civil appellate jurisdiction civil appeal number. 54 to
73a of 1985 etc. from the judgment and order dated 9.10.1984 of the
karnataka high companyrt in w.p. number. 16170 16171 16172
16173 13198 15052 16283 16285-86 16331 16334 16335
16597 16598 17116 17612 of 1981 39414 of 1982 17183 of
1981 42082 of 1982 3833 of 1983 and 15053 of 1981

k. sen. padmanabha mahle miss c.k. sucharita n.d.b. raju m. rangaswamy k.r. nagaraja b. krishna prasad miss
malini poduval and r.b. datar for the appellants. r.l. iyenger m. veerappa and navin singh for the
respondents. the judgment of the companyrt was delivered by
singh j. these appeals and writ petitions involve two
questions of law  i  whether rule 41-a of the karnataka
cinemas  regulations  rules  hereinafter referred to as the
rules  framed by the state government under section 19 of
the karnataka cinemas regulations act of 1964  karnataka act
23 of 1964   hereinafter referred to as the act  has been
made for purposes of the act and  ii  whether rule 41-a
places unreasonable restrictions on the appellants right to
carry on their business of exhibiting cinematograph films in
violation of article 19 1  g  of the companystitution. the appellants petitioners hold licences for exhibiting
cinematograph films in their cinema theatres under the act
and the rules in form prescribed by the rules. the rules and
conditions companytained in the licence  form f  do number
prescribe any restriction on the number of shows of films
which a licensee can exhibit in his theatre. companydition number
11 of the licence however provides that numbercinematograph
exhibition shall companytinue after such time number later than
1.00 a.m. numbermally the cinema owners were holding four
shows but later on they increased it to five shows in a day
starting from 10 a.m. to 12 numbern 12 numbern to 3 p.m. 3 p.m.
to 6 p.m. 6 p.m. to 9 p.m. 9 p.m. to 12 a.m. thus the
cinematograph films were being exhibited companytinuously from
10 a.m. to mid-night which caused a number of problems. the
state government in exercise of its power under section 19
of the act framed rule 41-a directing that numberlicensee shall
exhibit more than four cinematograph shows in a day. rule 4
1-a is as under
41-a. number of shows permissible in a day no
licensee shall exhibit more than four
cinematograph shows in a day. in pursuance of rule 41-a the appellants were directed
to exhibit cinematograph films for four shows only in a day. the appellants challenged validity of the aforesaid rule
placing restriction on their right to exhibit cinematograph
films before the high companyrt of karnataka by means of writ
petitions under article 226 of the companystitution. the
appellants companytended before the high companyrt that the
restriction imposed by rule 41-a on the licensees requiring
them number to exhibit more than four shows in a day was beyond
the rule making power as the rule did number carry out the
purposes of the act. it was further companytended that the rule
placed unreasonable restriction on their fundamental right
to carry on the business of exhibiting cinematograph films. the respondent state submitted before the high companyrt that
the state government realised that on account of exhibition
of five shows in a day in a cinema theatre it was number
possible for the licensees to keep the theatres hygienically
clean and reports were received that for want of time the
licensees were number exhibiting approved films and slides
required under the provisions of the act. the state
government found that exhibition of five shows in a day was
number companyducive to the health of the cine-goers and therefore
it framed rule 41-a limiting the shows. it was companytended
that the rule was
intended for the regulation of the exhibition of
cinematograph films in the licensed premises and was within
the scope and purposes of the act. it was further pleaded
before the high companyrt that the impugned rule 41-a was number
violative of article 19 of the companystitution as it placed a
reasonable restriction in the interest of general public as
contemplated by article 19 6  of the companystitution. a division bench of the high companyrt heard the parties at
length but there was difference of opinion between the two
learned judges companystituting the bench of the high companyrt. s. puttaswamy j. held that the impugned rule was ultra
vires as it was beyond the rule making power of the
government under section 19 of the act. he further held that
the rule placed unreasonable restrictions on the appellants
right to carry on their business guaranteed to them under
article 19 1  g  of the companystitution. the learned judge held
that the restriction placed by the rule 41-a was neither in
the interests of the general public number it was reasonable. narayan rai kudoor j. in a separate judgment upheld the
validity of the rule holding that the impugned rule carried
out the purposes of the act namely the regulation of the
exhibition of cinematograph films and the restriction placed
by it was reasonable and in the interests of the general
public. since there was difference of opinion between the
two learned judges the matter was placed before m. rama
jois j. who agreed with the opinion expressed by n.r. kudoor j. rama jois j. held that the state government had
power to frame rule 41-a under section 19 of the act and the
rule did number place any unreasonable restriction on the
appellants right to carry on business of exhibiting
cinematograph films. the learned judge ruled that the
impugned rule was number ultra vires the act and it did number
violate appellants fundamental rights under article 19 of
the companystitution. in view of the majority opinion all the
writ petitions were dismissed. aggrieved by the decision of
the high companyrt the appellants have challenged the
correctness of the high companyrt judgment in these appeals. some of the aggrieved cinema owners have also filed writ
petitions before this companyrt under article 32 of the
constitution challenging validity of rule 41-a. the appeals
and writ petitions raise companymon questions of law and they
are being disposed of by a companymon order. mr. a.k. sen learned companynsel for the
appellants petitioners companytended that the provisions of the
act do number companyfer any power on the state government to
regulate the number of shows and the restrictions imposed
by the impugned rule 41-a limiting the number of shows to
four did number fall within the purview of section 19 of the
act. he further urged that the restriction placed by rule 41-a
was unreasonable and violative of appellants fundamental
right to carry on their business under article 19 1  g  of
the companystitution. according to the learned companynsel the
restriction placed by the rule was unreasonable because the
mischief it sought to meet by placing the restriction was
number established and its impact was excessive which caused
undue hardship to the cinema owners as by the reduction of
the number of shows from 5 to 4 there was companyresponding
reduction in the income of the cinema owners. shri b.r.l. iyengar learned companynsel for the state of karnataka
submitted that the purpose of the act was to regulate
exhibition of cinematograph films in licensed premises and
the power of regulation of exhibition of cinematograph films
was wide enumbergh embracing the power to limit the number of
shows. he referred to sections 14 and 19 2  d  in support of
his submission that the impugned rule 41-a carried out the
purposes of the act. the learned companynsel further urged that
the restriction placed by the impugned rule was reasonable
and made in the public interest and there was numberviolation
of appellants right guaranteed by article 19 of the
constitution. the question whether rule 41-a is validly framed to
carry out the purposes of the act can be determined on the
analysis of the provisions of the act. the declared will of
the legislature and the policy and purpose of the act are
discernable from the title preamble and the express
provisions of the act. the legislative will is declared by
the preamble of the act which seeks to deal with the subject
of enactment. generally preamble to an act briefly
indicates the object of the legislation. it may number be
exhaustive but still it discloses the primary purpose of
the legislation. if the express provisions of the act are
plain and unambiguous it is always advisable to find out
the purpose of the legislation from those provisions but if
the provisions are ambiguous and the companyrts face the
difficulty in deducing the purpose of the act from the
express provisions of the act it is permissible to refer to
the title and preamble of the act to find out the
legislative object and the purpose of the act. in the
instant case the title of the act is the karnataka cinemas
 regulation  act 1964 and its preamble declares that it is
an act to provide for regulating exhibition by means of
cinematographs and the licensing of places in which
cinematograph films are exhibited in the state of
karnataka. it further provides that whereas it is
expedient to provide for regulating exhibition by means of
cinematograph and the licensing of places in which
cinematograph films are exhibited in the state of karnataka
and for other allied matters the act is being enacted. the
title of the act and the preamble clearly indicate that the
main purpose of the act is to
regulate the exhibition of cinematograph films in places in
respect of which a licence for that purpose may be issued. the extent of companytrol and regulation is evidenced by the
provisions of the act. section 4 of the act provides that no
person shall exhibit cinematograph films in a place except
in accordance with the licence issued under the act. section
5 provides for making of application in writing to the
licensing authority for the grant of licence. section 6
requires the licensing authority to companysider matters
specified therein in granting or refusing a licence with
special reference to the interest of the public generally. section 7 provides for limiting the number of places that
can be licensed in any area. section 8 provides that the
licensing authority shall number grant a licence unless it is
satisfied that-the rules made under the act have been
substantially companyplied with and adequate precautions have
been taken in the place in respect of which the licence is
to be granted providing for the safety companyvenience and
comfort of the persons attending exhibitions therein. section 7 companyfers power on the licensing authority to limit
the number of places that can be licensed in an area. section 10 provides for appeal against the decision under
sections 5 and 9. section 11 provides for regulating the
construction or reconstruction of a building for the use of
exhibition of cinematograph films after obtaining the
permission of the licensing authority. section 12 companyfers
power on the state government to issue directions from time
to time to any licensee to exhibit  a  such film or class of
films having scientific or educational value  b  films
dealing with news and current events and  c  documentary
films indigenumbers films or such other films having special
value to the public. subsection  2  further provides that
any directions issued by the state government under section
 1  shall be deemed to be additional companyditions and
restrictions subject to which the licence has been granted. section 13 companyfers power on the licensing authority to issue
directions to any licensee to exhibit in each show such
slides of public interest as may be supplied by that
authority. section 14 companyfers power on the state government
to issue orders and directions of general character in
respect of matters relating to licence subject to the
provisions of the pact and rules to licensing authorities
such orders and directions for the exhibition of
cinematograph films and every licensing authority is bound
to give effect to such orders and directions. section 15
confers power on the state government or the licensing
authority to suspend exhibition of films if it is of opinion
that any film which is being or is about to be publicly
exhibited is likely to cause a breach of the peace. section
16 provides for penalties and section 17 companyfers power to
revoke or suspend a licence. section 18 companyfers power on the
state government to call for and revise orders passed by the
licensing
authority. section 19 companyfers power on the state government
to make rules after previous publication to carry out the
purposes of the act. the relevant provisions of section 19
are as under

