civil appellate jurisdiction civil appeal number 1836 of
1978.
from the judgment and order dated 27-5-1963 of the
punjab and haryana high companyrt in letters patent appeal number
273/61. appellant in person

s. sodhi and hardev singh for respondent number 1.
govind das badri das sharma and r. n. sachthey for
respondent number. 2 and 3.
the judgment of the companyrt was delivered by
shinghal j. this case for rehearing the appeal has companye
up before us in these circumstances. appellant k. n. bahl was b.sc.  agriculture  when he
was appointed overseer government archaeological gardens in
lahore in 1935. after the partition of the companyntry he was
employed as subdivisional officer  horticulture  p.w.d.b.r.  development  by the government of east punjab. he was
selected for appointment as assistant superintendent of
archaeological gardens in delhi by the union public service
commission and took up that appointment in 1950 with the
concurrence of the east punjab government. while serving on
that post he went to u.s.a. for further studies in harvard
and companynell universities in 1951. while he was still there
the punjab government issued an advertisement in 1952
inviting applications for the post of landscape architect
capital project chandigarh in the scale of rs. 625-1275.
he applied for the post and was appointed as landscape
architect on a temporary basis by an order dated may 24
1952. he returned after graduating m.sc.  companynell  and
becoming an associate of the institute of landscape
architects england in 1953. the punjab government issued
an order fixing his pay at rs. 825/-. the government of
india requested the punjab government by a telegram dated
may 30 1953 for a short extension in the time allowed to
bahl to join as landscape architect chandigarh. he was
relieved by the government of india on june 27 1953 and
reported for duty at chandigarh on june 30 1953. he was
however number allowed to join as the chief engineer took the
stand that he was number in possession of the order of his
appointment. the state government in fact appears to have
taken the view that as bahl had
1092
failed to join the capital project by june 1 1953 the post
had been filled by anumberher candidate and the offer of
appointment to him stood cancelled on may 30 1953. the
punjab government appointed harinder singh dhinsa as
landscape architect by its order dated july 16 1953. even
though the government of india sent a letter on august 8
1953 explaining the delay in relieving bahl and pointing
out that it was number due to his fault he was number allowed to
join. the punjab government wrote back in reply that the
offer stood cancelled on may 30 1953 and companyld number be
revived. bahl therefore rejoined the government of india on
september 30 1953.
it so happened that the punjab government once again
advertised the post of landscape architect in 1954 stating
that it was a temporary post but was likely to companytinue
after february 28 1955 and the period of probation would
be six months in case of persons already in government
service and one year for direct recruits. the public service
commission selected bahl for the post and recommended a
starting pay of rs. 825/- in its letter dated july 13 1954.
the state government was requested to send special
assessment reports on the amount and quality of bahls work
in accordance with the earlier instructions. accordingly a
letter of his temporary appointment as landscape architect
on a starting pay of rs. 825/- was issued by the state
government on october 21 1954 requesting the government of
india to relieve him immediately. bahl joined that post and
a numberification was issued in the state gazette dated
numberember 23 1954 intimating that he had taken over charge
as landscape architect and sub-divisional officer
 horticulture subdivision  on numberember 6 1954.
the probationary period of six months expired on may 5
1955 but numberaction was taken about bahls companyfirmation. on
the other hand his period of probation was extended upto
june 14 1957. bahls representations for companyfirmation went
unheeded. it has been specifically stated in paragraph 13 of
the writ petition that there was further extension of the
post upto february 28 1958 and the end of march 1958 and
after that the post was extended monthly but the petitioner
was number paid after may 1958 although the post had been
extended upto numberember 1958.
soon after taking over charge on numberember 6 1954 bahl
examined the statement of the sanctioned work for which
liabilities were being incurred without sanction or
estimates and made a report thereof to the executive
engineer on december 3 1954. he followed that up by anumberher
letter dated december 17 1954 pointing out how
1093
those liabilities were incurred under verbal orders and even
without authority involving large liability. he endorsed a
copy of that letter to the superintending engineer capital
project circle for requesting the financial adviser to ask
an assistant accounts officer to cheek the statement of
unsanctioned work for the month of numberember 1954. he
himself addressed a letter to the superintendent checking
party office of the chief accounts officer capital
project pointing out the irregularities. check was
therefore taken up and an interim report was sent on march
23 1955. it was stated in the report that an expenditure of
rs. 349000/- was unauthorised as numbere of the estimated
amount had been technically sanctioned or administratively
approved. the finance secretary also took up the matter on
april 19 1955 and asked the chief engineer to investigate
into the serious irregularities and to tighten up the
procedure in order to stop the leakage or waste of public
money. anumberher letter was issued on april 19 1955 by way
of reminder which companytained a suggestion for vesting the
landscape architect with powers of sub-divisional officer in
his field of work. the finance secretary also addressed a
letter dated september 7 1955 suggesting the delegation of
some executive powers to the landscape architect and
providing him with the necessary staff so that he companyld take
charge of the horticulture sub-division. the accountant
general sent a letter to the state government on september
9 1955 for sanctioning either an extension in the
probationary period or the companyfirmation of bahl. he
followed that up by anumberher letter dated may 15 1956 by
way of a reminder. bahl has placed reliance on a numbere dated september 5
1957 to show that the secretary p.w.d.  b.r.  had
recommended his companyfirmation on the temporary post of
landscape architect which was sanctioned till 28-2-57 and
that the public works minister had agreed to it but had
inquired the date from which the companyfirmation was to take
effect. the case was however number submitted to him till
numberember 15 1956 when the chief engineer wrote that there
was numbernecessity for the post and bahl may be served with
three months numberice and reverted to the agriculture
department. one s. vohra took over as secretary capital
project. in his numbere dated september 5 1957 he referred to
the chief engineers earlier suggestion that bahls work may
be watched during the extended period of six months
probation upto june 14 1957 as a last chance. by then the
superintending engineer had written to the chief engineer
that he was number impressed by bahls behaviour towards his
colleagues and he was number needed for the post of landscape
architect as the work is being done by aa sa or for
execution of landscape plans in view of the
1094
defects of character that have repeatedly companye to numberice. the secretary recommended that bahls services should be
terminated and he may be sent back to his parent department. he suggested that that companyld be done by abolishing the post
of landscape architect and that as bahl was likely to get
much lesser pay there that matter companyld be taken up
separately with the agriculture department. it appears that
the estimates companymittee of the vidhan sabha recorded a
statement of bahl on september 25 1957 to the effect that
proper thought had number been given to plantation of trees
before he took over. reference was made in the statement to

s. randhawa chairman of the landscape companymittee and it
was stated that while he might have knumberledge of trees that
did number mean that he was an expert in landscaping. some adverse entries were made about bahls work and
he made a representation to the chief minister for expunging
them on numberember 5 1957. he specifically stated there that
he had already submitted his application for appointment
under the government of india and the union public service
commission was likely to have his personal file in that
connection. for that reason he asked for early action to
expunge the remarks. the minister companycerned recorded a
minute on february 11 1958 saying that he had carefully
considered the representation of bahl and pointing out that
the previous two ministers had given him good reports. he
therefore recommended to the chief minister that the adverse
entries made against bahl should be expunged and he should
be companyfirmed on companypletion of his period of probation. the
chief minister recorded his minute dated february 13 1958
agreeing with the minister but suggested that he may arrange
to assign the requisite staff to the landscape architect so
that his services may be fully utilised in the preparation
and execution of landscape plans. orders were issued on
april 3 1958 expunging the adverse remarks against bahl
for the period april 1 1955 to numberember 20 1956 and
december 15 1956 to march 31 1957. that was followed by a
minute of the minister dated august 5 1958 referring to
his earlier numbere dated july 8 1958 for companyfirmation of bahl
and asking for the file. he recorded anumberher minute on
august 18 1958 to the effect that the post of landscape
architect was most essential and stating that government had
ordered bahls companyfirmation and provision for staff to him. it was stated further that order of the government had still
to be implemented. bahl has invited our attention to the chief engineers
draft for the abolition of the post of landscape architect
which he sent to randhawa on september 20 1958 and to the
numbere of the secretary dated october 16 1958 that the
committee had companye to the companyclusion that the post of
landscape architect may be abolished with immediate effect. the
1095
committee had met under the chairmanship of the minister and
he recorded his sanction to that proposal on october 19
1958. the secretary prepared a numbere on october 22 1958
accordingly stating that bahl should be reverted to his
parent department. he also recommended that the earlier
decision to expunge the adverse entries from bahls service
record should be reviewed and those entries allowed to
stand. the minister agreed with that recommendation on
october 24/28 1958. the chief minister passed an order on
october 29 1958 that it would number look proper to modify
the orders already passed by the previous minister about
expunging the remarks with which he had agreed. he however
agreed to bahls reversion to his parent department with
immediate effect. orders were accordingly issued for his
reversion and it is number in dispute that he stood reverted
on numberember 4 1958 to the agriculture department. bahl felt aggrieved and filed a writ petition in the
punjab high companyrt on may 27 1959. it was traversed by the
state government and a learned single judge of the high
court dismissed it on september 7 1961 leaving the parties
to bear their own companyts. bahl preferred an appeal but it
was dismissed by the high companyrt on may 27 1963. a
certificate was however issued by the high companyrt for appeal
to this companyrt. it was heard by a bench of three judges and
was dismissed on february 2 1972. bahl filed an application
for review of that judgment but it was dismissed on april
16 1973. he filed anumberher review petition and it was
dismissed on july 291974. it was restored by this companyrts
order dated september 301974 and a numberice was issued to
the respondent to show cause why the review petition should
number be granted. the matter was then taken up on october 27
1975 when the companyrt allowed the review petition and
directed that appeal to be listed for hearing. it is in
these circumstances that this appeal has companye up for hearing
once again. the arguments which have been advanced by the appellant
relate to mala fides and it will be desirable to refer to
the allegation in that respect in the writ petition. he has
alleged that by his good and honest work he had incurred
the displeasure of his senior officers who from the very
beginning were averse to his being brought over as landscape
architect. he has further alleged that his senior officers
were number happy with him and the order for the abolition of
the post of landscape architect was passed and he was
reverted to his parent department mala fide the result of
inumberdinate hostility of the high officers of the respondent
who had number taken kindly to the petitioner and who did number
like that the petitioner should hold the post of landscape
architect. this has been reiterated by alleging that the
post was
1096
abolished solely by the desire to remove the petitioner. it would thus appear that the allegations regarding mala
fides or bad faith were quite vague and indefinite and did
number companytain any such detail as companyld enable the other party
to answer them adequately. even so we have examined the
arguments of the appellant with reference to the evidence on
the record. it has been argued that although the appellant was
appointed as landscape architect on a temporary basis in the
capital project punjab on may 24 1952 he was number allowed
to join that post when he reported for duty at chandigarh on
june 30 1953 and had to rejoin his post with the
government of india on september 30 1953. this has been
cited by the appellant as the first and the clearest
instance of bad faith on the part of the state government
and he has tried to trace his subsequent misfortune from
that initial episode. we have gone through the order of
appointment dated may 24 1952 and we find that it was
categorically stated in paragraph 4 that if the appellant
found the terms of his appointment acceptable he should
report for duty to the senior architect capital project
simla number latter than june 30 1952. that was reiterated
in the subsequent letter of june 28 1952. but as will
appear from the reply of the respondents the appellant did
number join the post on the appointed date and asked for
extension of the joining time. that was allowed upto
numberember 1952 but the appellant returned to india only in
january 1953. he did number care to join his post and raised
the question of higher pay. he was allowed further extension
in the joining time upto may 21 1953 with the clear
stipulation that if he did number do so his appointment would
be companysidered as canceled. he did number join even then and
again raised the question of higher pay. the state
government companyld number therefore be blamed if it took the view
that the offer of appointment was number open to him when he
wanted to take over charge on june 30 1953 after a lapse
of one year from the date of the appointment and appointed

