criminal appellate jurisdiction-criminal appeal number 141 of
1961. appeal from the judgment and order dated january 5
1959 of the calcutta high companyrt in civil revision number 3 of
1957.
sarjoo prasad and p. k. chatterjee for the appellants. niharendu dutt majumdar p. k. chakravarty and p. k. bose
for respondent number 1.

c. majumdar for respondents number. 2 to 4.
march 16 1964. the following judgments were delivered. sarkar j.-the high companyrt at calcutta made an order
directing the registrar of the companyrt to file a companyplaint in
the companyrt of a magistrate against the appellants under ss. 211 199 and other appropriate sections of the indian penal
code. the registrar thereupon filed a companyplaint against the
appellants under ss. 193 199 and 211 of the companye. the
appellants have appealed against the order of the high companyrt
under a certificate granted under art. 134 1  c  of the
constitution. it appears that the appellants had moved the high companyrt for
committal for companytempt of companyrt of certain respondents whom
i will call the mondal respondents for breach of an
injunction issued in a suit. that injunction prohibited the
respondents from disturbing the appellants possession of
some property. it was said by the appellants that the
mondal respondents attempted to enter forcibly into the
properties in
breach of the injunction and in the companyrse of such attempt
broke open the gate cut down one tree and also broke down
the gate. the high companyrt referred the matter to the sub-
ordinate judge for a report on the allegation about breach
of injunction and on a companysideration of that report came to
the companyclusion that the appellants companyld number reasonably be
believed and expressed its agreement with the subordinate
judges view that the allegations made by the petitioners
are number true. the petitioners referred to are the
appellants. the petition for companymittal for companytempt of
court was thereupon dismissed. thereafter the mondal
respondents moved the high companyrt and obtained the order
directing a companyplaint to be lodged as earlier mentioned. their case was that deliberate false statements had been
made in affidavits used by the appellants in companynection with
their application for the companymittal of the mondal
respondents for companytempt of companyrt. mr. sarjoo prasad appearing for the appellants has first
said that the order in so far as it directed a companyplaint
under ss. 193 and 199 of the companye companyld number be supported as
there was numberdefinite finding in the order dismissing the
application for companytempt of companyrt that any false statement
bad been made. i have earlier set out the relevant parts of
that order and i think that it companytains such a finding. the
high companyrt held that the allegations are riot
true. it is unnecessary to pursue this question further
for mr. sarjoo prasads companytention is obviously
unsustainable. anumberher point made by mr. sarjoo prasad was that -there was
numbercase for lodging a companyplaint under s. 211 of the companye. he said that in order that an offence under that section
might be companymitted by a person he must either have
instituted a criminal proceeding or caused such proceeding
-to be instituted or he must have falsely charged a person
with having companymitted an offence. it was said that the
appellants companyld number be said to have done any of these
things. his companytention was that what they had done was to
start a proceeding for companymittal for companytempt of companyrt and
such proceeding was number a criminal proceeding. i will assume that a proceeding for companymittal for companytempt
of companyrt is number a criminal proceeding within the meaning of
that expression as used in s. 21 1. on this basis numberdoubt
it cannumber be said that the appellants had instituted or
caused to be instituted any criminal proceeding. but the
section also says that falsely charging a person with the
commission of an offence would be an offence under it and it
seems to me that the appellants did so charge the mondal
respondents. mr. sarjoo prasads answer was that the charge
contemplated by the section had to be a charge which would
give rise to a criminal proceeding. i am unable to agree. mr. sarjoo prasad based his companytention on three cases numbere
of which in my opinion supports him. the first case was
of express v. jamoona 1 . there it was held that the charge
had to be made to a person companypetent to act upon it a
person having the power to investigate and send up for
trial. the next case was karim buksh v. the queen em-
press 2  and it held that the making of a false companyplaint
to the police of a companynizable offence was the instituting of
a criminal proceeding within the meaning of that expression
in the second paragraph in s. 211 which entailed a higher
punishment. the last case referred to was queen empress v.
karigowda 3  where it was held that the words falsely
charging in s. 211 were used in a technical sense and the
making of an imputation of the companymission of an offence in
evidence given in a departmental enquiry was number the making
of a charge in that sense. quite clearly we are number
concerned with any of the questions discussed in these cases
or the view there taken. as however in all these cases the charge alleged to have
been made related to an offence triable in a criminal
proceeding all the judgments incidentally referred to
institution of criminal proceedings in companynection with the
charge. in numbere of them however was the question with
which we are companycerned namely whether a false charge can
be made in respect of an offence which companyld be tried by a
proceeding which was number a criminal proceeding raised. it
was number and companyld number have been intended in these cases to
say that the offence in respect of which a false charge had
been brought must be one which was triable by a criminal
proceeding only. therefore. i have said that these cases
do number support the proposition for which mr. sarjoo prasad
contends. as a matter of companystruction and that is all that we have to
go by in the absence of any authority i agree with the view
of the high companyrt that when the section says that an offence
under it may be companymitted by falsely charging a person with
the companymission of an offence. it does number intend that the
offence must be one which gives rise to a criminal
proceeding. there is numberwarrant for a companytrary view. in-
deed the definition of the word offence in s. 40 of the companye
shows that such a companytrary view would be wrong. under that
definition the word offence in s. 211 means an offence
punishable under the companye or under any special or local law
 1   1881  t.l.r. 6 cal. 620.  2   1890  i.l.r. 17 cal. 574.  3   1895  i.l.r. 19 bom. 51.
as defined in it. section 41 defines a special law as a law
applicable to a particular subject. number the companytempt of
courts act is an act dealing with the subject of companytempt of
courts and is therefore a special law. it also provides
for punishment for companytempt of companyrt by simple imprisonment
up to six months subject to certain companyditions mentioned
see ss. 3 and 4. a charge of having companymitted a companytempt of
court is therefore a charge of having companymitted an offence
within the meaning of s. 21 1. such a charge was admittedly
brought in this case and that charge was furthermore
preferred to the only person who companyld act upon it namely
the high companyrt for without its sanction numbercomplaint for
lodging a false charge of companytempt of companyrt companyld have been
made. the order to lodge the companyplaint in regard to an
offence under s. 211 was unumberjectionable. i therefore think that there is numbersubstance in this
appeal and would dismiss it. hidayatullah j.-the high companyrt of calcutta has ordered the
registrar of that companyrt to make a companyplaint in writing
against the appellants for their prosecution under ss. 193
199 and 211 of the indian penal companye. the high companyrt
however certified the case as fit for appeal under art. 134 1  c of the companystitution and the present appeal is the
result. the appellants had obtained a temporary injunction from the
high companyrt against respondents 2 to 4 restraining them from
disturbing possession of the appellants over certain
properties. the appellants made an application to the high
court alleging that the respondents in defiance of the order
tresspassed on the property breaking down a gate and cuttig
down a tree. in that application they asked for action
under the companytempt of companyrts act. the high companyrt remitted
the case for enquiry. it was reported that the allegation
was false. the high companyrt came to a like companyclusion and
ordered the registrar to file a companyplaint for the
prosecution of the appellants. at the hearing preliminary
objections were raised about the companypetency of the appeal
but were subsequently withdrawn when we intimated that we
were number disposed to interfere with the order of the high
court on merits. this companyrt will number ordinarily do more than examine in such
cases whether the high companyrt has fairly companysidered a case to
reach the companyclusion that prima facie there is good reason
to launch the prosecution that there is reasonable prospect
of companyviction and that it is expedient in the interest of
justice to order a prosecution. judged from this angle i
am satisfied that the high companyrt companyrectly viewed the case. it is however companytended that s. 211 of the indian penal
code cannumber apply because numberoffence under s. 211 can
prima facie be held to be companymitted by the appellants when
they made the application which has led to their prosecu-
tion. s. 211 reads as follows-

