party or the other cannot be treated as a judgment otherwise the appellate court (Division Bench) will be flooded with appeals from all kinds of orders passed by the Trial Judge. The courts must give sufficient allowance to the Trial Judge and raise a presumption that any discretionary order which he passes must be presumed to be correct unless it is ex facie legally erroneous or causes grave and substantial injustice.

(2) That the interlocutory order in order to be a judgment must contain the traits and trappings of finality either when the order decides the questions in controversy in an ancillary proceeding or in the suit itself or in a part of the proceedings.

(3) The tests laid down by Sir White, C.J. as also by Sir Couch, C.J. as modified by later decisions of the Calcutta High Court itself which have been dealt with by us elaborately should be borne in mind.

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Thus, these are some of the principles which might guide a Division Bench in deciding whether an order passed by the Trial Judge amounts to a judgment within the meaning of the Letters Patent. We might, however, at the risk of repetition give illustrations of interlocutory orders which may be treated as judgments:

(1) An order granting leave to amend the plaint by introducing a new cause of action which completely alters the nature of the suit and takes away a vested right of limitation or any other valuable right accrued to the defendant

(2) An order rejecting the plaint.

(3) An order refusing leave to defend the suit in an action under Order 37, Code of Civil Procedure. (4) An order rescinding leave of the Trial Judge granted by him under clause 12 of the Letters Patent.

(5) An order deciding a preliminary objection to the maintainability of the suit on the ground of limitation, absence of notice under s. 80, bar against competency of the suit against the defendant even though the suit is kept alive. (6) An order rejecting an application for a judgment on admission under order 12 Rule 6.

(7) An order refusing to add necessary parties in a suit under s. 92 of the Code of Civil Procedure. (8) An order varying or amending a decree. (9) An order refusing leave to sue in forma pauperis. (10) An order granting review.

(11) An order allowing withdrawal of the suit with liberty to file a fresh one.

(12) An order holding that the defendants are not agriculturists within the meaning of the special law.

(13) An order staying or refusing to stay a suit under s. 10 of the Code of Civil Procedure.

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(14) An order granting or refusing to stay execution of the decree.

(15) An order deciding payment of court fees against the plaintiff.

Here, it may be noted that whereas an order deciding the nature of the court fees to be paid by the plaintiff would be a judgment but this order affects only the plaintiff or the Government and not the defendant. Thus, only the plaintiff or the Government as the case may be will have the right to file an appeal in the Division Bench and not the defendant because the question of payment of court fees is a matter between the Government and the plaintiff and the defendant has no locus in this regard. We have by way of sample laid down various illustrative examples of an order which may amount to judgment but it is not possible to give such an exhaustive list as may cover all possible cases. Law with its dynamism, pragmatism and vastness is such a large ocean that it is well-nigh impossible for us to envisage or provide for every possible contingency or situation so as to evolve a device or frame an exhaustive formula or strategy to confine and incarcerate the same in a straitjacket. We, however, hope and trust that by and large the controversy raging for about a century on the connotation of the term ‘judgment’ would have now been settled and a few cases which may have been left out, would undoubtedly be decided by the court concerned in the light of the tests. Observations and principles enunciated by us. In the instant case, as the order of the Trial Judge was one refusing appointment of a receiver and grant of an ad-interim injunction, it is undoubtedly a judgment within the meaning of the Letters Patent both because in view of our judgment, order 43 Rule 1 applies to internal appeals in the High Court and apart from it such an order even on merits contains the quality of finality and would therefore be a judgment within the meaning of cl. 15 of the Letters Patent. The consistent view taken by the Bombay High Court in the various cases noted above or other cases which may not have been noticed by us regarding the strict interpretation of cl. 15 of the Letters Patent are hereby overruled and the Bombay High Court is directed to decide the question in future in the light of our decision. We, therefore, hold that the order passed by the Trial Judge in the instant case being a judgment within the meaning of cl. 15 of the

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Letters Patent, the appeal before the Division Bench was maintainable and the Division Bench of the High Court was in error in dismissing the appeal without deciding it on merits. We have already directed the High Court to decide the appeal on merits by our formal order dated April 22, 1981.

Before closing this judgment we may indicate that we have refrained from expressing any opinion on the nature of any order passed by a Trial Judge in any proceeding under Art. 226 of the Constitution which are not governed by the Letters Patent but by rules framed under the Code of Civil Procedure under which in some High Courts writ petitions are heard by a Division Bench. In other High Court writ petitions are heard by a Single Judge and a right of appeal is given from the order of the Single Judge to the Division Bench after preliminary hearing,

In the circumstances we make no order as to costs. AMARENDRA NATH SEN, J. The only question which falls for determination in this appeal by special leave is whether an order passed by a Single Judge on the original side of the Bombay High Court refusing to grant an injunction or to appoint a receiver in an interlocutory application made in the suit, is appealable or not ? In other words, the maintainability of an appeal filed before a Division Bench of the Bombay High Court against an order of a learned single Judge of the High Court dismissing an interlocutory application for injunction and for appointment of a receiver by way of interim relief pending final disposal of the suit in the original side of the High Court, forms the subject- matter of the present appeal.