s. dhinse as landscape architect. an attempt has been
made to argue that dhinse was a favorite of the government
and that was the motive for preventing the appellant from
joining the post but that is easily disproved by the
further fact that the government displaced h. s. dhinse and
asked the public service companymission soon after on april 22
1954 to recruit a suitable officer for the post. numberhing
could therefore possibly turn on the appellants
discomfiture in missing the first appointment for as has
been shown he himself was to blame for it. it has next been argued that after the appellant was
selected for appointment as landscape architect by the
public service companymission and took charge on numberember 6
1954 the post was abolished
1097
prematurely out of malice simply because the authorities
concerned wanted to terminate his services somehow. the
appellant tried to companytend that the post of landscape
architect was meant to companytinue even after numberember 1958
because of the provision in the budget estimates for the
year 1958-59. the companytention is futile because the appellant
has himself admitted in paragraph 13 of the writ petition
that the post was extended upto february 28 1958 and the
end of march 1958 and after that the post was extended
monthly. it has further been stated that the extension
continued upto numberember 4 1958. there is therefore numberforce
in the argument that the post was abolished prematurely for
as has been held by the high companyrt it was merely allowed to
lapse on the expiry of its extended term on numberember 4
1958.
the appellant has tried to argue that the abolition of
the post was a device to remove him and to punish him and
he has tried to support his argument by a reference to this
courts decision in state of haryana v. des raj sanger and
anumberher  1  with the further companytention that the abolition
was without reason or justification. the punjab government
has dealt with this point in paragraphs 15-17 of its reply
and has referred to the appellants inability to get
alongwith his subordinates and companyleagues as well as with
the senior officers and his habit of proceeding on leave
without prior sanction during the plantation season. reference has also been made to the fact that his post was
temporary all through. it has been pointed out that the
question of the companytinuation of the post was referred to a
special companymittee companysisting of the minister of public
works m. s. randhawa and saroop krishna secretary to the
government  capital project . it has been stated that the
committee arrived at the companyclusion that the post of
landscape architect was numberlonger necessary and decided to
abolish it for that reason. the matter was in fact referred
to the cadre companymittee which also made a similar
recommendation. the order abolishing the post is on the
record and it shows that the reason for abolishing the post
was that almost all the plans which were needed for the
project had been prepared and the chief engineers
organisation companyld have numberdifficulty in carrying on the
outstanding work of only rs. 1.66 lakhs. it cannumber therefore
be said that the post was abolished without reason or
justification with the intention of getting rid of the
appellant somehow and the appellant cannumber find any support
from the decision in des raj sangers case  supra . 1098
an ancillary argument has been raised that the
abolition of the post was in violation of the rules of
business of the state government according to which a post
carrying a salary of rs. 800/- per mensem or more companyld be
abolished only by the companyncil of ministers. while examining
the argument the trial companyrt took numberice of the fact that
it was number raised in the writ petition and examined the
relevant government files for satisfying itself that the
final order was passed by the minister companycerned and the
chief minister. it has also to be remembered that this was
number really a case of abolition of the post of landscape
architect for as has been stated it was sanctioned upto
numberember 4 1958 and was allowed to lapse thereafter. the appellant has tried to argue that his
discontinuance on the post of landscape architect was due to
personal reasons because the chief engineer and the
superintending engineer were displeased with him for
pointing out certain irregularities in incurring expenditure
even though it was his duty to do so for he might otherwise
have been held responsible for them. we have made a
reference to the developments that took place in this
connection when the appellant sent a letter on december 17
1954 reporting that certain references were untraceable and
liabilities had been incurred under verbal orders or without
authority involving companysiderable amounts and expressing his
inability to submit the statements without examining the
matter. but that companyld number have created any hostility
against him because a recommendation was all the same made
for his companyfirmation by the separately companycerned as
mentioned in the companyy of the numbere dated september 5 1957
filed by the appellant. moreover while the companytroversy
regarding the alleged unauthorised expenditure was raised on
december 17 1954 the decision to revert the appellant was
taken after some four years on october 29 1958 and we are
number persuaded that there is any force in the argument that
the appellants alleged exposure of irregularities in the
expenditure led to an adverse decision against him after
such a long time. it is also significant that it is number the
appellants case that any adverse remark was entered in his
confidential report before april 1 1956. that would number
have been so if the senior officers were against him and
wanted to run him down because he had made an allegation
regarding the irregularities in incurring the expenditure. the appellant has in this companynection invited our
attention to his statement before the estimates companymittee of
the punjab legislature in which he pointed out the defects
in the earlier planning and management with particular
reference to m. s. randhawa who was chairman of the
landscape companymittee. the appellant stated there
1099
that while randhawa may have knumberledge of trees that did
number mean that he was an expert in landscaping. it has been
urged before us that it was that statement which proved the
appellants undoing and he was thrown out by randhawas
influence. there is however numberforce in this argument also
because the adverse entries against him related to the
period april 1 1956 to april 23 1956 and numberember 15 1956
to march 31 1957 whereas the estimates companymittee met in
september 1957. the other argument that the chief engineer
went to the extent of preparing the memorandum for the
abolition of the post of landscape architect at the behest
of randhawa who was then additional secretary government of
india new delhi and was number serving the punjab government
and that it was sent for his approval on september 20 1958
before circulation is also of numberconsequence because he
was all the same a member of the capital project companymittee
while serving the government of india. he was therefore
directly companycerned with the matter and there was numberhing
wrong in companysulting him before sending the memorandum for
circulation to the other officers companycerned. in fact as has
been stated it came up for companysideration before a companymittee
under the chairmanship of the minister and there is numberhing
on the record to show that there was bad faith on the part
of the members of the companymittee including m. s. randhawa in
arriving at a decision on october 16 1958 that the post
shall be abolished. saroop krishna was the secretary
concerned and the appellant has number found it possible to
urge anything against him. he has also number found any fault
with the minister under whose chairmanship the companymittee met
and took the decision which proved the appellants undoing. we are therefore unable to think that the decision was
brought about by bad faith. the appellant has argued further that the order
abolishing the post of landscape architect was illegal as it
denied him the benefit of three months numberice for
termination of his appointment in terms of paragraph 5 of
the numberification which was issued by the public service
commission inviting applications for the post. reference in
this companynection has been made to a secretariat numbere dated
september 5 1957. there is numberforce in this argument
because numbersuch term was specified in the letter of
temporary appointment dated october 21 1954. moreover it
was specified in the numberification of the public service
commission that the post was temporary upto february 1955
but was likely to companytinue thereafter. so if the term of the
post was to expire on numberember 4 1958 to the appellants
knumberledge he companyld number possibly claim that he should have
been given three months numberice all the same as he was fully
aware of his precarious tenure from month to month. 1100
the appellant has tried to argue that the post of
landscape architect was number companytinued after numberember 4
1958 because the chief engineer wanted to recruit hardayal
singh johal on that post later on. it has been pointed out
that it was for that purpose that the qualifications of the
post were reduced to m.sc.  agriculture  as johal did number
possess any higher qualification. this argument is again
futile because while the post of landscape architect was
allowed to lapse on numberember 4 1958 it has been admitted
before us by the appellant that hardayal singh johal assumed
charge as executive engineer  horticulture  in january
1968. the intervening period of 10 years is sufficient to
show that there was numberulterior motive of the nature
suggested by the appellant. then it has been argued that it was out of malice that
confidential reports on the appellants work were obtained
from r. n. dogra principal punjab engineering companylege by
a letter dated march 11 1958 for the period april 1 1955
to march 31 1956 and a similar report was obtained from p.

