In the instant case, the suspicious circumstance appears to be that
when the Will was being executed, the thumb impression over the alleged
Will was also taken by the beneficiaries and the document-writer was shown
to be scribe of the document, whereas the document was not scribed by him.
However, late Phoolbasa Bai although filed written statement before her
death, but she did not whisper anything about the Will in the written
statement. Admittedly, the Will was allegedly executed in 1977 whereas the
written statement was filed some time in 1987. Taking into consideration
all these facts, we do not filed any error in the conclusion arrived at by
the High Court. The said finding, therefore, needs no interference by this
Court.
—————————————————————————————————————————

REPORTABLE

IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION

Civil Appeal No.3410 of 2007

DHANNULAL AND OTHERS …..Appellant(s)

versus

GANESHRAM AND ANOTHER …..Respondent(s)

WITH

Civil Appeal No.3411 of 2007
GANESHRAM …..Appellant(s)

versus

DHANNULAL AND OTHERS …..Respondent(s)

JUDGMENT

M. Y. EQBAL, J.

Aggrieved by the judgment and order passed by the High Court, partly
dismissing First Appeal No.92 of 2001, both the plaintiff and the
defendant have filed the aforementioned two appeals. While confirming
judgment and decree, the High Court reversed the finding recorded by the
trial court on the issue of will executed by the testatrix.

2. The plaintiff-Ganeshram, appellant in Civil Appeal No.3411 of 2007,
filed suit for declaration, possession and damages in relation to the two
suit houses described in Schedule A & B of the plaint, pleading inter alia
that the registered sale deed of 1987, executed by Phoolbasa Bai (original
defendant no.1, who died during the pendency of the suit) in favour of
defendant no.5 Mukesh Kumar Chourasia, which relates to some portion of
suit house, be declared illegal, void and not binding on him.

3. To understand factual matrix and issue involved in the case, we would
like to reproduce here the pedigree table as submitted before us:

Shivram
(Died in 1932)
____________________________________|_____________________________
| |
Sumitrabai (Daughter)(died in 1976) Chhatrapati(Son) (died in
1945)
Husband of Sumitra-Mangal Prasad Kept-wife: Phulbasabai (def.no.1)
(Died in 1954) |
| Mannulal (son)(
| (died unmarried on 14.4.1967)
______|___________________________
| |
Shyamlal (son) Radha Bai (daughter)
(died in 1973)
|
_______|____________________________________________________
| | |
Ganeshram (son) Laxmi Bai (daughter) Ganga Bai (daughter)
Plaintiff

4. The suit property was originally owned by Shivram who had a daughter
Sumitrabai and a son Chhatrapati. The plaintiff, the grandson of
Sumitrabai, filed a suit for declaration of ownership, possession and
damages in relation to the suit property against defendant nos.1 to 5. The
plaintiff challenged the validity of the Will dated 18.08.1977 purported to
have been executed by Phoolbasa Bai in favour of the sons of her brother
Gayaprasad, defendant nos.1-4. The plaintiff also challenged the validity
of the sale deed purported to have been executed by Phoolbasa Bai in 1987
in favour of defendant no. 5 in relation to a portion of the suit property.

5. The plaintiff alleged that Sumitrabai (plaintiff’s grandmother) had
become the owner of the suit property by adverse possession having stayed
therein, after the death of her husband Mangal, with her father Shivram
till his death in 1932 and till her own death in 1976. Phoolbasa Bai was
alleged to have been the mistress and not the legally wedded wife of
Chhatrapati and their son was alleged to have died unmarried and issueless
in 1967. The sale deed and the Will purported to have been executed by
Phoolbasa Bai were alleged to be illegal.

6. The suit was contested firstly by filing joint written statement by
the original defendants namely Phoolbasa Bai and Gaya Prasad stating that
after the death of Shiv Ram the entire property was succeeded by
Chhatrapati (his only son) as Sumitrabai was a married daughter. It was
further pleaded that Phoolbasa Bai, being the lawful wedded wife of
Chhatrapati, became the owner of the suit property after Chhatrapati’s
death in 1945. During the pendency of the suit, when Phoolbasa died, she
was substituted by defendant nos.1 to 4, who also filed separate written
statement in addition to earlier written statement filed by the original
defendants. Defendant no.5 also filed separate written statement claiming
to be the owner of the portion of property by virtue of a sale deed
executed in his favour in 1987.

7. The trial court dismissed the civil suit holding that the Will
executed by Phoolbasa in the year 1977 in favour of defendants nos.1 to 4
is legal and the sale effected by her during the pendency of the civil suit
in favour of defendant no.5 is also legal and valid. The trial judge
recorded the finding that Sumitra Bai had not perfected her title by
adverse possession and the plaintiff could not establish that Phoolbasa Bai
was a concubine of late Chhatrapati. The trial court also recorded a
finding that the plaintiff failed to establish that the Will was a
fraudulent and fabricated document.

8. Aggrieved by the judgment and decree of the trial court, plaintiff
moved the High Court preferring First Appeal, which was partly dismissed by
the learned Single Judge of the High Court. Although learned Single Judge
set aside the finding of the trial court on the issue of validity of the
Will on the ground that the Will was not proved as per law, but upheld the
sale deed executed by Phoolbasa Bai in favour of defendant no.5. The
concluding paragraphs of the impugned order are, therefore, quoted
hereinbelow:

“In the facts and circumstances, the sale in favour of defendant no.5 was a
valid sale and the same cannot be held to be illegal, void and not binding
against the plaintiff. The arguments advanced in this regard cannot be
accepted.

Now the question arises, what should be the legal position after the death
of Smt. Phoolbasa and her son namely Mannulal when it has been held that
the alleged will executed in favour of defendants nos.1 to 4 was not
proved. Certainly these properties were succeeded by her from her husband
or from her father-in-law, therefore, according to Section 15(2)(b) of the
Hindu Succesion Act, this shall devolve, in the absence of any son or
daughter of the deceased (including the children of any predeceased son or
daughter) upon the heirs of her husband. In this case, if we look to the
pedigree set forth in the plaint, the succeeding heir of her husband,
namely Chhatrapati, would be sister’s daughter which finds place as serial
no.4 in Entry IV of Class II of Schedule. When Radha Bai, the sister’s
daughter is said to be alive on the date of succession according to the
plaint allegations itself, then the plaintiff, in the reversionary right
will not get the ownership of the property.

In the result, the appeal is dismissed. The judgment and decree passed by
the trial court are hereby confirmed with the aforesaid modifications in
the finding regard the ‘Will’.”

9. Hence, present cross appeals filed by both side against each other
including purchaser-defendant no.5. Defendants nos.1 to 4 have preferred
Civil Appeal No.3410 of 2007 and the plaintiff has preferred Civil Appeal
No.3411 of 2007.

10. Mr. Naveen Prakash, learned counsel appearing for the plaintiff-
appellant in C.A. No.3411 of 2007 assailed the finding on the relationship
of Chhatrapati and Phoolbasa Bai as husband and legally married wife.
Learned counsel submitted that no witness from the side of defendant has
been examined to prove the marriage of Phoolbasa Bai with Chhatrapati.
Learned counsel further submitted that no finding has been recorded by the
Trial Court or the Appellate Court as to when Chhatrapati died. However,
in course of argument, learned counsel does not deny that Phoolbasa Bai was
living with the joint family when Chhatrapati was alive for the last 20
years, but there is no evidence of valid marriage.

11. We are unable to accept the submissions made by Mr. Naveen Prakash,
learned counsel appearing for the plaintiff-appellant. Indisputably, the
first wife of Chhatrapati died in the very early age and immediately
thereafter the original defendant No.1 Phoolbasa Bai started living with
Chhatrapati as his second wife. Out of the wedlock of Phoolbasa Bai and
Chhatrapati, one son was born, whose name was Mannu Lal. The said son of
Chhatrapati and Phoolbasa Bai died unmarried. It is also not in dispute
that the original owner Shiv Ram had only one son namely, Chhatrapati and
one daughter Sumitrabai. Phoolbasa Bai died during the pendency of the suit
in the year 1992. The relationship of Chhatrapati and Phoolbasa Bai has
not been denied. It has also not been denied that they had been living
together as husband and wife in a joint family.

12. In the fact of the case there is strong presumption in favour of the
validity of a marriage and the legitimacy of its child for the reason that
the relationship of Chhatrapati and Phoolbasa Bai are recognized by all
persons concerned.

13. In the case of A. Dinohamy vs. W.L. Balahamy, AIR 1927 PC 185, it was
held that where a man and woman are proved to have lived together as
husband and wife, the law will presume, unless the contrary is clearly
proved, that they were living together in consequence of a valid marriage,
and not in a state of concubinage. The Court observed as follows-

“The parties lived together for twenty years in the same house, and eight
children were born to them. The husband during his life recognized, by
affectionate provisions, his wife, and children, The evidence’ of the
Registrar of the District shows that for a long course of years the parties
were recognized as married citizens, and even the family functions and
ceremonies, such as, in particular, the reception of the relations and
other guests in the family house by Don Andris and Balahamy as host and
hostess–all such functions were conducted on the footing alone that they
were man and wife. No evidence whatsoever is afforded of repudiation of
this relation by husband or wife or anybody.”

14. In the case of Gokal Chand vs. Parvin Kumari, AIR 1952 SC 231, this
Court observed that continuous co-habitation of woman as husband and wife
and their treatment as such for a number of years may raise the presumption
of marriage, but the presumption which may be drawn from long co-habitation
is rebuttable and if there are circumstances which weaken and destroy that
presumption, the Court cannot ignore them.

15. It is well settled that the law presumes in favour of marriage and
against concubinage, when a man and woman have cohabited continuously for a
long time. However, the presumption can be rebutted by leading
unimpeachable evidence. A heavy burden lies on a party, who seeks to
deprive the relationship of legal origin. In the instant case, instead of
adducing unimpeachable evidence by the plaintiff, a plea was taken that the
defendant has failed to prove the fact that Phoolbasa Bai was the legally
married wife of Chhatrapati. The High Court, therefore, came to a correct
conclusion by recording a finding that Phoolbasa Bai was the legally
married wife of Chhatrapati.

16. For the aforesaid reason, we do not find any merit in C.A. No.3411 of
2007.

17. So far the validity of will is concerned, the High Court after
considering a catena of decisions came to the following conclusion:-

“26. If we apply the above law in the present matter it would appear that
the attesting witnesses were not examined because they were not alive and
will has been proved by only examining the scribe as P.W.3. Though it has
been stated by the Scribe that he has drafted and typed the will on the
instructions of the testatrix, but this fact appears to be false on the
face of the document itself; There are many suspicious circumstances
appearing on the face of document which go to suggest that in fact, nothing
was drafted or typed by the scribe on the instructions of the testatrix,
but a typed matter was placed before him for getting it registered showing
as the will of the testatrix. First of all, it would appear that though the
will has ended in the very second sheet but there is no space left for
signature of the scribe and the scribe has inserted his signature in
between the last two lines by using an ink pen. Secondly it appears that
the complete date like 18.8.1977 was not typed in the second page and only
-8-1977 was typed and figures like 18 have been inserted by an ink pen
showing as the document was executed on 18.8.1977. EX.D-72 Muktarnama was
also written and signed on the said date and the suspicious circumstance
appears that when this document (Muktarnama) was being executed, the thumb
impression over the alleged will was also taken by the beneficiaries and
the document writer was shown to be the Scribe of the document whereas, in
fact, the document was not scribed by him. Another important circumstance
is that the original defendant namely Smt. Phoolbasa had died on 20.9.1992
after filing of her written statement on 14.7.1987. The date of execution
of the will is 18.8.1977 but there is no whisper of her will in her written
statement which she had filed on the said date. Though it was not a
requirement of law, but under a normal human nature if she has pleaded the
detailed administration of property, vide para 9 of her written statement,
right from its acquisition by Shiv Ram to the date of filing of the suit,
(please see para 9 of the written statement). She should have mentioned
something about the will, if this alleged will was in her knowledge and she
in fact had executed the same in favour of defendant no. 1 to 4. These
circumstances which are highly suspicious, have not been removed or cleared
by the beneficiaries of the will and only by examining the scribe, who is
not an attesting witness and whose statement is not very satisfactory in
appreciation on all above points, particularly in the situation when the
testatrix was residing in the dominion of the beneficiaries and their
father and was keeping a fiduciary relations with them, it cannot be held
that a due execution of will has been proved by the defendants in
accordance with the provisions of section 68 or other provisions of the
Evidence Act. The finding recorded by the court below that due execution of
the will is proved, is not in accordance with law and the same is set
aside. The will is held to be not proved in this case.”

18. It is evident from the findings recorded by the High Court in the
paragraph referred to hereinabove that the Will suffers from serious
suspicious circumstances. The execution of a document does not mean
mechanical act of signing the document or getting it signed, but an
intelligent appreciation of the contents of the document and signing it in
token of acceptance of those contents.

19. Proof of a Will stands in a higher degree in comparison to other
documents. There must be a clear evidence of the attesting witnesses or
other witnesses that the contents of the Will were read over to the
executant and he, after admitting the same to be correct, puts his
signature in presence of the witnesses. It is only after the executant
puts his signature, the attesting witnesses shall put their signatures in
the presence of the executant.

20. In the instant case, the suspicious circumstance appears to be that
when the Will was being executed, the thumb impression over the alleged
Will was also taken by the beneficiaries and the document-writer was shown
to be scribe of the document, whereas the document was not scribed by him.
However, late Phoolbasa Bai although filed written statement before her
death, but she did not whisper anything about the Will in the written
statement. Admittedly, the Will was allegedly executed in 1977 whereas the
written statement was filed some time in 1987. Taking into consideration
all these facts, we do not filed any error in the conclusion arrived at by
the High Court. The said finding, therefore, needs no interference by this
Court.

21. For the reasons aforesaid, we do not find any merit in these appeals
which are accordingly dismissed.

…………………………….J.
(M.Y. Eqbal)

…………………………….J.
(Amitava Roy)
New Delhi,
April 08, 2015.

suit for declaration and permanent injunction,

The respondent herein filed the suit against the appellants seeking for
the relief of declaration of his title to the suit property and for
consequential relief of permanent injunction restraining the appellants
herein from interfering with his physical possession. Briefly the case of
the plaintiff is that the suit property belonged to Guramma wife of the
first defendant and the mother of the plaintiff and on her death the first
defendant had given declaration before the revenue authorities to change
the Katha in the name of the plaintiff in respect of the suit schedule
property and mutation was effected accordingly and the revenue record stood
in the name of the plaintiff for a long period of time. It is the further
case of the plaintiff that the first defendant entered into second
marriage with one Jayamma and defendants 2 to 5 are their children and they
denied the ownership of the plaintiff in the suit property and therefore,
the suit came to be filed.
—————————————————————————————————————

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL Nos. 3725-3726 OF 2015
[Arising out of Special Leave Petition (Civil) Nos. 3377-3378 of2011]

H. Lakshmaiah Reddy & Ors. .. Appellants

-vs-

L. Venkatesh Reddy .. Respondent

J U D G M E N T

C. NAGAPPAN, J.

Leave granted.
These appeals are preferred against judgment dated 8.9.2010 in R.S.A.
No.1500 of 2009 by which the High Court of Karnataka at Bangalore allowed
the Second Appeal filed by the respondent herein and against the final
order dated 25.11.2010 in RP No.398/2010 by which the High Court dismissed
the Review Petition filed by the appellant.
The respondent herein filed the suit against the appellants seeking for
the relief of declaration of his title to the suit property and for
consequential relief of permanent injunction restraining the appellants
herein from interfering with his physical possession. Briefly the case of
the plaintiff is that the suit property belonged to Guramma wife of the
first defendant and the mother of the plaintiff and on her death the first
defendant had given declaration before the revenue authorities to change
the Katha in the name of the plaintiff in respect of the suit schedule
property and mutation was effected accordingly and the revenue record stood
in the name of the plaintiff for a long period of time. It is the further
case of the plaintiff that the first defendant entered into second
marriage with one Jayamma and defendants 2 to 5 are their children and they
denied the ownership of the plaintiff in the suit property and therefore,
the suit came to be filed.
A common written statement was filed by the defendant stating that the suit
property was purchased in the name of Guramma under registered sale deed
dated 14.11.1959 and sale consideration was paid by the first defendant and
after the death of Guramma, the first defendant married Jayamma in 1973 and
defendants 2 to 5 were born out of the wedlock and the plaintiff as well as
the first defendant being the legal heirs of Guramma had succeeded to the
suit property and the first defendant gifted a portion of suit property
measuring 5 acres in favour of defendants 2 to 5 by registered gift deed
dated 12.12.2003 and the suit is liable for dismissal.
The trial court framed seven issues and after consideration of oral and
documentary evidence dismissed the suit. On the appeal preferred by the
plaintiff, the lower appellate court held that the plaintiff and the first
defendant being class-I heirs of deceased Guramma are entitled to half
share each in the suit property and decreed the suit in part. Challenging
the same the plaintiff preferred second appeal and the High Court allowed
the same by setting aside the judgment of the lower appellate court and
decreed the suit in full as prayed for. Aggrieved by the same the
defendants have preferred the present appeals. For the sake of convenience,
the parties are described in this judgment as arrayed in the suit.
6. Mr. Basavaprabhu S. Patil, the learned senior counsel appearing for
the appellants mainly contended that the High Court has failed to note that
the plaintiff himself had never pleaded a case of relinquishment of the
share by the first defendant in the suit property and what was pleaded in
the plaint was that he had succeeded to the property of his mother
absolutely and his father namely the first defendant has consented before
the revenue authorities for change of name in the Katha in favour of the
plaintiff in respect of the suit schedule property and thus the first
defendant had acquiesced to the fact of the entire suit property being put
in the name of the plaintiff and according to the learned counsel the
mutation entry can never be considered as relinquishment of right or title
and the High Court has committed a serious error in accepting the case of
the plaintiff and in support of his submissions relied on the decision of
this Court in Balwant Singh and another vs. Daulat Singh (Dead) by Lrs.
And ors. [(1997) 7 SCC 137].
7. Per contra the learned Senior counsel appearing on behalf of the
respondents contended that pursuant to the statement made by the 1st
defendant to the Revenue Authorities, the entire suit property was put in
the name of plaintiff, by effecting mutation entry in Katha and revenue
records and thus the 1st defendant, by his conduct had acquiesced to the
said fact, as rightly held by the High Court. Alternatively the learned
senior counsel contended that even if this Court holds in law that the 1st
defendant continues to be the title holder of half of suit property as
class-I heir of deceased Guramma, in view of special circumstances, the
justice of the case does not require interference or the relief could be
moulded in a different fasion. In support of his submission he relied on
Taherakhatoon (D) By Lrs. Vs. Salambin Mohammad (1999) 2 SCC 635 and
Chandra Singh & Ors. Vs. State of Rajasthan & Anr. (2003) 6 SCC 545).
8. We considered the rival contentions. There is no dispute in the
factual matrix. Guramma was the first wife of 1st defendant and the
plaintiff was their only son and suit property was purchased by Guramma by
Exh. P-1 sale deed dated 14.11.1959 and the property stood in her name in
revenue record. The plaintiff was born on 1.10.1965 and Guramma died on
20.1.1966. As per Section 15 of the Hindu Succession Act, the husband and
the son of deceased Guramma, namely 1st defendant and the plaintiff, being
class-I heirs succeeded to the suit property. As per Exh. P-8, Katha of
suit property was changed to the name of plaintiff from his mother on
9.1.1990 and the endorsement therein made by the Tahsildar reveals that
the 1st defendant accepted the mutation of entry in the name of the
plaintiff, being their only son and on the basis of the said declaration,
the mutation was effected and it was not challenged. Exh. D-10 is the RTC
extract covering the period from 1989 to 1992 and the plaintiff was shown
as the owner of the suit property.
9. As rightly contended by the learned senior counsel apearing for the
appellants, 1st defendant did not relinquish or release his right in
respect of the half share in the suit property at any point of time and
that is also not the case pleaded by the plaintiff. The assumption on the
part of the High Court that as a result of the mututation, 1st defendant
divested himself of the title and possession of half share in suit
property is wrong. The mutation entries do not convey or extinguish any
title and those entries are relevant only for the purpose of collection
of land revenue. The observations of this Court in Balwant Singh’s case
(supra) are relevant and are extracted below :
“21. We have considered the rival submissions and we are of the view that
Mr Sanyal is right in his contention that the courts were not correct in
assuming that as a result of Mutation No. 1311 dated 19-7-1954, Durga Devi
lost her title from that date and possession also was given to the persons
in whose favour mutation was effected. In Sawarni vs. Inder Kaur (1996) 6
SCC 223, Pattanaik, J., speaking for the Bench has clearly held as
follows: (SCC p. 227, para 7)
“7. … Mutation of a property in the revenue record does not create or
extinguish title nor has it any presumptive value on title. It only enables
the person in whose favour mutation is ordered to pay the land revenue in
question. The learned Additional District Judge was wholly in error in
coming to a conclusion that mutation in favour of Inder Kaur conveys title
in her favour. This erroneous conclusion has vitiated the entire judgment.”

