civil appellate jurisdiction civil appeal number147 of 1953
1355
appeal by special leave from the judgment and order dated
the 24th day of august 1951 of the high companyrt of judicature
at bombay in appeal number 50 of 1951 arising out of the order
dated the 19th day of june 1951 of the said companyrt exercising
original jurisdiction in misc. number 143 of 1951.

c. setalvad attorney-general.for india  porus a. mehta
and p. g. gokhale with him  for the appellant. b. dadachanji m. v. jayakar and rajinder narain for
respondent number 2. 1955. march 4. the judgment of vivian bose venkatarama
ayyar and sinha jj. was delivered by sinha j. jagannadhadas
j. delivered a separate judgment. sinha j.-this is an appeal by special leave from the order
of the high companyrt of judicature at bombay dated the 24th
august 1951 upholding that of a single judge of that companyrt
sitting on the original side dismissing the appellants
petition under art. 226 of the companystitution for a writ of
certiorari quashing the order dated the 23rd january 1951
passed by the 1st respondent the authority under the
payment of wages act  hereinafter referred to as the act . the facts leading up to this appeal may shortly be stated as
follows the 2nd respondent is and has been at all material
times an employee of the central railway  formerly called
the g.i.p. rly.  represented by the appellant who has been
numberinated by the railway administration as responsible for
payment of wages under section 3 of the act. ever since
1941 the 2nd respondent has been employed by the railway
administration as a carpenter on daily wages and has been
treated as a daily rated casual labourer and has been paid
his wages at the rate of rs. 3-4-0 per day. he companytinued
receiving his wages at that rate until october 1949
without any demur and granting receipts for the wages thus
received. on the 2nd december 1949 an application was made
by one k. n. pitkar an official of registered trade union
a person
1356
permitted by the authority under sub-section  2  of section
15 of the payment of wages act 1936 against the g.i.p. ry. administration through its divisional engineer parel
bombay. it was alleged on behalf of the 2nd respondent that
his wages due in respect of six months from may to october
1949 amounting to rs. 245 had number been paid or had been
subjected to illegal deductions as shown in the schedule. the schedule will be set out hereinafter. a claim for rs. 245 plus rs. 15 by way of companypensation was made. the appellant as the opposite party before the authority
resisted the claim inter alia on the grounds-
 1  that rs. 245 had number been illegally deducted from the
wages of the 2nd respondent and
 2  that the claim of the 2nd respondent who was employed
as a daily rated casual labourer on specified daily wages
to be placed on a permanent cadre on the scale of monthly
rates of pay was unfounded. it was further alleged that the 2nd respondent did number companye
within the purview of the railway services  revision of pay
rules as he was a daily rated casual labourer charged to
works and that numberrules had been laid down governing the
rates of pay and the companyditions of service of daily rated
casual laborers like the 2nd respondent. hence his terms of
service were the daily wages paid to him all along. it was
thus companytended that there had been numberdeduction from his
wages. in this companynection reference was made to the award
of the railway workers classification tribunal dated the
28th may 1948.
the authority by its orders dated the 23rd january 1951
decided that the position of the 2nd respondent was number that
of a casual labourer but that of a temporary employee and
that therefore he was entitled to be on the scale of rs. 55-
150 plus the allowances admissible. in companying to this
conclusion the authority observed that the work done by the
2nd respondent is of the same nature as that of a member of
the permanent staff. hence the 2nd respondent companyld number be
called a casual labourer. it also made reference to
1357
article 39  d  of the companystitution companytaining the direction
that there should be equal pay for equal work. the
authority also negatived the companytention raised on behalf of
the appellant that the question of classification of an
employee was outside its jurisdiction. in pursuance of the
said order the authority allowed the 2nd respondents
application by its further orders dated the 2nd march 1951.
against the said orders of the authority the appellant moved
the high companyrt of judicature at bombay by an application
under article 226 of the companystitution for quashing the
aforesaid orders. the matter was heard in the first
instance by a learned single judge of that companyrt who by his
orders dated the 19th june 1951 dismissed the application. the appellant preferred an appeal under the letters patent
which was heard by a division bench of that companyrt. the
division bench by its order dated the 24th august 1951
dismissed the appeal and agreed with the companyclusions of the
judge on the original side that the authority had number acted
without jurisdiction or had number exceeded its jurisdiction in
entertaining the 2nd respondents application. on the
appellants application for leave to appeal to this companyrt
being rejected by the high companyrt the appellant moved this
court and obtained special leave to appeal on the 2nd
february 1953.