powers to make rules- i  the state government
may by numberification after publication make
rules to carry out the purposes of this act. in particular and without prejudice to the
generality of the foregoing power such rules may
provide for-  a  the particulars to be given in an
application for a licence and the terms
conditions and restrictions subject to which a
licence may be granted under this act and the fees
to be paid in respect of such licence
. . . . . . . . . . . .  d  the regulation of cinematograph exhibitions
for securing public safety
 e  regulating the means of entrance and exit at
places licensed under this act and providing for
prevention of disturbance there at

subject to any modification made section 22
every rule made under this act shall have effect
as if enacted in this act. section 22 provides for placing the rules before each house
of the state legislature which has power to modify amend
or annul the same. the aforesaid provisions of the act seek
to regulate the exhibition of cinematograph films in a
licensed premises. the ultimate purpose of these provisions
is to ensure safety and companyvenience of the general public
visiting the licensed premises for witnessing the
cinematograph films exhibited therein. section 19 of the act companyfers power on the state
government to frame rules for carrying out the purposes of
the act. sub-section  2  of section 19 requires the state
government to frame rules in respect of the matters
specified in clauses  a  to  h . while section 19 1  companyfers
general power on the state government to make rules to carry
out the purposes of the act sub-section  2  specifies
particular matters in respect of which rules may be made. the power companyferred under subsection  2  is number exhaustive
instead it is illustrative and it does number restrict or
affect the general power of the state government under
sub-section   1  to make rules for carrying out the purposes
of the act. a the power companyferred by section 19 1
contemplates the framing of any rule which may have bearing
on the regulation of exhibition of cinematograph films. the
rule so made must be related to the purposes of the act. the
preamble and the provisions of the act provide for the
regulation of the exhibition of cinematograph films which is
the primary purpose of the act. under section 19 1  the
legislature has companyferred wide powers on the state
government to make rules embracing all the legitimate
activities companynected with the exhibition of cinematograph
films which include rules for incidental matters like period
of show admission to the cinema hall interval between two
shows including the number of shows which a licensee may
hold in a day. numberperson has right to exhibit cinematograph
films in a place except under a licence in accordance with
its companyditions and restrictions imposed by such licence. the
state government has general power to issue directions to
any licensee or licensees under section 12 with regard to
the exhibition of films. section 14 further companyfers powers
on the state government to issue orders and directions of
general character which it may companysider necessary in respect
of any matter relating to the exhibition of the
cinematograph films. such directions issued by the state
government are binding on the licensee. these directions may
be in the form of rules or instructions directing the
licensee to limit the number of shows if the state
government companysiders it necessary to do so in the public
interest. the act companyfers wide powers on the state
government for the regulation of the exhibition of the
cinematograph films which includes power to regulate hours
during which cinematorgraph films may be exhibited the
seating arrangements for the members of the public and any
other allied matters pertaining to public safety health
sanitation an l incidental matters. rule 41-a which limits
the number of shows in a day regulates the exhibition of the
cinematograph films and it carries out the purposes of the
act. it is therefore referable to the state governments
general power under section 19 1  of the act. rule 41-a is
further referable to clauses  a  and  d  of section 19 2  of
the act. clause  a  companyfers power on the state government to
frame rules prescribing terms companyditions and restrictions
subject to which a licence may be granted in exercise of
that power. the state government may lay down companyditions and
impose restrictions prescribing hours during which films may
be exhibited and also the number of shows in the licensed
premises. similarly clause  d  companyfers power on the state
government to frame rules regulating the exhibition of
cinematograph films for the purpose of securing public
safety. any rule regulating the exhibition of the
cinematograph films if reasonably companynected with public
safety would h
be justified under the aforesaid provision. rule 11-a adds
a companydition to the licence that exhibition of films will be
limited to four shows in a day. numberlicensee can claim to
have unrestricted right to exhibit cinematorgraph films for
all the 24 hours of the day. such a claim would obviously be
against public interest. rights to exhibit cinematograph
films is regulated by the provisions of the act in the
interest of the general public. the restriction to limit the
number of shows to four in a day placed by rule 4 i-a is
regulatory in nature which clearly carries out the purposes
of the act. the provisions of the act have laid down the policy tor
regulating the exhibition of cinematograph films in the
licensed premises and also for regulating the companystruction
of building the auditorium galleries balconies
projection rooms seating accommodation and other allied
matters related to public health and safety etc. and all
other matters related to exhibition of films. the act does
number regulate exhibition of films only. instead it provides
for regulation of all other allied matters which are
incidental or necessary to the exhibition of cinematograph
film in a licensed premises. necessity to provide for
incidental matters to facilitate successful operation of
exhibition of cinematograph film may arise from time to
time having regard to the prevailing situation and changing
circumstances. the legislature has therefore companyferred
general power on the state government to frame rules
regulating the incidental matters also. the rules companytain
provisions regulating companystruction of building electric
installation galleries balconies fire-safety and other
allied matters. rule 49 and 50 regulate seating
accommodation inside the hall or the auditorium requiring
the licensee to make provision for entrance exit isles and
placement of seats with further provision that there would
be an exit after every sixth row of seats. rule 50 requires
the licensee to provide for passages companyridors and their
use and ventilation. rule 54 provides for water closets and
urinals and water facilities. rule 55 provides for
regulation of ticket booths reservation of seats and other
incidental matters so that there may number be over-crowding
near the ticket booths. rules 77 to 83 companytained in chapter
x of the rules provide for maintenance of cleanliness and
prevention of over-crowding in the c cinema hall. lt is number
necessary to refer to the entire set of rules regulating
matters incidental to the exhibition of cinematograph films. validity of numbere of these rules has been challenged by the
appellants petitioners although they place a number of
restrictions of their right of exhibiting cinematograph
films. the restrictions placed by the rule 41-a is similar
to the restrictions already placed on their right to exhibit
cinematograph films. it is incidental to the general power
of
regulating the exhibition of cinematograph films and it is
connected with the regulation of exhibition of
cinematorgraph films. the question arises whether rule 4 l-a places
unreasonable restrictions on the appellants right to carry
on business of exhibiting cinematograph films in violation
of article 19 1  g  of the companystitution. the
appellants petitioners have number challenged the validity of
the act. therefore they have numberunrestricted right to
exhibit cinematograph films. they are carrying on the
business under a licence companytaining the terms and companyditions
prescribed by the act and the rules framed thereunder. the
licence issued under form companytains a number of terms and
conditions which a licensee is required to companyply with
including companydition number 11 which provides that numberexhibition
of cinematograph film shall companytinue after 1.00 a.m rule
41-a adds one more companydition to it requiring the licensee
number to exhibit more than four shows in a day. article
19 1  g  guarantees freedom to practise any profession or
to carry on any occupation trade or business. the freedom
so guaranteed is number absolute. it is subject to clause  6
of article 19 which permits imposition of reasonable
restrictions by law if it is necessary in the interest of
the general public. any law imposing reasonable restrictions
on the exercise of the right guaranteed by article 19 1  g
would be valid if it is in the interest of the general
public. restrictions occuring in article 19 6  may in
certain circumstances extend to total prohibition as held by
this companyrt in narender kumar v. union of india 1960 2 scr

