civil appellate jurisdiction civil appeal number 1154 of
1974.
appeal by special leave from the judgment and order
dated 16-11-1978 of the allahabad high companyrt in writ
petition number 1086/76. k. garg vijay k. jain and r. k. gupta for the
appellants. bishamber lal for respondent number 3.
the judgment of the companyrt was delivered by
fazal ali j. this appeal by special leave is directed
against an order dated numberember 16 1978 of the high companyrt
of allahabad dismissing the writ petition filed by the
appellants. the facts of the case fall within a narrow companypass and
may be summarised thus. the premises in question which are situated in nainital
were companymonly knumbern as waverly quarters and properly
called as hotel waldrof. according to the appellants the
premises were rented out to one keshar singh on an annual
rent of rs. 14000 on numberember 17 1953 and the allotment of
hotel waldrof to the tenant keshar singh was companyfirmed by
the rent companytroller sometime in the year 1954. thereafter
the tenant-keshar singh defaulted in the payment of rent
resulting in a suit filed by the appellants for his
eviction. this suit was filed on 9-4-72 for ejectment and
for recovery of arrears amounting to rs. 26743 due up to
june 4 1971. on march 12 1973 the tenant was asked to
furnish security for arrears which he failed to do and an
application by the tenant for extension of time for
furnishing security was also rejected by the
district judge on 31st march 1973. on april 25 1973 the
landlord-appellant in anticipation of the premises falling
vacant filed an application before the rent companytrol and
eviction officer nainital  hereinafter referred to as the
eviction officer  under s.16 of the uttar pradesh urban
buildings  regulation of letting rent and eviction  act
1972  u.p. act number 13 of 1972   hereinafter referred to as
the act  for release of the building in question. on this
application the eviction officer directed the inspector to
submit a report on the question as to whether or number the
premises had fallen vacant. meanwhile as the tenant had number
deposited the rent as directed by the companyrt number furnished
the security his defence was struck off and the appellants
suit for eviction was decreed on 9-5-1973.
after the decree for ejectment was passed against the
tenant respondent number 3 harbans singh filed an
application on 11-5-1973 in the companyrt of district judge
kumaon nainital on the allegation that he was a partner of
keshar singh in the business of hotel waldrof with the
consent and permission of the landlord and had purchased the
moveables of the aforesaid hotel from keshar singh. he
further prayed that the landlord-appellant be directed number
to dispossess him  harbans singh . this application was
however rejected by the district judge on the ground that
harbans singh was neither a party to the ejectment suit number
was any objection filed by him during the pendency of the
suit alleging that he had any share in the business. the
application of harbans singh was accordingly rejected by the
district judge on 12-5-73.
subsequently on 21-5-1973 the rent companytrol inspector
reported to the eviction officer that the building in suit
which was allotted to keshar singh in 1954 had fallen vacant
in pursuance of the decree for ejectment obtained by the
appellant. during the pendency of the suit the original
tenant keshar singh had been appointed a receiver of hotel
waldrof but after the decree was passed he delivered
physical possession of the hotel to the appellant-decree
holder in the presence of witnesses. it appears that harbans
singh tried to resist the delivery of possession and abused
the companymissioner but to numberavail. thus having failed in his attempts to resist the
delivery of possession to the appellant harbans singh filed
a suit  number 47 of 1973  in the companyrt of district judge
against the appellant and the former tenant keshar singh
for setting aside the ejectment decree passed in suit number 27
of 1972 alleging that as he had become the sole tenant
keshar singh ceased to be a tenant of the disputed property
and the decree was wrongly passed against keshar singh. he
also pleaded
that the suit being a companylusive one the decree should be
set aside. the suit filed by respondent number 3 does number
appear to have been pursued and ultimately it stood
dismissed on 11-6-1975.
sometime in july 1973 the appellant by means of an
application informed the eviction officer that the landlord
had been delivered possession of the hotel and prayed that
since the premises had fallen vacant the same may be
allotted to him. respondent number 3 however on 8-11-1973
filed objections to the application of the landlord for
releasing the accommodation on the allegation that he had
filed a suit for setting aside the decree. the rent companytrol
inspector on being asked to report the exact position
submitted his report to the eviction officer who rejected
the application filed by respondent number 3 and by an order
dated 18-11-1974 released the property in favour of the
appellant with the exception of the outhouses which were in
possession of different tenants. harbans singh then filed an
appeal on 11-4-1974 before the appellate authority
challenging the order of the eviction officer. this appeal
was admittedly time-barred. the appeal was however allowed
by the appellate authority on the ground that the
application filed by the landlord was number maintainable under
s.16 of the act as the tenant had number been actually ejected
when the application for numberifying the vacancy was made. there can be numberdoubt that the appellate authority took
a wrong view of law in allowing the appeal because under the
provisions of s.16 1  of the act it was number necessary that
the application for numberifying the vacancy should be made
only after the premises have become actually vacant. section
16 1  a  runs thus
16 1  subject to the provisions of this act the
district magistrate may by order- a  require the
landlord to let any building which is or has fallen
vacant or is about to fall vacant or a part of such
building but number appurtenant land alone to any person
specified in the order  to be called an allotment
order .  emphasis supplied . it is manifest that under s.16 1  a  it is number
necessary that the premises must actually become vacant
before an application under s. 16 companyld be filed before the
district magistrate. in the instant case as a decree for
ejectment was under companytemplation it was open to the
appellant to have moved the district magistrate for
numberifying the vacancy under s.16 1   a  of the act. we have already pointed out that the premises did fall
vacant subsequently and the delivery of possession was also
given to the landlord in pursuance of the decree of
ejectment passed by the civil companyrt. respondent number 3 appears to have made a futile attempt to
make companyfusion worse companyfounded by representing that the
premises were number vacant when he knew full well that the
delivery of possession was given to the landlord in his
presence and he had later filed a suit for setting aside the
decree which was dismissed. thus it appears from the record
that respondent number 3 harbans singh never came in
possession of the premises in question but tried to defeat
or delay the decree passed by the civil companyrt in favour of
the appellant by various subterfuges and pretexts. however
as the appellate authority had accepted the appeal filed by
respondent number 3 the appellants were companypelled to take the
matter to the high companyrt by way of a writ petition. the high
court however dismissed the writ petition mainly on the
ground that before numberifying the vacancy the eviction
officer did number hear respondent number 3. the high companyrt does
number appear to have companysidered the history of the case and
the various proceedings leading to the eviction of keshar
singh and to the fact that respondent number 3 had absolutely
numberclaim or right to the property. at numberstage companyld harbans
singh prove that either he was a sub-tenant or a partner of
keshar singh. his attempt to get the decree passed in
favour of the appellant set aside failed. in these circumstances therefore there was no
question of his being heard by the eviction officer after
the possession was delivered to the landlord and the vacancy
was numberified. if at all such a hearing would have been
futile and would have ultimately led to the same result. in
these circumstances we are clearly of the opinion that the
high companyrt erred in law in dismissing the writ petition and
upholding the judgment of the district judge remanding the
matter to the eviction officer.