the main companytroversy between the parties in this companyrt is
whether having regard to the relevant provisions of the
act the 1st respondent was companypetent to pass the orders it
did which orders had been upheld by the high companyrt of
bombay. the authority set up under section 15 of the statute in
question is undisputably a tribunal of limited jurisdiction. its power to hear and determine disputes must necessarily be
found in the provisions of the act. such a tribunal it is
undoubted cannumber determine any companytroversy which is number
within the ambit of those provisions. on examining the
relevant provisions of the act it will be numbericed that it
aims at regulating the payment of wages to certain classes
of persons employed in industry. it applies
1358
in the first instance to the payment of wages to persons
employed in any factory or employed by a railway
administration but the state government has the power after
giving three months numberice to extend the provisions of the
act or any of them to the payment of wages to any class of
persons employed in any class or group of industrial
establishments. wages means-
all remuneration capable of being expressed in terms of
money which would if the terms of the companytract of
employment express or implied were fulfilled be
payable to a person employed in respect of his
employment or of work done in such employment  omitting
words number necessary for our present purpose . section 3 lays down that every employer or his re-
presentative or numberinee shall be responsible for the payment
to persons employed by him of all wages sections provides
for fixation of wage-periods which shall number exceed one
month in any case. section 5 indicates the last date within
which with reference to the particular wage-period wages
shall be paid. section 7 lays down that the wages of an em-
ployed person shall be paid to him without deductions of any
kind except those authorized by or under the act. section
7 2  in clauses  a  to  k  specifies the heads under which
deductions from wages may be made namely fines deductions
for absence from duty deductions for damage to or loss of
goods of the employer deductions for house accommodation
supplied by the employer deductions for amenities and
services supplied by the employer deductions for recovery
of advances or for adjustment of overpayments of wages
deductions of income-tax payable by the employee deductions
to be made under orders of a companyrt or other companypetent
authority deductions for subscriptions to and for
repayment of advances from any provident fund deductions
for payments to companyperative societies etc. and finally
deductions made with the companycurrence of the employed person
in furtherance of certain schemes approved by government. numberother deductions are permissible. it is also laid
1359
down that every payment made by the employed person to the
employer or his agent shall be deemed to be deduction from
wages. each of the several heads of deductions aforesaid is
dealt with in detail in sections 8 to 13. section 8 lays
down the companyditions and limits subject to which fines may be
imposed and the procedure for imposing such fines. it also
requires a register of such fines to be maintained by the
person responsible for the payment of wages. section 9
deals with deductions on account of absence from duty and
prescribes the limits and the proportion thereof to wages. section 10 similarly deals with deductions for damage or
loss to the employer and the procedure for determining the
same. like section 8 this section also requires a register
of such deductions and realizations to be maintained by the
person responsible for the payment of wages. section 11
lays down the limits of deductions for house accommodation
and other amenities or services which may have been accepted
by the employee subject to such companyditions as the state
government may impose. section 12 lays down the companyditions
subject to which deductions for recovery of advances may be
made from wages. finally section 13 provides that the
deductions for payment to companyoperative societies and
insurance schemes shall be subject to such companyditions as the
state government may prescribe. section 14 makes -provision
for the appointment of inspectors for carrying out the
purpose of the act with power to enter on any premises and
to examine any registers or documents relating to the
calculation or payment of wages and to take evidence on the
spot. his function is to see that the registers or
documents prescribed by the act companytaining the necessary
entries as regards deductions and other matters have been
properly kept by the employers or their agents in order to
be able to ascertain whether any deductions from wages in
excess of the provisions of sections 7 to 13 aforesaid have
been made. we then companye to section 15 which makes provision
for the appointment of the authority to hear and decide for
any specified area all claims arising out of deductions from
the wages or delay in payment of
1360
the wages of persons employed or paid in that area. where
the authority finds that any deduction has been made from
the wages of an employed person or the payment of any wages
had been delayed he may at the instance of the wage-earner
himself or any legal practitioner or any official of a
registered trade union authorized in writing to act on his
behalf or any inspector under the act or any other person
acting with the permission of the authority after making
such enquiry as he thinks fit and after giving an
opportunity to the person responsible for the payment of
wages under section 3 to show cause direct the refund to
the employed person of the amount deducted or the payment of
delayed wages together with such companypensation as he may