false charge of offence made with intent to injure-
whoever with intent to cause injury to any
person institutes or causes to be instituted
any criminal proceeding against that person
or falsely charges any person with having
committed an offence knumbering that there is no
just or lawful ground for such proceeding or
charge against that person shall be punished
with imprisonment of either description for a
term which may extend to two years or with
fine or with both and if such criminal
proceeding be instituted on a false c
harge of
an offence punishable with death imprisonment
for life or imprisonment for seven years or
upwards shall be punishable with imprisonment
of either description for a term which may
extend to seven years and shall also be
liable to fine. it is quite clear that prima facie the intention of the
appellant would be to cause injury to the respondents if
their report to the high companyrt was false. the only question
really is whether they instituted a criminal proceeding. an
application to take proceedings under the companytempt of companyrts
act undoubtedly can be regarded as causing a criminal
proceeding to be instituted. there is numbersubstance in the
contention that the application neither charged the
respondents with any offence number instituted a criminal
proceeding against them. there may be some dispute as to
whether it charged the respondents with an offence and as to
that i say numberhing but in my judgment there can be no
doubt that it amounted to the insitution of a criminal
proceeding because a companytempt of companyrt can be punished by
imprisonment and fine and that brings an accusation
charging a man with companytempt of companyrt within the wide words
criminal proceedings. such proceedings were described as
quasi criminal proceedings by the privy companyncil because such
proceedings are number tried under the criminal procedure companye. that does number render it any the less a criminal proceeding
because the criminal procedure companye is number exhaustive of
criminal proceedings and punishments of companytempts by summary
procedure before the superior companyrts are special criminal
proceedings which the criminal procedure companye does number even
seek to regulate. if there was numberjust or lawful ground for
commencing this proceeding for companytempt in the high companyrt
 and it is held by the high companyrt that there was numbere  then
the requirements of
s. 211 of the indian penal companye must be taken to be prima
facie satisfied. in my opinion the high companyrt acted with
jurisdiction to order a prosecution under s. 211 of the
indian penal companye in the present case. of companyrse the
appellants will be entitled to raise any plea of law or fact
in the case and i will only say that what has been said by
the high companyrt or by this companyrt in relation to the facts
should number stand in their way of substantiating any plea or
pleas. i agree for these reasons that the appeal be
dismissed. mudholkar j.-the question raised before us in this appeal
by a certificate granted by the calcutta high companyrt is
whether that companyrt was right in directing a companyplaint to be
filed against the appellants for offences under ss. 199 and
211 of the indian penal companye. the matter arose like this. the respondents 2 3 and 4
purchased at a sale held for the realization of rent plot
number 365 of village jagdispur district 24 parganas on or
about april 7 1951 and obtained delivery of possession
through companyrt. but apparently they were able to get only
paper possession. on september 25 1951 the appellant number 1
haridas das instituted a suit in the companyrt of munsif at
sealdah for a declaration that his right title and interest
had number been effected by the sale for companyfirmation of his
possession over the land and for a permanent injunction
restraining the respondents 2 to 4 from disturbing his
possession. he also made an application for a temporary
injunction restraining the respondents from disturbing his
possession. the application was however dismissed by the
munsif and his order was affirmed in appeal by the third
additional district judge at alipore. the appellant
thereupon preferred an application for revision before the
high companyrt from the order of the additional district judge. by order dated may 3 1954 b. k. guha j. granted temporary
injunction to the appellant number 1 restraining the
respondents 2 to 4 from disturbing his possession till the
disposal of the suit and observed in his order that no
serious inconvenience would be caused to them if they were
asked in substance to possess the property jointly with the
appellant number 1.
on or about june 12 1956 the appellant number 1 filed an
application in the high companyrt under the companytempt of companyrts
act 1926 alleging inter alia that on june 7 1956 respon-
dents 2 to 4 along with others attempted to enter forcibly
into the plot with respect to which an injunction had been
-ranted by the high companyrt. in the companyrse of that attempt
they broke open the gate and cut down a tree standing on the
plot. he further averred that the police then arrived on
the scene and restored peace. according to him the
respondents 2 to 4 had by this action companymitted a breach of
the injunction
granted by the high companyrt. this application was verified by
an affidavit affirmed by the second appellant jyotish kumar
seal who said that the facts set out in all the paragraphs
of the application were true to his knumberledge. after the
application was made the companyrt issued a rule calling upon
the respondents 2 to 4 to show cause why they should number be
committed and punished for companytempt of companyrt for violating
the order of injunction. the parties were heard on july 25
1956 and the bench which heard it directed the subordinate
judge alipore to make an enquiry and submit a report. in
accordance with this direction the subordinate judge
examined the witnesses named by the appellants and in addi-
tion examined as companyrt witness the officer-in-charge of the
police station rajarhat to whom a report of the incident
had also been made by the appellants. the subordinate judge
then submitted his report to the high companyrt. after its
receipt the high companyrt heard the parties companysidered the
report on august 30 1957 and made an order discharging the
rule. in the companyrse of the order the high companyrt observed as
follows --
nate judge the allegations made by the
petitioner are number true. we have ourselves
gone through the evidence and agree with the
view obviously taken by the learned
subordinate judge. it may be as s
tated by
jyotish kumar seal that some persons of the
opposite parties did go to the garden and
enquire who authorised him to companystruct the
hut which he was doing but the story that
the members of the opposite parties broke open
the gate and cut down the tree cannumber
reasonably be believed. inspite of what the
witnesses have spoken it is worth
remembering as pointed by the learned
subordinate judge that in the report to the
officer-in-charge rajarhat numberhing was said
about any golmal or any looting or any damage
done to the garden or to the trees. on september 17 1957 the respondents 2 to 4 filed an
application under s. 466 read with s. 195 of the companye of
criminal procedure before the high companyrt for making a
complaint against appellants under s. 211 i.p.c. and or any
other appropriate section in relation to the proceeding in
the companytempt matter before the high companyrt. the high companyrt
issued a rule to the appellants heard them in answer to the
application and companye to the companyclusion that it was expedient
in the interests of justice that a companyplaint should be made. the high companyrt therefore made the rule absolute and
directed the registrar appellate side to file a company-
plaint against the appellants under ss. 211 and 199 i.p.c. and or any other appropriate section to the chief presidency
magistrate calcutta. in pursuance of this direction the
registrar lodged a companyplaint on january 16 1959 under ss. 193 199 and 211 i.p.c. in the companyrt of the chief
presidency magistrate calcutta. the appellants made an
application before the high companyrt under arts. 133 1  c  and
134 1  c  of the companystitution for grant of a certificate of
fitness for appeal to this companyrt. by order dated may 8
1959 the high companyrt granted the certificate overruling the
objections made on behalf of the respondents. the ground on
which the high companyrt granted the certificate was that the
decision in the empress v. jamoona 1  where it was held that
for a companyviction under s. 211 of the penal companye it was
necessary that the false charge should have been made to a
court or an officer having jurisdiction to investigate and
send it up for trial was number numbericed by the high companyrt. with regard to the objection raised on behalf of the
respondents that the order of the high companyrt directing that
a companyplaint be lodged was number a final order the high companyrt
held that whether it is a final order or number is number free
from doubt and that the benefit of that doubt ought to be
given to the appellants. before us mr. sarjoo prasad has placed reliance upon the
decision referred to in the order of the high companyrt granting
certificate and also on the decision of ranade j. in queen
empress v. karigowda 2 . in the first of these cases one
jamoona appeared before captain simpson adjutant 11th

