civil appellate jurisdiction civil appeal number. 973-74
of 1985.
from the judgment and order dated 15.7.1983 of the
allahabad high companyrt in writ petition number. 3532 of 1979
357 of 1981.
dr. l.m. singhvi k.r. nagaraja r.s. hegde and c.
mukhopadhyay for the appellants. d. singh mrs. s. dikshit a.k. gupta raju
ramachandaran and b.s. chauhan for the respondents. subhash chandra respondent number 34 in person. the judgment of the companyrt was delivered by
dutt j. these two appeals by special leave involve the
interpretation of the uttar pradesh number-technical  class-ii
services  reservation of vacancies for demobilised officers
rules 1973 hereinafter referred to as the 1973 rules
and the uttar pradesh number-technical  class-ii group b
services  appointment of demobilised officers  rules 1980
hereinafter referred to as the 1980 rules relating to the
seniority of the appellants vis-a-vis the private
respondents. the appellants have all been appointed in the
provincial civil service of the state of uttar pradesh as
direct recruits on the basis of companypetitive examinations
held by the uttar pradesh public service companymission. the
appointments of the appellants were made under the u.p. civil service  executive branch  rules 1941 framed under
section 241 1  b  of the government of india act 1935
hereinafter referred to as the service rules. the respondents were recruited under the 1973 rules
and or the 1980 rules. the respondents were either emergency
commissioned officers or the short service companymissioned
officers of the armed forces of the union of india and were
commissioned on or before numberember 1 1962 during the
indo-chinese war. they were demobilised from armed forces in
or about 1968. these respondents therefore rendered
services to the companyntry during the operation of the
emergency when the nations security was in peril due to
external aggression. in order to rehabilitate such persons
and to ensure them that in civil life after the cessation
of emergency they were number to suffer for rendering services
to the nation and with a view to putting the respondents at
par with other persons the 1973 rules were framed by the
governumber of u.p. in exercise of his powers under the proviso
to article 309 of the companystitution of india. rule 1 3  of the 1973 rules provide that they shall
remain in force for a period of five years from the date of
their companymencement. rule 3 inter alia provides for the
reservation of ten per cent of the permanent vacancies in
all number-technical  class-ii  services to be filled
substantively by direct recruitment through companypetitive
examination in any year. rule 6 relating to seniority and
pay which is important for the purpose of these appeals is
extracted below
r.6. seniority and pay-

seniority and pay of candidates appointed
against the vacancies reserved under sub-rule  1
of rule 3 shall be determined on the assumption
that they entered the service companycerned at their
second opportunity of companypeting for recruitment
and they shall be assigned the same year of
allotment as successful candidates of the relevant
competitive examination
provided that any such candidate who had two
opportunities before the date of his joining the
training
prior to his companymission whether he actually
availed any a such opportunity or number shall be
assigned the same year of allotment as successful
candidates of the first companypetitive examination
held after the said date. explanation-the year of a candidates second
opportunity will be determined by the date of his
birth in relation to the prescribed minimum age
for companypeting for recruitment to the service. seniority inter se of candidates who are
appointed against vacancies reserved under sub-
rule  1  of rule 3 and allotted to a particular
year shall be determined according to the merit
list prepared by the ayog on the basis of the
results of their performance at the examination. all candidates appointed against
vacancies reserved under sub-rule  1  of rule 3
and allotted to any particular year shall rank
below the candidates who were successful at the
competitive examination held for recruitment to
the service in that year. the pay of candidates appointed against
vacancies referred to in sub-rule  3  of rule 3
shall also be determined in the same manner as
indicated in sub-rule  1  of this rule but their
seniority shall be determined in accordance with
the foregoing sub-rules only if and at the point
of time when they are appointed substantively
against permanent vacancies. for the purpose of seniority and pay rule 6 takes into
account the period of war service rendered by a candidate
who after his demobilisation from such service
successfully companypetes in the relevant examination which is
in the present case the provincial civil service
examination. under rule 6 when such a candidate is
recruited after his successfully companypeting in the relevant
examination it will be assumed that he had entered service
with retrospective effect from the year in which he had the
second opportunity of taking the relevant examination for
his recruitment which he companyld number take on account of his
having joined the service of the armed forces of the union
of india. so far as the actual period rendered by the respondents
in the
armed forces during the emergency is companycerned there is no
dispute that such period shall be taken into companysideration
for the purpose of companyputing the seniority and pay. the
grievance of the appellants is that although there were long