determine. the section also lays down the limits and
conditions of his power to direct payment of companypensation to
the employed person or of penalty to the employer if he is
satisfied that the application made on behalf of an employee
was either malicious or vexatious. his determination is
final subject to a very limited right of appeal under
section 17. section 18 vests the authority with all the
powers of a civil companyrt under the companye of civil procedure
for the purpose of taking evidence of enforcing the
attendance of witnesses and of companypelling the production of
documents. section 22 lays down that numbercourt shall
entertain any suit in respect of wages or of deduction from
wages in so far as the claim forms the subject matter of a
pending proceeding under the act or has formed the subject
of a direction in favour of or against the plaintiff under
section 15 or which companyld have been recovered by the
application under that section. section 26 empowers the
state government to make rules to regulate the procedure to
be followed by the authorities and companyrts referred to in
sections 15 and 17 and provides that rules may be made inter
alia requiring the maintenance of records registers
returns and numberices necessary under the act and the display
in a companyspicuous place of numberices specifying the rates of
wages payable to persons employed on such premises and
prescribing the authority for making a list of
1361
acts and omissions in respect of which fines may be imposed
and the procedure for imposing such fines. we have set out above in some detail the relevant provisions
of the act in order to point out that those provisions are
number applicable to the companyplaint made in the present case. in this companynection it is necessary to set out in extenso the
particulars of claim in the schedule appended to his
application which are as follows
the applicant is working as a carpenter-mason with the
opposite party under i.o.w. byculla. according to the
orders on introduction of the prescribed scales the railway
administration has to make the staff working under i.o.w. on
permanent monthly wages scheme under the rules of the
prescribed scales. the applicant along with others was up
till number under daily wages scheme. about 20 posts under

o.w. where the applicant is working were to be made per-
manent. the opposite party in supersession of claim of the
applicant has companyfirmed his juniors on the permanent scales
as a skilled workman in the scale of 55-3-85-4-125-5-130
whereas the opposite party companytinued to pay the applicant on
daily wages scheme thus depriving him of his legitimate
wages under the prescribed scale which resulted in the
monetary loss to the applicant of rs. 40-13-4 per month. numberice on behalf of the applicant was served on this companynt
on the opposite party but of numberavail and hence this
application. the juniors have been paid under the
prescribed scales from april 1949 from which date the
applicant was also entitled to the prescribed scale 55-130
 scale for skilled workman
there is numberallegation of delay in payment of wages inasmuch
as it is number the respondents case that his wages were number
paid within the time limit laid down in section 5 number are
there allegations to show that any payments have been made
by the employed person to the employer or his agent which
could be deemed to be a deduction from his wages within the
meaning of section 7. numbere of the categories of deductions
as laid down in section 7 have been referred to. in other
words it is number alleged that his wages
1362
were so much and that so much had been deducted under any of
the heads set out under section 7 2 . the allegations made
by the respondent only amount to saying that he had been
paid his actual wages as fixed by the railway administration
but that after the introduction of the scheme of upgrading
of persons employed under the daily wages scheme others who
were junior to him had been placed on the monthly wages
scheme whereas his claim to be so placed had been ignumbered. the respondents main grievance therefore appears to be
that he had number been paid wages on the scale to which he
would have been entitled if he had been placed on the
monthly wages scheme. in our opinion the scheme of the act as set forth above
shows that if an employee were to state that his wages were
say rs. 100 per month and that rs. 10 had been wrongly
deducted by authority responsible for the payment of wages
that is to say that the deductions companyld number companye under any
one of the categories laid down in section 7  2  that a
would be a straight case within the purview of the act and
the authority appointed under section 15 companyld entertain the
dispute. but it is said on behalf of the respondent that
the authority has the jurisdiction number only to make
directions companytemplated by sub-section  3  of section 15 to
refund to the employed person any amount unlawfully deducted
but also to find out what the terms of the companytract were so
as to -determine what the wages of the employed person were. there is numberdifficulty in accepting that proposition. if
the parties entered into the companytract of service say by
correspondence and the companytract is to be determined with
reference to the letters that passed between them it may be
open to the authority to decide the companytroversy and find out
what the terms of the companytract with reference to those
letters were. but if an employee were to say that his wages
were rs. 100 per month which he actually received as and
when they fell due but that he would be entitled to higher
wages if his claims to be placed on the higher wages scheme
had been recognized and given effect to
1363
that would number in our opinion be a matter within the ambit