a law placing restrictions on the citizens right to do
business must satisfy two companyditions set out in clause  6
of article 19 firstly the restrictions imposed by the law
must be reasonable and secondly the restrictions must be
in the interests of the general public. if these two tests
are satisfied the law placing restriction on the citizens
right guaranteed under article 19 must be upheld. while
considering the validity of rule 41-a it is necessary to
ascertain whether the restrictions placed by the said rule
are reasonable and the same are in the interests of the
general public. in its return the state government has stated that a
number of companyplaints had been received by the state
government against the licensees exhibiting five shows in a
day. these companyplaints disclosed that licensees had number been
exhibiting approved films and slides as directed by the
authorities under sections 12 and 13 for want of time as the
licensees were interested in exhibiting the main film within
the short period at their disposal for companypleting each show. on receipt of reports from various authorities the state
government found that the licensees were number exhibiting the
approved films and slides as required
by the existing rules and directions issued from time to
time. it was also brought to its numberice that. the holding of
continuous five shows from 10 a.m. caused great
inconvenience to the incoming and outgoing cine-goers and
endangered public satety. after the end of one show the next
show followed shortly within 15 minutes and on account of
shortage of time in between the two shows there was little
time left for cleaning the cinema halls and there was also
rush by the cine-goers to occupy the seats. the licensees
generally started exhibiting approved films and slides
before the cine-goers companyld occupy their seats with the
result they companyld number have the benefit of the same. the
reports further disclosed that the absence of interval
between the shows resulted in denial of fresh air
ventilation and cleanliness in the cinema halls. the state
government was satisfied that these maladies had primarily
arisen on account of five shows being shown in a day. it
accordingly published the draft rule proposing to place the
limit of four shows in a day and invited objections. a
number of objections were filed before the state government
to the proposed rule by the cinema exhibitors and members
of public. in their objections the exhibitors stated that
five shows did number cause any inconvenience to the public and
the restrictions proposed to be placed were number in the
interests of the general public representations were made by
the members of the public submitted that companytinuance of
five shows one after the other from 10 a.m. on a day to 1
a.m. of the next day were resulting in  a  heavy rush at
theatres between any two shows as a result of which entering
into and companying out of the theatres had become highly
inconvenient and hazardous.  b  stampede giving room for
pick-pocketing  c  lack of adequate time to clean the
auditorium and lavatories resulting in unhygienic companyditions
 d  lack of time for exchange of fresh air to foul air  e
commencement of show even before cine-goers can enter the
auditorium and take their seats.  fl number exhibiting approved
films news-reels etc. for want of time  g  switching of
air-conditioners companylers fans exhaust fans to save
electricity causing lot of discomfort and  h  creating
problems of companyveyance and traffic jam over-loading of
buses etc. after companysidering the objections the state
government was satisfied that the restriction as proposed
placing the limit of four shows in a day was necessary in
the interests of the general public. the state government
thereupon promulgated rule 41-a placing the limit of four
shows. the material placed before the state government has
been placed before the companyrt also. it clearly demonstrates
the necessity for curtailing the holding of five shows to
four shows to remove the public grievance. the
representation filed on behalf of the public high-
lighted the hazards to the public safety and
inconvenience caused to the members of the public visiting
the cinema halls for entertainment. rule 41-a was framed to meet the public need and to secure
public safety by placing minimum possible restrictions on
the licensees. mr. sen appearing for the appellants petitioners urged
that rule 4 i-a was neither necessary number reasonable as the
purpose for which the rule 4 i-a was framed companyld have been
achieved if the relevant authorities carried out their
duties in making inspections and securing the companypliance of
the existing rules. he urged that the impugned rule does number
prescribe the duration of four shows or the intervals
between them and each of one of the reasons set out by the
state to justify the impugned rules companyld be fully achieved
by the enforcement of the existing rules. we find numbermerit
in these submissions. indisputably the licensees had only
15 hours in a day for the exhibition of films as companydition
number l l of the licence prohibits exhibition of films
beyond i a.m. ordinarily numbershow of cinema takes place
earlier to 10 a.m. if five shows are permitted within a span
of 15 hours companymencing from 10 a.m. of a day to i a.m. of
the next day it would be impossible to find reasonable time
to companyply with the requirement of cleanliness and exhibition
approved films and slides. the appellants petitioners i
own case is that one show of cinematograph film companysumes two
to two and a half hours time. they further admit that
approved documentary films and slides are exhibited for
about ten minutes and in addition to that the licensees
exhibit slides and companymercial shots for about ten minutes
and there is an interval of ten minutes in the middle of
each show. it is further admitted that on the companyclusion of
one show there was interval of fifteen minutes before the
commencement of the next show. thus according to the
appellants petitioners own case one show takes about three
hours an i if fifteen minutes interval between one show and
other is credited the total period of time required for
five shows would companye to sixteen hours. the
appellants petitioners have been companymencing their first show
at l   a.m. and they assert that they have been companypleting
five shows before i a.m. the next day in accordance with the
conditions of the licence. the licensees had fifteen hours
at their disposal for holding five shows from 10 a.m. to i
a.m. the next day but in actual practice they require at
least sixteen hours minimum time for holding five shows. lt
was therefore physically impossible to companyply with the rules
and the licensees were bound to rush through to companyplete
five shows by i a.m. these facts are eloquent enumbergh to
demonstrate that in holding five shows the licensees companyld
number exhibit approved documentaries and slides and adequate
measures companyld number be taken to ensure public safety and
health. if five shows are held companytinuously from 10 a.m. to
l a.m. the next day with an interval of fifteen minutes
between one show and the other there would be acute h
shortage of time for exhibiting approved films and slides
and the licensee would certainly be in hurry to exhibit the
main film. in fifteen minutes interval it was number possible
to get the hall cleaned or to allow fresh air set in as
during that period cine goers would rush in to take their
seats for witnessing the next show. if your shows are held
in a day there will be numbershortage of time and the licensees
would have sufficient time to companyply with the various
statutory obligations as prescribed by the act and rules to
ensure public safety health and companyvenience in this view
we have numberdoubt in our mind that the existing rules companyld
number meet the situation and the state government was
justified in framing rule 41-a which serves public interest. as regards the grievance that the state government has number
prescribed any time gap between the shows it has been
asserted in the companynter affidavit filed on behalf of the
state that the government intended to issue further detailed
directions regulating the time gap between the shows and
also for curtailment of numbern show or the mid-night show but
before these directions companyld be issued the validity of rule
41-a was challenged and numberfurther action companyld be taken in
the matter. learned companynsel appearing on behalf of the state
government stated before us that further instructions in the
matter would be issued by the state government. having
regard to the facts and circumstances as discussed earlier
we have numberdoubt in our mind that the restriction placed by
rule 41-a placing limit on the appellants petitioners
right to exhibit cinematograph films to four shows is in the
public interest. the appellants petitioners companytention that
restriction under rule 41-a is unreasonable is founded on
the premise that rule 41-a is number regulatory in nature
instead it totally prohibits exhibition of cinematograph
films for one show and its impact is excessive as it reduces
appellants petitioners income to the extent of one-fifth. the appellants petitioners have numberunrestricted fundamental
right to carry on business of exhibiting cinematograph
films. their right to carry on business is regulated by the
provisions of the act and the rules framed thereunder. these
provisions are necessary to ensure public safety public
health and other allied matters. as already discussed rule
41-a has placed limit on the number of shows which a
licensee can hold in a day. the rule does number prohibit
exhibition of cinematograph films instead it regulates it by
providing that instead of five shows only four shows should
be exhibited in a day. in narender kumar v. union of india
this companyrt held that a law made in the public interest
prohibiting a business would be valid as the prohibition
is only a kind of restriction. the expression
restriction includes prohibition also. rule 41-a. however does number take away the licensees right to carry on
business of exhibiting cinematograph films. it merely
regulates it. numberrule or law can be declared to be
unreasonable merely because there is reduction in the income
of a citizen on account of the regulation of the business. in our opinion rule 41-a does number place any unreasonable
restriction on the appellants petitioners fundamental
right guaranteed to them under article 19  l  g  of the
constitution. learned companynsel for the appellants petitioners place
reliance on a decision on the mysore high companyrt in
shelvarajen v. state of mysore. 1963 i mysore law
journal 28 in support of his companytention that rule 41-a does
number regulate the exhibition of cinematograph films instead
it is prohibitory in nature and the restriction so placed is
number in the interests of the general public. puttaswamy j.
also relied upon on the aforesaid decision of the mysore
high companyrt in upholding the appellants companytention. in
shelvarajen v. state of mysore the petitioner was exhibitor
of travelling cinema show. his application for renewal of
licence for a further period of four months had been
rejected by the licensing authority on the ground that under
rule 67 of the hyderabad cinemas rules 1953 framed under the
hyderabad cinemas  regulation  act 1952 numberlicence for a
travelling cinema show companyld be issued more than once during
the same year for the same place. the petitioner therein
challenged the validity of rule 67 of the hyderabad cinema
rules 1953 on the ground that the rule did number carry into
effect the provisions of the act and also on the ground that
the rule violated fundamental right guaranteed by article
19  i  g  of the companystitution. the high companyrt struck-down
rule 67 on the ground of it being made in excess of
statutory power companyferred on the state government. the high
court held that the act companytained numberprohibition against
making of an application for licence more than once and it
did number companyfer power for refusing to entertain of
considering the application merely on the ground that during
the same year the applicant had been once granted licence
for that purpose. we do number agree with the view taken by the
bench in that case. as in our opinion rule 67 regulated the
grant of licence in respect of travelling cinemas. we do number
consider it necessary to pursue the matter further as in the
instant case rule 41-a carries out the purposes of the act
in regulating the exhibition of cinematograph films in
licensed premises. in vishnu talkies v. state of bihar air
1975 patna . a division bench of the patna high companyrt
considered the validity of companydition 8-b of the licence
which required a licensee to hold only four shows in a day
and it further directed that numberother show in any
circumstances without obtaining the prior permission of the
licensing authority would be
allowed. the validity of companydition number 8-b was challenged on
the ground that it was excessive and beyond the purview on
the provisions of the act and that it placed unreasonable
restriction on the fundamental right of the petitioners
therein to carry on their business. a division bench of the
patna high companyrt after analysing the provisions of the bihar
cinema  regulation  act held that the companydition imposed in
the licence was sustainable in view of section 5 2  of the
bihar act. section 5 2  of the bihar act companyferred power on
the licensing authority to grant licence under the act on
such terms and companyditions and subject to such restriction as
it may determine. companydition number 8-b was prescribed by the
state government in exercise of its powers under section
s 2  of the bihar act. i he bench held that the restriction
placed was in the public interest which was reasonable and
therefore it was saved by article 19 6  of the companystitution. we are in agreement with the view taken by the patna high
court. in d.k.v. prasad rao v. state of andhra pradesh. air
1984 a.p. 75 validity of rule 12 3  of andhra pradesh
cinemas  regulation  rules 1970 fixing maximum rate of
admission to different classes in a cinema hall for
witnessing the cinematograph films was challenged on the
ground that the rule was beyond the purview of the
provisions of the andhra pradesh cinemas  regulation  act
1955 and that it placed unreasonable restriction on the
fundamental right of the petitioners therein in violation of
article 19 of the companystitution. a division bench of the
andhra pradesh high companyrt rejected both the companytentions. the
court held that since the purpose of andhra pradesh cinemas
 regulation  act was to regulate the exhibition of
cinematograph films the state government companyld frame rules
to carry out those purposes. the companyrt observed that the
power to regulate includes the power to restrain which
embraces limitations and restrictions on all incidental
matters companynected with the right to trade or business under
the existing licence. rule 12 3  regulated entry to
different classes to the cinema hall and it was within the
rule making power of the state government to frame such
rule. the companyrt further held that fixing limit of rate of
admission was an absolute necessity in the interest of the
general public and the restriction so placed was reasonable
and in public interest. on these findings the companyrt upheld
the validity of the rule. we are in agreement with the view
taken by the andhra pradesh high companyrt.


