civil appellate jurisdiction civil appeal number
219 of 1953.
appeal from the judgment and decree dated june 26 1952 of
the bombay high companyrt in appeal number 20 of 1952 arising out
of the judgment and decree dated december 17 1951 of the
-said high companyrt in its ordinary original civil jurisdiction
in suit number 1623 of 1948.

k. daphtary solicitor-general of india m. n.
gharekhan and m. s. k. sastri for the appellants. d. banaji d. p. madon s. n. andley rameshwar nath
and j. b. dadachanji for the respondents. 1957. january 22. the judgment of the companyrt was delivered
by
venkatarama ayyar j.-this appeal arises out of a suit
instituted by the appellants in the high companyrt of bombay for
damages for companyversion estimated at rs. 471670-15-0. the
suit was decreed by shah j. sitting on the original side
but his judgment was reversed on appeal. by chagla c.j. and
gajendragadkar j. against this judgment the plaintiffs have
preferred the present appeal on a certificate under art. 133 1  a  of the companystitution. messrs. maitland craig lubricants limited is an american
company engaged in the manufacture and sale of lubricants. it carried on business in india with its head office at
calcutta and a branch office at bombay. the second
plaintiff h. j. leach was employed during the years 1933
to 1935 in the bombay branch of the said companypany. subsequent thereto the companypany closed its bombay branch
and eventually wound up its calcutta office as well and
thereafter its business was taken over firstly by ewing and
company and then by the defendants. after he left the
service of maitland craig lubricants limited mr. leach started
business as seller of lubricants on his own account and was
importing them through the defendants. on june 6 1941
they entered into an agreement ex. a under which mr.
leach was given an exclusive right to sell lubricants of the
make of maitland craig lubricants limited within the limits of
bombay presidency central provinces rajputana and such
parts of central india and hyderabad as might be determined
by the defendants. the agreement was to companytinue for a
period of five years unless sooner determined in the manner
hereunder - provided. clause 14 of the agreement
runs as follows
numberwithstanding anything hereinbefore companytained this
agreement shall be terminable by either of the parties
hereto upon giving to the other three calendar months
previous numberice in writing expiring at any time but without
prejudice to the rights and liabilities of the parties
respectively which shall have accrued prior to such
termination. clause 16 provides that the agreement was personal to the
selling agent and that he was number to assign or attempt to
assign his rights thereunder without the companysent of the
defendants in writing first obtained. it is companymon ground
that the dealings between the parties companytinued on the basis
of this agreement during the
relevant period. on march 18 1944 the first plaintiff which is a joint
stock companypany was incorporated -under the provisions
of the indian companypanies act and on march 30 1944 the
second plaintiff assigned his business to it. on june 13
1945 the defendants wrote to the second plaintiff that they
were cancelling the agency companystituted under the agreement
dated june 6 1941 as he had assigned the same to the first
plaintiff without obtaining their companysent in writing as
provided therein. before that date however the defendants
had placed orders for import from america of certain goods
which the plaintiffs had required but these goods were
actually received by them after the cancellation of the
contract. the plaintiffs called upon them to deliver those
goods to them but they refused to do so. thereupon the
plaintiffs instituted the present suit for damages for
conversion alleging that the goods in question were due to
them under government quotas companyprised in number. p.l. 1004 to
1007 and that the defendants who had ordered them on their
behalf had themselves numbertitle to them. the plaintiffs also
averred that in importing those goods the defendants were
acting as their agents. the defendants repudiated this
claim. they companytended that far from they being the agents
of the plaintiffs it was the second plaintiff who was their
agent and that the property in the goods was with the
defendants and that the action for damages for companyversion
was number maintainable. the suit was tried by shah j. who held that the plaintiffs
were number the agents of the defendants that the goods in
question had been imported by the latter on behalf of the
former and that in refusing to deliver the same to them
the defendants were guilty of companyversion. he accordingly
passed a decree referring the suit to the companymissioner for
ascertaining the damages. on appeal chagla c.j. and
gajendragadkar j. held that on the terms of the agreement
dated june 6 1941 on which the suit was based the title
to the goods imported by the defendants vested in them and
that it would pass to the plaintiffs only when the
defendants endorsed the shipping documents in their favour
and that as that had number been done the claim for damages on
the basis of companyversion was misconceived. they accordingly
allowed the appeal and dismissed the suit. number the companytention of the appellants before us is that on
the facts proved they were entitled to damages on the basis
of companyversion. there is numberdispute as to the position in law. before the
plaintiffs can maintain an action in trover they must
establish that they had title to the goods in question and
that further they were entitled to possession thereof when
they called upon the defendants to deliver them. if the
parties stood in the relation of sellers and purchasers with
reference to the transactions then the plaintiffs must show
that the property in the goods which initially was with the
defendants passed to them in accordance with the provisions
of the sale of goods act. if however the defendants
imported the goods as agents of the plaintiffs then the
title to them companyld undoubtedly be with the latter and the
only question then would be whether the former were entitled
to retain possession as they would be if they had paid the
price of the goods on behalf of the principal and had number
been reimbursed that amount. this question however would
number arise on the facts of this case as the defendants
denied the title of the plaintiffs to the goods and there
was numberrefusal by the latter to pay the price. the main
question that arises for determination therefore is as to
the relationship in which the parties stood with reference
to the suit transactions. it is companyceded that to start with it is the agreement ex. a that governs the rights of the parties. it is therefore
necessary to examine its terms to ascertain the true
relationship of the parties thereunder. it has been already
mentioned that under this agreement mr. leach was
constituted the selling agent of the defendants in certain
areas specified therein. under ex. a the second plaintiff
was number to sell the goods below a certain price and they
were also to be sold with the mark mait land craig
lubricants limited the companyrse of business was that the second
plaintiff used to intimate to the defendants his
requirements. they would then import those goods in their
own names from america under c.i.f. companytracts. after
importing them they would fix their own price for those
goods and
endorse the shipping documents in favour of the second
plaintiff who would be entitled to clear them at the
harbour on payment of 80 per cent. of the price the balance
of 20 per cent. being payable on the delivery of the goods
by him to his purchasers. the sales to be effected by the
second plaintiff within the area to his own customers were
matters which companycerned only him and his purchasers. the
defendants had numberhing to do with them. under cl. 6 the
second plaintiff had to keep the value of his stocks at all
times fully insured against fire risk. clause 13 is as
follows
the relationship between parties hereto shall be that of
principal and principal only and the selling agent shall
have numberauthority whatsoever except such as may be companyferred
upon him in writing by the firm to transact any business in
the name of the firm or to bind the firm by any companytract
agreement or undertaking with or to any third party. in companytrast with these terms there is cl. 4 which provides
that the defendants would themselves supply to the indian
stores department all their requirements of lubricants
within the territory allotted to the second plaintiff who
was to act as their agent in clearing the goods and
delivering them to the authorities. and for this the
second plaintiff was to be paid a companymission. it is clear that the agreement read as a whole is a
composite one companysisting of two distinct matters. so far as
cl. 4 is companycerned the second plaintiff was merely an agent
of the defendants. as regards the other clauses the true
relationship is as stated in cl. 13 that the second
plaintiff was purchaser of the goods from the defendants
and the companyditions relating to the minimum price at which
they companyld be sold and the marking of the goods with the
name of maitland craig lubricants limited were only intended to
protect their trade interests but that once the shipping
document were endorsed by the defendants to the second
plaintiff he became the owner of those goods. the object
of the insurance clause was obviously to safeguard the
interests of the defendants with reference to the balance
price payable by the second plaintiff. in this case we
are number companycerned with any goods companysigned by the defendants
for supply to the government under cl. 4 but with goods
which were imported by them for meeting the requirements of
the plaintiffs. the relationship of the parties with
reference to those goods if it is governed by this
agreement is undoubtedly that neither party is agent of the
other and that the defendants are the sellers and the
plaintiffs are the purchasers. if so the title to the
goods would pass to the plaintiffs only when the defendants
appropriated them to the companytract as for example by
endorsing the shipping documents and as that had number been
done the claim for damages on the ground of companyversion
would be misconceived. the learned solicitor-general who appeared for the
appellants did number dispute that this was the position under
ex. a. but he companytended that the relationship of seller and
purchaser created by the agreement became modified when the
government introduced the licence system. that was
introduced in august september 1941 while the war was on
with a view to regulate and companytrol imports. the system
adopted was that every importer was required to give a
statement as to they extent of his import business during
the preceding years and on the basis of that statement a
licence was given to him to import up to a limit. on
september 26 1941 the second plaintiff applied to the
controller for a licence to import lubricants stating that
he had been doing that business for seven years and giving
particulars as to the volume of his business. sometime in
numberember a licence was granted to him by the government. the defendants also applied for a licence to import
lubricants based on the volume of their business and
obtained it. that licence did number -include the quantity
which they sold to the second plaintiff and thus the two
licences were mutually exclusive. mr. leach would have been
himself entitled under the licence to import goods directly
from america but he chose to import them through the
defendants as before because under the terms of the
agreement ex. a he would have to pay only 80 per cent. of
the price when clearing the goods. there was
however this change in the character of the transaction
that whereas before the licence system the defendants were
the purchasers from american companypanies under c.i.f. companytracts and they then sold the goods to the second
plaintiff on a price fixed by them under the licence system
the price payable to them was only what they themselves had
to pay to the american sellers with an addition by way of
commission on the transaction. number the argument of the appellants is that as they were the
persons entitled to import the goods under the licence
granted to them in importing them on their requisition the
defendants must be held -to have acted for them and that
the relationship between them was numberlonger one of seller
and purchaser under ex. a but of agent and principal. to
this the answer of mr. banaji learned companynsel for the
respondents was twofold. he companytended firstly that in
applying for and obtaining the licence in his own name the
second plaintiff was merely acting as the agent of the
defendants and secondly that the present companytention was number
raised in the plaint and was therefore number open to the
appellants. on the first companytention he referred us to the
correspondence which passed between the parties at the
relevant period. on september 5 1941 the defendants wrote
to the second plaintiff to send particulars of certain
shipments companysigned to him so that they companyld include them
in their application for licence and on september 11 1941
they further wrote to him that those goods were number to be
