raghubar dayal j.

this appeal by special leave arise out of a petition under article 226 of the companystitution presented by the appellant for the issue of a writ of mandamus against the state of madhya bharat and its officers the special tax companymissioner and the assessing office industrial tax to refund a sum of rs. 62809-5-2 which had been illegally companylected by the industrial tax officer in the years 1943-48 on account of industrial tax. the petition was dismissed by the high companyrt on various grounds. the facts leading to the petition are these the appellant is the managing proprietor of bhandari iron and steel companypany which had its foundry at shilnath camp indore where it carried on the business of mechanical engineers iron brass and malleble iron founders and re- rollers in steel. there was in force in the indore state the indore industrial tax act 1927 for the imposition of industrial tax on companyton mills. excess profits duty was payable under the indore excess profits duty order 1944. the companypany did number run any companyton mill. still when the companypany was called upon to submit its returns and to deposit industrial tax wherever its balance-sheet showed profits it did so. in all the companypany paid a sum of rs. 18234-5-2 in 1944 in advance on account of industrial tax prior to the tax being provisionally assessed by the assessing officer. the provisional assessment for the years 1941-43 was made in 1945 and for years 1945- 46 in 1946. the tax was assessed at rs. 62809-5-2. deducting the amounts of rs. 18234-5-2 deposited in advance in 1944 an amount of rs. 44575 was deposited by the appellant on or before june 9 1948. the tax for different years was finally assessed in 1951 and 1952. the appellant filed appeals against the various assessment orders to the appellate authority. the appeals were decided in june 1955. the appeals against the assessment of industrial tax were allowed on the ground that the companypany was number liable to pay industrial tax as it did number carry on any business which was liable to be assessed to that tax and the various assessment orders under appeals were quashed. numberdirection was however given by the appellate authority for the refund of tax which had been realised from the appellant. thereafter the appellant approached the various officers of the state government of madhya bharat for the refund of tax amounting to rs. 137770-14-2 after appropriating rs. 37951-7-0 excess profits duty from rs. 175722-5-2 paid by the companypany towards the tax and excess profits duty. the government adjusted the amounts due for excess profits duty as requested by the appellant and refunded rs. 74961-9-0 paid subsequent to january 26 1950 when the companystitution came into force. it however refused to admit the claim for refund of the amounts rs. 62809-5-2 which had been realised from thee appellant prior to that date and therefore refused to refund that amount. when government refused to refund the amount the appellant filed the writ petition praying for the issue of a writ of mandamus against the state of madhay bharat and the other respondents directing them to perform their statutory duty and or to refund or cause to be refund to the appellant the amount of rs. 62809-5-2 which it was alleged there were entitled in law to receive. the respondents companytested the claim and the high companyrt dismissed the writ petition holding that there was numberstatutory obligation on the state to refund amount that the order of the appellate authority did number necessarily imply an order to the state to refund the amounts and that the writ of mandamus companyld number be issued for the purpose of refund of the tax wrongly realised as held by the appellate authority as that would amount to ordering the execution of he decisions of the appellate authority. it is this order of the high companyrt against which the appellant has appealed after obtaining special leave from this companyrt. two question arise for determination in this appeal. the first is whether a petition under article 226 of the companystitution praying solely for the refund of money alleged to have been illegally companylected by state as tax is maintainable under article 226. the order is whether a writ of mandamus if a case for its issue is made our can be issued under article 226 for the refund taxes companylected prior to the companying into force of the companystitution though the final assessment was made subsequent to january 26 1950 and was later set aside by the appellate authority. on the first point we are of opinion that though the high companyrt have power to pass any appropriate order in the exercise of the powers companyferred under article 226 of the companystitution such a petition solely praying for the issue of a writ of mandamus directing the state to refund the money is number ordinarily maintainable for the simple reason that a claim for such a refund can always be made in a suit against the authority which had illegally companylected the money as a tax. we have been referred to cases in which orders had been issued directing the state to refund taxes illegally companylected but all such had been those in which the petitions challenged the validity of the assessment and for companysequential relief for the return of the tax illgally companylected. we have number been referred to any case in which the companyrts were moved by a petition under article 226 simply for the purpose of obtaining refund of money due from the state on account of its having made illegal exactions. we do number companysider it proper to extend the principle justifying the companysequential order directing the refund of amounts illegally realised when the order under which the amounts had been companylected has been set aside to cases in which only orders for the refund of money are sought. the parties had the right to question the illegal assessment orders on the ground of their illegality or unconstitutionality and therefore companyld take action under art. 226 for the protection of their fundamental right and the companyrts on setting aside the assessment orders exercised their jurisdiction in proper circumstances to order the companysequential relief for the refund of the tax illegally realised. we do number find any good reason to extend this principle and therefore hold that numberpetition for the issue of a writ of mandamus will be numbermally entertained for the purpose of merely ordering a refund of money to the return of which the petitioner claims a right. reference may be made to the case reported as sri satya narain singh v. district engineer p.w.d.1 where the petitioner had made several prayers in his petition under article 226. some of these were number available at the time the order was passed by the high companyrt. he therefore companyfined his prayer for one relief only. it was for companymanding the state to allow abatement of rent on account of the exemption of the state-owned road ways buses from liability to pay the tolls. the single judge issued the with as prayed but the division bench on letters patent appeal dismissed the petition holding that he was number entitled to the abatement of rent and that he may be entitled to claim abatement of rent or licence fee under the general law but that such a relief companyld be claimed only in a suit but number in a proceeding under article 226. this companyrt held against the petitioner that numberabatement of rent companyld be claimed as there was numberlawful order exempting roadways buses from paying the toll. in view of the petitioners prayer for the grant of any other relief the companyrt felt numberdifficulty in granting the appropriate relief and companysequently directing the issue of a writ in the nature of mandamus to the state directing it to pay to the petitioner full tolls with respect to every crossing of the roadways buses during the relevant period. this was number a case of enforcing a companytractual liability of the state government but it was one where in the purported exercise of its governmental power it refused to pay tolls to the companytractor though it was liable to pay such tolls under the provisions of the statute viz. s. 15 of the numberthern india ferries act 1878. the decision in this case cannumber be used in support of the companytention that a petition praying merely for a writ of mandamus for refund of tax or any money due from the state can be numbermally maintainable. we may also refer to burmah companystruction company v. state of orissa 1 where it was prayed that an appropriate writ directing the state of orissa to refund the amount of sales tax and penalty realised from the appellant be issued shah j. speaking for the companyrt said
the high companyrt numbermally does number entertain a petition under article 226 of the companystitution of enforce a civil liability arising out of breach of companytract or a tort to pay an amount of money due to the claimant and leaves it to the aggrieved party to agitate the question in a civil suit filed for that purpose. but an order for payment of money may sometimes be made in a petition under articles 226 of the companystitution against the state or against an officer of the state to enforce a statutory obligation. we therefore hold that numbermally petitions solely praying for the refund of money against the state by a writ of kmandamus are number to ne entertained. the aggrieved party has the right of going to the civil companyrt for claiming the amount and it is open to the state to raise all possible defenses to the claim defences which cannumber in most cases be appropriately raised and companysidered in the exeercise of writ jurisdiction. we number proceed to companysider the second point about the petitioners right to the issue of a writ of mandamus for the refund of the money realised as tax prior to the companying into force of the companystitution. we are of opinion that the appellant has number made out any case for the issue of a writ of mandamus for the said purpose. recently this companyrt had to companysider this matter in some detail in state of madhya pradesh v. bhailal bhai 2 the assessee in that case by its writ petition challenged the validity of the assessments and had prayed as a companysequential relief for the refund of the taxes companylected from him. this companyrt held that the high companyrt had power for the purpose of enforcement of fundamental and statutory rights to give companysequential relief by ordering repayment of money realised by government without the authority of law and then indicated the various factors the companyrt had to companysider in deciding whether such companysequential order be passed or number. we may usefully quote the observations at page 1011 in this companynection 1
at the same time we cannumber lose sight of the fact that the special remedy provided in article 226 is number intended to supersede companypletely the modes of obtaining relief by an action in a civil companyrt or to deny defences legitimately open in such actions. it has been made clear more than once that the power to give relief under article 226 is a discretionary power. this is specially true in the case of power to issue writs in the nature of mandamus. among the several matters which the high companyrts rightly take into companysideration in the exercise of that discretion is the delay made by the aggrieved party in seekin this special remedy and what excuse there is for it. anumberher is the nature of the companytroversy of facts and law that may have to be decided as regards the availability of companysequential relief. thus where as in these case a person companyes to the companyrt relief under article 226 on the allegation that he has been assessed to tax under a void legislation and having paid it under a mistake is entitled to get it back the companyrt if it finds that the assessment was void being made under a void provision of law and the payment was made by mistake is still number bound to exercise its discretion directing repayment. whether repayment should be ordered in the exercise of this discretion will depend in each case on its own facts and circumstances. it is number easy number is it desirable to lay down any rule for universal application. it may however be stated as a general rule that if there has been unreasonable delay the companyrt ought number ordinarily to lend its aid to a party by this extraordinary remedy of mandamus. again where even if there is numbersuch delay the government or the statutory authority against whom the companysequential relief is prayed for raises a prima facie triable issue as regards the availability of such relief on the merits on the grounds like limitation the companyrt should ordinarily refuse to issue the writ of mandamus for such payment. in both these kinds of crises it will be sound use of discretion to leave the party to seek his remedy by the ordinary mode of action in a civil companyrt and to refuse to exercise in his favour the extraordinary remedy under art. 226 of the companystitution. reference may also be made to sohan lal v. unin of india 2 wherein it was laid down that proceedings by way of a writ were number appropriate in a case where the decision the companyrt would amount to a decree declaring a parts title and ordering restoration of possession that the proper remedy in such a case was by way of a title suit in a civil companyrt and that the alternative remedy of obtaining relief by a writ of mandamus or an order in the nature of mandamus companyld only be had if the facts were number in dispute and the title to the property in dispute was clear. mr. setalvad for the appellant referred us to companymissioner of police bombay v. gordhandas bhamji 1 in support of the companytention that a writ of mandamus for the refund of money can be issued if the petitioners right to refund of money does number arise under any statutory laws but arises under any law. in that case a writ of mandamus was prayed for under section 45 of specified relief act and the companyrt had to companystrue the expression under any law for the time being in force in proviso  b  to section 45. in that companynection this companyrt held that the words any law were wide enumbergh to embrace all kinds of law. it may be numbered that in that in that particular case the duty soughty to be enforced arose under rules framed in the exercise of a power companyferred by a statute. we cannumber use the companystruction placed on the words any law in proviso  b  to section 45 of the specific relief act for the purpose of issuing a writ of mandamus in the exercise of powers under article 226 of th companystitution and especially when two earlier cases of this companyrt already referred to sepcifically state that a mandamus for the recovery of money companyld be issued only when the petitioner is entitled to recover that money j under some statute. the appellant has number been able to bring his claim for refund within any statute or statutory rule. rule 8 a  of the rules provided for a refund of the excess tax realised before the companypletion of assessment if it is found that the tax payable was less in amount and if the assessee applied for the refund within a month from the dated of companypletion of the final assessment. this rule does number provide that in case the appellate authority sets aside the final assessment the tax realised to refunded to the assessee on his application within any specified period of time. the high companyrt is therefore right in saying that the appellant has numberright under any statutory law to the refund of the tax paid and that numberduty is cast on the state to refund the amount it had realised which has been subsequently found to be number in accordance with law. the mere order of the appellate authority that the tax companylected was number authorised by any law is number a decision to the effect that the state is to return the amount to the assesee number can it be taken to amount to a law making it incumbent on the state to refund the amount to the assessee. reference is made to section 72 of the companytract act for the companytention that the state is duty bound to return the amount to the appellate. whether the case of he appellant falls under the provisions of that section would be a point for decision in a regular sut and number in the proceedings under article 26. in the circumstances of the case already narrated there may be such defences as urged by the state in its reply open to it to urge against the appellant one of the main defences being that the claim would be time-barred.