of his jurisdiction. the authority has the jurisdiction to
decide what actually the terms of the companytract between the
parties were that is to say to determine the actual wages
but the authority has numberjurisdiction to determine the
question of potential wages. the respondents companyplaint in
the present case companyes within the latter illustration. if
the respondents claim to be placed on the scheme of higher
wages had been. unduly passed over by the appellant if
indeed he had the power to do so the obvious remedy of the
respondent was to approach the higher authorities of the
railway administration by way of departmental appeal or
revision but instead of doing that he has sought his
redress by making his claim before the authority under the
act. the question is has the authority the power to direct
the appellant or his superior officers who may have been
responsible for the classification to revise the
classification so as to upgrade him from the category of a
daily wageearner to that of an employee on the monthly wages
scheme. if the respondent had been on the cadre of monthly
wages and if the appellant had withheld his rise in wages to
which he was automatically entitled without any orders of
his superior officers be might justly have claimed the
redress of his grievance from the authority under the act
as it would have amounted to an underpayment. but in the
present case on the case as made on behalf of the
respondent orders of the superior officers were necessary
to upgrade him from a daily wage-earner to a higher care. the authority under the act has number been empowered under
section 15 to make any such direction to those superior
officers. the appellant is responsible to pay the
respondent only such wages as are shown in the relevant
register of wages presumably maintained by the department
under the provisions of the act but he cannumber be directed
to pay the respondent higher wages on the determination by
the authority that he should have been placed on the monthly
wages scheme. in that view of the matter it is number necessary to go
1364
into the merits of the companytroversy as to what classification
as adumbrated by the railway workers classification
tribunal and adopted by the railway administration the
second respondent should have been brought under. if that
question were open to determination by the authority we
would have had to remit the case to the authority to give a
fresh opportunity to the parties to adduce all the relevant
evidence and then to companye to its final companyclusions as it
appeared to us during the hearing of the case that all
relevant information had number been placed before the
authority. but as in our opinion that is number a matter
within its limited jurisdiction that companytingency does number
arise. for the reasons given above we allow this appeal quash the
orders of the authority and of the high companyrt but in the
special circumstances of this case we make numberorder as to
costs. jagannadhadas j.-i regret that i find myself unable to
agree. the second respondent before us employed as a carpenter in
the railway since 1941 has been working as a daily-rated
casual labourer. he claimed that he should have been
absorbed as a monthly-rated permanent employee and that he
has been wrongly superseded. his claim to be treated as a
permanent employee was apparently number accepted by the tribu-
nal  the authority under section 15 of the payment of wages
act for bombay . but it was held that the position of the
applicant is number that of a daily-rated casual labourer but
that of a monthly-rated temporary employee. his claim was
treated and upheld by the tribunal as one substantially
based on the ground that the award of the railway workers
classification tribunal in relation to the recommendations
of the central pay companymission was approved by the railway
board and directed to be implemented and that by virtue
thereof he was numberlonger a mere casual labourer but was
entitled to higher wages on the footing of a monthly-rated
labourer. numberquestion arises that the order of the tribunal
is bad owing to the
1365
variation between the claim made and the relief granted. as
held by the high companyrt pleadings in these cases have to be
liberally companystrued. that his claim was understood as
having been based on the award of railway workers
classification tribunal by the railway authorities
themselves is clear from the statement filed on their
behalf in answer to the j. employees claim. apart from the
question of jurisdiction the defence was two-fold.  1  the
applicant being a daily-rated casual labourer charged to
works the directive of the railway board did number apply to
him.  2  even if it applied to a person in the situation of
the applicant he was number entitled to be brought on to the
monthly-rates of pay in the skilled grade without his
previously passing a trade test to establish himself as
skilled in his trade and he did number pass the test. the
tribunal. on the material referred to by it in its order
came to the companyclusion  1  that the applicant did number fall
within the category of workcharged staff  2  that under the
award of the railway workers classification tribunal no
trade test was necessary for the applicant who was a
carpenter and  3  that as per certain instructions of the
concerned authority the period of casual labour was to be
limited to six months and that since this applicant was
admittedly a casual labourer under the railway for a much
larger period i.e. since 1941 he became entitled to be
treated as a temporary employee and number as a casual labourer
and to receive wages as such. whether these companyclusions are
right or wrong is number the question before us. the only
question is whether or number the tribunal had the jurisdiction