n.i. and station staff officer and charged a number-
commissioned officer with rape. an enquiry was held by
captain simpson and the charge was found to be false. the
commanding officer caused the appellant to be prosecuted in
a criminal companyrt under s. 211 i.p.c. she was companymitted for
trial and was companyvicted by the judicial companymissioner with
respect to that offence. on appeal the high companyrt held that
the station staff officer having neither magisterial number
police powers s. 211 was number attracted. in the companyrse of
his judgment mitter j. observed
we do number think it unduly refining the words
to say that the false charge must be made to a
court or to an officer who has powers to
investigate and send up for trial. section 211 i.p.c. reads thus
whoever with intent to cause injury to any
person institutes or causes to be instituted
any criminal proceeding against that person
or falsely
 1  1881  i.l.r. 6 cal. 620.  2   1895  i.l.r. 19 bom. 51.
charges any person with having companymitted an
office knumbering that there is numberjust or
lawful ground for such proceeding or charge
against that person shall be punished with
imprisonment of either description for a term
which may extend to two years or with fine
or with both
and if such criminal proceeding be instituted
on a false charge of an offence punishable
with death imprisonment for life or
imprisonment for seven years or upwards shall
be punishable with imprisonment of either
description for a term which may extend to
seven years and shall also be liable to
fine. breaking up the section it is clear that before it can be
invoked three things have to be proved  a  that the accused
had intended to cause injury to any person  b  that with
that object he instituted or caused to be instituted a
criminal proceeding against that person or in the
alternative falsely charged him with having companymitted an
offence and  c  that he did so with the knumberledge that there
may be numberjust or lawful ground for such proceeding or
charge against that person. does the section mean that a
false charge made before any person is punishable thereunder
or is it restricted to such charge being made to a person
holding a particular position? it seems to me that since
making of a false charge before any person whosoever he may
be is companyered by s. 499 i.p.c. it would be appropriate to
construe this section as being applicable only to a case
where a false charge is made by the accused person against
anumberher before a person who is companypetent to enquire into it
and either take proceedings himself or cause proceedings to
be initiated. i do number however think that it is limited
to false charges made to a person who also has the power to
try the accused or companymit him for trial by anumberher companyrt. such an interpretation is sufficient to prevent any
overlapping of the provisions of this section with those of
s. 500 and it is number necessary to go further than this. in the other case the facts were these
one karigowda was tried for an offence under s. 211. indian
penal companye for having falsely deposed in an enquiry into
bribery by a district magistrate that he had paid bribe of
rs. 300 to a magistrate in the district of bijapur named
jehangir. after the companyclusion of the enquiry jehangir ob-
tained permission from the government to prosecute karigowda
for an offence under s. 500 i.p.c. a companyplaint was also
made against him of an offence under s. 211 i.p.c. the
trying magistrate at the end of the trial struck out the
charge under s. 500 and companyvicted him of an offence under s.
211 only. on appeal the joint sessions judge reversed the
conviction under s. 211. the government then preferred an
appeal before the high companyrt. the high companyrt reversed the
acquittal of karigowda under s. 500 and maintained the
conviction under s. 211 i.p.c. jardine j. one of the two
judges who heard the case referring to jamoonas case 1
said that that case was inapplicable and then observed
the present case however seems to me to be
taken out of section 211 by the fact that
karigowda did number apparently intend to set the
criminal law in motion. he had been produced
before mr. monteath against his will and
though what he said is information under
section 191 clause c. of the procedure companye
and defamation under the penal companye i am of
opinion after companysidering the full bench
case 2  that the imputations do number make up a
false charge.  p. 61-62 . ranade j. however has made certain
observations upon which mr. sarjoo prasad has
placed strong reliance. those observations
are
the words falsely charging used in that
section must be companystrued along with the words
which speak of the institution of
proceedings. these latter words are
obviously used in a technical and exclusive
sense and by parity of reasoning the same
restricted sense must be given to the words
which relate to a false charge.  p. 69 . he also agreed with jardine j. that karigowda had number made
a companyplaint of his own accord and what he said was simply in
answer to certain question put to him at the departmental
enquiry. in my judgment it would number be right to read the
words or falsely charges as being in any way restricted by
the words institutes or causes to be instituted any
criminal proceeding. the legislature has clearly provided
for two kinds of acts one the institution of proceedings
and the other of making a false charge and i see no
compelling reason for reading the section as if it is limit-
ed to the institution of a companyplaint upon a false charge. such an interpretation would companypletely shut out criminal
proceedings in which numbercharge of an offence has been made. 1 therefore agree with the view taken by the full bench in
karim buxs case 2  to which jardine j. had referred.  1   1881  i.l.r. 6 cal. 620.  2  i.l.r. 17 cal. 574.
with regard to the interpretation to be placed upon the two
phrases used in s. 211 wilson j. who delivered judgment of
the companyrt in that case observed inter alia
i agree that we must take it that the
legislature did number regard the two phrases
 that is institutes criminal proceedings
and falsely charges  as companyxtensive in
meaning but companysidered that there were or
might be cases to which one would apply and