The question is of some importance, as there appears to be no uniformity of the view amongst the various High Courts on the competence and the maintainability of such an appeal. The appellant has filed in the original side of the Bombay High Court a suit for specific performance of an agreement dated 12th January, 1979. In the said suit the appellant, as plaintiff in the suit, took out a notice of motion seeking the following reliefs:-

(a) that pending the hearing and final disposal of the suit, the respondent i.e. the defendant in the suit, be restrained by an order and injunction from in any

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manner dealing with or disposing of or alienating or A encumbering the right, title and interest in respect of the said lands and the said land or any part thereof or parting possession of the said land or any part thereof;

(b) that pending the hearing and final disposal of the suit, the Court receiver High Court Bombay or some other fit and proper person be appointed receiver of the said lands which forms the subject-matter of the agreement, with all powers under 0.40, rule I of the Code of Civil Procedure;

(c) ad-interims in terms of prayers (a) (b); and (d) for such further and other reliefs as the nature and circumstances of the case may require. A learned single Judge dealing with the said application of the appellant on the original side of the Bombay High Court dismissed the said application. Against the order of the learned single Judge, the appellant preferred an appeal to the High Court of Bombay. A preliminarily objection has been raised before the appellate Court as to the maintainability of the appeal on the ground that no appeal lay from the order of the learned Single Judge on the original side of the High Court, as the order could not be considered to be a ‘judgment’ within the meaning of cl. IS of the Letters Patent and the appeal was incompetent and not maintainable. The appellate Court for reasons recorded in the Judgment upheld the said preliminary objection, holding that the order under appeal was not a judgment and no appeal would lie from the said order and the appeal, therefore was incompetent and not maintainable. Against the order of the Division Bench of the Bombay High Court, the appellant has preferred this appeal by special leave granted by this Court.

After the hearing of the appeal was concluded, this Court in view of the urgency of the matter passed an order allowing the appeal and remanding the matter to the Bombay High Court for decision of the appeal on merits and this Court observed at the time of the passing of the order that this Court would state reasons later on. The full text of the order has been set out in the judgment of my learned brother Fazal Ali. J.

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I have had the benefit of reading the judgment of my learned brother Fazal Ali, J. in advance. I concur generally with the views expressed by my learned brother. 1, however, propose to state my own reasons for the order earlier passed by us.

The learned counsel appearing on behalf of the respective parties invited us only to decide the question of appealability of the order under appeal without going into the merits of the case. The learned counsel for the parties have submitted before us that there is a conflict of decisions on the question of appealability of an order of this kind and maintainability of an appeal from such an order and this Court should resolve the conflict and decide the question of appealability of such an order and necessarily the maintainability of the appeal to a Division Bench of the High Court. It has been further submitted before us that in the event of this Court holding that an appeal lay from the order in question and an appeal to the the Division Bench from the order was competent and maintainable, this Court should remand the appeal to the High Court for decision on merits and should not in this appeal go into the merits of the case. The learned counsel for the parties, in view of the aforesaid submissions made, did not advance any arguments on the merits of the case before us.

The only question with which we are concerned in this appeal, as I have already indicated, therefore, is whether the order of the learned Single Judge refusing to grant an injunction or to appoint a receiver on the interlocutory application of the appellant, is appeal able or not; or, whether the appeal against the order of the learned Single Judge to the Division Bench of the High Court is competent and maintainable or not.

Mr. Sorabjee, learned counsel appearing on behalf of the appellant, has raised two principal contentions. The first contention urged by Mr. Sorabjee is that in view of the provisions contained in S. 104 of the Code of Civil Procedure read with order 43 thereof, the order is appealable under the Code and an appeal from the order becomes clearly maintainable. The other contention raised by Mr. Sorabjee is that the order should in any event be considered to be a judgment within the meaning of clause IS of the Letters Patent, bearing in mind the provisions contained in S. 104 of the Code of Civil Procedure and also order 43 thereof.

In support of his first contention, Mr. Sorabjee has argued that an appeal is a creature of statute and in the absence of any

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statutory provisions making any other appealable no appeal will A normally lie against any order passed by a single Judge. Mr. Sorabjee contends that cl. I S of the Letter Patent makes such provision for an appeal being filed against any order passed by a learned Single Judge on the original side of the High Court. It is the contention of Mr. Sorabjee that as Cl. 15 of the Letters Patent makes provision for preferring an appeal against an order passed by a learned Single Judge on the original side, provided the conditions laid down in the said clause are satisfied, Code of Civil Procedure and various other Statutes also make provision regarding appeal from orders passed by a learned Single Judge. Mr. Sorabjee has submitted that the Code of Civil Procedure confers substantive rights of preferring appeals against particular orders specified in the Code. In this connection Mr. Sorabjee has drawn our attention to S. 104 and also order 43 of the Code of Civil Procedure. Mr. Sorabjee argues that the Code of Civil Procedure confers a right of appeal on a litigant in respect of the orders which have been made statutorily appealable by the provisions contained in S. 104 and order 43 of the Code of Civil Procedure. It is the argument of Mr. Sorabjee that the Code of Civil Procedure makes inter-alia general provisions with regard to appeals and also specifically confers on the litigant a right in respect of various orders, just as various other statutes make special or specific provisions with regard to the right of appeal in respect of any order under the particular statute. Mr. Sorabjee has submitted that S. 104 of the Civil Procedure Code and order 43 thereof clearly apply to the original side of a High Court. In support of these submissions, Mr. Sorabjee has drawn our attention to the various provisions of the Code and particularly to Ss. 4, 98-104, 116 to 120, and S. 122 and to order 43 rule 1 thereof. Mr. Sorabjee in this connection has also relied on the following decisions :-

1. Mathura Sundari Dass v. Haran Chandra Shall(1)

2. Lea Badin v. Upendra Mohan Roy Choudhary (2)

3. Union of India v. Mohindra Supply Co. (3)

4. Kumar Gangadhar Bagla v. Kanti Chander Mukherji (4)

5. Sonbai v. Ahmedbhai Habibhai (5)

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Mr. Sorabjee has criticised the view expressed by the Bombay High Court that S. 104 of the Code of Civil Procedure and order 43 thereof do not apply to an order passed by a learned Single Judge on the original side of the High Court and an order passed by a learned Single Judge on the original side can only become appealable if the order can be said to be a ‘judgment’ within the meaning of cl. 15 of the Letters Patent. Mr. Sorabjee comments that cl. IS of the Letters Patent does not, in any way, seek to control or curb the provisions contained in S. 104 and order 43 of the Code of Civil Procedure. He submits that a plain reading of the various sections of the Code of Civil Procedure make it clear that the pro visions contained in S. 104 and order 43 of the Code are applicable to the original side of the High Court. It is his submission that the provisions of the Code and the provisions contained in cl. 15 of the Letters Patent are not at all in conflict, as, clause IS of the Letters Patent may make such orders which may not be appealable under the Code, still appealable as judgment under cl. 15 of the Letters. Patent. In other words, it is the submission of Mr. Sorabjee that cl. IS of the Letters Patent and the provisions of the Code are indeed supplementary to each other.