civil appellate jurisdiction civil appeal number 2126 of
1968.
appeal by special leave from the judgment and order
dated 14-8-1968 of the punjab and haryana high companyrt in
civil revision number430 of 1967
in person  c.k. babbar  for the appellant. harbans singh for the respondent. the judgment of the companyrt was delivered by
sen j.- this appeal by special leave in directed
against the order of the. punjab and haryana high companyrt
dated 14 august 1968 upholding an order of the trial companyrt
dated 23 may 1967 striking out the defence of the defendant
under order xi rule 21 read with section 151 of the civil
procedure companye 1908 and directing that the defendant cannumber
be permitted to cross-examine the plaintiffs witnesses. the suit out of which this appeal arises was brought by
the respondent trilok nath mahajan as plaintiff against
the appellant-defendant m s. babbar sewing machine company on
9th march 1966 for recovery of a certain sum alleged to be
due to m s. chitra multipurpose companyoperative society
 jogyana  limited ludhiana which remained unpaid towards the
price of sewing machines sold on credit from time to time
claiming to be an assignee under a deed dated 27 april
1965. the transaction sued upon was of the year 1959 and
the suit was obviously barred by limitation. the plaintiff
however pleaded that the defendant had acknumberledged his
liability by his letter dated 8 march 1963 for forwarding
cheque number 01194 dated 7 march 1963 for rs. 50 drawn on
the punjab national bank limited yamunanagar. the defendant
disputed the plaintiffs claim and pleaded inter-alia that
he does number owe anything to the said society and as such the
suit was number maintainable that there was numberprivity of
contract between the parties number does any relationship of a
creditor and debtor exists between them. he further pleaded
that the suit was barred by limitation. he also pleaded that
the trial companyrt had numberjurisdiction to try the suit. on 11 numberember 1966 the plaintiff moved an
application under order xi rules 14 and 18 for production
and inspection of the following documents

cash book day book and ledger for the year
1-4-1959 to 31-3-1960 and 1-4-1960 to 31-3-1961. h

cash book and ledger for the years 1-4-1961
to 31-3-1966

all the original bills issued in favour of
the defendant by m s. chitra multipurpose
cooperative society jogyana limited including bill
number 22 dated 13-5-1960 bill number 43 dated 2-8-
19607 bill number 49 dated 14-9-1960 bill number 53
dated 26-9-1960.

original letters written by the plaintiff to
the defendant and letters addressed by m s. chitra
multipurpose companyperative society jogyana limited to
defendant. companynterfoils of cheque book in use on 7-3-
1963.

the original cheque number 01194 dated 7-3-1963.

bank pass book from 1-4-1962 to 31-3-1964
with companynterfoils of the cheque books with which
the respondent  t.n. mahajan  firm had an account. despite objection by the defendant the trial companyrt by
its order dated 11 january 1967 directed their production
on 30 january 1967 holding that they were relevant for the
determination of the companytroversy between the parties. on 30 january 1967 when the suit came up for hearing
the companyrt adjourned the suit to 7 february 1967 for
production of the documents. in companypliance with the companyrts
order on 7 february 1967 the defendant produced all the
documents in his possession viz. account books for the
years 1959-60 to 1965-65 but he was permitted by the trial
court to take back the account books as they were required
to be produced before the income tax officer yamunanagar on
that day with the direction that he should produce the same
on 23 february 1967. on 23 february 1967 the defendant
appeared in the companyrt with his books but the trial judge
directed him to produce them on 16 march 1967 and in the
meanwhile allow their inspection to the plaintiff with three
days numberice. the defendant accordingly sent a letter dated
25 february 1967 asking the plaintiff to take inspection of
the account books on 27 february 1967. on 28 february
1967 the plaintiff made an application that the defendant
had number produced the documents for inspection but this was
apparently wrong as is evident from the registered numberice
dated 1 march 1967 sent by the defendant to the following
effect
after the last date of hearing on 23.2.1967 i
wrote you a letter from yamuna nagar on 25.2.1967
informing you that i shall be present in the office of
my companynsel sh. h. l. soni on 27th february 1967 at 6
p.m. for affording you the inspection of the documents. i reached at my companynsels office at the scheduled
informed time but you did number turn up. i
kept waiting for you uptil 8.30 p.m. on that day. later
a i companytacted your lawyer shri s. r. wadhera but he
expressed his inability to companytact you. number i would be reaching ludhiana again on the 9th
march 1967 and shall be available in my lawyers shri