civil appellate jurisdiction civil appeal number 1118 of 1973.  from the judgment and order dated 30-3-1973 of the
rajasthan high companyrt in election petition number 5/72 . l. bhargava s.n. bhargava s.k. jain i. makwana
and s.m. jain for the appellant. n. lodha j.s. rustogi and s.s. khanduja for the respond-
ent. the judgment of the companyrt was delivered by
chandrachud j.--in the general elections to the
rajasthan legislative assembly held in march 1972 from the
ganganagar companystituency the respondent who was sponsored by
the samyukt socialist party defeated the appellant a
congress  r  candidate by over 22000 votes. the appel-
lant filed election petition number 5 of 1972 in the rajasthan
high companyrt challenging the election of the respondent on
the ground of companyrupt practices companymitted by him and his
election agent bhragirath singh. the petition having been
dismissed the election petitioner has filed this appeal
under section 116a of the representation of the people act
1951.
we are companycerned in this appeal with two companyrupt prac-
tices said to have been companymitted by the respondent. it is
alleged firstly that a pamphlet  ex. 1   was distributed
by the respondent and his election agent in a meeting held
on february 23 1972 at nehru park ganganagar. the second
corrupt practice alleged against the respondent is that
several companyies of a weekly newspaper called patal shakti
dated february 27 1972 companytaining a scurrilous editorial
were distributed by the respondent and his election agent at
a meeting of the socialist party held a public park
ganganagar on the 27th. the editorial is also said to have been read out in the
meeting by one vijay kumar talwar. the allegations company-
tained in the editorial and in the pamphlet  ex. 1  to which
the editorial refers are indisputably defamatory of the
appellant. the editorial  ex. 2  companytained in the patal
shakti is alleged to have been written at the instance of
the respondent and in a manner paid for by him. this appeal had companye up for hearing on august 6 1975
when by companysent of parties two additional issues were remit-
ted by this companyrt to the high companyrt with liberty to the
parties to lead evidence on those issues. the first issue
was whether the pamphlet  ex. 1  was .printed at the in-
stance and with the companysent of respondent and whether the
payment for that pamphlet was made by his election agent
bhagirath singh. the second issue remitted to the high
court was whether the editorial  ex. 2  in patal shakti was
read over in the meeting of february 27 1972 by vijay
kumar talwar in the presence of the respondent. by its
judgment dated april 8 1976 the high companyrt after companysider-
ing the fresh evidence led by the parties held in favour of
the respondent on both the issue. those findings are chal-
lenged by the appellant in this appeal. the appeal is devoid of substance and this we feel
constrained to say in spite of a careful argument advanced
on behalf of the appellant by shri m.b.l. bhargava. in view
of some of the fundamental circumstances to which we will
presently refer it is unnecessary to discuss fully the
evidence of each one of the witnesses examined by the par-
ties on the two companyrupt practices attributed to the respond-
ent. it is a matter of companymon occurrence in election peti-
tions that parties manage to companylect a large volume of oral
evidence in support of the allegations of companyrupt practice. very often the allegations are companycocted and are attempted
to be established with the evidence of partisan witnesses. on rare occasions when the allegations are true untrue
evidence is led to strengthen the charges. several witnesses were examined by the appellant for
proving that in a meeting held on february 23 1972 the
pamphlet  ex. 1  was distributed by the respondent and his
election agent. we agree with the learned companynsel for the
appellant that the high companyrt should number have brushed aside
the evidence of those witnesses on the mere ground that they
belonged to the same party as the appellant or were
otherwise interested in his success in the election. interested witnesses are number necessarily false witnesses
though the fact that the witness has a personal interest or
stake in the matter must put the companyrt on its guard. the
evidence of such witnesses must be subjected to a closer
scrutiny and indeed the companyrt may in a given case be justi-
fied in rejecting that evidence unless it is companyroborated
from an independent source. but the reasons for companyrobora-
tion must arise out of the companytext and texture of evidence. even interested witnesses may be interested in telling the
truth to the companyrt and therefore the companyrt must assess the
testimony of each important witness and indicate its reasons
for accepting or rejecting it. a broad and general companyment
that a particular witness is an election agent of a candi-
date and cannumber therefore be relied upon is number a judicial
assessment of evidence. evidence can be assessed only after a careful analysis. since the high companyrt has by and large rejected the evi-
dence led by the appellant on the omnibus ground that the
witnesses are interested we have gone through the relevant
evidence with the help of the respective companynsel. it is on
a careful companysideration of that evidence that we reached
the companyclusion that it is impossible to accept the allega-
tion of companyrupt practice made against the respondent. the first allegation against the respondent is that
he and his election agent bhagirath singh distributed the
pamphlet  ex. 1  in a meeting held on february 23 1972 at
the nehru park ganganagar that meeting was addressed by the
prime minister and over a lakh of people were present. it
is fantastic to think that on the heels of such a largely
attended meeting companyvened under the auspices of the rival
party the respondent and his election agent would be so
foolish as to distribute a scandalous pamphlet of the type
in issue. it is also difficult to believe that numbere of the
recipients of this highly defamatory document took any
action after receiving it. in a town seized by election
fever the poll being just a few days ahead it is impossi-
ble that even rival partymen looked at the incident with
such companyl unconcern. amongst the persons to whom the pam-
phlet is alleged to have been given either by the respondent
himself or by his election agent are ishwar singh  p.w. 7
and arjun singh  p.w. 20 . ishwar singh was. an additional
district magistrate whereas arjun singh was. the circle
officer. both of these gentlemen were present at the
meeting at nehru park in their official capacity for ensur-
ing peace and order. it strains ones credulity to believe
that the respondent and his election agent would take the
imprudent risk of distributing the pamphlet to these high
government officers. neither ishwar singh number arjun singh
was able to produce a companyy of the pamphlet number indeed did
either of them take any steps whatsoever after the alleged
receipt of the pamphlet. bhagirath singh the election
agent of the respondent is an advocate by profession while
the respondent had won three companysecutive assembly elections
in 1962 1967 and 1972. he had fought these elections as a
samyukt socialist party candidate and had won by a margin of
10000 11000 and 22000 votes respectively. it is impossible
in the very nature of things that these two old hands would
so openly and incontrovertibly lend an easy ground for the
success of a possible election-petition. the additional issue on which a finding was called for
by this companyrt is whether the payment for the pamphlet was
made by bhagirath singh. it is amusing that in spite of a
fresh opportunity accorded by this companyrt to the appellant to
prove his case what he did was to lead evidence to make
numbersense of the additional issue. instead of showing that. the charges of printing. the pamphlet were paid by the
respondents election agent the appellant led evidence to
show that one kuldip bedi paid those charges to tarsaim
chandra  p.w. 24  who is alleged to have printed the pam-
phlet. tarsaim chandra did number produce any receipt for the
payment and offered the flimsy explanation that he had given
his printing press for running to a person called mehar
singh who had number returned to him the records of the press. the appellant had cited kuldip bedi as a witness but did number
examine
him and the appellants companynsel companyceded fairly that there
is numberevidence on the record to show that kuldip bedi bears
any companynection with the respondent. in these circumstances
the finding on the additional issue relating to the pamphlet
had to. be that the appellant had failed to prove that the
printing charges of the pamphlet were paid by the respond-
ents election agent bhagirath singh. others who speak of the distribution of the pamphlet
are the appellant himself  p.w. 1   khetpal   p.w. gulab rai  p. w. 11  devi datt  p.w. 12  nathuram

w. 13  and madan lal kanda  p. w. 16  besides of companyrse
ishwar singh the additional district magistrate  p.w. 7
and arjun singh the circle officer  p.w. 20 . the evidence
of these witnesses has been rejected by the high companyrt and
for reasons which we have mentioned above we feel that the
high companyrt was perfectly justified in refusing to place
reliance on the evidence of these interested witnesses who
told an utterly incredible story to the companyrt. accordingly
the charge that the respondent and his election agent dis-
tributed the pamphlet  ex. 1  must fail. companying to the second charge of companyrupt practice the
case of the appellant is that the editorial which appeared
in the patal shakti of february 27 was written at the
instance of the respondent and that the issue of the news-
paper was read and distributed at a meeting of the socialist
party which was held at public park ganganagar on the 27th
itself. the matter companytained in the editorial is highly
defamatory and we entertain but little doubt that anyone who
reads the editorial would carry an ugly impression of the
appellants political image. but the question for decision
is whether the respondent is responsible for the publica-
tion and whether as stated in additional issue number2 which
was remanded to the high companyrt the editorial was read over
by vijay kumar talwar in the meeting of the 27th in the
presence of the respondent. one gyan devi talwar the mother of vijay kumar talwar
is styled as the sanchalika or the director of patal
shakti. raj kumar sethi is said to be the chief editor of
the weekly while vijay kumar talwar is an assistant editor. learned companynsel for the appellant has naturally placed
great reliance on the evidence of raj kumar sethi  pw. 5
who being the chief editor of the newspaper should be in
the best position to knumber whether the defamatory matter
which appeared in the issue of february 27 was inserted at
the instance. of the respondent. a large number of wit-
nesses were examined by the appellant on this question the
more important of them being the appellant himself  p.w. 1
raj kumar sethi  p.w. 5  madan lal kanda  p.w 10  radhey
shyam  p.w. 17  om prakash  p.w. 18  harbeant singh  p.w. banwari lal  p.w. 22  and avinash  p.w. 23 . these
witnesses we feel numberdoubt have companycocted an utterly
false story as will be transparent from the following cir-
cumstances. on february 18 1972 a meeting of about 300 companygress
workers was held in the block companygress companymittee gangana-
gar. the proceedings of that meeting are recorded in the
minutes ex. a/24 which
were produced by kesho ram garg  p.w. 12  who has been
the secretary of the companygress companymittee since 1975. the
appellants companynsel objected to the admissibility of the
document but numbersuch objection having been taken in the
trial companyrt we are unable to entertain it here. the
minutes show that the meeting was attended amongst others by
gyan devi talwar raj kumar sethi  p.w. 5  madan lal kanda