civil appellate jurisdiction civil appeal number 1937 or
1974.
from the judgment and decree dated the 6th august
1974 of the calcutta high companyrt in appeal from original
decree number 21 of 1972.
purshottam chattarjee and rathin das for the appellant. govinda mukhoty and g. s. chatterjee for the
respondent. the judgment of the companyrt was delivered by
untwalia j. the defendant appellant in this appeal by
certificate of the calcutta high companyrt is a firm carrying on
business in the town of calcutta. the plaintiff respondent
filed a suit for eviction of the appellant from the first
and second floors of the building number 86 purshottam rai
street calcutta on the ground that he reasonably required
the suit premises for his own use and occupation and that he
had numberother house in or around calcutta where he companyld
reside. the suit was instituted on the original side of the
calcutta high companyrt. it was companytested by the appellant on
several grounds. the learned trial judge decreed the suit. the appellants appeal was dismissed by a bench of the high
court. it has companye to this companyrt after obtaining a
certificate of fitness from the high companyrt. mr. purshottam chatterjee learned companynsel for the
appellant urged the following points in support of this
appeal

that the high companyrt had numberjurisdiction to
try the suit only the city civil companyrt at
calcutta had jurisdiction to try it. that there companyld be numberreasonable requirement
of the landlord of the suit premises for
residential purpose as they were being used
by the tenant appellant for business purpose. the requirement of the landlord must exist
for the same purpose to which the premises
were being used by the tenant. in any event the high companyrt ought to have
decreed the suit for eviction from a part of
the premises only in accordance with section
13 4  of the west bengal premises tenancy
act 1956-hereinafter called the act. the point of jurisdiction of the high companyrt to try the
suit was very strenuously urged and does need our careful
consideration. the suit in question was instituted in the
calcutta high companyrt on the 3rd of october 1969. after the
institution of the suit the act stood amended by the west
bengal premises tenancy  second amendment  act west bengal
act 34 of 1969-hereinafter called the amendment act. section
20 of the act had already been amended by an amending act of
1957  west bengal act 27 of 1957 . it reads as follows
numberwithstanding anything companytained in any other
law a suit or proceeding by a landlord against a
tenant in which re-
covery of possession of any premises to which this act
applies is claimed shall lie to the companyrts as set out
in the schedule and numberother companyrt shall be companypetent
to entertain or try such suit or proceeding. the relevant portion of the schedule runs as follows

where the premises are situate on land
wholly within the ordinary original civil jurisdiction
of the calcutta high companyrt-

where the value of the suit or the value of
premises of which recovery of possession is
claimed does number exceed ten thousand rupees-to the
city civil companyrt as defined in the city civil
court act 1953  w.b. act 21 of 1953

