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Patna High Court Amrawati Devi vs The State Of Bihar & Ors on 22 June, 2016 IN THE HIGH COURT OF JUDICATURE AT PATNA Letters Patent Appeal No.2294 of 2015 Arising out of Civil Writ Jurisdiction Case No. 17721 of 2015 =========================================================== Amrawati Devi, wife of Sri Dinanath Yadav, Resident of Mohallla- Manik Chand Talab, P.O. Anishabad, P.S. Gardanibagh, District- Patna. .... .... Appellant Versus 1. The State of Bihar through the Principal Secretary, Urban Development and Town Planning Department, Government of Bihar, Patna. 2. The Principal Secretary, Urban Development and Town Planning Department, Government of Bihar. 3. The Principal Secretary, Department of Law and Justice Department, Government of Bihar. 4. Patna Municipal Corporation through its Chief Executive Officer, Maurya Lok Building, Bailey Road, Patna. 5. Mr. Binod Kumar, son of Sri Janak Prasad Singh, Resident of Mohalla- Mohanpur, Punaichak, P.O and P.S. Shastri Nagar, District- Patna. 6. Roop Narayan, son of Shri Ram Narayan Prasad, Resident of Mohalla- Mehandiganj, P.O and P.S. Patna City, District-Patna, Bihar. . . . . . . . . R e s p o n d e n t s =========================================================== Appearance : For the Appellant : Mr. Vinod Kanth, Sr. Advocate. Mr. S.B.K. Manglam, Advocate. Mr. Ravi Ranjan, Advocate. For the State : Mr. Lalit Kishore, P.A.A.G. Mr. U.S.S. Singh, G.P.-I Mr. R.K. Chandram, A.C. to G.P.-I For Respondent No. 6 : Mr. Jitendra Singh, Sr. Advocate. Amrawati Devi vs The State Of Bihar & Ors on 22 June, 2016 Indian Kanoon - http://indiankanoon.org/doc/89912182/ 1 Mr. Piyush Lall, Advocate. Mr. Yash Singh, Advocate Mr. Tej Pratap Singh, Advocate. Mr. Kamal Kishore Singh, Advocate. F o r t h e C o r p o r a t i o n : M r . P r a s o o n S i n h a , A d v o c a t e . =========================================================== CORAM: HONOURABLE MR. JUSTICE I. A. ANSARI, A.C.J. and HONOURABLE MR. JUSTICE HEMANT GUPTA C.A.V. JUDGMENT (Per: HONOURABLE MR. JUSTICE HEMANT GUPTA) Date: 22 -06-2016 The present Letters Patent Appeal is directed against an order, dated 14th of December, 2015, passed by the learned Single Patna High Court LPA No.2294 of 2015 dt. 22-06-2016 2 /22 Bench of this Court in C.W.J.C. No. 17721 of 2015, whereby the writ application filed by Respondent No. 6 removing him from the post of Deputy Chief Councillor-cum-Deputy Mayor of the Patna Municipal Corporation was set aside. 2. The facts, in brief, are that the elections of the Municipal Corporation, Patna, were held in the year 2012 and Respondent No. 6 herein, Roop Narayan, was elected as Deputy Chief Councillor of the Corporation. A complaint was filed by Binod Kumar, Respondent No. 5 herein, seeking removal of Roop Narayan from the post of Deputy Chief Councillor, inter alia, on the ground that he has avoided to attend three consecutive meetings of the Empowered Standing Committee and, thus, lost interest in the affairs of the Municipal Corporation. On account of failure to attend three consecutive meetings of the Empowered Standing Committee, it was submitted that Roop Narayan incurred disqualification entailing removal from the post of Deputy Chief Councillor under Section 25(5) of the Bihar Municipal Act, 2007 (hereinafter referred to as "the Act"). 3. Since no action was taken on the complaint, the Respondent No. 5, Binod Kumar, invoked the writ jurisdiction of this Court for directing the respondents to take an appropriate decision on the complaint made by him. This Court disposed of the writ Patna High Court LPA No.2294 of 2015 dt. 22-06-2016 3 /22 application on 2nd of February, 2015, with a direction to the Principal Secretary, Urban Development and Housing Department, Government of Bihar, to take an appropriate action in accordance with law after giving an opportunity of hearing to the contesting parties, preferably, within six months of the receipt/production of a copy of the said order. The said order reads as under:- "The limited grievance raised by the petitioner in this writ petition is that an application filed before the Principal Secretary under Section 25(5) {incorrectly mentioned as 25(4)} of the Bihar Municipal Act, 2007 (hereinafter referred to as „the Act) seeking removal of the private respondent No. 4 remains pending before the Principal Secretary though it was filed on 23.9.2014. A statutory application filed before the statutory authority requires disposal in accordance with law and cannot be allowed to remain pending and thus considering Amrawati Devi vs The State Of Bihar & Ors on 22 June, 2016 Indian Kanoon - http://indiankanoon.org/doc/89912182/ 2 the limited grievance raised in this writ petition, the present application is disposed of with the direction to the Principal Secretary, Urban Development and Housing Department, Government of Bihar to consider the petition filed on behalf of the petitioner on 23.9.2014, a copy of which is placed at Annexure-6 to the writ petition and dispose of the same in accordance with law and after giving opportunity of hearing to the contesting parties including the respondent No. 4, expeditiously and preferably within six months from the date of receipt/production of a copy of this order." 4. Since the order, dated 2nd of February, 2015 aforementioned, was not complied with a contempt application was filed. It was during the pendency of the contempt application that a Patna High Court LPA No.2294 of 2015 dt. 22-06-2016 4 /22 final order was passed by the Principal Secretary, Urban Development and Housing Department, Government of Bihar, on 30th of October, 2015, whereby Roop Narayan was removed from the post of Deputy Chief Councillor, Patna Municipal Corporation. 5. The argument of the writ petitioner before the learned Single Bench, inter alia, was that in terms of Section 25(5) of the Act, an order could be passed only by the State Government and that jurisdiction would vest in the Minister-in-Charge of the Department in view of Rules 5, 11, 21, 22 and 23 of the Rules of Executive Business and the schedule thereto framed by the Hon'ble Governor under Article 166 of the Constitution of India. Learned Single Bench accepted the argument and held that the removal of Roop Narayan is by an authority not authorized by law. 6. Another argument raised was that the meetings, the non attendance of which, led to the removal of the Roop Narayan, are not the meetings of the Municipality, but that of the Empowered Standing Committee. The learned Single Bench did not agree with the argument that failure to attend the meetings of the Municipality alone will not lead to violation of Section 25(5) of the Act. It was held that failure to attend meetings of Empowered Standing Committee also leads to disqualification. The learned Single Bench allowed the writ application on the ground that the impugned order has been issued by Patna High Court LPA No.2294 of 2015 dt. 22-06-2016 5 /22 the Principal Secretary, Urban Development and Housing Department, Government of Bihar, and such order cannot be termed as an order of the State Government. Learned Single Bench has held that in terms of the Rules of Executive Business notified by the authorities of the Governor in terms of Article 166 of the Constitution of India, the executive power of the State could be exercised only by the Minister-in-Charge of the Department or in terms of the standing orders issued by the Minister-in-Charge. Since there is no standing order issued and the order has not been passed by the Minister-in- Charge, it is not an order by the State Government. 7. Before examining the respective contentions of the parties, certain provisions of the Statute, relevant issues needs to be examined, e.g., Section 25(5) and Section 44 of the Act, which are reproduced hereinbelow:- "25(5). Without prejudice to the provisions under this Act, if, in opinion of the Government, the Chief Councillor/Deputy Chief Councillor absents himself without Amrawati Devi vs The State Of Bihar & Ors on 22 June, 2016 Indian Kanoon - http://indiankanoon.org/doc/89912182/ 3 sufficient cause for more than three consecutive meetings or sitting or wilfully omits or refuses to perform his duties and functions under this Act, or is found to be guilty of misconduct in the discharge of his duties or becomes physically or mentally incapacitated for performing his duties or is absconding being an accused in a criminal case for more than six months, the Government may, after giving the Chief Councillor/Deputy Chief Councillor a reasonable opportunity for explanation, by order, remove such Chief Councillor from office. Patna High Court LPA No.2294 of 2015 dt. 22-06-2016 6 /22 [Provided that after appointment of Lok Prahari, under section-44, the Government, may pass order under this sub-section only on the basis of recommendation of such Lok Prahari]. (Ins by Act No. 7 of 2011) 8. Learned counsel for the respondents raised a preliminary objection that the Letters Patent Appeal has been filed by a person, who was not party before the learned Single Bench. She is a stranger to the lis and not competent to file an appeal against an order passed by the learned Single Bench, more so, when the State has not appealed against the judgment in question. Reliance has been placed over an order passed by the Hon'ble Supreme Court in Poonam Vs. State of U.P. & Ors., reported in (2016) 2 SCC 779. 9. The argument of the learned counsel for the appellant is that she was elected as a Deputy Chief Councillor after removal of Roop Narayan as Deputy Chief Councillor and, therefore, her rights are affected by the order setting aside removal of Roop Narayan. It is also argued that the appeal is by member of the Municipal Corporation and, in a matter of removal of an office-bearer of the Municipality, each of the member of the House would have a right to impugn any decision, which affects the rights of the Municipal Councillors as to who should work on and for the Municipal Corporation. It is further argued that not only the Municipal Councillors, but also any resident of the Municipal Patna High Court LPA No.2294 of 2015 dt. 22-06-2016 7 /22 Corporation shall have a right in the matter of the office-bearers, who shall manage the Municipal Corporation. It is submitted that the judgment in Poonam's case (supra) deals with the right of allotment of a business site; whereas, the present case pertains to right or management of a Municipality, which cannot be equated as a right of property. The management of the Municipality is in public interest and any person, who has a right to be administrated by the Municipality, would have a right to dispute as to who shall manage the Municipality as well. 10. We have heard learned counsel for the parties on the preliminary objection raised and find no merit in the objection so raised by Mr. Jitendra Singh, Senior Advocate representing Respondent No. 6. 11. The issue, which was examined in Poonam's case (supra), was whether a subsequent allottee of a shop is a necessary party in a matter involving allotment of site. In an appeal challenging the order of cancellation of allotment, the Court, inter alia, held as under:- "17. The term "entitled to defend" confers an inherent right to a person if he or she is affected or is likely to be affected by an order to be passed by any legal forum, for Amrawati Devi vs The State Of Bihar & Ors on 22 June, 2016 Indian Kanoon - http://indiankanoon.org/doc/89912182/ 4 there would be violation of natural justice. The principle of audi alteram partem has its own sanctity but the said principle of natural justice is not always put in strait jacket formula. That apart, a person or an authority must have a legal right or Patna High Court LPA No.2294 of 2015 dt. 22-06-2016 8 /22 right in law to defend or assail." 12. The Court also observed, in Poonam's case (supra), that the person, who has been elected in the meantime from amongst the member of the Panchayat Samiti or Sabha in a situation, where Sarpanch or the Chairman is removed and the challenge is by a Sarpanch or Chairman to the order of removal, the Court held that such person is not a necessary party. The relevant extract of the said judgment reads as under:- "47. Few examples can be given so that the position can be easily appreciated. There are provisions in some legislations pertaining to Gram Panchayat or Panchayat Samiti where on certain grounds the competent authority has been conferred the power to remove the elected Sarpanch or the Chairman, as the case may be on certain counts. Against the order of the Collector, an appeal lies and eventually either a revision or a writ lies to the High Court. After his removal, someone by way of indirect election from amongst the members of the Panchayats or the Panchayat Samiti is elected as the Sarpanch or the Chairman. The removed Sarpanch assails his order of removal as he is aggrieved by the manner, method and the reasons for removal. In his eventual success, he has to hold the post of the Sarpanch, if the tenure is there. The question, thus, arises whether the person who has been elected in the meantime from amongst the members of the Panchayat Samiti or Sabha is a necessary party. The answer has to be a categorical „no, for he cannot oppose the order of removal assailed by the affected Sarpanch nor can he defend his election because he has come into being because of a vacancy, arising due different situation." Patna High Court LPA No.2294 of 2015 dt. 22-06-2016 9 /22 13. We find that the appellant, elected consequent to the vacancy fallen on account of removal of Roop Narayan, is a proper party in the appeal even if she is not a necessary party. She has a right to impugn the decision of setting aside the removal of Roop Narayan to which she, as a Municipal Councillor, has a right being a member of the elected representative body. We find that necessary party to be impleaded as respondent, in an application, stands on a different footing than right to file an appeal aggrieved against a decision, which affects the right of the entire elected body. Therefore, in view of Poonam's case (supra), we find that the appellant would have the right to file an appeal against the setting aside of the removal of Roop Narayan. Even otherwise also, any person aggrieved has a right to prefer an appeal under Clause X of the Letters Patent. 14. The argument that the State has not chosen to file an appeal against the order passed by the learned Single Bench and the appellant will, therefore, not have any right to dispute the setting aside of the removal of Roop Narayan is, again, misconceived. Amrawati Devi vs The State Of Bihar & Ors on 22 June, 2016 Indian Kanoon - http://indiankanoon.org/doc/89912182/ 5 15. Though the State has not filed an appeal, but Mr. Lalit Kishore, Principal Additional Advocate General, submits that State adopts the argument of Mr. Binod Kanth, learned Senior Counsel for the appellant, assailing the order passed by the learned Patna High Court LPA No.2294 of 2015 dt. 22-06-2016 10 /22 Single Bench. 16. We do not find that non-filing of appeal by State anyway forecloses the right of an aggrieved Municipal Councillor from disputing the setting aside of removal of the office bearer of the Municipality. A Municipal Councillor has an independent right in the manner of affairs of the Municipal Corporation and how they are conducted and, therefore, omission to filing of appeal by the State has no consequences so as to affect the rights of the appellant. 17. On merits, learned counsel for the appellant refers to a Constitution Bench decision reported in A. Sanjeevi Naidu etc., etc., Vs. State of Madras and another (AIR 1970 Supreme Court 1102) to contend that the Minister is not expected to burden himself with day-to-day administration. His primary function is to lay down the policies and programmes of his ministry, while the Council of Ministers settles the major policies and programmes of the Government. When a civil servant takes a decision, he does not do it as a delegate of a Minister. He does it on behalf of the Government. Relevant extract of the said judgment reads as under:- "12. The cabinet is responsible to the legislature for every action taken in any of the ministries. That is the essence of joint responsibility. That does not mean that each and every decision must be taken by the cabinet. The political responsibility of the Council of Ministers does not and cannot predicate the personal responsibility of the Ministers to discharge all or any of the governmental functions. Patna High Court LPA No.2294 of 2015 dt. 22-06-2016 11 /22 Similarly an individual Minister is responsible to the legislature for every action taken or omitted to be taken in his ministry. This again is a political responsibility and not personal responsibility. Even the most hard-working Minister cannot attend to every business in his department. If he attempts to do it, he is bound to make a mess of his department. In every well-planned administration, most of the decisions are taken by the civil servants who are likely to be experts and not subject to political pressure. The Minister is not expected to burden himself with the day to day administration. His primary function is to lay down the policies and programmes of his ministry while the Council of Ministers settle the major policies and programmes of the Government. When a civil servant takes a decision, he does not do it as a delegate of his Minister. He does it on behalf of the Government. It is always open to a Minister to call for any file in his ministry and pass orders. He may also issue directions to the officers in his ministry regarding the disposal of Government business either generally or as regards any specific case. Subject to that over all power, the officers designated by the 'Rules' or the standing orders, can take decisions on behalf of the Government. These officers are the limbs of the Government and not its delegates. 18. Reference was also made to Samsher Singh Vs. State of Punjab and another, (A.I.R. 1974 S.C. 2192), particularly, paragraph 35 thereof, which reads as under:- Amrawati Devi vs The State Of Bihar & Ors on 22 June, 2016 Indian Kanoon - http://indiankanoon.org/doc/89912182/ 6 "35. The Scheme was upheld for these reasons. The Governor makes rules under Article 166 (3) for the more convenient transaction of business of the Government of the State. The Governor can not only allocate the various subjects amongst the Ministers but may go further and designate a particular official to discharge any particular function. But that could be Patna High Court LPA No.2294 of 2015 dt. 22-06-2016 12 /22 done on the advice of the Council of Ministers. The essence of Cabinet System of Government responsible to the Legislature is that an individual Minister is responsible for every action taken or omitted to be taken in his Ministry. In every administration, decisions are taken by the civil servants. The Minister lays down the policies. The Council of Ministers settle the major policies. When a Civil Servant takes a decision, he does not do it as a delegate of his Minister. He does it on behalf of the Government. The officers are the limbs of the Government and not its delegates. Where functions are entrusted to a Minister and these are performed by an official employed in the Ministrys department, there is in law no delegation because constitutionally the act or decision of the official is that of the Minister." 