Mr. Sorabjee has fairly submitted that before the Division Bench of the Bombay High Court this argument that the order is appealable under the provisions of the Code and the appeal is, there- t fore, competent was not advanced. It is his submission that this argument was not advanced before the Division Bench of the Bombay High Court, as the view of the Bombay High Court has been that the provisions of S. 104 and of order 43 of the Code of Civil Procedure do not apply to the original side of the Bombay High Court. Mr. Sorabjee has argued that though in this appeal this aspect was not argued before the Division Bench of the Bombay High Court, he is entitled to urge this point before this Court as this point is a pure point of law.

Mr. Sorabjee has next contended that in any event the order under appeal should be considered to be a judgment within the meaning of cl. 15 of the Letters Patent. He argues that the word ‘judgment’ in clause 15 of the Letters Patent should be construed liberally so as to include within its fold any order which has been made appealable by virtue of the provisions contained in the Code or in any other statute. He submits that such an interpretation will be in conformity with the principles of justice and will truly reflect intention of the Legislature and will avoid any kind of conflict

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between the provisions contained in cl. 15 of the Letters Patent and A the provisions contained in the Code of Civil Procedure and in any other statute. It is his submission that the word ‘judgment’ in cl. 15 of the Letters Patent may include various other orders which may not otherwise be appealable under the provisions of the Code or any other Statute but may still become appealable as ‘judgment’ by virtue of the provisions contained in the Letters Patent. In other words, it is the contention of Mr. Sorabjee that the expression ‘judgment’ in cl. 15 of the Letters Patent should be so construed as to include necessarily all orders which are appealable under any statute and also in appropriate cases various other orders which are not expressly made appealable by any statute. He contends that the provisions of the Code contained S. 104 and order 43 or in any other statute with regard to the appealability of any order do not have the effect of curtailing or affecting the special jurisdiction and power of the Court of entertaining an appeal from any other order, if the Court is satisfied that the order is in effect a judgment within the meaning of cl. 15 of the Letters Patent. Mr. Sorabjee has submitted that as to the true meaning, effect and import of the word ‘judgment’ in cl. 15 of the Letters Patent, there is a divergence of judicial opinion, and the word `judgment’ has come up for consideration before various Courts in many cases. In this connection, Mr. Sorabjee has referred to the following decisions :-

1. The Justice of the Peace for Calcutta v. The Orientatal Gas Co. Ltd. (1)

2. T.V. Tulzaram Row v. M.K.R.V. Allagappachettiar (2)

3. Ruldu Singh v. Sanwal Singh (3)

4. Shah Hari Dial & Sons v. Sohnamal Beliram (4)

5. In Re: Dayabhai Jiwandas and Ors. v. A.M.M. Muru- gappa Chettiar (5)

6. Abdul Samad & Ors. v. State of J. & K. (6) 266

7. Standard Glass Beads Factory v. Shri Dhar & Ors.(1)

8. Sri Raja Vallanki Venkata Chinnayamma Rao Bahadur Zimidarni Garu v. Sri Raja Kotagiri Subemma Rao Bahadur Zimidarni Garu (2)

9. Chitaranjan Mandal v. Shankar Prosad Sahani (3)

10. Manohar Damadar Bhoot v. Baliram Ganpat Bhoot (4)

11. Masanta Film Distributors Calcutta v. Sorab Marwanji Modi (5)

12. J.K. Chemicals Ltd. v. Kreba and Co.(6)

13. Kedar Nath Mitter v. Denobandhu Shaha(7)

14. Shorab Merwanji Modi and Anr. v. Mansata Film Distributors and Anr.(8)

15. M.B. Sarkar and Sons v. Powell and Co.(9)

16. Asrumati Devi v. Kumar Rupendra Deb Rai and Ors.(10)

17. State of U.P. v. Dr. Vijay Anand Maharaj(11)

18. National Bell Co. v. Metal Goods Co. (P) Ltd.(12)

19. Shanti Kumar R. Canji v. The Home Insurance Co. Of New York(13)

Mr. Sorabjee has submitted that this Court should lay down the guidelines or enumerate the principles to remove the confusion and resolve the conflict in the sphere of judicial determination as

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to what constitutes ‘judgment’ within the meaning of cl 15 of the Letters Patent.

Mr. Kapadia and Mr. Venugopal, learned counsel for the Respondents, have submitted that the provisions of the Code of Civil Procedure contained in S. 104 and order 43 thereof are not applicable to the original side of the Bombay High Court which is a Chartered High Court in view of the provisions contained in cl. 15 of the Letters Patent. They have argued that special jurisdiction has been conferred in the matter of preferring an appeal against an order of a Single Judge on the original side of a Chartered High Court by cl. 15 of the Letters Patent and this special jurisdiction of the High Court cannot in any way be affected by the provisions of the Code. In support of this contention reference has been made to Ss. 3 and 4 of the Code of Civil Procedure and particular reliance has been placed on S. 4. They have also strongly relied on the decision of the Bombay High Court in the case of Vaman Raoji Kulkarni v. Nagesh Vishnu Joshi(1) and also on the decision of the same High Court in the case of J.K. Chemicals Ltd. v. Kreba and Co. (supra). They have submitted that these judgments for cogent reasons recorded therein represent correct law and the view expressed by the Bombay High Court to the effect that S. 104 and order 43 of the Code of Civil Procedure do not apply to the original side of the Bombay High Court, has been consistently followed by the Bombay High Court and should be upheld by this Court. They have also relied on the following observations of the Judicial Committee in the case of Hurrish Chunder Chowdhry v. Kali Sundari Debia(2) at p. 17:- “It only remains to observe that their Lordships do not think that sec. 588 of Act X. Of 1877, which has the effect of restricting certain appeals, applies to such a case as this, where the appeal is from one of the Judges of the Court to the full Court.” They have argued that if the provisions of the Code are not held to be applicable to the original side of the Bombay High Court, then the appeal from the order of the learned Single Judge can only be maintained if the order becomes a ‘judgment’ within the meaning