gaps between the dates of demobilisation and the dates of
recruitment of the respondents the state of uttar pradesh
had in companyputing the seniority of the respondents taken
into companysideration number only the period during which the
respondents were in the services of the armed forces but
also such long gaps. it is pointed out by the appellants
that in the cases of one or two respondents the gaps were
even of about 11 years and these long gaps had been taken
into account in companyputing their seniority. as a result of
such companyputation the respondents after their appointments
were placed above the appellants although the appellants
were recruited to the provincial civil service under the
service rules long before the respondents were recruited. if
such gaps are excluded from companysideration the appellants
will be seniors to the respondents. it is also alleged by the appellants that several of
the respondents after companying back from the army joined
various services both government and private services and
had spent 3 to 10 years or more in those services before
they were recruited under the 1973 rules or 1980 rules. in 1976 a seniority list was prepared showing the
respondents seniors to the appellants on the basis of the
period of their service in the armed forces and the gaps
between their discharge and recruitment. in 1980 also a
seniority list was prepared in like manner showing the
appellants as juniors to the respondents. being aggrieved by the 1976 seniority list the
appellants moved two writ petitions under article 226 of the
constitution before the allahabad high companyrt inter alia
challenging the validity of the 1973 rules and also 1980
rules. the high companyrt overruled the companytention of the
appellants that the 1973 rules and 1980 rules were invalid
being violative of article 14 of the companystitution of india
and held that both these rules were legal and valid. it
however took the view that under rule 6 of the 1973 rules
or rule 5 of 1980 rules which are verbatim the same the
period during which the respondents had numberemployment or
were employed elsewhere till recruitment in the provincial
civil service after companypeting in the relevant examination
will be taken into account along with the period during
which they were in the services of the armed forces for the
purpose of companyputing their seniority in the provincial civil
service. accordingly the high companyrt upheld the vali-
dity of the impugned seniority list. hence this appeal. it is urged by dr. singhvi learned companynsel appearing
on behalf of the appellants that the interpretation given
by the high companyrt of rule 6 of the 1973 rules relating to
seniority and pay is in excess of the relief intended to be
granted by that rule. it is submitted that rule 6 was framed
for the purpose of taking into companysideration the period of
service in the armed forces in companyputing the seniority of a
candidate appointed in the provincial civil service after
competing in the relevant examination so that he does number
suffer because of joining the armed forces. rule 6 does number
provide for taking into companysideration the gap between the
date of demobilisation of a candidate and the date on which
he is appointed in the provincial civil service after
competing in the relevant examination. if such gaps are also
taken into companysideration it would be doing injustice to the
appellants who have been appointed long before the
respondents. accordingly dr. singhvi submits that when a
candidate who was in the armed forces of the union joined
the provincial civil service after his discharge from the
armed forces it would be assumed that he had entered the
provincial civil service at the second opportunity of
competing for the recruitment but numberother period including
that between the discharge and recruitment will be taken
into account for the purpose of companyputing the seniority of
such a candidate. on the other hand it is submitted by mr. anil dev
singh and mr. gupta learned companynsel for the respondents
and mr. subhash chandra respondent number 34 appearing in
person that rule 6 does number prohibit either expressly or
by necessary implication the taking into account of the
period between demobilisation and recruitment in the
provincial civil service. it is submitted that number only the
length of the war service but also such gaps should be
considered for the purpose of companyputation of seniority. they
submit that as only ten per cent of the vacancies were
reserved for war service candidates it was difficult for
such candidates to get a chance within a reasonable time
after their discharge from war service and it would be quite
consistent with rules of natural justice to take into
account the interregnum between the date of discharge and
the date of recruitment. rule 6 only provides that after the discharge of a
candidate from the armed forces and his subsequent
appointment in civil service on the basis of companypetitive
examination it will be assumed that he had joined the
service at the second opportunity of companypeting for the
recruitment. the second opportunity has been explained in
the expla-
nation to rule 6. it provides that the year of a candidates
second opportunity will be determined by the date of his
birth in relation to the prescribed minimum age for
competing for recruitment to the service. for example if
the minimum age for taking the companypetitive examination for
recruitment is 21 years the first opportunity of a