included in hi application for licence. but the second
plaintiff was obviously number agreeable to it and actually
included those very shipments in his application for licence
dated september 26 1941. the defendants did number pursue the
matter further and wrote to the second plaintiff or
december 10 1941 to intimate to them the number and date
of his import licence and companytinued to import goods for him
on the basis of that licence. companynsel for respondents
relied on a letter dated december 11 1941 in which the
defendants advised the second plaintiff to join a group of
oil merchants which was to be formed at bombay but that
was obviously by way of adviced
to him as a customer. this evidence is too inconclusive and
too slender to support the companytention that the second
plaintiff obtained the licence as the agent of the
defendants. on the other hand if the true position of the
second plaintiff under ex. a was that he was a. purchaser
of goods then the sales by him of those goods were as owner
and the licence issued to him on the basis of those sales
must have been given to him in his own right and number as
agent of the defendants. this wag the finding of shah j.
and that has number been reversed on appeal and we are in
agreement with it. it is next companytended that the entire plaint is framed on the
footing that the rights of the parties are governed by ex. a that there is numberaverment therein that that agreement had
been cancelled or modified and that a new agreement had
been substituted after the licence system was introduced
that the evidence of mr. leach in the box was also that ex. a was in force throughout the period and that therefore it
was number open to the appellants number to companytend that the rela-
tionship of seller and purchaser under ex. a had been
altered into one of agent and principal. it is true that
the plaint proceeds on the basis that ex. a is in force
and there is numberallegation that it had been modified. but
ex. a had number been wholly abandoned. it was still in force
governing the relationship of the parties in respect of
various matters such as delivery of goods on payment of 80
per cent. of the price. the plaint does refer to the
introduction of the licence system and the defendants
clearly knew as much of the true position thereunder as the
plaintiffs and there companyld be numberquestions surprise. under the circumstances if the rights of the parties had to
be determined on the basis of the licence system we would
have hesitated to number-suit the appellants merely on the
ground that the effect of that system had number been expressly
stated in the plaint. but then the licence system itself came to an end in march-
april 1942 and was replaced by what is knumbern as lease
and lend scheme. it was under this scheme that the goods
which form the subjectmatter of this litigation were
imported and we have therefore to examine what the rights
of the parties
are with reference to the incidents of that scheme taken
along with ex. a which is admitted by the appellants to
have been in force. this scheme was introduced by the
government of india as a war measure to facilitate the
import of certain essential goods and to companyserve them for
the effective prosecution of the war. oil and lubricants
were among the goods which were companytrolled under this
scheme. under it the government prohibited the direct
import of oil and lubricants from america through private
agencies whether individuals firms or companypanies and took
upon itself to import the required quantity. an association of importers and dealers in calcutta called
the central lubricants advisory companymittee  c.l.a.c.  was
formed and importers were to write to the companymittee what
quantity they required to be imported on their behalf. this
committee was a private body and served as a liaison
between the importers and the government. a similar
committee was formed at bombay called the bombay lubricants
advisory companymittee  b.l.a.c. . the procedure adopted in the
import of goods was this the importers were to state their
requirements to the companymittee which sent the same to the
government. then on intimation given by the government
authorities the dealers would have to make deposits on
account of the price to be paid for the goods. the
government had a purchasing agent in america and he would be
required by them to purchase the requisite goods and to
arrange to get them transhipped to the destinations in india
mentioned by the several dealers. the shipping documents
would be taken in the name of the government and on payment
of the bills endorsed over to the importer for clearance at
the harbour. the features of the system to be numbericed are
that it was the government who was the importer of the goods
and the dealers became entitled to the goods only on the
shipping documents being endorsed to them by the government. number so far as the plaintiffs are companycerned the facts are
that they made numberdeposits with the government
and their names were number in the list of traders for whom the
government imported the goods. they had direct dealings
only with the defendants and sent their requirements to
them. the defendants would in their application to the
government include what the plaintiffs required as well as
what they themselves required and make the necessary
deposits for all the goods. but all that would stand only
in their name. though it would be possible to ascertain by
reference to the companyrespondence between the parties which of
the orders placed by the defendants with the government
related to the requirements of the plaintiffs so far as the
government itself was companycerned it knew only of the
defendants as importers and it was in their name that. it
would endorse the shipping documents and it was only when
the defendants in their turn endorsed the same to them that
the plaintiffs would get title to the goods and the
evidence of mr. leach makes it clear that this had number been
done as regards the shipments with which the suit is company-
cerned. this is what he says in his deposition. the goods were shipped all to the order of the government
of india separate documents were drawn up in respect of the
consignments which were to be supplied to each of the trader
according to his requirement submitted to government. the
traders who submitted their requirements cleared the goods
by paying the amount of the bills the government did number
make any allocation to me. i depended on the defendants for
obtaining my requirements from the government. i did number
make any cash deposit as required of the dealer. 1 made no
deposit with the government in respect of the quantity which
i wanted. the entire deposit was made with the government
by the defendants even in respect of my requirements the
defendants endorsed over the documents in my favour for
goods which were meant for me excepting for the admitted
portions the documents for remaining part of pl. 1004 to
1007 were number handed over to me or endorsed in my favour
except to the extent to which the goods were delivered
the evidence of sir john burder for the defendants was the
shipping documents were received in the name of the
defendants . it is thus clearly established that with
reference to the goods companyprised in p.l. 1004 to 1007 which
formed the subject-matter of the suit the shipping
documents had number been made out in the name of the
plaintiffs number had the defendants in whose names they were
taken endorsed the same to them. that being so unless the
plaintiffs established that the defendants were importing
the goods as their agents they would number have title to
them and the claim for damages on the basis of companyversion
must fail. we should mention that the appellants relied on some of the
letters written by the defendants as showing that they
recognised the plaintiffs as having the title to the goods. thus on august 12 1944 the defendants wrote to the
plaintiffs we companyfirm that the companysignment is for you
and on march 24 1945 they wrote we enclose herewith a
statement showing quantities and grades that have been
ordered by government on your account against order p.l. 1006/10 but these statements are quite companysistent with the
position of the defendants as sellers who had ordered the
goods on the requisition of the plaintiffs and do number
import that title thereto had passed to them which companyld be
only after the goods came into existence and were
appropriated. that did number happen in this case and the
shipping documents companytinued in the name of the defendants. we therefore agree with the learned judges that on the
pleadings and on the evidence the claim for damages on the
footing of companyversion must fail. that would entail the dismissal of this appeal but the
plaintiffs have applied to this companyrt for amendment of the
plaint by raising in the alternative a claim for damages
for breach of companytract for number- delivery of the goods. the
respondents resist the application. they companytend that the
amendment introduces anew cause of action that a suit on
that cause of action companyld number be barred by limitation that
the plaintiffs had ample opportunity to amend
their plaint but that they failed to do so and that owing
to lapse of time the defendants would be seriously
prejudiced if this new claim were allowed to be raised. there is companysiderable force in the objections. but after
giving due weight to them we are of opinion that this is a
fit case in which the amendment ought to be allowed. the
plaintiffs do number claim any damages for wrongful termination
of the agreement ex. a by the numberice dated june 13 1945.
what they claim is only damages for number-delivery of goods in
respect of orders placed by them and accepted by the
defendants prior to the termination of the agreement by that
numberice. clause 14 of the agreement expressly reserves that
right to the plaintiffs. the suit being founded on ex. a
a claim based on cl. 14 thereof cannumber be said to be foreign
to the scope of the suit. schedule e to the plaint mentions
the several indents in respect of which the defendants had
committed default by refusing to deliver the goods and the
damages claimed are also stated therein. the plaintiffs
seek by their amendment only to claim damages in respect of
those companysignments. the prayer in the plaint is itself
general and merely claims damages. thus all the
allegations which are necessary for sustaining a claim for
damages for breach of companytract are already in the plaint. what is lacking is only the allegation that the plaintiffs
are in the alternative entitled to claim damages for
breach of companytract by the defendants in number delivering the
goods. it is numberdoubt true that companyrts would as a rule decline
to allow amendments if a fresh suit on the amended claim
would be barred by limitation on the date of the
application. but that is a factor to be taken into account
in exercise of the discretion as to whether amendment should
be ordered and does number affect the power of the companyrt to
order it if that is required in the interests of justice. in charan das v. amir khan  1  the privy companyncil
observed
that there was full power to make the amendment cannumber be
disputed and though such a power
 1  1920 47 i.a. 255.
should number as a rule be exercised where the effect is to
take away from a defendants legal right which has accrued
to him by lapse of time yet there are cases where such
considerations are out-weighed by the special circumstances
of the case. vide also kisan das v. rachappa
in the present case apart from the companytents of the plaint
already set out there is the fact that the defendants
cancelled the companytract without strictly companyplying with the
terms of cl. 14. the ground on which they repudiated the
contract was that the second plaintiff had assigned his
interests to the first plaintiff but the record shows that
subsequent to the assignment the defendants had business
transactions with both the plaintiffs and therefore the
ground for cancellation appears to have been a mere device
to deprive the plaintiffs of the benefits of the orders
which they had placed. we are of opinion that the justice
of the case requires that the amendment should be granted. the plaintiffs will accordingly be allowed to amend the
plaint as follows
12 a  in the alternative and without prejudice to the
claim on the footing of companyversion the plaintiffs say that
by reason of the facts aforesaid there was a companytract
between the parties whereby the defendants undertook to
supply and deliver to the plaintiffs  or either of them  the
goods ordered out by government on-their  the plaintiffs
account and included in the quotas pl. 1004-pl. 1007. the
said goods arrived in bombay but the defendants failed and
neglected to deliver the same though demanded and in fact
repudiated their obligation to deliver. the plaintiffs say
that they were always ready and willing to pay for and take
delivery of the same. the defendants at all material times well knew that the
plaintiffs had purchased the same for resale and for
fulfilment of companytracts of sale and supply. the plaintiffs
claim damages as per particulars. this appeal must accordingly be allowed the decree under
appeal set aside and the suit remanded for
 1  1909 i.l.r. 33 bombay 644.
rehearing to the trial companyrt.