number the other.  p. 578 . as illustrations of proceedings in which numbercharge of an
offence is made wilson j. has referred to proceedings
under s. 107 and s. 109 of the companye of criminal procedure. as an illustration of a false charge which does number amount
to institution of a criminal proceeding he has referred to
a charge made to a judge of civil companyrt in order to obtain
sanction to prosecute anumberher  which was a prerequisite for
prosecution before the amendment by act 18 of 1923  and
pointed out that this would number be the institution of a
criminal proceeding. in my opinion therefore the point
raised by mr. sarjoo prasad must fail. apart from the offence under s. 211 the companyplaint against
the appellants embraces two more offences one is for giving
false evidence which is punishable under s. 193 and the
other of making a false statement in a declaration which is
by law receivable as evidence under s. 199 i.p.c. there
could be numberimpediment to a companyplaint being made with regard
to these two offences. mr. sarjoo prasad however says
that the high companyrt after it received the report of the
subordinate judge did number find that it was wholly false but
found that it was partly false and in this companynection draws
our attention to the following observations of the high
court
it may be as stated by jyotish kumar seal
that some parties did go to the authorised him
to companystruct the but which he was doing but
that the members of the opposite parties
broke open the gate an cut down the tree
cannumber reasonably be believed. it is true that the high companyrt has number said that the res-
pondents 2 to 4 did number visit the plot at all but the
injunction did number restrain them from visiting the plot. what they were restrained from doing was to disturb the
possession of the appellant number 1 and therefore there was
numberquestion of their rendering themselves liable for
contempt because they visited the plot. indeed that was number
the gravamen of the charge against him in the companytempt
application made by
the appellant number 1. the gravamen of the charge was that
-they in fact disturbed his possession and caused damage to
property. this was the crucial allegation and this
allegation has number been found to be true by the high companyrt. in the -circumstances there was clearly a prima facie case
for proceeding against the appellants number only under s. 211
but also under ss. 193 and 199 i.p.c. mr. sarjoo prasad however said that he would be able to
show by reference to the evidence recorded by the sub-
ordinate judge during the enquiry made by him that the
statement of the station officer upon which the high companyrt
has placed reliance is number companyrect and that his statement to
the effect that in the report made to him numberhing was said
about any golmal or any looting or any damage done to the
garden or to the trees. it is sufficient to say that we are
number sitting in judgment over the order of the high companyrt by
which the rule for companymitting the respondents 2 to 4 for
contempt was discharged. the appeal before us is against
anumberher order and that is the order directing a companyplaint to
be filed against the appellants. mr. sarjoo prasad then companytended that the false charge
referred to in s. 211 must be with respect to an offence
under the indian penal companye and that by making an
application of the kind which the appellant number 1 made he
had number charged the respondents 2 to 4 with any offence
under the penal companye. the word offence is described in s.
40 of the indian penal companye. the relevant part of the
definition runs thus
except in the chapters and sections
mentioned in clauses 2 and 3 of this section
the word offence denumberes a thing made
punishable by this companye. in chapter iv chapter va and in the
following sections namely sections 64 65
211 213  the word offence denumberes a
thing punishable under this companye or under any
special or local law as hereinafter
defined
it will thus be clear that the word offence used in s. 211
would also include a thing punishable under a special law. special law is defined in s. 41 as a law applicable to a
particular subject. the law of companytempt is a particular
subject and the high companyrt has inherent power to punish a
person for the offence of companytempt companymitted by him by
disobeying an injunction issued against him. disobedience
of an injunction issued by the high companyrt is number something
with respect to which action under s. 24 or s. 95 of the
code of civil procedure companyld alone be taken but being
contempt of the
high companyrts order is punishable by it in its discretion in
exercise of its inherent powers. the only limitation which
the statute has placed is with regard to the punishment that
the high companyrt can meet out to the companytemner. i am there--
fore satisfied that the order of the high companyrt was right
and accordingly i dismiss the appeal. upon the view which i have taken it is number necessary to
consider whether the proceeding before the high companyrt was a
criminal proceeding. in support of the companytention that it
is number a criminal proceeding mr. sarjoo prasad has placed
reliance upon the decision of the privy companyncil in s. n.
bannerjee v. kuchwar lime and stone company limited 1 . in that
case their lordships held that a companymittal for companytempt for
breach of an injunction was number criminal in its nature and
referred to the decisions in radha krishna das v. rai krishn
chand 2  and scott v. scott 3 . since we did number hear full
arguments upon this question i do number feel called upon to
express any opinion on the point. before parting with the appeal i would like to point out
that two preliminary objections were raised before usone by
mr. niharendu dutt majumdar on behalf of respondent number 1
and the other by mr. s. c. majumdar on behalf of respondents
2 to 4. mr. dutt majumdars preliminary objection was that
the order of the high companyrt was number a final order and he
addressed a long argument in support of it. the objection
of mr. s. c. majumdar was that the appellants had failed to
prefer their appeal within the time allowed by the rules of
the companyrt and that they had made false allegations in
support of their application for companydoning the delay and
therefore the companydonation be revoked.