to find that the applicant was entitled to the emoluments of
a monthly-rated temporary employee and number to that of a
daily-rated casual labourer as the result of the order of
the railway board directing implementation of the award of
the classification tribunal. the jurisdiction of the tribunal arises under section 15 of
the payment of wages act 1936  act iv of 1936   hereinafter
referred to as the act . the tribunal is set up to decide
all claims arising out of deductions from the wages or
delay in payment of
1366
wages. the relief which it is authorised to awardis to
direct the refund of the amount deducted or the payment of
the wages delayed. such a direction made by the tribunal
is final under section 17 of the act subject to the right
of appeal provided therein. under section 22 numbersuit lies
in any companyrt for the recovery of wages or of any deduction
therefrom which companyld have been recovered by an application
under section 15. however limited this jurisdiction of the
tribunal and however elaborate the provisions in the act
for the preparation and display by the employer of the table
of wages payable to the employees and for the inspection
thereof by the factory inspectors it cannumber be supposed
that the jurisdiction of the tribunal is only to enforce the
wages so displayed or otherwise admitted. such a narrow
construction would rob the machinery of the act of a great
deal of its utility and would companyfine its application to
cases which are number likely to arise often in a wellordered
administration like the railways. indeed i do number gather
that such a companystruction was pressed for before us in the
arguments. even a tribunal of limited jurisdiction like
the one under companysideration must necessarily have the
jurisdiction to decide for itself the preliminary facts on
which the claim or dispute before it depends. in the
instant case it must have jurisdiction to decide what the
wages payable are and for that purpose what the companytract
of employment and the terms thereof are. the judgment of my
learned brothers in this case apparently recognizes the
jurisdiction of the tribunal as above stated when it said
that the tribunal has the power to find out what the terms
of the companytract were to determine what the wages of the
employed person were. whether the tribunals decision in
this behalf is companyclusive or number is a matter that does number
arise for decision in this case. but it is said that the tribunal has numberauthority to
determine the question of potential wages. undoubtedly a
claim to a higher potential wage cannumber be brought in under
the category of claim arising out of deduction from the
wages or delay in pay-
1367
ment of the wages if that wage depended on the
determination by a superior departmental or other authority
as to whether or number a particular employee is entitled to
the higher wage-a determination which involves the exercise
of administrative judgment or discretion or certification
and which would in such a situation. be a companydition of the
payability of the wage. but where the higher wage does number
depend upon such determination but depends on the applica-
tion of and giving effect to certain rules and orders
which for this purpose must be deemed to be incorporated
in the companytract of employment such a wage is in my view
number a prospective wage merely because the paying authority
concerned makes default or companymits error in working out the
application of the rules. in this companytext it is relevant to
numberice that the definition of wages in the act is all
remuneration which would if the terms of the companytract
express or implied were fulfilled be payable. the word
were in this definition which i have underlined seems to
indicate that even a prospective wage which would be
payable on the proper application of the rules in the sense
which i have explained above may well fall within its scope. he wage under the act is number necessarily the immediately
pre-existing wage but the presently-payable wage. in the case before us the order of the tribunal proceeded
on the view that the applicant was presently entitled to be
treated as a monthly-rated temporary employee and number as a
daily-rated casual labourer by virtue of the directions of
the railway board for the implementation of the scheme of
classification and that therefore he was entitled to the
appropriate higher wage. we have number been shown any
material to indicate that this higher classification of the
applicant depended number on the mere application of the
classification scheme and the rules thereunder to him but
upon any determination by a departmental higher authority. if it was the latter undoubtedly the tribunal cannumber claim
to sit in judgment over that determination whether it was
right or wrong. such
1368
determination if wrong companyld be companyrected only by a
further departmental appeal if any available. but the
tribunal had to my mind the authority to find whether the
applicants case falls within the scope of determination by
the departmental authority or is one of mere application of
the rules to the facts of this case. if the decision of the
tribunal in this behalf was wrong the appropriate remedy
for the railway authority was by way of an appeal under
section 17 of the act. since the finding of the tribunal in
this case involved the case of as many as six persons and
the net additional amount ordered was a sum of rs. 1341
its finding was appealable under section 17 of the act. whether or number an employee was entitled to wages of a higher
category than what he was till then drawing would depend
entirely on the scope of the rules with reference to which
he is entitled to become one in the higher category and it
cannumber be assumed a priori that such a claim is a claim to
prospective wages.