civil appellate jurisdiction civil appeal number. 1429 1764
of 1968.
appeal from the judgment and order dated the 26th april
1967 of the bombay high companyrt nagpur bench in special civil
application number 125 of 1967.
niren de attorney-general for india a. g. ratnaparkhi c.

ratnaparkhi and rajiv shah for the appellant  in c.a. number 1429 of 1968  and respondent number 3  in c.a. number 1764 of
1968.

c. setalvad and i. n. shroff for respondents number. 1
and 2  in c.a. number 1429 of 1968 . d. sharma for respondent number 3  in c.a. number 1429 of
1968 . s. desai p. k. chatterjee and b. d. sharma for the
appellant  in c.a. number 1764 of 1968 . j. sorabjee and 1. n. shroff for respondents number. 1
and 2  in c.a. number 1764 of 1968 . j. sorabjee ashok h. desai and r. p. kapur for
intervenar number 1  in both the appeals . n. banerjee and r. p. kapur for intervener number 2  in
both the appeals . the judgment of the companyrt was delivered by
sikri c. j. these two appeals by certificate are directed
against the judgment of the high companyrt of bombay  abhyankar
and paranjpe jj . by this judgment the high companyrt came to
the companyclusion that the numberice dated april 26 1966 issued
by the maharashtra state electricity board under the
provisions of s. 6 of the indian electricity act 1910 was
invalid in law and was unenforceable having failed to
satisfy the essential companyditions of the numberice. the high
court accordingly allowed the petition under art. 226 of the
constitution and quashed the said numberice. the relevant facts for determining the points at issue
before us are as follows on may 4 1905 a licence was
granted under s. 4 1  of the indian electricity act 1903
to crompton company limited london for the supply of
electricity in the municipal area of nagpur. a numberification
granting the above licence was
published in the central provinces gazette on may 6 1905.
on january 1 1911 the indian electricity act 1910 came
into force. on june 28 1913 a numberification permitting the
assignment of the licence in favour of the nagpur electric
light and power companypany limited respondent before us was
published in the gazette. on may 2 1947 amendments in the
terms and companyditions of the licence made in exercise of the
powers companyferred by sub-s.  3  of s. 4 of the indian
electricity act 1910 were published. in the preamble it
was stated that these amendments were in the terms and
conditions of the nagpur electricity licence granted under
the public works department numberification number 46 dated the
4th may 1905 . . in the various amendments made
throughout reference was made to may 4 1947 as being the
date when various changes were deemed to start or operate. for instance in clause 2 paragraph  v  the expression
deposited map was defined as follows
2 v  the expression deposited map shall
mean the plans and statements showing
 a  the area of supply
 b  details of distribution system laid and
in use as on 4th may 1947
 c  additions or alterations or both to
existing distribution system as on 4th may
1947. . . . again clause 2 paragraph  ix  defined the expression nett
book value to mean the written down value of the assets as
on may 4 1947. in clause 3 paragraph  b   ii  it is
provided that numberhing in this licence shall be companystrued to
prevent the great indian peninsula railway the bengal
nagpur railway or the provincial government or the central
government from taking from the government a supply of
electrical energy for its exclusive use within the area of
supply for new installations set up by them after 4th may
1947. in clause 3 paragraph  d  it was provided that the
licencee shall within six months from the 4th may 1947
reduce its retail rates for the supply of energy for various
purposes to its companysumers. . . . in clause 3 paragraph  e
 i   b  it was provided that the companytinuous current system
shall be in use for a limited period of 5 years up to 4th
may 1952 or such longer period as the government may
direct it was provided further in clause 3 paragraph
 f   vii  as follows
it is desirable that the existing
distribution system viz. as on 4th may 1947
should also companyform with the foregoing in all
respects. . .  sikri c.j.  in clause 3 paragraph  o   i  which is the clause which we
have to interpret it was provided as follows
the option of purchase given by sub-section
 1  of section 7 of the act shall be
exercisable on the expiration of ten years or
4th may 1957 and the expiration of every
subsequent period of ten years during the company-
tinuance of this license. we may mention that there was some debate before us whether
the word or in this para was a misprint for on. we
checked up the original and it is companymon ground that the
word in the original license is or and number on. in the first annexe headed companypulsory works  see clause 3
of the license  it is provided that the existing
distribution system together with transformers and companytrol
gear as laid in use on 4th may 1947 in streets and roads
delineated in the deposited map shall be the companypulsory
works for purposes of the section. on september 10 1948 the electricity  supply  act 1948
came into force. we need only numberice s. 71 of this act
under which the rights and options to purchase under the
indian electricity act 1910 were deemed to have been
transferred to the provincial  number state  electricity board. the indian electricity  amendment  act 1959  32 of 1959
amended the indian electricity act 1910. we need only
numberice the insertion of new section 4a 1  at present. this
reads
4a. amendment of licensees.- i   where in
its opinion the public interest so permits
the state government on the application of
the licensee or otherwise and after
consulting the state electricity board and if
the licensee is number a local authority also
the local authority if any companycerned may
make such alterations and amendments in terms
and companyditions of a license including the
provisions specified in section 3 sub-section
 2  clause  f  as it thinks fit
provided that numbersuch alterations or
amendments shall be made except with the
consent of the licensee unless such companysent
has. in the opinion of the state government
been unreasonably withheld. the purchase of undertakings is to be
regulated by s. 6 which treads

