civil appellate jurisdiction civil appeal number 1611 of
1971.
appeal by special leave from the judgment and order
dated 29-70 of the judicial companymissioners companyrt tripura
agartala in civil misc. 1st appeal number 4 of 1964.

v. gupte d. n. mukherjee and g. s. chatterjee for
the appellant. k. chatterjee and rathin das for the respondent. the judgment of the companyrt was delivered by
chandrachud j. by a deed of mortgage dated february
10 1943 the respondent mortgaged a tea garden called the
ishanchandrapar tea estate to m s. das bank limited on
january 19 1950 the bank instituted mortgage suit number
2/1950 againstthe respondent on the original side of the
tripura high companyrt for recovering the amount due under the
mortgage. on reorganisation of the judicial administration
in tripura the suit was transferred to the companyrt of the
district judge agartala. on january 20 1950 the bank
applied for the appointment of a receiver. on the district
judge directing that the bank should numberinate a receiver in
terms of clause 12 of the mortgage deed first the secretary
of the bank and later anumberher employee called adhir ranjan
dutta was appointed as the receiver subject to his
furnishing security in the sum of rs. 50000. the receiver
took possession of the estate on 22nd january but since the
security was number furnished the companyrt directed on an
application of the respondent that the receiver should
furnish the requisite security within the time allowed to
him. on february 26 1950 the tea garden was damaged by a
fire which destroyed over 3000 tea saplings. on 28th
february the respondent moved an application asking for
damages from the receiver
on the ground that the fire had occurred due to his
negligence. the respondent also renewed his request that the
receiver be asked to furnish security. on august 26 1950 the appellant m s. howrah insurance
co. limited executed a surety bond in the sum of rs. 50000 in
favour of shri r. m. goswami district judge agartala his
successors successors-in-office and assigns. the bold was
approved and accepted by the district judge on october 10
1950.
by virtue of the powers companyferred by the tripura
 companyrts  order of 1950 which came into force on december
31 1950 the district judge transferred the mortgage suit to
the companyrt of the subordinate judge agartala. the transferee
court was created under the order of 1 950. c
the application filed by the respondent on february 28
1950 for damages was heard along with the mortgage suit. the
learned subordinate judge decreed the suit on may 31 1956
but he also allowed the respondents application for damages
to the extent of rs. 32525. he directed that the receiver
should pay the amount within two months failing which the
amount should be recovered from the security of rs. 50000.
civil miscellaneous first appeal number 22 of 1956 filed by the
receiver against that order was dismissed for default by the
judicial companymissioner tripura on december 18 1959. but he
allowed the respondents cross-objections and enhanced the
damages to rs. 4525.
on october 4 1961 respondent filed in the companyrt of the
subordinate judge execution petition number 39 of 1961 against
the receiver and the appellant praying that execution do
issue against the appellant as directed by the companyrt. the
appellant filed this objections to that petition but the
learned judge rejected the objections and directed that the
damages awarded to the respondent be recovered from the
appellant. the appellant filed an appeal against that order
but it was dismissed by the learned judicial companymissioner on
june 29. 1970. this appeal by special leave is directed
against that judgment. learned companynsel appearing on behalf of the appellant
has raised two companytentions  l  the subordinate judge who
tried the suit is incompetent to enforce the surety bond
executed by the appellant as he is neither the successor number
the successor-in-office number the assign of the district
judge and  2  under the terms of the bond the appellant is
number answerable for the loss caused to the tea garden by
fire. both of these companytentions turn on the terms of the
surety bond and it is therefore necessary to have a look at
that bond. the bond is executed both be the receiver and the
appellant in favour of sri ramani mohan goswami the
district judge of agartala his successors successors-in-
office and assigns. by the bond the executants bound
themselves jointly and severally in the whole of the amount
of rs. 50000 up to the district judge. agartala his
successors
successors-in-office and assigns. the bond though executed
on august 26 1950 relates back to january 22 1950 being
the date when the receiver took possession of the property. it is urged that the bond can be enforced only by or at
the instance af the district judge agartala or his
successors successors-in-office of assigns and the
subordinate judge agartala number being either of these it is
incompetent for him to enforce the bond. we see no
substances in this companytention. the subordinate judge of
agartala may number be the successors-in-office of the district
judge because successor-in-office would mean successor of
the district judge in the post or office of the district
judge. but the subordinate judge agartala is for the
purposes of the present proceedings a successor of the
district judge who was seized of the suit and who
transferred it to the subordinate judge under the tripura
 companyrts  order of 1950. the surety bond was executed in and
for the purposes of the particular proceedings which were
pending before the district judge in order that the bond
should be enforceable at the instance of the presiding
officer of the companyrt. successor therefore must in the
context mean the companyrt which for the time being is seized of
the proceedings. under section 150 of the companye of civil procedure save
as otherwise provided where the business of any companyrt is
transferred to any other companyrt the transferee companyrt has the
same powers and is entitled to perform the same duties as
those respectively companyferred and imposed by the companye upon
the transferor companyrt. the surety bond was a part of the
proceedings pending before the district judge and on the
transfer of the suit the entire proceedings including the
bond. stood validly transferred to the companyrt of the
subordinate judge. thus by virtue of section 150 the
subordinate judge was entitled to exercise the same powers
in the matter of the enforcement of the bond as the district
judge himself. section 145 c  of the companye of civil procedure provides
to the extent material that where any person has become
liable as a surety for the fulfilment of any companydition
imposed on any person under an order of the companyrt in any
suit or in any proceeding j companysequent thereon the decree
or order may be executed against the surety to the extent to
which he has rendered himself personally liable in the
manner provided for the execution of decrees. by the surety
bond the appellant rendered itself liable as a surety for
the fulfilment of the companyditions imposed on the receiver
under the orders passed by the companyrt. therefore the order
for the recovery of damages obtained by the respondent
against the receiver can be executed against the appellant
to the extent to which it rendered itself personally liable
under the terms of the bond. there is numbersubstance in the second companytention either. under the bond the appellant rendered itself liable in
respect of any loss or. damage occasioned by any act or
default of the receiver in relation to his duties as such
receiver as aforesaid. the fire having been caused due to
the receivers negligence in the performance of his duties
the appellant is liable to make good the loss caused to the
tea garden by the
fire. learned companynsel for the appellant however urged that
the appointment of the receiver was limited to the stock-in-
trade machinery and movables in the tea garden and to the
factory premises and since the receiver owed numberobligation
in relation to the tea garden the appellant would number be
liable for the loss caused thereto by the fire. reliance is
placed in support of this argument on the words as
aforesaid which qualify the words in relation to his
duties. the surety bond has undoubtedly to be companystrued
strictly but it is impossible to accept the companytention that
the receiver owed numberduty or obligation in respect of the
tea garden. he was put in possession of the tea garden in
his capacity as a receiver and indeed parties had made
contentions from time to time as to whether the tea garden
was managed by the receiver econumberically and efficiently.


civil appellate jurisdiction civil appeal
number 94 of 1959.
appeal by special leave from the judgment and
decree dated may 7 1957 of the punjab high companyrt
 circuit bench  at delhi in civil revision
application number 144-d of 1957.
bishan narain r. mahalingier and b. c. misra
for the appellants. gurbachan singh and harbans singh for the
respondent. 1961. december 5. the judgment of sinha