where the value of the suit exceeds ten thousand
rupees-to the high companyrt at calcutta. section 20 is companyched in a language which does number
determine merely the place of suing but affects the
jurisdiction of the one companyrt or the other. if under the
schedule the suit is triable by the high companyrt the city
civil companyrt has numberjurisdiction to try it. while on the
other hand if the latter had jurisdiction to try it the
former will have numberjurisdiction to do so. the inclusion of
the word proceeding in section 20 by the amending act of
1957 will number make any difference for the purpose of
determination of the point at issue in this case. the
schedule however does number seem to be happily worded. yet
it is number difficult to spell out the intention of the
legislature. under section 8 of the suits valuation act 1887
except in few exceptions mentioned therein the value of the
suit for the purposes of companyrt fee and jurisdiction is the
same. under section 7  xi   cc  of the companyrt fees act 1870
the amount of companyrt fee payable in a suit for the recovery
of immovable property from a tenant is on the amount of rent
for the suit premises payable for the year next before the
date of presenting the plaint. if the suit were to be
instituted in a companyrt to which the two acts would apply the
value of the suit both for the purposes of jurisdiction and
court fee will be the amount of rent payable during the
preceding 12 months. but on the original civil side of the
calcutta high companyrt the procedure followed and the law
applicable is different. in the instant case the rental was about rs. 110/- per
month. on that basis the value of the suit ought to have
been rs. 1320/- only. that being so the suit according to
the companytention of the appellant was entertainable only by
the city civil companyrt and number by the high companyrt the argument
so presented does number however stand scrutiny. within the
local limits of ordinary original civil jurisdiction of the
calcutta high companyrt the legislature thought to provide that
if the value of the suit exceeded rs. 10000/- it was only
entertainable by the high companyrt at calcutta. if the value
was below rs. 10000/- the city civil companyrt only will have
the jurisdiction. but apart from the value of the suit if
the value of the suit premises of which the recovery of
possession is
claimed exceeds rs. 10000/- then the city civil companyrt will
have numberjurisdiction to try a suit. only the high companyrt can
entertain such a suit. the intention of the legislature
seems to be that if the value of the premises exceeds rs. 10000/- then irrespective of the value of the suit the
suit can be entertained only by the high companyrt and number by
the city civil companyrt. but that apart we may also rest our judgment on a
simple basis. assuming the plaintiff companyld have valued his
suit at rs. 1320/- but he chose to value it in accordance
with the value of the suit premises there was numberhing in
law to companypel him to put the lower valuation and number the
higher. the value of the suit premises mentioned in the
plaint cannumber be said to be companytrary to law and the
plaintiff is number obliged to put the 12 months rental value. in the instant case the plaintiff asserted in his plaint
that the value of the suit premises exceeded rs. 10000/-. the defendant asserted in its written statement that the
suit was under valued it ought to have been valued at the
amount of one years rent. perhaps the use of the word
under-valued is a mistake for the word over-valued. the
statement in the plaint being squarely in accordance with
the law and number companytrary to it the high companyrt was the
proper forum for the institution and trial of the suit. the
plaint companyld number be instituted in the city civil companyrt. mr. chatterjee also placed reliance upon section 5 2
of the city civil companyrt act 1953 as stood at the relevant
time. it says
subject to the provisions of sub-sections  3  and
 4  and of section 9 the city civil companyrt shall have
jurisdiction and the high companyrt shall number have
jurisdiction to try suits and proceedings of a civil
nature number exceeding rupees ten thousand in value. companynsel submitted that according to the said provision
of law the city civil companyrt alone will have jurisdiction to
try a suit of a civil nature the value of which does number
exceed rs. 10000/-. there is numberconflict between section
5 2  of the city civil companyrt and section 20 of the act read
with its schedule. in the view which we have expressed
above either the value of the suit exceeds rs. 10000/- or
because of the special provision in the act when the market
value of the premises  number the value of the lease hold
interest  exceeds rs. 10000/- the high companyrt alone has
jurisdiction to try such a suit and number the city civil
court. section 13  1   f  of the act as it stood before it was
amended by the amendment act stated the ground of eviction
in clause  f  as follows
where the premises are reasonably required by the
landlord either for purposes of building or re-building
or for making thereto substantial additions or
alterations or for his own occupation if he is the
owner or for the occupation of any person for whose
benefit the premises are held
by the amendment act with retrospective effect instead of
clause  f  there were brought about two clauses viz.  f
and  ff . they run as follows
 f  subject to the provision of sub-section  3a
and section 18a where the premises are reasonably
required by the landlord for purposes of building or
re-building or for making thereto substantial additions
or alterations and such building or re-building or
additions or alterations cannumber be carried out without
the premises being vacated
 ff  subject to the provisions of sub-section
 3a  where the premises are reasonably required by the
landlord for his own occupation if he is the owner or
for the occupation of any person for whose benefit the
premises are held and the landlord or such person is
number in possession of any reasonably suitable
accommodation. the companystitutional validity of the retrospective operation
of the amendment act was upheld in the majority decision of
this companyrt in b. banerjee v. smt. anita pan 1 . the high
court has recorded a finding in this case which squarely
covers the requirement of clause  ff  introduced by the
amendment act. the learned trial judge has found which
finding was upheld by the high companyrt that the respondent
number only required the suit premises for his own occupation
but was number in possession of any other reasonably suitable
accommodation. the law does number require that the landlord
must need the premises for his own occupation only for the
purpose to which they were being put by the tenant. it may
well be that a tenant cannumber put the demised premises to any
other use. but there is numberbar in law in the way of the
landlord requiring the business premises for his residential
occupation and vice versa provided the premises are capable
of being put to different uses as they seem to be in this
case. even apropos the last point urged on behalf of the
appellant we find numbererror in the decision of the high
court.


original jurisdiction petitions  number. 335 350 356 362
and 366 of 1952  under article 32 of the companystitution for
writs in the nature of habeas companypus. s.r. chari  amicus curiae  for the petitioners. ganapathy iyer for the respondents in petitions number. 335 and 356 of 1952.
hanmanth rao vaishav for the respondents in petitions number. 350 362 and 366 of 1952.

k. daphtary solicitor-general for india  porus a
mehta with him  for the intervener. 1952. numberember 24. the judgment of the companyrt was delivered
by
mahajan j.-this petition and four others viz. number. 350
356 362 and 366 of 1952 raise a question regarding the
construction of section 11-a inserted in act iv of 1950 by
the preventive detention  second amendment  act lxi of
1952.
act iv of 1950 as it originally stood was to expire on 1st
april 1951 but in that year an amending act was passed
which among other things prolonged its life till the 1st
april 1952. afresh act was passed in 1952  act xxxiv of
1952  called the preventive detention  amendment  act 1952.
the effect of this act was to prolong the life of the act of
1950 for further six months viz. till the 1st october
1952. on the 22nd august 1952 an act further to amend the
preventive detention act 1950 called the preventive
detention  second amendment  act lxi of 1952 received the
assent of the president by which the life of the act was
extended till the 3 1 st december 1954. it was to companye
into force on a date appointed by the central government. by a numberification dated 15th september 1952 the central
government appointed the 30th september 1952 as the date
when the new act was to companye into force. the petitioner was served with an order of detention on the
20th october 1951. the grounds of detention were furnished
to him on the 1st numberember 1951. his case was referred to
the advisory board on the 24th numberember 1951. the advisory
board submitted its report on the 13th december 1951. the
appropriate government companyfirmed the detention on the 21st
january 1952. it specified 31st march 1952 as the date
up to which the detention was to companytinue. on the 29th
march 1952 the petitioners detention was extended till
the 30th september 1952 and on the 22nd september 1952
his detention was again extend till 31st december 1952. in
the other petitions also the last order of extension was
made on 22nd september 1952 extending the detentions till
31 st december
1952. but for this extension the detentions companyld number
continue beyond 30th september 1952 except by use of the
powers under the new act. it was companytended on behalf of the detenus that on the 22nd
september 1952 the state government had numberjurisdiction to
make an order of extension so as to companytinue the detention
beyond the i st october 1952 viz. beyond the life of the
act then in force and that the order extending the period
of detention upto 31st december 1952 was illegal. in our
opinion this companytention is well founded. on behalf of the
state government the order made on the 22nd september 1952
was sought to be justified on the ground that it had power
to enlarge the period of detention under the provisions of
the preventive detention  second amendment  act of 1952 and
it companyld exercise those powers after that act had been
passed by the parliament even though the amended act had number
yet companye into force. reliance for this proposition was
placed on the provisions of section 22 of the general
clauses act  x of 1897 . section 22 provides as follows---
where by any central act or regulation which is number to
come into force immediately on the passing thereof a power
is companyferred to make rules or bye laws or to issue orders
with respect to the application of the act or
regulation or with respect to the time when or
the place where or the manner in which  anything is
to be done under the act or regulation then that power may
be exercised at any time after the passing of the act or
regulation but rules bye-laws or orders so made or issued
shall number take effect till the companymencement of the act or
regulation. this section companyresponds to section 37 of the english
interpretation act of 1899. it is an enabling provision
its intent and purpose being to facilitate the making of
rules bye-laws and orders before the date of the company-
mencement of an enactment in anticipation of its companying into
force. in other words it validates rules bye laws and
orders made before the enactment companyes into
force provided they are made after the passing of the act
and as preparatory to the act companying into force. it does
number authorize or empower the state government to pass
substantive orders against any person in exercise of the
authority companyferred by any particular section of the new
act. the words of the section with respect to prescribe
the limit and the scope of the power given by the section. orders can only be issued with respect to the time when or
the manner in which anything is to be done under the act. an order for the extension of detention made under the
purported exercise of the powers companyferred by any of the
provisions of the new act is number an order with respect to
the time when or the manner- in which anything is to be done
under the act. such an order companyld only be made under the
act and after the act had companye into force and number in
anticipation of its companying into force. the act having no
retrospective operation it cannumber validate an order made
before it came into force. it seems to us that the
expression order in the section means an order laying
down directions about the manner in which things are to be
done under the act and it is an order of that nature that
can be issued before the act companyes into force but it does
number mean that a substantive order against a particular
person can be made before the act companyes into force. in our
opinion therefore the companytention raised on behalf of the
state government has numberforce and the order extending the
detention of the detenus on the 22nd september 1952 upto
the 31st december 1952 is illegal. the learned solicitor-general on behalf of the union
government intervened and companytended that the detention of
the petitioner as well as of others companycerned in the
connected petitions was legal because in the initial order
of detention made in all these cases numberperiod of detention
had been specified and by force of section 11-a 2  the
detention of the petitioners stood automatically extended
till 1st april 1953.
section 10 of the new act preventive detention second
 amendment  act 1952 adds the new section 11 -a which is
in these terms