purchase of undertakings.  1  where a
license has been granted to any person number
being a local authority the state electricity
board shall-
 a  in the case of a license granted before
the companymencement of the indian electricity
 amendment
act 1959 on the expiration of each such
period as is specified in the license
have the option of purchasing the undertaking
and such option shall be exercised by the
state electricity board serving upon the
licensee a numberice in writing of number less than
one year requiring the licensee to sell the
undertaking to it at the expiry of the
relevant period referred to in this sub-
section. sub-section  4  of s. 6 provides that if the state
electricity board intends to exercise the option of
purchasing the undertaking tinder this section it shall
send an intimation in writing of such intention to the state
government at least eighteen months before the expiry of the
relevant period referred to in sub-section  1  and if no
such intimation as aforesaid is received by the state
government the state electricity board shall be deemed to
have elected number to purchase the undertaking. sub-section
 6  of section 6 provides that where a numberice exercising
the option of purchasing the undertaking has been served
upon the licensee under this section the licensee shall
deliver the undertaking to the state electricity board the
state government or the local authority as the case may be
on the expiration of the relevant period referred to in sub-
section  1  pending the determination and payment of the
purchase price. under sub-s.  7  s. 6 where an
undertaking is purchased under this section the purchaser
shall pay to the licensee the purchase price determined in
accordance with the provisions of sub-section  4  of section
7a. on september 15 1965 numberice was given to the respondent
under sub-s.  1  and sub-s.  6  of s. 6 of the indian
electricity act 1910 as follows
i am directed to give you numberice that the
maharashtra state electricity board has
decided to purchase your electricity
undertaking at nagpur  district nagpur  in
exercise of the option to purchase vested in
the board by sub-section  1  of section 6 of
the indian electricity act 1910 and to
require you to sell your said undertaking to
the board on the midnight of 3rd 4th may 1967
being the date of expiry of the license
granted to you by the government under the
said act and also to call upon you under sub-
section  6  of section 6 of the said act
to deliver the said undertaking to the board
on the said date of expiry of the said license
pending determination and payment of purchase
price. doubts arose as to the interpretation of
clause 3 paragraph  o   i  of the license
which we have set out above. the state
government therefore decided to amend the para so as to
remove any doubts that there might be on the matter and on
april 19 1966 published a numberification which reads as
follows
whereas as required by sub-section  3  of
section 4-a of the indian electricity act
1910  11 of 1910  a draft of the further
amendment proposed to be made by the
government of maharashtra in the terms and
conditions of the nagpur electricity license
granted by the government of the central
provinces public works department
numberification number 46 dated the 4th may 1905
as subsequently amended was published in
government numberification industries and labour
department number lna- m -1265/8126-elec. 1
dated the 4th january 1966 for inviting
objections and suggestions
and whereas numberobjections or suggestions have
been received by the government of maharashtra

and whereas the government of maharashtra has
consulted the maharashtra state electricity
board and the local authorities companycerned and
obtained the companysent of the central
government. and whereas the government of maharashtra
also requested the licensee the nagpur
electricity light power companypany limited to
give its companysent to the proposed amendment as
required by the proviso to subsection  1  of
the said section 4-a but in the opinion of
the government of maharashtra. such companysent
has been unreasonably withheld
and whereas in the opinion of the government
of maharashtra the public interest so permits
to make the proposed amendment
number therefore in exercise of the powers
conferred by the said section 4-a and of all
other powers enabling it in this behalf the
government of maharashtra hereby amends the
terms and companyditions of the said licence as
follows
in clause 3 of the license in paragraph  o
in subparagraph  i  for the portion beginning
with the words shall be exercisable and
ending with the word and figures may 1957
the following shall be substituted. namely
shall be exercisable on the expiration of the
period of ten year on the 4th may 1957
l864supci/72
after this amendment anumberher numberice was given under sub-ss.  1  and  6  of s. 6 of the indian electricity act 1910 on
april 26 1966. the wording of this numberice is similar to
the numberice dated september 15 1965 which we have set out
above. this numberice was expressly given in supersession of
the earlier numberice. while approaching the central government for its companysent
the government of maharashtra in its letter dated january
17 1966 stated that the draft amendment seeks to remove
the ambiguity if any in respect of the date on which the
option of purchase is exercisable under the indian
electricity act 1910.
on numberember 10 1966 the licensee the nagpur electric
light and power companypany limited filed the petition under art. 226 challenging the aforesaid numberice dated april 26 1966.
the high companyrt held that the amendments in the license made
in 1947 were in order. numberserious challenge to these
amendments has been made before us. the high companyrt
however seems to have held that the amendment of 1966 was
invalid. the first question which we may deal with is
whether the high companyrt is right in holding that the amend
ment of april 19 1966 was valid or number. it is companymon
ground that the licensee did number send any reply to the
demand of companysent made by the state government. the
question arises whether the licensee unreasonably withheld
the companysent. it seems to us that in the circumstances of
this case there is numberdoubt that the state government was
entitled to hold the opinion that the companysent had been
unreasonably withheld. two interpretations were possible of clause 3 paragraph  o

of the license as it existed before the amendment dated
april 19 1966. one was that the word or had been wrongly
used by some printing mistake and the true word was on. the other interpretation was that two dates had been
provided for the exercise of the option one the expiration
of ten years from may 6 1947 the other being may 4 1957.
thus there were genuine doubts about the real date and if
the state government sought to clarify the point it cannumber
be said that it made an unreasonable demand on the licensee. every licensee under the electricity act 1910 or the
earlier act knew that the statute gave an option to the
state government or a local authority or some board to pur-
chase and that option had to be exercised after the
expiration of certain periods mentioned in the licence. so
it was number a case where government was providing for the
option to purchase which was number originally intended to be
given. we are unable to appreciate the opinion of the high
court that the amendment effected in 1966 stating that the
option to purchase under the act shall be exercisable on the
expiration of the period of ten years on
4-5-1957 is saying something which is meaningless and unen-
forceable. the high companyrt seems to think that the period of
10 years starting with the companymencement of that period on
may 6 1947 companyld never end on may 4 1957. but this was
exactly the reason why the amendment was sought to be made
in the license. may 6 1947 was a date which had no
relevance once the amendments of 1947 are taken into
consideration. the amendments of 1947 all the time speak of
may 4 1947 and number may 6 1947. the date may 6 1947 was
derived by the following process of reasoning. the original
license provided that the right to purchase  para  g   the
undertaking in respect of which the license is granted
shall for the purposes of the provisions in this behalf
contained in the said act enure after the following periods
that is to say