22. Applying the above legal position, we hold that the widow had not
divested herself of the title in the suit property as a result of Mutation
No. 1311 dated 19-7-1954. The assumption on the part of the courts below
that as a result of the mutation, the widow divested herself of the title
and possession was wrong. If that be so, legally, she was in possession on
the date of coming into force of the Hindu Succession Act and she, as a
full owner, had every right to deal with the suit properties in any manner
she desired.”

In the circumstances, we are of the opinion that the High Court erred in
concluding that the 1st defendant by his conduct had acquiesced and
divested himself of title of his half share in suit property and the
said erroneous conclusion is liable to be set aside.
10. The learned senior counsel appearing for the respondent/plaintiff
strenuously contended that the 1st defendant is now 90 years old and owns
lots of properties as enumerated in the list furnished by him before this
Court and the plaintiff is his only son through first wife and litigation
pertains to only one property namely the suit property and though this
Court gave ample opportunities, no settlement could be arrived at
between the parties and considering the special circumstances, this Court
in exercise of jurisdiction under Article 142 of the Constitution may not
interfere with the High Court judgment, which will do complete justice to
the parties and relied on the decisions cited supra.
11. We are not in a position to appreciate this contention. The High
Court misdirected itself and committed serious error warranting our
interference with the impugned judgment.
12. In the result the impugned judgment and decree of the High Court are
set aside and the judgment and decree of the lower appellate court is
restored and the appeals are allowed in the above terms. No costs.

…………………………….J.
(V. Gopala Gowda)

…………………………….J.
(C. Nagappan)
New Delhi;
April 17 , 2015

Aggrieved by the judgment and order passed by the High Court, partly
dismissing First Appeal No.92 of 2001, both the plaintiff and the
defendant have filed the aforementioned two appeals. While confirming
judgment and decree, the High Court reversed the finding recorded by the
trial court on the issue of will executed by the testatrix.

2. The plaintiff-Ganeshram, appellant in Civil Appeal No.3411 of 2007,
filed suit for declaration, possession and damages in relation to the two
suit houses described in Schedule A & B of the plaint, pleading inter alia
that the registered sale deed of 1987, executed by Phoolbasa Bai (original
defendant no.1, who died during the pendency of the suit) in favour of
defendant no.5 Mukesh Kumar Chourasia, which relates to some portion of
suit house, be declared illegal, void and not binding on him.

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

REPORTABLE

IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
Civil Appeal No.3410 of 2007

DHANNULAL AND OTHERS …..Appellant(s)

versus

GANESHRAM AND ANOTHER …..Respondent(s)

WITH

Civil Appeal No.3411 of 2007
GANESHRAM …..Appellant(s)

versus

DHANNULAL AND OTHERS …..Respondent(s)

JUDGMENT

M. Y. EQBAL, J.

Aggrieved by the judgment and order passed by the High Court, partly
dismissing First Appeal No.92 of 2001, both the plaintiff and the
defendant have filed the aforementioned two appeals. While confirming
judgment and decree, the High Court reversed the finding recorded by the
trial court on the issue of will executed by the testatrix.

2. The plaintiff-Ganeshram, appellant in Civil Appeal No.3411 of 2007,
filed suit for declaration, possession and damages in relation to the two
suit houses described in Schedule A & B of the plaint, pleading inter alia
that the registered sale deed of 1987, executed by Phoolbasa Bai (original
defendant no.1, who died during the pendency of the suit) in favour of
defendant no.5 Mukesh Kumar Chourasia, which relates to some portion of
suit house, be declared illegal, void and not binding on him.

3. To understand factual matrix and issue involved in the case, we would
like to reproduce here the pedigree table as submitted before us:

Shivram
(Died in 1932)
____________________________________|_____________________________
| |
Sumitrabai (Daughter)(died in 1976) Chhatrapati(Son) (died in
1945)
Husband of Sumitra-Mangal Prasad Kept-wife: Phulbasabai (def.no.1)
(Died in 1954) |
| Mannulal (son)(
| (died unmarried on 14.4.1967)
______|___________________________
| |
Shyamlal (son) Radha Bai (daughter)
(died in 1973)
|
_______|____________________________________________________
| | |
Ganeshram (son) Laxmi Bai (daughter) Ganga Bai (daughter)
Plaintiff
4. The suit property was originally owned by Shivram who had a daughter
Sumitrabai and a son Chhatrapati. The plaintiff, the grandson of
Sumitrabai, filed a suit for declaration of ownership, possession and
damages in relation to the suit property against defendant nos.1 to 5. The
plaintiff challenged the validity of the Will dated 18.08.1977 purported to
have been executed by Phoolbasa Bai in favour of the sons of her brother
Gayaprasad, defendant nos.1-4. The plaintiff also challenged the validity
of the sale deed purported to have been executed by Phoolbasa Bai in 1987
in favour of defendant no. 5 in relation to a portion of the suit property.
5. The plaintiff alleged that Sumitrabai (plaintiff’s grandmother) had
become the owner of the suit property by adverse possession having stayed
therein, after the death of her husband Mangal, with her father Shivram
till his death in 1932 and till her own death in 1976. Phoolbasa Bai was
alleged to have been the mistress and not the legally wedded wife of
Chhatrapati and their son was alleged to have died unmarried and issueless
in 1967. The sale deed and the Will purported to have been executed by
Phoolbasa Bai were alleged to be illegal.

6. The suit was contested firstly by filing joint written statement by
the original defendants namely Phoolbasa Bai and Gaya Prasad stating that
after the death of Shiv Ram the entire property was succeeded by
Chhatrapati (his only son) as Sumitrabai was a married daughter. It was
further pleaded that Phoolbasa Bai, being the lawful wedded wife of
Chhatrapati, became the owner of the suit property after Chhatrapati’s
death in 1945. During the pendency of the suit, when Phoolbasa died, she
was substituted by defendant nos.1 to 4, who also filed separate written
statement in addition to earlier written statement filed by the original
defendants. Defendant no.5 also filed separate written statement claiming
to be the owner of the portion of property by virtue of a sale deed
executed in his favour in 1987.

7. The trial court dismissed the civil suit holding that the Will
executed by Phoolbasa in the year 1977 in favour of defendants nos.1 to 4
is legal and the sale effected by her during the pendency of the civil suit
in favour of defendant no.5 is also legal and valid. The trial judge
recorded the finding that Sumitra Bai had not perfected her title by
adverse possession and the plaintiff could not establish that Phoolbasa Bai
was a concubine of late Chhatrapati. The trial court also recorded a
finding that the plaintiff failed to establish that the Will was a
fraudulent and fabricated document.

8. Aggrieved by the judgment and decree of the trial court, plaintiff
moved the High Court preferring First Appeal, which was partly dismissed by
the learned Single Judge of the High Court. Although learned Single Judge
set aside the finding of the trial court on the issue of validity of the
Will on the ground that the Will was not proved as per law, but upheld the
sale deed executed by Phoolbasa Bai in favour of defendant no.5. The
concluding paragraphs of the impugned order are, therefore, quoted
hereinbelow:
“In the facts and circumstances, the sale in favour of defendant no.5 was a
valid sale and the same cannot be held to be illegal, void and not binding
against the plaintiff. The arguments advanced in this regard cannot be
accepted.
Now the question arises, what should be the legal position after the death
of Smt. Phoolbasa and her son namely Mannulal when it has been held that
the alleged will executed in favour of defendants nos.1 to 4 was not
proved. Certainly these properties were succeeded by her from her husband
or from her father-in-law, therefore, according to Section 15(2)(b) of the
Hindu Succesion Act, this shall devolve, in the absence of any son or
daughter of the deceased (including the children of any predeceased son or
daughter) upon the heirs of her husband. In this case, if we look to the
pedigree set forth in the plaint, the succeeding heir of her husband,
namely Chhatrapati, would be sister’s daughter which finds place as serial
no.4 in Entry IV of Class II of Schedule. When Radha Bai, the sister’s
daughter is said to be alive on the date of succession according to the
plaint allegations itself, then the plaintiff, in the reversionary right
will not get the ownership of the property.
In the result, the appeal is dismissed. The judgment and decree passed by
the trial court are hereby confirmed with the aforesaid modifications in
the finding regard the ‘Will’.”
9. Hence, present cross appeals filed by both side against each other
including purchaser-defendant no.5. Defendants nos.1 to 4 have preferred
Civil Appeal No.3410 of 2007 and the plaintiff has preferred Civil Appeal
No.3411 of 2007.

10. Mr. Naveen Prakash, learned counsel appearing for the plaintiff-
appellant in C.A. No.3411 of 2007 assailed the finding on the relationship
of Chhatrapati and Phoolbasa Bai as husband and legally married wife.
Learned counsel submitted that no witness from the side of defendant has
been examined to prove the marriage of Phoolbasa Bai with Chhatrapati.
Learned counsel further submitted that no finding has been recorded by the
Trial Court or the Appellate Court as to when Chhatrapati died. However,
in course of argument, learned counsel does not deny that Phoolbasa Bai was
living with the joint family when Chhatrapati was alive for the last 20
years, but there is no evidence of valid marriage.

11. We are unable to accept the submissions made by Mr. Naveen Prakash,
learned counsel appearing for the plaintiff-appellant. Indisputably, the
first wife of Chhatrapati died in the very early age and immediately
thereafter the original defendant No.1 Phoolbasa Bai started living with
Chhatrapati as his second wife. Out of the wedlock of Phoolbasa Bai and
Chhatrapati, one son was born, whose name was Mannu Lal. The said son of
Chhatrapati and Phoolbasa Bai died unmarried. It is also not in dispute
that the original owner Shiv Ram had only one son namely, Chhatrapati and
one daughter Sumitrabai. Phoolbasa Bai died during the pendency of the suit
in the year 1992. The relationship of Chhatrapati and Phoolbasa Bai has
not been denied. It has also not been denied that they had been living
together as husband and wife in a joint family.

12. In the fact of the case there is strong presumption in favour of the
validity of a marriage and the legitimacy of its child for the reason that
the relationship of Chhatrapati and Phoolbasa Bai are recognized by all
persons concerned.
13. In the case of A. Dinohamy vs. W.L. Balahamy, AIR 1927 PC 185, it was
held that where a man and woman are proved to have lived together as
husband and wife, the law will presume, unless the contrary is clearly
proved, that they were living together in consequence of a valid marriage,
and not in a state of concubinage. The Court observed as follows-

“The parties lived together for twenty years in the same house, and eight
children were born to them. The husband during his life recognized, by
affectionate provisions, his wife, and children, The evidence’ of the
Registrar of the District shows that for a long course of years the parties
were recognized as married citizens, and even the family functions and
ceremonies, such as, in particular, the reception of the relations and
other guests in the family house by Don Andris and Balahamy as host and
hostess–all such functions were conducted on the footing alone that they
were man and wife. No evidence whatsoever is afforded of repudiation of
this relation by husband or wife or anybody.”

14. In the case of Gokal Chand vs. Parvin Kumari, AIR 1952 SC 231, this
Court observed that continuous co-habitation of woman as husband and wife
and their treatment as such for a number of years may raise the presumption
of marriage, but the presumption which may be drawn from long co-habitation
is rebuttable and if there are circumstances which weaken and destroy that
presumption, the Court cannot ignore them.

15. It is well settled that the law presumes in favour of marriage and
against concubinage, when a man and woman have cohabited continuously for a
long time. However, the presumption can be rebutted by leading
unimpeachable evidence. A heavy burden lies on a party, who seeks to
deprive the relationship of legal origin. In the instant case, instead of
adducing unimpeachable evidence by the plaintiff, a plea was taken that the
defendant has failed to prove the fact that Phoolbasa Bai was the legally
married wife of Chhatrapati. The High Court, therefore, came to a correct
conclusion by recording a finding that Phoolbasa Bai was the legally
married wife of Chhatrapati.

16. For the aforesaid reason, we do not find any merit in C.A. No.3411 of
2007.

17. So far the validity of will is concerned, the High Court after
considering a catena of decisions came to the following conclusion:-

“26. If we apply the above law in the present matter it would appear that
the attesting witnesses were not examined because they were not alive and
will has been proved by only examining the scribe as P.W.3. Though it has
been stated by the Scribe that he has drafted and typed the will on the
instructions of the testatrix, but this fact appears to be false on the
face of the document itself; There are many suspicious circumstances
appearing on the face of document which go to suggest that in fact, nothing
was drafted or typed by the scribe on the instructions of the testatrix,
but a typed matter was placed before him for getting it registered showing
as the will of the testatrix. First of all, it would appear that though the
will has ended in the very second sheet but there is no space left for
signature of the scribe and the scribe has inserted his signature in
between the last two lines by using an ink pen. Secondly it appears that
the complete date like 18.8.1977 was not typed in the second page and only
-8-1977 was typed and figures like 18 have been inserted by an ink pen
showing as the document was executed on 18.8.1977. EX.D-72 Muktarnama was
also written and signed on the said date and the suspicious circumstance
appears that when this document (Muktarnama) was being executed, the thumb
impression over the alleged will was also taken by the beneficiaries and
the document writer was shown to be the Scribe of the document whereas, in
fact, the document was not scribed by him. Another important circumstance
is that the original defendant namely Smt. Phoolbasa had died on 20.9.1992
after filing of her written statement on 14.7.1987. The date of execution
of the will is 18.8.1977 but there is no whisper of her will in her written
statement which she had filed on the said date. Though it was not a
requirement of law, but under a normal human nature if she has pleaded the
detailed administration of property, vide para 9 of her written statement,
right from its acquisition by Shiv Ram to the date of filing of the suit,
(please see para 9 of the written statement). She should have mentioned
something about the will, if this alleged will was in her knowledge and she
in fact had executed the same in favour of defendant no. 1 to 4. These
circumstances which are highly suspicious, have not been removed or cleared
by the beneficiaries of the will and only by examining the scribe, who is
not an attesting witness and whose statement is not very satisfactory in
appreciation on all above points, particularly in the situation when the
testatrix was residing in the dominion of the beneficiaries and their
father and was keeping a fiduciary relations with them, it cannot be held
that a due execution of will has been proved by the defendants in
accordance with the provisions of section 68 or other provisions of the
Evidence Act. The finding recorded by the court below that due execution of
the will is proved, is not in accordance with law and the same is set
aside. The will is held to be not proved in this case.”

18. It is evident from the findings recorded by the High Court in the
paragraph referred to hereinabove that the Will suffers from serious
suspicious circumstances. The execution of a document does not mean
mechanical act of signing the document or getting it signed, but an
intelligent appreciation of the contents of the document and signing it in
token of acceptance of those contents.

19. Proof of a Will stands in a higher degree in comparison to other
documents. There must be a clear evidence of the attesting witnesses or
other witnesses that the contents of the Will were read over to the
executant and he, after admitting the same to be correct, puts his
signature in presence of the witnesses. It is only after the executant
puts his signature, the attesting witnesses shall put their signatures in
the presence of the executant.

20. In the instant case, the suspicious circumstance appears to be that
when the Will was being executed, the thumb impression over the alleged
Will was also taken by the beneficiaries and the document-writer was shown
to be scribe of the document, whereas the document was not scribed by him.
However, late Phoolbasa Bai although filed written statement before her
death, but she did not whisper anything about the Will in the written
statement. Admittedly, the Will was allegedly executed in 1977 whereas the
written statement was filed some time in 1987. Taking into consideration
all these facts, we do not filed any error in the conclusion arrived at by
the High Court. The said finding, therefore, needs no interference by this
Court.

21. For the reasons aforesaid, we do not find any merit in these appeals
which are accordingly dismissed.

…………………………….J.
(M.Y. Eqbal)

…………………………….J.
(Amitava Roy)
New Delhi,
April 08, 2015.

real estate law

On a plain reading of the words of Sections 52 and 54 of the Transfer of Property Act, we have no doubt that a sale which takes place after the institution of the suit in pursuance of a prior agreement to sell, is hit by Section 52 of the Transfer of Property Act. It is not necessary that the person who is adversely affected by Section 52 should have been made a party to the suit or that he should have had notice of the suit, (see Lakshmanan v. Kamal, AIR 1959 Kerala 67 and Krishnabai v. Savlaram, AIR 1927 Bom.