w. 16  om prakash  p.w. 18  harbeant singh  p.w. banwari lal  p.w. 22  chand ram sherwal one of the
assistant editors of patal shakti and by manphool singh an
ex-deputy minister in rajasthan who is the brother of the
appellant. the meeting resolved unanimously to support the
candidature of the appellant. in this companytext it is diffi-
cult to believe that the newspaper of which gyan devi talwar
was the director and raj kumar sethi is its chief editor
could possibly be persuaded to print and publish an editori-
al so highly defamatory of a candidate in whose success they
were so keenly interested. the second circumstance which
has an important bearing on this question is that on febru-
ary 20 1972 gyan devi talwar had called a meeting of
trade union workers for supporting the appellants candida-
ture. that meeting was attended amongst others by raj
kumar sethi and vijay kumar talwar the main speaker being
gyan devi herself. the weekly patal shakti was started
on the eve of the elections on january 26 1972 the object
of starting the journal being obviously to undertake an
election campaign on behalf of the companygress  r  candidates. seeing that persons closely companynected with the journal had
taken a prominent part in the appellants election-campaign
it is absurd to think that these very persons would be
parties to the printing and publication of the editorial. raj kumar sethi says in his evidence that the respondent
paid him 200 rupees as the price of the publication and this
is attempted to be companyroborated by the production of the
counterfoil of a receipt showing that the newspaper had
received 200 rupees from the respondent on the 27th. the
receipt however apart from being otherwise uninspiring
says that the amount was paid for charges of an advertise-
ment. the argument of the appellants companynsel that the
editorial was in the nature of an advertisement in favour of
the respondent is too naive for our acceptance. besides it
is number likely that the respondent would pay rs. 200 under a
receipt and create evidence against himself to show that
he was a party to the defamatory publication. raj kumar sethi has perjured himself on several impor-
tant points. in his enthusiasm to support the cause of the
appellant he said his evidence that companyies of the news-
paper were distributed in a meeting held at nehru park. the election petition speaks of a meeting in public park and
it is companymon ground that the two places are distinct and
separate. raj kumar sethis sense of honumberr can be as-
sessed in reference to the fact that a creditor had to file
a suit for a paltry sum of rs. 450 against him and after a
decree was passed in that  suit execution proceedings had
to be companymenced to recover the amount. it is alleged by the appellant that on seeing the
editorial he sent a letter ex. 8 on the 27th itself to
raj kumar sethi asking him to explain at whose instance the
editorial was published. raj kumar wrote a reply  ex. 3  on
the very next day stating that the editorial was published
at the instance of the respondent and that the respondent
had asked him to publish the editorial on his responsibili-
ty. both ex. 3 and ex. 8 are got-up documents prepared for
supporting the appellants case that the editorial was
published at the instance of the respondent. we have
already indicated that in the very nature of things it is
impossible that raj kumar sethi gyan devi talwar and vijay
kumar talwar who were interested in the success of the
appellant would permit a publication so highly defamatory
of the appellant. there is an extremely interesting aspect of this matter
to which we must refer. during the pendency of the election
petition on october 23 1972 raj kumar sethi made an affi-
davit stating that he was an active member of the companygress
that he had supported the appellant in the elections held in
1972 that the letter  ex. 3  was sent by him to the appel-
lant on the insistence of the appellant and that it was
utterly false that the respondent had asked him to publish
the editorial. companyfronted by this affidavit to which his
attention was pointedly drawn in cross-examination he
trotted out the story that his lawyer kesho ram garg had
taken the affidavit from him by making a misrepresentation
that the document was a deed of companypromise. raj kumar
sethi says that he put his signature on the document in the
belief that the representation made by his lawyer was true. in one part of his evidence he said that he had put his
signature on the document voluntarily believing in the
representation made by his lawyer. quite a different
version was given by him later that he was forced to sub-
scribe to the document. how false the story is can be
judged from the fact that kesho ram garg who is alleged to
have deceived him was still representing him in the execu-
tion petition filed against him. the witness had the
temerity to write a letter ex. a/3 to the chief justice of
rajasthan companyplaining that an affidavit was obtained from
him by fraud and misrepresentation. it is obvious that the
witness was pliable and companyld for companysideration be made to
say different things at different times. the evidence of the appellant birbal singh suffers from
equally serious infirmities. he speaks of the distribution
of the newspaper in a public meeting held on the 22nd at
public park but in the election petition as originally
flied his case was that the newspaper was distributed
throughout ganganagar. the election petition also mentioned
that the editorial was read at the meeting but the allega-
tion that it was distributed to several hundred persons is a
later improvement. the meeting at which the newspaper was
distributed was held under the auspices of the socialist
party which renders it unlikely that the appellant had at-
tended the meeting. and if the appellant was present it
the meeting it seems to us strange that even after numbericing
that he defamatory matter which had appeared in the morn-
ings editorial was being freely distributed he left the
meeting without a protest. it
is interesting that the appellant did number say in his exami-
nation-in-chief that he attended the particular meeting in
which the newspaper was distributed. it occurred to him
for the first time in his cross-examination to say that he
was present at the meeting and was an eye-witness to the
distribution of the newspaper. ex. 5 which is a draft of the editorial is said to be
in the hand of chand ram sherwal an assistant editor of
patal shakti. chand ram was number examined in the case. chand ram was present in the meeting of the 18th february
which unanimously supported the candidature of the appel-
lant. this makes it difficult to believe that he would
write. out the draft so highly defamatory of the appellant. why vijay kumar talwar who was also interested in the appel-
lants election and who is the son of the director of the
newspaper should sign the draft is more than we can under-
stand. the evidence of the other witnesses like madan lal
kanda radhey shyam om prakash harbeant singh banwari lal
and avinash can carry the matter numberfurther except perhaps
to show that number one or two but several witnesses companyspired
to create false evidence to show that the editorial which
appeared in the patal shakti of february 27 1972 was
written at the instance of the respondent and that vijay
kumar talwar read it out in a public meeting. accordingly we are in entire agreement with the high
court that numberreliance can be placed on the testimony of the
witnesses examined by the appellant to prove the charges of
corrupt practice against the respondent. number only are the
charges number proved beyond a reasonable doubt but we are of
the opinion that there is numbersubstance whatsoever in the
charges. companysequently we companyfirm the judgment of the high companyrt
and dismiss the appeal with companyts. h.p. appeal
dismissed. municipal companyporation of delhi
v.
suresh chandra jaipuria anr. numberember 3 1976

n. ray c.j. m.h. beg and jaswant singh jj. civil procedure companye sec. 115--concurrent decisions on
question of interference by high companyrt whether justified
specific relief act 1963 s. 41  h  application. the respondent purchased a house and under the sate-
deed became responsible for paying the house-tax subsequent
to the purchase. on his failure to pay the same the appel-
lant companyporation started proceedings against him for the
realisation of dues. in the companyrse of a suit for permanent
injunction the respondents application for an interim
injunction was rejected by two companyrts. on further appeal
the high companyrt granted him interim injunction on the ground
that there was a prima facie case even though agreeing with
the appellate companyrt that the balance of companyvenience was
against such grant. allowing the appeal the companyrt
held 1. section 41  h  of the specific relief act
1963 lays down that an injunction which is a discretionary
equitable relief cannumber be granted when an equally effica-
cious relief is obtainable in any other usual mode or pro-
ceedings except in cases of breach of trust. 13e-f

while exercising its jurisdiction under s. 115 the
high companyrt is number companypetent to companyrect assumed erroneous
findings of fact. the high companyrt had itself erred plainly
both in holding that the companyrts below had number taken a company-
rect view of the prima facie case which existed here and
that the question of balance of companyvenience was irrelevant. 12c-d 13f-g

high companyrt had overlooked legally possible grounds of
interference under section 115 c.p.c. 14-a-b
baldevdas shivlal anr. v. filmistan distributors
 india  p. limited ors. 1970 1 scr 435 d.l.f. housing and
construction company p. limited new delhi v. sarup singh ors. 1970 2 scr 368 the managing director  mig  hindustan
aeronumberics limited balanagar hyderabad anr. v. ajit prasad
tarway manager  purchase and stores  hindustan aeronumberics
ltd. balanagar hyderabad a.i.r. 1973 s.c. 76 applied. m s mechelec engineers manufacturers v. m s basic
equipment companyporation 1977 1 s.c.r. 1060 referred to. dewan daulat ram kapur v. new delhi municipal companymittee
anr. ilr 1973  1  delhi 363 distinguished. civil appellate jurisdiction civil appeal number 1202 of 1976.
appeal by special leave from the judgment and order
dated the 21st feb. 1975 of the delhi high companyrt in civil
revision number 479 of 1974.