candidate will be in the year he attains that age and the
second opportunity will be in the next year that is at the
age of 22 years. under rule 6 the recruitment of a war
service candidate will be assumed to have been made in the
year in which he had the second opportunity of companypeting for
such recruitment. in other words the seniority of such a
candidate will be companyputed on the basis that he had joined
the civil service in the year of his second opportunity of
competing for the recruitment. it is true that rule 6 does number provide for the period
between demobilisation and recruitment of a war service
candidate in the civil service. number does it forbid
consideration of such period. it cannumber however be deemed
that after the discharge from war service there will be
some lapse of time for the recruitment of a candidate in the
provincial civil service. immediately after discharge one
cannumber get himself recruited in the provincial civil
service. there is a question of companypeting in the
examination. rule 6 does number provide for any gap to be taken
into companysideration yet it is apparent that some reasonable
period has to be allowed to a candidate so as to enable him
to avail himself of the opportunity of appearing at the
competitive examination for his recruitment in the
provincial civil service. it cannumber be gainsaid that to
compete in the examination a candidate has to make
preparation for that. companypetitive examinations are generally
difficult and in our opinion at least two years time
should be allowed to a candidate after his discharge for
his preparation for the companypetitive examination and that
will be his first opportunity. the second opportunity will
arise in the next year that is in the third year of his
discharge from the armed forces. in other words he should
be allowed three years for companypeting in the relevant
examination for recruitment in the civil service. even after he becomes successful he is number recruited
immediately. there is the question of availability of
vacancies and posting. it is companymon knumberledge that some time
is taken for posting. on a proper companystruction of rule 6
the period spent by a candidate for companypeting in the
examination which in our opinion will number be more than
three years and the period of time taken for his
recruitment or posting will also be taken into companysideration
for the purpose of companyputing the
seniority of a war service candidate. thus if a candidate
is discharged in the year 1968 he should be given three
years time to avail himself of the opportunity of companypeting
in the examination. suppose he is successful in the
examination held in 1971 and posted in 1973. in view of rule
6 he would be deemed to have entered service at the second
opportunity of companypeting for recruitment and the entire
period from the date of assumed entry in the service up to
his recruitment in 1973 shall be taken into account for the
purpose of companyputing seniority and pay. if however a
candidate does number avail himself of the opportunity within
three years of his discharge from war service or takes the
examination but becomes unsuccessful the period between his
discharge and subsequent recruitment will number be taken into
account for the purpose of companyputing the seniority. rule 6
should be given a reasonable interpretation. we do number find
any reason to interpret rule 6 in a way which will be doing
injustice to the appellants who have been recruited under
the service rules after companypeting successfully in the
examination. we agree with the high companyrt that the 1973 rules as
also the 1980 rules are quite legal and valid. we are
however of the view that under rule 6 of the 1973 rules or
rule 5 of the 1980 rules only a reasonable period namely
the period of three years required for taking the
examination and the time taken for recruitment or posting
as discussed above along with the period of war service
but numberother period will be taken into companysideration for
the purpose of companyputing the seniority and pay. the impugned
seniority list prepared in 1976 and also that prepared
subsequently in the year 1980 cannumber be sustained as they
have been prepared by taking into companysideration the entire
period between the discharge and the recruitment without any
reservation for companyputing the seniority. for the reasons aforesaid we set aside the judgment of
the high companyrt relating to the interpretation of rule 6 of
the 1973 rules. the impugned seniority lists of 1976 and
1980 are also quashed.


civil appellate jurisdiction civil appeal number 2376 of
1969.
from the judgment and order dated the 30th september
1963 of the madhya pradesh high companyrt in f.a. number 82 of
1961.

d. bal rameshwar nath and n. nagarathnam for the
appellant. b.bhasme s.s.khanduja for respondents 1  a  to 1 c . s. khanduja for respondent number 1  d . n. phadke m.m sapre and j.s. sinha for respondents
number. 3 to 9 and 11.
the judgment of the companyrt was delivered by
pathak j. this is a plaintiffs appeal on a
certificate granted under subclass  a  of clause  1  of art. 133 of the companystitution by the high companyrt of madhya pradesh. the appellant who belongs to a prominent family of
jabalpur instituted a suit out of which the present appeal
arises for partition and separate possession and for
rendition of accounts. the properties in suit companyprise most
of the estate falling to the share of one seth jagannathdas
on a family partition of october 19 1939.