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of cl. 15 of the Letters Patent. They have contended that an order on an interlocutory application refusing to grant an injunction or appoint a receiver cannot be considered to be a ‘judgment within the meaning of cl. 1 S of the Letters Patent, as such an order virtually does not decide anything and does not in any way affect the merits of the suit. They have also relied on the decisions which were cited by Mr. Sorabjee and they have placed particular reliance on the decision of the Bombay High Court in the case of J.K. Chemicals Ltd. v. Kreba and Co. (supra). Mr. Kapadia and Mr. Venugopal have both pointed out to us that the question of appealability of the order under the provisions of the Code was not argued before the High Court in the instant case and was sought to be argued for the first time in this Court. Both of them, however, have fairly stated that the question is one of law and one of of considerable importance and the Court should decide the same.

I propose to deal with the question of applicability of the provisions contained in S. 104 and order 43 of the Code of Civil Procedure to the original side of the Bombay High Court in the first instance. Before I deal with the contentions urged by the counsel for the respective parties, it will be convenient to consider the relevant provisions of the Code. S. I of the Code makes it clear that the Act is applicable to whole of India excepting the places mentioned in the said section and the Act, therefore, applies to Maharashtra. S. 3 of the Code provides that for the purpose of this Code, the District Court is subordinate to the High Court, and every Civil Court of a grade inferior to that of a District Court and every Court of Small Causes is subordinate to the High Court and District Court. S. 4 of the Code reads:-

“(1) In the absence of any specific provision to the contrary, nothing in this Code shall be deemed to limit or otherwise affect any special or local law now in force or any special jurisdiction or power conferred, or any special form of procedure prescribed, by or under any other law for the time being in force.

(2) In particular and without prejudice to the generality of the proposition contained in sub- section (1), nothing in this Code shall be deemed to limit or otherwise

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affect any remedy which a landholder or landlord may have under any law for the time being in force for the recovery of lent of agricultural land form the produce of such land.”

S. 5 of the Code deals with the applicability of the provisions of the Code to Revenue Courts. S. 100 of the Code deals with appeals from Appellate Decree and S. 100-A which has been introduced into the Code w.e.f. 1.2.1977 by the Amending Act, 104 of 1976 provides that notwithstanding anything contained in Letters Patent for any High Court or in any other instrument having the force of law or in any other law for the time being in force, where any appeal from an appellate decree or order is heard and decided by a single Judge of a High Court, no further appeal shall lie from the judgment, decision or order of such Single Judge in such appeal or from any decree passed in such appeal. The material provisions of S. 104 are:-

“S. 104 (1); An appeal shall lie from the following orders, and save as otherwise expressly provided in the body of this Code or by any law for the time being in force, from no other orders :- x x x x

x x x x

(ff) an order under S. 35A;

(fa) an order under S. 91 or S. 92 refusing leave to institute a suit of the nature referred to in S. 91 or S. 92 as ‘the case may be;

(g) an order under S 95;

(h) an order under any of the provisions of this Code imposing a fine or directing the arrest or detention in the Civil prison of any person except where such arrest or detention is in execution of a decree;

(i) any order made under rules from which an appeal is expressly allowed by rules;

Provided that no appeal shall lie against any order specified

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in clause (i) save on the ground that no order, or an order for the payment of a less amount, ought to have been made.

(2) No appeal shall lie from any order passed in appeal under this section. “

Sections 105 and 106 may also be quoted:- “(1) Save as otherwise expressly provided no appeal shall lie from any order made by a Court in the exercise of its original or appellate jurisdiction; but, where a decree is appealed from, any error, defect or irregularity in any order, affecting the decision of the case, may be set forth as a ground of objection in the memorandum of appeal;

(2) Notwithstanding anything contained in sub-section (1), where any party aggrieved by an order of remand from which an appeal lies does not appeal the reform, he shall thereafter be precluded from disputing its correctness.

S. 106: Where an appeal from any order is allowed it shall lie to the Court to which an appeal would lie from the decree in the suit in which such order was made, or where such order is made by a court (not being a High Court) in the exercise of appellate jurisdiction, then to the High Court.”

Special provisions relating to the High Courts, not being the court of a Judicial Commissioner, are made in para IX of the Code which consists of five sections namely Ss. 116 to 120 and the said sections are as follows:- “S. 116: This Part applies only to High Courts not being the Court of a Judicial Commissioner. S. 117: Save as provided in this Part or in part X or in rules, the provisions of this Court shall apply to such High Courts.