j. hidayatullah and shah jj. was delivered by
hidayatullah j. kapur j. delivered a separate
judgment. hidayatullah j.-the appellants  in this
appeal by special leave  are the sons of one gauri
shankar who owned a bungalow knumbern as 5 haily
road new delhi. this bungalow was given to the
respondent by gauri shankar on a monthly rent of
rs. 234-6-0 excluding taxes. the suit out of
which this appeal arises was brought by the
appellants against the respondent rao girdhari
lal chowdhury for his eviction on the ground
 among others  that he had sub-let a portion of
the bungalow after the companymencement of the delhi
and ajmer rent companytrol act 1952  38 of 1952  to
one dr. mohani jain without obtaining the
consent in writing of the landlord as required by
s. 13 1  b  i  of the act. the defence was that
the original companytract of tenancy was entered into
sometime in 1940 and a term in the companytract gave
the tenant right to sub-let. it was alleged that a
letter written by the tenant which embodied the
terms of the tenancy was in the possession of the
landlord and a demand was made for its production. the case of the tenant was that the sub-tenancy
commenced in the year 1951 that is to say before
the passing of the act of 1952 and the tenant was
number required to obtain the written companysent of the
landlord to sublet admittedly in this case no
written companysent was proved. we need number mention
the other allegations and companynter-allegations
which are usual in proceedings between landlords
and tenants the most important of them being
about the arrears of rent which the tenant under
permission of the companyrt ultimately deposited in
court. the issue on which the decisions below have
differed was framed by the sub-judge first class
delhi in the following terms
did the plaintiff companysent to the sub-
letting of parts of the demised premises by
the defendant ? if so when and to what
effect. the trial judge found that there was no
evidence that the landlord was ever companysulted
before a portion of the bungalow was sublet to dr.
mohani jain and further that the sub-tenancy was
created after june 9 1952 the date on which the
act came into force. in reaching the latter
conclusion the trial judge made a reference to a
dispute between the tenant and dr. mohani jain for
fixation of standard rent before the rent companytrol
authorities. in those proceedings dr. mohani jain
had alleged that she was living as a sub-tenant
from the end of 1951 but the tenant had denied
this fact. the proceedings before the rent companytrol
authorities ended in a companypromise but the
admission of the tenant was relied upon to support
the companyclusion that the sub-tenancy companymenced
after the act. the trial judge decreed the suit. the decision of the trial judge was companyfirmed on
appeal by the additional district judge delhi. though dr. mohani jain gave oral evidence in this
case that her sub-tenancy companymenced in december
1951 the additional district judge found
categorically that the sub-tenancy companymenced
sometime after the companying into force of the act. he held that even if dr. mohani jain was living
there even from before it was a guest and number as a
sub-tenant. against the order of the additional district
judge a revision was filed under s. 35  1  of the
act. that section reads as follows
the high companyrt may at any time call
for the record of any case under this act for
the purpose of satisfying itself that a
decision
made therein is according to law and may pass
such order in relation thereto as it thinks
fit. acting in accordance with a decision of the punjab
high companyrt as to the ambit of this section the
learned single judge who heard the revision
application thought that it was companypetent for him
to reconsider the companycurrent findings about the
time when the sub-tenancy companymenced. he held that
dr. mohani jains statement showed that the sub-
tenancy companymenced prior to the passing of the act
and that the landlords companysent in writing was number
necessary. in reaching this companyclusion the
learned judge was of opinion that all the evidence
was number companysidered by the two companyrts below and
that he was entitled in view of the
interpretation placed upon the section above
quoted to go into the matter afresh and decide
the question of fact. it may be pointed out that while the suit was
pending before the subordinate judge an
application was made for the production of the
letter referred to in the written statement of the
tenant to which a passing reference has already
been made. a letter was produced and it is ex. d-

that letter does number disclose all the terms of
the tenancy and it would appear therefore that
the terms of the original tenancy have number been
proved in this case and there is numbermaterial on
which it can be said either way as to whether a
right to sublet was companyferred upon the tenant. the
defendant did number insist in the companyrt of first
instance that there was yet anumberher letter and
the argument to that effect in this companyrt cannumber
be entertained. in reaching the companyclusion that all the
evidence pertinent to the issue was number
considered the learned judge of the high companyrt
stated that ex.p-19 which was the petition filed
by dr. mohani jain under s. 8 of the act to get
the standard rent fixed was number taken into account
by the additional district judge. that petition
contained an averment
that her sub-tenancy companymenced on december 1 1951
with a rent of rs. 100/-per month and that a
cheque for rs. 1800/- as advance rent for 18
months was given by her in the name of the
daughter of the tenant because the tenant
represented that he had numberaccount in the bank and
therefore a cheque should be given in the name of
his daughter. this the learned judge felt
adequately supported the statement of dr. mohani
jain to the same effect as a witness in this case. the learned judge was in error in thinking that
ex. p-19 was number taken into account by the
additional district judge. the latter had in
fact companysidered ex. p-19 the petition of dr.
mohani jain before the rent companytrol authorities. ex. p-20 the reply of the tenant to that petition
and ex.p-21 the petition of companypromise but he
cited exs. p-20 and p-21 only. there is internal
evidence to show that ex. p-19 was in fact
considered because after mentioning the two
exhibits the learned additional district judge
goes on to say as follows
the first of these is the written
statement of the present appellant which he
had filed in a case brought by dr. mohani
jain against him for the fixation of fair
rent. there he had companypletely denied
somewhere in the year 1953 that dr. mohani
jain was his subtenant and companyld number sue for
fixation of rent. this was enumbergh to show
that right up to the year 1953 the appellant
himself did number regard dr. mohani jain as a
sub-tenant. this clearly shows that the learned additional
district judge was weighing ex. p-19 as against
ex. p20 and was acting on ex. p-20 which
contained a material admission by the tenant
before the present dispute had begun. the learned
single judge was therefore in error in departing
from a companycurrent finding of fact on a wrong
supposition. but the question that arises in this appeal
is one deeper than a mere appraisal of the
evidence. it is whether the high companyrt in the
exercise of its revisional power is entitled to
re-assess the value of the evidence and to
substitute its own companyclusions of fact in place of
those reached by the companyrt below. this question
requires an examination of the powers of revision
conferred on the high companyrt by s. 35 of the act. that question is one of companymon occurrence in acts
dealing with some special kinds of rights and
remedies to enforce them. section 35 is
undoubtedly worded in general terms but it does
number create right to have the case reheard as was
supposed by the learned judge. section 35 follows
s. 34 where a right of appeal is companyferred but
the second sub-section of that section says that
numbersecond appeal shall lie. the distinction between an appeal and a
revision is a real one. a right of appeal carries
with it a right of rehearing on law as well as
fact unless the statute companyferring the right of
appeal limits the rehearing in some way as we
find has been done is second appeals arising
under the companye of civil procedure. the power to
hear a revision is generally given to a superior
court so that it may satisfy itself that a
particular case has been decided according to law. under s. 115 of the companye of civil procedure. the
high companyrts power are limited to see whether in a
case decided there has been an assumption of
jurisdiction where numbere existed or a refusal of
jurisdiction where it did or there has been
material irregularity or illegality in the
exercise of that jurisdiction. the right there is
confined to jurisdiction and jurisdiction alone. in other acts the power is number so limited and
the high companyrt is enabled to call for the record
of a case to satisfy itself that the decision
therein is according to law and to pass such
orders in relation to the case as it thinks fit. the phrase according to law refers to the
decision as a whole and is number to be equated to
errors of law or of fact simpliciter. it refers to
the overall decision which must be according to
law which it would number be if there is a
miscarriage of justice due to a mistake of law. the section is thus framed to companyfer larger powers
than the power to companyrect error of jurisdiction to
which s. 115 is limited. but it must number be
overlooked that the section in spite of its
apparent width of language where it companyfers a
power on the high companyrt to pass such order as the
high companyrt might think fit-is companytrolled by the
opening words where it says that the high companyrt
may send for the record of the case to satisfy
itself that the decision is according to law. it
stands to reason that if it was companysidered
necessary that there should be a rehearing a
right of appeal would be a more appropriate
remedy but the act says that there is to be no
further appeal. the section we are dealing with is almost
the same as s. 25 of the provincial small cause
courts act. that section has been companysidered by
the high companyrts in numerous cases and diverse
interpretations have been given. the powers that
it is said to companyfer would make a broad spectrum
commencing at one end with the view that only
substantial errors of law can be companyrected under
it and ending at the other with a power of
interference a little better than what an appeal
gives. it is useless to discuss those cases in
some of which the observations were probably made
under companypulsion of certain unusual facts. it is
sufficient to say that we companysider that the most
accurate exposition of the meaning of such
sections is that of beaumont c.j.  as he then
was  in bell company limited v. waman hemraj  1  where
the learned chief justice dealing with s. 25 of
the provincial small cause companyrts act observed
the object of s. 25 is to enable the
high companyrt to see that there has been no
miscarriage of justice that the decision was
given according to law. the section does number
enumerate
the cases in which the companyrt may interfere in
revision as does s.115 of the companye of civil
procedure and i certainly do number propose to
attempt an exhaustive definition of the
circumstances which may justify such
interference but instances which readily
occur to the mind are cases in which the
court which made the order had no
jurisdiction or in which the companyrt has based
its decision on evidence which should number
have been admitted or cases where the
unsuccessful party has number been given a
proper opportunity of being heard or the
burden of proof has been placed on the wrong
shoulders. wherever the companyrt companyes to the
conclusion that the unsuccessful party has
number had a proper trial according to law then
the companyrt can interfere. but in my opinion
the companyrt ought number to interfere merely
because it thinks that possibly the judge who
heard the case may have arrived at a
conclusion which the high companyrt would number
have arrived at. this observation has our full companycurrence. what the learned chief justice has said
applies to s. 35 of the act with which we are
concerned. judged from this point of view the
learned single judge was number justified in
interfering with a plan finding of fact and more
so because he himself proceeded on a wrong
assumption. the appeal thus succeeds and is allowed with
costs. the order under appeal is set aside and
that of the additional district judge restored. as
regards eviction the respondent has given an
undertaking that he would vacate the house on or
before april 25 1962 and this has been accepted
by the appellants. kapur j.-i agree that the appeal should be
allowed and that the high companyrt was in error in
interfering with the finding of fact but in my
opinion the power of revision under s. 35 1  of
the delhi ajmer rent companytrol act is number so
restricted as was held by beaumont c. j. in bell
co. limited v. waman hemraj 1  a case under s. 25
of the provincial small cause companyrts act. the
section provides that the order passed should be
in accordance with law and if it does number then the
high companyrt can pass such order as it thinks fit. the language used in s. 35 1  of the act is almost
identical with the words of the proviso to s.75 1
of the provincial insolvency act. the power under
that proviso has been thus companymented upon by mulla
in his law of insolvency at page 787 of 2nd
edition
the power given to the high companyrt by
this proviso is very wide. in the exercise of
this power the high companyrt may set aside any
order if it is number according to law. the power under the insolvency act has number by the
courts in india been companysidered to be do
restricted as the observations of beaumont c. j.
in bell company limited v. waman hemraj 1  seem to
suggest in regard to s. 25 of the small cause
courts act. this power of interference by the high
court is number in my opinion restricted to proper
trial according to law or error in regard to onus
of proof or proper opportunity of being heard. it
is very much wider than that.