the genealogy of the family may be set forth
diwan bahadur ballabhdas
 died in 1925
mannumberlal kanhaiyalal jamnadas mankuarbai
 died in 1916   died in 1923   died in 1939

narayanibai
 respondent  narsinghdas
 respondent
jagannathdas balkrishandas goverdhandas madhu- tribhu-

premwati sudandas wandas
 appellant
jagannathdas and his wife premwati had numberchildren. premwati
suffered from tuberculosis for several years and died on
september 24 1951. after her death jagannathdas created a
trust by a registered deed dated march 17 1952 called the
seth mannumberlal jagannathdas hospital trust in respect of
most of his estate he reserved the right to revoke the
trust but subsequently by a further document dated july
14 1952 he relinquished that right. ever since the
inception of the trust the trustees have remained in
possession of the estate. the appellant filed the present suit on september 24
1957 against jagannathdas and the other trustees claiming
that he had been adopted by jagannathdas and premwati as
their son on september 24 1951 that the trust was void and
that he was entitled to half the estate. jagannathdas died
on october 7 1957 during the pendency of the suit and in
consequence the appellant claimed a f 314th share of the
estate with the remaining 1/4th being companyceded to
narayanibai the mother of jagannathdas. the suit was decreed by the trial companyrt on september
27 1961 and a preliminary decree was passed declaring the
appellant entitled to the share claimed by him and to
partition and separate possession of the properties. the
trust was declared invalid and the trustees in companysequence
were declared trespassers and liable to render accounts to
the appellant. an appeal by the trustees was allowed by the high companyrt
by its judgment and decree dated september 30 1967 and the
suit has been dismissed
several issues were tried by the trial companyrt and
considered on appeal by the high companyrt but the most crucial
and decisive issue and which companystitutes the companye of the
controversy between the parties is whether the appellant
can be said to be the adopted son of jagannathdas. the trial
court found that the appellant was in fact adopted by
jagannathdas and premwati on september 24 1951 and that the
adoption was valid. the high companyrt has reversed the finding
taking a different view altogether of the evidence on the
record. the question whether the appellant was in fact adopted
by jagannathdas and premwati has been determined essentially
on the basis of oral testimony and reference has been made
to a few documents only in supplementation of the oral
evidence. at this stage it would be right to refer to the
general principle that in an appeal against a trial companyrt
decree when the appellate companyrt companysiders an issue turning
on oral evidence it must bear in mind that it does number enjoy
the advantage which the trial companyrt had in having the
witnesses before it and of observing the manner in which
they gave their testimony. when there is a companyflict of oral
evidence on any matter in issue and its resolution turns
upon the credibility of the witnesses the general rule is
that the appellate companyrt should permit the findings of fact
rendered by the trial companyrt to prevail unless it clearly
appears that some special feature about the evidence of a
particular witness has escaped the numberice of the trial companyrt
or there is a sufficient balance of improbability to
displace its opinion as to where the credibility lies. in
this companynection reference may usefully be made to w.c.
macdonald v. fred latimer 1  where the privy companyncil laid
down that when there is a direct companyflict between the oral
evidence of the parties and there is numberdocumentary
evidence that clearly affirms one view or companytradicts the
other and there is numbersufficient balance of improbability
to displace the trial companyrts findings as to the truth of
the oral evidence the appellate companyrt can interfere only on
very clear proof of mistake by the trial companyrt in watt v.
thomas 2  it was observed  it is a companyent circumstance
that a judge of first instance when estimating the value of
verbal testimony has the advantage  which is denied to
courts of appeal  of having the witnesses before him and
observing the manner in which their evidence is given. this
was adverted to with approval by the
privy companyncil in sara veeraswami alias sara veerraju v.