S. 118: Where any such High Court considers it necessary that a decree passed in the exercise of its original civil jurisdiction should be executed before the amount of

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the costs incurred in the suit can be ascertained by taxation, the Court may order that the decree shall be executed forthwith, except as to so much thereof as relates to the costs:

and, as to so much thereof as relates to the costs, that the decree may be executed as soon as the amount of the costs shall be ascertained by taxation. S. 119: Nothing in this Code shall be deemed to authorise any person on behalf of another to address the Court in the exercise of its original civil jurisdiction, or to examine witnesses, except where the Court shall have in the exercise of the power conferred by its charter authorised him so to do, or to interfere with the power of the High Court to make rules concerning advocates, vakils and attorneyes. S. 120: The following provisions shall not apply to the High Court in the exercise of its original civil jurisdiction, namely, secs. 16, 17 and 20. S. 122 empowers the High Courts, not being the Court of a Judicial Commissioner to make rules regulating their own procedure and the procedure of the Civil Courts subjects to their superintendence. S. 129 further provides: “Notwithstanding anything in this Code, any High Court not being the Court of a Judicial Commissioner may make such rules not inconsistent with the Letters Patent or order or other law establishing of it to regulate its own procedure in the exercise of its original civil jurisdiction as it shall think fit, and nothing herein contained shall affect the validity of any such rules in force at the commencement of this Code.

The material provisions contain in O. XLIII of the Code of Civil Procedure may be set out:

“An appeal shall lie from the following orders under the provisions of S. 104, namely:-

x x x x

x x x x

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(q) an order under rule 2, rule 3 or rule 6 of order XXXVIII:

(r) an order under rule 1, rule 2, rule 2A, rule 4 or rule 10 of O. XXXIX;

(s) an order under rule 1, or rule 4 of order XL. x x x x

2. The rules of O. XLI shall apply, so far as may be, to appeals from orders.”

On a proper analysis of the relevant provisions of the Code there cannot be, in my opinion, any manner of doubt that S. 104 and order 43 of the Code of Civil Procedure apply, to the original side of the Bombay High Court. It is not in dispute and it cannot be disputed that the Code of Civil Procedure applies to the High Court. S. 1 of the Code which provides for territorial extent of the operation of the Code makes this position abundantly clear. The argument is that S. 104 and order 43 of the Code do not have any application to the original side of the High Court, although various other provisions of the Code may apply to the High Court-including its original side. This argument, as we have earlier noticed, is made mainly on the basis of the provisions contained Ss. 3 and 4 of the Code. S. 3 of the Code deals with subordination of Courts. It is no doubt true that a learned Single Judge dealing with any matter on the original side discharges his duties as a Judge of the High Court, and he can, therefore, be in no way subordinate to the High Court. When a division Bench of a High Court hears an appeal from any decree, order or judgment of any Single Judge of the High Court in its original side there can be no question of any subordination of the Judge, presiding over a Bench on the original side of the High Court to the High Court. An appeal admittedly lies to a division Bench of the High Court from any order passed by a learned single Judge on the original side under cl. 15 of the Letters Patent, if the order is a ‘Judgment’ within the meaning of the said clause. An appeal also admittedly lies from a decree passed by a Single Judge on the original side of the High Court to a division Bench of the High Court. A division Bench, properly constituted, is perfectly competent to hear an appeal from any such order which may constitute a judgment within the meaning of cl. 15 and from any decree by a Single Judge on the original side of the

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High Court. In the same way, in case of any other order in respect of which right to prefer any appeal has been conferred by a statute, a division Bench of the High Court will be competent to hear such an appeal. S.3 of the Code, in my opinion, has really no bearing on the question and creates no bar to the competence and maintainability of an appeal from an order passed by a Judge on the original side, if the order is otherwise appealable. S. 4 of the Code has been enacted to preserve any special or local law in force. An analysis of the material part of this section clearly indicates that in the absence of any specific provision to the contrary, no provision in the Code shall be deemed to limit or otherwise affect any special or local law in force or special jurisdiction or power conferred or any special form of procedure prescribed by or under any Jaw for the time being in force. The argument that S. 104 and order 43 of the Code affect the special jurisdiction or power conferred on the High Court under cl. 15 of the Letters Patent is, to my mind, untenable. Cl. 15 of the Letters Patent was enacted to provide for an appeal from the Courts of original jurisdiction to the High Court in its appellate jurisdiction and the said clause undoubtedly confers power for the hearing of an appeal from a judgment of any judge on the original side of the High Court. Though cl. 15 makes special provisions in relation to appeal from a judgment of a learned single Judge on the original side, yet it cannot be said that the side clause intended to lay down that in no other case an appeal will lie from an order passed by any learned Judge on the original side, even if any specific provision is made in any other statute making any other order appealable. An appeal, it has to be remembered, is a creature of a statute and litigant generally does not have a right of appeal against any decision of a competent Court unless a right of appeal has been specifically conferred on the litigant by law. Cl. 15 of the Letters Patent confers on the litigant a right to prefer an appeal against any judgment. Any order which is considered to be a ‘judgment’ will be appealable by virtue of the provisions contained in cl. 15 of the Letters Patent. In the same way other statutes may confer on the litigant the right to prefer an appeal against an order; and by virtue of the provisions of the statute such an order shall become appealable. If any other statute confers on the litigant any right to prefer an appeal in respect of any other order, it cannot be said that such a provision creating a right of appeal in any way affects the provisions contained in cl. 15 of the Letters Patent. The special power and jurisdiction of the High court under cl. 15 to entertain an appeal from any judgment is in no way affected and is fully retained;