19. Learned counsel for the appellant further argued that Roop Narayan has not objected to the jurisdiction of the Principal Secretary, Urban Development and Housing Department, Government of Bihar, Patna, to pass an order of removal in response to the show- cause notice issued nor was such a plea raised in the writ application. It is only at the stage of argument that such an argument was raised and, therefore, the appellant is estopped from challenging his removal on the ground that it was not passed by the competent authority. 20. Mr. Jitendra Singh, learned Senior Counsel appearing for Roop Narayan, controverted the argument raised by Sri Binod Kanth and asserted that the Rules of Executive Business, framed by the Governor in terms of Article 166 of the Constitution of India, relates to executive business of the State, which include all Patna High Court LPA No.2294 of 2015 dt. 22-06-2016 13 /22 activities excluding only legislative or judicial functions and, therefore, according to Mr. Jitendra Singh, the quasi-judicial function, while exercising the power under Section 25(5) of the Act, is required to be discharged only in terms of the rules of Executive Business framed and in no other manner. The rules of Executive Business contemplate such power shall be exercised by the Minister-in-Charge or in terms of the standing orders issued. He refers to the following provisions of the Rules of Executive Business, 1979, framed under Article 166(3) of the Constitution:- "5. The business of the Government shall be transacted in the departments specified in the First Schedule and shall be classified and distributed between those departments as laid down therein. 9. The Council shall be collectively responsible for all advice tendered to the Governor and all executive orders issued in the name of the Governor in accordance with these rules whether such advice is tendered or such order are authorised by an individual Minister on a matter appertaining to his portfolio or as the result of discussion at a meeting of the Council or however otherwise. Amrawati Devi vs The State Of Bihar & Ors on 22 June, 2016 Indian Kanoon - http://indiankanoon.org/doc/89912182/ 7 11. Without prejudice to the provisions of rule 9, the Minister-in-Charge of department shall be primarily responsible for the disposal of the business appertaining to the department. 21. Except as otherwise provided by any other rule, cases shall ordinarily be disposed of by or under the authority of the Minister-in-Charge who may by means of standing orders give such directions as he thinks fit for the disposal of cases in the department. Copies of such standing orders shall be sent to the Governor and the Chief Minister. Patna High Court LPA No.2294 of 2015 dt. 22-06-2016 14 /22 22. (1) Each Minister shall by means of standing orders arrange with the Principal Secretary/Secretary of the department concerned what matters or classes of matters are to be brought to its personal notice. Copies of such standing orders shall be sent to the Governor and the Chief Minister. (2) xxxx xxxx 21. After hearing learned counsel for the parties, we find that the issues raised are required to be examined in two parts; first part being whether the powers of the State Government in terms of Section 25(5) read with Section 2(106) of the Act means the Minister- in-Charge or the Principal Secretary to the Government. This question needs to be examined in order to determine whether the quasi-judicial order of removal falls within the realm of Executive Business required to be performed in the manner prescribed therein or it can be exercised by the Principal Secretary to the Government. The second part being that if the powers of the State Government have to be exercised by the Minister-in-Charge, whether such power can be exercised only by virtue of a standing order issued under Clause (22) of the Rules or whether approval by the Minister-in-Charge of the order passed by the Principal Secretary to the Government is sufficient delegation in terms of Clause (22) of the Rules. 22. The argument of Mr. Jitendra Singh, learned Senior Counsel for the respondent, is that the executive business of the State excludes legislative and judicial functions and all other functions Patna High Court LPA No.2294 of 2015 dt. 22-06-2016 15 /22 including quasi-judicial functions will fall within the executive business of the State and, therefore, it is required to be performed strictly in accordance with the provisions of the Rules. Reliance was placed upon Gullapalli Nageswara Rao and others Vs. Andhra Pradesh State Road Transport Corporation and another, (A.I.R. 1959 Supreme Court 308), wherein it has been held as follows:- "28. At this stage, the argument hinted at but not seriously pressed, may be noticed. The Rules the Governor is authorised to make, the argument proceeds, are only to regulate the acts of the Governor or his subordinates in discharge of the executive power of the State Government, and, therefore, will not govern the quasi- judicial functions entrusted to it. There is a fallacy in this argument. The concept of a quasi-judicial act implies that the act is not wholly judicial; it describes only a duty Amrawati Devi vs The State Of Bihar & Ors on 22 June, 2016 Indian Kanoon - http://indiankanoon.org/doc/89912182/ 8 cast on the executive body or authority to conform to norms of judicial procedure in performing some acts in exercise of its executive power. The procedural rules made by the Governor for the convenient transaction of business of the State Government apply also to quasi-judicial acts, provided those Rules conform to the principles of judicial procedure." 23. Reference was also made to the judgment in Samsher Singh's case (supra), the relevant extract is reproduced hereinbelow:- "29. The executive power is generally described as the residue which does not fall within the legislative or judicial power. But executive power may also partake of legislative or judicial actions. All powers and functions of the President except his legislative powers as for example in Article 123, viz., ordinance making power and all powers and functions of the Governor Patna High Court LPA No.2294 of 2015 dt. 22-06-2016 16 /22 except his legislative power as for example in Article 213 being ordinance making powers are executive powers of the Union vested in the President under Art. 53(1) in one case and are executive powers of the State vested in the Governor under Article 154 (1) in the other case. Clause (2) or clause (3) of Article 77 is not limited in its operation to the executive action of the Government of India under Cl. (1) of Article 77. Similarly, clause (2) or clause (3) of Article 166 is not limited in its operation to the executive action of the Government of the State under clause (1) of Article 166. The expression "Business of the Government of India" in clause (3) of Article 77, and the expression, "Business of the Government of the State" in Cl. (3) of Article 166 includes all executive business." 24. Article 166 of the Constitution of India provides that all executive action of the Government of a State shall be expressed to be taken in the name of the Governor; whereas sub-clause (3) of Article 166 of the Constitution of India provides that the Governor shall make rules for the more convenient transaction of the executive business of the Government of the State and for the allocation among Ministers of the said business in so far as it is not business with respect to which the Governor is by or under the Constitution required to act in his discretion. We find that the executive actions of the Government, appearing in Article 166, have to be given contextual interpretation. The executive actions, in terms of sub-clause (1) of Article 166 of the Constitution, will exclude only legislative and judicial functions or quasi-judicial functions having larger Patna High Court LPA No.2294 of 2015 dt. 22-06-2016 17 /22 implications in the State, such as, framing of scheme including policy decisions after seeking objections from the parties concerned. It may not include action against an individual person as it has no semblance of any policy decision binding on the entire State, a hallmark of parliamentary form of democracy. 25. In Gullapalli Nageswara Rao's case (supra), the Supreme Court was considering Section 68-C of the Motor Vehicles Act, as amended in State of Andhra Pradesh, dealing with preparation of a transport scheme. Such a scheme was required to be given wide publication and after considering the objections, the scheme was to be finalized by the State Government applicable to the entire State. It was while considering such provisions that the Court held, in Gullapalli Nageswara Rao Amrawati Devi vs The State Of Bihar & Ors on 22 June, 2016 Indian Kanoon - http://indiankanoon.org/doc/89912182/ 9 (supra), that the act of the State Government, in approving the scheme, was in discharge of a quasi-judicial function and, therefore, the Government should have given personal hearing to the objectors. Minister-in-Charge was held to be personally responsible in terms of the rules. 26. In Samsher Singh's case (supra), one of the arguments was that power of the Governor to remove sub-ordinate Judge, under Article 134 read with Punjab Civil Service Rules, cannot be allocated to a Minister as it was incapable of allocation to a Minister. In Samsher Singh's case (supra), the Court held that it is Patna High Court LPA No.2294 of 2015 dt. 22-06-2016 18 /22 fundamental principle of English Constitutional Law that Minister must accept the responsibility for every executive act. In Shamser Singh's case (supra), the Supreme Court, after considering the judgment in Sanjeevi Naidus case (supra), has observed as follows:- "35. The Scheme was upheld for these reasons. The Governor makes rules under Article 166 (3) for the more convenient transaction of business of the Government of the State. The Governor can not only allocate the various subjects amongst the Ministers but may go further and designate a particular official to discharge any particular function. But that could be done on the advice of the Council of Minister. The essence of Cabinet System of Government responsible to the Legislature is that an individual Minister is responsible for every action taken or omitted to be taken in his Ministry. In every administration, decisions are taken by the civil servants. The Minister lays down the policies. The Council of Ministers settle the major policies. When a Civil Servant takes a decision, he does not do it as a delegate of his Minister. He does it on behalf of the Government. The officers are the limbs of the Government and not its delegates. Where functions are entrusted to a Minister and these are performed by an official employed in the Ministrys department, there is in law no delegation because constitutionally the act or decision of the official is that of the Minister." 27. The question is : whether an order of removal of a member of a Municipal Corporation is an executive act of the State, which binds the Council of Ministers. If it is so, only then, the Minister-in-Charge will come into picture. 28. We find that removal of an office-bearer of a Municipal Corporation is not an act, which is required to be approved Patna High Court LPA No.2294 of 2015 dt. 22-06-2016 19 /22 by the Council of Ministers inasmuch as it is an act, which does not deal with the concept of collective responsibility of the ministers. It is an act for non-performance of his functions of an individual member of the Municipal Corporation. The Rules are framed for convenient transaction of the business of the Government of the State. Such expression will include only those functions, which are required to be performed by Council of Ministers, such as, policy decisions having large ramification. The policy decisions, which will bind the State on account of the principle of collective responsibility alone require approval of the Minister-in- Charge. The order of removal is not an order required to be authenticated in the name of the Governor. As held in the judgments referred to above, the Minister cannot possibly discharge all functions. A Minister is responsible for preparing and giving effect to the policy decisions, which binds not only his Ministry, but the entire Council of Amrawati Devi vs The State Of Bihar & Ors on 22 June, 2016 Indian Kanoon - http://indiankanoon.org/doc/89912182/ 10 Ministers. Therefore, it will be required to be examined in each case whether a quasi-judicial act, required to be performed by the State, would be in exercise of the executive power of the State or it deals with individual cases not relating to any policy decision and, therefore, outside the purview of the executive power of the State. 29. The removal of a member has civil consequences. Therefore, a member cannot be removed unless he is served with a Patna High Court LPA No.2294 of 2015 dt. 22-06-2016 20 /22 show cause notice giving opportunity to defend himself. It cannot be a function assigned to a Minister inasmuch as office of the Minister is political in nature and that of the Secretary to the State Government is apolitical. Since the issue is of removal of an elected representative and not leading to any policy decision, the same is required to be exercised by apolitical person, who is free from all bias and prejudices. Therefore, in the context of Section 25(5) of the Act, the powers of the Government are not required to be exercised by the Minister-in-Charge as the Rules have no applicability in relation to removal of a member inasmuch as it does not deal with executive power of the State. 30. In respect of the second question, this Court, in a writ application, had directed the Principal Secretary, Urban Development and Housing Department, Government of Bihar, to consider the petition filed by the complainant and dispose of the same in accordance with law. It is in pursuance of this direction that the Principal Secretary has passed an order after granting opportunity of hearing to the appellant. But before issuing the order, he has sought the approval from the Minister-in-Charge on 19.10.2015. The Minister-in-Charge approved proposal to issue orders on 29.10.2015. It is thereafter that the impugned order has been issued. 31. Rule 22 of the Rules empowers the Minister to Patna High Court LPA No.2294 of 2015 dt. 22-06-2016 21 /22 arrange, by way of standing order, with the Principal Secretary concerned as to what matters or classes of matters are to be brought to his notice. Therefore, even if the decision was required to be taken by the Minister in terms of Rules 21 and 22 of the Rules, the fact remains that once the Minister had approved the decision of the Principal Secretary, it was an approval in terms of Rule 22 of the Rules. The standing orders are required to be issued in a class of cases to bring certainty to the affairs of the Department; but in an individual case, the approval of the Minister would mean delegation to the Principal Secretary and, thus, there is compliance of the Rules as well. Though the Rules have been held to be mandatory, the fact remains that the decision approving an order passed by the Principal Secretary by the Minister does not contradict any of the provisions of the Rules; rather, it supplements such Rules. It is well settled that there cannot be any action contradictory to the Rules, but the action can always be supplemented. Therefore, approval by the Minister of an order passed by the Principal Secretary complies with the rigours of the Rules as well and. therefore, in either situation, we find that the order of the learned Single Bench is not sustainable. 32. Another argument, which needs to be noticed is that Roop Narayan has not objected to the consideration of the show cause notice by the Principal Secretary. He has consented to the exercise of Patna High Court LPA No.2294 of 2015 dt. 22-06-2016 22 /22 jurisdiction by him. Had he objected at that time, the Principal Secretary, who was acting in terms of the orders of this Court, could have taken a decision to refer the complaint to Minister-in-Charge. Having failed to raise Amrawati Devi vs The State Of Bihar & Ors on 22 June, 2016 Indian Kanoon - http://indiankanoon.org/doc/89912182/ 11 objection at the time of hearing of the show- cause notice before the Principal Secretary, Roop Narayan is estopped to dispute the jurisdiction of the Principal Secretary in passing the order of appellant's removal from the post of Deputy Chief Councillor-cum-Deputy Mayor of the Patna Municipal Corporation. 33. Consequently, the Letters Patent Appeal is allowed and the order, under appeal, passed by the learned Single Bench, is hereby set aside and the writ application is dismissed. (Hemant Gupta, J) I. A. Ansari, ACJ : I agree. (I. A. Ansari, ACJ) P.K.P. N.A.F.R. U Amrawati Devi vs The State Of Bihar & Ors on 22 June, 2016 Indian Kanoon - http://indiankanoon.org/doc/89912182/ 12

trial3.pdf