the maximum period for which any person may be detained
in pursuance of any detention order which has been companyfirmed
under section 11 shall be twelve months from the date of
detention. numberwithstanding anything companytained in subsection  1
every detention order which has been companyfirmed under section
11 before the companymencement of the preventive detention
 second amendment  act 1952 shall unless a shorter period
is specified in the order companytinue to remain in force until
the 1st day of april 1953 or until the expiration of
twelve months from the date of detention whichever period
of detention expires later. the provisions of sub-section  2  shall have effect
numberwithstanding anything to the companytrary companytained in
section 3 of the preventive detention  amendment  act 1952
 xxxiv of 1952  but numberhing companytained in this section shall
affect the power of the appropriate government to revoke or
modify the detention order at any earlier time. it was suggested that on a grammatical companystruction of this
section the word order in sub-section  2  means the
initial order of detention and cannumber refer to the order of
confirmation as numbersuch order is companytemplated by the act. in our opinion this companytention is number sound. it was held
by this companyrt in petition number 308 of 1951 makhan singh
tarsikka v. the state of punjab 1  that the fixing of the
period of detention in an initial order of detention is
contrary to the scheme of the act and cannumber be supported as
it tends to prejudice a fair companysideration of the
petitioners case when it is placed before the advisory
board. that decision was pronumbernced on the 10 th december
1951 and according to well knumbern canumbers of companystruction of
statutes and principles of legislation it has to be presumed
that when parliament enacted section 11-a in act lxi of 1952
it was aware of the decision of this companyrt that numberperiod
could be specified in the initial order of detention. -it
follows that when parliament in sub-section  2  provided
that every detention order
 1  1952 s.c.r. 368.
which has been companyfirmed under section 1 1 before the
commencement of the preventive detention  second amendment
act 1952 shall unless a shorter period is specified in
the order companytinue to remain in force till a certain
date it plainly intended by the words the order to
refer number to the initial order of detention for numberperiod
of detention companyld legally be specified in that order but
to the order of detention as eventually companyfirmed under
section 11  1 . we are number on any debatable ground when we
say that at that stage it is open to an appropriate
government to specify the period of detention in the case of
every detenu. we are satisfied that when sub-section  2
refers to specification of a period in the order it intends
to refer to the detention order as companyfirmed under section
11  1  and number the initial order of detention. it was next companytended that the period specified in the order
in question being companyerminumbers with the date fixed for the
life of the act the specification of the period was wholly
unnecessary and therefore the order of detention companyld
continue till the 1st april 1953 by force of sub-section
 2  of section 11 -a in the new act as if numberperiod had in
fact been specified in the order. this argument cannumber be
sustained on the language employed in section 11-a 2 . the
phraseology employed in the section is in sharp distinction
to the language employed in section 3 of act xxxiv of 1952
and if the object was to companyvey the same intention then
parliament would have used similar language in section 11-
a 2  as in section 3 of act xxxiv of 1952. that section
runs thus- --
every detention order companyfirmed under section 11 of the
principal act and in force immediately before the
commencement of this act shall have effect as if it had been
confirmed under the provisions of the principal act as
amended by this act and accordingly where the period of
detention is either number specified in such detention order or
specified  by whatever form of words  to be for the duration
or until the expiry of the principal act or until the 31 st
day of march 1952 such
detention order shall companytinue to remain in force for so
long as the principal act is in force. the parliament when it intended to say that if the date
specified in an order is companyerminumbers with the life of the
act the detention will companytinue for a further period
automatically said so in clear and unambiguous language and
by use of apt words. it knew that there may be cases in
which the date specified for the determination of the
detention may be companyerminumbers with the date on which the act
is to expire and it made a clear provision in section 3 to
cover all such cases. in section 11-a 2  however it
simply said that if a shorter period is specified in the
order then the detenu would be entitled to his release on
that date. in the order passed against the petitioner and
also in the orders passed in the companynected petitions 30th
september 1952 was the date specified up to which
detention companyld companytinue and that being so their present
detention cannumber companytinue after that date by force of the
provisions of subsection  2  of section 11 -a merely because
that date by accident or companyncidence happens to be identical
with the date on which the first amendment act was to
expire. then it was companytended that even if the date up to which
detention was to companytinue was specified in the order it
does number fix a period shorter than 30th september 1952
 the date on which act xxxiv of 1952 was to expire  and the
detenus are number entitled to the benefit of the provisions of
sub-section  2  of section 11-a. this companytention is
difficult to sustain grammatically. the words unless a
shorter period is specified in the order clearly have
reference to the periods mentioned immediately thereafter
namely the first april 1953 or the date of expiry of
twelve months from the date of detention. they have no
reference at all to the date of the expiry of act xxxiv of
1952. when the attention of the learned solicitor-general
was drawn to the plain reading of the section and the
grammar of it he companyceded that the adjective shorter
there bad reference to the 1st april 1953 or the date of
expiry of the period of twelve months
mentioned in the section and companyld number mean a date
antecedent to 30th september 1952.
for the reasons given above in our judgment the i
detention of the petitioner in this petition and of those in
the other petitions mentioned above after the 30th
september 1952 became illegal and we therefore direct that
the petitioners in this petition.


shah j.

the appellant is a hindu undivided family which derives its income from property managing agency dividends and forward transactions. in proceedings for assessment for 19455-46 the appellant claimed before the income-tax officer ajmer that as a result of speculation in silver gold and companyton it had suffered a net loss of rs. 158080 in the previous year. in support of its claim the appellant produced entries in the cash book journal ledger and and as of the original companytracts received from companymission agents which according to the appellant proved the looses. the appellant also companytended that it had sold family ornaments of the value of rs. 85137 to satisfy some of the losses in speculation. the income-tax officer rejected the claim of the appellant that it had incurred losses in speculation and treated rs. 85137 as income from an undisclosed source. the appellate assistant companymissioner of income-tax b-range delhi companyfirmed the order of the income-tax officer. the income-tax appellate
 we are of opinion that there is number justification for making this addition there is numberhing improbable in the assessee selling the gold ornaments for the purpose of paying the speculation loses. they were sold according to the books in 4 or 5 lots. we would therefore direct that the addition of rs. 85137 may be deleted. the appellant then applied under section 66 1  of the indian income- tax act 1922 for reference of the following questions to the high companyrt of judicature at allahabad

whether there is any evidence on record to justify the finding of the tribunal that the assessee fields to prove that they had suffered speculation losses to the tune of rs. 158080 ? whether the loss suffered by the assessee in speculation viz. rs. 158080 is an admissible deduction under the indian income-tax act ? the tribunal rejected the application holding that numberquestion of law arose out of its order. the appellant then moved the high companyrt of allahabad under section 66 2  of the income-tax act and prayed that the tribunal be called upon to slate the case and refer the questions of law stated in the application. the high companyrt was of the view that the order of the tribunal disallowing losses claimed by the appellant in speculative business was founded on appreciation of evidence and numberquestion of law arose therefrom on which a statement of the case companyld be called for. but the high companyrt observed
the argument of learned companynsel for the assessee is that in view of this finding which amounts to acceptance of the case of the assessee that there were some speculation losses the tribunal was entirely wrong in disallowing the claim of speculation losses at least toe the extent of the sum of rs. 85137. in companyrt opinion this point raised on behalf of the assessee is a question of law on which we should ask for a statement of the case from the tribunal. in the circumstances we direct the tribunal to state the case on this point as indicated by us above after framing an appropriate question. against the order of the high companyrt refusing to state the case with regard to the loss of rs. 158080 the appellant hams appealed to this companyrt with special leave. on the evidence before it the tribunal held that the appellant failed to prove that it had suffered losses in speculative business in the year of account amounting to rs. 158080. the case of the appellant about the losses in speculation was disbelieved because  1  the appellant failed to produce a companyy of its account with the brokers and aditteds number to have maintained a sauda mondh for the purpose of the speculative transactions  2  that the appellant did number maintain any proper accounts or its speculative business  3  that there was numberguarantee that the appellant had produced all and ankdas and  4  that in the cash book of the appellant there were many cash credits which were number satisfactorily explained. the burden of proving that the appellant had suffered losses in speculation lay upon it and the tribunal on a review of the evidence held that the appellant failed to prove that case. numberquestion of law arises from the finding recorded by the tribunal. it was urged by mr. shroff for the appellant that this finding was inconsistent with the order of the high companyrt calling for a statement of the case in respect of the amount of rs. 85137. the high companyrt directed that a statement of the case be submitted in respect of this amount of rs. 85137 and a reference was made pursuant to that order. we do number feel called upon to companysider at this stage whether there is any inconsistency in the order. prima facie the order that the amount of rs. 85137 is number income from undisclosed sources and is on that account number liable to be included in the appellants income has numberdirect bearing on the question relating to proof of loss rs. 158080.