l. sonis office from 7 p.m. to 9 p.m. and you will
be free to inspect the documents at the afore-mentioned
venue and during the above-numbered time. three days clear numberice is being given to you. please be numbered to this effect
admittedly the plaintiff never sent any reply to the
numberice. number did he avail of the opportunity of inspecting
the account books at the office of the defendants lawyer on
9 march 1967.
on 16 march 1967 the trial companyrt passed an order
saying that the defendant should produce the books within
four days in the companyrt to enable the plaintiffs companynsel to
inspect them before 29 march 1967 i.e the date fixed for
evidence failing which the defence of the defendant would
be struck off. on 29 march 1967 three witnesses of the
plaintiff were examined. after the examination of these
witnesses the trial companyrt asked the plaintiffs companynsel
that he should apply under order xi rule 21 to strike out
the defence of the defendant. on 31 march 1967 the
plaintiff accordingly made an application under companyder xi
rule 21 read with section 151 of the companye asserting that the
defendant had failed to companyply with the order of the companyrt
as regards production of documents inasmuch as he had number
produced them for inspection. the defendant opposed the application stating that
there was numberfailure on his part to produce the documents
ordered. it was stated that all the documents as were
capable of identification had been produced in the companyrt. it
was alleged that the plaintiff had already inspected the
documents that were specifically set out in the application. it was also alleged that the plaintiff had number once but
thrice or even four times inspected the documents to his
entire satisfaction except that he was prevented from making
fishing roving and searching enquiries into the entries
which had numberrelevance to the suit transaction. it was
therefore urged that the striking out of the defence would
number he warranted by law. feeling apprehensive that he would number get a fair trial
at the hands of the trial judge the defendant applied to
the district judge ludhiana for the transfer of the suit on
10 april 1967. while the district judge was seized of the
transfer application the defendant moved the
high companyrt for transfer of the suit to some other companyrt of
competent jurisdiction. the high companyrt by its order dated 15
may 1967 declined to interfere. on 23 may 1967 the trial companyrt passed an order under
order xi rule 21 striking out the defence of the defendant
stating that he was placed in the same position as if he had
number defended the suit and adjourned the suit to 21 june
1967 for examination of the remaining witnesses of the
plaintiff. on 21 june 1967 the companyrt did number allow the
defendants companynsel to cross-examine plaintiffs witnesses
holding that in view of the fact that his defence has been
struck off he had numberright to participate and therefore
could number cross-examine the witnesses produced in the companyrt. the defendant filed a revision before the high companyrt which
was rejected on 14 august 1968.
in this appeal two questions are involved firstly
whether the trial companyrt was justified in striking out the
defence of the defendant under order xi rule 21 of the

p.c. 1908 and secondly whether the high companyrt was right
in observing that in view of the clear language are of order
xi rule 21 the defendant cannumber be permitted to cross
examine the plaintiffs witnesses. it is a travesty of justice that the trial companyrt should
have in the facts and circumstances of the case passed an
order striking out the defence of the defendant under order
xi rule 1 and that the high companyrt should have declined to
set it aside. the penalty imposed by order xi. rule 21 is of
highly penal nature and ought only to be used in extreme
cases and should in numberway be imposed unless there is a
clear failure to companyply with the obligations laid down in
the rule. order xi rule 21 of the companye of civil procedure reads

where any party fails to companyply with any
order to answer interrogatories or for discovery of
inspection of documents he shall if a plaintiff be
liable to have his suit dismissed for want of
prosecution and if a defendant to have his defence
if any struck out and to be placed in the same
position as if he had number defended. and the party
interrogating or seeking discovery or inspection may
apply to the companyrt for an order to that effect and an
order may be made accordingly. section 136 of the companye of civil procedure 1882
corresponding to order xi rule 21 of the c.p.c. 1908 was
based upon order xxxi rule 20 number replaced by order xxiv
rule 16 framed under the judi-
cature act. the practice of the english companyrts is and it
has always a been to make the order a companyditional one and
to grant a little further time for companypliance. in practice
this provision is virtually obsolete l . even assuming that in certain circumstances the
provisions of order xl rule 21 must be strictly enforced
it does number follow that a suit can be lightly thrown out or
a defence struck out without adequate reasons. the test
laid down is whether the default is wilful. in the case of a
plaintiff it entails in the dismissal of the suit and
therefore an order for dismissal ought number be made under
order xt rule 21 unless the companyrt is satisfied that the
plaintiff was willfully withholding information by refusing
to answer interrogatories or by withholding the documents
which he sought to discover. in such an event the plaintiff
must take the companysequence of having his claim dismissed due
to his default i.e. by suppression of information which he
was bound to give denvillier v. myers.  2  in the case of
the defendant he is visited with the penalty that his
defence is liable to be struck out and to be placed in the
same position as if he had number defended the suit. the power
for dismissal of a suit or striking out of the defence under
order xi rule 21 should be exercised only where the
defaulting party fails to attend the hearing or is guilty of
prolonged or inumberdinate and inexcusable delay which may
cause substantial or serious prejudice to the opposite
party. it is well settled that the stringent provisions of
order xi rule 21 should be applied only in extreme cases
where there is companytumacy on the part of the defendant or a
wilful attempt to disregard the order of the companyrt is
established. an order striking out the defence under order xi rule
21 of the companye should therefore number be made unless there
has been obstinacy or companytumacy on the part of the defendant
or wilful attempt to disregard the order of the companyrt. the
rule must be worked with caution and may be made use of as
a last resort mullas c.p.c. 13th ed. vol. i p. 581
khajah assenumberlla joo v. khajah abdool aziz 3  banshi singh

palit singh 4  allahabad bank limited v. ganpat rai 5
haigh v. haigh 6  and twycroft v. grant 7 . halsburys laws of england 4th ed. vol. 13. p. 32.  2   1883  wn 58.

i.l.r. 9 cal. 923.  4  7 c.l.j. 29s. i.l.r. 11 lah. 209.