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and in addition to the said power, a High Court may be competent to entertain other appeals by virtue of specific statutory provisions. S. 4 of the Code cannot, therefore, be said to be in conflict with the provisions contained in cl. 15 of the Letters Patent and S. 4 of the Code does not limit or otherwise affect the power and jurisdiction of the High Court under cl. 15 of the Letters Patent. On the other hand, the Code contains specific provisions which go to indicate in which case or to which Court the provisions of the Code, may or may not be applicable. S. S of the Code makes specific provisions regarding the nature and manner of applicability of the Code to Revenue Courts and the Revenue Court has also been defined in the said section. On the other hand, in Ss. 116 to 120 it is convincingly indicated that S. 104 and order 43 of the Code of Civil Procedure apply to the original side of a High Court. Ss. 116 to 120 are contained in part IX of the Code which makes special provisions relating to High Courts (not being the Court of Judicial Commissioner). S. 117 specifically provides that the provisions of the Code shall apply to High Court save as provided in part IX or in part X. S. 120 contained in part IX lays down that the provisions contained in Ss. 16, 17 and 20 of the Code shall not apply to the High Court in the exercise of its original civil jurisdiction. Part X which deals with rules and manner of framing thereof does not have any material bearing on the question of applicability of S. 104 and order 43 of the Code to the original side of the High Court. The effect of the special provisions contained in part IX relating to High Courts, therefore, clearly appears to be that the provisions of the Code have as provided in Part IX or Part X or in rules, apply to the original side of the High Court and Ss. 16,17 and 20 of the Code do not apply to the High Court in the exercise of its original civil jurisdiction. S. 104 of the Code is contained in part VII which deals with appeals. Part VII of the Code dealing with appeals consists of the sections commencing from Ss. 96 to 112. This part VII dealing with appeals makes provisions for an appeal from original decrees, appeals, appellate decrees, appeals from orders, general provisions relating to appeals and also appeals to the Supreme Court. S. 104 of the Code provides for appeals from orders and clearly stipulates that an appeal shall lie from the orders mentioned therein and save as otherwise expressly provided in the body of the Code or by any law for the time being in force, from no other order. Order 43 which is attracted by S. 104 of the Code clearly provides that an appeal shall lie from the orders mentioned in rule 1 of o. 43 under the provisions of S. 104 and the orders referred to therein particularly in (q), (r) and (s) clearly

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indicate that the order in question is an appealable order. As I have earlier observed that an appeal is a creature of a statute and the right to appeal is only enjoyed, if law confers any right. The Code of Civil Procedure clearly makes the order in question an appealable one. The legislature has thought it fit to confer a right on the litigant to prefer an appeal in respect of the orders mentioned in S. 104 of the Code read with order 43 thereof. A Court will be slow to deprive a litigant of the statutory right merely on the ground that the order in question has been passed by a learned Judge on the original side of the High Court. It may further be pointed out that S. 104 which makes the order under appeal and also various other orders referred to therein appealable under the Code, recognises that apart from the order made appealable under the Code there may be other orders appealable by any law for the time being in force and further provides that no appeal will lie from any orders other than the orders expressly provided in the body of the Code or by any other law in force. The right of appeal against a judgment of a learned single Judge on the original side under cl. 15 of the Letters Patent is a right conferred by any other law in force. It may be pertinent to point out in this connection that by incorporating S. 100A in the Code (by the Amending Act 104 of 1976, S. 38), the Legislature has thought it fit to interfere with the right of appeal in certain cases, even if such right had been conferred by Letters Patent or any other law. This right of appeal under cl. 15 of the Letters Patent is in no way curtailed or affected by S. 104 of the Code of Civil Procedure and S. 104 seeks to confer the right of preferring an appeal in respect of the various orders mentioned therein. In other words, by virtue of the provisions contained in S. 104(1), a litigant enjoys the right of preferring an appeal in respect of various orders mentioned therein, even though such orders may or may not be appealable under cl. 15 of the Letters Patent as a judgment and the right of appeal under cl. 15 of the Letters Patent remains clearly unimpaired. In this connection the following observations of this Court in the case of Union of India v. Mohindra Supply Co. (supra) at p. 511 may be usefully quoted:-

“The intention of the legislature in enacting the sub-s.(1) of S. 104 is clear: the right to appeal conferred by any other law for the time being in force is expressly preserved This intention is emphasised by s. 4 which provides that in the absence of any specific provision to the contrary

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nothing in the Code is intended to limit or otherwise affect any special jurisdiction or power conferred by or under any other law for the time being in force. The right to appeal against judgments (which did not amount to decrees under the Letters Patent, was therefore not affected by s. 104(1) of the Code of Civil Procedure, 1908″.

It will be apt in this connection to bear in mind the view expressed by the Privy Council in the case of Mt. Savitri Thakurain v. Savi and Anr.,(1) the Judicial Committee held at p. 82-83 as follows:-

“The orders and rules under the Code are by Section 121 given the same affect as if they had been enacted in the Code, and therefore order 41, Rule 10, is one of the pro visions of the Code. It applies to appeals in the High Court, including the present appeal, unless any particular section of the Act can be found to exclude it. Section 104(1) is the section relied on for this purpose It prescribes what orders shall be appealable and enumerates them, and among the orders enumerated there is not included such an order as that made by Choudhary, J. Out of the operation of Section 104 there are, however, expressly excepted matters, which are otherwise expressly provided for in the body of the Code. In order to appreciate the full effect of section 104 it should be compared with the corresponding section of the Act of 1882, Section 588. The earlier section enacted that appeals should lie in certain cases, which it enumerated, ‘and from no other such orders.’ This raised this question nearly whether an appeal, expressly given by Section 15 of the Letters Patent and not expressly referred to in Section 588 of the Code of 1882, could be taken away by the general words of the section 581 and in the wording of section 104 of the Act of 1908 is significant for it runs, ‘and same as otherwise expressly provided….by any law for the time being in force, from the other orders’.

Section 15 of the Letters Patent is such a law, and what it expressly provides namely, an appeal to the High Court’s appellate jurisdiction from a decree of the High

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Court in its original ordinary jurisdiction, is thereby saved. Thus regulations duly made by orders and Rules under the Code of Civil Procedure, 1908 are applicable to the jurisdiction exercisable under the Letters Patent, except that they do not restrict the express Letters Patent appeal.”