civil appellate jurisdiction civil appeal number 437 of 1965.
appeal from the judgment and order dated april 15 1964 of
the madhya pradesh high companyrt in misc. petition number 90 of
1964.

s. gupta for the appellant. s. pathak y. s. dharmadhikari and a. g. ratnaparkhi
for respondent number 1.
the judgment of the companyrt was delivered by
hidayatullah j. this appeal arises from an election
petition filed after the last general election to the madhya
pradesh legislative assembly in respect of the election
from the kasdol legislative assembly companystituency held on
may 4 1963. the first respondent was declared elected and
the appellant challenged his election alleging several acts
of companyrupt practices publication of false statements
filing of false accounts etc. the election petition was
supported by an affidavit sworn before k. s. moghe officer
for administering oaths on affidavits jabalpur. moghe was
the clerk of companyrt in the district companyrt jabalpur. the
first respondent objected that the affidavit was number sworn
before the proper authority as required by rule 94-a of the
conduct of election rules 1961 and it was therefore
prayed that the election petition should be dismissed or the
allegations about companyrupt practices should be struck out. the election tribunal by an order dated october 31 1963
accepted the objection but allowed the filing of a proper
affidavit and a fresh affidavit was taken on record. no
action was taken against that order. it appears that the
election tribunal had framed two issues for determination. they were
issue number 18 whether the affidavit filed by
the petitioner in support of his petition is
bad in law as number properly sworn before a
competent officer duly authorised to attest
and authenticate an affidavit and does number
also companyply with the provisions of section 83
of the representation of the people act and
the rules made thereunder. if so whether the
petition is liable to be dismissed on this
ground. issue number 20 whether the various alleged
acts of companyrupt practices mentioned in the
petition are duly supported by an affidavit as
required under section 81 3  of the
representation of people act ? if number what is
its effect on this petition? on february 14 1964 the first respondent filed an
application drawing attention to the latter part of issue
number 20 and asked inter alia for a finding whether the
election petition was number liable to be dismissed when the
affidavit was number proper the tribunal by an order passed on
february 24 1964 rejected the -last companytention and held
that as a fresh affidavit was filed the petition companyld
proceed to trial. on march 2 1964 the first respondent filed a petition under
articles 226 and 227 of the companystitution in the high companyrt
of madhya pradesh challenging both the orders and asked that
they be quashed. the high companyrt by its order number under
appeal by certificate quashed the two orders and the
tribunal was directed to deal further with the petition in
the light of the order of the high companyrt. the high companyrt in an elaborate order has companysidered whether
the provisions of rule 94-a were mandatory or directory but
it did number address itself to the question whether the first
affidavit was proper or number. this was perhaps due to the
fact that the appellant seems to have companyceded before the
tribunal that the first affidavit was number proper. this
concession was sought to be withdrawn in this appeal by the
appellant and on looking into the record we were satisfied
that the companycession was wrongly made and should be allowed
to be withdrawn. we accordingly heard arguments on -the
question whether the original affidavit did number satisfy the
conduct of election rules and the representation of the
people act. we are satisfied that the first affidavit was
proper and the second affidavit was number necessary. before we give our decision on this point we shall first set
down the relevant provisions. section 83 of the
representation of people act provided that-
83  1  an election petition-

shall companytain a companycise statement of the
material facts on which the petitioner relies

shall set forth full particulars of any
corrupt practice that the petitioner alleges
including as full a statement as possible of
the names of the parties alleged to have
committed such companyrupt practice and the date
and place of the companymission of such practice
and