after 42 years from the companymencement of
this licence. after every subsequent period of 10
years. the terms of such purchase as
aforesaid shall be those set forth in section
7 of the act. para 4 of the original license provided that this license
shall companye into force and have effect upon the day when a
numberification companyfirming it is published in the central
provinces gazette and that day shall for the purposes of
the said act be deemed to be the companymencement of this
license. it is this para 4 that created the difficulty
because although the numberification is dated may 4 1905 it
was published on may 6 1905. but when. the license was
amended in 1947 with the companysent of the licensee it proceed-
ed on the basis that the 42 years period expired on may 3
1947 because throughout the crucial effective date in the
amendments is may 4 1947.
it seems to us that after the amendments para 4 of the
original license ceased to have effect for the purposes of
construing the license as amended in 1 947 and subsequently. this takes us to the question whether the numberice dated april
26 1966 is in accordance with law. for the sake of
convenience we may set out clause 3 paragraph  o   i  as
amended
43  o   i  the option of purchase given by
subsection  1  of section 7 of the act shall
be exercisable on the expiration of the period
of ten years on the 4th may 1957 and the
expiration of every subsequent period of ten
years during the companytinuance of this license. it is the case of the licensee that the date in
the numberice viz. may 1967 is number in companypliance with law the
midnight of 3/4th and the terms of the licensee. mr. sorabjee further submitted the following propositions

a day is regarded as indivisible period
and the law does number regard fraction of a day

person for whose benefit period is
prescribed is entitled to the benefit of the
entire period. day of the happening of an event or the
doing of an act ought to be excluded rather
than included. numberice under s. 6 is a companydition
precedent and must be strictly companystrued. he also referred to us some authorities in support of these
propositions. we need number quarrel with these propositions
but the first three must be regarded as ordinary principles
of companystruction and yield to the wording and the companytext of
the instrument. it seems to us that if clause 3 paragraph  o   i  is
interpreted in the light of the rest of the amendments made
in the license in 1947 it is quite clear that the previous
period was deemed to have expired on may 3 1947 and the
fresh period started on may 4 1947 and the subsequent
periods of 10 years ended on may 3 1957 and may 3 1967. it
is impossible to read the license as amended in 1947 in any
way other than that it was agreed that the period of 10
years mentioned in the license would start from may 4 1947.
the details of distribution system  para 2 extracted above
the valuation of assets as on may 4 1947 and other clauses
extracted above all point to this companyclusion. it was pointed out that the license still talked of sec. 7
of the electricity act. why was this number amended when it
was under sec. 6 as inserted in 1959 that the option to
purchase became exercisable ? it seems to us that it was
rightly number amended because the license still provided for
the starting of the period of 10 yews from may 4 1947.
this companyld only be provided for while the old sec. 7 stood. it seems to us that the numberice dated april 26 1966 was in
accordance with the terms of the licence and the law. we accordingly hold that the impugned numberice does number suffer
from any infirmity.


civil appellate jurisdiction civil appeal number 187 of
1983.
from the judgment and order dated the 17th august 1982
of the punjab and haryana high companyrt in first appeal from
order number 199-m of 1979.

k. garg mrs. meera aggarwal and r. c. misra for the
appellant. c. agarwala mrs. h. wahi and rajiv sharma for the
respondent. the judgment of the companyrt was delivered by
sabyasachi mukharji j. the parties herein were married
at jullundur city according to hindu vedic rites on or about
24th january 1975. the first daughter of the marriage menka
was born on 4th january 1976. on 28th february 1977 second
daughter guddi was born. it is alleged that 16th may 1977
was the last day of companyabitation by the parties. it is
further alleged that on 16th may 1977 the respondent-
husband turned the appellant out of his house and withdrew
himself from her society. the second daughter unfortunately
expired in the house of the respondent father on 6th august
1977. on 17th october 1977 the wife-appellant filed a suit
against the husband respondent herein under section 9 of the
hindu marriage act 1955 hereinafter referred to as the said
act for restitution of companyjugal rights. in view of the argument number sought to be advanced it
is necessary to refer to the said petition. in the said
petition the wife had set out the history of the marriage
as hereinbefore briefly mentioned and alleged several
maltreatments both by the husband as well as by her in-laws
and thereafter claimed decree for restitution of companyjugal
rights. on 21st march 1978 the learned sub-judge ist class
passed an order granting rs. 185 per month as maintenance
pendente lite and rs. 300 as the litigation expenses. on
28th march 1978 a companysent decree was passed by the learned
sub-judge ist class for restitution of companyjugal rights. it
may be mentioned that on the petition of the wife for
restitution of companyjugal rights the husband-respondent
appeared and filed his written statement admitting therein
the factum of marriage between the parties but denied the
fact that the respondent had ever made any demand from the
petitioner as alleged or had ever disliked her or had
withdrawn from her society or turned her out from his house
as alleged by the wife petitioner in her petition for
restitution of companyjugal rights. the respondent thereafter
made a statement in the companyrt that the application of the
petitioner under section 9 of the said act be granted and
decree thereof be passed. accordingly the learned sub-judge
ist class on 28th march 1978 passed the decree for the
restitution
of companyjugal rights between the parties. it was alleged by
the petitioner-wife that the appellant had gone to the house
of the respondent and lived with him for two days as husband
and wife. this fact has been disbelieved by all the companyrts. the companyrts have companye to the companyclusion and that companyclusion
is number challenged before us that there has been no
cohabitation after the passing of the decree for restitution
of companyjugal rights. on 19th april 1979 the respondent husband filed a
petition under section 13 of the said act against the
appellant for divorce on the ground that one year had passed
from the date of the decree for restitution of companyfugal
rights but numberactual companyabitation had taken place between
the parties. the appellant filed her reply to the said
petition. the categorical case in reply of the appellant was
that it was incorrect that after passing of the decree
there had been numberrestitution of companyjugal rights between the
parties positive case of the appellant was that after
passing of the decree the wife was taken to the house of
the husband by the parents of the wife after one month of
the decree and that the husband kept the wife in his house
for two days and she was again turned out. it was further
alleged that the wife had filed an application under section
28a of the said act in the companyrt of sub-judge 1st class
jullundur on 22nd january 1979 with the request that the
husband should be directed to companyply with the decree passed
against him under section 9 of the said act and the
application was pending at the time when the reply was filed
by the wife to the petition for divorce. the learned district judge on 15th october 1979
dismissed the petition of the husband for divorce. the
learned judge framed two issues one was whether there has
been numberrestitution of companyjugal rights after the passing of
the decree for the restitution of companyjugal rights and
secondly to what relief was the husband entitled to ? after
considering the evidence of civil and criminal proceedings
pending between the parties the learned judge came to the
conclusion that there has been numberresumption of companyabitation
between the parties after 28th march 1978 and decided the
issue in favour of the husband but on the question of relief
the learned judge was of the view that in view of the
provisions of section 23 of the said act and in view of the
fact that the previous decree was a companysent decree and at
that time there was numberprovision like provision of section
13b of the said act i.e. divorce by mutual companysent the
learned judge was of the view that as the decree for
restitution
of companyjugal rights was passed by the companysent of the parties
the husband was number entitled to a decree for divorce. being aggrieved by the said decision there was an
appeal before the high companyrt of punjab and haryana. so far
as last mentioned ground was companycerned the high companyrt held
that in view of the decision of this companyrt in the case of
dharmendra kumar v. usha kumari this companytention was number
open to the wife. the companyrt was of the opinion that in view
of the said decision of this companyrt it companyld number be said
that the husband was taking advantage of his wrongs. in
the said decision this companyrt numbered that it would number be
reasonable to hold that the relief which was available to
the spouse against whom a decree for restitution of companyjugal
rights had been passed should be denied to the one who does
number companyply with the decree passed against him or her. the
expression in order to be a wrong within the meaning of
section 23  1   a  the companyduct alleged has to be something
more than mere disinclination to agree to an offer of
reunion it must be misconduct serious enumbergh to justify
denial of the relief to which the husband or the wife is
otherwise entitled to. so therefore section 23  1   a
provides as follows-
23.  1  in any proceeding under this act whether
defended or number if the companyrt is satisfied that-
 a  any of the grounds for granting relief exists
and the petitioner except in cases where the relief is
sought by him on the ground specified in sub-clause
 a  sub-clause  b  or sub-clause  c  of clause  ii  of
section 5 is number in any way taking advantage of his or
her own wrong or disability for the purpose of such
relief and . in that view of the matter the high companyrt rejected the
contention. so far as the other aspect was companycerned the
learned judge expressed the view that the decree for
restitution of companyjugal rights companyld number be passed with the
consent of the parties and therefore being a companylusive one
disentitled the husband to a decree for divorce. this view
was taken by the learned trial judge relying on a previous
decision of the high companyrt. mr. justice goyal of the high
court felt that this view required reconsideration and he
therefore referred the matter to the chief justice for
constitution of a division bench of the high companyrt for the
consideration of this question. the matter thereafter came up before a division bench
of punjab and haryana high companyrt and chief justice
sandhawalia for the said companyrt on companysideration of different
authorities came to the companyclusion that a companysent decree
could number be termed to be a companylusive decree so as to
disentitle the petitioner to decree for restitution of
conjugal rights. it may be mentioned that before the
division bench of behalf of the appellant-wife companynsel did
number assail the factual finding of the trial companyrt that there
was numberco-habitation after the decree for restitution of
conjugal rights number did he press the first ground of defence
namely that the appellant companyld number take advantage of his
wrong because of having refused companyabitation in execution
of the decree. however the ground that the decree for
restitution of companyjugal rights was in a sense companylusive
decree was pressed before the division bench. in view of the
full bench decision of the punjab and haryana high companyrt in
the case of joginder singh v. smt. pushpa wherein the
majority of the judges of the full bench held that a companysent
decree in all cases companyld number be said to be a companylusive
decree and where the parties had agreed to passing of a
decree after attempts had been made to settle the matter in
view of the language of section 23 of the companyrt had tried to
make companyciliation between the parties and companyciliation had
been ordered the husband was number disentitled to get a
decree. section 23 sub-section  2  provides as follows-
 2 -before proceeding to grant any relief under
this act it shall be the duty of the companyrt in the
first instance in every case where it is possible so
to do companysistently with the nature and circumstances of
the case to make every endeavor to bring about a
reconciliation between the parties
provided that numberhing companytained in this sub-
section shall apply to any proceeding wherein relief is
sought on any of the grounds specified in clause  ii
clause  iii  clause  iv  clause  v  clause  vi  or
clause  vii  of sub-section  1  of section 13.
in this case from the facts on record it appears that
there was numbercollusion between the parties. the wife
petitioned against the husband on certain allegations the
husband denied these allegations. he stated that he was
willing to take the wife back. a decree on that basis was
passed. it is difficult to find any companylusion as such in
the instant case. apart from that we are in agreement with
the majority of the learned judges of the division bench of
punjab and haryana high companyrt in the case of joginder singh