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Madhya Pradesh High Court

Munnilal Shyamle And Anr. vs Bhaiyalal Hazari And Ors. on 29 August, 1960

Equivalent citations: AIR 1962 MP 34

Author: Shrivastava

Bench: T Shrivastava, S Bhargava

JUDGMENT Shrivastava J.

  1. This Letters Patent appeal has been filed against the judgment of a single Judge of this Court (Chaturvedi J.) in Second Appeal No. 278 of 1957.
  2. The suit out of which that second appeal arose was filed by respondents 1 and 2 (Bhaiyalal and Bhajni) against the appellants Munnilal and Ramdayal as defendants 1 and 2 and respondent No. 3 Bharosa as defendant No. 3. For convenience we shall refer to respondents 1 and 2 as the plaintiffs and the appellants Munnilal and Ramdayal as the defendants.
  3. The subject-matter of the suit was 29.29 acres of land, situated in Khiria Khawas, Tahdil Rebli District Sagar, as also a house in that village. These properties belonged to Bharosa (respondent No. 3). On 30-9-1953 he contracted to sell these properties to the defendants. On 3-10-1953 the defendants gave a notice to the plaintiffs and others that they were purchasing the suit properties from Bharosa. On 2-12-1953 they filed a suit for specific performance against Bharosa and that suit was decreed. In April 1955, the defendants, dispossessed the plaintiffs from the land in execution of the decree obtained in the suit for specific performance.
  4. The plaintiffs’ (respondents 1 and 2) case was that on 20-9-1953, i.e., 10 days prior to the contract in favour of the defendants, Bharosa had contracted to sell the suit properties to them and had taken Rs. 600/- as part payment towards the sale price. The agreement was to execute a sale-deed within two months from that date. Such a sale-deed was executed in their favour on 25-1-1954. They continued in possession of the suit properties thereafter till they were dispossessed in April 1955 by the defendants. The plaintiffs, therefore, prayed that the decree obtained by the defendants in the suit for specific performance of the contract was not binding on them and they were entitled to get back possession of the suit properties.
  5. The defendants resisted the suit on the ground that the contract, dated 20-9-1953, was really entered into to defeat their claim on the basis of the contract dated 30-9-1953. According to them, it was an ante-dated document without consideration. They further contended that the sale-deed, dated 25-1-1954, which was executed during the pendency of the suit for specific performance, was hit by Section 52 of the Transfer of Property Act and was not, therefore, binding on them.
  6. The trial Court dismissed the suit upholding the contentions of the defendants that the plaintiffs’ contract was ante-dated and was entered into on 2-10-1953 after the contract with the defendants and with full knowledge of that contract. The Court also held that as the transfer was pendente lite, the plaintiffs were bound by the result of the suit for specific performance. The lower appellate Court, however, reversed these findings of the trial Court and concluded that the agreement, dated 20-9-1953 was real, genuine and for consideration. It further held that the defendant’s took the subsequent agreement, dated 30-9-1953, with the knowledge of the agreement in favour of the plaintiffs. Accordingly, it held that the doctrine of lis pendens did not apply to case and under Section 40 of the Transfer of Property Act the defendants could not claim possession of the lands as against the plaintiffs. The suit was accordingly decreed.

In second appeal, though the appellants had raided several grounds, the appeal was decided only on the question whether the transaction in favour of the plaintiffs was hit by Section 52 of the Transfer of Property Act. The learned single Judge came to the conclusion that that section did not apply to the facts of the case. The appeal was accordingly dismissed and it is against that decision that the defendants 1 and 2 have filed this Letters Patent appeal.

  1. Section 52 of the Transfer of Property Act provides that the property in suit cannot be transferred or otherwise dealt with by any party to the suit, so as to affect the rights of any other party thereto under any decree or order which may be made therein. The requirements of Section 52 were stated to be: (i) the pendency of a suit (ii) non-collusive character of the suit, (iii) any right to immovable property being in question in that suit and (iv) the other party having some right under the decree in that suit. If these requirements are satisfied, the other party is not bound by the transfer made during the pendency of the suit. (See Hiranya Bhusan v. Gouri Dutt, AIR 1943 Cal 227). The doctrine with which Section 52 is concerned rests upon the foundation that it would plainly be impossible that any action or suit could be brought to a successful termination, if alienations pendente lite were permitted to prevail.
  2. As provided in Section 54 of the Transfer of Property Act, a contract for the sale of immoveable property does not, of itself, create any interest in or charge on such property. On the basis of such a contract, it is not therefore possible to contend that an interest in the property has been created. If a sale takes place in enforcement of such, a contract during the pendency of a suit, the sale cannot affect the parties to the suit. Under the English Law, a contract of sale for real property makes the purchaser the owner in equity of the estate. Such a distinction is not recognised in India. (See Maung Shwe Goh v. Maung Inn, AIR 1916 PC 139 and also Mohammad Saddiq v. Ghasi Ram, AIR 1946 Lah 322 (FB)). Accordingly, by a mere agreement to sell no interest in the immoveable property is created. The observations from Blackwood v. London Chartered Bank of Australia, 1874 LR 5 PC 92 at p. 111, quoted by the learned single Judge have no application to India where the distinction between legal and equitable estate does not exist
  3. The first case referred to by the learned single Judge is Sheikh Bikala v. Sheik Ali, AIR 1950 Orissa 210. In that case, a mortgage was created by the defendant prior to the institution of the suit during the pendency of which sale in enforcement of the mortgage took place. It was held that that transfer was not affected by Section 52 of the Transfer of Property Act. The reason for this is that the transfer had already taken place prior to the institution of the suit and it was only that right which was later enforced. The only principle which was laid down in that case is that rights prior to the institution of the suit are not affected by Section 52. The same principle has been laid down in Renuka Bala v. Nagendra Nath, AIR 1939 Cal 055, which is the second case referred to.
  4. In the third case, Narayan Prasad v. Rajkishore, AIR 1951 Pat 613, A had agreed to grant a lease to B of a cinema theatre at a future date provided B made the necessary repairs to make it fit for purpose of cinema shows within a period of 9 months. B entered into possession under the agreement to make the repairs. C who had notice of this contract took a lease from A of the theatre within the period of 9 months. On A’s failure to give possession, C sued A for specific, performance and obtained a decree. During the pendency of the suit, A executed a registered lease in favour of B in pursuance of the prior agreement. B then brought a suit against C for injunction restraining him from executing the decree against him. It was held, under these circumstances, that B was not bound by the result of the suit filed by C as his rights were in enforcement of a prior agreement.

It appears from the discussion in paragraph 4 of that judgment that the agreement to lease was actually treated as a lease, as Section 2 of the Transfer of Property Act defines a lease to include “an agreement to lease”. According to that definition, an agreement to lease is not just an agreement but it “effects an actual demise and operates as a lease”. Under these circumstances, the agreement in that case operated as a transfer of property and the doctrine of lis pendens did not therefore apply, as the subsequent transfer was merely to enforce the earlier transfer. That case, therefore, fell within the principle laid down in the Orissa and the Calcutta cases, cited in the earlier paragraph.

  1. The fourth case which has been cited by the learned single Judge is Guru Basappa v. Santhappa, 48 Mad LJ 496 : AIR 1925 Mad 710. In that case, a sale-deed was executed prior to the suit for specific performance, but it was registered after the institution thereof. In such a case, the registration of a document under the Registration Act operates from the date of the document and therefore in that case the transfer really took place before the suit. Naturally, “therefore, the doctrine of lis pendens did not apply, as the case did not at all fall within Section 52 of the Transfer of Property Act. The observations of their Lordships that the mere filing of a Plaint by any person in respect of the property already conveyed would not prevent the vendee from enforcing his rights under the document, which had been executed, fully disposed of the case before them. And the further observations that the vendee in such a case could sue for specific performance of the contract of sale were unnecessary and are in the nature of obiter. The respondents 1 and 2, in the instant case, do not derive any help from that decision.
  2. In the cases relied upon by the learned single Judge we do not find anything directly laying down that a sale after the suit in pursuance of an agreement before the suit is protected against the operation of Section 52 of the Transfer of Property Act
  3. In Bishan Singh v. Khazan Singh, AIR1958 SC 838, their Lordships of the Supreme Court laid down the principle in the following words:

“The doctrine of lis pendens applies only to a transfer pendente lite, but it cannot affect a preexisting right. If the sale is a transfer in recognition of a pre-existing, and subsisting right, it would not be affected by the doctrine, as the said transfer did not create new right pendente lite; but if the pre-existing right became unenforceable by reason of the fact of limitation or otherwise, the transfer, though ostensibly made in recognition of such a right, in fact created only a new right pendente lite.”

In our opinion, the expression “pre-existing and subsisting” right was intended by their Lordships to refer to a transaction amounting to a transfer of interest in property and not to a mere agreement to sell.,

  1. In Dakshinamurthi v. Sitharamayya, 1958-1 Andh WR 85, the question arose in the context of a transfer of a specific item of joint Hindu family property by a co-sharer pending a partition action in pursuance of an agreement entered into prior to that suit. It was held that the sale was hit by Section 52 of the Transfer of Property Act, though the alienee was entitled to work out his equities in the partition suit. The conclusion was supported thus:

“The terms of Section 52 are quite clear that the property cannot be transferred or otherwise dealt with by any party to the suit or proceeding so as So affect the rights of any other party thereto during the pendency of the suit Or proceeding. The transfer under Section 54 can be effected only by a registered instrument. The facts establish beyond doubt that the sale was effected only after the institution of the suit. So, on the date of the filing of the suit, defendants 2 and 3 had a right in the B schedule properties. The fact that they entered into an agreement prior to that date to sell the properties to the 5th defendant does not affect the application of Section 52 of the Transfer of Property Act.”

  1. On a plain reading of the words of Sections 52 and 54 of the Transfer of Property Act, we have no doubt that a sale which takes place after the institution of the suit in pursuance of a prior agreement to sell, is hit by Section 52 of the Transfer of Property Act. It is not necessary that the person who is adversely affected by Section 52 should have been made a party to the suit or that he should have had notice of the suit, (see Lakshmanan v. Kamal, AIR 1959 Kerala 67 and Krishnabai v. Savlaram, AIR 1927 Bom 93). The contention that respondents 1 and 2 did not have any notice of the suit, which was filed by the appellants for specific performance, has therefore no force.
  2. Shri R. K. Pandey for the respondents points out that the lower appellate Court had found that respondents 1 and 2 had been placed in possession of the property on 20-9-1953 and the appellants had notice of their contract on 30-9-1953. Shri Pandey further contends that as the sale in favour of respondents 1 and 2 was in writing and as they were placed in possession, they had a right to contest the appellants’ claim under Section 53A of the Transfer of Property Act. If the vendor himself could not claim possession from the respondents, the position of the appellants could be no better. Shri B. L. Seth, learned counsel for the appellants, on the other hand, contests the accuracy of these findings on the ground that they are contrary to the pleadings of the plaintiffs in the case and are not supported by any evidence.
  3. As we have said earlier, the learned single Judge decided the second appeal on the abstract proposition of law that a transfer in pursuance of a prior agreement to sell cannot be affected by Section 52, The other points, which were raised in the grounds of appeal, were not considered by him, as the decision on this point was considered sufficient to dispose of the appeal. The decision in the Letters Patent appeal should be confined to examining the correctness of the point actually decided by the learned single Judge. It will not be right for us to decide all the other grounds raised in support of the appeal. Accordingly, the only proper course which should, in our opinion, be adopted in this case is to send back the case for a decision on the other points.
  4. Accordingly, the decision of the learned single Judge dismissing the second appeal is set aside. The appeal shall now be heard as a second appeal on other grounds raised by the appellants. Costs of this Letters Patent appeal shall be borne in accordance with such orders as may be passed in second appeal in this respect.

 

 

Order 39 Rule 1 & 2 of C.P.C. Cases in which temporary injunction may be granted.- Where in any Suit it is proved by affidavit or otherwise

 

(a) that any property in dispute in a suit is in danger of being wasted, damaged or alienated by any party to the suit, or wrongfully sold in execution of a decree, or

(b) that the defendant threatens, or intends, to remove or dispose of his property with a view to defrauding his creditors,

(c) that the defendant threatens to dispossess the plaintiff or otherwise cause injury to the plaintiff in relation to any property in dispute in the suit,the court may by Order grant a temporary injunction to restrain such act, or make such other Order for the purpose of staying and preventing the wasting, damaging, alienation, sale, removal or disposition of the property or dispossession of the plaintiff, or otherwise causing injury to the plaintiff in relation to any property in dispute in the suit] as the court thinks fit, until the disposal of the suit or until further orders.

 

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Grant of an interim relief in regard to the nature and extent thereof depends upon the facts and circumstances of each case as no strait-jacket formula can be laid down. There may be a situation wherein the defendant/respondent may use the suit property in such a manner that the situation becomes irretrievable. In such a fact situation, interim relief should be granted (vide M. Gurudas & Ors. Vs. Rasaranjan & Ors. AIR 2006 SC 3275; and Shridevi & Anr. vs. Muralidhar & Anr. (2007) 14 SCC 721

Grant of temporary injunction, is governed by three basic principles, i.e. prima facie case; balance of convenience; and irreparable injury, which are required to be considered in a proper perspective in the facts and circumstances of a particular case. But it may not be appropriate for any court to hold a mini trial at the stage of grant of temporary injunction (Vide S.M. Dyechem Ltd. Vs. M/s. Cadbury (India) Ltd., AIR 2000 SC 2114; and Anand Prasad Agarwalla (supra)

In Colgate Palmolive (India) Ltd. Vs. Hindustan Lever Ltd., AIR 1999 SC 3105, this court observed that the other considerations which ought to weigh with the Court hearing the application or petition for the grant of injunctions are as below :

(i) Extent of damages being an adequate remedy;

(ii) Protect the plaintiff’s interest for violation of his rights though however having regard to the injury that may be suffered by the defendants by reason therefor ;

(iii) The court while dealing with the matter ought not to ignore the factum of strength of one party’s case being stronger than the others;

(iv) No fixed rules or notions ought to be had in the matter of grant of injunction but on the facts and circumstances of each case- the relief being kept flexible;

(v) The issue is to be looked from the point of view as to whether on refusal of the injunction the plaintiff would suffer irreparable loss and injury keeping in view the strength of the parties’ case;

(vi) Balance of convenience or inconvenience ought to be considered as an important requirement even if there is a serious question or prima facie case in support of the grant;

(vii) Whether the grant or refusal of injunction will adversely affect the interest of general public which can or cannot be compensated otherwise.”

In Dalpat Kumar & Anr. Vs. Prahlad Singh & Ors., AIR 1993 SC 276, the Supreme Court explained the scope of aforesaid material circumstances, but observed as under:-

“The phrases `prima facie case’, `balance of convenience’ and ` irreparable loss’ are not rhetoric phrases for incantation, but words of width and elasticity, to meet myriad situations presented by man’s ingenuity in given facts and circumstances, but always is hedged with sound exercise of judicial discretion to meet the ends of justice. The facts rest eloquent and speak for themselves. It is well nigh impossible to find from facts prima facie case and balance of convenience.”

This Court in Manohar Lal Chopra Vs. Rai Bahadur Rao Raja Seth Hira Lal, AIR 1962 SC 527 held that the civil court has a power to grant interim injunction in exercise of its inherent jurisdiction even if the case does not fall within the ambit of provisions of Order 39 Code of Civil Procedure.

 

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THE SUPREME COURT OF INDIA

 

CIVIL APPELLATE JURISDICTION

 

CIVIL APPEAL NO.                OF 2009

(Arising out of SLP (Civil) No. 18934 of 2008)

 

 

Zenit Mataplast P. Ltd.                               ….Appellant

 

Versus

 

State of Maharashtra and Ors.                         ….Responde

 

JUDGMENT

Dr. B.S. Chauhan, J.