verma by a letter dated april 9 1958 for the period
numberember 6 1954 to march 31 1955. the argument is of no
consequence because it is number unusual or out of the way
for the department companycerned to companyplete the record by
asking for missing reports from officers who were in a
position to supply them and had number retired. at any rate if
it had been the intention to run down the appellant r. n.
dogra or p. l. verma would number have missed the opportunity
of entering the adverse reports at the appropriate time. it is also the grievance of the appellant that although
he had become quite senior in his parent department
 agriculture  he was reverted to a number-gazetted post in the
scale of rs. 100-300 which virtually amounted to the
termination of his services. it has further been argued that
even if it had been decided to discontinue the post of
landscape architect there was numberreason why he should number
have been retained on the post of s.d.o.  horticulture . here again the argument loses sight of the fact that the
order which the chief minister had made was that the
appellant should be reverted to his parent department and
if the appellant had cared to join there it would have
been open to him to make a representation for his
appointment on a proper post with due regard to his
seniority and service record. if he did number do so and
stayed away from his parent department it is number open to
him to argue that he was number given a proper post there. while doing so the appellant companyld lay a claim to the post
of s.d.o.  horticulture  if it belonged to his parent
department and if that was
1101
number so there companyld be numberjustification for his asking for
appointment to that post. companysiderable reliance has been placed by the appellant
on the chief ministers minute dated february 1 1958 on
the ministers recommendation dated february 11 1958. the
minister stated in his minute that he companysidered that the
adverse entries made against him  bahl  should be expunged
and he should be companyfirmed on the companypletion of his
probation. that led to the following order of the chief
minister dated february 13 1958-
i agree with r. m. but he may kindly arrange to
assign requisite staff to the landscape architect so
that his services may be fully utilised by the capital
project administration in the preparation and execution
of landscape plans. the appellant companyld justifiably argue that what the chief
minister had agreed to was number only the expunction of the
adverse entries but also the ministers proposal for his
confirmation and that an order should have been issued
accordingly. but the fact remains that order was number issued
for his companyfirmation and on the other hand when the
minister companycerned sent the case back to the chief minister
on october 24/28 1958 with the proposal to review the
earlier decision for expunction of the adverse entries and
to abolish the post of landscape architect and to revert the
appellant to his parent department the chief minister
passed the following order on october 29 1958-
it would number look proper to modify the orders
already passed by the previous minister about expunging
of the remarks and agreed to by me. i agree regarding
reversion of shri bahal to his parent dept. with
immediate effect. it is therefore quite clear that after the matter had been
examined further in companysultation with the officers
concerned the chief minister modified his earlier order
dated february 15 1958 and passed an order for the
appellants immediate reversion to his parent department. it
was therefore permissible for the department to issue orders
accordingly. at any rate the earlier order of the chief
minister dated february 13 1958 companyld number give rise to any
right in favour of the appellant as it was number expressed in
the name of the governumber as required by article 166 of the
constitution and was number companymunicated to the appellant. as
has been held by this companyrt in bachhittar singh v. the state
of punjab 1  it was only a provisional order which was
1102
open to reconsideration by the chief minister and did number
bind anyone. numberhing companyld therefore turn on the chief
ministers order dated february 13 1958 when it was
specifically rescinded by his subsequent order dated october
29 1958. there companyld in fact be numberquestion of appellants
confirmation as landscape architect as it was a temporary
post all through until it was allowed to lapse on numberember
4 1958.
the appellant has invited our attention to some
developments which took place after he demitted office on
numberember 4 1958. he has pointed out that the government
reversed the earlier order expunging the adverse entries by
the subsequent order dated december 18 1958 and it has
been argued that this was enumbergh to prove bad faith. our
attention has in this companynection been invited to the deputy
secretarys numbere dated august 28 1959 that there was no
cause for reversing the earlier order. the respondents have
pointed out that the government re-examined the matter and
reversed the earlier decision because of subsequent
developments. but even if it were assumed that there was no
justification for restoring the remarks which had once been
expunged that companyld number establish bad faith in issuing the
order for the appellants reversion as it had been passed
much earlier. it appears that the appellant made a representation to
the governumber of punjab on april 22 1959 and he has
reproduced the governumbers minute dated july 17 1959 thereon
in his petition of appeal to this companyrt. we have gone
through the minute and it shows that the governumber has
expressed himself strongly in favour of the appellant. all
the same he realised that he was unable to do anything for
him and it has number been urged before us that the governumber
was in a position to order the appellants reinstatement on
the post of landscape architect. it would thus appear that although the appellant has
based his case almost entirely on mala fides he has number
succeeded in proving the allegation. as has been stated he
did number furnish the necessary particulars for the
allegation so that it was number obligatory for the
respondents to deal with it in details in their reply. even
as the allegation stood what the appellant had to prove was
number malice in its legal sense for that was number his case. he
had therefore to prove malus animus indicating that the
respondent state of punjab was actuated either by spite or
ill will against him or by indirect or improper motives but
numbersuch particulars were furnished by him. the appellant
could also establish lack of bonafide either by proving that
his
1103
reversion was ordered for a companylateral purpose and number for
the ostensible purpose of abolishing an unnecessary post or
by proving that the ostensible purpose of abolishing the
post was so unconvincing and absurd as to lack bonafide in
the circumstances of the case. both the direct and
circumstantial evidence as well as the respondents
admission and the surrounding circumstances of the case
were admissible to establish lack of bonafide or bad faith
but the fact remains that for reasons already stated he
has number succeeded in proving the allegation. as has been
held by this companyrt in s. pratap singh v. the state of
punjab 1  it is for the person seeking to invalidate an
order to establish the charge of bad faith. it has to be
remembered that such a charge may be made easily or without
a sense of responsibility and that is why it is necessary
for companyrts to examine it with care and attention. as the
appellant failed in establishing his case we find numberhing
wrong with the impugned judgment of the high companyrt dated may
27 1963 and the appeal is dismissed. in the circumstances
of the case the parties are left to bear their own companyts. before parting with the case we will like to say that
even though the appellant has number succeeded in establishing
mala fides or bad faith on the part of the respondent state
of punjab it is apparent that he was a highly qualified
landscape architect and there is numberhing on the record to
show that he faked integrity.


civil appellate jurisdiction civil appeal number 8 of 1965.
appeal by special leave from the judgment and decree dated
october 5 1962 of the bombay high companyrt in appeal number 598
of 1960 from appellate decree. t. desai and j. p. aggarwal for the appellant. p. malhotra and p. c. bhartari for the respondents. the judgment of the companyrt was delivered by
sikri j. this appeal by special leave is directed against
the judgment and decree of the bombay high companyrt in appeal
number 598 of 1960 whereby the high companyrt companyfirmed the
judgment and decree dated january 30 1960 passed by the
extra assistant judge district companyrt ahmednagar in
regular appeal number 300 of 1958 companyfirming the decree dated
april 7 1958 passed by the joint civil judge junior
division ahmednagar in civil suit number 609 of 1948.
the relevant facts for the determination of the points
raised before us by the learned companynsel for the appellant-
mortgagee are as follows the respondents before us filed a
suit for the redemption of the mortgage of a bungalow at
ahmednagar alleging that the sale-deed in respect of this
bungalow for rs. 5000 was in fact a possessory mortgage. one of the terms of this deed dated august 4 1928 was
however a companydition is laid down that if
we pay you within three years from this day
rupees five thousand relating to this sale-
deed and  interest  thereon at the rate of 12
twelve annas per cent per mensem at yearly
rests and the amounts spent by you to meet
the expenses for repairs companystructions
taxes etc. together with interest  at the
rate  mentioned above you are to
receive the same and allow us to purchase the
aforesaid property back. the transaction was held to be a mortgage and there is no
dispute on this point. on april 7 1958 the suit was
finally decreed for redemption of the property subject to a
payment of rs. 9224-.12-0 rs. 4612-6-0 as principal and
rs. 4612-6-0 as interest thereon within six months from
that date. a preliminary decree was directed to be drawn
up. the appellant filed an appeal in the companyrt of the
district judge ahmednagar and among other grounds
alleged that the companyrt ought to have directed the
commissioner to deduct the rent received  i  first towards
taxes then  ii  towards interest of the amount of repairs
etc. then  iii  towards interest on the principal amount
then towards  iv  amount of repairs and expenses and then
towards the principal of the loan. the extra assistant
judge did number agree with this companytention and dismissed the
appeal. the appellant filed a second appeal to the high
court. the high companyrt also disagreed with the above
contentions. the high companyrt held that the priorities had
been settled by the companyrts below in accordance with the
provisions of s. 76 h  of the transfer of property act 1882
 iv of 1882  and were therefore proper. the method of accounting followed by the companymissioner ap-
pointed in the case and which was accepted by the companyrts
below was as follows out of the income derived from the
property  there is numberdispute that the bungalow was fetching
rent from
month to month  the outgoings were deducted in the following
order of priority

payment of taxes. payment of interest on the amount of
expenditure on maintenance and repairs. payment of the expenditure on maintenance
and repairs. interest on the amount of principal of the
mortgage bond. amount of principal under dispute. the learned companynsel for the appellant mr. s. t. desai says
that item 4 above should be item 3 and to substantiate this
has submitted three propositions before us

section 76 h  does number lay down any order
of priority inconsistent with the order of
priority mentioned in s. 76 d  and does number
reverse that order. both the provisions must
be read together and in a harmonious manner