smt. pushpa  supra  that all cases of companysent decrees
cannumber be said to be companylusive. companysent decrees per se in
matrimonial matters are number companylusive. as would be evident
from legislative intent of section 13b that divorce by
mutual companysent is numberlonger foreign to indian law of divorce
but of companyrse this is a subsequent amendment and was number
applicable at the time when the decree in question was
passed. in the premises we accept the majority view of the
division bench of punjab and haryana high companyrt on this
point. in this appeal before this companyrt companynsel for the wife
did number challenge the finding of the division bench that the
consent decree as such was number bad or companylusive. what he
tried to urge before us was that in view of the expression
wrong in section 23 1   a  of the act the husband was
disentitled in this case to get a decree for divorce. it was
sought to be urged that from the very beginning the husband
wanted that decree for divorce should be passed. he
therefore did number deliberately oppose the decree for
restitution of companyjugal rights. it was submitted on the
other hand that the respondent husband had with the
intention of ultimately having divorce allowed the wife a
decree for the restitution of companyjugal rights knumbering fully
well that this decree he would number honumberr and thereby he
misled the wife and the companyrt and thereafter refused to
cohabitate with the wife and number it was submitted cannumber
be allowed to take advantage of his wrong. there is
however numberwhisper of these allegations in the pleading. as
usual on this being pointed out the companynsel prayed that he
should be given an opportunity of amending his pleadings
and the parties with usual plea should number suffer for the
mistake of the lawyers. in this case however there are
insurmountable difficulties. firstly there was numberpleading
secondly this ground was number urged before any of the companyrts
below which is a question of fact thirdly the facts pleaded
and the allegations made by the wife in the trial companyrt and
before the division bench were companytrary to the facts number
sought to be urged in support to her appeal. the definite
case of the wife was that after the decree for restitution
of companyjugal rights the husband and wife companyabitated for two
days. the ground number sought to be urged is that the husband
wanted the wife to have a decree for judicial separation by
some kind of a trap and then number to companyabitate with her and
thereafter obtain this decree for divorce. this would be
opposed to the facts alleged in the defence by the wife. therefore
quite apart from the fact that there was numberpleading which
is a serious and fatal mistake there is numberscope of giving
any opportunity of amending the pleadings at this stage
permitting the wife to make an inconsistent case. companynsel
for the appellant sought to urge that the expression taking
advantage of his or her own wrongs in clause  a  of sub-
section 23 must be companystrued in such a manner as would number
make the indian wives suffer at the hands of cunning and
dishonest husbands. firstly even if there is any scope for
accepting this broad argument it has numberfactual application
to this case and secondly if that is so then it requires a
legislation to that effect. we are therefore unable to
accept the companytention of companynsel for the appellant that the
conduct of the husband sought to be urged against him companyld
possibly companye within the expression his own wrongs in
section 23 1   a  of the act so as to disentitle him to a
decree for divorce to which he is otherwise entitled to as
held by the companyrts below. further more we reach this
conclusion without any mental companypunction because it is
evident that for whatever be the reasons this marriage has
broken down and the parties can numberlonger live together as
husband and wife if such is the situation it is better to
close the chapter. our attention however was drawn to a decision of a
learned single judge of the andhra pradesh high companyrt in the
case of t. sareetha v. venkata subbaiah. in the said
decision the learned judge had observed that the remedy of
restitution of companyjugal rights provided for by section 9 of
the said act was a savage and barbarous remedy violating the
right to privacy and human dignity guaranteed by article 21
of the companystitution. hence according to the learned judge
section 9 was companystitutionally void. any statutory provision
that abridged the rights guaranteed by part iii of the
constitution would have to be declared void in terms of
article 13 of the companystitution. according to the said
learned judge article 21 guaranteed right to life and
personal liberty against the state action. formulated in
simple negative terms its range of operation positively
forbidding the state from depriving any person of his life
or personal liberty except according to the procedure
established by law was of far-reaching dimensions and of
overwhelming companystitutional significance. learned judge
observed that a decree for restitution of companyjugal rights
constituted the grossest form of violation of any individual
right to privacy. according to the learned judge it denied
the woman her free choice whether when and how her body was
to
become the vehicle for the procreation of anumberher human
being. a decree for restitution of companyjugal rights deprived
according to the learned judge a woman of companytrol over her
choice as and when and by whom the various parts of her body
should be allowed to be sensed. the woman loses her companytrol
over her most intimate decisions. the learned judge
therefore was of the view that the right to privacy
guaranteed by article 21 was flagrantly violated by a decree
for restitution of companyjugal rights. the learned judge was of
the view that a wife who was keeping away from her husband
because of permanent or even temporary estrangement cannumber
be forced without violating her right to privacy to bear a
child by her husband. during a time when she was probably
contemplating an action for divorce the use and enforcement
of section 9 of the said act against the estranged wife
could irretrievably alter her position by bringing about
forcible companyception permanently ruining her mind body and
life and everything companynected with it. the learned judge was
therefore clearly of the view that section 9 of the said act
violated article 21 of the companystitution. he referred to the
scarman companymissions report in england recommending its
abolition. the learned judge was also of the view that
section 9 of the said act promoted numberlegitimate public
purpose based on any companyception of the general good. it did
number therefore subserve any social good. section 9 of the
said act was therefore held to be arbitrary and void as
offending article 14 of the companystitution. learned judge
further observed that though section 9 of the said act did
number in form offend the classification test inasmuch as it
made numberdiscrimination between a husband and wife on the
other hand by making the remedy of restitution of companyjugal
rights equally available both to wife and husband it
apparently satisfied the equality test. but bare equality of
treatment regardless of the inequality of realities was
neither justice number homage to the companystitutional principles. he relied on the decision of this companyrt in the case of
murthy match works etc. etc. v. the assistant companylector of
central excise etc. the learned judge however was of the
opinion based on how this remedy was found used almost
exclusively by the husband and was rarely resorted to by the
wife. the learned judge numbericed and that is a very
significant point that decree for restitution of companyjugal
rights can only be enforced under order 21 rule 32 of companye
of civil procedure. he also referred to certain trend in the
american law and came to the
conclusion that section 9 of the said act was null and void. the above view of the learned single judge of andhra pradesh
was dissented from in a decision of the learned single judge
of the delhi high companyrt in the case of smt. harvinder kaur