The effect of sub-section (1) S. 104, therefore, is clearly not to affect any existing special or local law or any special jurisdiction or power conferred and to preserve any existing right of appeal whether under any statute or the Letters Patent and to create a further right of preferring an appeal in respect of the orders enumerated therein. C In the case of Mathura Sundari Dassi v. Haran Chandra Shaha and Ors. (supra), Sanderson, C.J. Observed at p. 362 as follows:

“I would be very loth to hold that this order is not a ‘judgment’ within the meaning of cl. 15 of the Letters Patent, but it is not necessary in my judgment to give a definite opinion upon it because I think, on the second point, the Code does give a right of appeal. By clause 14 of the Letters Patent it is provided as follows: ‘And we do further ordain and declare that all the provisions of these our Letters Patent are subject to the legislative powers of the Governor-General in Council, exercised at meetings for the purpose of making law and regulations’. By the terms of S. 117 the code is made applicable to the High Court, and o. 43. R. 1, gives a right of appeal in the very case under discussion. But it is said that this Code and the rules made under it do not apply to an appeal from a learned Judge of the High Court. I cannot follow that argument. It is part of the defendant’s case that O.9, R. 8 applies. That order is in effect a part of the Civil Procedure Code. It seems to me strange that the plaintiff should be subjected to O.9, R. 8, and be liable to have his suit dismissed for want of appearance, yet when he has had his suit dismissed under one of the rules of the Code and wants to call in aid another of the rules which- when his application for reinstatement has been refused gives him a right of appeal against that refusal, he is met with the argument that he cannot call in aid that rule because there is no appeal from the learned Judge of the High Court under the Civil Procedure Code. I think this 278

is not a true view or a reasonable construction to put upon the Code and the Rules made under it. In my judgment, the Code and the rules do apply and the plaintiff has a right of appeal.”

Sri Aushotosh Mookherji in his judgment in the same case at pp. 364-365 held as follows:

“The question, consequently, arises whether O,43, r. 1, clause (c), is applicable to an order under o. IX, r. 9, made by a Judge on the original side of this Court.

On behalf of the appellant, reliance has been placed upon S. 117 of the Code which lays down that ‘save as provided in this part or in part X or in rules, the High Court established under the Indian High Courts Act, 1961.’ The only provision in Part IX, which may have any possible hearing is that contained in S. 120 which obviously does not touch the present question. The provision in Part X, which deal with the matter, is contained in S. 129: this also does not militate against the contention of the appellant. The term ‘rule’, which finds a place in S. 117, is defined in clause 18 of S. 2 of the Code to mean ‘a rule contained in the first Schedule or made under S. 122 or S. 125′. Our attention has not been drawn to any such rule which makes o. 43, R. 1, Clause (e), inapplicable. On the other hand O.49, R. 3, which excludes the operation of other rules, lends support to the contention of the appellant that o. 43, r. 1, cl. (c) is applicable to the present appeal.

But it has been argued on behalf of the respondents, on the authority of the decision of the Judicial Committee in Hurriah Chandra Choudhary v. Kali Sudari Dasi that the Civil Procedure Code, in so far as it provides for appeals, does not apply to an appeal preferred from a decision of one Judge of a High Court to the Full Court. The true effect of the decision of the Judicial Committee was considered by this Court in Toolses Money Dassesv. Sudevi Dasses (1890) 25 Cal. 361) but it is not necessary for my present purpose to determine its hearing in all its implications, because in my opinion, the law has been substantially altered since that decision was pronounced. S. 104 279

Of the Code of 1908 is materially different from S. 588 of Code of 1882. It provides that an appeal shall lie from the orders mentioned in the first clause of that section, and save as otherwise expressly provided in the body of the Code or by any law for the time being in force, from no other orders’. The effect of S. 104 is thus, not to take away a right of appeal given by clause IS of the Letters Patent, but to create a right of appeal in cases even where clause 15 of the Letters Patent is not applicable. I may here observe perethically that in the case of Tooles Money Dasses v. Sudevi Dasses. Princep J. felt pressed by the argument that if an appeal was deemed to have been allowed by the Code of Civil Procedure, there was no provision for the Constitution of a Court to which such an award might be preferred. S. 106 of the Code, however, lays down that “where an appeal from any order is allowed, it shall lie to the Court to which an appeal would lie from the decree in the suit in which such order was made.’ Consequently, where a right of appeal has been so given, it would be the duty of this Court to constitute a Court of Appeal under S. 13 of the Indian High Courts Act. 1 hold accordingly that this appeal is competent under cl. tc), R. 1, o. 43 of the Civil Procedure Code.”

In the case of Lea Badin v. Upendra Mohan Roy Chaudhry (supra), a Division Bench of the Calcutta High Court held at p. 37 as follows:

“But there is another and far simpler ground on which it must he held that an appeal is competent. The order in the present case is one for which a right of appeal ii provided in cl. (s). R. 1, o. 43 of the Code. Under the pre sent Code (Act 5 of 1908) it cannot be contended that the Code and the Rules made under it do not apply to an appeal from a learned Judge of the High Court; such a contention was elaborately dealt with and repelled in the case of 1918 Cal. 361(4)”. On a plain reading of the various provisions of the Code and on a proper construction thereof I have no hesitation in holding that S. 104 of the Code of Civil Procedure applies to the original side of the High Court and the order in question is clearly appealable by virtue of the provisions contained in S. 104(1) read with order 280

43 thereof. The authorities to which I have referred also lend support to the view that I have taken. A contrary view expressed by any High Court must necessarily be considered to be wrong and incorrect. The leading decision of the Bombay High Court in the case of Baman Rao Kulkarini v. Naresh Vishnu Joshi (supra) proceeds on an incorrect appreciation and interpretation of the provisions of the Code. As I have earlier discussed, there is no question of S. 104 of the Code of Civil Procedure purporting to control of cl. 15 of the Letters Patent. It may, on the other hand, be said that S. 104 of the Code seeks to supplement cl. 15 of the Letters Patent by conferring a right of appeal in the case of various orders mentioned in sub-section (1) of S. 104, which brings in its purview S. 43 of the Code. The further approach of the Bombay High Court in that case as to subordination of a judge of the High Court sitting singly on the original side, is fallacious and untenable. An appeal under cl. 15 of the Letters Patent from a judge sitting singly on the original side of the High Court becomes competent to a division Bench and a learned judge against whose judgment the appeal is preferred does not become subordinate to the High Court. There is in fact no question of subordination at all.