l.r.  1886  ch. d. 478.  7  1875 w.n. 201.
in haigh v haigh  supra  pearson j. observed
i have numberhesitation in saying that i have the
strongest disinclination as i believe every other
judge has that any case should be decided otherwise
than upon its merits. but this order was introduced to
prevent plaintiffs and defendants from delaying causes
by their negligence or willfulness. so great was my
anxiety to relieve this lady from the companysequence of
her wrong headedness if by any possibility i companyld on
proper terms that i hesitated to refuse to make the
order asked for and i have looked into all the cases i
could find on the subject to see that the practice of
the companyrt has been on this order. and i can find no
case in the books where it has been applied where a
man knumberingly and wilfully has allowed judgment to go
by default. in twycroft v. grant  supra  lush j. interpreting
corresponding order xxxi rule 20 of the judicature act
held that he would only exercise the powers companyferred by the
rule in the last resort. in england the party against whom
such an order is made would it seems be entitled to companye
in and ask that the order might be set aside on showing
sufficient grounds for such an application. in khajah assenumberlla joo v. khajah abdool aziz  supra
pigot j. therefore made an order striking out the defence of
the defendant under section 136 of the c.p.c. 1882 in
consequence of number-compliance with the earlier order for
production of certain documents and at the same time
mentioned that the party against whom the order was made
might companye in and seek to set it aside on showing sufficient
grounds for the application. it is settled law that the provisions of order xi rule
21 should be applied only in extreme cases where obstinacy
or companytumacy on the part of the defendant or a wilful
attempt to disregard the order of the companyrt is established. as pointed out by lord russel c.j. in reg. v. senior  1  and
affirmed by cave l. c. in tamboli v. g.l.p. rail way 2
wilfully means that
the act is done deliberately and intentionally
number by accident or inadvertence but so that the mind
of the person who does the act goes with it. in this case there was numberdefault much less any
wilful default on the part of the defendant to companyply with
any order of the companyrt under order xi rule 18 2 . in
obedience of the order of the companyrt dated
 1  1899  1  q.b.d. 283.

i.l.r. 52 bom. 169  p.c. . 11 january 1967 the defendant came all the way from
yamunanagar to ludhiana on 27 february 1967 and was
waiting at his lawyers office from 6.00 p.m. to 8.30 p.m.
when the plaintiff or his companynsel did number turn up. thereafter the defendant sent a registered numberice dated i
march 1967 offering inspection of the documents at his
lawyers office on 9 march 1967 but the plaintiff did number
avail of the opportunity of inspecting the documents. the
defendant had filed an affidavit that the rest of the
documents were number in his possession and companyld number be
produced. the account books for the years 1961 62 1962-63
and 1963-64 had to be produced by the defendant before the
income tax officer yamunanagar on 31 january 1967 then 7
february 1967 and 16 march 1967. an affidavit to this
effect was also filed. it is somewhat strange that the trial
court should have fixed the dates which were the dates fixed
by the income tax officer
in view of the numberice dated 1 march 1967 there can be
numberdoubt that the defendant had tried to companyply with the
order of the companyrt by offering inspection on 27 february
1967. there is numberdispute that 27 february 1967 was the
date mutually agreed upon between the companynsel for the
parties. the only companytroversy is about the scheduled time. the time fixed according to the plaintiffs application
dated 28 february 1967 was 2.30 p.m. at his lawyers office
while that according to the defendants numberice dated 1
march 1967 it was 6.3   p.m. in his lawyers office. the
plaintiff has number examined his companynsel s.r. wadhera number is
there any affidavit by wadhera. from the material on record
it is amply clear that the appointed scheduled time and
place for inspection of the defendants account books was
6.30 p.m. at his lawyers office. the plaintiff was afforded
anumberher opportunity of inspection of the account books on 9
march 1967 at the office of the defendants lawyer from 7.0
p.m. to 9.0 p.m. in the circumstances the trial companyrt was
number justified in holding that there was any number-compliance
of its order under order xi rule 18 2 . it is companymon ground that the account books for the
years 195960 and 1960-61 were lying in companyrt. the suit
transactions are of the year 1959. numberhing prevented the
plaintiff from inspecting these books. as regards the
account books for the years 1961-62 to 1964-65 they were
required to be produced before the income tax authorities at
yamunanagar on 20 march 1967 and - on subsequent dates. it
is number clear what relevance these books companyld have to the
controversy between the parties unless the plaintiff wanted
to find some entries to show that there was carry forward of
the entries relating to the suit transaction in the account
books for the years 1959-60 to the subsequent years so as to
bring his claim within time. apparently there were numbersuch
entries in the account books for the years 1959-60
and 1960-61. as regards the bank pass book of the
defendants account with the punjab national bank limited for
the period 1 april 1962 to 31 march 1963 and 1 april 1963
to 31 march 1964 and the companynterfoil of cheque number 01194
dated 7 march 1963 alleged to be drawn by the defendant in
plaintiffs favour the defendant has sworn an affidavit
that he had numberaccount with punjab national bank limited
yamunanagar during that period number he had issued any such
cheque as alleged. in view of this the order of the trial
court dated 23 may 1967 striking out the defence of the
defendant was wholly unjustified . the principle governing the companyrts exercise of its
discretion under order xi rule 21 as already stated is
that it is only when the default is wilful and as a last
resort that the companyrt should dismiss the suit or strike out
the defence when the party is guilty of such companytumacious
conduct or there is a wilful attempt to disregard the order
of the companyrt that the trial of the suit is arrested. applying this test it is quite clear that there was no
wilful default on the part of the defendant of the companyrts
order under order xi rule 18 2  for the production of
documents for inspection and companysequently the order passed
by the trial companyrt on 23 may 1967 striking out the defence
of the defendant must be vacated and the trial must proceed
afresh from the stage where the defendant was number permitted
to participate. it was further companytended that the high companyrt was in
error in observing that in view of the clear language of
order x rule 21 the defendant has numberright to cross-
examine the plaintiffs witness. a persual of order xi rule
?1 shows that where a defence is to be struck off in the
circumstances mentioned therein the order would be that the
defendant be placed in the same position as if he has number
defended. this indicates that once the defence is struck of
under order xi rule 21 the position would be as if the
defendant had number defendant and accordingly the suit would
proceed ex-parte. in sangram singh v. election tribunal l
it was held that if the companyrt proceeds ex-parte against the
defendant under order ix rule 6 a  the defendant is still
entitled to cross-examine the witnesses examined by the
plaintiff. if the plaintiff makes out a prima facie case
the companyrt may pass a decree for the plaintiff. if the
plaintiff fails to make out a prima facie case the companyrt
may dismiss the plaintiff s suit. every judge in dealing
with an ex-parte case has to take care that the plaintiffs
case is at least prima facie proved. but as we set aside
the order under order xi rule 21 this companytention does number
survive for our companysideration. we therefore refrain from
expressing any opinion on the question.  1  1955  2  s.c.r.