civil appellate jurisdiction civil appeal number 1 of 1967.
appeal by special leave from the judgment and order dated
september 19 1966 of the andhra pradesh high companyrt in writ
petition number 1253 of 1965.

sen t. lakshmaiah m. m. kshatriya k. venkatramaiah and

s. chatterjee for the appellant. k. ramamurthi shyamala pappu and vineet kumar for
respondent number 2.

h. dhebar and s. s. javali for respondent number 3.
the judgment of the companyrt was delivered by
ramaswami j. this appeal is brought by special leave from
the judgment of the high companyrt of andhra pradesh dated
september 19 1966 in writ petition number 1253 of 1965.
at the last general election to the andhra pradesh
legislative assembly held in february1962 the appellant
and the 2nd respondent p. rajaratnarao-were the
contesting candidates for election from the kodumuru
constituency in kurnumberl district. the result of -the elec-
tion was annumbernced on february 25 1962 and the appellant
was declared to have been elected by a majority of about
7000 votes. the second respondent thereafter filed an
election petition  election petition number 180 of 1962  under
s. 81 of the representation of the people act 1951  act 43
of 1951  hereinafter called the act calling in question
the election of the appellant on the ground that various
corrupt practices had been companymitted at the election and
claiming a two-fold relief namely that the election of the
appellant should be declared to be void and that respondent
number 2 himself should be declared to have been duly elected. after the appellant had filed a written statement the
election tribunal hyderabad framed twenty-two issues but
the trial of the election petition companyld number be proceeded
with as the appellant filed several interlocutory
applications raising various objections and after they were
overruled by the election tribunal the appellant filed
several writ petitions in the andhra pradesh high companyrt. during the pendency of the election petition the appellant
was appointed by the president of india as minister for
labour employment in the central cabinet. subsequent to
that appointment the appellant was elected as a member of
the rajya sabha on march 26 1964. thereupon the appellant
resigned his seat in the legislative assembly on april 8
1964 and intimated the same to the speaker of the assembly. on september 2 1965 the appellant filed the present writ
petition  writ petition number 1253 of 1965  before the andhra
pradesh high companyrt praying for a writ in the nature of
mandamus companymanding the election companymission of india to act
under s. 150 of the act and call upon the kodumuru
constituency to elect a person for the purpose of filling up
the vacancy caused by the resignation of the appellant. the
appellant also prayed for a writ directing the election
commission to withdraw election petition number 180 of 1962
from the file of the election tribunal hyderabad and to
stay all further proceedings in the trial of that election
petition pending the disposal of the writ petition. in the
course of argument before the high companyrt the appellant did
number press the second prayer for directing the election
commission to withdraw the election petition from the file
of the election tribunal hyderabad. with regard to the
first prayer the high companyrt held that numbercase
was made out for the issue of a writ of mandamus to the
election companymission and accordingly dismissed the writ
petition. on behalf of the appellant the argument was put forward that
as soon as the appellant resigned his seat in the
legislative assembly under art. 190 3  b  of the
constitution of india there was a duty cast on the election-
commission to take steps to hold a bye-election for filling
the vacancy so caused under s. 150 of the act. it was
contended that it was incumbent upon the election companymission
to discharge this duty immediately without waiting for the
result of the election petition filed by respondent number 2 on
april 11 1962.
article 190 3  of the companystitution states
190 3  if a member of a house of the
legislature of a state-
 a  becomes subject to any of the
disqualifications mentioned in clause  1  of
article 191 or
 b  resigns his seat by writing under his
hand addressed to the speaker or the chairman
as the case may be
his seat shall thereupon become vacant. article 324  1  of the companystitution provides
the superintendence direction and companytrol of
the preparation of the electoral rolls for
and the companyduct of all elections to
parliament and to the legislature of every
state and of elections to the offices of
president and vice-president held under this
constitution including the appointment of
election tribunals for the decision of doubts
and disputes arising out of or in companynection
with elections to parliament and to the
legislatures of states shall be vested in a
commission  referred to in this companystitution
as the election companymission . section 150 i  of the act states as follows
150.  1  when the seat of a member elected
to the legislative assembly of a state becomes
vacant or is declared vacant or his election
to the legislative assembly is declared void
the election companymission shall subject to the
provisions of sub-section  2  by a
numberification in the official gazette call
upon the assembly companystituency companycerned to
elect a person for the purpose of filling the
vacancy so caused before such date as may be
specified in the numberification and the
provisions of this act and of the rules and
orders made thereunder shall apply as far as
may be in relation to the election of a
member to fill such vacancy. sections 84 of the act provides
a petitioner may in addition to claiming a
declaration that the election of all or any of
the returned candidates is void claim a
further declaration that he himself or any
other candidate has been duly elected. section 98 reads as follows
at the companyclusion of the trial of an election
petition the tribunal shall make an order-
 a  dismissing the election petition or
 b  declaring the election of all or any of
the returned candidates to be void or
 c  declaring the election of all or any of
the returned candidates to be void and the
petitioner or any other candidate to have been
duly elected
it was argued for the appellant that s. 150 of the act
contemplates three companytingencies on the happening of any one
of which the election companymission may call for a bye-
election. the first companytingency namely the seat of a
member becoming vacant arises when a member resigns his
seat the second companytingency namely the seat of a member
being declared vacant is brought about when a member
absents himself from meetings of the house of the
legislature for a period of sixty days without the
permission of the house while the third companytingency arises
when the election of a member to the legislative assembly is
declared void by an election tribunal under s. 98  b  of the
act at the companyclusion of the trial of an election petition. it was argued for the appellant that the three
contingencies companytemplated by the section are mutually
exclusive and upon the happening of any one of them an
obligation is cast upon the election companymission to take
steps to hold a bye-election forthwith. in the present
case it was pointed out that the first companytingency has
arisen namely the seat of a member became vacant upon his
resignation and it was manifestly the duty of the election
commission to take steps forthwith to hold a bye-election to
fill the vacancy irrespective of the fact that an election
petition was pending in which the second respondent had
asked for a declaration that the election of the appellant
was void and also for the relief that he himself should be
declared to be duly elected. we are unable to accept the argument of the appellant as
correct. in our opinion the provisions of s. 150 of the
act must be interpreted in the companytext of ss. 84 and 98 c
and other relevant
provisions of part iii of the same act. if the
interpretation companytended for by the appellant is accepted as
correct the vacancy must be filled by a bye-election as soon
as a member resigns his seat numberwithstanding the pendency
-of an election petition challenging his election. if the
candidate who filed the election petition eventually gets a
declaration that the election of the member is void and that
he himself had been duly elected there will be two candi-
dates representing the same companystituency at the same time
one of them declared to be duly elected at the general
election and the other declared to have been elected at the
bye-election and an impossible situation would arise. it
cannumber be supposed that parliament companytemplated such a
situation while enacting s. 150 of the act. parliament
could number have intended that the provisions of part vi of
the act pertaining to election petitions should stand
abrogated as soon as a member resigns his seat in the legis-
lature. it is a well-settled rule of companystruction that the
provisions of a statute should be so read as to harmonise
with one anumberher and the provisions of one section cannumber be
used to defeat those of anumberher unless it is impossible to
effect reconciliation between them. the principle stated in
crawfords statutory companystruction at page 260 is as follows
hence the companyrt should when-it seeks the
legislative intent companystrue all of the
constituents parts of the statute together
and seek to ascertain the legislative
intention from the whole act companysidering
every provision thereof in the light of the
general purpose and object of the act itself
and endeavouring to make every part effective
harmonious and sensible. this means of
course that the companyrt should attempt to avoid
absurd companysequences in any part of the statute
and refuse to regard any word phrase clause
or sentence superfluous unless such a result
is clearly unavoidable. it is therefore number permissible in the present case to
interpret s. 150 of the act in isolation without reference
to part iii of the act which prescribes the machinery for
calling in question the election of a returned candidate. when an election petition has been referred to a tribunal by
the election companymission and the former is seized of the
matter the petition has to be disposed of according to
law. the tribunal has to adjudge at the companyclusion of the
proceeding whether the returned candid has or has number
committed any companyrupt practice at the election and secondly
it has to decide whether the second respondent should or
should number be declared to have been duly elected. a
returned candidate cannumber get rid of an election petition
filed against him by resigning his seat in the legislature
whatever the reason for his resignation may be. in the
present case the election petition filed by respondent number
2 has prayed for a companyposite relief namely that the
election of the
appellant should be declared to be void and that respondent
number 2 should be declared to be duly elected. in a case of
this description the election companymission is number bound
immediately to call upon the assembly companystituency to elect
a person for the purpose of filling the vacancy caused by
the resignation of the appellant. it is open to the
election companymission to await the result of the election
petition and thereafter decide whether a bye-election should
be held or number. if the election petition is ultimately
dismissed or if the election is set aside but numberfurther
relief is given a bye-election would follow. if. however
respondent number 2 who filed the election petition or any
other candidate is declared elected the provisions of s.
1.50 of the act cannumber operate at all because there is no
vacancy to be filled. in the present case therefore we
hold that the election companymission is number bound under s. 150
of the act to hold a bye-election forthwith but may suspend
taking action under that section till the result of the
election petition filed by respondent number 2 is knumbern. this view is also supported by the circumstance that no
time limit is fixed in the section for the election
commission to call upon the assembly companystituency companycerned
to elect a person for filling the vacancy. number does the
section say that the election companymission shall hold a bye-
election forthwith or immediately. it is also
conceivable that there may be a situation in which the
election companymission may number hold a bye-election at all or
may hold the bye-election after a delay of 2 or 3 months. take for instance a case where a member resigns his seat in
the legislative assembly of a state 3 months before a
general election is due to be held. it cannumber be suggested
that the election companymission is bound under s. 150 1  of the
act to hold a bye-election forthwith in that vacancy. take
also anumberher instance where a member of an assembly of
himachal pradesh resigns his seat during winter. it cannumber
be argued that the election companymission is bound to issue a
numberification for a bye-election forthwith though the
climatic companyditions are unsuitable for holding such a bye-
election. the view that we have expressed as to the scope and effect
of s. 150 of the act is borne out by the following passage
from mays parliamentary practice 17th edn. pp. 176-177
where a vacancy has occurred prior to or
immediately after the first meeting of a new
parliament the writ will number be issued until
the time for presenting election petitions has
expired. number will a writ be issued if the
seat which has been vacated be claimed on
behalf of anumberher candidate. in december 1852 several members against
whose return election petitions were pending
accepted office under
the crown. after much companysideration it was
agreed that where a void election only was
alleged a new writ should be issued
 southampton and carlow writs 29 dec. 1852
and again in 1859 and in 1880 the same rule
was adopted. where the seat is claimed it has been ruled
that the writ should be withheld until after
the trial of that claim  athlone election
1859  or until the petition has been
withdrawn louth election  mr. chichester
fortescue  1866.
in 1859 viscount bury accepted office under
the crown while a petition against his return
for numberwich on the ground of bribery was
pending and as his seat was number claimed a
new writ was issued. being again returned a
petition was presented against his second
election claiming the seat for anumberher
candidate.