The observations of the Judicial Committee in the case of Hurish Chandra Choudhary v. Kali Sudari Dasi (supra) at p. 17 relied on by the learned counsel for the Respondents are of no material assistance to them. I have already quoted the said observations of the Judicial Committee. The said observations made in relation to the provisions of S. 588 of the Act 10 of 1877 only go to lay down that the said section which has the affect of restricting certain appeals does not have the affect of restricting the right of appeal under cl. 15 of the Letters Patent and does not apply to a case where an appeal is one under cl. 15 of the Letters Patent. It may further be noted that the law has since the said decision been substantially altered and S. 104 of the Code of Civil Procedure of 1908 is materially different from S. 588 of the Code of 1882. This decision of the Judicial Committee has already come up for consideration by a division Bench of the Calcutta High Court in the Mathura Sudari Dassi v. Haran Chandra Shaha (supra).

I, therefore, accept the first contention of Mr. Sorabjee that the order in question is appealable under S. 104 (1) of the Code read with order 43 thereof and the said provisions of the Code apply to the original side of the Bombay High Court and the appeal preferred 281

from the order of the learned single judge to the Division Bench of A the Bombay High Court was competent and maintainable.

In view of my accepting the first contention of Mr. Sorabjee it does not really become necessary for me to consider the other contention raised by him, namely, that the order in question is also appealable as a ‘judgment’ under cl. 15 of the Letters Patent. As elaborate arguments have been advanced on this aspect and various decisions have been cited, my learned brother Fazal Ali, J. has in his judgment also considered this aspect and has dealt with various cases, in deference to the submissions made from the bar that this Court should lay down guidelines as to what will constitute a ‘judgment’ within the meaning of cl. l S of the Letters Patent.

An order which is appealable under the Code or under any other statute becomes appealable as the statute confers a right on the litigant to prefer an appeal against such an order. Such an order may or may not be appealable as ‘judgment’ under cl. 15 of the Letters Patent. An order which may be appealable under cl. IS of the Letters Patent as a ‘judgment’ becomes appealable as Letters Patent confers on the litigant a right of appeal against such an order as ‘judgment’. An order appealable under the Letters Patent may or may not be appealable under the Code. A right of appeal is a creature of Statute. A litigant does not have an inherent right to prefer an appeal against an order unless such a right is conferred on the litigant by law. Certain orders become appealable under the Code, as the Code makes such orders appealable. Other Statutes may confer a right of appeal in respect of any order under the Statute. The Letters Patent by cl. 15 also confers a right to prefer an appeal against a ‘judgment’. An order which satisfies the requirements of ‘judgment’ within the meaning of cl. 15 becomes appealable under the Letters Patent. What kind of an order will constitute a ‘judgment’ within the meaning of cl. 15 of the Letters Patent and will become appealable as such much necessarily depend on the facts and circumstances of each case and on the nature and character of the order passed. The question whether a particular order constitutes a judgment within the meaning of cl. 15 of the Letters Patent to be appealable under the provisions thereof has come up for consideration before the various Courts in a number of decision. Very many decisions have been cited in the present case and they have been considered by my learned brother, Fazal Ali, J. in his judgment. The question indeed, is not free from difficulties and divergent views have been expressed by different Courts and by various learned 282

Judges. This Court had also the occasion to consider as to what may constitute a judgment within the meaning of cl. 15 of the Letters Patent in certain cases. In the case of Shanti Kumar R. Canji v. The Home Insurance Co. Of New York (Supra) this Court referring to the earlier decision of this Court in the case of Asrumati Debi v. Kumar Rupendra Deb Rajkot & ors (supra), observed at p. 550-“This Court in Asrumati Debi’s case said that a judgment within the meaning of cl. 15 of the Letters Patent would have to satisfy two tests. First, the judgment must be the final pronouncement which puts an end to the proceedings as far as the Court dealing with it is concerned. Second, the judgment must involve the determination of some right or liability though it may not be necessary that there must be a decision on merits”. This Court further observed at p. 555-“The view of the High Courts of Calcutta and Madras with regard to the meaning of ‘judgment’ are with respect preferred to the meaning of ‘judgment’ given by the Rangoon and Nagpur High Court.” This Court also held at p. 556-“In finding out whether the order is a ‘judgment’ within the meaning of cl. IS of the Letters Patent it has to be found out that the order affects the merits of the action between the parties by determining some right or liability. The right or liability has to be found out by a Court. The nature of the order will have to be examined in order to ascertain whether there has been a determination of any right or liability.” In my opinion, an exhaustive or a comprehensive definition of ‘judgment’ as contemplated in ch IS of the Letters Patent cannot be properly given and it will be wise to remember that in the Letters Patent itself, there is no definition of the word ‘judgment’. The expression has necessarily to be construed and interpreted in each particular case. It is, however, safe to say that if any order has the effect of finally determining any controversy forming the subject- matter of the suit itself or any part thereof or the same affects the question of Court’s jurisdiction or the question of limitation, such an order will normally constitute ‘judgment’ within the meaning of cl. IS of the Letters Patent. I must not, however, be understood to say that any other kind of order may not become judgment within the meaning of cl. IS of the Letters Patent to be appealable under the provisions thereof. As already stated, it is not necessary to decide in the present case whether the order in question would be appealable under cl. IS of the Letters Patent as judgment; and I, therefore, refrain from expressing any opinion on this question.

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