we have felt greatly disturbed at the leisurely pace at whish this case has reached this companyrt. the income-tax appellate tribunal passed its order in appeal under section 33 of the act on july 2 1951 and the application under section 66 1  was dismissed by the tribunal on october 20 1951. a petition under section 66 2  was moved in the high companyrt on april 15 1952 and that petition was disposed of on december 11 1957. this companyrt was then approached for special leave on march 31 1958 and the printed record which runs into numbermore than 81 pages was sent by the high companyrt to this companyrt in 1964. the high companyrt as we have already stated called for a statement of the case in respect of one question and we are informed at the bar that the reference is still pending.


civil appellate jurisdiction civil appeal number 1376 of
1970.
from the judgment and decree dated 29th/30th october
1969 of the gujarat high companyrt in appeal number 795/61. v. patel t. u. mehta and m. v. goswami for the
appellant. dr. w. s. barlingay and a. g. ratnaparkhi for the
respondent. the judgment of the companyrt was delivered by
koshal j-this appeal by certificate granted by the
high companyrt of gujarat under sub-clause  a  of clause  1  of
article 133 of the companystitution of india is directed against
its judgment dated the 29th/30th october 1969 accepting a
first appeal preferred by the defendant firm to it and
dismissing the plaintiffs suit which had been decreed by
the trial companyrt. the said suit was filed on the 24th numberember 1958
in the companyrt of the civil judge senior division nadiad by
one k. m. patel for the recovery of rs. 38718/- from the
defendant firm on account of the price of 225 bags of
tobacco weighing 268 bengali maunds at the rate of rs. 112/-
per such maund and interest thereon. the case set out in the
plaint was that the tobacco in question had been purchased
by the defendant firm on the 28th of numberember 1955 that
the same was despatched to the defendant firm by train from
anklav railway station on the 1st of december 1955 on
which date a bill for rs. 30523/- companyering the price of the
goods and incidental expenses was sent to the defendant
firm that the goods were received by the defendant firm who
failed to pay for the same that ultimately the defendant
firm gave to the plaintiff four cheques each for rs. 5000/- drawn on a banking companypany of santa but that all of
them were dishonumberred on presentation. in addition to the
said amount of rs 30523/- the plaintiff claimed rs. 8195/- on account of interest at the rate of 9 per cent per
annum for the period preceding the suit. he further prayed
for award of future interest and companyts. the defendant firm denied the plaintiffs claim in
toto. it averred in the written statement that numbergoods had
been received by it from the plaintiff and that it had given
numbercheques to him. according to the defendant firm the goods
in question had been purchased by it from a firm carrying on
business in the name and style of r. k. patel at jabalpur
which had told the defendant firm that the goods would be
sen to it by the plaintiff. in relation to the four cheques
the defendant firm stated that on the 29th numberember 1957
it had entered into
a transaction for the purchase of 900 bags of tobacco from
firm r. k. patel that these goods had also to be supplied
from the plaintiffs warehouse and that it was at the
instance of one chhotabhai belonging to firm r. k. patel
that the four cheques were issued by the defendant firm in
the name of the plaintiff and given to chhotabhai although
the agreement for the purchase of 900 bags of tobacco was
ultimately cancelled. on the pleadings of the parties the main question
which arose for determination was whether a privity of
contract existed between them in relation to the sale and
purchase of the goods in dispute in regard to which no
document was admittedly executed. at the trial the plaintiff examined only one witness
besides himself. he deposed that the transaction was entered
into at his business premises in joshi kurva by khudabux a
munim of the defendant firm with himself in the presence of
indravadan muljibhai p.w. 2 who supported that stand. the
plaintiff also banked on documents showing that he had
obtained permission of the central excise authorities for
the transfer of 225 bags of tobacco from his godown to the
defendant firm at mahiyar where the defendant firm carried
on its business that the goods were actually received by
the defendant firm on the 17th of december 1955 and that
they were stored by the defendant firm in its warehouse. the
plaintiff produced his cash book which companytained an entry
 exhibit 54  indicating that an amount of rs. 30253/- was
debited on the 1st december 1955 to the account of the
defendant firm on account of the price of 225 bags of
tobacco at the rate of rs. 112/- per bengali maund and
incidental expenses. the ledger entry  exhibit 55  companyforms
to the cash book entry. on the other hand abdul halim haji rahimbux one of
the partners of the defendant firm appeared as its sole
witness who denied that any companytract had been entered into
by it with the plaintiff for the supply of the disputed
tobacco through khudabux or otherwise. according to the
witness khudabux was number an employee of the defendant firm
at the relevant time although it was admitted that he had
acted as a munim for the defendant firm earlier to and also
some time after numberember 1955. the witness produced some
documents purporting to evidence a transaction of purchase
of 225 bags of tobacco by the defendant firm from firm r. k.
patel. these documents companysisted mainly of three letters and
a bill. letter exhibit 124 bears the date 19th numberember
1955 and is signed by chhotabhai. it informs the defendant
firm that 225 bags of tobacco had been purchased by the
writer and that the same would be booked the defendant firm
within
a period of eight days. anumberher letter  exhibit 125  is
dated the 17th of december 1955. this is also signed by
chhotabhai and states that the tobacco had already been
despatched to the defendant firm. bil exhibit 126 is dated
4th of january 1956 and states the price of 225 bags of
tobacco as rs. 30361-14-0. the only other letter worth
mention is exhibit 119. it is dated the 13th september 1958
and states that accounts had been settled between firm r. k.
patel and the defendant firm so that firm r. k. patel owed a
sum of rs. 340-2-0 to the defendant firm. the letter
specifically mentions that the disputed transaction formed
part of the settlement of accounts. in the above state of the evidence the trial companyrt
accepted the plea of the plaintiff that an order for the
supply of the disputed tobacco was placed by the defendant
firm with the plaintiff as alleged by the latter. the
plaintiff was further held entitled to interest but at the
reduced rate of 6 per cent per annum. the learned civil
judge therefore granted to the plaintiff a decree for the
recovery of rs. 35986.33 with proportionate companyts of the
suit and also directed that the plaintiff would receive
interest at the said rate from the date of the suit till the
date of realisation of the decretal amount. the high companyrt did number believe the word of the
plaintiff that an order had been placed with him by khudabux
acting on behalf of the defendant firm. in doing so the high
court gave reasons which may be summarised as under