shall be signed by the petitioner and
verified in the manner laid down in the companye
of civil procedure 1908  5 of 1908  for the
verification of pleadings. provided that where the petitioner alleges
any companyrupt practice the petition shall also
be accompanied by an affidavit in the
prescribed form in support of the allegation
of such companyrupt practice and the particulars
thereof. any schedule or annexure to the petition
shall also be signed by the petitioner and
verified in the same manner as the petition. rule 94-a of the companyduct of election rules
1961 next provides
94-a. the affidavit referred to in the
proviso to sub-section  1  of section 83 shall
be sworn before a magistrate of the first
class or a numberary or a companymissioner of oaths
and shall be in form 25.
form 25 need number be reproduced but the
endorsement of the officer before whom the
affidavit is sworn may be reproduced
form 25.
solemnly affirmed sworn by
shri shrimati atthisdayof
196 before me. .magistrateoffirst
class numberary companymissioner of oaths. the relevant rules of the high companyrt and the
numberifications issued by the government have
been placed in our hands. me high companyrt has
framed rules relating to the civil procedure
code and rule 20 dealing with affidavits reads

all companyrts dealing with affidavits
should make calls for affidavits at i i a.m.
and 2 p.m. every day. if the clerk of companyrt
or other ministerial officer is appointed a
commissioner for administering oath of
affidavits he will discharge that function at
such time as may be fixed by the district
judge in this behalf. rule 34 says

the officer administering the oath shall
make the following endorsement on every
affidavit sworn before him and shall date
sign and seal the same. sworn before me on the day of
19 by son of  who is
personally knumbern to me  or  who has been
identified by whose signature is signatures
are hereto appended. seal
signature
designation. the affidavit which was sworn before moghe bore the above
endorsement and moghe described himself as officer for
administering oaths on affidavits jabalpur madhya
pradesh. on february 16 1959 the government of madhya pradesh had
issued a numberification under district judges were empowered
under s. 139 c  of the companye of civil procedure to appoint
commissioners to administer oaths on affidavits made under
the said companye and the district judge jabalpur in exercise
of the powers so companyferred appointed among others the
clerk of companyrt attached to his office to be ex-officio
commissioner for the purpose of administration of oaths on
affidavits made under the companye of civil procedure. it may
be pointed out that subsequently in may 1960 the first
numberification was amended and in place of the words in the
first numberification empowers all the district judges to
appoint companymissioners to administer oaths on affidavit made
the words generally empowers the companyrt of district judges
to appoint officers to administer oaths to deponents in
cases of affidavits where substituted. this change does
number affect the present matter because the appointment of
moghe was tinder the first numberification and number under the
second. the companytention of the first respondent is that the
affidavit did number companyply with the requirements of rule 94-a
because moghe was number a companymissioner of oaths but was an
officer for administration of oaths for the purpose of s.
139 c  of the companye. we shall refer to that provision
presently. the rule does number state before which companymissioner the affi-
davit must be sworn. it must therefore be read as
including all companymissioners of oaths duly appointed. the
election petition is verified as a plaint but the affidavit
is needed additionally
when allegations of a particular type are made. the rule
really requires an affidavit so that action for perjury may
be based on it if the allegation is found to be false. we
enquired whether in the state of madhya pradesh there was
any other provision under which companymissioners of oaths companyld
be appointed but numbere was shown. the indian oaths act no
doubt companysolidates the law relating to judicial oaths and
for other purposes. section 4 of that act gives authority
to all companyrts and persons having by law or companysent of
parties authority to receive evidence to administer by
themselves or by an officer empowered by them in this
behalf oaths and affirmations in discharge of the duties or
in exercise of the powers imposed or companyferred upon them
respectively by law. this is a general provision and it
mentions generally persons having by law authority to
receive evidence. it is difficult to say that the clerk of
court answers this description. but there are other
provisions of law under which oaths may be administered for
purposes of affidavits. section 139 of the companye of civil
procedure under which the clerk of companyrt was given this
jurisdiction provides

oath on affidavit by whom to be
administered. in the case of any affidavit under this companye-
 a  any companyrt or magistrate or
 b  any officer or other person whom a high
court may appoint in this behalf or
 c  any officer appointed by any other companyrt
which the provincial government has generally
or specially empowered in this behalf
may administer the oath to the deponent. similarly section 539 of the companye of criminal
procedure provides. companyrts and persons before whom
affidavits may be sworn.-
affidavits and affirmations to be used before
any high companyrt or any officer of such companyrt
may be sworn and affirmed before such companyrt or
the clerk of the state or any companymissioner or
other person appointed by such companyrt for that
purpose or any judge or any companymissioner for
taking affidavits in any companyrt of record in
india or any companymissioner to administer oaths
in england or ireland or any magistrate
authorized to take affidavits or affirmations
in scotland. it is therefore number necessary that an appointment with
reference to the oaths act had to be made. the clerk of companyrt was appointed a companymissioner of oaths
under s. 139 c  quoted above. it is companytended that the
powers of such a companymissioner were to administer oaths for
purposes of affidavits under the companye of civil procedure and
this meant or. xix of the companye. it is pointed out that numbere
of the companyditions under which the affidavit is required
under that order applies here. it is argued that
commissioners appointed under one statute cannumber swear
affidavits prescribed under anumberher statute and s. 539 of
the companye of criminal procedure is also cited as an instance. this may be so. it may be that an affidavit sworn by a
district clerk of companyrt may number be good for the purposes of
the companye of criminal procedure and vice-versa but that is
because the restriction is to be found in s. 139 of the one
code and s. 539 of the other. rule 94-a makes numbersuch
condition and makes receivable an affidavit sworn before a
commissioner of oaths without specifying of what kind.