  1. Leave granted.
  2. This appeal has been filed against the order of the Bombay High Court dated 5.2.2008 rejecting the application for interim relief while admitting the Writ Petition No. 7245/2006 and expediting its hearing against the allotment of land by the respondent No.2 in favour of respondents nos.4 and 5.
  3. The facts and circumstances giving rise to this case are that appellant, a Private Ltd. Company, incorporated under the provisions of Companies’ Act 1956, is indulged in manufacturing of press components, moulded components, soft luggage, moulded luggage and other travel goods, tools, moulds jigs, dies fixtures and other engineering goods and carrying its business on a land measuring 4050 sq. meters on plot no.F-18 in the Satpur industrial Estate, Nasik. The appellant submitted an application dated 30.11.2005 (Annexure P-3) for allotment of 8000 sq. yards land from the adjacent vacant land on a prescribed form complying with other requirements. The said application was rejected by the respondent no.2, the Maharashtra Industrial Development Corporation (hereinafter referred to as `Corporation’), a Maharashtra Government Undertaking constituted under the provisions of Maharashtra Industrial Development Act, 1961 (for short 1961 Act). In fact, the Corporation has powers and duties to make allotment of land for industrial purposes. It appears that vide letter dated 14.3.2005 to the Hon’ble Chief Minister of Maharashtra, the respondent no.4, M/s. Mahendra & Mahendra Ltd., a leading industrial Company, asked for providing pending dues of incentives which were extended to it earlier. In the said letter it was also pointed out that the respondent no.4 has entered into a collaboration with automobile company Renault and intended to set up a joint venture for manufacturing of car, “The Logan” into India and the said respondent was locating the project at Nasik (Maharashtra) or Zahirabad (Andhra Pradesh) or at any other new place in Uttranchal. In the said letter, a demand for land measuring 5 to 8 acres for parking facilities at Satpur Industrial Estate, Nasik and 3 to 4 acres parking plot outside the existing factory gate at Nasik was also included. The Government of Maharashtra vide letter dated 10.6.2005 promised that the respondent no. 2 – Corporation would provide maximum possible vacant land in the existing area at the applicable rates and the Corporation would further facilitate acquisition of additional land identified by the Corporation for its project as well as for locating the cluster of industrial units (Annexure R.4/R.5). The Government of Maharashtra accorded the status of “Mega Project” to the forthcoming project of respondent no. 4 known as `Logan Car Project’ at Nasik vide letter dated 11.11.2005 (Annexure R.4/R.6). Respondent no. 4 submitted an informal application dated 23.11.2005 to the Respondent No. 2 to make the allotment of designated Open Space, Plot Nos. 8 and 9, in its favour. The user of land was changed from open space to Industrial Area vide resolution dated 10.2.2006 and plot was renumbered as 126, instead of Open Space No.9, by the respondent-corporation. The formal application was submitted for that purpose by the respondent no. 4 on 1.3.2006 to the respondent no. 2 (Annexure R.4/R.9). Respondent No. 2, vide letter dated 27.3.2006 (Annexure R.4/R.10), allotted the land measuring 17 acres in favour of the respondent no. 4 for a total premium of 7,51,14,600/- after changing the user of the land from vacant space to industrial. On the same date, namely, 27.3.2006, the respondent no. 4 was put in possession of the said land and an agreement for licence/lease was executed between respondent no. 2 and respondent no. 4 on 3.7.2006. A part of open space was also converted as a “parking space” and it was allotted in favour of respondent no.5 for parking of vehicles.
  4. The appellant made various representations to the Respondent No. 2, Corporation particularly, dated 15.3.2006, 3.4.2006, 25.8.2006, 3.10.2006 and 10.10.2006, pointing out that rejection of its application and allotment of huge area of land in favour of respondent Nos .4 and 5 was discriminatory and violative of laws and particularly the statutory requirement which provided for allotment of land to the neighbouring unit holders. The appellant asked that it may be allotted some part of the remaining land from the designated vacant land whose land user has been converted from open space to industrial Area. As no order was passed on its representations, the appellant filed the writ petition in October 2006 before the High Court. However, the Court admitted the writ petition, expedited the hearing of the writ petition but rejected the application for interim relief. Hence, this appeal.
  5. Shri Dushyant Dave, learned senior counsel appearing for the appellant has submitted that the application of the appellant has been rejected without assigning any reason whatsoever and probably the reason may be that on the date of passing the order the land was merely a designated vacant land and not meant for industrial purpose. However, in order to favour the respondent No.4, a big industrial house, the State authorities passed the directions to the respondent- Corporation to allot open space after change of user. Application of respondent no.4 was processed in haste and all consequential orders have been passed within a very short span of time. Land has been allotted to Respondent No.4 on the direction of the higher authorities, which is not permissible in law. Thus, such a course is violative of Article 14 of the Constitution of India. The writ petition filed by the appellant would become infructuous, if the respondent no.4 is permitted to develop the allotted land. The High Court ought to have granted the interim relief. Therefore, the appeal deserves to be allowed.
  6. On the contrary, Shri Bhaskar P. Gupta, learned senior counsel appearing for respondent No.4 has submitted that there had been large number of offers by various States to Respondent No.4 to set up the industry for the purpose of production of cars/jeeps and various incentives were offered, particularly, by the States of Madhya Pradesh and Andhra Pradesh. However, as it has several units in Maharashtra, the respondent No.4 made application to the Hon’ble the Chief Minister for allotment of land and after considering the facts, it was decided to make the allotment of land at Satpur Industrial Estate Nasik, as the appellant was having about four other units in close vicinity thereof. It is also submitted by Shri Gupta that no law has been violated and the authorities proceeded strictly in conformity with the statutory requirements. Respondent no.4 has already invested a huge amount in the project. Appellant did not approach the HighCourt promptly. Thus, the High Court has rightly refused to grant the interim relief. Impugned order does not require any interference.
  7. Shri Shyam Divan, learned senior counsel appearing for the respondent-Corporation has submitted that when the application of the appellant was rejected, the land in dispute was a designated vacant land and therefore, it could not be allotted for any industrial purpose. The land was allotted to the respondent no.4 after change of user, considering the requirement of respondent No.4 and taking into consideration various other factors, particularly, the development of the city keeping in mind that the industry of respondent No.4 would provide job to large number of persons and the people of the local area would be benefitted otherwise also. Appellant cannot be heard complaining against the allotment in dispute, as it is in consonance with all the statutory requirements. Interim relief could not be granted at a belated stage as the appellant had not filed the petition before the High Court immediately after allotment of the land. Thus, the interim application has rightly been rejected by the High Court.. The appeal has no merit, thus liable to be dismissed.
  8. We have considered the rival submissions made by the learned counsel for the parties and perused the record.
  9. It is evident from the site plan that a large number of plots had been carved out from the huge area of land and in between, an open vacant space being No.9 was left. It is also evident from the said site plan that after plot Nos. F-13, F-14 and F-15, there was a vacant space and then, plot Nos. F- 18, F-19 etc. Thus, there must have been plot Nos. F-16 and F-17 between plot nos.F-15 and F-18, at one stage. The land in dispute was adjacent to said two plots also. The appellant had demanded the land from Plot Nos. F- 16 and F-17. However, there is nothing on record to show as to how these two plots bearing Nos. F-16 and F-17 could disappear from the site plan and become part of Open Space No.9.
  10. Application of the appellant has been rejected vide order dated 19.12.2005 without assigning any reason and it cannot be said as to whether the application was rejected merely on the ground that the land in dispute, at that time was a designated vacant land and not meant for the industrial purpose, thus, its application could not be entertained. On the contrary, admittedly in the year 2004, a part Plot No. F-17 (vacant space) measuring about 500 Sq.Mtrs. had been allotted to BSNL without the change of the user. No explanation could be furnished by the respondents as to under what circumstances such an allotment was permissible.
  11. So far as the allotment to respondent No.4 is concerned, this had been under the directions of the State Government to the Corporation. The Corporation changed the land user and made the allotment of land to the extent of 17 acres and the possession had been handed over immediately. The license deed had been executed and all the proceedings had been taken in close proximity of time. Letter written by respondent No.4 dated 14th March, 2005 (Annexure R4/4) to the Hon’ble Chief Minister suggests that some other States had offered the respondent No.4 various incentives for establishing an industrial unit. It is evident from the letter dated 10th June, 2005 (Annexure R4/5) written by the Secretary to the Ministry of Industries, Energy and Labour Department, Maharashtra to the Respondent No.4 that the State Government was willing to make various concessions and provide incentives including the allotment of land at Nasik for establishment of LOGAN cars project.
  12. The allotment of land is governed by the provisions of 1961 Act, Section 14 of which specifies the functions and powers of the Corporation and the Corporation has, in general power to promote and assist in the rapid and orderly establishment growth and development of industries in the State of Maharashtra. Section 15 thereof provides for general power of the Corporation which includes the power to acquire and hold the land and to dispose of the same by executing the lease, sale deeds, exchange or otherwise transfer any property. Section 31 of the 1961 Act, provides for acquisition and disposal of the land.
  13. The Maharashtra Industrial Development Corporation (Disposal of Land) Regulations, 1975 have been framed to give effect to the provisions of 1961 Act. Regulation 4 provides for disposal of the land covered by the lay out prepared by the Corporation by public auction or by entertaining individual applications. Regulation 6 provides for a particular form to be filled up where the allotment is to be made by applications and deposit of process fee etc. Regulation 10 provides that the Land Committee shall consider the application and pass appropriate orders for allotment of land.
  14. Government of Maharashtra had issued a Circular dated 25th January, 1994 regarding fixation of rate of industrial area in which allotment of plot has to be made by inviting tenders. Clause 4 thereof provided for “preferential right” of the unit holder for having allotment of “neighbouring land” for the purpose of factory expansion. It also provides that where there are more than one application for allotment, the plot may be disposed of by adopting the tender process.
  15. There had been claims and counter claims by the parties. The appellant claimed that it had preferential right for allotment of the part of the vacant land for expansion of its factory. However, its application has been rejected without giving any reason whatsoever, though the law requires giving the reasons for passing any order and the allotment in favour of respondent No.4 was passed in undue haste showing favouritism being a big industrial unit. The right of equality guaranteed under Article 14 of the Constitution stood violated. The application of the appellant had been made prior to the application made by respondent No.4. The respondent No.4 instead of making application to the Corporation started negotiations with the Government directly for allotment of land merely by writing a letter in June, 2005 and on 10th June, 2005 an understanding was arrived in between the Government of Maharashtra and respondent No.4 of commissioning of the Project at Nasik. The informal application was filed by respondent No.4 on 23.11.2005 for making allotment of land from Open Space No.9. The application of respondent No.4 was processed by Land Allotment Committee on 22nd December, 2005, wherein the observation was made that it was an important industry for the city land and its expansion would greatly benefit the industrial growth in Nasik.
  16. The user of land in Open Space No.9 was converted from Open Space to Industrial Area vide order/resolution dated 10th February, 2006 and it was re-numbered as Plot No.126. The first formal application was submitted by the respondent no.4 to the respondent-corporation only on 1.3.2006 and the allotment was made in favour of the respondent No.4 on 27.3.2006. Respondent no.4 was put in possession on 27.3.2006 itself. The license agreement was executed by the respondent corporation in favour of respondent no.4 on July 3, 2006. The demand of respondent No.4 had not been to the extent the area had been allotted.

In view of the above facts and circumstances, the sole question has arisen as to whether the High Court was justified in not granting the interim relief in favour of the appellant?

  1. Records reveal that the appellant had been bargaining with the respondent-Corporation making application after application for allotment of land from remaining vacant area and approached the Court at some belated stage. Even before the High Court the matter remained pending for long before it was admitted and the application for interim relief was rejected.
  2. The Regulation 1975 provides for allotment of land by public auction or by entertaining individual applications. Therefore, the question does arise as to whether without taking a decision that land is to be settled by negotiation, the process of auction or calling the tender can be dispensed with.
  3. In the instant case the appellant had been asking the respondent no.2 to grant the lease of plot nos.F-16 and F-17, which had earlier not been the part of the Open Space No.9, on the basis of being contiguous and adjacent to the appellant’s existing factory at plot no.F-18. It has been canvassed on behalf of the appellant that the action of the respondent no.2 is arbitrary and unreasonable and not in conformity with the statutory provisions.
  4. Every action of the State or its instrumentalities should not only be fair, legitimate and above-board but should be without any affection or aversion. It should neither be suggestive of discrimination nor even apparently give an impression of bias, favouritism and nepotism. The decision should be made by the application of known principle and rules and in general such decision should be predictable and the citizen should know where he is, but if a decision is taken without any principle or without any rule, it is unpredictable and such a decision is antithesis to the decision taken in accordance with the rule of law (vide S.G.Jaisinghani Vs. Union of India & ors., AIR 1967 SC 1427; Haji T.M. Hassan Rawther Vs. Kerala Financial Corporation, AIR 1988 SC 157).
  5. In essence, the action/order of the State or State instrumentality would stand vitiated if it lacks bona fide as it would only be a case of colourable exercise of power. The Rule of Law is the foundation of a democratic society. In I.R. Coelho (dead) by LRs Vs. State of Tamil Nadu, AIR 2007 SC 861, the Apex Court held as under:-

“The State is to deny no one equality before the law……..Economic growth and social equity are the two pillars of our Constitution which are linked to the right of an individual (right to equal opportunity), rather than in the abstract…….Equality, rule of law, judicial review and separation of powers form parts of the basic structure of the Constitution. Each of these concepts are intimately connected. There can be no rule of law, if there is no equality before the law. These would be meaningless if the violation was not subject to the judicial review.”

  1. In a case like this, when the applicant approaches the Court complaining against the Statutory Authority alleging arbitrariness, bias or favouritism, the court, being custodian of law, must examine the averments made in the application to form a tentative opinion as to whether there is any substance in those allegations. Such a course is also required to be followed while deciding the application for interim relief.
  2. Interim order is passed on the basis of prima facie findings, which are tentative. Such order is passed as a temporary arrangement to preserve the status quo till the matter is decided finally, to ensure that the matter does not become either infructuous or a fait accompli before the final hearing. The object of the interlocutory injunction is, to protect the plaintiff against injury by violation of his right for which he could not be adequately compensated in damages recoverable in the action if the uncertainty were resolved in his favour at the trial. (vide Anand Prasad Agarwalla v. State of Assam vs. Tarkeshwar Prasad & Ors. AIR 2001 SC 2367; and Barak Upatyaka D.U. Karmachari Sanstha (2009) 5 SCC 694)
  3. Grant of an interim relief in regard to the nature and extent thereof depends upon the facts and circumstances of each case as no strait-jacket formula can be laid down. There may be a situation wherein the defendant/respondent may use the suit property in such a manner that the situation becomes irretrievable. In such a fact situation, interim relief should be granted (vide M. Gurudas & Ors. Vs. Rasaranjan & Ors. AIR 2006 SC 3275; and Shridevi & Anr. vs. Muralidhar & Anr.(2007) 14 SCC 721.
  4. Grant of temporary injunction, is governed by three basic principles, i.e. prima facie case; balance of convenience; and irreparable injury, which are required to be considered in a proper perspective in the facts and circumstances of a particular case. But it may not be appropriate for any court to hold a mini trial at the stage of grant of temporary injunction (Vide S.M. Dyechem Ltd. Vs. M/s. Cadbury (India) Ltd., AIR 2000 SC 2114; and Anand Prasad Agarwalla (supra).
  5. In Colgate Palmolive (India) Ltd. Vs. Hindustan Lever Ltd., AIR 1999 SC 3105, this court observed that the other considerations which ought to weigh with the Court hearing the application or petition for the grant of injunctions are as below :

(i) Extent of damages being an adequate remedy;

(ii) Protect the plaintiff’s interest for violation of his rights though however having regard to the injury that may be suffered by the defendants by reason therefor ;

(iii) The court while dealing with the matter ought not to ignore the factum of strength of one party’s case being stronger than the others;

(iv) No fixed rules or notions ought to be had in the matter of grant of injunction but on the facts and circumstances of each case- the relief being kept flexible;

(v) The issue is to be looked from the point of view as to whether on refusal of the injunction the plaintiff would suffer irreparable loss and injury keeping in view the strength of the parties’ case;

(vi) Balance of convenience or inconvenience ought to be considered as an important requirement even if there is a serious question or prima facie case in support of the grant;

(vii) Whether the grant or refusal of injunction will adversely affect the interest of general public which can or cannot be compensated otherwise.”

  1. In Dalpat Kumar & Anr. Vs. Prahlad Singh & Ors., AIR 1993 SC 276, the Supreme Court explained the scope of aforesaid material circumstances, but observed as under:-

“The phrases `prima facie case’, `balance of convenience’ and ` irreparable loss’ are not rhetoric phrases for incantation, but words of width and elasticity, to meet myriad situations presented by man’s ingenuity in given facts and circumstances, but always is hedged with sound exercise of judicial discretion to meet the ends of justice. The facts rest eloquent and speak for themselves. It is well nigh impossible to find from facts prima facie case and balance of convenience.”

  1. This Court in Manohar Lal Chopra Vs. Rai Bahadur Rao Raja Seth Hira Lal, AIR 1962 SC 527 held that the civil court has a power to grant interim injunction in exercise of its inherent jurisdiction even if the case does not fall within the ambit of provisions of Order 39 Code of Civil Procedure.
  2. In Deoraj vs. State of Maharashtra & Ors. AIR2004 SC 1975, this Court considered a case where the courts below had refused the grant of interim relief. While dealing with the appeal, the Court observed that ordinarily in exercise of its jurisdiction under Art.136 of the Constitution, this Court does not interfere with the orders of interim nature passed by the High Court. However, this rule of discretion followed in practice is by way of just self-imposed restriction. An irreparable injury which forcibly tilts the balance in favour of the applicant, may persuade the Court even to grant an interim relief though it may amount to granting the final relief itself. The Court held as under:-

“The Court would grant such an interim relief only if satisfied that withholding of it would prick the conscience of the court and do violence to the sense of justice, resulting in injustice being perpetuated throughout the hearing, and at the end the court would not be able to vindicate the cause of justice.”

  1. Such a course is permissible when the case of the applicant is based on his fundamental rights guaranteed by the Constitution of India. (vide All India Anna Dravida Munnetra Kazhagam vs. Chief Secretary, Govt. of Tamil Nadu & Ors. (2009) 5 SCC 452)
  2. In Bombay Dyeing & Manufacturing Co. Ltd. Vs. Bombay Environmental Action Group & Ors. (2005) 5 SCC 61, this Court observed as under:-

“The courts, however, have to strike a balance between two extreme positions viz. whether the writ petition would itself become infructuous if interim order is refused, on the one hand, and the enormity of losses and hardships which may be suffered by others if an interim order is granted, particularly having regard to the fact that in such an event, the losses sustained by the affected parties thereby may not be possible to be redeemed.”

  1. Thus, the law on the issue emerges to the effect that interim injunction should be granted by the Court after considering all the pros and cons of the case in a given set of facts involved therein on the risk and responsibility of the party or, in case he looses the case, he cannot take any advantage of the same. The order can be passed on settled principles taking into account the three basic grounds i.e. prima facie case, balance of convenience and irreparable loss. The delay in approaching the Court is of course a good ground for refusal of interim relief, but in exceptional circumstances, where the case of a party is based on fundamental rights guaranteed under the Constitution and there is an apprehension that suit property may be developed in a manner that it acquires irretrievable situation, the Court may grant relief even at a belated stage provided the court is satisfied that the applicant has not been negligent in pursuing the case.
  2. Anything done in undue haste can also be termed as arbitrary and cannot be condoned in law.(Vide Madhya Pradesh Hasta Shilpa Vikas Nigam Ltd. V. Devendra Kumar Jain & Ors.(1995) 1 SCC 638; and Bahadursinh Lakhubhai Gohil Vs. Jagdishbhai M. Kamalia & Ors. AIR 2004 SC 1159).
  3. If the instant case is considered, in the light of the above settled legal propositions and admittedly the whole case of the appellant is based on violation of Article 14 of the Constitution as according to the appellant it has been a case of violation of equality clause enshrined in Article 14, the facts mentioned hereinabove clearly establish that the Corporation and the Government proceeded in haste while considering the application of respondent No.4 which tantamount to arbitrariness, thus violative of the mandate of Article 14 of the Constitution. Application of the appellant was required to be disposed of by a speaking and reasoned order. Admittedly, no reason was assigned for rejecting the same. There is nothing on record to show as on what date and under what circumstances, Plot nos.F-16 and F-17 stood decarved and became part of the Open Space No.9. The respondents could not furnish any explanation as in what manner and under what circumstances, the Bharat Sanchar Nigam Ltd. has been made allotment of land from plot no.F-16, (a part of Open Space No.9), without change of user of the land. The respondent no.4 had not initially asked for 17 acres of land which has been allotted to it. There is nothing on record to show as to why the land could not be disposed of by auction. All these circumstances provide for basis to form a tentative opinion that State and its instrumentalities have acted affectionately in the case of respondent no.4.
  4. Undoubtedly, there has been a delay on the part of the appellant in approaching the court but we cannot be oblivious of the fact that the appellant had been approaching the authorities time and again for allotment of the land. Admittedly, the entire land had not been developed by the respondent no.4 till this Court entertained the Special Leave Petition and directed the parties to maintain status quo with regard to the land measuring 2 acres adjacent to the appellant’s plot no.F-15 vide order dated 21.7.2008. Therefore, it is not only the appellant who is to be blamed for the delay. The land had been allotted to the respondent no.4 in undue haste and no development could take place therein for more than two years of taking the possession of the land. In such a fact-situation the submission made on behalf of the respondents that interim stay cannot be granted at a belated stage in preposterous.
  5. In view of above, we are of the considered opinion that the appeal deserves to be allowed and is hereby allowed. In the facts and circumstances of the case, the interim order passed by this Court on 21.7.2008 shall continue in operation till the writ petition is decided by the High Court. The Hon’ble High Court is requested to dispose of the writ petition expeditiously. Needless to say that any observation made herein either on facts or on law shall not adversely effect the case of either of the parties, for the reason that the only question before this Court has been as to whether the appellant deserves to be granted interim protection till his writ petition is decided by the High Court.