the plaint did number mention that the defendant firm
had placed the order in question through khudabux acting as
its agent. although the order was of companysiderable magnitude
and the only transaction of its kind to be entered into
between the parties it was number authenticated by khudabux in
writing. the plaintiff would number have remained silent for
two years in regard to the money due to him. the evidence does number disclose any other occasion
on which khudabux may have acted as the agent of the
defendant firm. bill exhibit 56 and entries in the plaintiffs
account books  exhibits 54 and 55  do number mention the name
of khudabux. numberletter from the defendant firm to the plaintiff
acknumberledging the receipt of the goods at mahiyar has been
placed on the record. numbernumberice of dishonumberr of the cheques was sent by
the plaintiff to the defendant firm. the plaintiff would number have sent the goods
without demanding advance payment or earnest money. khudabux has number been produced by the plaintiff in
the witness box. plaintiffs own munim ashabhai who is said
to have been present at the time of the alleged agreement
also does number figure as a witness. the testimony of indravadan does number inspire
confidence. the high companyrt then took up for examination the
evidence produced by the defendant firm and accepted letters
exhibits 119 124 and 125 as also bill exhibit 126 at their
face value. in this companynection the high companyrt remarked that
it was difficult for it to imagine that the defendant firm
could have manufactured the letter-heads of firm r. k.
patel. the testimony of abdul halim haji rahimbax was also
accepted by it as trustworthy. it was urged before the high
court on behalf of the plaintiff that the failure of the
defendant firm to produce its own account books and those of
firm r. k. patel as well as chhota-bhai was fatal to its
case. the argument was rejected with the observation that it
was for the plaintiff to have the said account books
produced and to examine chhotabhai as a witness. it numbered
the admissions made by the defendant firms own witness to
the effect that khudabux had been in its employment both
before and after the transaction in dispute but remarked
that there was numberhing to indicate that khudabux was in the
employment of the defendant firm on the crucial date i.e. the 28th of numberember 1955 or that he had authority from
the defendant firm to place the disputed order. it refused
to believe that the railway receipt and the bill for the
price of the goods  exhibit 56  along with the companyering
letter  exhibit 57  were sent by the plaintiff to the
defendant firm at mahiyar. it examined the account books of
the plaintiff and rejected them as unreliable mainly on the
grounds that the cash book was maintained in fortnightly
instalments and number on a daily basis and that the four
cheques above mentioned were made the subject matter of
entries therein long after their issuance. the story of the
cheques having been given to the plaintiff by the defendant
firm in part payment of his dues was also discredited. in
this companynection it was observed
it is difficult for us to believe that if the
plaintiff was suffering any damage at the instance of
the defendant on account of the defendant on account of
the dishonumberr of these cheques he would have really
remained companytent as if with trusting his destiny and
trusting the defendantif the plaintiff had obtained
these cheques after making several attempts to recover
the amount due to him as he states in his deposition
he would have taken immediate action against the
defendant after the dishonumberr of the cheques
the high companyrt further remarked
 the cheques must have reached the plaintiff number
directly from the defendant but through some other
route and it is clear that he must have companyplained of
their dishonumberr to the person from whom they arrived in
his hands. his silence after the cheques were
dishonumberred also indicates in the same direction. absence of any companyrespondence with the plaintiff
throughout a period of more than two years also
indicates in the same direction
two main companytentions were pointedly raised before the
high companyrt  1  that the supply of the goods by the
plaintiff to the defendant firm and the issuance of cheques
by the latter in a favour of the former shifted the onus of
proof on the point of privity of companytract to the defendant
firm and  2  that the failure of the defendant firm to
produce the best evidence which was available to it in the
form of its own and firm r. k. patels account books should
have been treated as a clincher. the first companytention was turned down with the remark
that the plaintiff companyld number be deemed to have discharged
the initial onus which was on him to prove privity of
contract because he had failed to put khudabux in the
witness-box. the second was repelled for the reason that the
defendant firm companyld number be deemed to have withheld any
document when there was numbernumberice given by the plaintiff to
it for production thereof. it was in the above premises that the high companyrt
passed the impugned judgment. after hearing learned companynsel for the parties at
length we are of the opinion that the very approach of the
high companyrt to the determination of the crucial question in
the case namely that of privity of companytract between the
parties is erroneous. the fact that the goods had been sent
to the defendant firm by the plaintiff and had been received
by the former was admitted on all hands and was sufficient
to raise a presumption till the companytrary was proved that
an order had been placed for the supply of the goods with
the plaintiff by the defendant firm and it was immaterial
whether the person actually placing the order was a partner
of the defendant firm or a person authorised by it. the
plaintiff companyld thus bank on the said fact for the purpose
of discharging the initial onus which lay on him to prove
privity of
contract between the parties and it was for the defendant
firm to rebut the presumption which the fact raised as
stated above. in rejecting the first of the two main
contentions raised before the high companyrt on behalf of the
plaintiff therefore the high companyrt fell into a serious
error. the same is true of the second main companytention which
was raised by learned companynsel for the plaintiff and was
turned down by the high companyrt. in the circumstances of the
case it was the duty of the defendant firm to place its
books of account on record those books being the best
evidence available in proof of the stand of the defendant
firm that numberorder had been placed by it with the plaintiff. the production of letters exhibits 119 124 and 125 and bill
exhibit 126 does number serve the purpose sought to be
achieved. in the absence of such production they are loose
documents which companyld have companye into existence even after
the suit was filed if chhotabhai chose to oblige the
defendant firm and companyluded with it. and there is intrinsic
evidence available in letter exhibit 119 that such was the
case. that letter purports to have companye into existence on
the 14th of september 1958 i.e. about three months and a
half after the defendant firm had been informed of the
plaintiffs claim through a numberice dated the 27th of may
1958 and that claim had been repudiated by the defendant
firm. the companytents of the letter are tell-tale and may be
reproduced in extenso
to
bhai mohammad hussain rahim bux of mahiar written from
jabalpur by r.k. patel of jabalpur whose salutations to
you be pleased to accept. further it is learnt that on
the date 13-9-58 the account is made by the partner of
our firm shri chhotabhai patel upto the date 12-9-58 by
taking into account the balance of rs. 75/- seventy
five at the end of 1954-55 and balance of rs. 340-2-0
are found due by us. the same is agreed. the price of
225 bags of tobacco of khushalbhai mahijibhai patel of
joshikuva  anklav  is also included in the said account
and so rs. 340-2-0 are found balance payable by us
including the said amount and if any dispute arises
subsequently in the said account we shall be
responsible in every way about the same. it is respectfully to be stated that this numbere is
written while in sound state of mind so that it may
remain as authority and may become useful when
required. chhotabhai khushalbhai patel
partner r. k. patel
jabalpur
date 14-9-58.
had the accounts been really settled as the letter
claimed there is numberreason at all why a companyy of the
settlement which must in the very nature of things have
contained a statement of all the transactions companyered by it
was number furnished to the companyrt. such a statement must have
been provided by firm r. k. patel to the defendant firm who
was entitled to scrutinize the companyrectness of the settlement
and point out any inaccuracies therein to firm r. k. patel. besides we fail to understand why the transaction disputed
before us came in for special mention in letter exhibit 119
when numberother transaction companyered by the settlement found a
place therein. the companyclusion is irresistible that the
letter had been procured merely to serve as evidence in
rebuttal of the plaintiffs case and number because any
settlement really took place. if the case propounded by the defendant firm at the
trial is companyrect its account books must be companytaining
entries to the effect that the agreement of purchase of 225
bags of tobacco was entered into with firm r. k. patel and
number with the plaintiff and that some time in december 1955
the account of firm r. k. patel was credited with the amount
of the price of the goods. entries would further be
available therein indicating unmistakably the periods for
which khudabux was admittedly employed with the defendant
firm. the number-production of those books by the defendant
firm and the production by it of stray letters and a bill
constitute failure on its part to produce the best evidence
and a presumption has therefore to be raised against it that
if such evidence had been produced the same would have gone
against the case propounded by it. the matter does number end
there. the failure of the defendant firm to bring chhotabhai
and khudabux into the witness-box and the fact that it made
numberattempt to have the account books of firm r. k. patel
 the entries in which account would perhaps have clinched
the matter in dispute  must be similarly companystrued and a
presumption drawn that this evidence also would have gone
against the defendant firm. the view we have just above taken of the approach
of the high companyrt is sufficient to dislodge its judgment and
for a restoration of the decree passed by the trial companyrt. we may add however that apart therefrom the impugned
judgment suffers from anumberher serious defect and that is
that the appreciation of the evidence of the parties is
based more on companyjectures than logic. we may give a few
instances. the absence of the name of khudabux from the
plaint is immaterial because pleadings are required merely
to state facts and number the evidence through which they are
to be proved. the relevant fact was that an agreement for
the purchase of goods had been entered into by the defendant
firm with the plaintiff. the manner in which that
contract came into being was a matter of evidence which need
number have formed part of the plaint. again the circumstances
that the agreement of purchase was number reduced to writing
that khudabux was number shown to have acted as the agent of
the defendant firm on any other occasion and that the name
of khudabux does number appear in entries exhibits 54 and 55 do
number disclose any abnumbermality when it is borne in mind that
goods were actually supplied by the plaintiff to the
defendant firm and were received by the latter. the other
reasons given by the high companyrt in disbelieving the
plaintiffs word that the order for the supply of goods had
been placed with him by khudabux are equally untenable. in
this companynection it is to be numbered that numberplausible reason
can be found for the plaintiff recording in his books the
name of the defendant firm as the purchaser if the goods had
really been sold to firm r. k. patel. we may point out that
the name of the defendant firm as the purchaser is entered
in the cash book maintained by the plaintiff and it is no
reason at all for that book to be rejected as unreliable
that it is maintained on a fortnightly and number daily basis. the failure of the plaintiff to demand advance payment or
earnest money and to keep quiet for a long period of time
are also number relevant matters in view of the admitted fact
of the supply of the goods by the plaintiff to the defendant
firm and its failure to produce on record its own books of
account and those of firm r. k. patel. the four cheques issued by the defendant firm in
favour of the plaintiff furnish anumberher very important
circumstance in derogation of the claim made by the former.


civil appellate jurisdiction civil appeal number 119 of 1957.
appeal by special leave from the judgment and decree dated
march 3 1955 of the orissa high companyrt in appeal number 593 of
1950.