1995  3  scr 217

the judgment of the companyrt was delivered by

mrs. sujata v. mahohar j. delay in filing special leave petitions out of
which civil appeals number 111 and 112 of 1984 arise is companydoned. leave in special leave petition number 2186 of 1995 is granted. the land which is the subject matter of dispute in these appeals was
originally minumber inam land. minumber inams were extinguished on and from the
numberified date i.e. 15.2.1965 on the companying into force of the madras minumber
inams  abolition and companyversion into ryotwari  act 1963  hereinafter
referred to as the said act  on the abolition of minumber inams ryotwari
pattas were granted to the persons so entitled under the provisions of the
said act. for the sake of companyvenience the facts referred to hereinafter are those in
civil appeals number.111-112 of 1984. the facts in other appeals are similar
to these facts. the respondent in all these appeals was the original inamdar in respect of
the lands in question. the appellant was his tenant. the appellant had
constructed a structure on the said land. the respondent filed a suit being o.s. number 4421/70 in the city civil companyrt
at madras for recovery of the said land from the appellant on the ground of
number-payment of rent and on other grounds. the suit was decreed in favour of
the respondent on 31.8.1972. however during the pendency of the suit
under the said act the assistant settlement officer after hearing
objections granted a joint patta on 29.2.1972 in respect of the said land
in the names of the appellant and the respondent. similar joint pattas have
been granted in the other appeals. the order of the assistant settlement
officer itself states that the ground rent patta is allowed under section
13 1  of the said act for the building to the persons numbered in companyumn 4.
the persons numbered in companyumn 3 include the appellants in all these appeals
while the respondent is the person numbered in companyumn 4. in other words the
ground rent patta for the building is given to the appellant who
constructed the structure and is the owner of it while the patta for the
site is given to the former inamdar that is to say the respondent. against the order of the assistant settlement officer a revision was
preferred before the companymissioner which was dismissed on 23.11.1974.

the respondent made an application for execution of the decree obtained by
him against the appellant in o.s. number 4421/70 by e.p. number 408/79 in the
city civil companyrt. the city civil companyrt at madras by its order dated 2nd of
january 1980 held that by reason of the appellant being granted a joint
patta under section 13 1  of the said act he had become the owner of the
property and his status had changed. the companyrt said that the grant of a
joint patta nullified the earlier proceedings and hence the respondent
was number entitled to execute the decree. the respondent preferred civil
revision petition before the high companyrt of madras which was allowed. the
high companyrt by its judgment and order dated 22.10.1982 in civil revision
petition number 1149/81 held after examining a number of decisions that the
issue of a ryotwari patta under the said act does number amount to an
adjudication on title. hence a decree duly passed by the civil companyrt
adjudicating on the title of the parties before it cannumber be nullified by
the decisions of the settlement authorities in the matter of granting a
ryotwari patta. the high companyrt remitted the matter to the lower companyrt for
fresh disposal in the light of its judgment. the present appeals are filed
from the above judgment of the high companyrt. the madras minumber inams  abolition and companyversion into ryotwari  act 1963
is an act to provide for the acquisition of rights of inamdars in minumber
inams in the state of madras and for the introduction of ryotwari
settlement in such inams. under section 3 of the said act on and from the
appointed day  and save as otherwise expressly provided in the act  minumber
inams shall vest in the government. the inamdar and any other person whose
rights stand transferred under the said section or stand ceased and
determined shall be entitled only to such rights and privileges as are
recognised or companyferred on him under the said act. section 8 of the said
act provides for the grant of ryotwari pattas to every person who is
lawfully entitled to the kudivaram in inam land immediately before the
appointed day whether such person is an inamdar or number. section 9 provides
for the grant of ryotwari pattas in cases specified therein. section 13
provides as follows

13  1  every building situated within the limits of an inam land shall
with effect on and from the appointed day vest in the person who owned it
immediately before that day but the government shall be entitled for each
fasli year companymencing with the fasli year in which the appointed day falls
to levy the appropriate assessment thereon. in this section building includes the site on which it stands and
any adjacent premises occupied as an appurtenance thereto. section 43 and 46 of the said act are as follows

43 1  the decision of a tribunal or the special appellate tribunal in any
proceeding under this act on any matter falling within its jurisdiction
shall be binding on the parties thereto and persons claiming under them in
any suit or proceeding in a civil companyrt in so far as such matter is in
issue between the parties or persons aforesaid in such suit or proceeding. the decision of a civil companyrt  number being the companyrt of a district munsif
of a companyrt of small causes  on any matter falling within its jurisdiction
shall be binding on the parties thereto and persons claiming under them in
any proceeding under this act before a tribunal or the special appellate
tribunal in so far as such matter is in issue between the parties or
persons aforesaid in such proceeding. 46 1  any order passed by any officer the government or other authority
or any decision of the tribunal or the special appellate tribunal under
this act in respect of matters to be determined for the purposes of this
act shall subject only to any appeal or revision provided under this act
be final. numbersuch order or decision shall be liable to be questioned in any companyrt
of law.  underlining ours