civil appellate jurisdiction civil appeal number 2470 of
1968.
from the judgment and order dated 17-1-68 of the bombay
high companyrt in special civil application number 6/68. and
civil appeal number.39-40 of 1969
from the judgment and order dated 17-1-68 of the bombay
high companyrt in s.c.a.number. 4 and 5 of 1968.
and
civil appeal number. 1925-1926 of 1972
from the judgement and order dated 7/8-3-1972 of the
bombay high companyrt in civil application number. 3077/67 and
570/68. k. sen shanti bhusan b. dutta k. k.manchanda and

k. srivastava for the appellants in ca 2470/68 and ca
number. 39-40/69. v. patel p. h. parakh c. b. singh miss vineeta
caprihan and b. l. verma for the appellants in ca 1925-
1926/72. l. nain s. p. nayar and m. n. shroff for the
respondents. the judgment of the companyrt was delivered by
koshal j. by this judgment we shall dispose of five
civil appeals in each one of which the appellant who is a
registered companyoperative society challenges a judgment of
the high companyrt of bombay dismissing its petition for the
issuance of an appropriate writ striking down the levy and
demand of the cess imposed on it under the bombay sugarcane
cess act 1948  hereinafter referred to as the bombay act
supplemented by the sugarcane cess  validation  act 1961
 for short the central act . the following table indicates the name of the
appellant and the amount of cess impugned in each of the
appeals as also other relevant particulars

numberof name of amount of period to date of authority
appeal appellant cess which the the order passing
 rs.  amount of assess the order
relates ment

1 2 3 4 5 6
civil the shetkari 1-7-1959 sugarcane
appeal sahakari to cess
number 39 sakhar kar- 370072.50 30-6-1960 21-12-60 officer
of 1969 khana limited sangli. sangli. 1 2 3 4 5 6

civil the shetkari 1-7-1960 sugarcane
appeal sahakari 801131.24 to cess
number40 sakhar kar- 30-6-1961 24-5-66 officer
of 1969 khana limited sangli. sangli
civil 1-7-1961
appeal to
number 2470 do. 324610.35 31-12-1961 24-5-66 do. of 1968
civil ashok saha- 1-7-1961 sugarcane
appeal kari sakhar 373640.56 to 12-4-62 cess
number1925 karkhana 31-12-61 officer
of 1972. limitedashok- ahmed-
nagar. civil girna  i 577329.65 1-7-1960 18-7-62 sugarcane
appeal sahakari to cess offi
number1926 sakhar 30-6-1961 cernasik
of 1972 karkhana  ii 191409.53 1-7-1961 18-7-62 do. limiteddabhadi. to
31-12-1961

it may be of advantage to reproduce here the
relevant provisions of the bombay act clause  1   2   3
and  4  of section 2 thereof read thus

in this act unless there is anything repugnant in
the subject or companytext-
 1  factory means any premises including the
precincts thereof wherein twenty or more
workers are working or were working on any
day of the preceding twelve months and in any
part of which any manufacturing process
connected with the production of sugar by
means of vacuum pans is being carried on or
is ordinarily carried on with the aid of
power
 2  local area means any area companyprised in such
factories as may be specified in the
numberification under section 3
 3  numberified factory means a factory specified
in the numberification under section 3
 4  occupier means the person who has ultimate
control over the affairs of a numberified
factory provided that where the affairs of
such factory are entrusted to a
managing agent such agent shall be deemed to
be the occupier
section 3 empowers the state government to specify by
numberification in the official gazette any factory the area
comprised in which shall be a local area for the purposes of
the act. section 4 minus the proviso states

a cess at such rate number exceeding ten rupees
per ton as may be specified by the state government in
a numberification in the official gazette shall be levied
on the entry of sugarcane into a local area for
consumption or use therein
section 5 provides for licences to be taken out by
consumers or users of sugarcane in numberified factories while
section 6 lays down that every occupier shall furnish to the
prescribed authority before the seventh day of each month a
return in the prescribed form stating the total quantity in
tons of sugarcane which entered the local area companyprised in
his factory for companysumption of or use therein during the
preceding month. section 7 and 8 provide for the assessment
recovery and companylection of the sugarcane cess. the rest of
the act companysists of miscellaneous provisions which need number
be referred to here. number we may detail the circumstances in which the
central act was made part of the statute book. in 1956 the

p. legislature passed the u.p. sugarcane cess act
 hereinafter referred to as the u.p. act  the provisions
of which were similar to that of the bombay act. section 3
of the u.p. act authorised the state government to impose
by numberification in the official gazette a cess number
exceeding four annas per maund on the entry of sugarcane
into the premises of a factory for use companysumption or sale
therein. the companystitutional validity of that section was
challenged in diamond sugar mills limited anumberher v. the
state of uttar pradesh anumberher. reliance on behalf of the
state was placed on entry 52 in list ii forming part of the
seventh schedule to the companystitution of india in support of
the argument that the cess was validly levied. that entry
reads thus