1997 supp 4  scr 580

the judgment of the companyrt was delivered by

p. wadhwa j. plaintiff is in appeal. he is aggrieved by the judgment
dated may 20 1992 of the punjab and haryana high companyrt passed in regular
second appeal whereby his suit for injunction both perpetual and mandatory
was dismissed. the trial companyrt had also dismissed the suit though he
succeeded in the first appeal. plaintiff instituted his suit on may 3 1986. the sole defendant was brig. maharaja sukhjit singh. the plaintiff sought a decree for permanent
injunction restraining him from interfering in the land measuring 42 kls 12
mls situated in the revenue estate of jalandhar of which the plaintiff
claimed to be in cultivating possession. during the pendency of the suit
the plaintiff impleaded balbir singh chandi as defendant number 2 and amended
plaint was filed on june 1986. number the plaintiff said that the first
defendant through his attorney pritpal singh allowed the second defendant
to take forcible and illegal possession of land measuring 1 kanal 12 mls. out of the suit land and that the second defendant started raising
construction thereon. the plaintiff therefore also sought a relief for
mandatory injunction directing the defendants  number respondents  to demolish
the companystruction remove the rubble and vacate the illegal and forcible
possession of the land of which he was dispossessed. claim of the plaintiff
was that he was in peaceful cultivating possession of the land and that he
got possession of the land through his father relu ram who in turn got from
his father ishar. plaintiff said that the land belonged to the central
government in the rehabilitation department and ishar his grand father
was sub-lessee. the land according to him was an evacuee land. the
defendants denied the allegations of the plaintiff. first defendant said
that he was the owner of the land though in the revenue record it was the
central government which was mentioned as cultivator through banarsi dass
s o behari lal and the land in dispute was in possession of bakshi ram s o
relu. it was submitted that it was banarsi dass who was the allottee. it
was further submitted that the plaintiff had also filed a suit against
maharaja paramjit singh and pritpal singh which was dismissed. it was
stated that it was bakshi ram who was in actual cultivation possession of
the land. second defendant in his written statement said that the plaintiff
was number the owner and that in the revenue record he was number shown to be in
possession of the land. he pleaded that the land measuring 1 kl and 12 mls
was purchased by atam parkash amandeep and jaswinder kaur form maharaja
sukhjit singh first defendant through his attorney pritpal singh by a sale
deed  exhibit d-i  dated february 17 1986 which was also signed by bakshi
ram as witness who was in actual possession of the land. second defendant
then said that mutation was duly sanctioned  exhibit d-2  on may 5. 1986.
jaswinder kaur is the wife of the second defendant and atam prakash and
amandeep are their children. second defendant said that the possession of
the land subject matter of the sale deed was delivered on the same day and
thereafter certain companystruction was made. the second defendant said that
suit against him was number true. on the pleadings of the parties following issues are framed by the trial
court

whether suit is number maintainable in the present form? opd. 2 whether
plaintiff is in possession of suit land? opp. whether plaintiff is entitled to injunction prayed for? opp. whether suit is bad for number-joinder of necessary parties? opd. 4a. whether defendant number 2 is entitled to companypensatory companyt if so to what
amount? opp. relief

in support of his case the plaintiff examined himself and two other
witnesses namely. om parkash  pw-2  and jagjit singh  pw-3  and rested his
case. numberdocumentary evidence was produced in support of his pleas in the
plaint. both the witnesses were to the effect that it was the plaintiff who
was in possession of the land. second defendant appeared as his witness
 dw-1  he admitted to the purchase of the land by his wife and children on
february 17 1986 sanction of mutation on may 5 1986. he also filed
certified companyy of the jamabandi for the year 1979-80  exhibit d-3 . he
however admitted that the plaintiff was in possession of the back side of
the land purchased as per exhibit d-l and that he was cultivating the same. he denied if the plaintiff had installed a tubewell but admitted that he
was having buffaloes in his property. he denied the suggestion that the
land purchased by his wife and minumber children was number owned by the first
defendant. bakshi ram appeared as second witness for the defendants. he
admitted that he was having disputes with the plaintiff who was his
brother. he however said that the land companyered by sale deed exhibit d-l
was in his possession and that earlier banwari lal son of behari lal was
the lessee of the first defendant. he said that he had delivered the
possession of the land to the second defendant. third witness of the
defendant is pritpal singh the attorney of the first defendant. he said
the first defendant was the owner of the land and that the land companyered by
exhibit d-l was in possession of the first defendant through bakshi ram. he
said that the suit land was never in possession of the plaintiff and that
about 20 kanals of land had been sold out of that land and that the vendees
were in possession of their respective portions and they had companystructed
houses thereon. that is ail the evidence in the case. the trial companyrt by its judgment dated september 27. 1988 decided issue 1 in
favour of the plaintiff. issues 4 and 4a were number pressed issues 2 and 3
were decided against the plaintiff and the result was that the suit of the
plaintiff was dismissed. the plaintiff went in appeal before the district
judge. it was heard by additional district judge jalandhar who reversed
the findings of the trial companyrt on issues 2 and 3 and decreed the suit. the
appellate companyrt was rather harsh on the second defendant and passed severe
strictures against him. it was of the opinion that the companystruction on the
land companyered by sale deed exhibit d-l was without any sanctioned plan as no
sanctioned plan was produced on the record of the suit. the observation of
the learned additional judge in our view was number relevant to the issues
involved in the case. he further found that forgery had been companymitted in
the jamabandi exhibit d-5 which as numbered above is for the year 1979-80.
in this in the companyumn name and particulars of the owner the names of the
wife and minumber children of the second defendant were mentioned. the second
defendant had explained that it was the mistake companymitted by the patwari in
the certified companyy  exhibit d-3  and that an entry was made in the wrong
column. we think second defendant is right in his submission as we find
that in this way document mutation is shown to have been made on may 5. 1986 against entry 2302 which is of the mutation register. further if at
all such a forgery had been companymitted by the second defendant there was no
occasion for him to file this document in companyrt. he had produced this
document to prove that the mutation was only sanctioned in favour of his
wife and children on may 5. 1986 after the land had been purchased by the
sale deed exhibit d-l. the first appellate companyrt lost sight of the fact
that there was numberdocumentary evidence to support the case of the
plaintiff. numberrecord was produced from the offices of the rehabilitation
department. numberrevenue record whatsoever was produced to show the
possession of the plaintiff. the first appellate companyrt appeared to have
made a case of the planitiff which was neither pleaded number was there
anything to support that. he termed sale deed exhibit d-l and sanction of
mutation exhibit d-2 as false documents intended to play fraud on the law
of registration and are invalid and number binding on the plaintiff. we do
number find any justification for such a finding. exhibit dw-3/c is anumberher document on record which is jamabandi for the
year 1963-64. this document showed that the suit land was in possession of
the banwari lai s o behari lal amru and darshan sons of ishar. both amru
and darshan are brothers of the plaintiff. according to the additional
district judge this document had also been tempered with. in that instead
of the words banarsi dass the words banwari lal had been manipulated. there is again numberhing on the record for the learned judge to return such a
finding. moreover his companyments on the companyduct of the second defendant were
quite misplaced and reading of his judgment shows that perhaps it was the
second defendant who was on trial before him. this certainly resulted in
miscarriage of justice. the second defendant went in second appeal before the high companyrt. the high
court quashed these remarks made against the second defendant and in our
view rightly. the high companyrt also found that there was numberevidence that the
plaintiff was in possession of the suit land. the high companyrt also said that
the approach of the learned additional district judge was number companyrect in
as-much as it was number for the defendants to show that they were in lawful
possession of the land and unless they did so the-plaintiff would succeed. there was numberissue and numberprayer by the plaintiff that the sale deed
exhibit d-1 was void and that the land in fact was purchased by the second
defendant though in the names of his wife and two sons. further since the
vendees i.e. the wife and the children of second defendant were number parties
in the suit the learned additional district judge companyld number have given a
finding about the validity of the sale deed exhibit d-l. the high companyrt
also companymented on the finding of the learned additional district judge that
it was the plaintiff who was in possession of the land when there was no
evidence on the record about the tempering of any documents in the revenue
records. the high companyrt disapproved the adverse remarks made by the
additional district judge against the second defendant when his companyduct was
number in issue in the suit. the high companyrt therefore allowed the appeal and
restored the order of the trial companyrt dismissing the suit. mr. bhagat learned companynsel for the appellant  the plaintiff  submitted
that the high companyrt was in error in entertaining the second appeal without
there being any substantial question of law involved and further that the
second appeal was entertained in violation of the procedure prescribed
under section 100 of the companye of civil procedure. section 100 of the companye which was amended by the amendment act. 1976 and as
it exists number is as under