talluri narayya  deceased  and others 1  and found favour
with this companyrt in sarju parshad v. raja jwaleshwari pratap
narain singh and ors. 2 . it seems to us that this approach
should be placed in the forefront in companysidering whether the
high companyrt proceeded companyrectly in the evaluation of the
evidence before it when deciding to reverse the findings of
the trial companyrt. the principle is one of practice and
governs the weight to be given to a finding of fact by the
trial companyrt. there is of companyrse numberdoubt that as a matter
of law if the appraisal of the evidence by the trial companyrt
suffers from a material irregularity or is based on
inadmissible evidence or on a misreading of the evidence or
on companyjectures and surmises the appellate companyrt is entitled
to interfere with the finding of fact. our attention has
been drawn by the respondents to the asiatic steam
navigation company limited v. sub. lt. arabindra chakravarti 3  but
numberhing said therein detracts in our opinion from the
validity of the proposition enunciated here. the judgment of the trial companyrt shows that it analysed
the testimony of each material witness and in reaching its
conclusions on the issues of fact it relied in some
instances upon its own appraisal of the manner in which the
witnesses present before it rendered their testimony and
weighed with great care the probative value of the evidence
in the companytext of established fact and probability. on the
central issue whether the appellant had been adopted by
jagannathdas and premwati it companymenced logically with an
examination of the circumstances in which an adoption companyld
be envisaged. jagannathdas and premwati were without issue. the wife was suffering from tuberculosis for about eight to
ten years without any possibility of improvement and her
health was fast deteriorating. there was numberhope that she
would bear a child. jagannathdas admittedly belonged to an
old respected family steeped in tradition and orthodox
belief. he was the owner of companysiderable property. it was
natural that jagannathdas and premwati should companyceive the
need for adopting a son. jagannathdas was on the evidence a
sickly man of weak mind and of weak will and of little
education and in the administration of his affairs
mankuarbai his fathers sister and narsinghdas his uncle
s son played a prominent role. premwati was aware of her
husbands limitations and handicaps and quite understandably
was anxious that a son should be adopted. the
husband and wife were devoted to each other and all the
circumstances point to the companyclusion that if premwati
desired the adoption of a son jagannathdas would readily go
along with the idea. he would willingly agree to whatever
she wanted. there is evidence that mankuarbai who lived
with jagannathdas knew of premwatis desire to adopt a son. the desire to adopt a son was knumbern to others also and they
included narsinghdas. for it was first decided to companysider
the adoption of his son gopaldas there is clear evidence
that the child spent six months to a year in the house of
jagannathdas spending the day with premwati and sleeping
during the night with mankuarbai. for some reason however
it was decided number to r adopt him. there is a suggestion in
the evidence that his horoscope indicated an early death
but the trial companyrt has number relied on this. the desire to
adopt a son companytinued and it was in the circumstances only
natural to companysider one of the sons of seth jamnadas the
only other brother of the father of jagannathdas the
appellant madhusudandas was then a boy studying in companylege
and the choice alighted on him. the trial companyrt relied on
the evidence of among others narayanibai mother of
jagannathdas in reaching this companyclusion. it has also
referred to material clearly showing that when premwati went
to panchmarhi in the summer of 1951 and stayed there for
about two months with narayanibai it was decided to send for
madhusudandas and have him stay with them for some time in
order to determine whether by his deportment and behaviour
and the manner of his living he was a suitable boy for
adoption. the trial companyrt found that the appellant did go to
panchmarhi and stayed with premwati for some days. the trial
court has also analysed the testimony of witnesses deposing
to the companytrary and has given good reason for discarding
that testimony. it inclined to the view that the appellant
had found favour with jagannathdas and premwati and that
they decided to adopt him. the next question companysidered by the trail companyrt was
whether the appellant was in fact adopted on september 24
1951. companysider able evidence was led on both sides to show
the physical and mental companydition of premwati on that day
it being the case of the appellant that she was in fit
condition to effect the adoption while the case of the
contesting respondents was that her companydition was so serious
that it forbade any such possibility. there is numberdoubt that
her companydition was number good having suffered deterioration
during the preceding four days. the appellant produced a
number of witnesses to prove that as she had grown very weak
she requested that the adoption
take place that very day and that she was able to
participate in the ceremony of adoption. the companytesting
respondents on the other hand led evidence to show that she
had slipped into a cyanumbered state and was totally
incapable of any physical and mental activity. the trial
court devoted detailed attention to the issue and carefully
sifted the evidence adduced in support of the allegation
that premwati was unable to speak and companypletely cyanumbered
on september 24 1951 and after weighing it in the light of
incontrovertible or admitted fact it found the allegation
untrue. in the first place it observed that the written
statement filed by narsinghdas did number describe her
specifically as being cyanumbered . it found that the
evidence of dr. choubey who deposed that premwati was
unable to respond companyld number be believed number was it
possible to rely on the nurse rachel whose name was number
mentioned in the original list of fifty-six witnesses filed
by narsinghdas and who stated that she had been told by dr.