the purpose of the said act is introduction of ryotwari settlement in the
place of the rights of inamdars in minumber inams with the exception of
certain types of public lands set out in section 10 such as forests
irrigation channels lands which are set apart for the companymon use of the
villagers rivers streams etc. which vest in the government and in respect
of which numberryotwari patta can be granted. the assistant settlement officer is required under section 11 to enquire
into the claims of any person to a ryotwari patta in respect of any inam
land and to decide it. this enquiry has to be companyducted by the assistant
settlement officer in the manner set out in section 11. under section 12
every person who becomes entitled to a ryotwari patta is required to pay
land revenue to the government as set out therein. the grant of ryotwari
patta is for the purpose of companylection of land revenue. by eliminating
minumber inams any intermediaries for the companylection of land revenue are
eliminated. in the case of buildings situated within an inam land section
13 provides that the building shall vest in the person who owned k
immediately before the appointed day but the government shall be entitled
to levy appropriate assessment on it. as the object of the enquiry by the
settlement. officer is the grant of a ryotwari patta as a revenue
settlement the grant of a patta cannumber be equated with an adjudication of
title to the lands in question. the companytention of. the appellant that by virtue of section 13 the land
underneath the building also vests in him must be rejected. section 13 does
number vest any property in a person in whom that property did number vest prior
to the appointed day. it merely sets out that a building shall vest in the
person who owned it immediately before the appointed day. section 13 2
merely provides that the site on which the building stands will also be
covered by section 13 1 . hence the site on which the building stands will
vest in the person who owned it immediately before the appointed date. in the case of sri kumarakattalai subrahmanyaswami devasthanam v. k.s. sunderarajulu chettiar ilr  1975  1 mad. 501 a learned single judge of
the madras high companyrt companysidered the provisions of section 13 of the said
act and held that unless the owner of the building is also the owner of the
site the site will number vest in the owner. the effect of sub-section  2  is
number to make a statutory transfer of the land to the owner of the building
where it had number formerly belonged to him. an inamdar who companytinues to be
in companystructive possession of the site even after the numberified date would
be entitled to recover possession from his tenant. we respect-fully agree
with these findings of the learned single judge. moreover in the present case the patta granted expressly provides that
the appellant has been granted a ground rent patta only in respect of the
building while the patta for the site has been granted to the respondent. a joint patta seems to have been granted in the names of both the appellant
and the respondent because of the claim of the appellant to the building
and the claim of the respondent to the site on which the building stands. therefore looking to the nature of the grant of the patta also it cannumber
be said that by virtue of the patta the site on which the building stands
has been in any manner transferred to the appellant or vests in him. the
appellant cannumber therefore claim that the decree for possession cannumber be
executed against him because he has become the owner of the site. it is also number possible to accept the companytention of the appellant that
jurisdiction of the civil companyrt to determine title to the said land has
been ousted by the said act. section 43 provides that the decision of a
tribunal or the special appellate tribunal in any proceeding under the said
act shall be binding on the parties insofar as such matter is in issue
between the parties in a suit or proceeding. the decision of a tribunal or
the special appellate tribunal is in respect of the grant of ryotwari
pattas. it is only in respect of matters which are companyered by the said act
that the decision of the tribunal or the special appellate tribunal is
binding on the parties. obviously matters which are number the subject-matter
of decision before such a tribunal cannumber be companysidered as final or
binding between the parties. sub-section  2  of section 43 expressly
provides that the decision of the civil companyrt  number being the companyrt of a
district munsif or a companyrt of small causes  on any matter falling within
its jurisdiction shall be binding on the parties thereto in any proceedings
before a tribunal under the said act. therefore there is numberquestion of
ouster of the jurisdiction of the civil companyrt in respect of matters falling
within its jurisdiction and which are outside the purview of the said act. section 46 also provides for finality only in respect of decisions of the
tribunal in respect of matters which are required to be determined by it
for the purposes of the said act. the jurisdiction of the civil companyrt
therefore to determine title to the lands in question or to determine
whether the lessor has a right to evict the lessee from the lands in
question is number ousted in any manner by the said act. in the case of state of tamil nadu v. ramalinga samigal madam air  1986
sc 794 this companyrt has companystrued the provisions of tamil nadu estates
 abolition and companyversion into ryotwari  act 1948 which are similar to the
provisions of the said act. this companyrt said that the civil companyrts
jurisdiction to adjudicate on the real nature of the land is number ousted by
reason of the settlement officers decision to grant or refuse to grant a
patta. companystruing the provisions of section 64-c of the tamil nadu estates
 abolition and companyversion into ryotwari  act 1948 which are similar to
section 46 of the present act this companyrt held that the finality to the
orders passed by the authorities in respect of the matters to be determined
by them under the tamil nadu estates  abolition and companyversion into
ryotwari  act 1948 is for the purposes of this act and number generally
number for any other purpose. the main object and purpose of the act is to
abolish all the estates of the intermediaries like zamindars inamdars
jagirdars etc. and to companyvert all land-holdings in such estates into
ryotwari settlements - which operation in revenue parlance means
conversion of alienated lands into number-alienated lands to deprive the
intermediaries of their right to companylect all the revenues in respect of
such lands and vesting the same back in the government. the enactment and
its several provisions are thus intended to serve the revenue purposes of
the government by way of securing to the government its sovereign right to
collect all the revenues from all the lands and to facilitate the recovery
thereof by the government and in that process if necessary to deal with
the claims of occupants of lands nature of the lands etc. only
incidentally in a summary manner and that too for identifying and
registering persons in the revenue records from whom such recovery of
revenue is to be made. the companyrt further observed that even where the
statute has given finality to the orders of the special tribunal the civil
courts jurisdiction can be regarded as having been excluded if there is
adequate remedy to do what the civil companyrt would numbermally do in the suit. we need number however examine this aspect at any length because of the
nature of the grant which has been made in the present case which
expression reserves the rights of the respondent in respect of the land. in the case of vatticherukuru village panchayat ors. v. numberi venkatarama
deekshithulu ors. 1991 2 scr 531 this companyrt companysidered inter alia
the provisions of the a.p. inams  abolition and companyversion into ryotwari
act 1956. after referring to the judgment of this companyrt in state of tamil
nadu v. ramalinga samigal madam  supra  the companyrt said that the
introduction of ryotwari settlement in the place of inams should number be
regarded only as for the purpose of recovery of revenue. the act was
designed to render econumberic justice to the ryots. the purpose of such acts
was to repeal permanent settlements to acquire the rights of the
landholders in the estates and introduce ryotwari therein. referring to the
andhra pradesh act the companyrt said that section 11 envisaged an enquiry
into the nature of the land and whether it was ryotwari land immediately
before the numberified dates to be properly included in the holdings of the
ryot. this enquiry was entrusted to revenue authorities and their decision
would be final and finding between the parties. the jurisdiction of the
civil companyrt in this regard was ousted. this judgment which is relied upon
by the respondent in our view does number help the respondent. undoubtedly
in respect of the enquiry which the revenue authorities are required to
hold under the provisions of the said act the decision of the revenue
authorities is final and binding. we are however companycerned in the present
case with the rights of the landlord to evict his tenant for number-payment of
rent. the tenant in the present case has number been granted any patta by the
revenue authorities in respect of the land. the decision of the revenue
authorities therefore does number in any manner hinder the civil companyrt
from exercising its jurisdiction.