Andhra High Court Bajaj Allianz General Insurance ... vs M. Sreedevi And Others on 5 November, 2014 THE HONBLE SRI JUSTICE U. DURGA PRASAD RAO M.A.C.M.A No.1656 of 2010 05-11-2014 Bajaj Allianz General Insurance Co. Ltd, Rep by its Regional Manager, Begumpet, Hyd..... Appellant M. Sreedevi and others.. Respondents Counsel for Appellant : Sri T. Mahender Rao Counsel for Respondent Nos.1 to 5: Sri Mohd. Yousuf Counsel for Respondent No.6 : Sri M. Achutha Reddy <Gist: >Head Note: ? Cases referred: 1) 2008 ACJ 2855 2) 2008 ACJ 1307 3) 2003(5) ALD 162 4) 2004 ACJ 1 (SC) 5) 1985 ACJ 1397 (SC) 6) 1995 ACJ 358 (AP) 7) 2009 ACJ 88 (AP) HONBLE SRI JUSTICE U. DURGA PRASAD RAO M.A.C.M.A.No.1656 of 2010 JUDGMENT: Challenging the award dated 14.07.2010 in O.P.No.542 of 2007 passed by the Chairman, M.A.C.T-cum-I Additional District Judge, at Mahabubnagar (for short the Tribunal), the 2nd respondent in the OP/ Bajaj Allianz General Insurance Company Limited preferred the instant appeal. 2) The factual matrix of the case is thus: a) The first claimant is the wife, claimants 2 to 4 are children and Bajaj Allianz General Insurance ... vs M. Sreedevi And Others on 5 November, 2014 Indian Kanoon - http://indiankanoon.org/doc/119217784/ 1 fifth claimant is the mother of the deceasedM. Sudhakar. Their case is that on 28.06.2007, at about 7:00pm, when the deceased was proceeding on a motorcycle as pillion rider and when he reached near a factory, one motorcycle bearing No.AP 29 E 4956 came in opposite direction being driven by its driver at high speed and in a rash and negligent manner and dashed the motorcycle of the deceased. In the resultant accident, the deceased sustained head injury and other injuries all over the body and lost consciousness. Immediately, he was shifted to Government hospital, Shadnagar and from there to Yashoda Hospital at Hyderabad and while undergoing treatment he succumbed to injuries on 30.06.2007. It is averred that the accident was occurred due to the fault of the driver of offending motorcycle. On these pleas, the claimants filed O.P.No.542 of 2007 against respondents 1 and 2, who are the owner and insurer of the offending motorcycle and claimed Rs.10,00,000/- as compensation. b) Respondents 1 and 2 filed separate counters. The 1st respondents contention is that it is a Milk Production Cooperative Union and it entered into an agreement with another Organisation, viz., Baif Institute for Rural Development ( BIRD-K) to extend technical support for artificial insemination programme for the benefit of farmers and for its use the 1st respondent purchased crime motorcycle bearing No.AP-29-E 4956 in the year 2004 and handed over to BIRD-K directly from Show- room since which time the employee of BIRD-K namely Sri M.Sagar Reddy was using the same and he committed the accident. The 1st respondent though is official owner but as per Section 2(30) of the MV Act, the BIRD-K is the real owner. Similarly, though the insurance policy stands in the name of 1st respondent, BIRD-K in fact paid the premium. Hence, BIRD-K is necessary party to the proceedings. It finally contended that the claim is excessive and untenable. c) The 2nd respondent/Insurance Company denying the material averments inter alia contended that the drivers of both vehicles had no driving licence at the time of accident and the 1st respondent knowingly handed over the vehicle to its driver and thus committed breach of terms of the policy. On this plea, the 2nd respondent disowned its liability. Finally, it contended that the claim is excessive and arbitrary and prayed for dismissal of O.P. d) During trial, PWs.l to 3 were examined and Exs.A.1 to A.9 were marked on behalf of claimants. RWs.1 and 2 were examined and Exs.B.1 to B.15 were marked on behalf of respondents. e) The Tribunal on appreciation of evidence, has awarded a sum of Rs.4,67,000/- with costs and interest at 7.5% p.a under different heads as follows: Loss of dependency Rs.3,51,000/- Medical expenses Rs.1,06,150/- Funeral expenses Rs. 2,000/- Loss of estate Rs. 2,500/- Loss of consortium Rs. 5,000/- --------------------- Total Rs.4,66,650/- --------------------- (Rounded off to Rs.4,67,000/-) Hence, the appeal by Insurance Company. 3) The parties in this appeal are referred as they stood before the Bajaj Allianz General Insurance ... vs M. Sreedevi And Others on 5 November, 2014 Indian Kanoon - http://indiankanoon.org/doc/119217784/ 2 Tribunal. 4) Heard arguments of Sri T. Mahender Rao, learned counsel for appellant/ Insurance Company, Sri Mohd. Yousuf, learned counsel for respondent Nos.1 to 5/claimants and Sri M. Achutha Reddy, learned counsel for respondent No.6. 5a) While impugning the award, learned counsel for appellant Sri T. Mahender Rao firstly argued that as per contention of the 1st respondent, its organisation has handed over the vehicle after purchase to its technical supporter i.e., BIRD-K whose employee in due course of his employment committed the accident. Be that as it may, he argued, the enquiries caused by the appellant/Insurance Company revealed that M.Sagar Reddy the driver of the offending vehicle had no valid and effective driving licence by the date of accident and 1st respondent knowingly handed over the vehicle to him. The Insurance Company issued notices to 1st respondent and also M.Sagar Reddy to produce the driving licence but they failed to do so. As such, for the breach of terms of the policy instead of exonerating the 2nd respondent, the Tribunal erroneously placed burden on the Insurance Company to prove that the driver of the vehicle had no driving licence and held as if the appellant/Insurance Company failed to establish the same. Learned counsel relied upon the following judgment and argued that there was no liability for Insurance Company to prove the lack of driving licence and consequential breach of policy committed by insured. United India Insurance Company Limited v. Rakesh Kumar Arora Learned counsel vehemently argued that inspite of lack of burden on it, the same, the Insurance Company promptly issued notices to 1st respondent and driver to produce the driving licence but they failed and except that the Insurance Company could do nothing. So the Tribunal ought to have held that the Insurance Company discharged its burden and exonerated it. He relied upon a decision reported in Sardari and others v. Sushil Kumar and another and argued that in that case when the owner failed to discharge its statutory obligation of seeing that his driver had valid driving licence, the Apex Court exonerated the Insurance Company. b) Secondly, challenging the quantum of compensation, learned counsel argued that the Tribunal awarded Rs.1,06,000/- towards medical expenditure without there being proper proof of Ex.A-6 medical bills by the claimants. He relied on the decision in United India Insurance Company Limited v. Mohd.Khaja Rasool Sayyed and contended that medical documents like any other documents should be proved by the concerned party and no genuinity can be attached to them without proper proof. He thus prayed to allow the appeal. 6) Per contra, learned counsel for owner of the vehicle/1st respondent in O.P while supporting the award, argued that though the Tribunal disagreed with the contention of the 1st respondent that 1st respondent is only a nominal owner and BIRD-K is real owner, still, as the policy was in force and Insurance Company failed to prove driver lacking driving licence, the Tribunal rightly held it should indemnify the liability of the 1st respondent. He thus contended that the appeal at the instance of the Insurance Company is bereft of merits and liable to be dismissed. He argued that the decision in Sardaris case (2 supra) relied upon by the Insurance Company/appellant is not applicable to the present case as in that case the concerned driver, who was examined in the court admitted that he had no driving licence, whereas in the instant case, the Insurance Company failed to produce any Bajaj Allianz General Insurance ... vs M. Sreedevi And Others on 5 November, 2014 Indian Kanoon - http://indiankanoon.org/doc/119217784/ 3 reliable evidence to hold that he had no driving licence. 7) Whereas the learned counsel for the claimants in the O.P/ respondent Nos.1 to 5 in the appeal supported the award. 8) In the light of the above rival arguments, the points for determination in this appeal are: 1) Whether the Tribunal was right in fixing the liability on the Insurance Company and if so whether the Insurance Company discharged its burden? 2) Whether the compensation awarded is just and reasonable or needs interference? 3) To what relief? 9) POINT NO.1 Accident, involvement of crime motorcycle bearing No.AP-29-E-4956 and death of deceased are not in dispute. Regarding ownership of the vehicle, the contention of the 1st respondent is that though the 1st respondent-Cooperative Union is the registered owner of the vehicle, but it handed over the vehicle to its technical supporter i.e., BIRD-K and their employee M.Sagar Reddy while using the vehicle, caused the accident and, therefore, under Section 2(30) of the Motor Vehicles Act,1988, BIRD-K has to be treated as the owner of the vehicle. The award shows that the Tribunal having regard to the admission of Rw.1 that as on the date of accident crime vehicle was in the name of the 1st respondent in the RTAs records, held that 1st respondent is the owner of the crime vehicle and it is liable to pay compensation to the claimants. The Tribunal further held that Exs.B-1 to B-9 record purportedly showing the handing over of the vehicle to BIRD-K organisation will not help 1st respondent to substantiate its contention that BIRD-K organisation is the owner of the said crime motorcycle. In my view Tribunal rightly held so. First respondent did not examine any authorised officer from BIRD-K to prove the alleged agreement between them. 10) Then the liability of the appellant/Insurance Company is concerned, the Tribunal following the dictum laid down by the Supreme Court in National Insurance Co. Ltd. vs. Swaran Singh & others to the effect that the Insurance Company in order to avoid its liability must not only establish the available defences raised in the proceedings but must also establish breach on the part of the owner of the vehicle and the burden of proof where-for would be on them, has observed that in the instant case the appellant/Insurance Company failed to discharge its burden since it failed to examine the RTA officials to establish that M.Sagar Reddy-driver of the crime vehicle did not possess the driving licence and further it did not take steps to summon and examine the said M.Sagar Reddy to prove that he did not possess valid driving licence. The Tribunal also observed that in the charge-sheet the police have not charged M.Sagar Reddy for not possessing valid driving licence. On the aforesaid observations, the Tribunal held that the Insurance Company failed to discharge its burden that the driver had no driving license and the insured was guilty of negligence in fulfilling conditions of the policy regarding driving licence of the driver. Accordingly, the Tribunal directed respondent Nos.1 and 2 to pay compensation. 11a) As against, first contention of learned counsel for appellant is that there is no burden on the Insurance Company to prove that the driver had no valid driving license Bajaj Allianz General Insurance ... vs M. Sreedevi And Others on 5 November, 2014 Indian Kanoon - http://indiankanoon.org/doc/119217784/ 4 and Tribunal erroneously placed burden on it to establish that fact contrary to the principle laid down in Rakesh Kumar Aroras case (1 supra). Nextly, he argued that proving the lack of driving licence is nothing but establishing a negative fact and even then the Insurance Company discharged the said onerous task by issuing notices to owner and driver vide Exs.B12 and B13 but they failed to respond. Learned counsel would argue that the Insurance Company could do nothing more. Under those circumstances the Tribunal ought to have drawn adverse inference against the insured that he knowingly allowed the unauthorised driver to drive the vehicle and thereby caused breach of terms of policy and accordingly exempted the Insurance Company from the liability. He would submit that as per Swaran Singhs case (4 supra) the burden is on the owner to see that the driver to whom he entrusted the vehicle is having valid driving licence. b) In the light of his arguments, I perused the award. Relying upon the Full Bench decision of the Apex Court in Swaran Singhs case (4 supra) the Tribunal held that burden is on the Insurance Company to establish the breach on the part of insured. The Apex Court in that case was dealing with vide spectrum of defence pleas of Insurance Companies basing on the deficiencies in driving licences. Such deficiencies are: a) Fake driving licenses of the driver. b) Driver not having licence whatsoever. c) No renewal of driving licence as on the date of accident. d) License granted for one class or description of vehicle but vehicle involved in accident was of different class or description. e) Driver holding only a learners licence. c) The Supreme Court after discussing various issues involved in this regard, summarised its findings which were excerpted in para-38 of the award and hence I am not reproducing here. The gist of the findings is that the Insurance Company in order to succeed its defence pleas touching the driving licence issues must: a) Firstly, establish that there is a breach of policy condition in respect of driving licence issue. b) Secondly, establish that the insured was guilty of negligence and failed to exercise reasonable care in the matter of fulfilling the condition of the policy regarding use of vehicle by a duly licensed driver or one who was not disqualified to drive at the relevant time. c) Thirdly, the breach which was committed by the insured was so fundamental as is found to have contributed to the cause of the accident. d) So, by applying the above principles, the Tribunal rightly fixed the burden of establishing the breach of terms of policy on the Insurance Company. The appellant/Insurance Company relied upon Rakesh Kumar Aroras case (1 supra) to buttress his argument that burden of proving the lack of driving licence was not on the Insurance Company and Tribunal was at fault. However, in view of Bajaj Allianz General Insurance ... vs M. Sreedevi And Others on 5 November, 2014 Indian Kanoon - http://indiankanoon.org/doc/119217784/ 5 Full Bench decision in Swaran Singhs case (4 supra) fixing responsibility on the Insurance company, I am unable to follow Rakesh Kumar Aroras case (1 supra). So, the first argument raised by the appellant/Insurance Company is negatived. 12) Then coming to next argument, a perusal of Ex.B12 and B13 would no doubt show that appellant/Insurance Company issued notices to owner and driver to produce the copy of driving licence for perusal and they have not responded. Hence, point is whether by that count an adverse inference can be drawn against the insurer and driver and consequently can it be held that the insurer discharged its burden. 13) It is imperative to peruse case law in this regard. (i) In the case of Narcinva V.Kamat and another vs. Alfredo Antonio Doe Martins and others appellant No.2 who was the partner of the firm owning the crime vehicle while driving the van committed accident. The Insurance Company repudiated its liability on the ground that he was not having valid driving licence. The Tribunal and High Court absolved the Insurance Company. In that context, firstly with regard to point whether the burden lies with the Insurance Company to prove the breach of the policy the Apex Court observed thus: If a breach of a term of contract permits a party to the contract to not to perform the contract, the burden is squarely on that party which complains of breach to prove that the breach has been committed by the other party to the contract. The test in such a situation would be who would fail if no evidence is led. The language and the format in which issues Nos. 7 and 8 have been cast by the Tribunal clearly casts the burden of proof on the insurance company. Then, while appreciating the argument of Insurance Company that in the cross-examination of second appellant he agreed to produce his driving licence but failed to produce the same and hence an adverse inference must be drawn against him that he did not have a valid driving licence, the Apex Court while disagreeing held thus: The submission fails to carry conviction with us. The burden to prove that there was breach of the contract of insurance was squarely placed on the shoulders of the insurance company. It could not be said to have been discharged by it by a mere question in cross-examination. The second appellant was under no obligation to furnish evidence so as to enable the insurance company to wriggle out its liability under the contract of insurance. Further the R.T.A which issues the driving licence keeps a record of the licences issued and renewed by it. The insurance company could have got the evidence produced to substantiate his allegation. Applying the test who would fail if no evidence is led, the obvious answer the insurance company. (Emphasis supplied) Thus, the Apex Court did not agree that mere admission by the driver in his cross-examination to produce driving licence and his failure will discharge the burden of Insurance Company. (ii) A learned single Judge of this High Court in United India Insurance Company Limited, Kurnool vs. Madiga Thappeta Ramakka and others while relying upon the above Supreme Court judgment in Narcinva V.Kamats case (5 supra) and other High Court decisions has observed thus: Bajaj Allianz General Insurance ... vs M. Sreedevi And Others on 5 November, 2014 Indian Kanoon - http://indiankanoon.org/doc/119217784/ 6 As seen from the above pronouncements of the Supreme Court and other High Courts, the best method is to summon the driver to produce the driving licence, and also to take appropriate steps to examine him. If the driver and the owner of the offending vehicle remain ex parte, a duty is cast upon the court on the application of the insurance company to take appropriate steps to summon the driver and examine him. If the driver is summoned and if he has produced the driving licence it is sufficient. If he did not respond to the summons and did not appear nor did he produce the driving licence, an adverse inference can be drawn that he was not holding a valid driving licence. It is also the duty of the Insurance Company to summon the R.T.A. officials to produce the driving licence as the R.T.A. who issues the driving licence keeps record of the licence issue and renewed by it and the insurance company could have got the evidence produced to substantiate its defence. Either of the above two steps has not been taken by the insurance company. As already stated, if the driver, in spite of receipt of summons, has not been present and subjected himself for examination, the court is entitled to draw adverse inference. From the tenor of above observation the Court is entitled to draw adverse inference it appears, drawing adverse inference in the circumstances narrated supra is the discretion of the concerned court but not mandatory because it was held in the above decision that apart from summoning the driver and owner to produce the licence, it was also the duty of the Insurance Company to summon the RTA officials to produce the driving licence. (iii) In a subsequent decision reported in The National Insurance Company Limited rep. by its Divisional Manager vs. Parital Venkateswarlu and another another learned single Judge of this High Court happened to discuss about the liability of Insurance Company to prove non-possession of driving licence by the driver. He also happened to discuss whether issuing notice to the owner and driver by the Insurance Company would discharge its liability. Regarding the first aspect, learned Judge held that though it amounts to adducing negative evidence which is difficult in the ordinary circumstances, still the obligation is cast upon the insurer to prove such negative evidence so as to eventually absolve itself from the liability. Such burden is cast upon the insurer, obviously, in view of the fact that innocent claimant may not be knowing about existence or non-existence of the licence of the driver of the offending vehicle. Then, regarding the sufficiency of issuing notice to discharge the burden, learned Judge held thus: Para-19 .It is no doubt true that the second respondent - owner did not respond to the notice got issued by the appellant-insurer for causing production of the licence. That will not absolve the insurer from discharging its obligation to show before the Court that the owner has breached the condition of policy of possessing valid driving licence by the driver. 