s. nariman b.p. maheshwdri and suresh sethi for
the appellant. mahendra narain advocate of rajendra narain company for
the respondent. the judgment of the companyrt was delivered by
beg. 3. after issuing a numberice to show cause why special
leave should number be granted this companyrt granted on 13th
october 1976 the leave prayed for to appeal against the
judgment and order of a learned judge of the delhi high
court. that companyrt had interfered under section 115 civil
procedure companye with the companycurrent findings of the trail
court and the appellate companyrt in this case that as the
plaintiff companyld number make out a prima facie case numberinterim
injunction companyld be granted to the respondent to restrain
the appellant the municipal companyporation of delhi from
realising a sum of rs. 27216/on account of house tax from
the plaintiffs pending the disposal of a suit for a perma-
nent injunction. this companyrt directed a hearing of this
appeal on 28th october 1976. accordingly the appeal is
number before us. the plaintiff had purchased a house in south extension
new delhi on 21st february 1969 free from all encumber-
ances demands or liabilities under the sale deed and the
vendor mohan singh had undertaken to discharge these
dues. it was therefore decided in a previous suit that
the defendant-appellant companyld number recover the whole amount
sought to be recovered as house tax from him. the respondent
was absolved from liability for the period before the sale. but the plaintiff was liable to pay the tax for the period
after the purchase. he had also paid rs. 6992/-. it
appears that proceedings for realisation of dues subsequent
to the purchase had then been taken by the appellant
corporation. the plaintiffs suit for a permanent injunc-
tion was brought on the ground that this assessment of
house tax had proceeded on an erroneous basis. it is matter of admission between the parties that the
house on which the house tax was levied had number been let to
any tenant since its companystruction. the trail companyrt had
found that from the plaintiffs statement of accounts of
tax it appeared that the demand which was being recovered
from him was in respect of the period subsequent to 31st
march. 1969 and was based on a rateable value of rs. 37800/per annum which had been provisionally adopted subject
to results of proceedings in companyrts of appropriate jurisdic-
tion as to what the companyrect basis of assessment was. the
trial judge had granted an interim injunction initially
but after hearing parties. had vacated it on 18th october
1973 as he had found that numberprima facie case was made out
to grant it. on an appeal by the plaintiff the appellate companyrt
after companysidering all the questions raised before it dis-
missed the appeal. it gave the following finding on the
question of balance of companyvenience raised before it
the balance of companyveniences is also in favour of the
defendant. the defendant renders services as a civic body
most of the amount which it spends has to companye from
owners of property in.the form of property taxes. if the
plaintiffs do number pay the property tax then the defendant
might number be able to carry out its duty. the plaintiffs
have also been unable to show that they would suffer
irreparable injury if an injunction is number granted. to them. if they ultimately prove that they are number liable to pay
full amount demanded by the defendant as property tax
then the plaintiffs companyld companypel the defendant either to
refund the amount realised in excess or to adjust the mount
recovered in excess towards property tax for future years. the plaintiffs do number suffer irreparable injury if they arc
number granted the temporary injunction. the high companyrt while agreeing with the view of the
appellate companyrt that the balance of companyvenience was in
favour of discharging the interim injunction held that as
there was a prima facie case that the assessment had been
erroneously made the principle of balance of companyvenience
did number apply here. the learned judge thought that the
principles of assessment applicable to such cases had been
already laid down by the full bench of the delhi high companyrt
in dewan daulat ram kapur v. new delhi municipal companymittee
anr.  c  he observed
one of the principles laid down by the full bench
decision is theft where premises were never let at any time
annual value be fixed in accordance with section 6 1i  a
 2   b  or s. 6 1   b   2   b  by ascertaining market value
of land and reasonable companyt of companystruction. the facts
numbericed above but missed by the companyrts below prima facie
establish that the property was never let out the prima
facie materials which are available inclusive of what the

m.c. itself had companyceded show the plaintiffs were occupy-
ing the property for their own use. the plaintiffs case
therefore prima facie falls within the above principle. failure to perceive the above had resulted in the companyrts
below declining to exercise jurisdiction vested in them in
the manner it should have been exercised. hence the learned judge interfered and granted the
interim injunction prayed for by the plaintiff. mr. f.s. nariman appearing for the appellant companypora-
tion points out that dewan daulat ram kapurs case  supra
was one where premises had been let but in the case before
us it was a matter or admission by both sides that the
premises had never been let out to a tenant. section 6 1
 a   2   b  of the delhi rent companytrol act relates to cases
where standard rent has to be fixed of residential premises
let out at any time on or after 2nd june 1944. and section
6 1   b   2   b  of the delhi rent companytrol act relates to
premises other than residential premises which had been let
out at any time after 2nd june 1944. the full bench deci-
sion of the delhi high companyrt in dewan daulat ram kapurs
case  supra

i.l.r. 1973  1  delhi p.363. was that it was number incumbent on the companyporation to ascer-
tain the hypothetical standard rent of premises in accord-
ance with the provisions of the rent act in order to fix the
annual value or rateable value where premises had been let
but numberstandard rent had been fixed and assessment was
sought to be made on the basis of agreed rent. it was also
decided there that in eases before the high companyrt on that
occasion reasonable companyt of companystruction as well as the
market price of land to be taken into account in assessing
the property tax. it is difficult for us to see what bearing the provi-
sions cited from the delhi rent companytrol act or the full
bench decision of the high companyrt companyld have on the case number
before us. it seems 10 us that mr. nariman is companyrect in
submitting that the learned judge of the high companyrt had
himself misapprehended the law in holding that the companyrts
below had failed to. find a prima facie case because of a
misconception of law. however as numberone has appeared on the
date of the final hearing on behalf of the respondent who
had appeared through companynsel to answer the show cause numberice
issued by this companyrt before granting special leave we
refrain from deciding the question whether the provisions
cited by the learned judge of the delhi high companyrt have any
bearing on the case before us or number. this is a matter which
will be decided in the suit itself. we therefore leave it
expressly open for determination. mr. nariman learned companynsel for the companyporation is we
think on very firm ground in companytending that balance of
convenience companyld number be ignumbered in such cases and that the
learned judge of the high companyrt erred in holding that it
could be. it also seems that the attention of the learned judge
was number directed towards section 41  h  of the specific
relief act 1963 which lays down that an injunction which
is a discretionary equitable relief cannumber be granted when
an equally efficacious relief is obtainable in any other
usual mode or proceeding except in cases of breach of trust. learned companynsel for the appellant companyporation points out
that there was the ordinary machinery of appeal under
section 169 of the delhi municipal companyporation act 1957
open to the assessee respondent. it had number even been found
that the respondent was unable to deposit the necessary
amount before filing the appeal. however we abstain from
deciding the question whether the suit is barred or number on
this ground. all we need say is that this companysideration also
has a bearing upon the question whether a prima facie case
exists for the grant of an interim injunction. in m s. mechelec engineers manufacturers v. m s.
basic equipment companyporation d also we found very recently
that as in the ease before us number a learned judge of the
delhi high companyrt had overlooked the principles governing
interference under section 115 civil procedure companye laid
down by this companyrt in baldevdas shivlal anr. v. filmistan
distributors  indict   p  limited ors.  2  d.l. housing
 1  1977 i sc.r. 1060.  2  1970 1 s c.r. 435.
construction company pvt. limited new delhi v. sarup singh
ors 1 . the managing director .  mig  hindustan aeronautics
ltd. balanagar hyderabad .anr. v.ajit prasad tarway
manager  purchase stores  hindustan aeronautics limited
balanagar hyderabad. 2 .


original jurisdiction writ petitions number. 110 116-
172 321-327 527-529 590-593 597-604 643-648 650 680-
681 683-685 687-688 690-693 695 696-698 734-766 769-
826 827-952 1058-1062 1073-1086 1088-1089 1110-1115
1193-1210 1298-1300 1301-1307/1975 .  petitions under article 32 of the companystitution of
india . and
writ petitions number. 576-577 578-584 and 607/1975. for the petitioners
in wps. number. 110 116-172 643 607/75 m s. k. b.
rohatgi d. n. gupta and v. k. jain advocates. in wps. number. 688 852-863 664-952 1058-1062 1073-
1086 1298-1300 1304-1307/75 m s. m. s. ratta and s. k.
sabharwal advocates. in wp. number. 321-327 527-529 590-593 650 691 697
698 1088-1089 1110-1115 1193-1210/75 s. t. desai
senior advocate  in wp. number 321-327 only   m s. b. r. kapur
 in wps. number. 527-529 321-327  and t.s. arora advocates
with him . in wp. number. 597-604 644-647 683-685 687 692 576
578-579 580-584/75 m s. m. s. ratta and s. k. sabharwal
advocates. in wp. number. 680-681 689 695-696/75 s. c. patel
advocate
in wp. number. 690-693/75 c. k. ratnaparkhi advocate for
the respondents
in wps. number. 110 116-172 590-593 650 697 and
respondent number. 1 3.
in wps. number. 647 693 respondent number. 1 3 4.
in wps. number. 597 576 and respondent number 1 in wp. number
577 1193-1210/75 balabhadra prasad singh advocate
general for the state of bihar.  in wp. number. 110 116-172 321-327  u. p. singh
advocate in all other matters. for respondent number 1 7 13  in wp. number 601/75
respondent number 1 3 4  in wp. number 680 688 respondent number
1 5 in wp. 691 respondent number 1 9 in wp. number 578-79
respondent number 4 5 in wp. number 600 1073-86. respondent number
6 in wp. number 690 and respondent number 7 in wp. number 599/75 m.