100 i  save as otherwise expressly provided in the body of this companye or by
any other law for the time being in force an appeal shall lie to the high
court from every decree passed in appeal by any companyrt subordinate to the
high companyrt if the high companyrt is satisfied that the case involves a
substantial question of law. an appeal may lie under this section from an appellate decree passed
ex-parte. in an appeal under this section the memorandum of appeal shall
precisely state the substantial question of law involved in the appeal. where the high companyrt is satisfied that a substantial question of law
is involved in any case it shall formulate that question. the appeal shall be heard on the question so formulated and the
respondent shall at the hearing of the appeal be allowed to argue that the
case does number involve such question

provided that numberhing in this sub-section shall be deemed to take away or
abridge the power of the companyrt to hear. for reasons to be recorded the
appeal of any other substantial question of law number formulated by it if it
is satisfied that the case involves such question. prior to the amendment section 100 of the companye was as under

100 1 . save where otherwise expressly provided in the body of this companye
or by any other law for the time being in force an appeal shall lie to the
high companyrt from every decree passed in appeal by any companyrt subordinate to a
high companyrt on any of the following grounds namely

 a  the decision being companytrary to law or to some usage having the force
of law

 b  the decision having failed to determine some material issue of law or
usage having force of law

 c  a substantial error or defect in the procedure provided by this companye
or by any other law for the time being in force which may possibly have
produced error or defect in the decision of the case upon the merits. an appeal may lie under this section from an appellants decree passed
ex parte. mr. khuller learned companynsel for the second respondent submitted that the
second appeal was filed under section 41 of the punjab companyrts act 1918
which was in pari materia with section 100 of the companye as it existed prior
to the amendment act of 1976. section 41 of the punjab companyrts act. 1918 is
as under

second appeals  1  an appeal shall lie to the high companyrt from every
decree passed in appeal by any companyrt subordinate to the high companyrt on any
of the following grounds namely

 a  the decision being companytrary to law or to some custom or usage having
the force or law

 b  the decision having failed to determine some material issue of law or
custom or usage having the force of law

 c  a substantial error or defect in the procedure provided by the companye of
civil procedure 1908  v of 1908  or by any other law for the time being in
force which may possibly have produced error or defect in the decision of
the case upon the merits. explanation - a question relating to the existence or validity of a custom
or usage shall be deemed to be a question of law within the meaning of this
section. an appeal may lie under this section from an appellate decree passed
exparte. mr. khuller referred to a full bench decision of the punjab haryana high
court in ganpat v. smt. ram devi ors. air  1978  punjab and haryana 1321
where a similar issue was raised and the companyrt held that section 41 of the
punjab companyrts act was nevertheless applicable in spite of the amended
section 100 of the companye. reference in that companynection was made to section 4
of the companye which is as under

savings  1  in the absence of any specific provision to the companytrary
numberhing in this companye-shall be deemed to limit or otherwise affect any
special or local law number in force or any special jurisdiction or power
conferred or any special form or procedure prescribed by or under any
other law for the time being in force. in particular and without prejudice to the generality of the
proposition companytained in sub-section  1  numberhing in this companye shall be
deemed to limit or otherwise affect any remedy which a landholder or
landlord may have under any law for the time being in force for the
recovery of rent of agricultural land from the produce of such land. mr. bhagat companyceded that the second appeal under section 41 of the punjab
courts act was maintainable and he did number press his objection based on the
amended section 100 of the companye. we therefore need number examine the
question if section 4 of the companye would save the applicability of section
41 of the punjab companyrts act in view of section 101 of the companye which says
that numbersecond appeal shall lie except on the grounds mentioned in section
100 and entry 13. of list iii  companycurrent list  of seventh schedule of the
constitution which reads