The appeal stands disposed of accordingly. No costs.

…………………………………..J.

(ALTAMAS KABIR) …………………………………J.

(Dr. B.S. CHAUHAN) New Delhi, September 11, 2009

 

The scope of Order 41 Rule 27 CPC is very clear to the effect that the parties to an appeal shall not be entitled to produce additional evidence, whether oral or documentary, unless they have shown that in spite of due diligence, they could not produce such documents and such documents are required to enable the court to pronounce proper judgment.

——————————————————————————————————–

IN THE HIGH COURT OF JUDICATURE AT MADRAS 

DATED : 04.07.2011

CORAM

The Honourable Mr. Justice ELIPE DHARMA RAO
and
The Honourable Mr. Justice M. VENUGOPAL

C.M.A.No.764 of 2009


Nalini Muthu     ..  Appellant 

      vs.

Muthu       ..  Respondent 

      
PRAYER: Appeal filed under Section 19 of the Family Courts Act, 1984 praying for the relief stated therein.

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  For appellant : Mr.J.Bijai Sundar
  For respondent  : Mr.Sureshkumar for 
      M/s.Kanna Associates.
-----

J U D G M E N T
(Judgment of the Court was delivered by M. VENUGOPAL,J.) The Appellant/Respondent [Wife] has filed the present civil miscellaneous appeal as against the order dated 28.1.2009 in O.P.No.1601 of 2004 passed by the I Additional Principal Judge, Family Court, Chennai.
2.The Respondent/Petitioner [Husband] has filed O.P.No.1601 of 2004 before the trial Court under Section 13(1)(ia) and Section 25 of the Hindu Marriage Act, 1955 praying for the dissolution of marriage between him and the Appellant/Wife solemnized on 20.4.1989 at Tirupur. According to the Respondent/Husband, his marriage with the Appellant/Wife took place on 20.4.1989 at Tirupur, according to the Hindu Rites and Customs. Thereafter, they lived as Husband and Wife at New No.84, Old No.87, 5th Street, Padmanabha Nagar, Adyar, Chennai, till April 2003. As a result of the wedlock, two daughters, viz., Mookambika and Sridevi, were born on 25.1.1990 and 4.6.1993 respectively.
3.It is the case of the Respondent/Husband that the Appellant/Wife was behaving very indifferently right from the first day of their marriage and had refused even to attend the daily chores, viz., cooking and cleaning the house, etc.
4.It is the plea of the Respondent/Husband that even after the birth of two children, the Appellant/Wife behaved irresponsibly by leaving to her father’s house without any information to him and refused to return to the matrimonial home for many months. Also, the Appellant/Wife often demanded money and jewels from the Respondent/Husband and had also compelled him to give exorbitant amounts to her father, without any rhyme or reason. Furthermore, the Respondent/Husband, from the date of their marriage, on many occasions, was forced to take his food outside for months together, since the Appellant/Wife refused to cook for him, which had put the Respondent/Husband to ill-health.
5.The further stand of the Respondent/Husband is that he is the Managing Director of his Company, where both male and female staff are employed. As a Managing Director, he used to interact with his staff, including female staff and the Appellant/Wife started suspecting him imagining that he would have had illicit relationship with his female staff and this attitude of the Appellant/wife in suspecting him started from the first day of the marriage. The Appellant/Wife always called upon his office and enquired with his staff about him. That apart, the Appellant/Wife had gone to the extent of suspecting her own sister, whenever she talked to the Respondent/Husband, which showed the psychic attitude of her. She also engaged detective agents to spy and monitor his day-to-day activities, which caused mental agony and distress to him and his privacy was unnecessarily disturbed due to her cheap attitude which resulted in filing of the H.M.O.P.No.1601 of 2004.
6.Conversely, the Appellant/Wife had denied the allegations made against her by the Respondent/Husband, in her counter. She had specifically stated that soon after their marriage, they shifted to Chennai and their first matrimonial home was a rented premises at Nandanam. While so, she was called for an interview for the selection of posting in S.B.I. and she was very eager to seek some employment to share the burden in view of the the then prevailing family circumstances of the matrimonial home. But the Respondent/Husband thwarted the same by stating that he would not allow his wife to work anywhere. Later, the matrimonial home was shifted to another rented house at Seethammal Colony, Teynampet. During their matrimonial homes at Nandanam and Seethammal Colony, there was a gradual improvement in their economic status by the work of the Respondent/Husband, but coupled with the participation of the Appellant/Wife, by pledging her jewels, etc.
7. Furthermore, the case of the Appellant/Wife is that during 1997, the Respondent/Husband had an extra marital relationship with a girl, who was working in his workplace and he continued the said relationship even after that girl’s marriage. The Respondent/Husband showed his anger by giving all sorts of mental agony and assaulted the Appellant/Wife. At one point of time, the Respondent/Husband drove away his parents for questioning his attitude. When the same became unbearable, the Appellant/Wife filed a complaint with All Women Police Station, Adyar and the Respondent/Husband was called for an enquiry. Thereafter, the Respondent/Husband turned again a family person by showing all his love and affection, which resulted in withdrawal of the police complaint. Subsequently, the Respondent/Husband helped the Appellant/Wife in starting a Beauty Parlour in the name and style of ‘Rapid Beauty Parlour’ by investing few thousands of rupees in the first floor of their house. But, at the instance of the Respondent/Husband, the said Parlour was closed after a year.
8. As per version of the Appellant/Wife that except for few months, no Cook was employed since their marriage and it is only she, who was Cooking for all along. The Respondent/Husband was taking his food in the house even few months before filing the petition. But, there was a change in his attitude and he, on his own, was refraining from taking food in the house.
9. The Respondent/Husband was indulging in another extra marital affair since 2003, which fact was known to everybody in his office and same resulted in his change of behaviour and attitude. This was one of the prime reasons for him in refusing to take food in the house. The Respondent/Husband was interacting with his daughters every day without any hindrance from her and therefore, the allegation that she prevented him from meeting the daughters was a false one.
10. The Respondent/Husband was continuing his illicit intimacy with another office staff. As the other Directors of the Company objected strongly and informed the Respondent/Husband that his illicit intimacy would spoil the reputation of the Company, he just created uncongenial atmosphere in the Office during January 2004 and other Directors dismissed the said staff from the job. The Respondent/Husband’s father came to know about this affair and he advised his son to sever connection with that woman and he directly informed the girl’s parents that the girl should not indulge in such activities. But, the Appellant/Wife, with an intention not to further precipitate the matter, after receipt of her husband’s lawyer’s notice dated 12.5.2004, sent a letter dated 22.5.2004 to the Respondent/Husband praying to live together at least in the interest and welfare of their daughters. Since there was no reply for the same, she sent a reply dated 16.6.2004 rejecting the demand of mutual divorce.
11. During trial, the Respondent/Husband examined himself as P.W.1, and Ex.P.1 Marriage Invitation was marked on his behalf. On the other hand, the Appellant/Wife examined herself as R.W.1 and Ex.R.1 was marked on her side. In M.P.No.3 of 2009 filed in the above Civil Miscellaneous Appeal, this Court, by order dated 11.11.2010, permitted the Appellant/Wife to file additional documents, which are marked as Exs.R.2 and R.3.
12. The trial court, on appreciation of the oral and documentary evidence let in by the parties, and after scrutinising the entire oral and documentary evidence on record, had come to a resultant conclusion that the parties were living separately from the year 2003 and that the Respondent/Husband had stated that he was put to mental cruelty in the hands of the Appellant/Wife and therefore, it was not possible for them to live together and held that the Respondent/Husband had proved that the Appellant/Wife had caused him mental and physical cruelty by her arrogant attitude and also by suspecting him and refused to provide him even food in the house. Also, the trial Court had come to the conclusion that though the parties were living in the same house, the Appellant/Wife refused the Respondent/Husband his conjugal rights and also prevented him from seeing his own daughters and thereby caused him mental cruelty.
13. In short, the trial Court had opined that there was no substantial evidence on the side of the Appellant/Wife to prove the allegations made against the Respondent/Husband and accordingly granted the relief of Decree of Divorce as prayed for by the Respondent/Husband.
14. The learned counsel for the Appellant/Wife urges before this Court that the trial Court had committed an error in shifting the burden of proof on the Appellant/Wife to prove her case. However, it is the submission of the learned counsel for the Appellant/Wife that the person, who wants a relief from a Court of law, had to prove his case to the hilt, but, this was not taken into consideration by the trial Court.
15. According to the learned counsel for the Appellant/Wife, the trial Court relied upon the evidence of the Respondent/Husband as P.W.1 and except the ipsi dixit of evidence, there was no other evidence to corroborate his version of the case.
16. It is the case of the Appellant/Wife that there was no misunderstanding between them, but the learned Judge held that there was misunderstanding from the very date of marriage, which is not correct on the basis of available materials on record.
17. The Learned counsel for the Appellant/Wife by pointing out to the effect that the Respondent/Husband had sworn to the effect that his monthly income is only Rs.2,500/- and in evidence, he had admitted before the trial Court that even before his marriage, his income was Rs.2,500/- and later on also his income exceeded more than Rs.2,500/- per month and in view of the evidence tendered by the Respondent/Husband, he had committed perjury of Court, and therefore, his evidence could not be relied upon by this Court.
18. The Learned counsel for the Appellant/Wife brings to the notice of this Court that Ex.R.2 reply issued by her to the legal notice issued by the Respondent/Husband shows that the wife was interested only to live with her Husband and in the said reply, she had only prayed for the past acts to be condoned in the interest of the children’s welfare. The Learned counsel for the Appellant/Wife placed reliance on a decision of the Supreme Court in Dr.N.G.Dastane vs. Mrs.S.Dastane reported in AIR 1975 SC 1534 wherein it is held as follows:-
“Doubtless, the burden must lie on the petitioner to establish his or her case for, ordinarily, the burden lies on the party which affirms a fact, not on the party which denies it. This principle accords with commonsense as it is so much easier to prove a positive than a negative. The petitioner must therefore prove that the respondent has treated him with cruelty within the meaning of Section 10(1) (b) of the Act.”
19. The next decision relied upon by the learned Counsel is one in 95 CWN 806 [Annapurna Ganguly v. Dipak Kumar Ganguly], wherein in paragraph No.7, among other things, it is inter alia observed as under:-
“… It is her evidence that “I also saw that after coming from office petitioner would go to Mandira with packets of sweets and stay there up to 2 night.” Annapurna suspected that Mandira’s husband Hemanta would allow Dipak to stay in his room because they could avail the railway passes obtained by Dipak. This suspicion by the wife about the character of the husband would undoubtedly amount to cruelty provided it is shown that the said conduct is likely to harm or injure the health, reputation, working career or the like of the other spouse. The threat by the wife to her husband that she will put an end to her own life or that she will set the house on fire, the threat that she will make him lose his job and have the matter published in newspapers and the persistent abuses and insults hurled at the husband and his parents are all of so grave an order as to imperil the husband’s sense of personal safety, mental happiness, job satisfaction and reputation are important considerations in determining whether the conduct of the respondent amounts to cruelty {see Dastane v. Dastane (supra)] In Krishna Sarbadhikari’s case (supra) similar observations were made by Their Lordships. We have so far discussed the circumstances which amount to “cruelty’ and those which do not and now we proceed to scrutinise the evidence adduced by the parties at the trial and to see how far and to what extent the petitioner Dipak, on whom lies the burden of proof, has been successful in making out the case of cruelty as one of the grounds justifying the decree of divorce.”
Further, in paragraph 10 of the said judgment, it is held as under:-
“…In the present case taking an overall picture of the conduct of the appellant wife and in the absence of any evidence that the suspicious conduct of the wife was such as to cause extreme mental distress to the husband or it was so grave an order as to imperial the husband’s sense of personal safety, mental happiness, job satisfaction and reputation”, we hold that the said conduct of the respondent did not amount to legal cruelty so as to justify a decree of divorce.”
In paragraph 14 of the said judgment, it is laid down as follows:-
“14.Divorce is not accure for the matrimonial unhappiness and may result in loneliness, despair and hardship more to the child who is 14 years of age. Dipak’s parents are dead. His two other brothers have already been married. Mandira, who incurred the displeasure of the wife, has shifted to her newly-built house. The size of the joint family has thus been reduced considerably. Dipak is 54 and Annapurna 52. It is not possible for them to start a new life at this age. Is the reconciliation still an impossibility? The marriage does not deserve dissolution and the petition of divorce is liable to be dismissed.”
20. The Learned counsel for the Appellant/Wife seeks in aid of the decision of the Hon’ble Supreme Court in S.Hanumantha Rao v. S.Ramani reported in [1999] 3 SCC 620, wherein it is held that hypersensitivity and panic reaction of complainant-spouse cannot be used to cast blame and make out a case of mental cruelty and further that wife’s parents seeking help of Women’s Protection Cell in bringing about reconciliation between estranged spouses and when there is no evidence of harassment by the Cell, the representation made by the wife’s parents to Women’s Protection Cell did not amount to mental cruelty.
21. The Learned counsel for the Appellant/Wife invites the attention of this Court to the decision in Shyam Lata vs. Suresh Kumar reported in AIR 1986 Punjab and Haryana 383, wherein it is held that on wife’s complaint, proceedings under Sections 107 and 151 initiated against the husband and his relatives and the proceedings dropped subsequently for want of prosecution, the institution of the said proceedings does not amount to cruelty justifying grant of divorce.
22. The learned counsel for the Appellant/Wife relies on the decision in Smt.Archana Mahajan vs. Vinod Mahajan reported in AIR 1998 Madhya Pradesh 220, wherein in paragraph No.21, 31, 32, 34 and 35, it is observed as follows:-
“21.In his evidence, he stated that once on account of the complaint made by Archana, he was transferred thrice in a year. He also stated that Archana had made allegations against him in Exs.P.4 and P.5 that he had illicit relations with Kirti Saxena, and had alleged that he wanted to marry that Kirti Saxena.
31.”Jealousy thy name is woman”. It may be a normal phenomenon in the married life of any persons. Does it amount to making the allegations against the husband charging him of unchastity? Does it amount to making the allegation against him of unchastity? No, unless it is baseless, malignant and disgusting. While assessing the evidence in respect of such averments, the Court has to be cautions about it because by such allegations and loose statements, some other person is likely to be maligned so far as his or her character is concerned. In the present case much has been said about Kirti Saxena without giving her opportunity of putting her say. Such allegations would be damaging her in her character, reputation and mind also. It was totally improper for the learned Judge to grant divorce in favour of respondent Vinod Mahajan and against the appellant on such documents Ex.P.4 and P.5 without making Kirti Saxena a party to proceedings. That may amount to a stigma to said Kirti Saxena who had no opportunity of defending herself from such allegations. When such allegations are made in the matrimonial petition such person must be impleaded as party and has to be awarded opportunity of putting his or her case. Reckless statements made against such person without impleading him or her in the matrimonial petition cannot be said to be proper and legal.
32. “Cruelty” is a relative tem. It varies from person to person, and case to case. The allegations and conduct does not amount to cruelty in every case. It depends on the status of spouses, atmosphere in which they live. That has to be understood by seeing neatly the back ground behind it and effect which is likely to be caused by such allegations and conduct.
34.The appellant and respondent are having two children a daughter and a son. Learned trial Judge should have also considered that. On such flimsy ground a decree of divorce cannot be granted putting future of such children to jeopardy. By such decree of divorce their future would be maligned and that would also be a stigma in their entire future life. That would shatter their minds also.
35.Thus, I have no hesitation in coming to the conclusion that decree of divorce dissolving marriage between the appellant and respondent is not correct, proper and legal; that has to be set aside.”
23. Yet another decision relied on by the learned counsel for the Appellant/Wife is in Devram Bilve vs. Indumati reported in [2000] 10 SCC 540, wherein the Hon’ble Supreme Court has held as follows:-
“The letters on the basis of which cruelty was sought to be established have not even been referred to by the Division Bench nor do they seem to have been analysed by the Single Judge. Both the courts did not appear to have gone into this aspect in great detail because they decided the appeal in favour of the respondent on the ground that the parties had lived together at Sagar Hotel at Indore and that amounted to an act of condonation. We have some doubt, on the basis of the evidence on record or the lack of it, whether this conclusion is correct and, therefore, it was important for the Single Judge as well as the Division Bench to have examined the evidence on record in order to determine whether the appellant herein had been able to prove that the respondent had committed such acts of cruelty which would entitle the appellant to get a decree of divorce.
24. The other decision relied on the by the learned Counsel is Premendra Gupta vs. Sunita Gupta reported in {2001} 2 MLJ 397, wherein it is observed as follows:-
A perusal of the evidence establishing that the conduct of the respondent never inflicted upon the appellant any such mental pain and suffering as would make it not possible for the appellant to live with the respondent. The respondent appears to have never uttered any such words so as to injure the feelings of the appellant and the activities of the respondent were also not of such nature that the appellant cannot reasonably be expected to live with the respondent.”
25. Apart from the above, it is the contention of the learned counsel for the Appellant/Wife that the Respondent/Husband even after getting the Decree of Divorce from the trial Court, had shown the name of his wife in the Medical Claim Policy taken by him and this shows that the Respondent/Husband is only interested in her and not seeking the relief of divorce.
26. Repelling the submission of the learned counsel for the Appellant/Wife, the learned counsel for the Respondent/Husband submits that from the year 1999, the Appellant/Wife and the Respondent/Husband were separated and they are living apart and the policy taken in the name of the Appellant/Wife is renewed periodically and it is only a continuing policy and therefore, the mere mention of the name of the Appellant/wife in the Medical Claim Policy taken by the Respondent/Husband will not in any way improve the case of the Appellant/Wife, when he had levelled the allegation of cruelty by the Appellant/Wife that he was having extra marital affair with a lady in his office, etc.
27. The Learned counsel for the Respondent/Husband contends that the Respondent/Husband is the Managing Director of a Company wherein 300 persons are employed and even when the Respondent/Husband had interacted with his staff muchless female staff, the Appellant/Wife used to suspect the Respondent/Husband and also enquired about him by giving phone call to the Office and also keeping him under surveillance. These acts unerringly point out that they come within the ambit and purview of the term ‘cruelty’ and because of the false allegations made against the Respondent/Husband by the Appellant/Wife, the Respondent/Husband was perforced to spend many sleepless nights and days.
28. It is to be noted that the concept of cruelty has been described in Halsbury’s Laws of England {Vol. 13, 4th Edition, para 1269} as under:-
The general rule in all cases of cruelty is that the entire matrimonial relationship must be considered, and that rule is of special value when the cruelty consists not of violent acts but of injurious reproaches, complaints, accusations or taunts. In cases where no violence is averred, it is undesirable to consider judicial pronouncements with a view to creating certain categories of acts or conduct as having or lacking the nature or quality which renders them capable or incapable in all circumstances of amounting to cruelty; for it is the effect of the conduct rather than its nature which is of paramount importance in assessing a complaint of cruelty. Whether one spouse has been guilty of cruelty to the other is essentially a question of fact and previously decided cases have little, if any, value. The court should bear in mind the physical and mental condition of the parties as well as their social status, and should consider the impact of the personality and conduct of one spouse on the mind of the other, weighing all incidents and quarrels between the spouses from that point of view; further, the conduct alleged must be examined in the light of the complainant’s capacity for endurance and the extent to which that capacity is known to the other spouse. Malevolent intention is not essential to cruelty but it is an important element where it exists.
29. We deem it appropriate to recall the term “mental cruelty” from 24 American Jurisprudence 2d, wherein it is mentioned as below:-
Mental cruelty as a course of unprovoked conduct toward one’s spouse which causes embarrassment, humiliation, and anguish so as to render the spouse’s life miserable and unendurable. The plaintiff must show a course of conduct on the part of the defendant which so endangers the physical or mental health of the plaintiff as to render continued cohabitation unsafe or improper, although the plaintiff need not establish actual instances of physical abuse.
30. We aptly point out the Supreme Court decision in Sirajmohmedkhan Janmohamadkhan v. Hafizunnisa Yasinkhan reported in {1981} 4 SCC 250 wherein it is held as under:-
“… The concept of legal cruelty changes according to the changes and advancement of social concept and standards of living. With the advancement of our social conceptions, this feature has obtained legislative recognition, that a second marriage is a sufficient ground for separate residence and maintenance. Moreover, to establish legal cruelty, it is not necessary that physical violence should be used. Continuous ill-treatment, cessation of marital intercourse, studied neglect, indifference on the part of the husband, and an assertion on the part of the husband that the wife is unchaste are all factors which lead to mental or legal cruelty.”
31. To constitute cruelty, the conduct of complaint must be a “grave and weighty one” so as to come to the conclusion that once spouse cannot reasonably be expected to live with the other spouse. The term ‘cruelty’ to be something more than serious than an ordinary wear and tear of marital life. The mental cruelty may consider all verbal abuses and insults by using filthy and abusive language in leading to persistent disturbance of mental peace of the other individual. Admittedly, “mental cruelty” is a problem of human behaviour.
32. In Simpson v. Simpson reported in 1951 P 320, the Court has opined as follows:-
When the legal conception of cruelty is described as being conduct of such a character as to cause danger to life, limb or health, bodily or mental, or to give rise to a reasonable apprehension of such danger, it is vital to bear in mind that it comprises two distinct elements: first, the ill-treatment complained of, and, secondly, the resultant danger or the apprehension thereof. Thus, it is inaccurate, and liable to lead to confusion, if the word cruelty is used as descriptive only of the conduct complained of, apart from its effect on the victim.”