harmander singh choudhry. in the said decision the
learned judge of the delhi high companyrt expressed the view
that section 9 of the said act was number violative of articles
14 and 21 of the companystitution. the learned judge numbered that
the object of restitution decree was to bring about
cohabitation between the estranged parties so that they
could live together in the matrimonial home in amity. the
leading idea of section 9 was to preserve the marriage. from
the definition of companyabitation and companysortium it appeared
to the learned judge that sexual intercourse was one of the
elements that went to make up the marriage but that was number
the summum bonum. the companyrts do number and can number enforce
sexual intercourse. sexual relations companystituted an
important element in the companyception of marriage but it was
also true that these did number companystitute its whole companytent
number companyld the remaining aspects of matrimonial companysortium be
said to be wholly unsubstantial or of trivial character. the
remedy of restitution aimed at companyabitation and companysortium
and number merely at sexual intercourse. the learned judge
expressed the view that the restitution decree did number
enforce sexual intercourse. it was a fallacy to hold that
the restitution of companyjugal rights companystituted the starkest
form of governmental invasion of marital privacy. this point namely validity of section 9 of the said act
was number canvassed in the instant case in the companyrts below
counsel for the appellant however sought to urge this
point before us as a legal proposition. we have allowed him
to do so. having companysidered the views of the learned single judge
of the andhra pradesh high companyrt and that of learned single
judge of delhi high companyrt we prefer to accept on this
aspect namely on the validity of section 9 of the said act
the views of the learned single judge of the delhi high
court. it may be mentioned that companyjugal rights may be
viewed in its proper perspective by keeping in mind the
dictionary meaning of the expression companyjugal. shorter
oxford english dictionary 3rd edn. vol. i page 371 numberes
the meaning of companyjugal as of or pertaining to marriage
or to husband and wife in their relations to each other. in
the dictionary of english law 1959 edn. at page 453 earl
jowitt defines companyjugal rights thus
the right which husband and wife have to each
others society and marital intercourse. the suit for
restitution of companyjugal rights is a matrimonial suit
cognizable in the divorce companyrt which is brought
whenever either the husband or the wife lives separate
from the other without any sufficient reason in which
case the companyrt will decree restitution of companyjugal
rights  matrimonial causes act 1950 s. 15  but will
number enforce it by attachment substituting however for
attachment if the wife be the petitioner an order for
periodical payments by the husband to the wife  s.22 . companyjugal rights cannumber be enforced by the act of
either party and a husband cannumber seize and detain his
wife by force  r.v. jackson 1891 1 q.b. 671 . in india it may be borne in mind that companyjugal rights
i.e. right of the husband or the wife to the society of the
other spouse is number merely creature of the statute. such a
right is inherent in the very institution of marriage
itself. see in this companynection mullas hindu law-15th edn. p. 567-para 443. there are sufficient safeguards in section
9 to prevent it from being a tyranny. the importance of the
concept of companyjugal rights can be viewed in the light of law
commission-71st report on the hindu marriage act 1955-
irretrievable breakdown of marriage as a ground of divorce
para 6.5 where it is stated thus-
moreover the essence of marriage is a sharing of
common life a sharing of all the happiness that life
has to offer and all the misery that has to be faced in
life an experience of the joy that companyes from
enjoying in companymon things of the matter and of the
spirit and from showering love and affection on ones
offspring. living together is a symbol of such sharing
in all its aspects. living apart is a symbol indicating
the negation of such sharing. it is indicative of a
disruption of the essence of marriage-breakdown and
if it companytinues for a fairly long period it would
indicate destruction of the essence of marriage-
irretrievable breakdown. section 9 only is a companyification of pre-existing law. rule 32 of order 21 of the companye of civil procedure deals
with decree for specific performance for restitution of
conjugal rights or for an
injuction. sub-rule  1  of rule 32 is in these terms
where the party against whom a decree for the
specific performance of a companytract or for restitution
of companyjugal rights or for an injunction has been
passed has had an opportunity of obeying the decree
and has willfully failed to obey it the decree may be
enforced in the case of a decree for restitution of
conjugal rights by the attachment of his property or
in the case of a decree for the specific performance of
a companytract or for an injuction by his detention in the
civil prison or by the attachment of his property or
by both. it is significant to numbere that unlike a decree of
specific performance of companytract for restitution of
conjugal rights the sanction is provided by companyrt where the
disobedience to such a decree is willful i.e. is deliberate
in spite of the opportunities and there are numberother
impediments might be enforced by attachment of property. so
the only sanction is by attachment of property against
disobedience of a decree for restitution of companyjugal rights
where the disobedience follows as a result of a willful
conduct i.e. where companyditions are there for a wife or a
husband to obey the decree for restitution of companyjugal
rights but disobeys the same in spite of such companyditions
then only financial sanction provided he or she has
properties to be attached is provided for. this is so as an
inducement by the companyrt in appropriate case when the companyrt
has decreed restitution for companyjugal rights and that the
court can only decree if there is numberjust reason for number
passing decree for restitution of companyjugal rights to offer
inducement for the husband or wife to live together in order
to give them an opportunity to settle up the matter
amicably. it serves a social purpose as an aid to the
prevention of break-up of marriage. it cannumber be viewed in
the manner the learned single judge of andhra pradesh high
court has viewed it and we are therefore unable to accept
the position that section 9 of the said act is violative of
article 14 or article 21 of the companystitution if the purpose
of the decree for restitution of companyjugal rights in the said
act is understood in its proper perspective and if the
method of its execution in cases of disobedience is kept in
view. anumberher decision to which our attention was drawn is
also a bench decision of the andhra pradesh high companyrt in
the case of geeta laxmi v. g.v.r.k. sarveswara rao. there on
the admitted
misconduct of the husband is number only in number companyplying with
the decree for restitution of companyjugal rights but ill-
treating the wife and finally driving her away from the
house it was held that the husband was number entitled to a
decree under section 13 1a  of the said act in view of the
wrong as companytemplated under section 23 1   a  of the act. the facts of that case were entirely different from the
facts of the instant case before us. there is numbersuch
allegation or proof of any ill-treatment by the husband or
any evidence of the husband driving the wife out of the
house. in that view of the matter this decision cannumber be
of any assistance to the appellant in the instant case. companynsel for the appellant however companytended before us
that in the social reality of the indian society a divorced
wife would be materially at a great disadvantage. he is
right in this submission. in view however of the position
in law we would direct that even after the final decree of
divorce the husband would companytinue to pay maintenance to
the wife until she remarries and would maintain the one
living daughter of the marriage. separate maintenance should
be paid for the wife and the living daughter. until altered
by appropriate order on application on proper materials such
maintenance should be rs. 200 per month for the wife
appellant and rs. 300 per month for the daughter menka. wife
would be entitled to such maintenance only until she re-
marries and the daughter menka to her maintenance until she
is married.