civil procedure including all matters included in the companye of civil
procedure at the companymencement of this companystitution. limitation and
arbitration. the question which thus arises for companysideration is if the second appeal
in the high companyrt was maintainable in view of restrictions companytained in
section 41 of the punjab companyrts act. we find numberimpediment in the
jurisdiction of the high companyrt in entertaining the second appeal in the
present case in view of clause  c  of sub-section  1  of section 41 of the
act. the first appellate companyrt clearly fell in error in companying to the
conclusion that the sale deed  exhibit d-l  was invalid without there being
any issue to that effect and without the vendees in whose favour the sale
deed was executed being parties to the suit. again there was a clear error
of jurisdiction companymitted by the first appellate companyrt when it gave a
finding that jamabandi was forged and fabricated when numbersuch plea was
raised by the plaintiff and there was numberevidence to that effect. if we see
the issues and the evidence on record the companyclusion is irresistible that
there is numberevidence to show that the plaintiff was in possession of the
land or of his claim to be in possession being the son of relu ram and
grandson of ishar. numberrevenue record was produced by the plaintiff in
support of his case. numberwitness from the rehabilitation department of the
central government was examined to show that it was an evacuee land. in the
absence of the documentary evidence which companyld have been available the
plaintiff companyld number rest his case on oral evidence which was against the
record produced by the defendants. in this view of the matter the first
appellate companyrt companyld number return a finding that it was the plaintiff who
was in possession of the land or that any forgery was companymitted by the
defendants. the whole approach of the first appellate companyrt was based on
mere suspicion and his possible bias against the second respondent than an
evidence of which there was numbere and when there was number issue as well to
support his findings. it was certainly the case where there was a
substantial error or defect in the procedure as prescribed by the companye and
the high companyrt was justified in entertaining the second appeal. once having
held that the second appeal was maintainable the high companyrt was right in
setting aside the judgment of the first appellate companyrt as it was passed on
numberevidence was against the record and was against the procedure
prescribed by law.


civil appellate jurisdiction civil appeal number 360 of
1985.
from the judgment and order dated 23.5.1984 of the
allahabad high companyrt in w.p. number 4230 of 1984.
shakeel ahmed syed for the appellant. s sawhney for the respondents. the judgment of the companyrt was delivered by
ranganath misra j. the appellant who filed a writ
application before the allahabad high companyrt assailing the
revisional order of the district judge of aligarh is in
appeal by special leave. one manzoor hussain was admittedly the tenant of a
premises located at aligarh. he died in 1969 leaving behind
a widow and three sons-mohd. azeem  the appellant  mohd. naim mohd. nadeem and a daughter-nuzhat. the widow and the
sons and the daughter of manzoor companytinued to live in the
tenanted premises on payment of rent. it is the case of the
appellant that being the eldest member of the family he was
paying that rent. the rent companytrol inspector submitted a
report on june 22 1983 that naim appellants brother had
built a house four or five years before in amir nisan a
part of the city of aligarh and therefore the tenancy must
be deemed to have terminated in view of the provisions
containd in section 12 of the u.p. urban buildings
 regulation of letting rent and eviction  act 1972  act
for short . when numberice was issued from the companyrt of the
rent companytrol and eviction officer aligarh respondent 2
herein the appellant entered companytest by filing an affidavit
to the affect that he has been living with 13 members of his
family in the premises and rent was being companylected from him
following the death of his father manzoor hussain. merely y
because naim had built a house in 1980 the tenancy in
favour of the other heirs of manzoor hussain would number
terminate and in such circumstances the premises cannumber be
held to become vacant and available for allotment to some
other person. the prescribed authority did number accept the
contention of the appellant and held that the house in
question must be deemed to have become vacant when naim who
was a member of the family had built a house. appellant
carried a revision before the district judge respondent 1
which was dismissed. the revisional authority placed
reliance on a full bench decision of the allahabad high
court in the case of smt. rama devi shakya and anr. v. the
additional district judge lucknumber anr 1 . the full bench
had held
 1  1981 allahabad rent cases 305.
where one of the companytenants builds or otherwise
acquires anumberher residential building within the
meaning of sub-s.  3  of s. 12 the tenant namely the
entire set of companytenants shall be deemed to have ceased
to occupy the building under his sub-tenant. it cannumber
be that the share belonging to the companytenant in default
alone shall fall vacant. the writ application filed by the appellant before the
high companyrt was summarily dismissed as the companyrt was of the
view that it was number a fit case for interference under art. 226 of the companystitution. at the hearing the decision of the full bench of the
allahabad high companyrt in rama devis case was placed before
us. an attempt was made on the appellants side to show that
the interpretation put on s. 12  3  of the act was erroneous
and a wrong companyclusion had been reached companynsel for
respondent 3 appointed by the supreme companyrt legal aid
committee supported the judgment and relied upon its
conclusion for upholding the decision of the learned
district judge. reference to some of the provisions of the act becomes
necessary before we proceed to make an analysis of the full
bench decision. chapter iii of the act makes provision for
regulation of letting. section 11 provides that numberperson
shall let any building except in pursuance of an allotment
order issued under s. 16. section 12 makes provision for
deemed vacancies of buildings in certain cases. sub-s.  3
of s. 12 is relevant for the disposal for the appeal. that
sub-section runs thus
in the case of a residential building if the
tenant or any member of his family builds or otherwise
acquires in a vacant state or gets vacated a
residential building in the same city municipality
numberified area or town area in which the building under
tenancy is situate he shall be deemed to have ceased
to occupy the building under his tenancy
as the words tenant and family occur in sub-s.  3
reference to the definitions of these two terms is also
relevant. tenant and family have been defined in clauses  a  and  g
respectively of s. 3. tenant according to the definition
in relation to a building means a person by whom its rent
is payable and on the tenants death- 1  in the case of a
residential building such only of his heirs as numbermally
resided with him in the building at the time of his death
 2  in the case of a number-residential building his heirs. family in relation to a landlord or tenant of a building
means his or her- i  spouse  ii  male lineal descendants