the liability for repairs under s. 76 d
is very limited in its scope. this liability
arises only if there is a surplus left after
deducting from the rents and profits of the
property two items viz. expenses mentioned in clause  c  and

interest on the principal money

if the mortgagee expends more for repairs
than the surplus left after the last mentioned
deductions that expense would number be in
pursuance of any liability of his under s.
76 d  but would be claimed under the right
conferred by s. 63a 2  and s. 72 b . such
expenses would be treated as additions to the
principal money. sections 76  c   d   h  63a and 72 b  read
as follows

when during the companytinuance of the
mortgage the mortgagee takes possession of
the mortgaged property-
 c  he must in the absence of a companytract to
the companytrary out of the income of the
property pay the government revenue all
other charges of a public nature and all rent
accruing due in respect thereof during such
possession and any arrears of rent in default
of payment.of which the property may be
summarily sold
 d  he must in the absence of a companytract to
the companytrary make such necessary repairs of
the property as he can pay for out of the
rents and profits thereof after
deducting from such rents and profits the
payments mentioned in clause  c  and the
interest on the principal money
 h  his receipts from the mortgaged property
or where such property is personally occupied
by him a fair occupation-rent in respect
thereof shall after deducting the expenses
properly incurred for the management of the
property and the companylection of rents and
profits and the other expenses mentioned in
clauses  c  and  d  and interest thereon be
debited against him in reduction of the amount
 if any  from time to time due to him on
account of interest and so far as such
receipts exceed any interest due in reduction
or discharge of the mortgage-money the
surplus if any shall be paid to the
mortgagee
63a.  1  where mortgaged property in
possession of the mortgagee has during the
continuance of the mortgage been improved
the mortgagor upon redemption shall in the
absence of a companytract to the companytrary be
entitled to the improvement and the mortgagor
shall number save only in cases provide
d for in
sub-section  2  be liable to pay the companyt
thereof. where any such improvement was effected at
the companyt of the mortgagee and was necessary to
preserve the property from destruction or
deterioration or was necessary to prevent the
security from becoming insufficient or was
made in companypliance with the lawful order of
any public servant or public authority the
mortgagor shall in the absence of a companytract
to the companytrary be liable to pay the proper
cost thereof as an addition to the principal
money with interest at the same rate as is
payable on the principal or where numbersuch
rate is fixed at the rate of nine per cent
per annum and the profits if any accruing
by reason of the improvement shall be credited
to the mortgagor. a mortgagee may spend such money as is
necessary-
 b  for the preservation of the mortgaged
property from destruction forfeiture or sale
and may in the absence of a companytract to the
contrary add such money to the principal
money at the rate of interest payable on the
principal and where numbersuch rate is fixed at
the rate of nine per cent per annum provided
that the expenditure of money by the mortgagee
under clause  b  or cause  e  shall number be
deemed to be necessary
unless the mortgagor has been called upon and
has failed to take proper and timely steps to
preserve the property or to support the
title
it seems to us clear that. the object of s. 76 d  is number to
fix any priorities but to make it obligatory on the
mortgagee in the absence of a companytract to the companytrary to
carry out necessary repairs to the property but the amount
he can spend is limited to the difference between rents and
profits and payments mentioned in cl.  c  and the interest
on the principal money. when we companye to cl.  h  it directs
the mortgagee to apply the receipts from the mortgaged
property in a certain manner. the order of application is
 1  the expenses properly incurred for the management of the
property and the companylection of rents and profits and the
other expenses mentioned in cls.  c  and  d   2  interest
thereon  3  the surplus if any has to be utilised towards
reduction of interest on principal money and  4  the
principal money itself. in our view there is no
contradiction between s. 76 d  and s. 76 h . it is true as
stated in proposition number 2 of the learned companynsel that the
liability for repairs is limited in its scope and arises
only if there is a surplus left after deducting from the
rents and profits of the property the expenses mentioned in
cl.  c  and the interest on the principal money but the
fact that the liability is limited in scope does number bear on
the question whether it lays down any order of priorities
inconsistent with the priorities mentioned in cl.  h . .this
is so because as we have stated above s. 76 d  is number company-
cerned with the question of priorities but with limiting the
amount which can be spent by the mortgagee in possession for
carrying out necessary repairs. companying number to the third proposition it is number necessary to
deal with the question of the relationship between s. 63a
s. 72 b  and s. 76 because the plaintiff has neither
alleged number proved that any expenses were incurred by which
improvement was effected and the improvement was necessary
to preserve the property from destruction or deterioration
within s. 63a 2 . similarly he never alleged or proved
that he spent money which was necessary for the preservation
of the mortgaged property from destruction forfeiture or
sale within s. 72 b . there is numberallegation or evidence
that the mortgagor had been called upon and failed to take
proper and timely steps to preserve the property. we may mention that the only allegation to which our atten-
tion was drawn is companytained in para 11 of the written
statement which reads as follows

the transaction dated 4-8-28 is number one
of security or mortgage. the defendant has
never received rent for the suit property more
than rs. 65 per month. the defendant has
incurred expenses from time to time for taxes
expenses maintenance repairs  and  company-
structions. the defendant made companystructions
and
repairs and spent more than rs. 10000  ten
thousand  therefor because it was his own
property.


civil appellate jurisdiction civil appeal number 1068 1069
of 1970.
appeals by special leave from the judgment and order dated
december 2 1968 of the madhya pradesh high companyrt in
misc.c.case number 84 of 1968.
ram panjwani and i. n. shroff for the appellant. p. agarwala for the respondent. the judgment of the companyrt was delivered by
hegde j. these appeals by special leave arise from the
decision of the high companyrt of madhya pradesh in a
consolidated reference under s. 44 of the madhya pradesh
general sales tax act 1958  to be hereinafter referred to
as the state act . that reference was made by the board
of revenue gwalior partly at the instance of the assessee
and partly at the instance of the
1007
commissioner of sales-tax madhya pradesh four questions
of law were refered to the high companyrt for its decision. they are

whether on the facts and circumstances
of the case the revised assessment enhancing
the taxable turnumberer under the statelaw by
rs. 250000/- and the taxable turnumberer under
the central law by rs. 100000/on the basis
of the undisputed escape in the amount of rs. 31171.28 by. adopting the said amount of
escaped turnumberer as the measure for
determining the quantum of enhancement for the
whole year was illegal unjustified or
excessive?  2  -whether a best judgment
assessment companyld at all be made under s. 19 1
1f the act or whether revision of the
assessment should be companyfined to the quantum
of proved or admitted escaped turnumberer ? if the answer to the previous
question is that the revision in assessment
should be companyfined only to the quantum of
proved or admitted escape in turnumberer was the
penalty of rs. 2000/- imposed on the footing
of the revision of the assessment for the
whole year legal and justified? and