14) When the above decisions of the Supreme Court and our High Court are summed up, we can understand that mere eliciting from the owner/driver to produce licence and their consequential failure or mere issuing notice to the owner/driver to produce licence and their non- response by themselves are not sufficient to absolve the liability of Insurance Company to pay compensation and at best from the above circumstances the Court in its discretion may draw adverse presumption under Section 114(g) of Evidence Act against the owner and driver to the effect that driver had no valid driving licence. In view of the principles in Swaran Singhs case (4 supra), the Court cannot Bajaj Allianz General Insurance ... vs M. Sreedevi And Others on 5 November, 2014 Indian Kanoon - http://indiankanoon.org/doc/119217784/ 7 exonerate the Insurance Company from its liability to pay comepnsation to third party merely by drawing such an adverse inference. The further burden lies on Insurance Company to establish that the owner has wilfully committed the breach of the policy by entrusting the vehicle to an unauthorised driver and the breach was so fundamental that resulted in the accident. 15) In the instant case, as rightly observed by the Tribunal, the appellant/Insurance Company has not summoned the RTA officials to establish that driver did not possess any driving licence. Moreover, the police have not charge sheeted the driver for not possessing valid driving licence. Considering all these, it must be held that the appellant/Insurance Company failed to establish the breach of the policy committed by the insured. 16) The cited decision in Sardaris case (2 supra) also will not help the appellant. In that case the driver of the crime vehicle was examined before the Tribunal and he admitted that he had not possessed valid driving licence. In that context, it was held that owner of the vehicle had statutory obligation to see that driver of the vehicle whom he authorised to drive the same holds a valid licence. Accordingly, the Supreme Court exonerated the Insurance Company in that case. However, the facts in the instant case are different. As observed supra, there is no cogent material in this case to conclude that driver had no valid driving licence. Therefore, the question of holding the 1st respondent guilty of negligence does not arise. This point is answered accordingly. 17a) POINT No.2: This point is concerned, the grievance of the appellant is that the Tribunal awarded Rs.1,06,150/- towards medical bills without proof of Ex.A6medical bills by the claimants. Ex.A6 medical bill was issued by Yashoda Hospital for Rs.1,06,150/- towards treatment charges of the deceased. b) In the cited decision in United India Insurance Company Limited v. Mohd.Khaja Rasool Sayyed (3 supra) it was held in the absence of any evidence in proof of documents through proper witnesses they cannot be accepted nor can be relied upon by the court and there can be no exception to medical documents. c) In the instant case, relying upon the evidence of PWs.1 and 3 the Tribunal allowed the aforesaid medical expenditure. PW1 who is the wife of deceased deposed that after critically injured in the accident on 27.06.2007 her husband underwent inpatient treatment till 30.06.2007 in Yashoda Super Speciality Hospital and succumbed to injuries and they incurred medical expenditure about 1.50 lakhs to 2 lakhs. She thus produced Ex.A6medical bill. PW3 is the consultant Neurosurgeon in Yashoda Hospital who performed brain operation to the deceased. He deposed that deceased suffered brain injury and abdomen injury and there was a large acute subdural haematoma and subarachnoid haemorrhage in all basal cisterns. He deposed that Ex.A6medical bill was issued by Yashoda Hospital. d) Having regard to proof offered by claimants relating to the critical nature of injuries, treatment and more particularly, the expenditure the Tribunal rightly approved Ex.A6medical bill. Hence, I Bajaj Allianz General Insurance ... vs M. Sreedevi And Others on 5 November, 2014 Indian Kanoon - http://indiankanoon.org/doc/119217784/ 8 find no conviction in the argument of the appellant. This point is answered accordingly. 18) In the result, this MACMA is dismissed by confirming the award passed by the Tribunal in O.P.No.542 of 2007. No order as to costs. As a sequel, miscellaneous applications pending, if any, shall stand closed. _________________________ U.DURGA PRASAD RAO, J. Dt.05.11.2014 Bajaj Allianz General Insurance ... vs M. Sreedevi And Others on 5 November, 2014 Indian Kanoon - http://indiankanoon.org/doc/119217784/ 9

trial4.pdf

Delhi District Court Case No. 223/12 Madhav ... vs Alamgeer 1 Of 20 on 22 February, 2014 Author: Sh. Manu Kharb IN THE COURT OF Ms. MANU GOEL KHARB METROPOLITAN MAGISTRATE, DWARKA COURTS, NEW DELHI In Re: Case No. : 223/12 (Old CC no. 2663/1 dated 03.10.07) U/s. 138 Negotiable Instrument Act 1. CC No. : 223/12 2. Date of Institution : 03.10.2007 3. Name of the complainant, : The Madhav Co−operative parentage and residence Urban Thrift & Credit Society Ltd., E−17, East Uttam Nagar, Near Pali Factory, Uttam Nagar, New Delhi−59 (Through Sh. Satish Kumar Garg S/o Sh. Ghanshyam Dass Gupta, President/AR) 4. Name of accused : Sh. Alamgeer his parentage S/o Sh. Rafiq Ahmad and residence R/o B−254, JJ Colony, Hastsal, Uttam Nagar, New Delhi−59 Case No. 223/12 Madhav Co−operative Vs Alamgeer 1 of 2 5. Date when Judgment was reserved : 12.02.2014 6. Date when Judgment was pronounced : 22.02.2014 7. Offence complained of : U/s. 138 NI Act 8. Plea of accused : Not guilty 9. Final Judgment : Convicted Case No. 223/12 Madhav ... vs Alamgeer 1 Of 20 on 22 February, 2014 Indian Kanoon - http://indiankanoon.org/doc/187477809/ 1 − :: JUDGMENT :: − BRIEF FACTS AND REASONS FOR DECISION OF THE CASE 1. By way of the present judgment, I shall decide the complaint case U/s 138 Negotiable Instrument Act 1881 (as amended up to date) filed by the complainant The Madhav Co−operative Urban Thrift and Credit Society Ltd through its President/AR Sh. Satish Kumar Garg against the accused Sh. Alamgeer S/o Sh. Rafiq Ahmad. 2. The facts in brief necessary for the disposal of the present case Case No. 223/12 Madhav Co− operative Vs Alamgeer 2 of 20 are that as per the allegations in the complaint, on 11.08.04, the accused took a loan of Rs.25,000/− from the complainant society vide loan account no. 2564 at interest of 18% per annum with the promise that the same shall be returned with interest and the accused executed loan agreement in this regard. The accused was irregular in making the payment of installments and therefore, settled his account upto 18.07.2007 for a sum of Rs.29,200/−. The accused for discharge of the said liability issued cheque bearing no. 284229 drawn on ICICI Bank, B−1, Milap Nagar, Najafgarh Road, Uttam Nagar, New Delhi in favour of the complainant. On presentation of the above said cheque the same was returned unpaid with the reasons "INSUFFICIENT FUNDS" vide cheque return memo dated 21.07.2007. Thereafter, the complainant served the legal notice of demand dated 13.08.2007 to the accused which was sent by Speed post with AD thereby calling upon the accused to make the payment in lieu of dishonored cheque. It is alleged that accused has failed to pay any sum in response to the legal notice of demand. In consequence thereof the complainant has filed the instant complaint for prosecution of the accused U/s 138 Negotiable Instruments Act. Case No. 223/12 Madhav Co−operative Vs Alamgeer 3 of 20 3. After the complaint was filed, the President/Authorized Representative of the complainant society led his pre−summoning evidence by way of an affidavit and after hearing the AR for the complainant and considering the entire material and documents on record, summons were issued against the accused vide order dated 03.10.2007 for the offence U/s 138 Negotiable Instrument Act 1881. On appearance of the accused, a separate notice U/s 251 Cr.P.C. dated 09.02.2012 was given to the accused to which he pleaded not guilty and claimed trial and the matter was fixed for complainant evidence. 4. In order to prove the case, Sh. Satish Kumar Garg, President/AR of the complainant got himself examined as CW−1 and reiterated the contents of the complaint on oath before this court and tendered his affidavit in evidence which is Ex. CW−1/X. He got exhibited the original cheque bearing no. 284248 dated 19.07.2007 of Rs.29,200/− drawon on ICICI Bank, B−1, Milap Nagar, Najafgarh Road, Uttam Nagar, New Delhi as Ex. CW1/A, Original cheque return memo dated 21.07.2007 as Ex. CW1/B, Copy of notice dated Case No. 223/12 Madhav Co−operative Vs Alamgeer Case No. 223/12 Madhav ... vs Alamgeer 1 Of 20 on 22 February, 2014 Indian Kanoon - http://indiankanoon.org/doc/187477809/ 2 4 of 20 13.08.2007 as Ex. CW1/C, Postal receipt and acknowledgment Card is Ex. CW1/D and Ex. CW1/E. Sh. Satish Kumar Garg was cross− examined by the ld. Counsel for the accused. Thereafter, the complainant evidence was closed by the Ld. Counsel for the complainant. Thereafter, counsel for the complainant moved an application under section 311 CrPC for calling a bank witness to prove the dishonor of cheque. This application was allowed and Sh. Bikesh Sharma, Customer Service Officer, ICICI Bank Ltd was examined as CW2. He brought statement of account of the accused and exhibited the same as Ex. CW2/X and also identified the original cheque Ex. CW1/A and return memo already Ex. CW1/B. CW2 Bikesh Sharma was cross−examined by the ld. Counsel for the accused. Thereafter, the complainant evidence was closed by the Ld. Counsel for the complainant and the case was fixed for statement of the accused. 5. In his statement recorded U/s 313 Cr.P.C r/w Sec. 281 CrPC, all the incriminating evidence along with exhibited documents Case No. 223/12 Madhav Co−operative Vs Alamgeer 5 of 20 were put to the accused Alamgeer in which he stated that he had issued the cheque in question as a blank signed cheque for security purpose and admitted the receipt of legal notice of demand. He further stated that he complainant has mis−used the blank signed cheque given by him to the complainant prior to the disbursement of loan. Thereafter, the case was fixed for defence evidence. 6. Ld. counsel for the accused moved an application U/s 315 Cr.PC for allowing the accused to appear in his defence. The aforesaid application was allowed and accused himself deposed as DW1. Accused deposed that he was sanctioned a loan of Rs. 25000/− by the complainant and the latter also took one blank signed cheque from him at the time of disbursement of loan. He admitted the receipt of legal demand notice. Accused did not tender any document in support of his defence. Accused was cross−examined by the ld. Counsel for the complainant wherein he admitted that he did not give any reply to the legal notice of demand. In his defence, accused also examined his wife Shama Begum as DW2 who exhibited the payment receipts as Ex. DW2/A(15 pages Case No. 223/12 Madhav Co−operative Vs Alamgeer 6 of 20 colly). DW2 deposed that she was present at the time of loan and on complainant's demand, her husband Alamgeer gave them one blank signed cheque for loan. She also deposed that on some occasions no receipt was issued by the complainant. DW2 was cross−examined by the ld. Counsel for the complainant. No other defence witness was produced on behalf of the accused. Thereafter, defence evidence was closed at request of Ld. counsel for the accused and the case was fixed for final arguments. 7. Final arguments were addressed on behalf of both the parties. I have heard Ld. counsels for both the parties and perused the entire record of the case file and the evidence on record. In order to bring home the conviction of the accused, the complainant has to show not only unbroken chain of events leading to commission of actual offence on record but also the ingredients of the offence complained of. Case No. 223/12 Madhav ... vs Alamgeer 1 Of 20 on 22 February, 2014 Indian Kanoon - http://indiankanoon.org/doc/187477809/ 3 8. Before proceeding further let us go through the relevant provisions of law. The main ingredient of Section 138 of the Negotiable Instruments Act are as follows:− Case No. 223/12 Madhav Co− operative Vs Alamgeer 7 of 20 (a) The accused issued a cheque on an account maintained by him with a bank. (b) The said cheque has been issued in discharge of any legal debt or other liability. (c) The cheque has been presented to the bank within the period of six months from the date of the cheque or within the period of its validity. (d) When the aforesaid cheque was presented for encashment, the same was returned unpaid/ dishonoured. (e) The Payee of the cheque issued a legal notice of demand within 30 days from the receipt of information by him from the Bank regarding the return of the cheque. (f) The Drawer of the cheque failed to make the payment within 15 days of the receipt of the aforesaid legal notice of demand. If the aforesaid ingredients are satisfied then the drawer of the cheque shall be deemed to have committed an offence punishable u/s 138 Negotiable Instruments Act. 9. Now let us deal with the each ingredient of the section 138 of Negotiable Instruments Act to see whether the case against the Case No. 223/12 Madhav Co−operative Vs Alamgeer 8 of 20 accused has been proved or not. 10. WHETHER THE CHEQUE WAS ISSUED OR NOT The accused has himself admitted to have signed the cheque in question while answering to the question at the time of framing of notice U/s 251 Cr. PC. Further while answering to the question U/s 313 Cr.PC the accused has admitted to have given the cheque in question to the complainant but he stated that the same was given in blank only after putting his signatures there for purpose of security at the time of taking the loan from complainant. Therefore, so far as signing and delivery of the cheque in question by the accused is concerned the same is not disputed. Moreover, in Jaipal Singh Rana Vs. Swaraj Pal 149 (2008) DLT 682 it was held by Delhi High Court that "by putting the amount and the name there is no material alteration on the cheque U/s 87 of the Negotiable Instruments Act. In fact there is no alteration but only adding the amount and the date. It was further observed in the aforesaid judgment that there is no rule of banking business that the name of the payee as well as the Case No. 223/12 Madhav Co−operative Vs Alamgeer 9 of 20 amount should be written by the drawer himself. No law provides that in case of cheques the entire body has to be written by the drawer only." Case No. 223/12 Madhav ... vs Alamgeer 1 Of 20 on 22 February, 2014 Indian Kanoon - http://indiankanoon.org/doc/187477809/ 4 In view of the evidence on record it stands proved that the cheque in question was issued by the accused. 11. WHETHER THE CHEQUE WAS PRESENTED WITHIN THE PERIOD OF VALIDITY Perusal of the record reveals that the cheque in question which is Ex. CW−1/A is dated 19.07.2007 which got dishonored vide cheque returning memo which is Ex. CW−1/B dated 21.07.2007 which is not disputed by the accused clearly shows that the cheque has been presented within period of its validity i.e. within six months from the date of issuance of the cheque. 12. DISHONOUR OF CHEQUE IN QUESTION In the instant case, Satish Kumar Garg who has appeared as complainant's witness has got exhibited the cheque returning memo which is Ex. CW1/B to prove the fact of dishonour of the cheque in Case No. 223/12 Madhav Co−operative Vs Alamgeer 10 of 20 question. Complainant also examined bank witness Sh. Bikesh Sharma, to prove the dishonor of the cheque who correctly identified the cheque Ex. CW1/A and return memo Ex. CW1/B and stated that the same was issued by their bank mentioning 'insufficiency of funds' as the reason of dishonor. He produced the statement of account of the accused as Ex. CW2/X and stated that as the balance of the accused was not sufficient, so the entry of dishonor is not reflected in the statement of account. The dishonor of the cheque in question has not been disputed by the accused nor the cheque returning memo has been challenged by the accused. Therefore considering the entire evidence on record it stands duly proved that the cheque in question was dishonored vide cheque returning memo dated 21.07.2007 which is Ex. CW1/B with the reason "Insufficient Funds". 13. SERVICE OF LEGAL NOTICE OF DEMAND UPON THE ACCUSED In the instant case, Satish Kumar Garg who has appeared as complainant's witness has specifically stated in his examination in Case No. 223/12 Madhav Co−operative Vs Alamgeer 11 of 20 chief that the complainant got issued the legal notice of demand dated 13.08.2007 which is Ex. CW1/C and it was sent to the accused vide Spped Post with Regd. AD which are Ex. CW−1/D and Ex. CW1/E respectively. The accused has also admitted the receipt of legal notice of demand during framing of notice under section 251 CrPC and while answering to the question during his statement U/s 313 r/.w 281 Cr.PC as well as his examination in chief. In light of the evidence on record and the admission made by the accused, it stands proved that legal notice of demand was properly served upon the accused. 14. WHETHER THE CHEQUE IN QUESTION WAS ISSUED IN DISCHARGE OF ANY LEGAL DEBT OR OTHER LIABILITY In the case in hand, Satish Kumar Garg who has appeared as complainant's witness has specifically stated in his examination in chief by way of affidavit that the accused was irregular in making payments and settled his account with the complainant for a sum of Rs. 29,200/− and issued the cheque in question in discharge of that Case No. 223/12 Madhav Co− operative Vs Alamgeer 12 of 20 liability. Case No. 223/12 Madhav ... vs Alamgeer 1 Of 20 on 22 February, 2014 Indian Kanoon - http://indiankanoon.org/doc/187477809/ 5 The accused has however deposed in his examination in chief that he had issued cheque in question to the complainant before the disbursement of loan as blank signed cheque, by way of security only and the same has been misused by the complainant. Before deciding this issue let us go through the relevant provisions of law. Section 46 of the Negotiable Instruments Act speaks of the delivery, it reads as follows:− "The making, acceptance or endorsement of a promisory notice, bill of exchange or cheque is completed by delivery, actual or constructive." Section 118 (b) of the Negotiable Instruments Act provides that until the contrary is proved, the following presumption shall be made. (b) As to date − that every Negotiable Instrument bearing a a date was made or drawn on such date. Moreover, there is a presumption in favour of the complainant Case No. 223/12 Madhav Co− operative Vs Alamgeer 13 of 20 u/s 118 (a) Negotiable Instruments Act that until the contrary is proved, it will be presumed that every negotiable instrument was drawn for consideration and every such instrument when it has been accepted, endorsed, negotiated or transferred was accepted, endorsed, negotiated or transferred for consideration. Further Section 139 of the Negotiable Instruments Act, 1881 provides that it shall be presumed until the contrary is proved that the holder of the cheque received the cheque of the nature referred in the Section 138 for the discharge in whole or in part of his debt or liability. Now the Court shall examine whether the accused is successful in rebutting the presumption as contemplated by Section 118 (b) and Section 139 of Negotiable Instruments Act. To rebut the presumption of section 139 of NI Act and section 118 (b) of NI Act, the sole ground of defence taken by the Ld counsel for accused is that the cheque in question was given to the complainant as blank signed cheque by way of security prior to the sanctioning of loan and that the cheque in question was issued by the Case No. 223/12 Madhav Co−operative Vs Alamgeer 14 of 20 accused in blank with only his signatures. To support this contention, the accused has failed to bring anything on record. DW2 Shama Begum, who is the wife of the accused has also stated in her examination of chief that the accused gave the cheque of ICICI Bank to the complainant for loan. A Security cheque if issued for any debt payable in presenti but such payment has been deferred to a future debt can be subject matter of proceedings under section 138 NI Act. In the present case, even it is presumed that the cheque has been issued for security purpose, it was meant for discharge of debt but the payment of which has been deferred to a future date. In this regard, the Hon'ble High Court of Delhi has observed in its judgment titled as Krish International P. Ltd & Ors Vs. State & Ors. MANU/DE/0302/2013 as :− "9. There is no dispute that the proposition of law as laid down in M/s Collage Culture that a cheque issued not for an existing due but issued by way of security would not attract the provisions of Case No. 223/12 Madhav ... vs Alamgeer 1 Of 20 on 22 February, 2014 Indian Kanoon - http://indiankanoon.org/doc/187477809/ 6 Section 138 of the Act. In M/s Collage Culture the learned Single Judge of this Court (Pradeep Case No. 223/12 Madhav Co−operative Vs Alamgeer 15 of 20 Nandrajog, J.) drew distinction between a cheque issued for a debt in present but payable in future and second for a debt which may become payable in future upon the occurance of a contingent event. Paras 20 to 24 of the report in M/s Collage Culture are extracted hereunder :− 20. A post dated cheque may be issued under 2 circumstances. Under circumstance one, it may be issued for a debt in presenti but payable in future. Under Second circumstance it may be issued for a debt which may become payable in future upon the occurrence of a contingent event. 