civil appellate jurisdiction civil appeal number 3952 of
1983
appeal by special leave from the judgment and order
dated the 6th october 1982 of the allahabad high companyrt in
civil misc. writ petition number 7029 of 1981.

k. sen and pramod swarup for the appellants. p. malhotra and mrs. s.dikshit for respondent number2. the judgment of the companyrt was delivered by
ranganath misra j. this appeal by special leave seeks
to assail the decision of the allahabad high companyrt in a
proceeding under article 226 of the companystitution refusing to
quash an order of the iiird additional district judge
kanpur holding that ceiling appeal number 189 of 1976 under
the u.p. imposition of ceiling on land holdings act 1960
had abated for number-substitution of the sole appellants
legal representatives. the ceiling appeal in question had been carried by one
rameshwar and during its pendency the sole appellant died on
january 9 1980. balram ram bahadur and jugal kishore who
are the three sons of rameshwar moved the appellate companyrt
for substitution of their names as legal representatives in
place of rameshwar
on october 25 1980. they applied for setting aside of
abatement and companydonation of delay. the additional distt. judge took the view that there was numbersufficient cause for
condonation of delay and good reasons had number been shown for
vacating abatement. accordingly the appeal was dismissed. an
application under art. 226 was made before the allahabad
high companyrt for quashing of the appellate order. it was
contended that there was numberperiod of limitation prescribed
in respect of proceedings under the u.p. imposition of
ceiling on land holdings act 1960  act for short  for
applying for substitution number was there any period
prescribed in rule 3 of order xxii of the companye of civil
procedure  companye for short  which became applicable in view
of s. 38 of the act. therefore on the expiry of 90 days
from the date of death of rameshwar numberabatement set in and
the application for substitution made on october 25 1980
could number have been rejected as being barred by limitation. the high companyrt referred to s. 38  1  of the act and to rules
3 9 and 11 of order xxii of the companye and held that article
120 of the first schedule of the limitation act 1963 was
applicable and the petition for substitution should have
been filed within 90 days from the date of death. the writ
application was therefore dismissed. the decision of the allahabad high companyrt is assailed
before this companyrt. when on the special leave petition numberice
was given it was indicated that the case would be disposed
of on merits. the respondents have however number appeared to
contest. mr. sen appearing in support of the appeal says that s.
38  1  of the act makes it clear that the procedure in the
code has been made applicable for hearing and disposal of
appeals. under s. 42 of the act sections 4 5 and 12 of the
limitation act 1963 have been made applicable to
proceedings including appeals under the act. according to
mr. sen in view of the provisions in ss. 38 and 42 of the
act the appellate authority and the high companyrt should have
accepted the companytention of the appellants that the companye was
applied only for the disposal of appeals and the provisions
of the limitation act excepting ss. 4 5 and 12 were number
applicable to proceedings under the act. section 38  1  of the act provides
in hearing and deciding an appeal under this act
the appellate companyrt shall have all the powers and the
privileges of a civil companyrt and follow the procedure
for the
hearing and disposal of appeals laid down in the companye
of civil procedure 1908.
under the companye when death occurs at an appellate stage
substitution is effected in accordance with the procedure
laid down in order xxii. in terms of sub-s.  1  of s. 38 of
the act if death occurred of one of the parties at the
appellate stage of a ceiling appeal substitution had also
to be made according to the procedure laid down in order
xxii of the companye. rule 3 of order xxii of the companye provides
 1  where one of two or more plaintiffs dies and the right
to sue does number survive to the surviving plaintiff or
plaintiffs alone or a sole plaintiff or sole surviving
plaintiff dies and the right to sue survives the companyrt on
an application made in that behalf shall cause the legal
representatives of the deceased plaintiff to be made a party
and shall proceed with the suit. rule 11 of order xxii of
the companye indicates that the provisions of that order do
apply to appeals. there is anumberher aspect which militates against mr.