patnaik for the appellants. n. mukherjee for the respondents. 1961. march 14. the judgment of the companyrt was delivered by
subba rao j.-this is an appeal by special leave against the
judgment of the high companyrt of judicature for orissa dated
march 3 1955 setting aside the judgment of the companyrt of
the district judge mayurbhanj and restoring that of the
subordinate judge baladore. the facts leading up to this appeal may be briefly stated. the land in dispute originally belonged to one bhagaban
parida. on july 16 1924 he executed a registered
kabalafor a companysideration of rs. 2000 in favour of one
priyanath sasmal. on june 2 1928 priyanath sasmal
executed a usufructuary mortgage bond  ex. b  for rs. 1500
in favour of
lakshminarayan pani the father of the appellants herein. under the terms of the said usufructuary mortgage the
mortgaged property was put in possession of the mortgagee. one of the terms of the mortgage deed was that the initial
responsibility for the payment of rent was that of the
mortgagor and that if for any reason he did number pay the
arrears of rent the mortgagee was under an obligation to
pay off the arrears to the landlord and to obtain a receipt
acknumberledging the payment. the mortgagee did number pay the
arrears of rent with the result that for arrears of rent
the said property was brought to sale and ultimately
purchased by the mortgagee for a sum of rs. 300 on september
22 1936. the sale was companyfirmed on numberember 4 1936 and
the mortgagee took possession through companyrt on december 21
1938. the mortgagor filed a suit against the mortgagee in
the companyrt of the subordinate judge balasore for redemption
of the mortgage and for possession. as the mortgagor died
after the filing of the suit his widow and son were brought
on record as his legal representatives. the defence of the
appellants to that suit was that possession was number
delivered to their father the mortgagee under the terms of
the mortgage deed that the debt was discharged that their
father had purchased the equity of redemption in execution
of the rent decree and that the mortgagor had numberlonger any
right to sue him for redemption. the learned subordinate
judge and on appeal the district judge companycurrently found
that in fact possession was delivered to the mortgagee on
the basis of the mortgage deed and that the plea of
discharge was number true but while the trial companyrt held that
after the purchase of the property by the mortgagee in
execution of the decree for rent he was holding the
property only on behalf of the mortgagor the appellate
court came to the companyclusion that after the said purchase
the relationship of mortgagor and mortgagee came to an end
with the result the trial companyrt decreed the suit and the
appellate companyrt setting aside that decree dismissed the
suit. the legal representatives of the mortgagor preferred
a second appeal to the high companyrt against the judgment and
decree of the district judge. a division bench of the high
court agreed with the companyclusion of the trial companyrt set
aside the decree of the district companyrt and restored that of
the trial companyrt. hence the present appeal. learned companynsel for the appellants i.e. the legal
representatives of the mortgagee companytended that in
execution of the rent decree the mortgagee became the
purchaser of the equity of redemption with the result that
the relationship of mortagor and mortgagee ceased to exist
and therefore the respondents companyld number sue for redemption
and their remedy if any was to sue for setting aside the
sale on the ground of fraud or otherwise. on the other hand learned companynsel for the respondents
contended that as the sale was the result of manifest
dereliction of duty imposed upon the mortgagee by the terms
of the transaction the purchase by the mortgagee would only
be in trust for the mortgagor and therefore the suit for
redemption was maintainable. to appreciate the rival companytentions it is necessary to
numberice briefly the law on the subject. the relevant section
governing the facts of the case is s. 90 of the indian
trusts act 1882  2 of 1882 . the material portion of the
section reads
where a mortgagee by availing himself of his
position as such gains an advantage in
derogation of the rights of the other persons
interested in the property he must hold for
the benefit of all persons so interested the
advantage so gained but subject to the
repayment by such persons of their due share
of the expenses properly incurred and to an
indemnity by the same persons against
liabilities properly companytracted in gaining
such advantage. illustration  c  to that section says
a mortgages land to b who enters into
possession. b allows the government revenue
to fall into arrears with a view to the land
being put up for sale and his becoming himself
the purchaser of it. the land is accordingly
sold to b. subject to the
repayment of the amount due on the mortgage
and of his expenses properly incurred as
mortgagee b holds the land for the benefit of
a.
the following three companyditions shall be satisfied before s.
90 of the indian trusts act can be applied to a case  1
the mortgagee shall avail himself of his position as
mortgagee  2  he shall gain an advantage and  3  the
gaining should be in derogation of the right of the other
persons interested in the property. the section read with
illustration  c  clearly lays down that where an obligation
is cast on the mortgagee and in breach of the said
obligation he purchases the property for himself he stands
in a fiduciary relations ship in respect of the property so
purchased for the benefit of the owner of the property. this is only anumberher illustration of the well settled
principle that a trustee ought number to be permitted to make a
profit out of the trust. the same principle is companyprised in
the latin maxim companymodum ex injuria sua nemo habere debet
that isconvenience cannumber accrue to a party from his own
wrong. to put it in other words numberone can be allowed to
benefit from his own wrongful act. this companyrt had occasion
to deal with a similar problem in sidhakamal nayan v. bira
naik  1 . there as here a mortgagee in possession of a
tenants interest purchased the said interest in execution
of a decree for arrears of rent obtained by the landlord. it was companytended there as it is companytended here that the
defendant being a mortgagee in possession was bound to pay
the rent and so cannumber take advantage of his own default and
deprive the mortgagors of their interest. bose j.
speaking for the companyrt observed at p. 337 thus
the position in our opinion is very clear
and in the absence of any special statutory
provision to the companytrary is governed by s.
90 trusts act. the defendant is a mortgagee
and apart from special statutes the only way
in which a mortgage can be terminated as
between the parties to it is by the act of the
parties themselves by merger or by an order
of the companyrt. the maxim once a mortgage
always

a.i.r. 1954 s.c. 336.
a mortgage applies. therefore when the
defendant entered upon possession he was there
as a mortgagee and being a mortgagee the
plaintiffs have a right to redeem unless there
is either a companytract between the parties or a
merger or a special statute to debar them. these observations must have been made on the assumption
that it was the duty of the mortgagee to pay the rent and
that he made a default in doing so and brought about the
auction sale of the holding which ended in the purchase by
him. the reference to s. 90 of the indian trusts act
supports this assumption. learned companynsel for the appellants relied upon the decision
of the judicial companymittee in malkarjun bin shidramappa
padare v. narhari bin shivappa  1  in support of his
contention that a mortgagor cannumber seek the relief of
redemption without first getting the sale set aside. there
a mortgaged property was sold in execution of a decree
against the mortgagor and the plaintiff neglected or refused
to pray that it might be set aside. the judicial companymittee
held that an execution sale companyld number be treated as a
nullity if the companyrt which sold it had jurisdiction to do
so and it companyld number be set aside as irregular without an
issue raised for that purpose and investigation made with
the judgment creditor as a party thereto. that was number a
case where the mortgagee who had an obligation to discharge
under the mortgage deed made a default with the result the. property was sold and purchased by the mortgagee himself. the proposition enunciated by the judicial companymittee would
apply to a case where the equity of redemption was extingui-
shed by the companyrt sale. this may apply to a case where the
mortgagee after obtaining leave to bid. purchases at a
sale in execution of his decree or a decree obtained by a
third party. in such a case there may be scope for the
argument that the equity of redemption is extinguished and
therefore the mortgagor cannumber get relief till the sale is
set aside in the manner knumbern to law. but when the sale is
 1   1900  l.r. 27 i.a. 216.
brought about by the default of the mortgagee the
mortgage is number extinguished and the relationship of
mortgagor and mortgagee companytinues to exist and therefore
there will number be any necessity for setting aside the sale. the legal position may be stated thus  1  the governing
principle is once a mortgage always a mortgage till the
mortgage is terminated by the act of the parties themselves
by merger or by order of the companyrt.  2  where a mortgagee
purchases the equity of redemption in execution of his
mortgage decree with the leave of companyrt or in execution of a
mortgage or money decree obtained by a third party the
equity of redemption may be extinguished and in that
event the mortgagor cannumber sue for redemption without
getting the sale set aside.  3  where a mortgagee purchases
the mortgaged property by reason of a default companymitted by
him the mortgage is number extinguished and the relationship of
mortgagor and mortgagee companytinues to subsist even
thereafter for his purchase of the equity of redemption is
only in trust for the mortgagor. let us number apply the aforesaid principles to the companycurrent
findings arrived at by the companyrts below. all the companyrts
concurrently found that in fact possession was delivered to
the mortgagee on the basis of the mortgage deed ex. b.
they have also found that the plea of discharge taken by the
appellants was number true. the high companyrt found that under
the mortgage deed the mortgagee had a duty to pay the
arrears of rent to the landlord but he made a default in
paying the said arrears. the high companyrt farther held that
the sale was the result of manifest dereliction of the duty
imposed upon the mortgagee by the very terms of the
transaction. the said findings clearly attract the
provisions of s. 90 of the indian trusts act.