21. The difference in the two kinds of post−dated cheques would be that the cheque issued under first circumstance would be for a debt due, only payable being postponed. The latter cheque would be by way of a security. 22. The word 'due' means 'outstanding at the relevant date'. The debt has to be in existence Case No. 223/12 Madhav Co−operative Vs Alamgeer 16 of 20 as a crystallized demand akin to a liquidated damages and not a demand which may or may not come into existence; coming into existence being contingent upon the happening of an event." Hence, it is sufficiently proved on record that the cheque in question was not issued by way of security but for payment of the amount received by the accused from the complainant. Further, even if we assume that the cheque in question was issued by the accused in blank with only his signatures, even then the law has been clearly laid down in this regard by Hon'ble Delhi High Court in M/s Jammu & Kashmir Bank vs. Abhishek Mittal, 2012 CD DCR 189, that :− "When a blank cheque is signed and handed over, it means that the person signing it has given the implied authority to the holder of the cheque, to fill up the blanks which he has left. A person issuing a blank cheque is supposed to understand the consequences of Case No. 223/12 Madhav Co−operative Vs Alamgeer 17 of 20 doing so. He cannot escape his liability only on the ground that blank cheque has been issued by him." "Once issuance of the cheque been admitted or stands proved, a presumption arises in favour of the holder of the cheque that he had received the cheque of the nature referred to under Section 138 of the Act for the discharge, in whole or in part of any debt or any other liability. This presumption arises in favour of the holder under Section 139 of the Act which envisages that it shall be presumed unless the contrary is proved that the holder of a cheque received the cheque of the nature referred to under Section 138 of the Act for discharge, in whole or in part of any debt or any other liability. Of course, this presumption is a rebuttable presumption and same can be rebutted only by the person who had drawn the cheque." Thus, the accused has failed to rebut the presumption under section 118 (b) of Negotiable Instruments Act. Therefore, presumption under section 118 (b) holds good and according to which cheque was issued by the accused in discharge of his legal Case No. 223/12 Madhav Co−operative Vs Alamgeer 18 of 20 liability. Case No. 223/12 Madhav ... vs Alamgeer 1 Of 20 on 22 February, 2014 Indian Kanoon - http://indiankanoon.org/doc/187477809/ 7 Therefore, Court is of the considered opinion that the complainant has sufficiently been able to prove its case that the cheque in question was issued by the accused in discharge of his legal debt or liability. 15. THE DRAWER OF THE CHEQUE HAS FAILED TO MAKE THE PAYMENT WITHIN 15 DAYS OF THE RECEIPT OF SAID NOTICE In the instant case Sh. Satish Kumar Garg who has appeared as complainant's witness has deposed in his examination in chief by way of affidavit that despite service of legal notice of demand accused has failed to pay the cheque amount. Considering the evidence on record it stands proved that the accused has failed to make the payment of the cheque amount within 15 days of the receipt of legal notice of demand. 16.In view of the aforesaid discussion, I am of the considered Case No. 223/12 Madhav Co−operative Vs Alamgeer 19 of 20 opinion that the complainant has sufficiently proved its case against the accused. All the ingredients of Section 138 of Negotiable Instruments Act have been duly proved on record. Accordingly, accused Alamgeer S/o Sh. Rafiq Ahmed is hereby convicted of the offence u/s 138 Negotiable Instruments Act. Let copy of this judgment be given free of cost to the convict. Announced in the open court today i.e. 22.02.2014 (MANU GOEL KHARB) METROPOLITAN MAGISTRATE DWARKA COURTS, NEW DELHI Case No. 223/12 Madhav Co−operative Vs Alamgeer 20 of 20 Case No. 223/12 Madhav ... vs Alamgeer 1 Of 20 on 22 February, 2014 Indian Kanoon - http://indiankanoon.org/doc/187477809/ 8

trial5.pdf

Madhya Pradesh High Court Harjas Rai Makhija vs Smt. Pushparani Jain on 3 April, 2012 1 HIGH COURT OF MADHYA PRADESH : JABALPUR. First Appeal No.961/2010 Harjas Rai Makhija -Versus- Smt. Pushparani Jain and another. PRESENT : Hon'ble Shri Justice K.K. Trivedi. Shri R.P. Agrawal, learned senior counsel assisted by Shri Sanjay Agrawal, learned counsel for the appellant. Smt. Shobha Menon, learned senior counsel assisted by Shri C.A. Thomas, learned counsel for the respondents. Shri P.S. Chouhan, learned counsel for respondent No.2. JUDGMENT (03.4.2012) 1: This appeal under Section 96 of the Code of Civil Procedure is against the Judgment and decree dated 28.9.2010, passed in regular Civil Suit No.471-A/2008 by the V Additional District Judge, Bhopal. The controversy in short involved can be summarised thus :- (i) A plot No.251 was allotted to the respondent No.1 on 19.9.1981 by the Bhopal Development Authority. For the purposes of getting the sale deed executed, the respondent No.1 has appointed respondent No.2, her real brother a general Power of Attorney. (ii) On the basis of some general Power of Attorney executed allegedly on 30.4.1983 in favour of respondent No.2 by the respondent No.1, he entered into an agreement for sale of the plot in suit to the appellant on 16.10.1988. An advance of Rs.1 lac was paid towards the sale consideration and possession of the suit plot was also said to be delivered to the appellant. The sale deed was to be executed upto 30.4.1989. Harjas Rai Makhija vs Smt. Pushparani Jain on 3 April, 2012 Indian Kanoon - http://indiankanoon.org/doc/122012865/ 1 (iii) The respondent No.1 filed a Civil Suit being C.S. No.51-A/1999 against the appellant as also the respondent No.2 saying that she has not executed any Power of Attorney in favour of the respondent No.2 for the purposes of sale of the suit plot. If at all there was any agreement so executed on 16.10.1988 by the respondent No.2 for sale of the plot in favour of the appellant, that was null and void. (iv) A Civil Suit No.52-A/1999 was also filed by the appellant for specific performance of contract on the strength of sale agreement dated 16.10.1988. Both the suits were tried and were decided by the Court. (v) While decreeing the suit filed by the respondent No.1, the suit filed by the appellant was dismissed vide Judgment dated 4.10.1999 and 7.10.1999 respectively passed by the District Judge, Bhopal. The appellant filed the First Appeals before this Court being F.A.No.607/99 and F.A.No.638/1999 against the aforesaid Judgment and decree. During pendency of the said appeal, an application under Order 41 Rule 27 of the Code of Civil Procedure was filed for taking additional evidence on record. With this application, an application made by respondent No.2 before the Bhopal Development Authority, was also filed. It was stated that such an application was made on behalf of the respondent No.1, by the respondent No.2, in his capacity as General Power of Attorney holder and a copy of the General Power of Attorney was also produced before the Bhopal Development Authority. (vi) Both the appeals were heard together, the application under Order 41 Rule 27 of the Code of Civil Procedure was also considered. Both the appeals were dismissed by a common Judgment and decree dated 13.9.2002. Categorical finding with respect to the rejection of the application under Order 41 Rule 27 of the Code of Civil Procedure was recorded by this Court in the Judgment and decree passed on 13.9.2002. It was categorically held that such an application which is sought to be taken on record was not a document in the nature of secondary evidence which could be taken on record for consideration. (vii) The appellant filed Special Leave Petition before the Apex Court against the Judgment and decree of this Court passed in the said appeals on 13.9.2002. The specific ground with respect to the rejection of application under Order 41 Rule 27 of the Code of Civil Procedure was taken in the Special Leave Petition. The Special Leave Petition was dismissed on 25.7.2003 and a review application filed before the Apex Court was also dismissed on 9.8.2003. (viii) A criminal complaint was filed by the appellant in the Court of Chief Judicial Magistrate, Bhopal, against the respondents as also one Ms. Sneh Rani Jain, a sister of respondents. The criminal complaint was dismissed, a criminal revision was filed before the Additional Sessions Judge, Bhopal, which was allowed vide order dated 10.12.2002. The criminal complaint was said to be maintainable as sufficient material on record for taking cognizance in said criminal complaint was available. A revision filed before this Court was dismissed and the Criminal case is pending consideration before the Court below. Harjas Rai Makhija vs Smt. Pushparani Jain on 3 April, 2012 Indian Kanoon - http://indiankanoon.org/doc/122012865/ 2 (ix) The appellant obtained a certified copy of Power of Attorney said to be produced along with the application submitted by the respondent No.2 before the Bhopal Development Authority and thereafter, filed the present suit in the Court of V Additional District Judge, Bhopal, for the reliefs of declaring that the Judgment and decree obtained on 4.10.1999 in Civil Suit No.51-A/1999 by the respondent No.1 was null and void as the same was obtained fraudulently concealing the material fact relating to execution of Power of Attorney in favour of respondent No.2 by the respondent No.1; a decree of permanent injunction to the effect that the respondents shall not execute the Judgment and decree dated 4.10.1999 passed in the Civil Suit No.51-A/1999; cost of the suit; and any other reliefs. The trial Court after full dressed trial has dismissed the suit. Hence, this appeal against the Judgment and decree. 2: It is the contention of learned counsel for the appellant that since it was specifically pleaded in the plaint that a fraud was played by the respondent No.1 knowing fully well that she has executed a Power of Attorney for sale of the suit property, in favour of the respondent No.2, her own brother as the respondent No.1 was residing at United State of America and was unable to come and lookafter the property at Bhopal in India, but this document was deliberately concealed and a bald statement was made that no such Power of Attorney was executed by the respondent No.1 in favour of the respondent No.2 and hence the claim was made in the suit aforesaid. Since now the Power of Attorney has come into the light and such a written document has been obtained by getting a certified copy from the public office of Bhopal Development Authority, such a fraud played by the respondent No.1 with the Court is apparent and, as such, the decree obtained by fraud is not binding on the appellant. Thus, it is categorically contended that the Court below was not right in holding that the appellant has failed to prove his case and has wrongly dismissed the suit of the appellant. 3: Per contra it is vehemently argued by learned Senior counsel for the respondent No.1 that there was no fraud played by the respondent No.1. If at all this was the defence or claim made by the appellant that the respondent No.2 was general Power of Attorney holder for the purposes of transfer of the suit land in favour of the appellant, it was the duty on the part of the appellant to place all such facts on record and to gather all the evidence at that time and put it for the trial. Having failed to do so and losing upto highest Court of the country, the appellant cannot be permitted to reagitate the issue before trial Court. These aspects have categorically been found proved by the Court below and the suit of the appellant has rightly been dismissed. Thus, it is contended that in view of the settled position of law, no relief whatsoever can be granted to the appellant and his appeal is liable to be dismissed with exemplary cost. 4: To appreciate the rival submissions made by learned Senior counsel for the parties, it is required aptly to examine the entire evidence, the documentary as well as oral and the manner in which such claims were made before the Court below. The first and foremost question which is to be examined is whether the appellant was aware of the Power of Attorney allegedly said to be executed in favour Harjas Rai Makhija vs Smt. Pushparani Jain on 3 April, 2012 Indian Kanoon - http://indiankanoon.org/doc/122012865/ 3 of the respondent No.2 by the respondent No.1 at the time when the previous suit was pending against him and when previously a claim was made by him for specific performance of the said agreement, or not ? 5: The documents which the appellant has placed on record are first an application said to be filed for grant of no objection by the respondent No.2 on behalf of respondent No.1 before the Bhopal Development Authority on 1/6/1983, which has been exhibited as Ex.P/1. The second document which is placed on record by the appellant before the trial Court in this suit is a certified copy of the Power of Attorney said to be executed by the respondent No.1 in favour of respondent No.2 on 30.4.1983. The said document is exhibited as Ex.P/2. The contents of the said documents are that the Power of Attorney is executed for the purposes of carrying on the construction, supervision, management and disposal of plot No.251 in Major Shoping Centre Zone-II, Habibganj, Bhopal, in Scheme No.13 of Bhopal Development Authority, Bhopal and for the said purposes execute any document pay and receive any sum or sums, receive or realise any outstanding to manage the above property. In the clear word, it is not said that the Power of Attorney holder is authorised to sell out the property in suit. The management and disposal word used in this Power of Attorney, more appropriately the word disposal in the said Power of Attorney is being construed as if the said person was also authorised to sell out the property of respondent No.1 to anyone else. The other documents placed on record by the appellant are with respect to the plan of construction prepared and submitted before the authorities, a statement recorded of a witness examined in the Criminal case, who is said to be an employee of the Bhopal Development Authority, for the purposes of proving the said Power of Attorney produced before the Bhopal Development Authority. The other document is with respect to the application for grant of permission to make construction, made before the Municipal Corporation Bhopal and the lease deed executed in favour of the respondent No.1. Ex.P/6 filed by the appellant is the copy of sanctioned map and a copy of the criminal complaint made, the order passed by the Additional Sessions Judge, Bhopal in Criminal Revision. The appellant has also produced a death certificate of the Notary, who was said to have notarised the said Power of Attorney and a register of Notary where the execution of Power of Attorney by respondent No.1 in favour of respondent No.2 is duly registered. However, though a reference is made to the agreement of sale, yet the sale agreement has not been produced. Another Power of Attorney executed by the respondent No.1 in favour of respondent No.2 on 14.4.1989 has been placed on record as Ex.P/15. The appellant has examined himself as a witness as PW/1, one Vinay Agrawal son of the Notary and Advocate late Shri Hari Narayan Agrawal, who has expired, as PW/2. As against this evidence, the respondent No.1 has produced an application made before the Town Improvement Trust, Bhopal, as Ex.D/1, an affidavit filed in the case No. 29- A/1994, certain letters written by her, an order passed by the Apex Court in the case of review petition filed by the appellant and the rejection of the Special Leave Petition filed by the appellant, a complete copy of the Judgment and decree delivered in the First Appeal No.607/1999 by this Court on 13.9.2002, a Judgment and decree passed in Civil Suit No.51-A/1999 and Civil Suit No.52-A/1999 by the District Judge, Bhopal. The respondent was examined as a witness by conferencing. The statement of respondent No.2 were recorded in the defence. Now this being the total evidence produced by the parties, this Court is required to examine whether fact relating to execution of the Power of Attorney by the respondent No.1 in favour of the respondent No.2 was within the knowledge of the appellant at the time when the first suit was brought by the appellant against the respondents or not, or when Harjas Rai Makhija vs Smt. Pushparani Jain on 3 April, 2012 Indian Kanoon - http://indiankanoon.org/doc/122012865/ 4 he came as a defendant in the suit filed by the respondent No.1 against him. The record of the said suit was also called and kept with the suit subsequently filed. 