taxes on the entry of goods into a local area
for companysumption use or sale therein. the companynsel for the appellant in that case however companytended
that the premises of a factory were number a local area within
the meaning of the entry and that the act was therefore
beyond the companypetence of the state legislature. out of the
five judges of this companyrt who decided
the case four  jafar imam j. l. kapur k. c. das gupta and
raghubar dayal jj.  accepted the companytention and struck down
the act as a whole being of the opinion that the proper
meaning to be attached to the words local area in entry 52
was an area administered by a local body like a
municipality a district board a local board a union
board a panchayat or the like and that the premises of a
factory were therefore number a local area within the meaning
of the entry. by the time the diamond sugar mills case was decided
enactments similar in companytent and effect to the bombay act
had been passed by legislatures of various states and
parliament companysidered it advisable to make the cess imposed
by these enactments a companystitutionally valid cess and that
was the reason for the passage of the central act. clause  a  of section 2 of the central act defined
cess thus
cess means the cess payable under any state act
and includes any sum recoverable under any such act by
way of interest or penalty
clause  b  of the section defined state act as any of the
acts mentioned in the latter portion of the clause as in
force in any state from time to time. the acts mentioned
included the bombay act. sub-section  1  of section 3 of the central act may be
set out in extenso as it is mainly that provision which has
been attacked before us on behalf of the appellants
3.  1  numberwithstanding any judgment decree or
order of any companyrt all cesses imposed assessed or
collected or purporting to have been imposed assessed
or companylected under any state act before the
commencement of this act shall be deemed to have been
validity imposed assessed or companylected in accordance
with law as if the provisions of the state acts and of
all numberifications orders and rules issued or made
thereunder in so far as such provisions relate to the
imposition assessment and companylection of such cess had
been included in and formed part of this section and
this section had been in force at all material times
when such cess was imposed assessed or companylected and
accordingly-
 a  numbersuit or other proceeding shall be maintained or
continued in any companyrt for the refund of any cess
paid under any state act
 b  numbercourt shall enforce a decree or order directing
the refund of any cess paid under any state act
and
 c  any cess imposed or assessed under any state act
before the companymencement of this act but number
collected before such companymencement may be
recovered  after assessment of the cess where
necessary  in the manner provided under that act. we may number take up for companysideration the companytentions
raised at the hearing before us. mr. a. k. sen representing
the appellant in civil appeal number 2470 of 1968 argued in the
first instance that the central act merely authorized the
collection of amounts which had already been imposed
assessed or companylected and that numberassessment recovery or
collection companyld be made under section 3 of the central act
read with the relevant provisions of the bombay act after
the enforcement of the central act. the companytention is
without force and in this companynection we need do numbermore than
refer to the language of clause  c  above extracted which
specifically authorizes both assessment and recovery of the
cess after the companymencement of the central act and to two
earlier decisions of this companyrt in which an identical
argument was made and repelled. the first of those decisions
is reported as jaora sugar mills  p  limited v. state of madhya
pradesh and others. the following observations made therein
by gajendragadkar c.j. who delivered the judgment of the
court are pertinent
section 3 does number purport to validate the
invalid state statutes. what parliament has done by
enacting the said section is number to validate the
invalid state statutes but to make a law companycerning
the cess companyered by the said statutes and to provide
that the said law shall companye into operation
retrospectively. there is a radical difference between
the two positions. where the legislature wants to
validate an earlier act which has been declared to be
invalid for one reason or anumberher it proceeds to
remove the infirmity from the said act and validates
its provisions which are free from any infirmity. that
is number what parliament has done in enacting the present
act. parliament knew that the relevant state acts were
invalid because the state legislatures did number possess
legislative companypetence to enact them. parliament also
knew that it was fully companypetent to make an act in
respect of the subject-matter companyered by the said
invalid state statutes. parliament however decided
that rather than make elaborate and long provisions in
respect of the recovery of cess it would be more
convenient to make a
compendious provision such as is companytained in s. 3. the
plain meaning of s. 3 is that the material and relevant
provisions of the state acts as well as the provisions
of numberifications orders and rules issued or made
thereunder are included in s. 3 and shall be deemed to
have been included at all material times in it. in
other words what s. 3 provides is that by its order
and force the respective cesses will be deemed to have
been recovered because the provisions in relation to
the recovery of the said cesses have been incorporated
in the act itself. the companymand under which the cesses
would be deemed to have been recovered would
therefore be the companymand of parliament because all
the relevant sections numberifications orders and rules
have been adopted by the parliamentary statute itself. we are therefore satisfied that the sole basis on
which mr. pathaks argument rests is invalid because
the said basis is inconsistent with the plain and clear
meaning of s. 3. as we have already indicated mr.
pathak does number dispute-and rightly-that it is
competent to parliament to make a law in respect of the
cesses in question to apply the provision of such a
law to the different states and to make them
retrospective in operation
the second case on the point is reported as bhopal
sugar industries limited v. state of madhya pradesh and others
in which shinghal and desai jj. followed the jaora sugar
mills case and shinghal j. who delivered the judgment of
the companyrt spoke thus in companynection therewith
the decision in diamond sugar mills case came up
for companysideration in this companyrt in jaora sugar mills

ltd. v. state of madhya pradesh and others with a
specific reference to the provisions of the state act
and it was once again held following that decision
that the imposition of the cess was outside the
legislative companypetence of the state. while examining
that aspect of the companytroversy this companyrt made it
clear that what parliament had done by enacting section
3 of the validation act was number to validate the invalid
state statutes but to make a law companycerning the cess
covered by the said statutes and to provide that the
said law shall companye into operation retrospectively. this companyrt clarified that by virtue of section 3 of the
validation act the companymand under which the cess would
be deemed to have been recovered would be the companymand
of the parliament because
the relevant sections numberifications orders and rules
had been adopted by the parliamentary statute itself. with respect we also fully agree with the view
expressed in jaora sugar mills case  supra . it is thus
plain that section 3 of the central act did number merely
validate what the state authorities had already done under
the bombay act but actually re-enacted the provisions of the
bombay act by virtue of the authority vested in parliament
under entry 97 in list i of the seventh schedule to the
constitution of india so that the bombay act became fully
alive and operative as an enactment of parliament as soon as
the central act was promulgated and the authorities named in
the act were invested with full power to assess and recover
the cess number under the bombay act but under the central act
into which the provisions of the bombay act and the rules
framed as well as the numberifications issued thereunder became
incorporated. the only other companytention put forward by mr. sen
 which was reiterated by mr. shanti bhushan on behalf of the
appellant in civil appeal number 39 of 1969  was that the
assessments having been made under statutory provisions
which were invalid because of lack of legislative companypetence
on the part of the bombay legislature parliament companyld number
pass a law retrospectively validating those assessments by
converting their character from assessments under the state
statutes to those made under its own statute operating
retrospectively. this companytention also was repelled by this
court in jaora sugar mills case  supra  with the following
observations
so the crucial question is if companylections are
made under statutory provisions which are invalid
because they deal with a topic outside the legislative
competence of the state legislatures can parliament
in exercise of its undoubted legislative companypetence
pass a law retrospectively validating the said
collections by companyverting their character from
collections made under the state statutes to that of
collections made under its own statute operating
retrospectively ? in our opinion the answer to this
question has to be in the affirmative because to hold
otherwise would be to cut down the width and amplitude
of the legislative companypetence companyferred on parliament
by art. 248 read with entry 97 in list i of the seventh
schedule. whether or number retrospective operation of
such a law is reasonable may fall to be companysidered in
certain cases but that companysideration has number been
raised before us and in the circumstances of this case
it cannumber
validity be raised either. we must therefore hold
that the high companyrt was right in rejecting the
appellants case that the act was invalid and hence no
demands companyld be made under its provisions either for a
cess or for companymission. with the greatest respect we find numberreason at all to
differ. article 265 of the companystitution of india was pressed
into service by mr. shanti bhushan in support of the
proposition that numbertax companyld be levied or companylected except
by authority of law. the proposition is unexceptionable but
we fail to see in what manner parliament lacked the
authority of law while enacting the central act and
incorporating into it the provisions of the bombay act. as
pointed out above entry 97 in list i of the seventh
schedule to the companystitution of india provides full
legislative companypetence to parliament in relation to the
central act inasmuch as it vests all residuary powers of
legislation in parliament. the companytention based on alleged
lack of authority of law in parliament is therefore
repelled. the submissions made by mr. patel appearing for the
appellants in civil appeals number 1925 and 1926 of 1972 alone
number remain to be companysidered. he put forward two points. the
first one was that section 4 of the bombay act was
discriminatory that the power companyferred by it was unguided
and uncanalised and that therefore it was hit by article 14
of the companystitution of india. when asked as to whether the
point had been raised before the high companyrt mr. patels
answer was in the negative and it transpired that no
foundation for the point had been laid even in the pleadings
submitted to the high companyrt. it was therefore number allowed to
be raised by us at this late stage. mr. patels second point was that in view of the
proviso to clause  4  of section 2 of the bombay act the
managing agents of the factories in question would alone be
liable and that the assessed cess companyld number be recovered
from his clients who were owners of the companycerned factories. the point is wholly without substance and that for two
reasons. for one thing numbermanaging agent is involved in the
two appeals in which mr. patel has put in appearance. secondly clause  4  of section 2 merely defines the term
occupier and has numberhing to say about the person on whom
the cess is to be imposed or from whom it is to be
recovered. there are numberdoubt other provisions in the bombay
act section 6 sub-section  1  of section 7 and section 8
which indicate that the authorities assessing or recovering
the tax are primarily to deal with the occupier but those
provisions have obviously been enacted as a matter of
convenience
both for the said authorities and the assessees so that an
absent owner may number be unduly harassed number proceedings
delayed by reason of his absence and number for limiting to the
occupier alone the liability to pay the cess.


criminal appellate jurisdiction criminal appeal number 213 of
1960.
appeal by special leave from the judgment and order dated
march 24 1960 of the punjab high companyrt  circuit bench delhi
in criminal appeal case number 41-d of 1958.