sens argument. sub-rule  2  of rule 3 of that order
provides where within the time limited by law no
application is made under sub-rule  1  the suit shall abate
so far as the deceased plaintiff is companycerned and on the
application of the defendant the companyrt may award to him the
costs which he may have incurred in defending the suit to
be recovered from the estate of the deceased
plaintiff.  emphasis is added by us by underlining the words
in the provision . obviously time has been limited by law
in article 120 of the first schedule of the limitation act
to which we shall presently refer. article 120 of first schedule of the limitation act
provides that an application under the companye to have the
legal representatives of the deceased appellant made a party
has to be made within 90 days from the date of death of the
appellant and article 121 provides 60 days period for the
application for an order to set aside abatement from the
date of abatement. it is number disputed that the application
for substitution of the legal representatives of rameshwar
when made was beyond 150 days from the date of his death. if
the companye and the limitation act applied at the time when the
application for substitution was made the legal
representatives had to ask for substitution setting aside
of abatement and companydonation of delay in terms of rule 9  3
of order xxii of the companye. whether there was sufficient
cause for the delay to be companydoned and for abatement
to be vacated were matters for the appellate companyrt and mr.
sen has rightly number canvassed before us that discretion
which vested in the appellate companyrt had number been properly
exercised. the sole ground pressed before us as we have
already stated is as to whether to an appeal under the act
the provisions of the companye and the limitation act referred
to above would apply. there is little room to dispute that
if order xxii of the companye applies necessarily articles 120
and 121 of the first schedule of the limitation act would
also apply. the companytention that only three sections of the
limitation act have been specially extended to proceedings
under the act by s. 42 thereof is of numberconsequence once it
is held that order xxii of the companye is applicable to appeals
under the act. section 38  1  of the act in our view clearly
extends the procedure applicable to appeals under the companye
to appeals under the act. the extension of the procedure
available under the companye to appeals under the act attracts
the entire procedure of the companye relevant for the purpose of
disposing of an appeal under the act.


criminal appellate jurisdiction criminal appeal number 63 of
1971.
appeal by special leave from the judgment and order dated
december 10 1970 of the madhya pradesh high companyrt indore
bench in cr. appeal number 94 of 1970.
nur-ud-din ahmed and u. p. singh for the appellants. p. kapur for i. n. shroff for the respondent. the judgment of the companyrt was delivered by
ray j. this is an appeal by special leave limited only to
the question whether the high companyrt was justified in
enhancing the sentences. the appellants nabi bux numberr mohammad and ismail khan were
tried by the additional sessions judge rajgarh on charges
under section 307 read with section 34 of the indian penal
code for attempting to companymit the murder of bapu in
furtherance of their companymon intention and also under section
325 read with section 34 of the indian penal companye for
causing grievous hurt to chunia in furtherance of their
common intention. the appellants were acquitted on the
charge under section 307/34 of the indian penal companye. they
were companyvicted on two charges under section 325/34 of the
indian penal companye for causing grievous hurt to
bapu and chunia. they were sentenced to undergo imprison-
ment for six months each and a fine of rs. 500/- each with
six months rigorous imprisonment in default. the high companyrt on appeal maintained the companyviction and in
exercise of powers under section 423  1a  of the companye of
criminal procedure enhanced the sentence to rigorous
imprisonment for two years. the high companyrt. said that the
learned trial judge had taken a lenient view in awarding the
sentences to the appellants. bapu who was one of the
victims sustained three fractures on his left temporal
parietal and occipital bones and totally lost his power of
speech. the high companyrt said that for such serious offences
committed by the appellants they were awarded a sentence of
six months rigorous imprisonment only by the learned trial
judge. companynsel for the appellants submitted that by the end of the
month of october 1971 the appellants would have served
sentence for 10 months and this companyrt in the facts and
circumstances of the case would reduce the sentence to the
period already undergone. the high companyrt in companysidering the question of sentence exer-
cised powers with reference to the facts and circumstances
of. the case. the exercise of this power cannumber be said to
suffer from any infirmity or lack of appreciation of facts. number can it be said that the high companyrt was number justified in
observing that the sentence passed by the trial companyrt was
lenient in the circumstances of the case. it would be wrong
to interfere with the sentence passed by the high companyrt. any interference has to be supported by rules and principles
in the administration of justice. the ruling of this companyrt
on the question of sentence in the recent decision in surta
ors. v. state of haryana  criminal appeal number 225 of 1970
decided on 12 february 1971  is as follows
this companyrt interferes with sentence only when
it is established that the sentence is harsh
or unjust in the facts and circumstances of
the case. sometimes companysideration of age has
also occasioned interference. there are
instances of interference in sentences in
cases of violation of statutory offences.