6: In fact, it has to be noted that a definite claim was made by the appellant in his first suit which he has filed for specific performance that by virtue of a Power of Attorney, the respondent No.1 has authorised the respondent No.2 to execute a sale deed in favour of the appellant with respect to the suit plot and for the said purposes an agreement was executed by the respondent No.2 on behalf of the respondent No.1 in favour of appellant. If that was the situation, the appellant was required to remain more vigilant. He was aware that the respondent No.1 was not residing in India, was not readily available and if, for that reason she has executed any Power of Attorney in favour of her brother to sell out the property in suit, it was necessary for the appellant to get a copy of the Power of Attorney obtained before entering into any agreement with the respondent No.2 on behalf of respondent No.1. As has been found by the trial Court, the appellant had not produced the sale agreement before the lower Court, but by making an application I.A.No.4058/2012, the copy of the said agreement has been produced before this Court. The entire agreement is styled as if the same was executed by the respondent No.1 through the Power of Attorney holder. Not a single word is found in this agreement that any Power of Attorney for the said purposes was executed by the respondent No.1 in favour of respondent No.2 and, therefore, in his capacity as the Power of Attorney holder of respondent No.1, the respondent No.2 was executing the said document on 16.10.1988. This itself is enough proof of the fact that in fact, if at all any fraud was committed with the appellant, it was none else nothing but respondent No.2 who executed an agreement purportedly in respect of respondent No.1 self styling himself as Power of Attorney of respondent No.1. If a person is Power of Attorney holder of the owner, he himself is required to execute the agreement categorically saying that by virtue of such Power of Attorney executed by the owner he is acting on behalf of the owner. Such declarations are not found in the said document. This makes it clear that the Power of Attorney, said to be executed on any particular date, was not for the purposes of sale of the plot in dispute. 7: As has been stated hereinabove, the Power of Attorney said to be executed on 30.4.1988, produced as document Ex.P/2 does not contemplate a specific condition that the said Power of Attorney is being issued for the purposes of disposing of/selling the property in question. Therefore, merely because some Power of Attorney was executed, not specifically authorising the respondent No.2, by the respondent No.1 for selling the property in suit, it could not have been said that the respondent No.2 automatically become authorised to sell the suit property. This being so, since these facts were not got verified at the initial stage when the appellant had entered into such an agreement with the respondent No.2 for the sale of the plot in suit, it cannot be said that the appellant was vigilant, cautious and a bonafide purchaser. Such assertion cannot be accepted at such a stage when the appellant has lost the litigation previously brought before this Court upto the stage of Apex Court. Whether can it be said that the Power of Attorney came to the notice of the petitioner at such a belated stage only when a criminal case was launched by him making allegation of committing fraud with him by the respondents. Undisputedly, the appeal was preferred against the previous Judgment and decree passed in the Civil Suit filed by the respondent No.1 and also against the Judgment and decree passed in Civil Suit filed by the appellant himself. The Civil Suit was filed by the appellant for specific performance of the agreement. If he was stating that agreement was Harjas Rai Makhija vs Smt. Pushparani Jain on 3 April, 2012 Indian Kanoon - http://indiankanoon.org/doc/122012865/ 5 executed by the respondent No.2 in his capacity of Power of Attorney holder of respondent No.1, it was the duty cast on the part of the appellant to prove that the respondent No.2 was in fact the Power of Attorney of respondent No.1. When such a fact was not proved, the suit was dismissed. In the pending appeal, an application under Order 41 Rule 27 of the Code of Civil Procedure was filed for taking an application made before the Bhopal Development Authority as additional evidence on record. If the appellant could have obtained a photocopy of such a document, what precluded him to make an application for grant of certified copy of the said Power of Attorney which was allegedly attached along with the application and which was produced before the Bhopal Development Authority ? Why only after losing upto the Apex Court the good sense prevailed and the appellant applied for grant of a certified copy of such a document. If it was such an important document, the appellant could have obtained a certified copy of that document at the time when the First Appeal was pending consideration before this Court and could have produced along with copy of the application submitted by the respondent No.2 before the Bhopal Development Authority and in such circumstances, this Court could have exercised the power under Order 41 Rule 23-A of the Code of Civil Procedure could have sent back the matter to the trial Court for recording of the evidence on the said particular document or even could have framed an issue on that evidence and could have obtained the findings on the same from the trial Court at that stage. The issue could have been decided at that stage only if the justified attempt would have been made by the appellant to obtain such document. This all shows that neither the appellant was vigilant nor serious to prosecute his claim. In fact, he was enjoying the possession over the suit property without making payment of any compensation and, therefore, he was prolonging the litigation. He fought upto the Apex Court unsuccessfully filed a review also and after losing in all Courts has come with this plea therefore, such a stand is not to be accepted at all. Further, this Court has categorically dealt with the application made under Order 41 Rule 27 of the Code of Civil Procedure and has recorded its finding in the First Appeal in none other than specific words that such a plea of the appellant was not to be accepted at all. For the purposes of better appreciation, findings of this Court recorded in paragraph 11 of the said Judgment are reproduced :- "11. The main crux of the matter is whether the plaintiff, Dr. Pushparani Jain had executed the power of attorney authorising Jinendra Kumar Jain, her brother to negotiate in regard to the property and execute the deed of sale. In the trial Court no document was produced to establish that the said plaintiff had executed any power of attorney in favour of her brother. It was only admitted that the power of attorney was executed to get the lease deed executed with Bhopal Development Authority. On a perusal of the evidence it is discernible that the defendant No.2 had perused the photocopy shown to him by the mediator and visited his lawyer seeking legal opinion. The learned trial Judge has referred to Ex.P/1 and recorded a finding that the said document did not so indicate. On a scrutiny of Ex.P/1, it is also noticeable that the same is silent in that regard. Before this Court an application has been filed under Order 41 Rule 27 of the Code of Civil Procedure for taking additional evidence. In the application, it has been stated that recently the plaintiff has come to know that the defendant No.2 had applied to the Bhopal Development Authority seeking permission for sale. It is apposite to mention here that the application which had been filed by the defendant No.2 before the Authority has been brought on record. Harjas Rai Makhija vs Smt. Pushparani Jain on 3 April, 2012 Indian Kanoon - http://indiankanoon.org/doc/122012865/ 6 On a perusal of the same it transpires that in the said application there is mention of the fact that the photocopy of the power of attorney supposed to have been executed by the plaintiff was produced before the said authority. It is submitted by Mrs. Shobha Menon that the application filed under Order 41 Rule 27 should not be entertained inasmuch as the defendant No.2 had himself admitted that he had filed a photocopy before the Bhopal Development Authority and a photocopy of a photocopy cannot be regarded as secondary evidence. It is submitted by her that at the best what the defendant No.1 can prove that a photocopy was filed along with the said application by the defendant No.2, but that could not bind the plaintiff. Quite apart from the above, it is also purforth that the application filed under Order 41 Rule 27 is factually incorrect inasmuch as there is evidence on record that Harjas Rai Makhija had deposed that Jinendra Kumar Jain had got the matter discussed through a middle man in regard to the plot. Thus, the stand taken in the application does not fresco the correct picture and it is highlighted that the appellant who has stated that he has come to know about such power of attorney recently is blatant lie and hence, should not be accepted for consideration." 8: This being so, such findings recorded by the Court are not to be disturbed and specially the same have been approved by the Apex Court. It will be noteworthy to state here that such a rejection of the application under Order 41 Rule 27 of the Code of Civil Procedure was the ground raised before the Apex Court in Special Leave Petition filed by the appellant. After appreciating the findings recorded by this Court in the earlier First Appeal filed by the appellant, the Apex Court has dismissed the Special Leave Petition of the appellant. That means nothing, but affirmation of the finding of this Court. The review petition filed by the appellant before the Apex Court also met with the same result. Thus, in the considered opinion of this Court, in view of these facts, the reagitation of litigation was not permissible in law. 9: In the light of whatever is found by this Court, the Judgment of the trial Court is examined. There were two issues framed with respect to the grounds raised by the appellant in the suit that the decree has been obtained in Civil Suit No.51-A/1999, fraudulently concealing the execution of the Power of Attorney by the respondent No.1 in favour of respondent No.2. The trial Court in paragraph 6 onwards of its Judgment has considered the entire evidence, has taken note of all the facts and has categorically held that the evidence produced by the appellant is not such that a fraud is proved. Apart from that the lower Court has categorically held that the appellant had utterly failed to prove that there was any such Power of Attorney in existence. The lower Court has taken note of conduct of the appellant also. In view of this, it cannot be said that the Court below has committed any error of law in not appreciating the evidence available on record in appropriate manner. 10 : Learned senior counsel for the appellant has placed his reliance in various laws laid down by the Apex Court in different situations. It is contended that since the Court below has also considered as if the provisions of Section 11 of the Code of Civil Procedure would be attracted in the case and such a suit filed by the appellant was hit by principles of res judicata, therefore, the submission is made that the Judgment and decree is bad in law. It is contended by learned Senior counsel appearing for the appellant that the trial Court in its Judgment while dealing with the issue No.5 with respect to Harjas Rai Makhija vs Smt. Pushparani Jain on 3 April, 2012 Indian Kanoon - http://indiankanoon.org/doc/122012865/ 7 the application of principle of re judicata has given no finding, but has simply recorded that the suit is not maintainable. It is contended that in view of the law laid down by the Apex Court, the said principle of res judicata would not be attracted at all as a Judgment and decree obtained by fraud is to be treated as nullity. Relying in the case of Ram Preeti Yadav V. U.P. Board of High School and Intermediate Education and others [(2003) 8 SCC 311], Indian Bank V. Satyam Fibres (India) Pvt. Ltd. [(1996) 5 SCC 550], S.P. Chengalvaraya Naidu (Dead) by L.Rs. Vs. Jagannath (Dead) by L.Rs. and others [(1994) 1 SCC 1] and Ajit Savant Majagvai V. State of Karnataka [(1997) 7 SCC 110], learned senior counsel for the appellant has, vehemently, contended that the fraud is committed either by letter or words which induces the other person or authority to take a definite determinative stand as a response to the conduct of the former either by words or letter and, therefore, mere slight negligence on the part of the appellant would not amount as if fraud was not played. It is also contended by learned senior counsel that the Courts have the inherent power under Section 151 of the Code of Civil Procedure and if such a fact is brought to the notice of the Court that fraudulently a decree has been obtained by suppression of material facts by the other side, the said decree can be set aside in exercise of inherent powers also by the Court by recalling its Judgment or orders if it is proved that the same is obtained by fraud on record. It is also contended that the factum of fraud is required to be tested in each case taking into account the circumstantial evidence as well. Thus, it is said that in view of the law pronounced by the Apex Court, the Court below was not right in dismissing the suit filed by the appellant and refusing to grant a decree of declaration that the decree in previous suit was obtained by the respondent No.1 by playing fraud on Court. With due respect to the pronouncement of the Apex Court, each and every case is to be tested on the basis of the facts and circumstances which are proved or brought on record. In the given circumstances if the appellant himself was not vigilant about verifying the fact of Power of Attorney at the initial stage or if he was not careful enough to produce the document of Power of Attorney on record even when he moved an application under Order 41 Rule 27 of the Code of Civil Procedure before the appellate Court, how could it be said that the fraud was played by the respondent No.1. That apart, the Power of Attorney as has been placed on record does not authorises in any specific words the respondent No.2 to execute the sale deed or even a sale agreement of the property in suit, belonging to respondent No.1, by her, as the entire Power of Attorney deals with development of the plot, its protection and subsequently getting a construction done. If that was the intention of the original owner of the land, how could the word disposal used in the Power of Attorney in question could be termed as authorising the respondent No.2 to do away the property of the respondent N.1 by putting it on sale. This being so, the entire claim made by the appellant is totally misconceived and baseless. Even if such a Power of Attorney would have been tested at that time when the first suit was pending, in the considered opinion of this Court, no other finding could have been recorded except the one which is recorded by this Court in this Judgment. 11 : Learned senior counsel appearing for the respondent has, vehemently, contended that the law is well settled in various cases decided by the Apex Court with respect to the application of principle of res judicata, reagitating the litigation after a decision and stated that all those situations have been examined by the Apex Court in the case of Vishnu Dutt Sharma Vs. Daya Sapra [(2009) 13 SCC 729]. It is also contended by learned senior counsel for respondents that what is being stated by the appellant is that such a Power of Attorney was proved from the statement of the employee of the Bhopal Development Authority, recorded in a criminal proceeding. It is contended that in view of Harjas Rai Makhija vs Smt. Pushparani Jain on 3 April, 2012 Indian Kanoon - http://indiankanoon.org/doc/122012865/ 8 the law laid down by the Apex Court in the case of Vishnu Datt Sharma (supra), the findings in a criminal proceedings by no stretch of imagination would be binding in a Civil Proceedings and as there were no statement of any witness to prove existence of such a Power of Attorney, it was rightly held by the lower Court that the appellant had not made out his case for grant of a decree as claimed. It is contended by learned senior counsel for the respondent that the trial Court has categorically recorded that opportunity was available to the appellant to prove that such a Power of Attorney was in existence, but when his application for calling the record was rejected by the trial Court, no attempts were made by him to challenge such an order. In view of this, it is contended that the appeal preferred by the appellant is liable to be dismissed. Relying on the decision of the Apex Court in the case of M. Nagabhushana V. State of Karnataka and others [(2011) 3 SCC 408], learned senior counsel for the respondents has contended that since the finality was already obtained in such a claim upto the Apex Court, reagitating the same was not permissible in view of the specific provisions made in Explanation IV as contained in Section 11 of the Code of Civil Procedure. It was nothing but an abuse of the process of Court. Learned senior counsel for respondents has further relied on certain decisions of the Madras High Court and has contended that these aspects have categorically been found by the High Court that a practice of reagitating litigation is going on and unsuccessful party always tries to reagitate the matter before the Court. To curtdail down such a tenancy, it has become necessary for the Court to dismiss such litigation with heavy cost so that such a practice may not be continued for long otherwise it will totally demolish the judicial system prevalent in this country. 12 : It is to be seen that the Madras High Court has categorically found in its order in many ways and many words that the unsuccessful person, were trying to approach the Court seeking the same relief which was earlier denied by the Court, on one pretext or another. Slightly change in the claims, change of grounds or fishing out a ground is not to be permitted for reagitating the issue before the Court. The Apex Court also considered these aspects in many cases. In the case of M. Nagabhushana (supra) in paragraphs 13 to 18, the Apex Court has categorically recorded these reasons. For proper appreciation, which according to this Court are some what similar circumstances in the present appeal, the findings of the Apex Court are reproduced from paras 13 to 18 :- "13. That principle of finality of litigation is based on high principle of public policy. In the absence of such a principle great oppression might result under the colour and pretence of law inasmuch as there will be no end of litigation and a rich and malicious litigant will succeed in infinitely vexing his opponent by repetitive suits and actions. This may compel the weaker party to relinquish his right. The doctrine of res judicata has been evolved to prevent such an anarchy. That is why it is perceived that the plea of res judicata is not a technical doctrine but a fundamental principle which sustains the rule of law in ensuring finality in litigation. This principle seeks to promote honesty and a fair administration of justice and to prevent abuse in the matter of accessing court for agitating on issues which have become final between the parties. 