33. In cases of cruelty or mental cruelty, it is not necessary that there should be any physical violence or physical injury being caused to a person by another person. Even a mental or moral cruelty is recognized by the courts of law. Numerous acts of purported cruelty, physical or mental cruelty must not be taken separately. Several acts considered separately in isolation may be small and not hurtful, but when considered in a cumulative fashion, they might come well within the purview of cruelty. Interestingly, in an American case in Jem v. Jem 33 reported in [1937] 34 Haw 312, the Honourable Supreme Court of Hawii aptly mentioned that cruel treatment not amounting to physical cruelty is mental cruelty.
34. In Rosenbaum v. Rosenbaum reported in [1976] 38 111 App 3d 1, the Appellate Court of Illinois held as under:-
To prove a case entitling a spouse to divorce on the ground of mental cruelty, the evidence must show that the conduct of the offending spouse is unprovoked and constitutes a course of abusive and humiliating treatment that actually affects the physical or mental health of the other spouse, making the life of the complaining spouse miserable, or endangering his or her life, person or health.
35. The concept of mental cruelty cannot remain static. There can never be any fixed parameter for mental cruelty in matrimonial cases. However, the Honb’ble Supreme Court in the decision inSamar Ghosh v. Jaya Ghosh reported in [2007] 4 SCC 511, at paragraph No.101, has enumerated certain instances of human behaviour, which may be relevant in dealing with the case of mental cruelty. The relevant paragraph is extracted as under:-
“101. No uniform standard can ever be laid down for guidance, yet we deem it appropriate to enumerate some instances of human behaviour which may be relevant in dealing with the cases of mental cruelty . The instances indicated in the succeeding paragraphs are only illustrative and not exhaustive:
(i) On consideration of complete matrimonial life of the parties, acute mental pain, agony and suffering as would not make possible for the parties to live with each other could come within the broad parameters of mental cruelty.
(ii) On comprehensive appraisal of the entire matrimonial life of the parties, it becomes abundantly clear that situation is such that the wronged party cannot reasonably be asked to put up with such conduct and continue to live with other party.
(iii) Mere coldness or lack of affection cannot amount to cruelty, frequent rudeness of language, petulance of manner, indifference and neglect may reach such a degree that it makes the married life for the other spouse absolutely intolerable.
(iv) Mental cruelty is a state of mind. The feeling of deep anguish, disappointment, frustration in one spouse caused by the conduct of other for a long time may lead to mental cruelty.
(v) A sustained course of abusive and humiliating treatment calculated to torture, discommode or render miserable life of the spouse.
(vi) Sustained unjustifiable conduct and behaviour of one spouse actually affecting physical and mental health of the other spouse. The treatment complained of and the resultant danger or apprehension must be very grave, substantial and weighty.
(vii) Sustained reprehensible conduct, studied neglect, indifference or total departure from the normal standard of conjugal kindness causing injury to mental health or deriving sadistic pleasure can also amount to mental cruelty.
(viii) The conduct must be much more than jealousy, selfishness, possessiveness, which causes unhappiness and dissatisfaction and emotional upset may not be a ground for grant of divorce on the ground of mental cruelty.
(ix) Mere trivial irritations, quarrels, normal wear and tear of the married life which happens in day-to-day life would not be adequate for grant of divorce on the ground of mental cruelty.
(x) The married life should be reviewed as a whole and a few isolated instances over a period of years will not amount to cruelty. The ill conduct must be persistent for a fairly lengthy period, where the relationship has deteriorated to an extent that because of the acts and behaviour of a spouse, the wronged party finds it extremely difficult to live with the other party any longer, may amount to mental cruelty.
(xi) If a husband submits himself for an operation of sterilisation without medical reasons and without the consent or knowledge of his wife and similarly, if the wife undergoes vasectomy or abortion without medical reason or without the consent or knowledge of her husband, such an act of the spouse may lead to mental cruelty.
(xii) Unilateral decision of refusal to have intercourse for considerable period without there being any physical incapacity or valid reason may amount to mental cruelty.
(xiii) Unilateral decision of either husband or wife after marriage not to have child from the marriage may amount to cruelty.
(xiv) Where there has been a long period of continuous separation, it may fairly be concluded that the matrimonial bond is beyond repair. The marriage becomes a fiction though supported by a legal tie. By refusing to sever that tie, the law in such cases, does not serve the sanctity of marriage; on the contrary, it shows scant regard for the feelings and emotions of the parties. In such like situations, it may lead to mental cruelty.”
36. In Manisha Tyagi v. Deepak Kumar reported in I [2010] DMC 451 (SC), the Honourable Supreme Court, in paragraph Nos.24 and 25, has held as under:-
“24. This is no longer the required standard. Now it would be sufficient to show that the conduct of one of the spouses is so abnormal and below the accepted norm that the other spouse could not reasonably be expected to put up with it. The conduct is no longer required to be so atrociously abominable which would cause a reasonable apprehension that it would be harmful or injurious to continue the cohabitation with the other spouse. Therefore to establish cruelty it is not necessary that physical violence should be used. However, continued ill-treatment, cessation of marital intercourse, studied neglect, indifference of one spouse to the other may lead to an inference of cruelty. However, in this case even with aforesaid standard both the trial court and the appellate court had accepted that the conduct of the wife did not amount to cruelty of such a nature to enable the husband to obtain a decree of divorce.”
“25. We may notice here the observations made by this Court in Shobha Rani v. Madhukar Reddi, I (1988) DMC 12 (SC) = (1988) 1 SCC 105 wherein the concept of cruelty has been stated as under:
The word cruelty has not been defined in the Hindu Marriage Act. It has been used in Section 13(1)(i-a) of the Act in the context of human conduct or behaviour in relation to or in respect of matrimonial duties or obligations. It is a course of conduct of one which is adversely affecting the other. The cruelty may be mental or physical, intentional or unintentional. If it is physical, it is a question of fact and degree. If it is mental, the enquiry must begin as to the nature of the cruel treatment and then as to the impact of such treatment on the mind of the spouse. Whether it caused reasonable apprehension that it would be harmful or injurious to live with the other, ultimately, is a matter of inference to be drawn by taking into account the nature of the conduct and its effect on the complaining spouse. There may, however, be cases where the conduct complained of itself is bad enough and per se unlawful or illegal. Then the impact or the injurious effect on the other spouse need not be enquired into or considered. In such cases, the cruelty will be established if the conduct itself is proved or admitted. The absence of intention should not make any difference in the case, if by ordinary sense in human affairs, the act complained of could otherwise be regarded as cruelty. Intention is not a necessary element in cruelty. The relief to the party cannot be denied on the ground that there has been no deliberate or wilful ill-treatment.
37.The mental cruelty must be of such a nature that the parties cannot reasonably be expected to live together. While ariving at a conclusion as regards ‘cruelty’ the social status, educational level of the parties, society thy move in, the possibility or otherwise of parties ever living together in case they are living separately are to be taken into account by the Court concerned.
38.The burden of proving adultery under the Hindu Marriage Act is of a civil nature by means of preponderance of probabilities and not by way of proving it beyond reasonable doubt as per decision of the Honourable Supreme Court Dastane v. Dastane, AIR 1975 SC 1534.
39.The general evidence of ill repute of the husband or of the lewd company that he keeps or even that he knows the addresses of prostitutes and was seen with doubtful women would neither prove nor probabilise adultery as per decision Dan Henderson v. D. Henderson, AIR 1970 Madras 104 (Division Bench).
40. As far as the present case is concerned, the Respondent/Husband is admittedly the Managing Director of his Company where 300 persons are employed in different age groups, including males and females. The Respondent/Husband had stated that the Appellant/Wife whenever he talked with his staff, especially with the female staff, then the Appellant/Wife suspected that he is having extra marital affair with his staff. The Appellant/Wife had specifically stated that the Respondent/Husband had an extra marital relationship during the year 1997 with another girl who was working in his work place and even after that girl’s marriage, he continued the same and therefore, the Respondent/Husband assaulted her. Also, the Appellant/Wife had stated that the Respondent/Husband was indulging in another extra marital affair since September, 2003.
41. In the instant case, the Appellant/Wife had made allegations against the Respondent/Husband that he was having an extra marital relationship with a girl in his office during 1997 and again had another extra marital affair since September, 2003. It is the well accepted principle of law that when a person makes an allegation in respect of a particular averment, then the burden of proving the said allegation lies on him or her. In the case on hand, the Appellant/Wife even though had levelled serious allegations against the Respondent/Husband, that he was having an affair with a girl in his work place during 1997 and later indulged in another extra marital affair since September, 2003 were not proved to the subjective satisfaction of the Court. These allegations when not proved by the person who made the same, naturally, it constitutes cruelty resulting in mental agony and loss of peace of mind to the other spouse. By making these kind of allegations mentioned supra and later not proving the same against the Respondent/Husband by the Appellant/Wife, in our considered view, had caused mental hardship and cruelty to the Respondent/Husband.
42. It cannot be gainsaid that in the cross-examination of P.W.1 {Respondent/Husband}, the Appellant/Wife had suggested that her husband had illicit relationship with a lady by name Misha. Also, the Appellant/Wife though had come out with a stand that her father-in-law and mother-in-law had advised the Respondent/Husband to change his attitude in regard to his extra marital affair, surprisingly, except herself being examined as R.W.1, none had appeared as a witness on her behalf and in short, we are of the considered view that because of the allegations made by the Appellant/Wife against the Respondent/Husband that he was having extra marital affair with his staff, etc., the relationship between them had strained considerably and it has reached the stage of point of no return. In short, the marriage between the Appellant/Wife and the Respondent/Husband had irretrievably broken down and it is beyond repair. A marriage being dead practically and emotionally, the continuance of the same will procastinate the mental agony and affliction and it is cruelty. Therefore, on the basis of available materials on record, and on perusal of the entire oral and documentary evidence, we come to an inevitable conclusion that the Respondent/Husband had established before the trial Court that the Appellant/wife had caused mental cruelty to him and accordingly, he had established the same before the trial Court, which rightly granted the decree of Dissolution of Marriage that took place between the parties on 20.4.1989 at Tiruppur. Suffice it to point out that the said order of the trial court in allowing O.P.No.1602 of 2004 filed by the Respondent/Husband against the Appellant/Wife by means of an order dated 28.1.2009 does not suffer from any serious material irregularity or patent illegality. Consequently, the Civil Miscellaneous Appeal is devoid of merits.
43. In the result, the Civil Miscellaneous Appeal is dismissed leaving the parties to bear their own costs. The order dated 28.1.2009 in O.P.No.1601 of 2004 passed by the I Additional Principal Judge, Family Court, Chennai, is confirmed, for the reasons assigned in the Civil Miscellaneous Appeal. Consequently, M.P.Nos.1 and 2 of 2009 are closed.
44. So far as M.P.No.1 of 2011 seeking to file additional documents, under Order XLI, Rule 27 CPC, which are the LIC, Medical Claim Policies and Hospitalisation of Benefit Policy (9 in numbers) dated 14.10.200, 12,12.2000, 08.01.2001, 28.03.2005, 28.03.2005, 03.04.2009, 03.04.2009, and 30.03.2009respectively and M.P.No.1 of 2011 seeking to permit the Appellant/Wife to examine one T.C.Paramasivam, her father-in-law as R.W.2 as additional witness, under Order XLI, Rule 27(1)(b) CPC, we are of the considered opinion that the Petitioner/Appellant {wife} had not made out a sufficient or good cause enabling this Court to allow these petitions and there are no tangible explanations put forward on the side of the petitioner/Appellant to show as to why these documents were not filed by her earlier during trial in the Original Petition before the trial Court. Only for securing the ends of justice, the petition to receive the additional documents are to be accepted by this Court. The Appellant/Wife cannot claim as a matter of right to produce any document or examine any witness before the Appellate Authority. The discretion to receive any evidence documentary or oral rests with the Appellate Authority as per decision of the Honourable Supreme Court Basayya I. Mathad v. Rudrayya S. Mathad and Others, 2008 (3) SCC 120. However, it is to be borne in mind that the petition to receive additional documents cannot be projected either to fill up the gap in evidence tendered before the trial court by the respective parties or to fill up the weakness of one’s case. It is held in N.Kamalam (Dead) and another v. Ayyasamy and another, (2001) 7 Supreme Court Cases 503 that oral evidence after a long time gap, the High Court must be cautious about allowing applications seeking to adduce of additional evidence particularly in the form of oral evidence after along interval between the decree and the application As a matter of fact, the ingredients of Order 41 Rule 27 of CPC have not been enumerated in Civil Procedure Code so as to patch up the weak points in the case and to fill up the omission in the Court of Appeal. Indeed, the power under Order 41 Rule 27 of CPC are to be exercised sparingly and with care circumspection. Even in regard to the permission being sought for on the side of he Appellant/Wife to examine her father-in-law as R.W.2 in M.P.No.1 of 2011, we are of the considered view that though the Appellant/Wife before the trial Court had stated that her father-in-law had known about the Respondent/Husband’s conduct pertaining to his extra marital affair with ladies, etc. when ample opportunities were available to her in the trial Court why that was not utilised or availed of by her in examining her father-in-law was not satisfactorily explained before this Court.
45. At this stage, we deem it appropriate to recall the decision M.Harinarayana @ Haribabu V. Smt.P.Swaroopa Rani 2008 (6) ALT 378 (D.B.) at page 380 wherein it is held as follows:
Under Order 41, Rule 27 CPC a party is permitted to adduce additional evidence only if he establishes that notwithstanding the exercise of due diligence, such evidence was not within his knowledge or could not, after the exercise of due diligence, be produced by him at the time when the decree appealed against him was passed.
27. In the instant case, as rightly pointed out by the learned counsel appearing for the appellant that the certificate was said to be issued by the District Treasury Office on 16.12.2005, whereas it was well within the knowledge of respondent that the date of execution mentioned in Ex.A-15 was not correct. Such being the situation, the respondent could have adduced the proposed additional evidence in the trial Court itself but failed to do so. There is no proper explanation from the respondent by which cause he was prevented from adducing the said evidence before the trial Court. As such, the respondent failed to establish that notwithstanding the exercise of due diligence, he could not be able to adduce the proposed additional evidence before the trial Court. Under these circumstances, the proposed additional evidence cannot be admitted in this appeal and the A.S.M.P.No.1142 of 2006 filed by the respondent to receive the certificates issued by the District Treasury Office as additional evidence is hereby dismissed.
46. We also aptly point out the decision of the Hon’ble Supreme Court in Hindustan Brown Boverl, Ltd., V. Their Workmen and another 1968 (1) L.L.J. 571 at page 575 & 576 whereby and whereunder, it is, among other things, observed as follows:
Now, the principles on which the appellate Court permits additional evidence are well known. It is quite clear that this is not a case where the company can avail itself of any of these principles. There is no manner of doubt that the company was negligent in not producing the document. This is therefore, not a case where the company could not produce this additional evidence or was prevented from doing so, or that it has now discovered a fresh piece of evidence. In these circumstances, we would not be justified in granting at this late stage leave to produce additional evidence. In the absence of such evidence the company obviously must be held to have failed to establish delegation of power of dismissal to the works manager.
47. Further, in T.Paramasivam V. N.Babu and another (2008) 5 MLJ 68 at page 78 in paragraph 36, this Court has held as follows:
36. It is also clear that, even though the appellant had knowledge of the existence of the said documents, he has chosen not to mark them as documentary evidence before the trial Court as well as the first Appellate Court. Even though this Court has the power, under Order XLI Rule 27 of the Civil Procedure Code, 1908, to permit marking of documents at this stage in the interest of justice, this Court is of the considered view that such a necessity does not arise in the present case. The appellant has not been in a position to give a sufficient reason or an acceptable explanation as to why he could not mark the documents said to be in his favour at an earlier stage. When both the courts below, after carefully analysing the evidence on record, had found that the first defendant had sold the suit property to the plaintiff in the suit for a valid consideration, by executing a sale deed, dated 02.01.1993, marked as Ex.A-4, this Court does not find sufficient grounds to interfere with the said findings of the Courts below. The petition filed by the appellant in C.M.P.No.2225 of 2007 is belated and if the prayer therein is granted it would cause grave prejudice to the respondents. Therefore, the CMP stands dismissed.
48. In the decision of the Hon’ble Supreme Court Karnataka Board of Wakf V. Government of India and others (2004) 10 Supreme Court Cases 779 at page 781, the Hon’ble Supreme Court has laid down as follows:
The scope of Order 41 Rule 27 CPC is very clear to the effect that the parties to an appeal shall not be entitled to produce additional evidence, whether oral or documentary, unless they have shown that in spite of due diligence, they could not produce such documents and such documents are required to enable the court to pronounce proper judgment.
49. In A.Ravishankar Shetty and Another V. Suresh Chadaga P.S. & Another AIR 2009 (NOC) 2374 (Kar.) it is, inter alia, observed that ‘… However, it is clear from the evidence of tenant that they had submitted the said document for securing loan from Bank to show that they are tenants of suit premises and for declaration of their hotel for business purpose’ and held that ‘it is clear that original lease deed which is now sought to be produced was very much with tenants and for reasons best known to them said document was not produced in the Court below and as such, the tenant cannot be allowed to produce additional documents.’
50. In RM. AR. AR. RM. AR. Ramanathan Chettiar V. VT. RM. K.Ramasami Chettiar (1980) 1 M.L.J. 178, this Court has held hereunder:
The provisions of Order 41, rule 27 Civil Procedure Code are not meant to enable either party to the suit to fill up the gaps in the evidence or to better their case, in the appellate Court when once they find that the evidence which they had chosen to let in the trial Court is found by the Appellate Court to be insufficient to justify their case.
51. In the decision of Hon’ble Supreme Court State of Gujarat and another V. Mahendrakumar Parshottambhai Desai (Dead) by Lrs. (2006) 9 Supreme Court Cases 772 at page 775 wherein at paragraph 10 and 11, it is laid down as follows:
10.We shall first deal with the appeals preferred against the judgment and order of the High Court rejecting Civil Application Nos. 964 and 1150 of 2002 filed by the appellants herein for adducing additional evidence under Order XLI Rule 27 of the Code of Civil Procedure. The documents sought to be produced were contained in Annexure I to the applications. The applications were opposed by the respondents. It was submitted on behalf of the appellants that the applications may be treated as one under Order XLI Rule 27(1)(b) of the Code of Civil Procedure, apparently because the other provisions or the rule did not apply to the facts and circumstances of the case. The High Court noticed that a similar Civil Application being No. 4849 of 2000 had been filed earlier when this appeal had been placed for hearing before another Division Bench of the High Court, but the said application was rejected by order dated June 22, 2000. The High Court further found that Rule 27(1)(b) of Order XLI can be invoked only if the Court requires any document to be produced or any witness to be examined to enable it to pronounce judgment, or for any other substantial cause. In the instant case it was not as if the additional evidence was required by the Court to enable it to pronounce judgment and, therefore, additional evidence was sought to be adduced for “substantial cause” since serious prejudice would be caused to the appellants if the additional evidence was not permitted to be adduced. Reliance was placed on the judgment of this Court in Municipal Corporation of Greater Bombay vs. Lala Pancham and others : AIR 1965 SC 1008 wherein this Court held that though the appellate Court has the power to allow a document to be produced and a witness to be examined under Order XLI Rule 27 CPC, the requirement of the said Court must be limited to those cases where it found it necessary to obtain such evidence for enabling it to pronounce judgment. This provision did not entitle the appellate court to let in fresh evidence at the appellate stage where even without such evidence it can pronounce judgment in the case. It does not entitle the appellate court to let in fresh evidence only for purposes of pronouncement of judgment in a particular way. The High Court referred to the earlier proceedings before various authorities and came to the conclusion that though the appellants had sufficient opportunity to bring the evidence on record,, for reasons best known to it, the State did not produce the entire evidence before the trial court and it was only 8 years after the dismissal of the suit that the applications were filed for adducing additional evidence in the appeal. The High Court, therefore, dismissed the applications for adducing additional evidence.
11.We find no error in the approach of the High Court. We have earlier noticed the long history of litigation which preceded the filing of the suit. The documents sought to be brought on record are not documents which were discovered later or came into existence after the filing of the suit. The documents are part of the Government records and they could have been produced in the suit.
52. It is to be pointed out that as per Order XLI Rule 27 of the Code of Civil Procedure, it is the duty of the Petitioner/Appellant/ Wife to establish to the satisfaction of this Court as to why she had not projected the documents mentioned in M.P.No.1 of 2011 before the trial Court during the time of trial. It is the duty of the Appellant/Petitioner to set out a good case/sufficient cause for not filing the said documents and also to explain the circumstances which prevented her from not filing the aforesaid documents in a diligent fashion before the trial Court. But, in the present case, the Petitioner/Appellant has not made out a case in M.P.No.1 of 2011 to receive additional documents and also in M.P.No.1 of 2011 has not satisfactorily explained as to why she had not made use of the opportunity in examining her father in law as RW2 before the trial Court.
53. In that view of the matter, the Miscellaneous Petitions are dismissed to prevent an aberration of justice.
       (E.D.R.,J.)     (M.V.,J.)