l. anand and k. baldev mehta for the appellant. d. mahajan and p. d. menumber for the respondent. 1962. numberember 29. the judgment of the companyrt was delivered
by
subba rao j.-this appeal by special leave raises the
question as to the true meaning of the expression
fraudulently in s. 464 of the indian penal companye. the facts either admitted or found by the companyrts below may
be briefly stated. the appellant is the wife of siri chand
kaviraj. on january 20 1953 she purchased an austin 10
horse power car with the registration number dla. 4796 from
dewan ram swarup in the name of her minumber daughter nalini
aged about six months at that time. the price for the car
was paid by dr. vimla. the transfer of the car was numberified
in the name of nalini to the motor registration authority. the car at that time was insured against a policy issued by
the bharat fire general insurance company limited and the
policy was due to expire sometime in april 1953. on a
request made by dewan ram swarup the said policy was
transferred in the name of nalini. in that companynection dr.
vimla visited the insurance companypanys office and signed the
proposal form as nalini. subsequently she also filed two
claims on the ground that the car met with accidents. in
connection with these claims she signed the claim forms as
nalini and also the receipts acknumberledging the payments of
the companypensation money as nalini. on a companyplaint made by
the companypany alleging fraud on the part of dr. vimla and her
husband the police made investigation and prosecuted dr.
vimla and her husband siri chand kaviraj in the companyrt of
magistrate 1st class delhi. the magistrate companymitted dr.
vimla and her husband to sessions to take their trial under
ss. 120-b 419 467 and 468 of the indian penal companye. the
learned sessions judge held that numbercase had been made out
against the accused under any one of those sections and on
that finding acquitted both of them. the state preferred
an appeal to the high companyrt of punjab and the appeal was
disposed of by a division bench of that companyrt companyprising
falshaw
and choprajj. the learned judges companyfirmed the acquittal
of siri chand but in regard to dr.vimla they companyfirmed
her acquittal under s. 419 of the indian penal companye but set
aside her acquittal under ss. 467 and 468 of the companye and
instead companyvicted her under the said sections and sentenced
her to imprisonment till the rising of the companyrt and to the
payment of a fine of rs. 100/- or in default to under- go
simple imprisonment for two weeks. dr. vimla has preferred
the present appeal by special leave against her companyviction
and sentence. the facts found may be briefly summarised thus dr. vimla
purchased a motor car with her own money in the name of her
minumber daughter had the insurance policy transferred in the
name of her minumber daughter by signing her name and she also
received companypensation for the claims made by her- in regard
to the two accidents to the car. the claims were true
claims and she received the moneys by signing in he claim
forms and also in the receipts as nalini. that is to say
dr. vim a in fact and in substance put through her
transactions in companynection with the said motor car in the
name of her minumber daughter. nalini was in fact either a
benamidar for dr. vimla or her name was used for luck or
other sentimental companysiderations. on the facts found
neither dr. vimla got any advantage either pecuniary or
otherwise by signing the name of nalini in any of the said
documents number the insurance companypany incurred any loss
pecuniary or otherwise by dealing with dr. vimla in the
name of nalini. the insurance companypany would number have acted
differently even if the car stood in the name of dr. vimla
and she made the claims and received the amounts from the
insurance companypany in her name. on the said facts the
question that arises in this case is whether dr. vimla was
guilty of offences under ss. 463 and 464 of the indian penal
code. learned companynsel for the appellant companytends that on the facts
found the appellant would number be guilty of forgery as she
did number fraudulently sign the requisite forms and the
receipts in the name of nalini as. by so signing she did
number intend to cause injury to the insurance companypany. in
other words the companytention was that a person does number act
fraudulently within the meaning of s. 464 unless he is number
only guilty of deceit but also he intends to cause injury to
the person or persons deceived and as in the present case
the appellant had never had the intention to cause injury to
the insurance companypany and as on the facts found numberinjury
had been caused at all to the companypany the appellant companyld
number be found guilty under the said sections. before we companysider the decisions cited at the bar it would
be companyvenient to look at the relevant provisions of the
indian penal companye. section 463 whoever makes any false document or part of a
document with intent to cause damage or injury to the
public or to any person or to support any claim or title
or to cause any person to part with property or to enter
into any express or implied companytract or with intent to
commit fraud or that fraud may be companymitted companymits
forgery. section 464 a person is said to make a false document-
first--which dishonestly or fraudulently
makes signs seals or executes a document or
part of a document or makes any mark denumbering
the execution of a document with the
intention of causing it to be believed that
such document or part of a document was made
signed sealed or executed by or by the
authority of a person by whom or by whose
authority he knumbers that it was number made
signed sealed or executed or at a time
at which he knumbers that it was number made signed scaled or
executed or
the definition of false document is a part of the
definition of forgery. both must be read together. if
so read the ingredients of the offence of forgery relevant
to the present enquiry are as follows   1  fraudulently
signing a document or a part of a document with an intention
of causing it to be believed that such document or part of a
document was signed by anumberher or under his authority  2
making of such a document with an intention to companymit fraud
or that fraud may be companymitted. in the two definitions
both mens rea described in s.464 i. e. fradulently and
the intention to companymit fraud in s. 463 have the same
meaning. this redundancy has perhaps become necessary as
the element of fraud is number the ingredient of other in-
tentions mentioned in s. 463. the idea of deceit is a
necessary ingredient of fraud but it does number exhaust it
an additional element is implicit in the expression. the
scope of that something more is the subject of may
decisions. we shall companysider that question at a later stage
in the light of the decisions bearing on the subject. the
second thing to be numbericed is that in s. 464 two adverbs
dishonestly and fraudulently are used alternatively
indicating thereby that one excludes the other. that means
they are number tautological and must be given different
meanings. section 24 of the penal companye defines
dishonestly thus
whoever does anything with the intention of causing
wrongful gain to one person or wrongful loss to anumberher
person is said to do that thing dishonestly. fraudulently is defined in s. 25 thus
a perosn is said to do a thing fraudulently if he does
that thing with intent to
defrand but number otherwise. the word defraud includes an element of deceit. deceit is
number an ingredient of the definition of the word
dishonestly while it is an important ingredient of the
definition of the word fraudulently. the former involves
a pecuniary or econumberic gain or loss while the latter by
construction excludes that element. further  the
juxtaposition of the two expressions dishonestly and
fraudulently used in the various sections of the companye
indicates their close affinity and therefore the definition
of one may give companyour to the other. to illustrate in the
definition of dishonestly wrongful gain or wrongful loss
is the necessary enumbergh. so too if the expresssion
fraudulently were to be held to involve the element of
injury to the person or persons deceived it would be
reasonable to assume that the injury should be something
other than pecuniary or econumberic loss. though almost always
an advantage to one causes loss to anumberher and vice versa
it need number necessarily be so. should we hold that the
concept of fraud would include number only deceit but also
some injury to the person deceived it would be appropriate
to hold by analogy drawn from the definition of
dishonestly that to satisfy the definition of
fraudulently it would be enumbergh if there was a number-
econumberic advantage to the deceiver or a number-econumberic loss to
the deceived. both need number companyexist. let us number companysider some of the leading text book writers
and decisions to ascertain the meaning of the word
fraudulently. the classic definition of the word fraudulently is found
in stepliens history of the criminal law of england vol. 2 at p. 121 and it reads
i shall number attempt to companystruct a definition which will
meet every case which might
be suggested but there is little danger in saving that
whenever the words fraud or intent to defraud or
fraudulently occur in the definition of a crime two
elements at least are essential to the companymission of the
crime namely first deceit or an intention to deceive or
in some cases mere secrecy and secondly either actual
injury or possible injury or to a risk of possible injury
by means of that deceit or secrecy this intent
is very seldom the only or the principal intention
entertained by the fraudulent person whose principal object
in nearly every case is his own advantage a
practically companyclusive test of the fraudulent character of a
deception for criminal purposes is this did the author of
the deceit derive any advantage from it which companyld number have
been had if the truth had been knumbern ? if so it is hardly
possible that the advantage should number have had an
equivalent in loss or risk of loss to someone else and if
so there was fraud. it would be seen from this passage that fraud is made up
of two ingredients deceit and injury. the learned author
also realizes that the principal object of every fraudulent
person in nearly every case is to derive some advantage
though such advantage has a companyresponding loss or risk of
loss to anumberher. though the author has number visualized the
extremely rare situation of an advantage secured by one
without a companyresponding loss to anumberher this idea is
persued in later decisions. as regards the nature of this injury in kennys outline of
criminal law 15th edn. at p. 333 it is stated that
pecuniary detriment is unnecessary. in haycraft v. creasy  1  leblanc observed
 1   1801  2 east 92.
by fraud is meant an intention to deceive whether it be
from any expectation of advantage to the party himself or
from the ill-will towards the other is immaterial. this passage for the first time brings out the distinction
between an advantage derived by the person who deceives in
contrast to the loss incurred by the person deceived. buckley. j. in re london clobe finance companyporation limited
 1  brings out the ingredients of fraud thus
to deceive is i apprehend to induce a man to believe that
a thing is true which is false and which the person
practising the deceit knumbers or believes to be false. to. defraud is to deprive by deceit it is by
deceit to induce a man to act to his injury
more tersely it may be put that to deceive is
by falsehood to induce a state of mind to
defraud is by deceit to induce a companyrse of
action. the english decisions have been elaborately companysidered by
the companyrt of criminal appeal in r. v. welhant  2 . in that
case hire-purchase finance companypanies advanced money on a
hire-purchase form and agreement and on credit-sale
agreements witnessed by the accused. the form and
agreements were forgeries the accused was charged with
offences of uttering forged documents with intent to
defraud. it was number proved that he had intended to cause
any loss of once to the finance companypanies. his intention
had been by deceit to induce any person who was charged with
the duty of seeing that the credit restrictions then current
were observed to act in a way in which lie would number act if
he had knumbern the true facts namely number to prevent the
advancing of large sums of money exceeding the limits
allowed by law it the time. the companyrt held that the said
intention amounted to intend to defraud.  1   1903  1 ch 732.  2   1960  1 all. e. r. 260 264 266.
hilbery j. speaking for the companyrt pointed out the
distinction between deceit and defraud and came to the
conclusion that to defraud is to deprive by deceit. adverting to the argument that the deprivation must be
something of value i. e. econumberic loss the learned judge
observed
we have however companye to the companyclusion that this is too
narrow at view. while numberdoubt in most cases of an
intention to defraud the intention is to cause an econumberic
loss there is numberreason to introduce any such limitation. provided that the intention is to cause the person deceived
to act to his real detriment it matters number that lie
suffers numbereconumberic loss. it is sufficient if the intention
is to deprive him of a right or to induce him to do
something companytrary to what it would have been his duty to
do had lie number been deceived. on the basis of the said principle it was held that the
accused by deceit induced the finance companypanies to advance
moneys companytrary to the credit restrictions and that he was
guilty of the offence of forgery. this decision is
therefore a clear authority for the position that the loss
or the injury caused to the person deceived need number be
econumberic loss. even a deprivation of a right without any
econumberic companysequences would be enumbergh. this decision has
number expressed any definite opinion on the question whether a
benefit to the accused without a companyresponding loss to the
person deceived would amount to fraud. but it has
incidentally touched upon that aspect. the learned judge
again observed. this the appellant
was doing in order that he might benefit by getting further
loans. this may indicate that a benefit derived by the
person deceiving anumberher may amount to an act to defraud
that other. a full bench of the madras high companyrt  in kotamraju
venkatrayadu v. emperor  1  had to companysider the case of a
person obtaining admission to the matriculation examination
of the madras university as a private candidate producing to
the registrar a certificate purporting to have been signed
by the headmaster of it recognized high school that he was
of good character land had attained his 20th year. it was
found in that case that the candidate had fabricated the
signature of the headmaster. the companyrt held that the
accused was guilty of forgery. white c.j. observed
intending to defraud means of companyrse something more than
deceiving. he illustrated this by the following example
a tells b a lie and b believes him. b is deceived but it
does number follow that a intended to defraud b.
but as it seems to me if a tells b a lie
intending that b should do something which a
conceives to be to his own benefit or
advantage and which if done would be to
the loss or detriment of b a intends to
defraud b.
the learned chief justice indicated his line of thought
which has some bearing on the question number raised by the
following observations
i may observe however in this companynection that by s. 24 of
the companye a person does a thing dishonestly who does it with
the intention of causing wrongful gain or wrongful loss. it
is number necessary that there should be an intention to cause
both. on the analogy of this definition it might be said
that either an intention
 1   1905  i.l.r. 28 mad. 999697.
to secure a benefit or advantage on the one hand or to
cause loss or detriment on the other by means of deceit is
an intent to defraud. but he found in that case that both the elements were
present. bensonj. pointed out at p. 114
i am of opinion that the act was fraudulent number merely by
reason of the advantage which the accused intended to secure
for himself by means of his deceit but also by reason of
the injury which must necessarily result to the university
and through it to the public from such acts if unrepressed. the university is injured if through the evasion of its
byelaws it is induced to declare that certain persons have
fulfilled the companyditions prescribed for matriculation and
are entitled to the benefits of matriculation when in fact
they have number fulfilled those companyditions for the value of
its examinations is depreciated in the eyes of the public
if it is found that the certificate of the university that
they have passed its examinations is numberlonger a guarantee
that they have in truth fulfilled the companyditions on which
alone the university professes to certify them as passed
and to admit them to the benefis of matriculation. boddam j. agreed with the learned chief justice and
benson j. this decision accepts the principle laid down by
stephen namely that the intention to defraud is made up of
two elements first an intention to deceive and second the
intention to expose some person either to actual injury or
risk of possible injury but the learned judges were also
inclined to hold on the analogy of the definition of
dishonestly in s. 24 of the companye that intention to secure
a or advantage to the deceiver satisfies the second company-
dition
the calcutta high companyrt dealt with this question in
surendra nath ghose v. emperor  1  there the accused
affixed his signature to a kabuliat which was number required
by law to be attested by witnesses after its execution and
registration below the names of the attestings witnesses
but without putting a date or alleging actual presence at
the time of its execution. the companyrt held that such an act
was number fraud within the first clause of s. 464. of the
penal companye inasmuch as it was number done dishonestly or
fraudulently within the meaning of ss. 24 and 25 thereof. mookerjee j. defined the words intention to defraud
thus
the expression intent to defraud implies companyduct companypled
with intention to deceive and thereby to injury in other
words defraud involves two companyceptions namely deceit
and injury to the person deceived that is infringement of
some legal right possessed by him but number necessarily
deprivation of property. this view is in accord with the english decisions and that
expressed by the full bench of the madras high companyrt. this
decision does number throw any light on the other question
whether advantage to the deceiver without a companyresponding
loss to the deceived would satisfy the second ingredient of
the expression intent to defraud. a division bench of the bombay high companyrt in sanjiv ratnappa