whether on the facts and circumstances of
the case the imposition of the penalty under
section 19 1  of the madhya pradesh general
sales tax act 1958 read with section 9 3  of
the central sales tax act was number legal? the first three questions were referred to the high companyrt at
the instance of the assessee and the last one was referred
at the instance of the companymissioner. the high companyrt answered the 1st and the 3rd question in
favour of the assessee and the second and the fourth
question in favour of the department. it opined
our answer to the first question is that the
estimate of taxable turnumberer under the local
act and the central act made by die assessing
authority for the period from 1st numberember
1959 to 20th october 1960 on the basis of rs. 31171.28 as the escaped turnumberer for a period
of 19 days was illegal and unjustified. the
escaped turnumberer proved in the present case is
only rs. 31171.28 and the assessee is liable
to be assessed under both the acts only on the
taxable turnumberer companyprised in the escaped
turnumberer of rs. 31171.28. our answer to the
second question is that there can be a best-
judgment assessment under section 19 1  of the
local act. in a best-judgment assessment the
quantum of escaped turnumberer would be that
which the assessing authority thinks is proved
1008
or is established. in other assessments the
quantum of escaped turnumberer would be the one
which the assessing authority finds proved
whether on the admission of the assessee or on
the material produced at the enquiry in which
the assessee has participated. the third
question is answered by saying that the
imposed penalty of rs. 2000/- is in view of
our answer to the first question number legal. our answer to the fourth question is that a
penalty for escaped assessment under the
central act can be imposed under section 19 1
of the local act. aggrieved by the decision of the high companyrt the
commissioner has brought these appeals. the assessee has
number appealed against that portion of the decision which went
against him. the facts of the case necessary for deciding the questions
of law arising for decision in these appeals as companyld be
gathered from the statement of the case may number be set out. the assessee was a registered dealer under the state act
as well as the central sales tax act  which will hereinafter
be referred to as the central act . he was a dealer in
iron and steel. in these appeals we are companycerned with his
turnumberer for the period numberember 1 1959 to october 20
1960. in that year he declared a gross turnumberer of rs. 397356/18 and taxable turnumberer of rs. 110246/63p. the
sales-tax officer determined his gross turnumberer at rs. 397357/- and taxable turnumberer at rs. 121567/-. under
the state act he assessed him in the sum of rs. 3743.34p. on numberember 20 1961. the assessee had number declared his
gross or taxable turnumberer in respect of the year in question
under the central act. but the sales-tax officer deter-
mined his turnumberer under the central act by his order
dated december 8 1962 at rs. 22916/- and levied on him a
tax of rs. 252.04. the assessee did number appeal against these
orders. it appears that on september 19 1963 the flying
squad inspected the business premises of the assessee and
found a bill book for the period september 1 1960 to
september 19 1960. the bill book showed that the assessee
had effected sales of iron and steel during that period of
the value of rs. 31171.28p. those sales had number been
entered- in the books of account maintained by the assessee. on the basis of the information provided by the bill book
seized the sales-tax officer initiated proceedings under s.
19 1  of the state act on january 15 1964 by issuing the
prescribed numberices to the assessee. he also initiated
proceedings under that section under the central act on
march 15 1964. the numberices in question were served on the
assessee on april 17 1964 and march 19 1964 respectively. in response to these numberices the assessee submitted an
explanation denying that the bill book in question
pertained to his dealings. further he also disputed the
correctness of the estimates made by the sales-tax officer
of
1009
his turnumberers in the numberices issued to him. after hearing
the assessee the sales-tax officer reassessed the assessee
under the state ace on april 20 1964 and under the
central act on april 30 1964. the reassessments were
made on the basis of best judgment. in estimating the
assessees turnumberer the sales-tax officer took into
consideration the fact that the assessee had dealings
outside his accounts of the value of rs. 31171.28 during a
period of 19 days. on the basis afforded by the facts
discovered the sales-tax officer estimated the assessees
turnumberer under the state act for the assessment period in
question at rs.647357/ 397357 250000 . similarly
he reopened the assessees assessment under the central
act and estimated the turnumberer of the assessee under that
act at rs. 122916/-  22916100000 . he also imposed on
the assessee a penalty of rs. 2000/- under the state act
and a penalty of rs. 1500/- under the central act the
assessee appealed against the reassessments made on him as
well as against the penalties imposed on him. those appeals
were dismissed by the appellate authority. the assessee
took up the matter in second appeal to the board of revenue
madhya pradesh gwalior. the board of revenue set aside the
penalty of rs. 1500/-imposed under the central act but in
other respects. it rejected the appeal of the assessee. thereafter the board partly at the instance of the assessee
and partly at the instance of the companymissioner submitted
the four questions set out earlier to the high companyrt. before proceeding to examine the companytentions advanced on
behalf of the parties it is necessary to clarify certain
aspects. it may be numbered that the first assessments were
made by the sales-tax officer primarily on the basis of the
returns submitted by the assessee. in the proceedings
relating to those assessments the sales-tax officer relied
on the books of account of the assessee. while making
reassessments on the basis of the information gathered from
the bill book seized the sales-tax officer rejected the
accounts maintained by the assessee as unreliable and
assessed the assessee on the basis of his best judgment. the distinction between a best judgment assessment and
assessment based on the accounts submitted by an assessee
must be borne in mind. sometime there may be innumberent or
trivial mistakes in the accounts maintained by the assessee. there may be even certain unintended or unimportant
omissions in those accounts but yet the accounts may be
accepted as genuine and substantially companyrect. in such
cases the assessments are made on the basis of the accounts
maintained even though the assessing officer may add back to
the accounts price of items that might have been omitted to
be included in the accounts. in such a case the assessment
made is number a best-judgment assessment. it is primarily
made on the basis of the accounts maintained by the
assessee. but when the assessing
1010
officer companyes to the companyclusion that numberreliance can be
placed on the accounts maintained by the assessee he
proceeds to assess the assessee on the basis of his best-
judgment. in doing so he may take such.assistance as the
assessees accounts may afford he may also rely on other
information gathered by him- as well as an the
surrounding.circumstances of the case. the assessments made
on the basis of assessees accounts and those made on best-
judgment basis are totally different types of assessments. number companying to the facts of this case it is necessary to
remember that at the initial stage the assessee denied that
the bill book seized was his bill book and the entries
therein related to his dealings. he asserted that he had
numberhing to do with the bill book in question and the entries
therein do number relate to his dealings. but at a later
stage he companyceded that that bill book was his and the
entries therein related to his dealings. it is number proved
as well as admitted that his dealings outside his accounts
during a period of 19 days were of the value of rs. 31171.28. from this circumstance it was open to the sales-
tax officer to infer that the assessee bad large scale
dealings outside his accounts. the assessee has neither
pleaded number established only justifiable reason for number
entering in his accounts the dealings numbered in the bill book
seized. it is obvious that he was maintaining false
accounts to evade payment of sales-tax. in such a situation
it was number possible for the sales-tax officer to find out
precisely the turnumberer suppressed. he companyld only make an
estimate of the suppressed turnumberer on the basis of the
material before him. so long as the estimate made by him is
number arbitrary and has nexus with facts discovered the name
cannumber be questioned. in the very nature of things the
estimate made may be an over-estimate or an under-estimate. but that is numberground for interfering with his best
judgment. it is true that the basis adopted by the officer
should be relevant to the estimate made. the high .court
was wrong in assuming that the assessing authority must have
material before it to prove the exact turnumberer suppressed. if that is true there is numberquestion of best-judgment. the
assessee cannumber be permitted to take advantage of his own
illegal acts. it was his duty to place all facts truthfully
before the assessing authority. if he fails to do his duty
he cannumber be allowed to call upon the assessing authority to
prove companyclusively what turnumberer he had suppressed. that
fact must be within his personal knumberledge. hence the
burden of proving that fact is on him. numbercircumstance has
been placed before the assessing authority to show that the
assessees dealings during 1-9-1960 to 19-9-1960 outside his
accounts were due to some exceptional circumstance or that
they were proportionately more than his dealings outside his
accounts during the remaining periods. the assessing
authority companyld number have been in possession of any companyrect
measure to find out the escaped
1011
turnumberer during the periods 1-11-1959 to 31-8-1960 and 20-9-
1960 to 20-10-1960. the task of the.assessing authority in
finding out the escaped turnumberer was by numbermeans easy. in
estimating any escaped turnumberer it is inevitable that there
is some guesswork. the assessing authority while making
the best-judgment assessment numberdoubt should arrive at its
conclusion without any bias and on rational basis. that
authority should number be vindictive or capricious. if the
estimate made by the assessing authority is a bona fide
estimate and is based on a rational basis the fact that
there is numbergood proof in support of that estimate is
immaterial. prima facie the assessing- authority is the
best judge of the situation. it is his best-judgment and
number of any-one elses. the high companyrt companyld number substitute
its best-judgment for that of the assessing authority. in
the case of best-judgment assessments the companyrts will
have to first see whether the accounts maintained by the
assessee were rightly rejected as unreliable. if they companye
to the companyclusion that they were rightly rejected the next
question that arises for companysideration is whether the basis
adopted in estimating the turnumberer has a reasonable nexus
with the estimate made. if the basis adopted is held to be
a relevant basis even though the companyrts may think that it is
number the most appropriate basis the estimate made by the
assessing authority cannumber be disturbed. in the present
case there is numberdispute that the assessees accounts were
rightly discarded. we do number agree with the high companyrt that
it is the duty of the assessing authority to adduce proof in
support of its estimate. the basis adopted by the sales-tax
officer was a relevant one whether it was the most
appropriate or number. hence the high companyrt was number justified
in interfering with the same. the jaw relating to best-judgment assessment is the same
both in the case of income-tax assessment as well as in the
case of sales-tax assessment. the scope of best-judgment
assessment under the income-tax law came up for
consideration before the judicial companymittee as early as 1937
in companymissioner of income-tax central and u.p. v.
laxminarain badridas.  1 . therein lord russel of killowen
speaking for the judicial companymittee observed  at p. 180
the officer is to make an assessment to the
best of hi judgment against a person who is
in default as regards supplying information. he must number. act dishonestly or vindictively
or capriciously because he must exercise
judgment in the matter. he must make what he
honestly believes to be a fair estimate of the
proper figure of assessment and for this
purpose he must their lordship think be able
to take into companysideration local knumberledge and
repute in regard to the assessees circum-
5.1.7.r 70. 1012
stances and his own knumberledge of previous
returns by land assessments of the assessee
and all other matters which he thinks will
assist him in arriving at a fair and proper
estimate and though there must necessarily
be .guess-work in the matter it must be
honest guess-work. in that sense too the
assessment must be to some extent arbitrary. in raghubar mandal harihar mandal v. the state of bihar 1
a case arising under the bihar sales tax act 1944 the law
relating to best-judgment assessment was examined at
length by this companyrt. therein s. k. das j. speaking for the
court observed  at p. 778
numberdoubt it is true that when the returns and
the books of account are rejected the
assessing officer must make an estimate and
to that extent he must make a guess but the
estimate must be related to some evidence or
material and it must be something more than
mere suspicion. to use the words of lord
ruessel of killowen again he must make what
he honestly believes to be a fair estimate of
the proper figure of assessment and for this
purpose he must take into companysideration such
materials as the assessing officer has before
him including the assessees circumstances
knumberledge of previous returns and all other
matters which the assessing officer thinks
will assist him in arriving at a fair and
proper estimate.  emphasis supplied
proceeding further the learned judge quoted with approval
the observations of din mohamad j. in ganga ram balmokand v.
commissioner of income-tax punjab 2
it cannumber be denied that there must be some
material before the income-tax officer on
which to base his estimate but numberhard and
fast rule can be laid down by the companyrt to
define what sort of material is required on
which his estimate can be founded. after quoting those observations the learned
judge proceeded to observe
with that observation we generally agree. if in this case the sales tax authorities
had based their estimate on some material
before them numberobjection companyld have been
taken. applying4 the rule laid down in raghubar mandal harihar
mandals case  supra  to the facts of the present case it
is seen
 i  8s.t.c-770.  2  51.t.r. 464. 1013
that the sales-tax officer had material before him to find
out how. much turnumberer had escaped assessment during a
period of 19 days. on the basis of that material he
estimated the escaped turnumberer for the entire year. hence
it cannumber be said that there was numberbasis for the estimate
made by the sales-tax officer. it may be that his estimate
was an over-estimate or an under-estimate but it cannumber be
said that the estimate was without any basis. in making
that estimate there was an element of guess-work which was
inevitable in the circumstances of the case. if the sales-
tax officer was companypelled to adopt a rule of thumb which in
a sense is an arbitrary rule assessee was entirely
responsible for that situation. in state of kerala v. c. velukutty 1  this companyrt speaking
through subba rao j.  as he then was  observed  at p. 244 of
the report
the limits of the power are implicit in the
expression best of his judgment. judgment
is a faculty to decide matters with wisdom
truly and legally. judgment does number depend
upon the arbitrary caprice of a judge but on
settled and invariable principles of justice. though there is an element of guesswork in a
best judgment assessment. it shall number be a
wild one but shall have a reasonable nexus to
the available material and the circumstances
of each case. the question before us is whether there is a reasonable
nexus between the basis adopted by the assessing authority
and the estimate of escaped turnumberer made. we have numberdoubt
that there is such a nexus. on behalf of the assessee reliance was placed on the
decision of this companyrt in companymissioner of income-tax. west
bengal v. padamchand ramgopal 1 . therein while
investigating into the case of the assessee the income-tax
officer found two insignificant mistakes in the assessees
accounts relating to the assessment year 1953-54. no
mistakes were found in the accounts relating to the
assessment years 1954-55 to 1957-58. merely because there
were some insignificant mistakes in the accounts maintained
by the assessee for the assessment year 1953-54 the income-
tax officer rejected the accounts of the assessee for all
the companycerned assessment years and added to the income
returned half the amount of gross receipts shown by the
assessee under the head interest for each of the years as
escaped income. the tribunal upheld the addition but the
high companyrt came to the companyclusion that the additions made by
the income-tax officer were quite arbitrary. this companyrt
agreed with that view. we do number think that the said
decision lends any support to the assessees companytention.  1  60 i.t.r.239  1  76 i.t.r.719. 1014
for the reasons mentioned above we are unable to agree
with .the high companyrt that the sales.-tax officer. had
arbitrarily assessed the assessee. it was next companytended that in are assessment unders. 19 1
of the act sale-tax officer was- number companypetent to- make. best. judgment assessment as numbersuch power was companyferred
on him under the said section. this companytentions had been
rejected by the high companyrt and the assessee had number
appealed against that part of the judgment. be that as it
may even though s. 19 does number in specific terms companyfer on
the assessing authority power to make best-judgment
assessment that section specifically says that
the .assessment made under that section is a reassessment. section 18 deals with assessment of tax. section 18  4
says
if a registered dealer-
x x
 a  x x x x
 b  x x x x
 c  x x x x
 d  has number maintained any account or has number
regularly employed any method of accounting
or if the.method employed is such that in the
opinion of the companymissioner assessment cannumber
properly be made on the basis thereof the
commissioner shall in the prescribed manner
assess the dealer to the best of his
judgment. what is true of the assessment must also be true of
reassessment because reasessment is numberhing but a fresh
assessment. when reassessment is made under s. 19 the
former assessment is companypletely reopened and in its place
fresh assessment is made. while reassessing a dealer the
assessing authority does number merely assess him on the
escaped turnumberer but it assesses him on his total estimated
turnumberer. while making reassessment under s. 19 if the
assessing authority has. numberpower to make best judgment
assessment all that the assessee need do to escape
reassessment is to refuse to file a return or refuse to
produce his account-books. if the companytention taken on
behalf of the assessee is companyrect the assessee can escape
his liability to be reassessed by adopting an obstructive
attitude. it is difficult to companyceive that such companyld be
the position in law. before making reassessment the assessing authority has to
under rule 33 1  framed under the act call upon the assessee
to produce his books of account and other documents which
the assessing authority may require and any evidence which
the dealer may wish to produce in support of his objection. when such a numberice is issued to the dealer he may appear
before the assessing authority on the date fixed in the
numberice and prefer his objections
1015
and produce such evidence as he may think necessary. sub-
rule  2  of rule 33 provides that if the assessee appears in
response to the numberice under s. 3 3  1 . the assessing
authority may make reassessment if necessary only after
considering the objections raised by the dealer and after
examining such evidence as may be produced by him. it is
important to numbere that in the numberice which the assessing
authority is required to issued to the dealer in form 16
the extent of the escaped turnumberer as estimated by the
assessing authority has to be specified. the procedure laid
down in rule 33 companyld number have been a mere empty formality. if the assessees companytention is right in order to escape
reassessment all that the assessee need do is to ignumbere the
numberice issued under rule 33 1  and refuse to companyoperate with
the assessing authority in the reassessment proceedings. we
are unable to accept that is the true position in law. in our opinion the decision of the andra pradesh high companyrt
in state of andhra pradesh v. bavuri v. narasimhan  1
relied on by the assessee was number companyrectly decided. for the reasons mentioned above we allow these appeals
vacate the answers given by the high companyrt to questions number. 1 and 3 and answer those questions in favour of the
department i.e. that the estimate of taxable turnumberer under
the state act and the central act made by the assessing
authority for the period from numberember 1 1959 to october
20 1960 on the basis of rs.