14. Tek Chand, J. delivering the unanimous Full Bench decision in Lachhmi V. Bhulli traced the history of this doctrine both in Hindu and Mohammedan jurisprudence as follows : (ILR pp.391-92). Harjas Rai Makhija vs Smt. Pushparani Jain on 3 April, 2012 Indian Kanoon - http://indiankanoon.org/doc/122012865/ 9 "In the Maitakshra (Book II, Chapter I, Section V, verse 5) one of the four kinds of effective answers to a suit is 'a plea by former Judgment' and in verse 10, Katyayana is quoted as laying down that 'one against whom a Judgment had formerly been given, if he brings forward the matter again, must be answered by a plea of purva nyaya or former Judgment' (Macnaughten and Colebrooke's translation, p.22). The doctrine, however, seems to have been recognised much earlier in Hindu jurisprudence, judging from the fact that both Smriti Chandrika (Mysore Edn., pp.97-98) and Virmitrodaya (Vidya- Sagar Edn., p.77) base the defence of prang nyaya (former decision) on the following text of the ancient law-giver Harita, who is believed by some Orientalists to have flourished in the 9th century BC and whose Smriti is now extant only in fragments- 'The plaintiff should be non-suited if the defendant avers: "in this very affair, there was litigation between him and myself previously", and it is found that the plaintiff had lost his case.' There are texts of Prasara (Bengal Asiatic Society Edn., p.56) and of Mayukha (Kane's Edn., p.15) to the same effect. Among Muhammadan law-givers similar effect was given to the plea of 'Niza-i-munfasla' or 'Amar Mania taqrir mukhalif'. Under Roman Law, as administered by the Proetors' courts, a defendant could repel the plaintiff's claim by means of exceptio rei judicatoe or plea of former Judgment. The subject received considerable attention at the hands of Roman jurists and as stated in Roby' Roman Private Law (Vol. II, p.338) the general principle recognised was that 'one suit and one decision was enough for any single dispute' and that 'a matter once brought to trial should not be tried except, of course, by way of appeal." 15. The learned Judge in Bhulli case also noted that in British India the rule of res judicata was first introduced by Section 16 of Bengal Regulation 3 of 1773 which prohibited the Zila and City Courts from entertaining any cause which, from the production of a former decree or the record of the court, appears to have been heard and determined by any Judge or any Superintendent of a court having competent jurisdiction. The learned Judge found that the earliest legislative attempt at codification of the law on the subject was made in 1859, when the first Civil Procedure Code was enacted, whereunder Section 2 of the Code barred every court from taking cognizance of suits which, on the same cause of action, have been heard and determined by a Court of competent jurisdiction. The learned Judge opined, and in our view rightly, that this was partial recognition of the English rule insofar as it embodied the principles relating to estoppel by Judgment or estoppel by record. Thereafter, when the Code was again revised in 1877, the operation of the rule was extended in Section 13 and the bar was no longer confined to the retrial of a dispute relating to the same cause of action but the prohibition was extended against reagitating an issue, which had been heard and finally decided between the same parties in a former suit by a competent court. The learned Judge also noted that before the principle assumed its present form in Section 11 of the Code of 1908, the section was expanded twice. However, the learned Judge noted that Section 11 is not exhaustive of the laws on the subject. 16. It is nobody's case that the appellant did not know the contents of the FWA. From this it follows that it was open to the appellant to question, in the previous proceeding filed by it, that his land Harjas Rai Makhija vs Smt. Pushparani Jain on 3 April, 2012 Indian Kanoon - http://indiankanoon.org/doc/122012865/ 10 which was acquired was not included in the FWA. No reasonable explanation was offered by the appellant to indicate why he had not raised this issue. Therefore, in our Judgment, such an issue cannot be raised in this proceeding in view of the doctrine of constructive res judicata. 17. It may be noted in this context that while applying the principles of res judicata the court should not be hampered by any technical rules of interpretation. It has been very categorically opined by Sir Lawrence Jenkins that : "... the application of the rule by courts in India should be influenced by no technical considerations of form, but by matter of substance within the limits allowed by law." 18. Therefore, any proceeding which has been initiated in breach of the principle of res judicata is prima facie a proceeding which has been initiated in abuse of the process of court." 13 : In view of these pronouncement and factual scenario which have come on record as indicated hereinabove, keeping in view the conduct of appellant himself, this Court is left with no option, but to dismiss this appeal with costs. Consequently, the appeal is dismissed. The appellant will bear his own cost and the cost of respondent No.1 throughout. Counsels fee is quantified at Rs.25,000/- (Rupees Twenty Five Thousand), if precertified. (K.K.Trivedi) Judge /04/2012 A.Praj. HIGH COURT OF MADHYA PRADESH AT JABALPUR First Appeal No.961/2010 Harjas Rai Makhija -Versus- Smt. Pushparani Jain and another. O R D E R ( .4.2012) Post it for /4/2012 (K. K.Trivedi) Judge /04/2012 Harjas Rai Makhija vs Smt. Pushparani Jain on 3 April, 2012 Indian Kanoon - http://indiankanoon.org/doc/122012865/ 11

trial7.pdf

Madras High Court K.K.Swaminathan vs Srinivasagam on 10 October, 2003 In the High Court of Judicature at Madras Dated: 10/10/2003 Coram The Hon'ble Mrs. Justice R.BANUMATHI C.R.P.(P.D.) No. 1147 of 2001 K.K.Swaminathan ..Petitioner -Vs- Srinivasagam ..Respondent Civil Revision Petition under section 115 of Civil Procedure Code filed against the Order dated 16.03.2001 in I.A.No.98/2001 in O.S.No.24 73/1996 on the file of Additional District Munsif Court, Coimbatore. !For Petitioner : Mr.A.Venkatesan ^For Respondent : Ms.M.B.Dominique for Mr.P.Duraisamy :ORDER This Revision Petition is directed against the order of II Additional District Munsif, Coimbatore in I.A.No.98/2001 in O.S.No.2473/1996 (dated 16.03.2001) dismissing the Application to send the Promissory Note dated 24.11.1983 to Handwriting Expert for the purpose of comparison of the signature thereon with the admitted signatures in the presence of the Officer of the Court. 2. This Revision Petition arises out of the following common grounds:- (i) O.S.No.352/1986 - II Additional Subordinate Judge, Coimbatore: The Respondent / Defendant filed this Suit for recovery of Rs.1 5,672/= on Promissory Note for Rs.12,000/= (dated 24.11.1983). Revision Petitioner contested the said suit. In the said suit, the main contention raised by the Revision Petitioner was denial of execution of the said Promissory Note. In the said suit, Revision Petitioner had filed Application in I.A.110/1987 for sending the Suit Promissory Note to obtain the opinion of the Handwriting Expert and the same was dismissed. After full trial, O.S.No.352/1986 K.K.Swaminathan vs Srinivasagam on 10 October, 2003 Indian Kanoon - http://indiankanoon.org/doc/601533/ 1 was decreed. (ii) A.S.No.38/1987:- Aggrieved over the decreeing of the suit, the Revision Petitioner has filed this Appeal before District Judge, Coimbatore. The Appeal was heard on merits. Confirming the judgment and decree of the trial court in O.S.No.352/1986, A.S.No.38/1987 was dismissed on 24.12 .1988. As against the concurrent findings of courts below, Revision Petitioner had also filed a Second Appeal. Finding that no substantial question of law is involved, the Second Appeal was dismissed even in the admission stage. (iii) E.P.No.162 of 1988: O.S.352/1986 Respondent has filed this Execution Petition to execute the decree passed in O.S.No.352/1986 and the Execution Petition was posted on 12.10.1988. While the Execution Petition was so pending, Revision Petitioner had filed the present suit O.S.No.656/1988 on the file of Sub Court, Coimbatore (re-numbered as O.S.No.2473/1996 - DMC, Coimbatore). (iv) O.S.No.656/1988 - Sub Court, Coimbatore (re-numbered as O.S.No.2473/1996 - District Munsif Court, Coimbatore) After being unsuccessful in all the Forums, Revision Petitioner had re-opened the entire issues re-agitating the matter, attacking the Suit Promissory Note and the decree passed on merits in O.S.No.352/1986. The present suit O.S.No.2473/1996 originally filed in the Sub Court, Coimbatore in O.S.No.656/1988 is for the cancellation of the decree obtained by the Respondent in O.S.No.352/1986 as having been obtained fraudulently by the use of a false document. 3. Case of Revision Petitioner / Plaintiff is that he had borrowed a sum of Rs.3,000/= from the Defendant on 16.06.1981, for which the Respondent had taken his signatures in four stamped blank papers from the Revision Petitioner and the Respondent paid only a cash of Rs.2,7 00/= deducting advance interest of Rs.300/=. Towards discharge the Promissory Note debt, Revision Petitioner had totally paid Rs.7,600/=. Respondent had not only refused to pass receipt, but also inspite of repeated demands failed to return the Promissory Note executed by the Revision Petitioner. The Promissory Note for Rs.12,000/= filed in O.S.No.352/1986 is a concocted false document. Further case of the Revision Petitioner is that the Respondent made use of the false document in O.S.No.352/1986 and fraudulently obtained the decree thereon and the Plaintiff is entitled to have the matter re-opened under section 44 of the Evidence Act and is entitled to get a declaration that the decree in O.S.No.352/1986 is null and void and not binding upon the Plaintiff. 4. Respondent is resisting the suit by filing the written statement contending that the Suit is barred by Res Judicata and that the decree in O.S.No.352/1986 operates as Res Judicata. When the contested decree in O.S.No.352/1986 was confirmed by the Appellate Court / District Judge, Coimbatore in A.S.No.38/1987, Revision Petitioner having exhausted his remedies has filed the present suit for the purpose of harassing the Respondent. The present suit, which is highly vexatious, is nothing but abuse of process of the court and is absolutely barred by Res Judicata. K.K.Swaminathan vs Srinivasagam on 10 October, 2003 Indian Kanoon - http://indiankanoon.org/doc/601533/ 2 5. When the Suit was taken up for trial, after the examination of the Respondent was completed, Revision Petitioner had filed I.A.No.98/2001 on the ground that the Promissory Note in O.S.No.352/1986 is a false and concocted document. According to him, the Promissory Note, which was the subject matter of the dispute in O.S.No.352/1986, is to be further examined by the Handwriting Expert by comparing with the admitted signatures in the presence of the Officer of the Court and the opinion of the Handwriting Expert is very much essential to prove his case that the contested decree in O.S.No.352/1986 was obtained by playing fraud upon the Court. 6. Respondent has filed the counter statement referring to the filing of similar Application in I.A.No.110/1987 in O.S.No.352/1986 under section 73 of Indian Evidence Act. I.A.No.110/1987 was dismissed. Against which, the Revision Petitioner had not preferred any Appeal or Revision before the High Court and the dismissal of the Application I.A.No.110/1987 has reached finality. The inconsistent stand adopted by the Revision Petitioner in the plaint averments is also pointed out in the counter statement. 7. Submitting that the decree in O.S.No.352/1986 was fraudulently obtained from the Court and to substantiate the same, an opportunity to be given to the Revision Petitioner to prove that the Promissory Note is a forged one, which could be established only by obtaining the opinion of the Handwriting Expert, who could compare the disputed signature with the admitted signatures. Contending that such a suit for setting aside the decree is maintainable under section 44 of the Indian Evidence Act, the learned counsel relied upon AIR 1995 SC 1440 in support of his contention that it is open to the party to the suit to avoid the decree if proved to have been obtained by fraud or collusion. It is the further contention of the Revision Petitioner that order in the earlier interlocutory Application 110/1987 would not operate as Res Judicata. Submitting that it is dangerous for the Court itself to compare the disputed signature, it is contended that obtaining of the opinion of the Handwriting Expert is very much essential, which the Revision Petitioner was deprived of the opportunity in the earlier suit by the dismissal of the Application in I.A.No.110/1987. 8. Countering the arguments and seriously assailing the very maintainability of the suit O.S.No.2473/1996, the learned counsel for the Respondent / Defendant submitted that the dismissal of the Application in I.A.No.110/1987 and decreeing of the suit in O.S.No.352/1986 have given quietus to the matter. It is further submitted, when the dispute regarding the Promissory Note has reached the finality in the earlier litigation, the same cannot be re-agitated by filing another Application. Submitting that the fraud committed upon the Court is not elaborated in the plaint and that the suit is not maintainable, the learned counsel further submitted that the present suit in reagitating the earlier contested matter is clearly barred by Res Judicata. It is further submitted that such re-litigation is nothing but abuse of process of the court, which needs to be halted. 9. Upon consideration of the submissions of both sides, the available materials and grounds urged in the Memorandum of Revision, in my considered view, the following points arise for determination in this Revision. (1) When the dispute regarding the validity of execution of the Promissory Note has reached finality in the earlier contested proceedings in O.S.No.352/1986 and A.S.No.38/1987, can the Revision Petitioner / Plaintiff re-agitate the same raising the same point by filing another suit under section 44 of the Indian Evidence Act ? K.K.Swaminathan vs Srinivasagam on 10 October, 2003 Indian Kanoon - http://indiankanoon.org/doc/601533/ 3 (2) Can the contested decree in O.S.No.352/1986, confirmed by the First Appellate Court, be allowed to be re-agitated on the ground that it was obtained fraudulently by the use of a false document ? (3) Is any fraud as contemplated under Section 44 of the Indian Evidence Act is made out ? 10. We may straightaway point out that the present Application I.A.98/2001 and the suit O.S.No.2473/1996 are nothing but re-agitating the entire points, which have already reached finality in the earlier round of litigation both on (i) adjudication upon the suit ; (ii) adjudication of the Application. O.S.No.352/1986 was determined after full trial. Revision Petitioner / Plaintiff herein contested the said suit raising the same point that the Promissory Note dated 24.11.198 3 is a forged and fabricated one. The Courts have gone into that question and that question was adjudicated upon and the suit O.S.No.352/1 986 was decreed after full contest. In that suit, Revision Petitioner herein had filed I.A.No.110/1987 for sending the Promissory Note to Handwriting Expert and the same was dismissed; against which, Revision Petitioner / Plaintiff has not preferred any Revision. Thus, in the suit O.S.No.352/1986, genuineness or otherwise of the Promissory note was directly and substantially in issue, which was adjudicated upon and determined. 11. The validity or genuineness of execution of the Promissory Note was directly and substantially in issue in O.S.No.352/1986. The contested decree of the trial court was confirmed by the First Appellate Court in A.S.No.38/1987. The Second Appeal preferred against the concurrent findings of the courts below was dismissed in the admission stage. Now, the Revision Petitioner / Plaintiff has sought to reopen the entire issue, which has reached the finality in the earlier round of litigation. 12. In I.A.No.98/2001, Revision Petitioner has sought for the document to be examined by the Handwriting Expert in the presence of the Court Officer. As discussed earlier, Courts of competent jurisdiction have already considered the validity and genuineness of execution of the Promissory Note and adjudicated and conclusively determined the same. The contention of the Revision Petitioner that the Promissory Note is a forged and fraudulent one is not well substantiated even by the plaint averments. In para (3) of the plaint, Revision Petitioner has stated that his signatures were obtained in four stamped blank forms and utilising the same, Respondent / Defendant had concocted the Promissory Note. While in para (4) of the plaint, the Revision Petitioner has averred the execution of the Promissory Note and that he had repaid the same and the Respondent has not returned the Promissory Note. On the execution of the Promissory Note, the pleadings in the plaint are only self contradictory. 13. The present suit O.S.2473/1996 is filed for the relief of " Cancellation of the decree in O.S.No.352/1986 as having been obtained fraudulently by the use of a false document". Revision Petitioner alleges fraud mainly on the ground that the decree was obtained on the basis of the Promissory Note, which, according to him, is a concocted false document. As noted earlier, admitting borrowing of Rs.3,000/= from the Respondent and execution of a Promissory Note for Rs.3,000/= in favour of the Respondent, in para (3) of the plaint, Revision Petitioner himself had admitted that his signatures were obtained in four blank papers apart from the Promissory Note. Para (4) of the Plaint refers to the payment of the debt totalling Rs.7,600/= and that the Respondent K.K.Swaminathan vs Srinivasagam on 10 October, 2003 Indian Kanoon - http://indiankanoon.org/doc/601533/ 4 has not returned the Promissory Note. From the plaint averments, two things emerge- (i) borrowal of the amount and execution of the Promissory Note; and (ii) that the Revision Petitioner himself had re-paid the amount and Respondent had not returned the Promissory Note. The above defence was raised in O.S.No.352/1986, which was finally adjudicated rejecting the defence, and the suit was decreed confirmed by the Appellate Court. 14. It passes one's comprehension as to how could the contested decree confirmed by the Appellate Court be sought to be set aside on the ground of forgery or fraud played upon the Court. Section 17 of the Indian Contract Act defines 'fraud' as under: "Fraud" means and includes any of the following acts committed by a party to a contract, or with his connivance, or by his agents, with intent to deceive another party thereto or his agent, or to induce him to enter into the contract: (1) the suggestion as a fact, of that which is not true, by one who does not believe it to be true; (2) the active concealment of a fact by one having knowledge or belief of the fact; (3) a promise made without any intention of performing it; (4) any other act fitted to deceive; (5) any such act or omission as the law specially declares to be fraudulent". 