 

the view that the impugned judgment of the High Court does not decide the issue in correct
prospective. The impugned order dated 11.9.2013 passed by the respondents
blacklisting the appellant without giving the appellant notice thereto, is
contrary to the principles of natural justice as it was not specifically
proposed and, therefore, there was no show cause notice given to this
effect before taking action of blacklisting against the appellant.

———————————————————————————————————————————————————————————————–

REPORTABLE

IN THE SUPREME COURT OF INDIA
CIVIL APPELLANT JURISDICTION
CIVIL APPEAL NOS. 7167-7168 OF 2014
[Arising out of Special Leave Petition (Civil) No. 38898-38899 of 2013)

GORKHA SECURITY SERVICES …..APPELLANT(S)
VERSUS

GOVT. OF NCT OF DELHI & ORS. …..RESPONDENT(S)

J U D G M E N T

A.K. SIKRI, J.
Leave granted.
2) Present appeals raise an interesting question of law pertaining to
the form and content of show cause notice, that is required to be served,
before deciding as to whether the noticee is to be blacklisted or not. We
may point out at the outset that there is no quarrel between the parties on
the proposition that it is a mandatory requirement to give such a show
cause notice before black listing. It is also undisputed that in the
present case the show cause notice which was given for alleged failure on
the part of the appellant herein to commence/ execute the work that was
awarded to the appellant, did not specifically propose the action of
blacklisting the appellant firm. The question is as to whether it is a
mandatory requirement that there has to be a stipulation contained in the
show cause notice that action of blacklisting is proposed? If yes, is it
permissible to discern it from the reading of impugned show cause notice,
even when not specifically mentioned, that the appellant understood that it
was about the proposed action of blacklisting that could be taken against
him?
3) The factual narration, leading to the impugned action viz. of
blacklisting the appellant firm does not require much elaboration. Stating
the following events would serve the purpose of addressing the issue at
hand.
4) The appellant, which is a partnership firm, was awarded the contract
vide letter of award dated 1.9.2011 for providing security services in Shri
Dada Dev Matri Avum Shishu Chiktsalaya, Dabri, New Delhi (hereinafter
referred to as the ‘hospital). This hospital is under the administration of
Respondent No. 1 viz. Government of NCT of Delhi. The contract was for a
period of 1 year i.e. from 2.9.2011 to 1.9.2012. The payment was required
to be made contractually to the appellant on monthly basis. Though the
contract was upto 1.9.2012, the appellant continued to provide services
even thereafter. The case of the appellant is that it has not been given
any payment after the expiry of the contract period though it worked till
31.7.2013.
5) It appears that the respondents had issued a communication dated
4.8.2012, in continuation of their earlier letter dated 17.10.2011,
requiring the appellant to submit the valid EPF/ ESIC certificate, list of
persons deployed along with copies of their educational certificates,
police verification report, medical examination report etc. and to make the
payment of prescribed minimum wages to the workers through ECS or by cheque
and deposit the EPF/ESIC and service tax etc. This communication further
mentioned that inspite of the lapse of a long period the appellant had
failed to submit the requisite documents/ information and was not making
full payment of minimum prescribed wages to its workmen/ security guards
nor was providing the statutory benefits like EPF/ ESIC. Certain other
deficiencies in the performance of the contract were also alleged therein.
The appellant, in the first instance, sent the letter dated 7.8.2012 in
response to the aforesaid notice, stating that it had obtained the EPF and
ESIC numbers in respect of deployed security personnel and deposited their
contributions towards EPF & ESIC with the concerned authorities. Proof in
support of this was also furnished in the form of photocopies of
consolidated challans with the bills. The appellant specifically maintained
that it had made payment to the workers as per Minimum Wages Act.
6) Detailed reply to the notice dated 4.8.2012 was given by the
appellant on 17.8.2012 wherein photocopies of bio-data in respect of
deployed 32 security personnel alongwith police verification report as well
as list of security personnel along with their date of birth, educational
qualifications, addresses and EPF & ESIC numbers were given. Other issues
mentioned in notice dated 4.8.2012 were also addressed.
7) The respondent authorities, however, were not satisfied with the
reply which resulted in serving of the show cause notice dated 6.2.2013
upon the appellant detailing various lapses, which the appellant had
allegedly committed. Since the entire dispute revolves around the nature
of action that was stipulated therein and was proposed to be taken, we
would like to reproduce that part of the show cause notice in verbatim:
“And whereas, by the above act and omissions, the firm has not only failed
to provide minimum wages and extend the statutory benefits and abide by the
labour laws, but also failed to provide satisfactory services and failed to
submit the required information/ document, as and when called for and also
being pre-requisite under the tender terms and conditions, and have
rendered this hospital at the risk by deputing the less security personnels
that too without prior intimation of the credentials of the deployed staff
and police verification, as such liable to be levied the cost accordingly.
Therefore, you are directed to show case within 7 days of the
receipt of this notice, as to why the action as mentioned above may not be
taken against the firm, beside other actions as deemed fit by the competent
authority.
(emphasis supplied)”.

8) The appellant furnished detailed reply dated 25.4.2013 to the
aforesaid show cause notice taking the position that the appellant firm had
adhered to and complied with all the obligations contained in the contract
signed between the parties and it was the respondent who had defaulted in
making the payment to the appellant inspite of various reminders issued. It
was thus maintained that there was no violation of the terms and conditions
of the agreement on the part of the appellant and the respondents were
requested to withdraw the show cause notice and make the payment due to the
appellant within 15 days with interest at the rate of 18% from the date it
became payable.
9) On receipt of the aforesaid reply, respondents sent another
communication dated 30.5.2013 calling upon the appellant to submit certain
documents. This was adverted to by the appellant in the form of reply dated
8.6.2013 reiterating the position taken earlier viz. the appellants were
adhering to all the statutory obligations and submitting documents with the
department. The appellant again insisted that respondents who were not
releasing the payment and instead threatening the appellant to terminate
the contract.
10) First communication which was received, thereafter, by the appellant
was letter dated 30.7.2013 informing the appellant that the contract of the
appellant would stand terminated from 31.8.2013 (A.N.) and the appellant
was directed to wind up its work and hand over the charge to the in-charge
outsourcing for further arrangements. The appellant took exception to this
move on the part of the respondent vide its letter dated 31.7.2013 alleging
that the contract was sought to be terminated without assigning any valid
reasons which was unjustified, that too when no payment was made for the
services rendered by the appellant. By another letter dated 14.8.2013, the
appellant repeated its request for release of payment.
11) At this juncture impugned order dated 11.9.2013 was passed by the
respondents wherein the respondents maintained that the appellant had
violated the terms and conditions of the Contract Labour Laws and had also
not complied with certain other requirements stipulated in the agreement
between the parties. In view thereof, vide this order, various penalties
were imposed upon the appellant in the following form:-
(i) A penalty of Rs. 3000/- (Rupees Three Thousand only) under clause 27
(c) of the T&C, on account of public complaints.
(ii) A penalty of Rs. 41,826/- (Rupees Forty One Thousand Eight Hundred
Twenty Six only) under Clause 27 (c) (a) (i) on account of unsatisfactory
performance and not abiding by the statutory requirements.
(iii) A penalty of forfeiture of performance guarantees amounting to Rs.
3,70,000/- (Rupees Three Lac Seventy Thousand only) submitted at the
commencement of contract.
(iv) A penalty of blacklisting the firm M/s Gorkha Security for a period
of 4 years from the date of this order, from participating the tenders in
any of the department of Delhi Government/ Central Government/ Autonomous
Body under the Government.
(v) Since, the firm has made the payment of wages @ Rs. 4,000/- per month
per person which is less than the prescribed rates of minimum wages, and
submitted no proof of payment of wages, EPF and ESI etc. in spite of
opportunities given over the years, hence, it is ordered to release the
payment only @ Rs. 4,000/- per month per person plus applicable taxes after
deducting the penalty imposed at 1 & 2 above and withhold rest of the
payment of bills to the extent of amount over and above Rs. 4,000/- per
month per person, till the payment of full wages to the employees and
submissions of the proof of disbursing minimum prescribed wages and
depositing the EPF and ESI contributions in respect of each deployed
employees who have actually deployed and worked in this hospital duly
verified by the authorities concerned.

12) The appellant preferred an appeal dated 23.9.2013, against the
aforesaid order, to the Principal Secretary (H&FW). However, it did not
evoke any response from the Secretary and in these circumstances the
appellant approached the High Court of Delhi by filing the Writ Petition
under Article 226 of the Constitution of India, seeking quashing of the
orders dated 11.9.2013. The said order was assailed by the appellant
primarily on the following grounds:-
(i) The show-cause notice dated 6.2.2013 made no reference to the
proposed blacklisting of the appellant and, therefore, the appellant had no
opportunity to make a representation in this regard;
(ii) No opportunity of personal hearing was given to the appellant before
passing the impugned order; and
(iii) There was no ground for blacklisting the appellant since no term of
the agreement was breached by it.

13) The learned Single Judge of the High Court did not find any merit in
any of the aforesaid grounds and dismissed the writ petition by reason of
the judgment dated 25.10.2013. It was held that the State had the power to
blacklist a person, which was a necessary concomitant to the executive
power of the State to carry on the trade or the business and making of
contracts for any purpose, etc., as held in Patel Engineering Ltd. v. Union
of India; (2012) 11 SCC 257. In this judgment, the Supreme Court had also
taken the view that there is no inviolable rule that a personal hearing has
to be given to the affected party before taking a decision. Referring to
the terms and conditions of the contract, as contained in the NIT, which
form part of the agreement, and particularly Clause 27 (a) (ii), the Court
noticed that there was specific power reserved by the respondent to black
list the defaulting contractor for a period of 4 years. In view of that
power it held that the appellant was rightly blacklisted. In so far as
argument of the appellant that show cause notice did not specifically refer
to the proposed action of black listing, that plea was rejected in the
following terms:

“It would thus be seen that the contract between the parties specifically
empowered the respondents to blacklist the appellant firm. Therefore, when
the show cause notice received by the appellant expressly mentioned of such
action as may be deemed appropriate by the Competent Authority, the
appellant could easily visualize that the action proposed by the Competent
Authority could include blacklisting of the appellant-firm. Considering the
express terms of the contract between the parties, it was not necessary for
the respondent to specifically refer to the proposed blacklisting in the
show cause notice issued to the appellant. The purpose of show cause notice
is primarily to enable the noticee to meet the grounds on which an action
is proposed against it and such grounds were fully detailed in the show
cause notice issued to the appellant. In fact, even prior to issue of the
show cause notice, the appellant was aware of the issues between the
parties through the notice dated 4.8.2012. It would, therefore, be
difficult to say that the appellant did not know what case it had to meet
while responding to the show-cause notice. In any case, the appellant did
respond to the show cause notice without claiming the ambiguity in the said
notice and, therefore, it is not open to it to assail the impugned order on
the ground that there was no specific reference to the proposed
blacklisting of in the said notice”.

14) Not satisfied with the aforesaid outcome, the appellant preferred
Letters Patent Appeal before the Division Bench of the High Court. However,
it has met the same fate in as much as the High Court has dismissed the
appeal vide impugned judgment dated 29.11.2013 affirming the view taken by
the learned Single Judge.
15) It is in this backdrop, question which has arisen for our
consideration in the present case is as to whether action of blacklisting
could be taken without specifically proposing/ contemplating such an action
in the show cause notice? To put it otherwise, whether the power of
blacklisting contained in Clause 27 of the NIT, was sufficient for the
appellant to be on his guards, and to presume that such an action could be
taken even though not specifically spelled out in the show cause notice?
16) We have heard the learned Counsel for the parties appearing on the
either side on the aforesaid aspects, in detail. Before we proceed to
answer the question we may restate and highlight the legal position about
which there is neither any dispute, nor can there be as there is no escape
from the below stated legal principle:
Necessity of serving show cause notice as a requisite of the Principles of
Natural Justice:
17) It is a common case of the parties that the blacklisting has to be
preceded by a show cause notice. Law in this regard is firmly grounded and
does not even demand much amplification. The necessity of compliance with
the principles of natural justice by giving the opportunity to the person
against whom action of blacklisting is sought to be taken has a valid and
solid rationale behind it. With blacklisting many civil and/ or evil
consequences follow. It is described as “civil death” of a person who is
foisted with the order of blacklisting. Such an order is stigmatic in
nature and debars such a person from participating in Government Tenders
which means precluding him from the award of Government contracts. Way back
in the year 1975, this court in the case of M/s. Erusian Equipment &
Chemicals Ltd. v. State of West Bengal & Anr.; (1975) 1 SCC 70, highlighted
the necessity of giving an opportunity to such a person by serving a show
cause notice thereby giving him opportunity to meet the allegations which
were in the mind of the authority contemplating blacklisting of such a
person. This is clear from the reading of Para Nos. 12 and 20 of the said
judgment. Necessitating this requirement, the court observed thus:
“12. Under Article 298 of the Constitution the executive power of the Union
and the State shall extend to the carrying on of any trade and to the
acquisition, holding and disposal of property and the making of contracts
for any purpose. The State can carry on executive function by making a law
or without making a law. The exercise of such powers and functions in trade
by the State is subject to Part III of the Constitution. Article 14 speaks
of equality before the law and equal protection of the laws. Equality of
opportunity should apply to matters of public contracts. The State has the
right to trade. The State has there the duty to observe equality. An
ordinary individual can choose not to deal with any person. The Government
cannot choose to exclude persons by discrimination. The order of
blacklisting has the effect of depriving a person of equality of
opportunity in the matter of public contract. A person who is on the
approved list is unable to enter into advantageous relations with the
Government because of the order of blacklisting. A person who has been
dealing with the Government in the matter of sale and purchase of materials
has a legitimate interest or expectation. When the State acts to the
prejudice of a person it has to be supported by legality.