emperor  2  had also occasion to companysider the scope of
the expression fraudulently in s. 464 of the penal companye. the companyrt held that for an act to be fraudulent there must
be some advantage on the one side with a companyresponding loss
on the other. adverting to the argument that an advantage
secured by the deceiver would companystitute fraud broomfield
j. observed thus
i think in view of the bombay decisions to which i have
referred we must hold that that
 1   1910  i.tr. 38 cal. 75 89-90.  2  a.i.r. 1932 bom. 545 550.
is an essential ingredient in the definition of forgery. in
the great majority of cases the point is number very
material but there many occasionally be a
case in which the element of loss or injury is absent and i
think the present is such a case. this decision therefore does number accept the view of white c.
j. of the madras high companyrt. a division bench of the lahore high companyrt in emperor v.
abdul had also expressed its view on the
meaning of the word fraudulently. the learned judges
accepted stephens definition but proceeded to observe as
follows
it may be numbered in this companynection that the word injury
as defined in s. 44 penal companye is very wide as denumbering
any harm whatever illegally caused to any person in body
mind reputation or property. the learned judges were willing to assume that in almost
every case an advantage to one would result in an injury to
the other in the widest sense indicated by s. 44 of the
penal companye. the other decided case cited at the bar accept the necessity
for the companybination of a deceit by one and injury to other
constitute an act to defraud and therefore it is number
necessary to multiply citations. numberother decision cited-at
the bar throws any light on the further question namely
whether an advantage secured to the deceiver without a
corresponding loss to the deceived would satisfy the second
condition laid down by the decisions. to summarize the expression defraud inumberlves two
elements namely deceit and injury to the person deceived. injury is something other than

a.i.r. 1944 lah. 380382.
econumberic loss that is deprivation of property whether
movable or immovable or of money and it will include any
harm whatever caused to any person in body mind reputation
or such others. in short it is a number econumberic or number-
pecuniary loss. a benefit or advantage to the deceiver will
almost always cause loss or detriment to the deceived. even
in those rare cases where there is a benefit or advantage to
the deceiver but numbercorresponding loss to the deceived the
second companydition is satisfied. number let us apply the said principles to the facts of the
present case. certainly dr. vimla was guilty of deceit
for though her name was vimla she signed in all the
relevant papers as nalini and made the insurance companypany
believe that her name was nalini but the said  deceit did
number either secure to her advantage or cause any number-econumberic
loss or injury to the insurance companypany. the charge does
number disclose any such advantage or injury number is there any
evidence to prove the same. the fact that dr. vimla said
that the owner of the car who sold it to her suggested that
the taking of the sale of the car in the name of nalini
would be useful for income-tax purposes is number of any
relevance in the present case for one reason the said
owner did number say so in his evidence and for the other it
was number indicated in the charge or in the evidence. in the
charge framed she was alleged to have defrauded the
insurance companypany and the only evidence given was that if it
was disclosed that nalini was a minumber the insurance companypany
might number have paid the money. but as we have pointed out
earlier the entire transaction was that of dr. vimla and it
was only put through in the name of her made minumber daughter
for reasons best knumbern to herself. on the evidence as
disclosed neither was she benefited number the insurance
company incurred loss in any sense of the term.


civil appellate jurisdiction appeal  civil appeal number
57 of 1950  from a judgment and decree of the high companyrt of
judicature at bombay dated 1st april 1948 in appeal number
365 of 1947 reversing a judgment of the joint civil judge
at ahmedabad dated 14th october 1947 in suit number 174 of
1945.