15. No such instance of fraud is averred or proved by the Revision Petitioner. In the plaint, the Revision Petitioner has not elaborated the details of fraud played upon the Court. In the cause of action, the details of fraud not shown making out a case of fraud. The Revision Petitioner has also not stated as to when and how he detected the fraud played upon the Court in obtaining the decree in O.S.No.352/19 86. If really any deception was played upon the Court, the same could have been brought to the notice of the Court either in the First Appellate Court or in the Second Appellate stage. The learned counsel for the Revision Petitioner has submitted that the Revision Petitioner has filed Copy Application for I.A.No.110/1987 and that the same was returned as no such petition was filed in O.S.352/1986. In the impugned order, the learned District Munsif has clearly referred to the earlier Application in I.A.No.110/1987 and the order passed thereon. While so, the return on the Copy application as to the nonavailability of the Petition in I.A.110/1987 may not be correct. Even if that be so, suitable direction could be issued to the concerned court to take appropriate action on the non-availability of the petition and orders in I.A.110/1987. That need not in any way detain us from considering the matter. In my view, as against the contested decree, confirmed by the First Appellate Court, no suit could be filed under section 44 of Indian Evidence Act for cancellation of K.K.Swaminathan vs Srinivasagam on 10 October, 2003 Indian Kanoon - http://indiankanoon.org/doc/601533/ 5 the decree. 16. Section 44 of the Indian Evidence Act lays down "when one of the parties to a suit or other proceeding tenders, or has put in evidence, a judgment, order or decree under ss 40, 41 and 42 , it is open to the party against whom it is offered to avoid its effect on any of the three grounds specified in the section, without having it set aside, viz., (a) the incompetency or want of jurisdiction of the court by which the decree was passed; (b) that the judgment was obtained through fraud; or 8 that it was obtained by collusion" 17. Sections 40 - 44 deal with the relevancy of judgments of courts of justice. Section 40 enacts that the existence of any judgment, order or decree which by the law, that is, by the provisions of the Civil Procedure Code or Criminal Procedure code (i.e. judgments in support of a plea of Res Judicata, in civil case or of autre fois acquit or autre fois convict, in criminal cases, constitutes Res Judicata, that is, bars a second suit or trial is a relevant fact. 18. Section 41 deals with what is usually called judgments in rem, that is, judgments which are conclusive not only against parties to them, but against all the world. The section does not however, give any definition of the term judgment in rem, but only enumerates four classes of judgments. 19. Section 42 deals with the admissibility of judgments relating to matters of public nature, though not between the parties or privies, without making any distinction between the words "public" and " general". 20. Section 43 says that judgments other than those mentioned in ss 40-42 are irrelevant unless the existence of such judgments is a fact in issue or is relevant under some other provisions of the Act, eg.under ss 8,11,13,54 Expl. (2) & C. 21. Section 44 says that when any judgment, order or decree has been received under ss 40-42, the adverse party may show that it was obtained by fraud or was delivered by a court without jurisdiction. Judgments vitiated by fraud can therefore be challenged under s 44 without brining a suit to set them aside. 22. By a careful reading of Sections 40 - 44 of Indian Evidence Act, the first essential requirement is that the judgment ought to have been tendered or put in evidence under sections 40, 41, 42, 43 of Evidence Act. In the case in hand, the judgment in O.S.352/1986 is not tendered in evidence as contemplated under section 44, in any of the situations arising under sections 40 to 42. The suit was decreed after full contest and the same was produced only in execution of the decree. 23. Fraud or collusion as contemplated under S.44: K.K.Swaminathan vs Srinivasagam on 10 October, 2003 Indian Kanoon - http://indiankanoon.org/doc/601533/ 6 The nature and kind of fraud contemplated under section 44 must be actual and positive fraud. The decree must have been fraudulently obtained keeping the adversary and the Court in ignorance of the real facts of the case. In my view, fraud as laid down in section 44 refers to the fraud practised against the court by anyone of the parties or it may also imply a fraud against any parties to the proceedings. In a case of contested decree fought out till the Appellate Court, where is the question of fraud, that too, actual positive fraud played against the Revision Petitioner ? Absolutely there could be none. 24. What is contemplated under Section 44 of Indian Evidence Act is "actual positive fraud". In this regard, we may usefully refer to the following passage in SARKAR'S LAW OF EVIDENCE, 14TH EDITION Page No.763: "It is now well established that a decree cannot be set aside as fraudulent on the allegation that it was obtained by perjured evidence, or that the claim was false. It must be shown that Plaintiff was prevented by some fraud or contrivance from appearing and placing his case before the court, i.e.the alleged fraud must be an extrinsic act. JAMES L.J, in FLOWER ..vs.. LLOYD, LR 10 Ch D 327, observed as follows:- "Where is litigation to end, if a judgment obtained in an action fought out adversely between two litigants sui juris and at arm's length could be set aside by a fresh action on the ground that perjury had been committed in the first action or that false answers had been given to interrogatories, or a misleading production of documents, or of a machine, or of a process had been given? There are hundreds of actions tried every year in which the evidence is irreconcilably conflicting, and must be on one side or other wilfully and corruptly perjured. In this case, if the plaintiffs had sustained on this appeal the judgment in their favour, the present defendants in their turn, might bring a fresh action to set aside that judgment on the ground of perjury of the principal witness and subornation of perjury; and so the parties might go on alternately ad infinitum....... Perjuries, falsehoods, frauds, when detected must be punished and punished severely, but in their desire to prevent parties litigant from obtaining any benefit from such foul means, the Court must not forget the evils which may arise from opening such new sources of litigation, amongst such evils not the least being that it would be certain to multiply indefinitely the mass of those every perjuries, falsehoods and frauds" ( Emphasis added). 25. In the Courts of Law, thousands of actions / suits are tried every day / every month. On the issues and the evidence let in, several matters are adjudicated upon and decrees are passed. If all those unsuccessful litigants are to allege that the judgment and decree passed against them is fraudulently obtained on forged document or on perjury, there would be no finality of litigation. If such suits are allowed to be filed, the court proceeding to hear the same would amount to Subversion of Judicial System by the onslaught from within the system. Unless such actions are stopped and sternly dealt with, a time would come where almost all the unsuccessful litigants would come to the Court alleging that the decree was obtained against them fraudulently. The fraud contemplated under section 44 is entirely different. The actual positive fraud contemplated under Sec.44 is not at all established. The decree in O.S.352/1986 earlier fought out by the parties is not vitiated by fraud as contemplated under section 44 of Indian Evidence Act. Not only the suit is barred by Res Judicata but the suit O.S.2473/1996 is sheer abuse of process of the Court. K.K.Swaminathan vs Srinivasagam on 10 October, 2003 Indian Kanoon - http://indiankanoon.org/doc/601533/ 7 26. The learned counsel for the Revision Petitioner has relied upon AIR 1995 SC 1440 in support of his contention that it is always open to the Plaintiff to invoke section 44 of Evidence Act to set aside the earlier decree even if it is a contested one. AIR 1995 SC 1440 refers to the suit filed by the minor plaintiff represented by the next friend. In that case, inference of fraud or collusion was drawn on account of the proved negligence or gross negligence of the next friend and that it was held "it would be permissible for a minor to avoid judgment or decree passed in the earlier proceedings by invoking section 44". The factual situation arising in that case is entirely on a different footing from the case in hand, where the Plaintiff himself was a party and was strongly agitating the suit O.S.352/1986. 27. One of the most abuse of process of the court is re-litigation. It is an abuse of process of the court and contrary to justice to re-litigate the same issue, which has already been tried and decided earlier against him. If the same issue is sought to be re-agitated by frivolous and vexatious suits, it is not as if the Court is powerless to stop the proceedings when it is brought to its notice. O.S.2473 /1996 is sheer abuse of process of the court re-agitating the same issue, in my view, should not be allowed to continue. 28. Contending that the suit could be filed invoking Section 44 since no opportunity was available to the Plaintiff in the earlier proceedings to prove to the Court that the Promissory Note is a false and concocted document, further contention of the Plaintiff that such an opportunity was not available to the Plaintiff since I.A.110/1987 was dismissed without considering on merits. From the available materials, the nature of disposal of I.A.110/1987 is not known. Without accepting, for the sake of arguments, even if we assume that no opportunity was afforded to the Plaintiff in I.A.110/1987, the same could have been very well brought to the notice of the First Appellate Court and necessary steps could have been taken to substantiate that contention. If not in the First Appeal, at least in the Second Appellate stage, the same could have been brought to the notice of the court. In fact, such an opportunity was not afforded to the Plaintiff is nowhere alleged in the present plaint O.S.2473/1996 also. 29. The present suit O.S.2473/1996 was filed with the only intention to re-agitate the same issues, which were substantially in issue in O.S.352/1986. Even the present Application I.A.98/2001 was filed only when the evidence of Respondent / Defendant was completed. From the stage in which I.A.98/2001 was filed and from the chequered career of the litigation, it is obvious that the only intention of Revision Petitioner / Plaintiff seems to be that would not allow the Respondent to enjoy the fruits of the decree. The present suit is not only hopelessly barred by Res Judicata but also amounts to Subversion of Judicial System. 30. In cases of this nature, it is not as if the Court is powerless or its hands are tied merely because the matter comes to the notice of the court in the revisional Jurisdiction under Sec.115 CPC. The investiture of power u/s.115 CPC is of superintendence and visitorial....Not fettered to deal with such situations. Where there is clear abuse of process of court, the Court has to view such conduct seriously and the same is to be halted to save precious time of the public and the court being wasted. In the recent decision of the Supreme Court reported in K.K.Modi ..vs.. K.N.Modi (1998) 3 SCC 573 elaborately considering the abuse of process of the Court, the Supreme Court has held that the Court K.K.Swaminathan vs Srinivasagam on 10 October, 2003 Indian Kanoon - http://indiankanoon.org/doc/601533/ 8 has power to stop such frivolous and vexatious proceedings. The Supreme Court has only cautioned that such power is to be exercised with circumspection. It is necessary to refer to the observations of the Supreme Court, which are very much relevant for our purpose. "42.Under Order 6 Rule 16, the Court may, at any state of the proceeding, Order to be struck out, inter alia, any matter in any pleading which is otherwise an abuse of the process of the Court. Mulla in his treatise on the Code of Civil Procedure, (15th Edn., Vol.II.P.1179, note 7) has stated that power under clause 8 of Order 6, Rule 15, of the Code is confined to cases where the abuse of the process of the Court is manifest from the pleadings; and that this power is unlike the power under Section 151 whereunder Courts have inherent power to strike out pleadings or to stay or dismiss proceedings which are an abuse of their process. In the present case the High Court has held the suit to be an abuse of the process of the Court on the basis of what is stated in the plaint. 43. The Supreme Court Practice 1995 published by Sweet & Maxwell in paragraphs 18/19/33 (p.344) explains the phrase "abuse of the process of the Court" thus: This term connotes that the process of the Court must be used bona fide and properly and must not be abused. The Court will prevent improper use of its machinery and will in a proper case, summarily prevent its machinery from being used as a means of vexation and oppression in the process of litigation....The categories of conduct rendering a claim frivolous, vexatious or an abuse of process are not closed but depend on all the relevant circumstances. And for this purpose considerations of public policy and the interests of justice may be very material". 44. One of the examples as an abuse of the process of the Court is relitigation. It is an abuse of the process of the Court and contrary to justice and public policy for a party to relitigate the same issue which has already been tried and decided earlier against him. The reagitation may or may not be barred as Res Judicata. But if the same issue is sought to be reagitated, it also amounts to an abuse of the process of the Court. A proceeding being filed for a collateral purpose, or a spurious claim being made in litigation may also in a given set of facts amount to an abuse of the process of the Court. Frivolous or vexatious proceedings may also amount to an abuse of the process of the Court especially where the proceedings are absolutely groundless. The Court then has the power to stop such proceedings summarily and prevent the time of the public and the Court from being wasted. Undoubtedly, it is a matter of the Court's discretion that has to be exercised with circumspection. It is a jurisdiction which should be sparingly exercised only in special cases. The Court should also be satisfied that there is no change of the suit succeeding. 45. In the case of Greenhalgh ..vs.. Mallard the Court had to consider different proceedings on the same cause of action for conspiracy, but supported by different averments. The Court held that if the plaintiff has chosen to put his case in one way, he cannot thereafter bring the same transaction before the Court, put his case in another way and say that he is relying on a new cause of action. In such circumstances he can be met with the plea of Res Judicata or the statement or plaint may be struck out on the ground that the action is frivolous and vexatious and an abuse of the process of the Court. K.K.Swaminathan vs Srinivasagam on 10 October, 2003 Indian Kanoon - http://indiankanoon.org/doc/601533/ 9 46. In Mellkenny ..vs.. Chief Constable of West Midlands Police Force the Court of appeal in England struck out the pleading on the ground that the action was in abuse of the process of the Court since it raised an issue identical to that which had been finally determined at the plaintiffs' earlier criminal trial. The Court said even when it is not possible to strike out the plaint on the ground of issue estoppel, the action can be struck out as an abuse of the process of the Court because it is an abuse for a party to relitigate a question or issue which has already been decided against him even though the other party cannot satisfy the strict rule of Res Judicata or the requirement of issue estoppel". In my view, the above observation of the Supreme Court squarely applies to the case in hand. I find that in the interest of the System, it is just and necessary that the suit O.S.2473/1996 is to be ordered to be struck off. 31. With a view to prevent the Decree Holder from enjoying the fruits by taking delivery of possession, placing reliance upon (1998)3 SCC 573 S.S.SUBRAMANI, J., in 1999-2 L.W.781 directed the executing court to issue suitable direction to the police assistance without even waiting for any formal application. The learned single Judge held, "Dehors Order 23, on the ground of public policy and for administration of justice, such repeated attempts by litigant to thwart execution of decree and attempt to reagitate the same matter should be prevented". 32. In the case reported in Smt.Patasibal and others ..vs.. Ratanlal (JT (1990) 3 SC 68), the Supreme Court has held thus:- "The trial should not proceed when there is no controversial issue but the trial Court failed to perform its duty and proceeded to issue summons without carefully reading the plaint. Since the plaint suffers from that fatal defect, the mere issuance of summons by the trial court did not require that the trial should proceed even when no triable issue is shown to arise; permitting the continuance of such a suit is tantamount to licensing frivolous and vexatious litigation, which cannot be done. The Supreme Court has also held that it is not necessary to adopt the technical course of directing the trial Court to make the consequential order of rejecting the plaint".(Emphasis added) Thus, in the case in hand, to avoid any further delay in the conclusion of the vexatious suit, the only practical course would be to order the plaint in O.S.2473/1996 to be struck off. 33. Be it under Article 227 of the Constitution of India or under section 115 CPC, the High Court has general supervisory jurisdiction. That supervisory revisional jurisdiction of the High Court is the residuary jurisdiction conferred on the High Court. Thus, exercising the supervisory jurisdiction conferred on the High Court under section 115 CPC, it is just and necessary that the plaint in O.S.2473/1996 to be ordered to be struck off. In the circumstances of the case, it is also necessary to direct the Revision Petitioner to pay the costs of the suit to the Respondent. 34. For the reasons stated above, O.S.2473/1996 on the file of II Additional District Munsif Court, Coimbatore is ordered to be struck off. Resultantly, O.S.2473/1996 stands dismissed. Revision Petitioner / Plaintiff is directed to pay the suit costs to the Respondent. K.K.Swaminathan vs Srinivasagam on 10 October, 2003 Indian Kanoon - http://indiankanoon.org/doc/601533/ 10 35. Resultantly, this Revision Petition is also dismissed. There is no order as to costs. Revision Petitioner / Plaintiff is directed to pay the suit costs to the Respondent / Defendant. Index: Yes. Internet: Yes. gl To The II Additional District Munsif, Coimbatore.  K.K.Swaminathan vs Srinivasagam on 10 October, 2003 Indian Kanoon - http://indiankanoon.org/doc/601533/ 11

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