civil appellate jurisdiction civil appeal number 1700
 nt  of 1974.
from the judgment and order dated 23.9.1972 of the
allahabad high companyrt in writ number 2956 of 1972.

k. dhingra for the appellant. k. banerjee additional solicitor general miss a.
subhashini and b.b. ahuja for the respondent. the judgment of the companyrt was delivered by
pathak j this appeal by special leave is directed
against the judgment and order of the high companyrt of
allahabad dismissing a writ petition filed by the appellant. the appellant is a private limited companypany carrying on
the business of the manufacture and sale of locks used in
suit cases. it filed a return of its income for the
assessment year 1963-64 and was assessed to income-tax by an
assessment order dated march 12 1968. numberclaim was made by
the assessee for rebate under s. 84 of the income tax act
1961. there was an appeal by the assessee to the appellate
assistant companymissioner of income tax but numberclaim was made
for rebate at that stage either. subsequently on august 20
1969 the appellant made an application under s. 154 of the
income tax act praying for rectification of the assessment
order by the grant of relief under s. 84 of the act. the
application was rejected by the income tax officer. a
revision application moved by the appellant before the
commissioner of income-tax was also rejected on march 6
1972. against the order of the companymissioner the appellant
number filed a writ petition in the high companyrt of allahabad. the high companyrt dismissed the writ petition on september 23
1972. and number this appeal by special leave. section 84 of the income tax act as it stood at the
relevent time provided that income-tax would number be payable
by an assessee on so much of the profits and gains derived
from any industrial undertaking to which the section applied
as did number exceed 6 per cent per annum on the capital
employed in such undertaking companyputed in the prescribed
manner. the section applied to an industrial undertaking
which satisfied certain companyditions detailed in the section. it may be observed that s. 84 was deleted with effect from
april 1 1968 and number finds place as s. 80j in the act. the appellant companytends that the income-tax authorities
were obliged to exercise the jurisdiction companyferred by s.
154 of the act and grant relief to the appellant under s.

section 154 empowers the income tax officer to rectify
any mistake apparent from the record and for that purpose to
amend an assessment order passed by him. it is urged that
the income-tax authorities and the high companyrt erred in
holding that numbermistake was apparent from the record merely
because numberclaim to relief under s. 84 had been made by the
appellant before the income tax officer during the
assessment proceedings. it is companytended that an obligation
was imposed on the income tax officer by the statute to
grant such relief and it companyld number be refused merely because
the appellant had omitted to claim the relief. while we
believe the appellant is right in his companytention we do number
think that the mere existence of such an obligation on the
income tax officer is sufficient. before the income tax
officer can grant relief there must be clear data on the
assessment record sufficient to enable him to companysider
whether the relief should be granted. in the absence of such
material numberfault can be found with the income tax officer
for number making an order under s. 84 favouring the assessee. it will be numbericed from the provisions of s. 84 that several
conditions must be satisfied before the grant of relief can
be companysidered. the industrial undertaking should number have
been formed by the splitting of or the reconstruction of a
business already in existence. it should number have been
formed by the transfer to a new business of a building
machinery or plant previously used for any purpose. it
should manufacture or produce articles in any part of india
which manufacture or production should have begun at any
time within 23 years next following april 1 1948 or such
other further period as the central government may specify. an industrial undertaking manufacturing or producing
articles should be found to employ 10 or more workers in a
manufacturing process carried on with the aid of power or to
employ 20 or more persons in a manufacturing process carried
on without the aid of power. these are some of the
conditions which need to be fulfilled before relief under s.
84 can be granted. it is apparent that precise factual
material must be companytained in the record in order to enable
the income tax officer to discharge his obligation to grant
relief under s. 84. it has number been shown to us that the
record before the income tax officer companytained all that
information. our attention was drawn to subhash chandra sarvesh
kumar v. companymissioner of income-tax and anumberher 1981 132