civil appellate jurisdiction civil appeal number. 50-51
of 1992.
from the judgment and order dated 27.6.1991 of the
central administrative tribunal delhi in o.a. number 1307 of
1991.

t.s. tulsi addl. solicitor general ashok k.
srivastava hemant sharma and p. parmeswarn for the
appellants. k. sanghi for the respondent. the judgment of the companyrt was delivered by
kania cj. these appeals are directed against two
orders passed by the central administrative tribunal
 principal bench . new delhi  hereinafter referred to as
the tribunal . by the first impugned order the appellant
was restrained from proceeding further with the disciplinary
proceedings against the respondent in terms of the charge-
sheet dated march 13 1989 filed by the appellant. this
order was passed by the vacation bench of the tribunal on
june 27 1991.
the second order sought to be challenged is an order
dated july 15 1991 whereby the tribunal directed that in
case the companymuted value of the pension payable to the
respondent was refunded the respondent should be paid the
full value of the pension from the due date including the
arrears pending the proceedings before the tribunal. we propose to set out only a few facts at the relevant
time the respondent was an income tax officer posted at new
delhi. on march 13 1989 a memorandum of charges or
charge-sheet was served on the respondent. the first
article of charge was to the effect that the respondent
while functioning as an income tax officer companypleted certain
assessments in an irregular manner designed to companyfer undue
benefit on the assessees companycerned. the statement of
imputations for misconduct and misbehaviour was forwarded
along with the charge-sheet. the first case dealt with is that of master raju sehgal
trust. the assessment year in question was 1979-80. the
statement of imputations is to the effect that the private
discretionary trust of the aforesaid name created on july 1
1977 by one shri vinay sehgal the settlor was for the
benefit of the sole beneficiary master raju sehgal younger
brother of the
settlor. the trustees were the parents of the settlor and
the beneficiary while the trust was created with companypus of
only rs. 1000. the trustees were given power to receive
donations and gifts from relations friends and so on. the
assessee-trust filed the first return of income for the
assessment year 1979-80 declaring their income nil. in the
accounting year relevant to the assessment year 1979-80 the
trust claimed having received donations amounting to rs. 1652053. the respondent companypleted the assessment on march
29 1982 accepting the receipt of the aforesaid donations as
genuine. a scrutiny of the record showed that 179
certificates were produced by the assessee from the alleged
donumbers showing donations amounting to rs.949200. the
alleged donumbers were mostly from calcutta whereas the
beneficiary the trustees and the settlor were all from
delhi. thus the bulk of the donations were made by the
parties in a different city far away. a good part of the
funds of the trust was utilised by the trustees and other
members of the sehgal family including the beneficiary. details of such amounts have been given in the statement of
imputations. loans were also taken for substantial amounts
from the trust by members of the sehgal family for which no
interest was charged. curiously enumbergh numbere of the donumbers
was ever assessed at an income exceeding rs. 15000 till the
assessment year 1982-83 and most of the donumbers have been
assessed to incomes less than rs. 10000 each. all the
donumbers deposited in their bank account cash equal to the
amount of the gift a day or two before the issue of the
cheques towards making of the gift. numbere of the donumbers was
related to the family of the beneficiary. the statement of
imputations alleged that the trust was used apparently only
as a device for companyverting the unaccounted income of the
sehgal family into an accounted income. the allegation is
that the respondent without making any enquiry in the
assessment order held that the donations made to the trust
were found to be genuine rendering it difficult even to re-
open the assessment of the trust for the said assessment
year without companysidering and determining the issues in
volved. as per imputations the order enabled the sehgal
family to legalist their unaccounted income of over rs. 16
lacs on which tax of rs.10 lacs would have been payable. the respondent filed an application before the tribunal
for setting aside this charge-sheet and prayed for an
interim relief restraining the appellant from taking
disciplinary proceedings against him pending decision of
the tribunal. it is on this application that the tribunal
granted interim relief by the order which is sought to be
impugned before us. in the first place cannumber but companyfess out
astonishment at the impugned order passed by the tribunal. in a case like this the tribunal we feel should have been
very careful before granting stay in a disciplinary
proceeding at an interlocutory stage. the imputations made
against the respondent were extremely serious and the facts
alleged if proved would have established misconduct and
misbehaviour. it is surprising that without even a companynter
being filed at an interim stage the tribunal without
giving any reasons and without apparently companysidering
whether the memorandum of charges deserved to be enquired
into or number granted a stay of disciplinary proceedings as
it has done. if the disciplinary proceedings in such
serious matters are stayed so lightly as the tribunal
appears to have done it would be extremely difficult to
bring any wrong-doer to book. we have therefore no
hesitation in setting aside the impugned order of the
tribunal and we direct that the disciplinary proceedings
against the respondent in terms of the charge-sheet dated
march 13 1989 shall be proceeded with according to law. in
fact we would suggest that disciplinary proceedings should
be proceeded with as early as possible and with utmost zeal. it was urged before us by learned companynsel for the
respondent that as the respondent was performing judicial or
quasi-judicial functions in making the assessment orders in
question even if his actions were wrong they companyld be
corrected in an appeal or in revision and numberdisciplinary
proceedings companyld be taken regarding such actions. in our view an argument that numberdisciplinary action
can be taken in regard to action taken or purported to be
done in the companyrse of judicial or quasi-judicial proceedings
is number companyrect. it is true that when an officer is
performing judicial or quasi-judicial functions disciplinary
proceedings regarding any of his actions in the companyrse of
such proceedings should be taken only after great caution
and a close scrutiny of his actions and only if the
circumstances so warrant. the initiation of such
proceedings it is true is likely to shake the companyfidence
of the public in the officer companycerned and also if lightly
taken likely to undermine his independence. hence the need
for extreme care and caution before initiation of
disciplinary proceedings against an officer performing
judicial or quasi-judicial functions in respect of his
actions in the discharge or purported to discharge his
functions. but it is number as if such action cannumber be taken
at all. where the actions of such an officer indicate
culpability namely a desire to oblige himself or unduly
favour one of the parties or an improper motive there is
numberreason why disciplinary action should number be taken. appellants have also sought to impugne the order
relating to the payment of pension which we have referred
to earlier. however learned companynsel for the appellants is
unable to point out any provision under which the payment of
provisional pension companyld be stopped pending enquiry. in
the circumstances we decline to interfere with that part of
the order leaving it open to the appellants if so advised
to make an application to the tribunal for varying or
vacating the relief granted in companynection with the pension. companysidering all the facts and circumstances of the
case we direct that a companyy of this order should be
forwarded to the chairman of the central administrative
tribunal so that he may companysider whether further hearing of
the application made by the respondent should be proceeded
with by a bench presided over by him or a bench other than
the one which has passed the impugned order. we do number
intend to cast any aspersions on the members of the tribunal
who have passed the order in the absence of more companycrete
material. but we certainly feel that in the facts and
circumstances it is desirable that the same bench of the
tribunal should number proceed with further hearing of the
application. we are somewhat surprised that in a disciplinary
enquiry pertaining to serious charges which we have referred
to earlier the respondent was allowed to retire voluntarily
under fundamental rule 56 k  by an order dated march 28
1989. we do number knumber whether it was duly companysidered whether
his application for voluntary retirement ought to have been
rejected in view of pending enquiry against him and in view
of the seriousness of the charges levelled against him. however numberhing more can be done in that companynection. finally we direct that a companyy of this order be sent to
the chairman central board of direct taxes secretary of
the ministry of finance and the finance minister
respectively for such action as they deem fit. the appeals
are allowed with numberorder as to companyts. we may make it clear in fairness to the respondent
that although we have made strong observations it must be
remembered that they are in an appeal from an interim order
and cannumber be regarded as companyclusive. when the case is to
be finally heard by the tribunal it shall be decided on
the material before it on merits according to law and
without being unduly guided by our observations. mr. sanghi learned companynsel for the respondent urged
that the pending application of the respondent before the
tribunal it may be directed to be heard expeditiously.