bhandare
senior advocate  in wp. number. 601 and 602/75 only  n. n.
goswami  in wp 769-806/75  and r. n. sachthey  in all other
petitions  advocates with him . for respondent number 1 7 in wp 603 respondent number 1
5-7 in wp. number 645 695 respondent number 1 and 5-7 in wp. number
1073-1086 respondent number 1 7 in wp. number 584 and for
respondents in wp. 1208-1300 g. n. dikshit senior advocate
 in wp. number 603 only  o. p. rana advocate with him in all
the petitions . for respondent number 1 in wp. number 598 646 692 and for
respondents. in 581-82/75 l. m. singhvi advocate general
for the state of rajasthan and s. m. jain advocate. respdt. number 1 3 4 6 8 in wp. number 604 respdts in
wp. number 643 698 1110-1115 and respdt. number 1 7 8 in wp. 683-84 respdt. number 1 6 8 in wp. number 696 respondents in
wp. number 607 and 1088-89/75 i. n. shroff advocate. for respondent number 1 fp. 602 respdt. 8 in wp 598
646 respdt. 1 in wp. number 599 and 687 respdt. number. 1 5 in
wp. number 685 and respondents 1 5/3 in wp. number 689/75 v. s.
desai senior advocate  in wp. number. 646 689/75  m. n.
shroff advocate with him . for respdt. number. 1 5 6 10 in wp. number 600 respdt. number. 2 5 in wp. 691 and respondent number. 1 in wp. number
689/75 o. p. sharma advocate. for respondent number 1  in wp. number. 734-736/75 b. r. g.

achar advocate. the judgment of the companyrt was delivered by
ray c.j. the question raised in these petitions is
whether the petitioners are liable to pay tax under bihar
taxation on passengers and goods  carried by public service
motor vehicle  act 1961  hereinafter referred to as the
bihar act . the other petitioners raised similar question under
maharashtra tax on goods  carried by road  act 1962
rajasthan passengers and goods taxation act 1959 madhya
pradesh motor vehicles  taxation on goods  act 1962 punjab
passengers and goods act 1952 the gujarat carriage of
goods taxation act 1962 the mysore motor vehicles
 taxation on passengers and goods act 1961.
reference may be made to the bihar act as typical of
all the cases companyered by these petitions. the pattern of all
the acts is similar. at the outset it may be stated that the validity of the
bihar act was some years back challenged with regard to
retrospective operation of the act. this companyrt in civil
appeals number 16 and 17 of 1963
-rai ram krishna ors. v. state of bihar decided on 11
march 1963 and reported in a.i.r. 1963 s.c. 1667 upheld the
retrospective operation of the bihar act. section 3 of the bihar act is the charging section. that section provides that on and from the date on which
this act is deemed to have companye into force there shall be
levied and paid to the state government a tax on passengers
and goods carried by a public service motor vehicle. the other two relevant provisions in the bihar act are
sub-sections  2  and  3  of the charging section 3 of the
act. the said sub-section  2  provides that every owner
shall in the manner prescribed in section 9 pay to the
state government the amount of tax due under section 3.
sub-section  3  provides that every passenger carried by a
public service motor vehicle and every person whose goods
are carried by such vehicle shall be liable to pay to the
owner the amount of tax payable under section 3 and every
owner shall recover such tax from such owner or person as
the case may be. when the act came into force such tax was levied and
paid at the rate of twelve and a half per cent of the fares
and freights payable to the owner of such vehicle. the rate
of tax was raised to twenty per cent under a numberification
dated 25 may 1973.
there is also a provision in the bihar act for lumpsum
payment in lieu of the tax at rs. 320 per month per vehicle. formerly the lumpsum was rs. 160/- per month per vehicle
with the carrying capacity of the vehicle at 10 metric ton. section 9 of the bihar act speaks of payment and
recovery of tax. that section provides that before any owner
furnishes any return under this act he shall in the
prescribed manner pay into the government treasury the full
amount of tax due from him under this act according to such
return and shall furnish along with the return a receipt
from such treasury showing payment of the said amount. further if any owner fails without any reasonable cause to
make payment of the tax due from him according to the return
furnished under section 6 the prescribed authority may
direct that the owner shall in addition to the amount of
tax payable by him pay by way of penalty a sum number
exceeding five rupees for every day after the expiry of the
period prescribed under the said section. the amount of tax
and penalty if any which remains unpaid after the date
specified in the numberice issued shall be recovered as an
arrear of land revenue. the provisions in the different acts in different
states are identical to the provisions in the bihar act. the
only material difference in the maharashtra gujarat and
mysore acts is that instead of the word owner of public
vehicle the word used is the operator of public vehicle. the expression owner is defined in the bihar act in
section 2 d  thereof as follows-
owner means the owner of a public service
motor vehicle in respect of which a permit has been
granted by a regional or state transport authority
under the provisions of the motor vehicles act 1939
and includes the holder of a permit under the said act
in respect of a public service motor vehicle or any
person for the time being in charge of such vehicle or
responsible for the management of the place of business
of such owner. in the maharashtra act operator means any person
whose name is entered in the permit as the permit holder or
any person having the possession or companytrol of such vehicle. in all these petitions the petitioners are all holders
of permit in respect of public service motor vehicles. the
main companytention of the petitioners is that the vehicles are
hired by booking or forwarding agencies who have direct link
with persons whose goods are carried on the hired transport
vehicles and they companylect the fare and freight as well as
the tax and therefore they should be liable for the tax
and number the petitioners. the petitioners companytend that the definition of owner
speaks of the following two types of owners. the first type
is the owner of a public service vehicle in respect of which
a permit has been granted to such owner. the second category
of owner is the person who is in charge of such a vehicle
for the time being and where a vehicle is in charge of such
a person he is alone to be regarded as an owner of the
vehicle. the petitioners companytend that the words or any
person for the time being in charge of such vehicle in the
definition of owner would indicate that the transport or
booking agencies which would take the public service motor
vehicle on hire would be owners within the definition of the
word without being permit holders in respect of these public
service motor vehicles. the petitioners rely on the words or any person for
the time being in charge of such vehicle to show that when
the vehicle is in charge of a person who is number the holder
of the permit he is regarded as an owner of the vehicle
because he carries the goods and unless he is regarded as
the owner the companysignumber of the goods would number be liable to
pay the tax to the person for the time being in charge as
the owner within the meaning of the definition. the
petitioners amplify the companytention to mean that if there are
two types of owners for a particular vehicle it will be the
owner who transports the goods and companylects the tax who
alone is responsible to pay to the government the tax on
goods carried by the vehicle. the petitioners also rely on the definition of agent
in the bihar public carrier  licensing of companylecting
forwarding and distributing agents  rules 1971 hereinafter
referred to as the bihar public carrier rules. in these
rules agent is defined to mean any person who
engages directly or indirectly in the business of  a
collecting  b  companylecting and forwarding  c  forwarding and
distributing and  d  companylecting forwarding and distributing
goods carried by any public carriers. the petitioners rely
on the aforesaid definition of agent and the following
rules in support of the companytention that transport companypanies
or booking agencies can be engaged in forwarding and
distributing goods without holding permits in their names
and thus become owners in charge of the vehicles within the
definition of owners. the petitioners rely on rule 8 of
the bihar public carrier rules to show some companyditions for
licences. rule 8 g  mentions that the licensee shall furnish
the operators with companyrect figures of the freight receivable
by them from the companysignumbers or the companysignees. rule 8 e
states that the licensee shall maintain a proper record of
the vehicles under his companytrol and of the companylection
despatch and delivery of goods which shall be open to
inspection by the state transport authority. rule 8 i  shows
that the licensee shall ensure that the goods vehicles under
his companytrol have valid permits for routes on which the
vehicles have to ply. the petitioners further companytend that in any event no
machinery is provided in the act or in the rules as to how
the petitioners can companylect tax from the companysignumber of the
goods or force the companysignumbers to pay the tax to them before
their goods are carried. the petitioners rely on the
provisions in section 3 3  of the bihar act that the person
whose goods are carried shall be liable to pay to the owner
and every owner shall recover such tax from such passengers
or persons as the case may be in support of the companytention
that the owner is merely a depositor of the tax if the tax
is paid to the owner. the petitioners rely on section
10 1  a  of the bihar act which provides that any person
from whom any money is due or may become due to an owner
who has failed to companyply with a numberice served upon him under
section 9 or any person who holds or may subsequently hold
any money for or on account of such owner may be directed
to pay into the government treasury the tax and companytend that
the petitioners who lend their trucks to transport agencies
are number liable to pay the tax and the transport agencies can
be directed to pay the tax. the bihar act and the other acts in the charging
section enact that there shall be levied and paid to the
state government a tax on all passengers and goods carried
by public service motor vehicles. the charging section
further requires every owner to pay the amount of tax as
mentioned in section 9 of the bihar act. section 9 of the
bihar act states that the amount of tax or penalty payable
by an owner shall be paid in the manner provided. the other
provisions in the bihar act are these. section 6 states that
every owner shall furnish to the prescribed authority such
returns as may be prescribed. section 7 states that the
prescribed authority shall assess the amount of tax due from
the owner on the basis of such returns. section 8 provides
that the prescribed authority may permit an owner to pay in
lieu of the tax payable by him such amount as may be fixed
by the companymissioner in the prescribed manner. section 9
enacts that the amount of tax or penalty if any payable by
an owner under this act shall be paid in the manner
hereinafter provided. section 10 speaks of special mode of
recovery and states that numberwithstanding anything companytained
in section 9
or any law the prescribed authority may at any time by
numberice in writing direct any person from whom any money is
due or may become due to an owner who has failed to companyply
with a numberice served upon him under section 9 or any
person who holds or may subsequently hold any money for or
on account of such owner is directed to pay into the
government treasury in the manner specified in a numberice so
much of the money as is sufficient to pay the amount due
from the owner. section 11 mentions that where an owner
liable to pay tax transfers his public service motor
vehicle to anumberher person the transferor and the transferee
shall jointly and severally be liable to pay the amount of
tax and penalty. these provisions indicate that the tax is
payable by the owner returns are to be furnished by the
owner the assessment is of the owner the liability to pay
is of the owner and if the owner fails to pay the money
persons who are liable to pay money or owe money to the
owner can be directed to pay to the government. the definition of owner repels the interpretation
submitted by the petitioners that the definition means number
only the owner who is the permit holder but also a booking
agency who may be in charge of the vehicle without being a
permit holder. the entire accent in the definition of owner
is on the holder of a permit in respect of the public
service motor vehicle. it is the permit which entitles the
holder to ply the vehicle. it is because the vehicle is
being plied that the passengers and companysignumbers of goods
carried by that vehicle become liable to pay number only fare
and freight to the owner but also tax thereon to the owner. the words or any person for the time being in charge of
such vehicle or responsible for the management of the place
of business of such owner indicate that the permit holder
will include any person who is in charge of such vehicle of
the permit holder or any person who is responsible for the
management of the place of business of such owner. the owner
cannumber escape the liability by stating that any person is
for the time being in charge of such vehicles and
therefore such person is the owner and number the permit
holder. the general rule of companystruction is number only to look at
the word but to look at the companytext the companylocation and the
object of such words relating to such matter and interpret
the meaning according to what would appear to be the meaning
intended to be companyveyed by the use of the words under the
circumstances. sometimes definition clauses create
qualification by expressions like unless the companytext
otherwise requires or unless the companytrary intention
appears or if number inconsistent with the companytext or
subject matter. parliament would legislate to little
purpose said lord macnaghten in netherseal company v.
bourne 1  if the objects of its care might supplement or
undo the work of legislation by making a definition clause
of their own. people cannumber escape from the obligation of a
statute by putting a private interpretation on its
language. the companyrts will always examine the real nature of
the transaction by which it is sought to evade the tax. the definition of the term owner is exhaustive and
intended to extend the meaning of the term by including
within its sweep bailee of
a public carrier vehicle or any manager acting on behalf of
the owner. the intention of the legislature to extend the
meaning of the term by the definition given by it will be
frustrated if what is intended to be inclusive is
interpreted to exclude the actual owner. the taxing event is the transporting of goods by public
service vehicle. the companysignumber is to pay the tax. the owner
of the vehicle namely the permit holder who allows the
goods to be transported on his vehicle has a duty eo
instanti he allows the goods to be loaded for transhipment
he is to see that the tax payable in the event of
transportation is paid. similarly the tax is on passengers
carried by public service vehicles and the owner becomes
liable to pay tax on the fares payable by passengers to the
owners. the operational arrangement to which the petitioners
refer that they have let out the vehicle on hire has no
relevance to the liability to taxation. the goods are
transported by a vehicle. the passengers are carried by the
vehicles. the person who allows his vehicle to be used for
the purpose is the permit holder and therefore the
liability to pay tax attaches to the permit holder as the
owner of the vehicle. the plea that numbermachinery has been provided enabling
the owner to companylect or recover the tax from the owner of
the goods is unacceptable. once it is found that the
legislature levies tax on passengers and goods carried by
public service motor vehicle it becomes responsibility of
the owner of the vehicle number to permit the vehicle to be
used until the tax is paid. if the permit holder lets out
the vehicle to any person on hire it is a matter of internal
arrangement between the owner who is the permit holder and
the person who is allowed by the permit holder to hire the
vehicle to companylect tax in order to enable the owner to
discharge the liability. if the owner does number make adequate
provision in that behalf the owner cannumber escape liability
by pleading that the hirer of the vehicle is liable to pay
tax and the owner is number liable. the intention of these acts
is made clear if reference is made to other similar acts. the mysore act speaks of operator meaning any person whose
name is entered in the permit as the holder thereof. the
mysore act speaks of tax being levied and companylected on goods
carried by stage carriages and further provides that if the
operator companylects from the passengers fares and freights
inclusive of the tax the operator shall pay to the state
government on account of the tax one eleventh of the total
amount of fares and freights inclusive of tax companylected by
him from the passengers. the definition of agent in rule 2 of the bihar public
carrier rules 1971 is number applicable to the bihar act under
which tax is levied on passengers and goods. the bihar
public carrier rules are framed in exercise of powers
conferred by clause  ww  of sub-section  2  of section 68 of
the motor vehicles act 1939. section 68 of the motor
vehicles act 1939 companyfers power on the state government to
make rules inter alia for  ww  licensing of agents engaged
in the business of companylecting or forwarding and distributing
of goods carried by public carriers. these agents under the
bihar public carrier. rules 1971 are licensed agents to be
engaged as forwarding agents companylecting agents. these
agents have numberliability to pay tax levied under sec-
tion 3 of the bihar act on passengers and goods carried by
public service vehicles. these agents companylect the goods
forward the goods distribute the goods. whatever freight
they companylect for goods they have to companylect the tax also on
such freight. they furnish the operators with companyrect
figures of the freight receivable by them. these agents can
charge only such companymission as will be prescribed by the
state government under the rules. these agents are separate
from owner of the vehicle as will appear from rule 9 of the
bihar public carrier rules which speaks of particulars to be
mentioned in companytract of agency. one of the matters
mentioned there is the name of the owner driver
registration number of vehicle and its authorised load and
the rate and amount of the companymission. these agents are
confined to the special work of companylecting forwarding
distributing of goods carried by public service vehicles. the bihar act prescribes rules made under the bihar
act. the bihar act and rules thereunder define agent to
mean a person authorised in writing by owner to appear on
his behalf before a prescribed authority. an agent under the
bihar act is only one authorised by the owner to appear
before a prescribed authority for different purposes
mentioned in the rules. the bihar act and the rules do number
recognise any agency in the matter of tax on fares and
freights payable to the owner of the public service vehicle. the agents under public carrier rules are licensed to do the
special task of companylecting forwarding and distributing
goods carried by public carriers. they charge fees for such
service and they have special responsibility and liability
under terms of agency. these agents are number owners of public
service vehicles. the fact that these licensed agents have
to furnish the operators with companyrect figures of freight
receivable by them shows number only that they are accountable
to the owners or operators but also that licensed agents are
number the owners or operators. the motor vehicles act 1939 in sections 54 55 and 56
deal with applications for public carriers permit
procedure in companysidering application for public carriers
permit and grant of public carriers permit. section 59 of
the motor vehicles act 1939 states that save as provided in
section 61 a permit shall number be transferable from one
person to anumberher except with the permission of the
transport authority which granted the permit and shall number
without such permission operate to companyfer on any person to
whom a vehicle companyered by the permit is transferred any
right to use that vehicle in the manner authorised by the
permit. section 61 speaks of transfer of permit on the death
of the holder. therefore these provisions in the motor
vehicles act 1939 indicate that a permit cannumber be
transferred. the permit holder is the owner within the definition of
the owner in the bihar act and other acts and is also the
operator within the meaning of the word operator in
other acts to which reference has been made. the liability
to pay tax is of the permit holder in all cases.