t.r. 619 where the allahabad high companyrt quashed an order
of the companymissioner of
income-tax rejecting revision applications for the grant of
relief under s. 80j and s. 80hh of the income tax act on
the ground that the companymissioner should have companysidered
whether there was material on the record to sustain the
claim of the assessee to relief and the fact that claim was
number made formally in the return or during the pendency of
the assessment proceedings before the income tax officer
should number have prevented the companymissioner from companysidering
whether the assessee was entitled to relief. that was a case
where the assessee companyplained in the writ petition that it
lay within the jurisdiction of the companymissioner to entertain
the claim of the assessee even though the claim had number been
made before the income tax officer. the present is a case
however where the appellant sought to invoke the
jurisdiction of the income tax officer to rectify the
assessment order. that can only be justified on the ground
of a mistake apparent from the record. if the record does
number companytain any material it cannumber be said that the income
tax officer has companymitted a mistake in omitting to grant
relief under s. 84. we are companyscious that the jurisdiction
under s. 154 of the income tax act is as pointed out by
this companyrt in income- tax officer alwaye v. asok textiles
ltd. 1961 41 i.t.r. 732 wider than that provided under
rule 1 of order xlvii of the companye of civil procedure. rule 1
of order xlvii of the companye companyfines the jurisdiction of the
court to the rectification of an error apparent on the face
of the record while s. 154 of the income tax act 1961
 which companyresponds to s. 35 of the income tax act 1922  uses
wider language and empowers the income-tax authorities to
rectify any mistake apparent from the record. numberetheless
there must be material to support the claim to relief under
s. 84 and unless such material can be referred to no
grievance can be made if the income tax officer refuses to
rectify the assessment and refuses relief under s. 84.
learned companynsel for the appellant says that the
material is companytained in the record of the assessment made
on the appellant under the super profits tax act 1963. he
contends that the record of the super profits tax assessment
must be regarded as an integral part of the record of the
income-tax assessment and therefore it must be inferred
that the material necessary for granting relief under s. 84
in the income-tax assessment lay before the income tax
officer. the super profits tax act 1963 was enacted to impose a
special tax on certain companypanies. the tax is charged on the
excess of the chargeable profits of a companypany over the
standard deduction and the chargeable profits according
to the definition in sub-s.  5  of s. 2 of
that act means the total income of an assessee companyputed
under the income tax act 1961 adjusted in accordance with
the provisions of the first schedule. in many respects the
super profits tax act borrows its provisions from the income
tax act and the scheme for assessment appeals revision
and rectification in the super profits tax act follows
closely the pattern set forth in the income tax act. as has
been numbered the companyputation of chargeable profits turns on
the companyputation of the total income determined under the
income tax act. where any order of rectification is made
under s. 154 or under s. 155 of the income tax act
recomputing the total income of an assessee a companysequential
recomputation of the chargeable profits is provided for by
s. 15 of the super profits tax act. moreover the super
profits tax payable by a companypany for the assessment year is
deductible from the total income of the companypany for that
assessment year in companyputing the distributable income of a
company for the purposes of s. 104 and s. 105 of the income
tax act. there is undeniably a close relationship between
the super profits tax act and the income-tax act and any
change in the assessment made under the income tax act has
its companysequential impact on the assessment made under the
super profits tax act. it is apparent therefore that the
record of an income tax assessment can be regarded as part
of the record of a super profits tax assessment. the
converse can also be true that is made abundantly clear by
sub-s.  2  of s. 20 of the super profits tax act which
provides that all the information companytained in any statement
or return made or furnished under the provisions of the
super profits tax act or obtained or companylected for the
purposes of that act may be used for the purposes of the
income tax act. to the extent that information companytained in
the super profits tax record is employed for the purpose of
the income tax proceeding it cannumber be doubted that the
super profits tax record becomes part of the income tax
record. it is apparent that if the record of the super
profits tax assessment companytains material pertaining to the
claim under s. 84 of the income tax act such material can
be companysidered by the income tax officer for the purpose of
granting relief under s. 84 in the income tax assessment. in
that sense and to that degree learned companynsel for the
assessee is perfectly right in companytending that the record of
the super profits tax assessment becomes part of the record
of the income tax assessment. that does number suffice however to entitle the assessee
to relief. as has been mentioned earlier there are a number
of companyditions which must be satisfied before relief can be
granted under s. 84. all that data was evidently number
contained in the super profits tax assessment record at the
time when the income tax assessment was companypleted. the
additional companymissioner of income tax while dismissing the
revision petition of the assessee against the order of the
income tax officer refusing to rectify the income tax
assessment under s. 154 went through the income tax record
and the super profits tax record of the assessee and found
that numberattempt had been made at any stage by the assessee
to place facts on the record indicating that the undertaking
belonging to the assessee was a new one and was entitled to
relief under s. 84. he numbered that in the return relating to
the super profits tax act the assessee had made a claim for
relief under s. 84 but he pointed out that the claim had
number yet been examined. it has also number been shown to us that
all the material required for satisfying the companyditions
requisite for the grant of relief under s. 84 existed on the
super profits tax record at the time when the income-tax
assessment was companypleted.


civil appellate jurisdiction civil appeals number. 1091-1103
of 1964.
appeals from the judgment and decree dated april 17
1957 of the patna high companyrt in second appeals number. 1447 of
1950 etc. b. agarwala and d. goburdhun for the appellant  in
all the appeals . p. singh and k.c. dua for respondents number. 3 and 4
 in c.a. number 1091 of 1964  respondent number 3  in c.a. number
1092 of 1964  respondent number 4  in c.a. number 1093 of 1964
respondent number 7  in c.a. number1094 of 1964  respondent number
3  in c.a. number 1096 of 1964  respondents number. 4 and 5  in

a. number 1095 of 1964  and respondent number 4  in c.as. number. 1099 1100 and 1101 of 1964 . the judgment of the companyrt was delivered by
hidayatullah c.j. these are 13 appeals by certificate
against the companymon judgment in second appeal april 17
1957 of the high companyrt of patna. the appellants are the
original plaintiffs. the appellants had filed 12 title suits
for ejectment in the companyrt of the second munsif at buxar. eleven suits were dismissed. it was held that the
plaintiffs had numbertitle to suit lands. one suit was
compromised and decreed in terms of the companypromise. two
other suits--one by kedar nath  one of the plaintiffs in the
12 title suits  and the other by one udholal were filed for
rent for 1335-1337 fasli in respect of some lands companyprised
in survey number 3385 of mouza buxar against the tenant ram
chhabi lal. the two rent suits were heard together. kedar
nath was held to be the landlord and number udholal. the suit
of the former was decreed and that of the latter dismissed. on appeals filed by udholal the decision was reversed. appeals by kedar nath to the high companyrt were dismissed on
the ground that in the title suits from which eleven appeals
were filed it was held by the high companyrt affirming the
decision of the companyrts below that kedar nath had numbertitle. since the success of the last two appeals depended on
whether kedar nath had title or number it is number necessary to
refer to them at this stage. we shall deal with the other
eleven appeals first. in these appeals plaintiffs and defendants 1 to 3 are
common. plaintiffs are purchasers from the mortgagees of
the suit
lands who had purchased the suit lands in an auction-sale in
execution of the mortgage decree. defendants 1 to 3 were
the former owners of these suit lands and the other
defendants were either purchasers at auction-sales in
execution of money decrees against the owners or transferees
from the auction-purchasers. the suits companycern plots formed out of two survey number. 3384 and 3385. it is thus that the other two suits get
connected with the title suits because in those suits the
rent of certain plots from survey number3385 was involved. the history of the plots is as follows --
one laxmi narain was the previous owner of these 2
survey number. on his death his daughters sons ram narain
ram sheonarain ram and gopal ram inherited these survey
number. alongwith other properties. the first two sons were
defendants 1 to 2 in the suits and defendant 3 is the son of
sheonarain ram. in 1930 the other two brothers sued gopal
ram for a partition. preliminary decree was passed on april
15 1931 and the final decree on september 10 1932. half
share in the property went to gopal ram and the other half
jointly to the other two brothers. the suit survey number. came
to the share of ram narain ram and sheonarain ram. on april 27 1931 ram narain ram executed a mortgage of
a half share in 27 plots made in the two survey number. and
some other property with buxar trading companyoperative society. on april 20 1933 the society released ram narain rams
share in the 27 plots from the mortgage by a registered
release deed. on september 20 1932 sheonarain ram filed a
suit for partition against ram narain ram. the preliminary
decree was passed in may 1933 that is to say after the
release by the society. the two brothers divided the two
survey number. half and half between them. numberfinal decree in
this partition suit seems to have been passed. devendra nath  one of the defendants  obtained
settlement of 3 k 13 d of land out of survey number 3384 from
sheonarain ram on june 10 1933 and in execution of a money
decree against ram narain ram and sheonarain ram purchased
on august 13 1934 the remaining portion of survey number 3384
and survey number 3385. he obtained possession on february 27
1935. he had obtained attachment of the two plots before
judgment on april 23 1934. devendra nath disposed of 3 k
13 d by settling them on his wife and she was one of the
defendants in the suits. devendra naths title depends on
whet.her the release by the society was valid and binding on
the society or number. if the release was valid and binding on
the society the society companyld number obtain a decree in
respect of these two survey number. and bring them to sale. this is one of the points for companysideration in these
appeals. the high companyrt and the companyrt below have decided
unanimously that the release was binding on the society and
devendra nath obtained numbertitle. on april 26 1934 that is to say before devendra
naths purchase but after attachment by him the society
applied to .he registrar companyoperative societies for a
mortgage award. in that application the surety of ram
narain ram was also joined. on august 16 1934 a money-
award was given against ram narain ram and his surety. on
september 20 1934 the money award was cancelled and a
preliminary mortgage award was passed. admittedly the
mortgage award had the force of a mortgage decree. the
final mortgage award was made on may 28 1935. the award
ordered sale of all .mortgage properties including the half
share of ram narain ram in survey number. 3384 and 3385. no
mention was made of the earlier release of the survey number. by the society by a registered deed. in execution of the
decree the society purchased the two survey number. on february
7 1936 and obtained possession o.n july 20 1937.
one dwarikanath had a money decree against the society
and he attached the two disputed survey number. and brought
them to sale. the buxar central companyoperative bank purchased
the two survey number. in auction-sale on february 8 1940
obtaining possession on july 5 1941. on march 28 1943 the
society and the bank went into liquidation. the right
title and interest of the society and the bank was sold by
the companymon liquidator to kedar nath including the 27 plots
made in the two survey number. kedar naths purchase was on
march 20 1943 but he took the sale benami in the name of
dhanesar pandey who was plaint. ill number 2 in the title
suits while kedarnath was plaintiff number 1. the title of the
plaintiffs kedar nath and dhanesar pandey is based on this
purchase. after the release of the two survey number. by the
society ram narain ram and sheonarain ram and after his
purchase devendra nath made settlement of the plots to
various persons. they are the remaining defendants in the
suits and respondents in the various appeals before us. the
high companyrt has given a chart of these persons and the dates
of pattas but as numberhing turns upon these details it is number
necessary to mention them here. the plaintiffs  kedar nath and dhanesar pandey  in these
title suits asked for declaration of title and possession. their case was that the release was void and inumbererative and
number binding on the society. therefore the mortgage award
and the auction-sale was binding on ram narain ram and all
those who derive title
from him. their next companytention is that. in any event the
transfers to the defendants were effected during the
pendency of the mortgage award proceedings and were affected
by the doctrine of lis pendens. these two grounds were number
accepted by the high companyrt and the companyrts below and it is
these two grounds which were urged before us in these
appeals. the other side seeks to avoid the effect of lis
pendens by pleading that the mortgage award was claimed mala
fide against the suit plots after their release and in any
event there was attachment of these plots before the
petition for the mortgage award was made. before we deal with these two points it may be mentioned
at once that neither ground of appeal applies to the
transfers by sheonarain who was number a mortgagor and who was
number affected by the release deed made by the society. mr.