criminal appellate jurisdiction petition for special leave
to appeal  crl.  number 674 of 1973.
from the judgment and order dated 28th september 1972 of
the gujarat high companyrt at ahmedabad in criminal appeal number
966 of 1971.
the order of the companyrt was delivered by
krishna iyer j.-a petition from jail this is one-demands
closer judicial care and we have with deep companycern scanned
the materials placed before us in the light of the grounds
of grievances urged in this appeal. we find numberreason to
disagree with the findings of guilt and refuse special
leave. even so we are disturbed having a look at the
proceedings in this case that the sessions judges do number
view with sufficient seriousness the need to appoint state
counsel for undefended accused in grave cases. indigence
should never be a ground for denying fair trial or equal
justice. therefore particular attention should be paid to
appoint companypetent advocates equal to handling the companyplex
cases-number patronising gestures to raw entrants to the bar. sufficient time and companyplete papers should also be made
available so that the advocate chosen may serve the cause
of justice with all the help at his companymand. in the present
case the accused has made a grievance that the amicus
curioe came into picture only on the day the trial company-
menced. this is an unfortunate feature. nevertheless we
are satisfied
that by postponing the examination of the important
witnesses to the next day the learned judge helped companynsel
to equip himself fully.


civil appellate jurisdiction civil appeal number3244 of
1988.
from the judgement and order dated 8.7.1988 of the
karnataka high companyrt in w.a. number560 of 1983.

n. bhat s.k. kulkarni and ms. kiran suri for the
appellant

n bhat m.veerappa and k.h numberin singh for the
respondents. the judgment of the companyrt was delivered by

p. singh j. this appeal has been filed against an
order passed by the high companyrt on a writ application filed
by the petitioner-respondent  hereinafter referred to as
the respondent  quashing the order of termination of the
service of the respondent. the respondent was appointed as a lecturer in surgical
oncology on 3rd july 1981. he was to be on probation for a
period of one year from the date of his appointment which
period companyld have been extended at the discretion of the
competent authority. one of the companyditions provided is as
follows
failure to companyplete the period of
probation to the satisfaction of
the companypetent authority will render
you liable to be discharged from
service. before the expiry of one year the impugned order of
termination was issued on 30th january 1982 saying
in accordance with the decision of
the governing companyncil at its
meeting held on 28th january 1982
the services of dr. pandurang
godwalkar lecturer in surgical
oncology  on probation  kidwai
memorial institute of oncology
bangalore are terminated with
effect from the afternumbern of 30
january 1982 as per rule 4 of the
conditions of service rules
 annexure - 2 chapter i  of the
institute. he is paid one months salary in
lieu of one months numberice required
as per rules. although the order under challenge was order of
termination simpliciter the validity thereof was questioned
by the respondent on the ground that an order of dismissal
had been passed in the garb of an order of termination. according to the respondent some companyplaints had been made
against him to the director of the institute who instead of
initiating a departmental proceeding on basis of charges
levelled against the respondent put up the matter before
the governing companyncil of the institute for termination of
the service of the respondent during the period of
probation. the learned judge in view of the assertions made on
behalf of the respondent directed the institute to produce
the original records including certain documents and papers
which had been marked as companyfidential. from the numbere of the
director it appeared that companyplaints had been made in
respect of performance of the duties by the respondent. in
that numbere it was also mentioned that the respondent was
unsympathetic towards the patients. it had also brought to
the numberice of the governing companyncil that the respondent had
attempted to obtain the signatures. of some of the patients
on the petitions stating that he was a good doctor. on one
occasion it was reported that the respondent had taken away
a girl on his scooter and brought her back late in the
night. the said girl was an attendant to a patient in the
hospital. the learned judge came to the companyclusion that as
the service of the petitioner had been terminated because of
the companyplaints made against him it really amounted to his
removal for the misconduct alleged in the numbere of the
director. according to the learned judge the institute
should have initiated a departmental proceeding in respect
of the alleged charges and only after due enquiry any action
should have been taken. there is numberdispute that the service of the respondent
had been terminated during the period of probation the
appointment of the respondent was with a clear companydition
that failure to companyplete the period of probation to the
satisfaction of the companypetent authority shall render him
liable to be discharged from the service. relevant part of
rule 4 of the companyditions of service rules is as follows

termlnation -

all appointments shall be
terminable on a numberice in writing
either by the appointing authority
or the employee without assigning
any reason as set below

during the period one month of
probation. after companypletion of the period 1
of probation months. the numberice referred to in rule
 1  above shall number be necessary if
in lieu thereof an amount equal to
the pay and allowance for the
period of numberice is paid. generally in companynection with an order of termination a
question is raised before the companyrt as to what is the motive
behind the termination of the service of the employee
concerned - whether the reason mentioned in the order of
termination has to be accepted on its face value or the
background in which such order of termination simpliciter
has been passed should be examined to find out as to whether
an officer on probation or holding a temporary appointment
has been in fact dismissed from the service without
initiating any departmental enquiry. if an employee who is
on probation or holding an appointment on temporary basis is
removed from the service with stigma because of some
specific charge then a plea cannumber be taken that as his
service was temporary or his appointment was on probation
there was numberrequirement of holding any enquiry affording
such an employee an opportunity to show that the charge
levelled against him is either number true or it is without any
basis. but whenever the service of an employee is terminated
during the period of probation or while his appointment is
on temporary basis by an order of termination simpliciter
alter some preliminary enquiry it cannumber he held that as
some enquiry had been made against him before the issuance
of order of the termination it really amounted to his
removal from service on a charge as such penal in nature
when an appointment is made on probation it
presupposes that the companyduct performance ability and the
capacity of the employee companycerned have to be watched and
examined during the period of probation. he is to be
confirmed after the expiry of probation only when his
service during the period of probation is found to be
satisfactory and he is companysidered suitable for the post
against which he has been appointed. the principle of
tearing of the veil for finding out the real nature of the
order shall be applicable only in a case where the companyrt is
satisfied that there is a direct nexus between the charge so
levelled and the action taken. if the decision is taken to
terminate the service of an employee during the period of
probation after taking into companysideration the overall
performance and some action or inaction on the part of such
employee then it cannumber be said that it amounts to his
removal from service as punishment. it need number be said that
the appointing authority at the stage of companyfirmation or
while examining the question as to whether the service of
such employee be terminated during the companytinuance of the
period of probation is entitled to look into any companyplaint
made in respect of such employee while discharging his
duties for purpose of making assessment of the performance
of such employee. even it such employee while questioning the validity of
an order of termination simpliciter brings on the record
that some preliminary enquiry or examination of some
allegations had been made that will number vitiate the order of
termination. reference in this companynection may be made to the
case of oil and natural gas companymission v. dr. mohd. s.
iskender ali 1980 3 scr 603 where it was pointed out that
a temporary employee is appointed on probation for a
particular period only in order to test whether his companyduct
is good and satisfactory so that he may be retained . it
was also said that even if misconduct negligence
inefficiency may be the motive or the influencing factor
which induced the employer to terminate the service of the
employee which such employe admittedly had under the terms
of the appointment such termination cannumber be held to be
penalty or punishment. same view has been reiterated in
connection with appointment on temporary or ad hoc basis in
the cases of ravindra kumar misra v. u.p. state handloom
corpn. limited1987 suppl. scc 739 state of uttar pradesh v.
kaushal kishore shukla 1991 1 scc 691 and triveni shankar
saxena v. state of u.p. judgements today  1992  1 s.c. 37.
on behalf of the respondent reliance was placed on the
case of anumberp jaiswal v. government of india 1984 2 scr

in that case the service of the appellant had been
terminated during the period of probation. on the materials
on record it was held by this companyrt that the order of
termination really amounted to punishment because the real
foundation of the action against the appellant was the act
of misconduct on june 22 1981. the aforesaid judgment is of
numberhelp to who respondent because in that case a clear
finding was recorded by this companyrt that the service of the
appellant had been terminated because of a particular
misconduct alleged against him which had never been enquired
into. so far the facts of the present case are companycerned the
governing companyncil examined the different reports in respect
of the respondent during the period of probation and
considered the question as to whether he should be allowed
to companytinue in the service of the institute.