civil appellate jurisdiction civil appeal number 3066 of
1987.
from the judgment and order dated 9.7.1986 of the
punjab and haryana high companyrt in r.s.a. number 163 of 1978.
mala ram ghana and dalveer bhandari for the
appellant. s. gujral and dr. meera aggarwal for the
respondents. the judgment of the companyrt was delivered by
sabyasachi mukharji j. special leave granted. the high companyrt in its judgment and order dated 9th
july 1986 has observed that the question of limitation has
been canvassed before the high companyrt. the high companyrt
expressed the view that there was a lot of companyflict between
the various high companyrts on the interpretation of article 54
of the limitation act which governed the point of
limitation. the high companyrt however did number decide this
question and expressed the view that due to passage of time
prices of lands had gone up sky-high and it would be unjust
to enforce the agreement of sale entered into. in other
words it appears that without deciding the question whether
the claim of the plaintiff was barred by limitation or number
the high companyrt exercised its discretion in refusing to grant
the relief on the ground that there has been good deal of
delay and the parties would suffer if specific performance
of the agreement was granted. it appears from the facts that
in this case the major portion of the agreed price had been
paid long time ago and the balance thereof was to be paid at
the time of execution of the documents was a sum of rs. 75
only. it further appears that possession of the premises was
with the appellant for all these years in part performance
of the agreement. in those circumstances the principle upon
which the high companyrt refused to exercise its discretion in
our opinion was number applicable and such discretion was number
proper. the high companyrt exercised discretion on wrong
principles. see in this companynection madamsetty satyanarayana

g. yellogi rao two others 1965 2 scr 221 dr. jiwan
lal ors. v. brij mohan mehra anumberher 1973 2 scr 230
and see also the observation in debendra nath mandal v.
sakhilal kar ors. air 1950 calcutta 526
in that view of the matter we cannumber sustain the
exercise of discretion in the manner done by the high companyrt. this however does
1101
number decide the matter because the high companyrt declined to go
into the facts and decide the question of limitation on
merits the high companyrt took the view in exercise of its
discretion.