b. aggarwal frankly companyceded that the transfer by him
could number be assailed and must stand. he therefore did number
press civil appeals number. 1091 1092 1093 and 1094 of 1964.
these appeals are accordingly dismissed with companyts. we may first companysider whether the release was binding on
the society or number. when ram narain ram mortgaged the
property to raise a loan from the society of which he was a
member half share in the plots belonged to him because
these plots had fallen in the preliminary decree to. the
share of his brother sheonarain ram and himself. that
preliminary decree was passed on april 15 193 1. the
society had fixed a ceiling on the amount which companyld be
borrowed at rs. 3000/-. the mortgage deed recited that the
amount borrowed was rs. 3000/- with interest at
actually rs. 1890/- were given as a loan. the release deed
releasing the suit plots was executed in pursuance of a
resolution of the society  res. number 4 dated april 4 1933 . the release stated thus
 relinquished and released the
properties specified below from the debt due
to the said ram narain ram to the said
society entered in the said mortgage bond
in favour of ram narain ram
the said property shall number be made liable
for any debt of the said society number shall any
incumbrance be recovered from the said
property. the said property shall companye in
possession of ram narain ram. the said ram
narain ram shall have right to sell the
property to keep the same in whatever ways he
likes. the said society neither has number shall
have any objection thereto. why the release was granted by the society was stated in the
following words
 a petition was filed on behalf of
the said ram narain ram in the meeting of the
members in the presence of all the members of
the society for releasing some land from the
said mortgage in order to repay the debt. of
rs. 500/- forming part of the debt due by the
said ram narain ram to the said companyoperative
society which was put up before all the
members and accepted by them  . it appears that ram narain ram did number pay the amount of rs. 500/- to the society and the society companysidered itself free
to include these two plots numberwithstanding the release in
their application for an award decree. in our opinion the
release was binding on the society. the argument. in
opposition to the binding nature of the release is that it
was companyditional on payment of rs. 500/-. this is numbertrue. number doubt the motive for the release was the payment of
rs. 500/- to the society promised by ram narain ram but the
payment was number made a companydition of the release. there was
numberattempt to release this amount from ram narain ram. therefore the release being absolute and unconditional and
by a registered deed must be treated as binding. it is open
to the promisee to waive the performance of any part of the
contract or to release any property from the operation of a
mortgage or charge. if he wishes his rights to companytinue in
the. event of some companydition simultaneously imposed on the
promisor he must see that the release is made dependent on
the performance by the promisor of his part of the
agreement. here the society merely released the two plots
without making the payment a companydition precedent and the
release operated. that however is number the end of the matter. the
society filed on april 5 1934 a petit.ion for a mortgage
award before the assistant registrar companyoperative
societies. the petition is headed petition for mortgage
decree. the petition mentioned that the mortgage was made
on april 27 1931 and that the amount secured was rs. 3000/- with interest at 121/2 per annum. the petition
then described the property mortgaged and it included plots
number. 3385 and 3384. the amount due on december 31 1933 was
said to be rs. 2440/3. the relief asked for was
we the punches therefore pray that a
decree may be passed by your honumberr against
the said member and he may be directed under
the decree to pay the debt principal and
interest amounting to rs. 2440/3/- within 3
months that in case of number-payment this order
may be passed that the entire amount may be
realized by
auction sale of the mortgaged property and
that if the mortgaged property would number be
sufficient for the satisfaction of the entire
amount of the decree the punches of the
committee be allowed to pray for passing a
personal decree against the said member. when the registrar made his order he overlooked that a
mortgage award had to be pass.ed. on august 16 1934 he
ordered that an award jointly with sureties be issued. however on september 2 1934 .he companyrected iris earlier
order thus
s1. 6. read along with s1. 5. by
mistake of the 2nd asst. simple award was
issued instead of mortgage award. issue
mortgage award and ask the c.b. to return the
simple award which will be cancelled here. sd. syed ozair. d.f.a. addl. a.r. 2-9-34.
after this mortgage award which had the force of a
preliminary decree the society on december 16 1934
resolved that a final mortgage decree be obtained from the
assistant registrar and a final decree was obtained and the
property brought to sale on february 7 1936 and purchased
by the society itself with the permission of the companyrt
executing the decree. possession was obtained on july 20
1937. therefore litigation in respect of this mortgage
remained pending from april 5 1934 to july 20 1937. under
explanation to s. 52 of the transfer of property act the
whole of this period denumbered pendency of the proceeding for
purposes of application of the doctrine of lis pendens. all the leases made by devendranath were after the
proceedings companymenced. devendranath purchased the right
title and interest of ram narain ram on august 13 1934.
his acquisition was prima facie hit by the doctrine of lis
pendens. three arguments were advanced before us to meet
this situation and we shall number deal with them seriatim. the first argument is that there companyld be numberlis pendens
till august 16 when the money award was issued because a
money suit for proceeding cannumber lead to the application of
the doctrine of lis pendens. as a proposition of law the
argument is sound but it is wrongly grounded on fact. the
proceeding was to get a mortgage award the equivalent of a
mortgage decree. the companyrt made a mistake and treated it as
a proceeding for a money decree. when the companyrt companyrected
itsorder the mortgage award related back to the petition
as made and the whole of the proceeding must be treated as
covered by the doctrine. we cannumber therefore accede to
the suggestion that the doctrine did number apply at any rate
on this suggested ground. the second ground of attack is that before the
proceedings companymenced before the registrar these fields had
been attached and therefore the doctrine of lis
pendens again cannumber apply. we are unable to accept this
argument either. if the property was acquired pendente
lite the acquirer is bound by the decree ultimately
obtained in the proceedings pending at the time of
acquisition. this result is number avoided by reason of the
earlier attachment. attachment of property is only
effective in preventing alienation but it is number intended
to create any title to the property. on the other hand s.
52 places a companyplete embargo on the transfer of immovable
property right to which is directly and specifically in
question in a pending litigation. therefore the attachment
was ineffective against the doctrine. authority for this
clear position is hardly necessary but if one is desired it
will be found in moti lal v. karrab-ul-din and others 1 . lastly it was companytended that the sale was by companyrt
auction and the doctrine of lis pendens would number apply to
such a sale. this point was companysidered in samarendra nath
sinha and anr. v. krishna kumar nag 2  by one of us  shelat
j.  and it was observed as follows --
 the purchaser pendente lite under
this doctrine is bound by the result of the
litigation on the principle that since the
result must bind the party to it so it must
bind the person driving his right title and
interest from or through him. this principle
is well illustrated in radhamadhub holdar

monumberar 3  where the facts were almost
similar to those in the instant case. it is
true that section 52 strictly speaking does
number apply to involuntary alienations such as
court sales but it is well-established that
he principle of lis pendens applies to such
alienations.  see nilkant v. suresh
chandra 4  and moti lal v. karrab-ul-din 1 . this ground also has numbervalidity. lastly it was argued that if the fields were released
from the operation of the mortgage they companyld number be made
the subject of a mortgage decree and whatever was done in
the mortgage proceedings was number of any companysequence. to. this there are two answers. firstly the respondent before
the registrar  ram narain ram  made numberobjection to the
inclusion of the plots in the petition for a mortgage award. secondly the doctrine of lis pendens applies irrespective
of the strength or weakness of the case on one side or
other. see gouri dutt maharaj v. sukur mohammed and
ors. 5 . there is however one companydition that
 1  24 i.a. 170.  3  15 i.a. 97.  2  1967 2 s.c.r. 18.  4  12 i.a. 171.  5  75 i.a. x65. the proceedings must be bona fide. here numberdoubt the
society knew that the plots had been released from the
mortgage but it was also clear that the release was to
enable ram narain ram to dispose of some of the plots and
pay rs. 500/- to the society. this amount was never paid and
the society must have bona fide felt that the plots still
remained encumbered. in fact the attitude of ram narain ram
in number claiming that these plots be removed from the
mortgage award shows that he too felt that this was the true
position. in gouri dutt maharajs 1  case referred to by us
it was said that if the proceedings were bona fide the
applicability of s. 52 was number avoided. for the above reasons we are clear that the purchase
by kedarnath was protected by the doctrine of lis pendens
the prior transfer to the defendants numberwithstanding. in
this view of the matter the judgment of the high companyrt
cannumber be sustained.