20. Blacklisting has the effect of preventing a person from the privilege
and advantage of entering into lawful relationship with the Government for
purposes of gains. The fact that a disability is created by the order of
blacklisting indicates that the relevant authority is to have an objective
satisfaction. Fundamentals of fair play require that the person concerned
should be given an opportunity to represent his case before he is put on
the blacklist”.

Again, in Raghunath Thakur v. State of Bihar and Ors.;(1989) 1 SCC 229 the
aforesaid principle was reiterated in the following manner:-
“4. Indisputably, no notice had been given to the appellant of the proposal
of blacklisting the appellant. It was contended on behalf of the State
Government that there was no requirement in the rule of giving any prior
notice before blacklisting any person. Insofar as the contention that there
is no requirement specifically of giving any notice is concerned, the
respondent is right. But it is an implied principle of the rule of law that
any order having civil consequence should be passed only after following
the principles of natural justice. It has to be realised that blacklisting
any person in respect of business ventures has civil consequence for the
future business of the person concerned in any event. Even if the rules do
not express so, it is an elementary principle of natural justice that
parties affected by any order should have right of being heard and making
representations against the order. In that view of the matter, the last
portion of the order insofar as it directs blacklisting of the appellant in
respect of future contracts, cannot be sustained in law. In the premises,
that portion of the order directing that the appellant be placed in the
blacklist in respect of future contracts under the Collector is set aside.
So far as the cancellation of the bid of the appellant is concerned, that
is not affected. This order will, however, not prevent the State Government
or the appropriate authorities from taking any future steps for
blacklisting the appellant if the Government is so entitled to do in
accordance with law i.e. after giving the appellant due notice and an
opportunity of making representation. After hearing the appellant, the
State Government will be at liberty to pass any order in accordance with
law indicating the reasons therefor. We, however, make it quite clear that
we are not expressing any opinion on the correctness of otherwise of the
allegations made against the appellant. The appeal is thus disposed of.”

Recently, in the case of Patel Engineering Ltd. v. Union of India and Anr.;
(2012) 11 SCC 257 speaking through one of us (Jasti Chelameswar, J.) this
Court emphatically reiterated the principle by explaining the same in the
following manner:
“13. The concept of “blacklisting” is explained by this Court in Erusian
Equipment & Chemicals Ltd. v. State of W.B. as under:

“20. Blacklisting has the effect of preventing a person from the privilege
and advantage of entering into lawful relationship with the Government for
purposes of gains.”

14. The nature of the authority of the State to blacklist the persons was
considered by this Court in the abovementioned case and took note of the
constitutional provision (Article 298), which authorises both the Union of
India and the States to make contracts for any purpose and to carry on any
[pic]trade or business. It also authorises the acquisition, holding and
disposal of property. This Court also took note of the fact that the right
to make a contract includes the right not to make a contract. By
definition, the said right is inherent in every person capable of entering
into a contract. However, such a right either to enter or not to enter into
a contract with any person is subject to a constitutional obligation to
obey the command of Article 14. Though nobody has any right to compel the
State to enter into a contract, everybody has a right to be treated equally
when the State seeks to establish contractual relationships. The effect of
excluding a person from entering into a contractual relationship with the
State would be to deprive such person to be treated equally with those, who
are also engaged in similar activity.

15. It follows from the above judgment in Erusian Equipment case that the
decision of the State or its instrumentalities not to deal with certain
persons or class of persons on account of the undesirability of entering
into the contractual relationship with such persons is called blacklisting.
The State can decline to enter into a contractual relationship with a
person or a class of persons for a legitimate purpose. The authority of the
State to blacklist a person is a necessary concomitant to the executive
power of the State to carry on the trade or the business and making of
contracts for any purpose, etc. There need not be any statutory grant of
such power. The only legal limitation upon the exercise of such an
authority is that the State is to act fairly and rationally without in any
way being arbitrary—thereby such a decision can be taken for some
legitimate purpose. What is the legitimate purpose that is sought to be
achieved by the State in a given case can vary depending upon various
factors.”

18) Thus, there is no dispute about the requirement of serving show cause
notice. We may also hasten to add that once the show cause notice is given
and opportunity to reply to the show cause notice is afforded, it is not
even necessary to give an oral hearing. The High Court has rightly
repudiated the appellant’s attempt in finding foul with the impugned order
on this ground. Such a contention was specifically repelled in Patel
Engineering (supra).
Contents of Show Cause Notice
19) The Central issue, however, pertains to the requirement of stating
the action which is proposed to be taken. The fundamental purpose behind
the serving of Show Cause Notice is to make the noticee understand the
precise case set up against him which he has to meet. This would require
the statement of imputations detailing out the alleged breaches and
defaults he has committed, so that he gets an opportunity to rebut the
same. Another requirement, according to us, is the nature of action which
is proposed to be taken for such a breach. That should also be stated so
that the noticee is able to point out that proposed action is not warranted
in the given case, even if the defaults/ breaches complained of are not
satisfactorily explained. When it comes to black listing, this requirement
becomes all the more imperative, having regard to the fact that it is
harshest possible action.
20) The High Court has simply stated that the purpose of show cause
notice is primarily to enable the noticee to meet the grounds on which the
action is proposed against him. No doubt, the High Court is justified to
this extent. However, it is equally important to mention as to what would
be the consequence if the noticee does not satisfactorily meet the grounds
on which an action is proposed. To put it otherwise, we are of the opinion
that in order to fulfil the requirements of principles of natural justice,
a show cause notice should meet the following two requirements viz:
i) The material/ grounds to be stated on which according to the
Department necessitates an action;

ii) Particular penalty/action which is proposed to be taken. It is this
second requirement which the High Court has failed to omit.

we may hasten to add that even if it is not specifically mentioned in the
show cause notice but it can be clearly and safely be discerned from the
reading thereof, that would be sufficient to meet this requirement.
Discussion with reference to the instant case:
21) With the aforesaid statement of law, now let us proceed with the
present case scenario.
22) It would be necessary to take note of the relevant portion of clause
27 of the NIT under which umbrage is taken by the respondents to justify
their action, and even appealed to the High Court. Clause 27 (a) (c) (a)
reads as under:
“a…. (sic) In case the contractor fails to commence/ execute the work as
stipulated in the agreement or unsatisfactory performance or does not meet
the statutory requirements of the contract, Department reserves the right
to impose the penalty as detailed below:-

(i) 20% of cost of order/ agreement per week, upto two weeks’ delays.

(ii) After two weeks delay Principal Employer reserves the right to cancel
the contract and withhold the agreement and get this job carried out
preferably from other contractor(s) registered with DGR and then from open
market or with other agencies if DGR registered agencies are not in a
position to provide such Contractor(s). The difference if any will be
recovered from the defaulter contractor and also shall be blacklisted for a
period of 4 years from participating in such type of tender and his earnest
money/ security deposit may also be forfeited, if so warranted.”

23) It is clear from the reading of the aforesaid clause that when there
is a failure on the part of the contractor to comply with the express terms
of the contract and/ or to commit breach of the said terms resulting into
failure to commence/ execute the work as stipulated in the agreement or
giving the performance that does not meet the statutory requirements of the
contract, the Department has a right to impose various kinds of penalties
as provided in the aforesaid clause. These penalties are of the following
nature:-

(i) Penalty in the form of 20% of cost of orders/ agreement per week,
upto delay of 2 weeks.

(ii) If the delay is beyond 2 weeks then:
a) To cancel the contract and withhold the agreement. In that event,
Department has right to get the job carried out from other
contractor at the cost of the defaulter contractor;

b) To black list the defaulter contractor for a period of 4 years;

c) To forfeit his earnest money/ deposits, if so warranted.

24) In the present case, it is obvious that action is taken as provided
in sub clause 2(ii). Under this clause, as is clear from the reading
thereof, the Department had a right to cancel the contract and withhold the
agreement. That has been done. The Department has also a right to get the
job which was to be carried out by the defaulting contractor, to be carried
out from other contractor(s). In such an event, the Department also has a
right to recover the difference from the defaulting contractor. This
clause, no doubt, gives further right to the Department to blacklist the
contractor for a period of 4 years and also forfeit his earnest money/
security deposit, if so required.
25) It is thus apparent that this sub-clause provides for various actions
which can be taken and penalties which can be imposed by the Department. In
such a situation which action the Department proposes to take, need to be
specifically stated in the show cause notice. It becomes all the more
important when the action of black listing and/ or forfeiture of earnest
money/ security deposit is to be taken, as the clause stipulates that such
an action can be taken, if so warranted. The words “if so warranted”,
thus, assume great significance. It would show that it is not necessary for
the Department to resort to penalty of black listing or forfeiture of
earnest money/ security deposit in all cases, even if there is such a
power. It is left to the Department to inflict any such penalty or not
depending upon as to whether circumstances in a particular case warrant
such a penalty. There has to be due application of mind by the authority
competent to impose the penalty, on these aspects. Therefore, merely
because of the reason that clause 27 empowers the Department to impose such
a penalty, would not mean that this specific penalty can be imposed,
without putting the defaulting contractor to notice to this effect.
26) We are, therefore, of the opinion that it was incumbent on the part
of the Department to state in the show cause notice that the competent
authority intended to impose such a penalty of blacklisting, so as to
provide adequate and meaningful opportunity to the appellant to show cause
against the same. However, we may also add that even if it is not
mentioned specifically but from the reading of the show cause notice, it
can be clearly inferred that such an action was proposed, that would
fulfill this requirement. In the present case, however, reading of the
show cause notice does not suggest that noticee could find out that such an
action could also be taken. We say so for the reasons that are recorded
hereinafter.
27) In the instant case, no doubt show cause notice dated 6.2.2013 was
served upon the appellant. Relevant portion thereof has already been
extracted above. This show cause notice is conspicuously silent about the
blacklisting action. On the contrary, after stating in detail the nature of
alleged defaults and breaches of the agreement committed by the appellant
the notice specifically mentions that because of the said defaults the
appellant was “as such liable to be levied the cost accordingly”. It
further says “why the action as mentioned above may not be taken against
the firm, besides other action as deemed fit by the competent authority”.
It follows from the above that main action which the respondents wanted to
take was to levy the cost. No doubt, notice further mentions that competent
authority could take other actions as deemed fit. However, that may not
fulfil the requirement of putting the defaulter to the notice that action
of blacklisting was also in the mind of the competent authority. Mere
existence of Clause 27 in the agreement entered into between the parties,
would not suffice the aforesaid mandatory requirement by vaguely mentioning
other “actions as deemed fit”.
28) As already pointed out above in so far as penalty of black listing
and forfeiture of earnest money/ security deposit is concerned it can be
imposed only, “if so warranted”. Therefore, without any specific
stipulation in this behalf, respondent could not have imposed the penalty
of black listing.

29) No doubt, rules of natural justice are not embodied rules nor can
they be lifted to the position of fundamental rights. However, their aim is
to secure justice and to prevent miscarriage of justice. It is now well
established proposition of law that unless a statutory provision either
specifically or by necessary implication excludes the application of any
rules of natural justice, in exercise of power pre-judicially affecting
another must be in conformity with the rules of natural justice.
30) We are conscious of the following words of wisdom expressed by this
Court through the pen of Justice Krishna Iyer in the case of Chairman,
Board of Mining Examination and Anr. v. Ramjee; 1977 (2) SCC 256:
“If the jurisprudence of remedies were understood and applied from the
perspective of social efficaciousness, the problem raised in this appeal
would not have ended the erroneous way it did in the High Court. Judges
must never forget that every law has a social purpose and engineering
process without appreciating which justice to the law cannot be done. Here,
the socio-legal situation we are faced with is a colliery, an explosive, an
accident, luckily not lethal, caused by violation of a regulation and
consequential cancellation of the certificate of the delinquent shot-firer,
eventually quashed by the High Court, for processual solecisms, by a writ
of certiorari.
Natural justice is no unruly horse, no lurking land mine, nor a judicial
cure all. If fairness is shown by the decision maker to the man proceeded
against, the form, features and the fundamentals of such essential
processual propriety being conditioned by the facts and circumstances of
each situation, no breach of natural justice can be complained of.
Unnatural expansion of natural justice, without reference to the
administrative realities and other factors of a given case, can be
exasperating. We can neither be finical nor fanatical but should be
flexible yet firm in this jurisdiction. No man shall be hit below the belt
– that is the conscience of the matter…. We cannot look at law in the
abstract or natural justice as a mere artefact. Nor can we fit into a rigid
mould the concept of reasonable opportunity.”

31) When it comes to the action of blacklisting which is termed as ‘Civil
Death’ it would be difficult to accept the proposition that without even
putting the noticee to such a contemplated action and giving him a chance
to show cause as to why such an action be not taken, final order can be
passed blacklisting such a person only on the premise that this is one of
the actions so stated in the provisions of NIT.
The “Prejudice” Argument
32) It was sought to be argued by Mr. Maninder Singh, learned ASG
appearing for the respondent, that even if it is accepted that show cause
notice should have contained the proposed action of blacklisting, no
prejudice was caused to the appellant in as much as all necessary details
mentioning defaults/ prejudices committed by the appellant were given in
the show cause notice and the appellant had even given its reply thereto.
According to him, even if the action of blacklisting was not proposed in
the show cause notice, reply of the appellant would have remained the same.
On this premise, the learned ASG has argued that there is no prejudice
caused to the appellant by non mentioning of the proposed action of
blacklisting. He argued that unless the appellant was able to show that non
mentioning of blacklisting as the proposed penalty has caused prejudice and
has resulted in miscarriage of justice, the impugned action cannot be
nullified. For this proposition he referred to the judgment of this Court
in Haryana Financial Corporation and Anr. v. Kailash Chandra Ahuja; (2008)
9 SCC 31.
“21. From the ratio laid down in B. Karunakar1 it is explicitly clear that
the doctrine of natural justice requires supply of a copy of the inquiry
officer’s report to the delinquent if such inquiry officer is other than
the disciplinary authority. It is also clear that non-supply of report of
the inquiry officer is in the breach of natural justice. But it is equally
clear that failure to supply a report of the inquiry officer to the
delinquent employee would not [pic]ipso facto result in the proceedings
being declared null and void and the order of punishment non est and
ineffective. It is for the delinquent employee to plead and prove that non-
supply of such report had caused prejudice and resulted in miscarriage of
justice. If he is unable to satisfy the court on that point, the order of
punishment cannot automatically be set aside.

31. At the same time, however, effect of violation of the rule of audi
alteram partem has to be considered. Even if hearing is not afforded to the
person who is sought to be affected or penalised, can it not be argued that
“notice would have served no purpose” or “hearing could not have made
difference” or “the person could not have offered any defence whatsoever”.
In this connection, it is interesting to note that under the English law,
it was [pic]held few years before that non-compliance with principles of
natural justice would make the order null and void and no further inquiry
was necessary.

36. The recent trend, however, is of “prejudice”. Even in those cases where
procedural requirements have not been complied with, the action has not
been held ipso facto illegal, unlawful or void unless it is shown that non-
observance had prejudicially affected the applicant.

44. From the aforesaid decisions, it is clear that though supply of report
of the inquiry officer is part and parcel of natural justice and must be
furnished to the delinquent employee, failure to do so would not
automatically result in quashing or setting aside of the order or the order
being declared null and void. For that, the delinquent employee has to show
“prejudice”. Unless he is able to show that non-supply of report of the
inquiry officer has resulted in prejudice or miscarriage of justice, an
order of punishment cannot be held to be vitiated. And whether prejudice
had been caused to the delinquent employee depends upon the facts and
circumstances of each case and no rule of universal application can be laid
down.”

33) When we apply the ratio of the aforesaid judgment to the facts of the
present case, it becomes difficult to accept the argument of the learned
ASG. In the first instance, we may point out that no such case was set up
by the respondents that by omitting to state the proposed action of
blacklisting, the appellant in the show cause notice has not caused any
prejudice to the appellant. Moreover, had the action of black listing
being specifically proposed in the show cause notice, the appellant could
have mentioned as to why such extreme penalty is not justified. It could
have come out with extenuating circumstances defending such an action even
if the defaults were there and the Department was not satisfied with the
explanation qua the defaults. It could have even pleaded with the
Department not to blacklist the appellant or do it for a lesser period in
case the Department still wanted to black list the appellant. Therefore, it
is not at all acceptable that non mentioning of proposed blacklisting in
the show cause notice has not caused any prejudice to the appellant. This
apart, the extreme nature of such a harsh penalty like blacklisting with
severe consequences, would itself amount to causing prejudice to the
appellant.
34) For the aforesaid reasons, we are of the view that the impugned
judgment of the High Court does not decide the issue in correct
prospective. The impugned order dated 11.9.2013 passed by the respondents
blacklisting the appellant without giving the appellant notice thereto, is
contrary to the principles of natural justice as it was not specifically
proposed and, therefore, there was no show cause notice given to this
effect before taking action of blacklisting against the appellant. We,
therefore, set aside and quash the impugned action of blacklisting the
appellant. The appeals are allowed to this extent. However, we make it
clear that it would be open to the respondents to take any action in this
behalf after complying with the necessary procedural formalities delineated
above.
35) No costs.
…………………………….J.
[J.CHELAMESWAR]

…………………………….J.
[A.K. SIKRI]
New Delhi.
August 4, 2014.

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