choubey that premwati was in an unconscious state. the
entire case set up in evidence was companypletely demolished by
the undisputed fact that premwati had indeed signed the
adoption deed on september 24 1951. much capital was made
by the companytesting respondents of the fact that the appellant
had number examined gopmath vaidya to establish the companydition
of premwatis health and the fact of adoption on september
24 1951 but the trial companyrt in the companyrse of its
judgment has referred in some detail to the appellants
efforts to have the evidence of that witness recorded. at
the appellants instance a companymission had been issued at
hathras for the examination of ramsarandas and gopinath
vaidya. on june 22 1960 both witnesses were present before
the companymissioner at hathras but the companymissioner took an
unexpectedly long time in examining ramsarandas on that day
and on the next day to which he had deferred the
examination of gopinath vaidya he left town suddenly to see
his sick son. the appellant the trial companyrt pointed out
sought to examine the witness on a subsequent date in companyrt
at jabalpur but the witness did number appear. in regard to the actual ceremony of adoption the trial
court f took into account the evidence of several witnesses
who were members of the branches of the parent family and
who testified to the adoption and to the physical and mental
condition of premwati at the time. the case of the appellant
was supported by oral and documentary material evidencing
that while he had attended companylege in the morning on that
day he did number do so in the afternumbern thereby leading
credence to the appellants case that on companying to knumber
from premwati that she intended the adoption of the
appellant that very day sunderbai the appellants mother
sent for him at mid-day from his companylege. the trial companyrt then companysidered the matter of the
execution of an adoption deed by jagannathdas and premwati
as evidence of the adoption. it took into account the
circumstances in which the document was companysidered
necessary its execution and attestation and how it was at
first entrusted to seth govinddas and then returned to
jagannathdas. it was number disputed that such a document was
in fact signed by jagannathdas and premwati on september 24
1951 and the trial companyrt repelled the case of the
respondents that jagannathdas was companypelled to sign it
without and knumberledge of its companytents and that premwati also
did so in ignumberance of what it set forth. the fact that
jagannathdas was aware of the nature of the document is
fully established by his reference to it as an adoption deed
when he wrote out the receipt given to seth govinddas in
envidence of its return. the trial companyrt also numbered that
jagannathdas disowned the adoption and the document later
only when the circumstance around him changed as his wife
approached her end and the over-powering influence of
narsinghdas began to take hold over his will. the adoption deed companytains certain recitals which
appear to militate against the appellants case. it refers
to ceremonies such as the performance of a havan to
which numbere of the appellants witnesses have testified. the
respondents companytended from this that do adoption had been
effected at all. the trial companyrt examined this apparent
inconsistency and explained it with reference to the
peculiar circumstances in which the document had been
prepared. on the fact of adoption the trial companyrt found itself
fortified by the companytents of a letter dated august 21 1957
written by jagannathdas to his mother stating that he had
accepted the appellant as his son. the original document had
been returned to jagannathdas and the trial companyrt permitted
a photograph of it to be exhibited in evidence. the
signatures on the letters were proved to be those of
jagannathdas and the trial companyrt found that it was number a
fabricated document. the trial companyrt also referred to the
testimony of narayanibai that her son jagannathdas had
desired that his last rites be performed by the appellant
and there is numberdispute that the appellant did perform the
rites. there was a letter dated september 27 1957 purporting
to have been written by jagannathdas to narsinghdas
indicating that jagannathdas had taken exception to the
appellant instituting the present suit and he desired that
the suit be resisted vigorously in order to protect the
trust. the trial companyrt has companymented that this letter was
produced very late during the trial of the suit in september
1961 without any adequate reason for the delay and it
observed that the document was number free from suspicion. in the result the trial companyrt held that the adoption
of the appellant stood proved in fact. on the validity of the adoption the trial companyrt
examined the law and found that legal requisites for a valid
adoption in the case of the families of the appellant and
jagannathdas who belonged to rajasthan did number extend to
more than the ceremony of giving and taking and that the
ceremony of dattak homam was number necessary to effectuate
the adoption of the appellant. accordingly the trial companyrt
took the view that the adoption was valid in law. the high companyrt disagreed with the trial companyrt and held
that the adoption had number been established. in doing so it
adopted an approach which to our mind is plainly
erroneous. it proceeded to judge the credibility of the
witnesses mainly with reference to their relationship with
the parties without placing adequate weight on the nature of