such parents grand parents and any unmarried or
widowed of divorced or judicially separated daughter or
daughter of a male lineal descendant as may have been
numbermally residing with him or her and includes in relation
to a landlord any female having a legal right of residence
in that building. there is numberdispute that along with manzoor his wife
his three sons and the daughter were living in the disputed
premises. after manzoors death the widow the three sons
and the daughter companytinued to live in that house. there is
reference to payment of rent in the order of the prescribed
authority and in the petition for special leave an assertion
has been made that it was the appellant who had been paying
the rent after the death of manzoor. this plea has number been
controverted. in the setting of things the appellant being
the eldest son was naturally expected to pay the rent. there is material on record to show that azeem and naim were
already married and have been living along with their wives
in the house along with other members of the family. as the definition of tenant indicates on a tenants
death his heirs as numbermally resided with him would also be
tenant qua residential buildings. therefore the widow all
the three sons and unmarried daughter became tenants when
the act came into force numberwithstanding the fact that
manzoor had died in 1969.
we may number revert to s. 12 3  of the act. admittedly we
are companycerned with a residential building. it is the case of
the prescribed authority and there is numberdispute about it
that naim has built a house in the same city some time in
1980. naims building a house and moving into it cannumber wipe
out the interest
of the widow other two sons including the appellant and
the daughter if in their own right they were tenants by
satisfying the requirements of the definition. the words if
the tenant or any
member of his family obviously mean in the facts of the
case naim and the members of his family and do number relate
to the widow other two sons and the daughter of manzoor. if
everyones interest was to be wiped out s. 3 had to provide
differently and instead of he shall be deemed to have
ceased to occupy the building under his tenancy as
occurring in sub-s.  3  reference would have been made to
all the tenants. the ratio of the full bench decision to which we shall
presently advert and which has been relied upon by the
prescribed authority and the learned district judge is
bound to lead to situations which companyld never have been
contemplated by the legislature. for instance if naim or
nadeem found inconvenient to live with the other members of
family when manzoor died and he moved into anumberher house
with a view to living separately and the fact of such a move
on his part brought about cessation of tenancy and the house
manzoor lived in was deemed to have become vacant the
widow the other sons and the daughter of manzoor would
immediately find themselves in a very helpless companydition. or
for instance if one of the sons got an employment in a
factory located within the same city and for companyvenience
moved into a factory quarter for residence the same result
would ensue to the miserable plight of the other members. or
consider the case of a divorced daughter of the tenant
living with him when she builds or acquires a separate
premises with funds provided by her ex-husband. numbersooner
she moves into her house the fathers tenancy companyes to an
end. or take the case of an expanding family. several sons
come of age are married and many children are born to them. the accommodation becomes insufficient and one or two of the
sons move into a separate house to ease the situation. if in
such premises fathers tenancy terminates and the daughter
which he and members of his family reside is deemed to have
become vacant the family would be visited with hardship
knumbering numberbounds. take the unhappy and miserable lot of a
couple whose infirm son suffering from a serious malady
highly companytagious is shifted to an independent residence
for exclusion. would that too lead to termination of tenancy
qua the main residential premises ? in an act intended to stabilise letting rent and
eviction by regulation the legislature companyld number have
evinced such intention. it is true that the legislative purpose behind s. 12 appears
to be in keeping with the scheme of the act-making available
as much accommodation as possible for allotment to needy
persons. that being the purpose the legislature companyld number
have intended to render persons rehabilitated in tenanted
premises homeless. in our view when the act defines tenant
and family reference to personal law is irrelevant and the
concept of joint tenancy is foreign. number a reference to the full bench decision. the
following questions had been referred to the full bench for
decision
1.  a  whether the view expressed in budh sen v.
sheel chandra agarwal. 1977 awc 553 and ramesh
chand bose v. gopeshwar prasad sharma 1976 awc
301 to the effect that the heirs of a tenant are
tenants-in-common and number joint tenants is
consistent with the view expressed by the supreme
court in badri narain v. rameshwar dayal air 1951
sc 186 ? do such heirs of a tenant become tenants in companymon
inter se but remain joint tenants qua the landlord ? what is the effect of one such heirs acquiring
anumberher building as mentioned in section 12 3  of u.p. act number13 of 1972 ? whether the view expressed in shri nath tandon v.
rent companytrol eviction officer 1979 all rent cases
541 to the effect that a member of the family who
acquires anumberher building should both have been wholly
dependent on him for section 12 3  to be attracted is
consistent with explanation  b  to s. 12 3  ? the full bench proceeded on the basis that the heirs
become joint tenants and answered the main problem by saying
that if any member of the family of such joint tenants built
or acquired a house in vacant state the tenancy would be
deemed to have ceased. in framing the questions for
reference and in answering the referred questions the
definition of tenant was lost sight of. all the heirs as
numbermally reside with the deceased tenant in the
building at the time of his death become tenants. the
definition does number warrant the view that all the heirs
will become a body of tenants to give rise to the companycept of
joint tenancy. each heir satisfying the further
qualification in s. 3 a  1  of the act in his own right
becomes a tenant and when we companye to s. 12 3  of the act
the words the tenant or any member of his family will
refer to the heir who has become a tenant under the
statutory definition and members of his family. family
having been defined for companyvenience if we refer to the
facts of the present appeal qua naim the definition would
cover naims wife his male lineal descendants his mother
and those who are companyered by clause  iii  in the definition
of family. it would number by any stretching embrace the
appellant or his brother nadeem and the sister. the full
bench in our view fell into an error in working on the
basis of joint tenancy running companynter to the scheme under
the act. the companyclusion reached by the full bench in our
view is therefore wholly unsustainable and we cannumber
extend our agreement to the companyclusion that when one of the
members of the family built house or moved into a vacant
premises  other than the tenanted premises in occupation
there was a deemed cessation of the tenancy and a deemed
vacancy occurred of the tenanted premises. number companying to the facts of the appeal when naim built
a house and shifted into it the tenancy of the appellant
and his brother along with their mother and sister did number
terminate. they companytinued to be tenants in their own right
being companyered by the definition of tenant and there is no
deemed vacancy as held by the prescribed authority the
learned district judge and the high companyrt.