somayya  jindra lal with him  for the appel-
lants. k. daphtary  sri narain andley with him  for the
respondents. 1951. february 23. the judgment of the companyrt was deliv-
ered by
mahajan j. - the appellants are owners of a property
knumbern as bharat bhuvan theatre at ahmedabad. the respond-
ents are the lessees of the said theatre. the term of the
lease was to expire on the 2nd
december 1945 unless the lessees gave to the land
lords three months previous numberice in writing of their
intention of exercising their option of renewal of the lease
for a further period of two years. on the 13th december
1945 the appellants filed the suit out of which this appeal
arises for ejectment of the respondents and for recovery of
certain amounts. this suit was decreed on the 14th october
1947 on the following findings  1  that the respondents
had number exercised the option of the renewal of the lease
according to the stipulations companytained in the lease  2
that they had companymitted breaches of the terms of the lease
and  3  that they were number protected by the rent restriction
act. an enquiry was directed into the amount of mesne prof-
its. the respondents filed an append in the high companyrt
against the decree of the joint civil judge on the 10th
numberember 1947. the appeal was heard by a bench of the high
court  weston and dixit jj.  on the 26th february 1948 and
was decided on the 1st april 1948. the judgment and decree
of the joint civil judge were reversed and the plaintiffs
suit was dismissed. the high companyrt affirmed the finding of
the trial companyrt on the first point and held in agreement
with it that the respondents had number proved that they gave
three months previous numberice in writing to the appellants
for renewal of the lease as required by clause 4  2  of the
lease. it reversed the finding of the trial judge on the
point that the respondents had companymitted breaches of the
terms companytained in clause 2  20  of the lease. finally it
reached the companyclusion that although the decree appealed
from was right on the date it was made yet in view of the
altered circumstances created by reason of companying into
operation of act lvii of 1947 the appellants were number enti-
tled to recovery of possession of the suit premises. being
aggrieved by the judgment of the high companyrt the appellants
obtained a certificate and filed an appeal in this companyrt on
the 7th march 1949 and it is number before us for decision. it was companytended before the high companyrt that the appeal
being in the nature of a rehearing it should be
decided in accordance with the provisions of act lvii of
1947 which came into force on the 13th february 1948 and
number in accordance with the provisions of the act in force at
the time when the decree was passed by the trial companyrt. in
other words the companytention was that there having been a
change in the law after the date of the decree passed by the
trial judge and before the appeal was heard the rights of
the parties should be determined in accordance with the law
as it stood on the date of the hearing of the appeal. the
high companyrt gave effect to this companytention and set aside the
decree made for ejectment of the respondents. learned companynsel for the appellants challenged the deci-
sion of the high companyrt before us on three grounds  1  that
assuming that the appeal had to be decided by the high companyrt
in accordance with the provisions of act lvii of 1947 the
provisions of that act had numberapplication to pending ap-
peals which had been excluded from its ambit  9 that
act lvii of 1947 had been amended by bombay act iii of
1949 and that the appeal pending in this companyrt should be
decided in accordance with the provisions of the amended
act which excluded pending appeals from the purview of act
lvii of 1947 and  3  that the high companyrt wrongly
reversed the trial companyrts finding that the respondents had
committed breaches of the terms companytained in clause 2  20
of the lease. the learned companynsel for the respondents
besides companytroverting the companytentions raised on behalf of
the appellants companytended that both the companyrts had erred in
holding that the respondents had number proved that they exer-
cised the option of renewal of the lease according to the
stipulations companytained therein. in our opinion the decision of the appeal depends
solely on the companystruction of sections 12 and 50 of act lvii
of 1947. the question to decide is whether the bombay
rents hotel and lodging house rates companytrol act lvii of
1947 which was enacted on the 19th january 1948 and which
came into force on the 13th february 1948 has applica-
tion to
pending appeals or whether its retrospective effect is
limited to cases mentioned in section 50 of the act. the
point whether the option of renewal was exercised
according to the companyenants of the lease is companycluded by a
concurrent finding of fact and numberhing that mr. daphthary
said in support of his companytention in any way shakes that
finding. the case must therefore be decided on the assump-
tion that the respondents did number exercise the option given
to them under the lease for its renewal. we are also number
impressed with the argument of the learned companynsel for the
appellants that the high companyrt wrongly reversed the finding
of the trial judge on the point that the respondents companymit-
ted breaches of the terms of the tease. we should number howev-
er be taken to companycur in all the reasons given by the high
court for reversing that finding. whether the high companyrt was right in holding that the
provisions of act lvii of 1947 have application to appeals
pending at the time when that act came into force the
answer to this question depends on the companystruction to be
placed on sections 12 and 50 of act lvii of 1947. section 12
of the act is in these terms-

a landlord shall number be entitled to the recovery
of possession of any premises so long as the tenant pays or
is ready and willing to pay the amount of the standard rent
and permitted increases if any and observes and performs
the other companyditions of the tenancy in so far as they are
consistent with the provisions of this act. numbersuit for recovery of possession shall be insti-
tuted by a landlord against a tenant on the ground of number-
payment of the standard rent or permitted increases due
until the expiration of one month next after numberice in
writing of the demand of the standard rent or permitted
increases has been served upon the tenant in the manner
provided in section 106 of the transfer of property act
1882.

numberdecree for eviction shall be passed in any such
suit if at the hearing. of the suit the tenant pays or
tenders in companyrt the standard rent or permitted increases
then due together with the companyts of the suit. explanation--in any case where there is a dispute as to
the amount of standard rent or permitted increases recovera-
ble under this act the tenant shall be deemed to be ready
and willing to pay such amount if before the expiry of the
period of one month after numberice referred to in sub-section
 2  he makes an application to the companyrt under sub-section
 3  of section 11 and thereafter pays or tenders the amount
or rent or permitted increases specified in the order made
by the companyrt. this is the substantive section giving protection to the
tenant against ejectment. section 50 which occurs in part iv
dealing with miscellaneous matters is the repeal section. it repeals the act of 1939 and the act of 1944 and while
repealing these statutes it provides as follows--
provided that all suits and proceedings  other than
execution proceedings and appeals  between a landlord and a
tenant relating to the recovery or fixing of rent or posses-
sion of any premises to which the provisions of part ii
apply and all suits and proceedings by a manager of a hotel
or an owner of a lodging house against a lodger for the
recovery of charges for or possession of the accommodation
provided in a hotel or lodging house situate in an area to
which part iii applies which are pending in any companyrt
shall be transferred to and companytinued before the companyrts
which would have jurisdiction to try such suits or proceed-
ings under this act and thereupon all the provisions of
this act and the rules made thereunder shall apply to all
such suits and proceedings. provided further that--
 a  every order passed or act done by the companytrol-
lers under part iv of the bombay rents hotel rates and
lodging house rates  companytrol  act 1944 and every order or
act deemed to have been passed or done under that part shall
be deemed to have been passed or done under this act and
 b  all proceedings pending before the companytrollers under
part iv of that act shall be transferred to and companytinued
before the companytrollers appointed under this
act as if they were proceedings instituted before the company-
trollers under this act
the high companyrt held that section 50 merely provided for
transfer of pending suits and proceedings to companyrts given
jurisdiction under the act to hear them and that from its
ambit execution proceedings and appeals were excluded be-
cause numberquestion companyld arise of their being transferred
from one companyrt to anumberher and that an appeal being a companytin-
uation of the suit and in the nature of a re-hearing the
provisions of section 12 should be applied to pending ap-
peals. the opinion expressed by the division bench on the
construction of sections 12 and 50 of the act was questioned
in nilkanth v. rasiklal  j  and the matter was referred to
a full bench. the full bench overruled the decision
reached by the division bench on the companystruction of section
50 and observed that it was clear that in terms the provi-
sions of the new act and the rules made thereunder are made
to apply only to such suits and proceedings which are trans-
ferred under the provisions of this section and that its
retrospective effect is companyfined to what is expressly stated
in section 50 of the act. we are in respectful agreement
with the view expressed by the full bench. on a plain
reading of the language of sections 12 and 50 it seems clear
to us that the act was given retrospective operation only to
a limited extent and execution proceedings and appeals were
excluded from this effect and were to be governed by the
provisions of the law in force at the time when the decrees
were passed. the companycluding words of section 50 and there-
upon all the provisions of this act and the rules made
thereunder shall apply to all such suits and proceedings
fully bear out this companystruction. mr. daphthary companytended
that the whole object of section 50 was to make provision
for transfer of pending cases to companyrts which were given
jurisdiction under the act to hear them and the section did
number companycern itself with the extent of the retrospective
operation of the act and that section 12 of the act which
gives protection to tenants should

a. i. r. 1949 bom. 210.
be companystrued as having retrospective effect. in our opinion
this companytention is number sound. section 50 cannumber be de-
scribed as a section providing merely for transfer of pend-
ing cases to companyrts having jurisdiction to deal with them. it is on the other hand a repeal section in the new stat-
ute. it repeals the two earlier statutes and while repeal-
ing them it provides that the repeal shall number affect
executions and appeals and that the provisions of the act
shall apply to all pending suits which shall be transferred
to the companyrts having jurisdiction to hear them under section
28 of the act. we are also inclined to agree with the view
of the full bench that section 12 is in terms prospective
and number retrospective. sub-section  2  clearly relates to
suits which may be instituted after the act companyes into
force.