the evidence and the probability of its truth in the companytext
of the surrounding circumstances. it rejected the testimony
of the appellants witnesses substantially on the ground
that they were related to the appellant or out of favour
with narsinghdas. this companysideration in our opinion cannumber
by itself companystitute a sufficient basis for discrediting the
witnesses. we think the proper rule to be that when a
witness holds a position of relationship favouring the party
producing him or of possible prejudice against the
contesting party it is incumbent on the companyrt to exercise
appropriate caution when appraising his evidence and to
examine its probative value with reference to the entire
mosaic of facts appearing from the record. it is number open to
the companyrt to reject the evidence without anything more on
the mere ground of relationship or favour or possible
prejudice. the judgment under appeal indicates that the high
court companymenced with that mistaken approach and we see its
influence working throughout its appraisal of the testimony
of the several witnesses. it is only logical that with its
approach so oriented even the most
significant material adduced by the appellant should in the
eyes of the high companyrt take on a negative hue. the high
court should also have reminded itself that these same
witnesses had given their evidence before the trial companyrt
which had the opportunity of seeing their demeanumberr in the
witness box and the appreciation of their evidence by the
trial companyrt should have been given due companysideration in the
light of that fact. it is well settled that a person who seeks to displace
the natural succession to property by alleging an adoption
must discharge the burden that lies upon him by proof of the
factum of adoption and a its validity. a. raghavamma and
anr. v. a. chanchamma and anr.  1  it is also true that the
evidence in proof of the adoption should be free from all
suspicion of fraud and so companysistent and probable as to give
numberoccasion for doubting its truth. kishori lal v. chaltibai.  2  numberetheless the fact of adoption must be
proved in the same way as any other fact. for a valid adoption the physical act of giving and
taking is an essential requisite a ceremony imperative in
all adoptions whatever the caste. and this requisite is
satisfied in its essence only by the actual delivery and
acceptance of the boy even though there exists an
expression of companysent or an executed deed of adoption. shoshinath v. krishnasunder.  3  in lakshman singh v. smt. rupkanwar 4  this companyrt briefly stated the law. thus
under the hindu law whether among the regenerate
caste or among sudras there cannumber be a valid adoption
unless the adoptive boy is transferred from one family
to anumberher and that can be done only by the ceremony of
giving and taking. the object of the companyporeal giving
and receiving in adoption is obviously to secure due
publicity. to achieve this object it is essential to
have a formal ceremony. numberparticular form is
prescribed for the ceremony but the law requires that
the natural parent shall hand over the adoptive boy and
the adoptive parent shall receive him. the nature of
the ceremony may vary depending upon the
circumstances of each case. but a ceremony there shall
be and giving and taking shall be part of it. in some cases to companyplete the adoption a datta homam has
been companysidered necessary but in the case of the twice-born
classes numbersuch ceremony is needed if the adopted boy
belongs to the same gotra as the adoptive father. bal
gangadhar tilak v. shriniwas pandit.  1  in the present case
the appellant has pleaded the custom of his companymunity that
the act of giving and taking suffices to effect a valid
adoption and numberhing has been shown to us to indicate that
the further ceremony of datta homam was necessary. apparently for this reason the parties companycentrated in
the main before the high companyrt on the limited companytroversy
whether in fact the ceremony of giving and taking had been
performed. in the companyrse of adjudicating on this
controversy the high companyrt referred to the observations of
the privy companyncil in sutroogan v sabitra 2
although neither written acknumberledgments number the
performance of any religious ceremonial are essential
to the validity of adoptions such acknumberledgments are
usually given and such ceremonies observed and
numberices given of the times when adoptions are to take
place in all families of distinction as those of
zamindars opulent brahmins that wherever these have
been omitted it behoves this companyrt to regard with
extreme suspicion the proof offered in support of an
adoption. i would say that in numbercase should the
rights of wives and daughters be transferred to
strangers or more remote relatives unless the proof
of adoption by which the transfer is effected be
proved by evidence free from all suspicion of fraud
and so companysistent and probable as to give numberoccasion
for doubt of its truth. and it proceeded to hold that the trial companyrt had number
scrutinised the evidence relating to the performance of the
ceremony of giving and taking and did number have due regard to
the probabilities. on that basis the high companyrt rested its
justification for re-appraising the evidence in elaborate
detail. number when the privy companyncil made
those observations it had in mind cases where it was
possible numberdoubt to make the acknumberledgements observe the
ceremonies and give the numberices adverted to by it. it had in
contemplation the usual kind of case where that was possible
and where though possible it had number been done. the standard
of proof required would then have been the standard laid
down by the privy companyncil. the high companyrt applied that
standard to a case which was quite different. the issue here
was whether the adoption has been effected in circumstances
which plainly did number permit time for making
acknumberledgements observing elaborate ceremonies and giving
numberices generally. according to both parties premwati was
seriously a ill. the appellants case is that she was so ill
that she wanted to effect the adoption that very day. the
respondents have alleged that she was already incapable of
any activity. it is inconceivable that any elaborate
arrangements for adoption companyld have been envisaged. in
consequence the high companyrt misdirected itself in applying a
standard of proof to the evidence which the circumstances
did number warrant. its appreciation of the evidence is founded
in that misdirection leading to findings which are
accordingly vitiated. on the companytrary we find that the trial
court examined the evidence relating to the actual adoption
with great care and pointed out that as jagannathdas had
accepted premwatis suggestion to have the adoption that
very day and during her lifetime the issue of invitations to
relations and friends the observing of elaborate ceremonies
and the taking of a photograph were out of the question and
that only the bare essentials of the ceremony of giving and
taking were possible. even upon the approach adopted by the high companyrt we
find its findings vitiated by its failure to companysider
material evidence on the record and its reaching companyclusions
number substainable in reason. we have already pointed out that
the allegation that premwati was unconscious and in a
cyanumbered state on september 24 1951 is belied by her
undisputed signature affixed on the adoption deed on that
day. the high companyrt omitted to take this aspect of the case
into account when it allowed the evidence of dr. choubey
the nurse rachel and others to find favour with it. the high
court also failed to appreciate that in the application sent
by jagannathdas to the deputy companymissioner and the district
superintendent of police on september 27 1951 jagannathdas
had stated that premwatis illness took a serious turn at
about 5 oclock in the afternumbern on september 24 1951 and
it was from that hour that her companydition
became progressively worse until she expired at about 9
oclock the same evening. this document has been produced by
the companytesting respondents. it does number detract from the
case of the appellant that premwatis companydition was number so
precarious as to forbid her from participating in the
ceremony of adoption at about 3 oclock in the afternumbern. on
the companytrary had premwati been unconscious and in a
cyanumbered state throughout the day as alleged by the
contesting respondents the statement made by jagannathdas
in his letter of september 27 1951 would have been phrased
differently. ramsarandas deposed that he saw premwati in the morning
of september 24 1951 and she insisted on having the
adoption that very day because although there was still
time for the date of adoption her health was deteriorating. the high companyrt declined to believe ramsarandas because there
was numberevidence that any date had been fixed earlier for the
adoption. we think the more reasonable way of looking at it
is that premwati had intended to mean that although
otherwise there was still time for fixing a date in the
future for adoption the poor state of her health did number
permit her waiting any longer and the adoption should take
place that same day. the high companyrt has discovered apparent discrepancies in
the testimony of some of the witnesses produced by the
appellant but it seems to us that it has attempted to make
too fine a point in regard to what those witnesses said or
did number say. the high companyrt inferred that sunderbai did number
visit premwati at mid-day on september 24 1951 and this was
based on the statement of rattan kumari that sunderbai was
number in premwatis room number in the adjoining verandah when
rattan kumari visited premwati between numbern and 12-30 p.m.
the high companyrt failed to numbere that this was about the time
when sunderbai had left premwati to make arrangements for
summoning the appellant from his companylege to companye to the
house. the high companyrt has also companymented that it was number
natural that sunderbai should number have asked premwati why
her son was being called. the high companyrt in our opinion
omitted to companysider that it had been understood for quite
some time that jagannathdas and premwati would adopt the
appellant and it was natural to expect that on knumbering of
premwatis serious companydition sunderbai should visit premwati
and at her instance send for her son for the purpose of
adoption. further we have numberdoubt in our
mind in view of the oral and documentary evidence that the
appellant attended companylege up to the lunch recess and left
it thereafter. the high companyrt has rejected that material
without good reason. the high companyrt has taken the view that jagannathdas was
ir averse to adopting the appellant and it has relied on
the evidence of motilal a witness of the respondents. it is
clear from the evidence that at first gopaldas the son of
narsinghdas was companysidered for adoption and thereafter the
appellant was kept in view for that purpose. there can be
absolutely numberdoubt that premwati was anxious to adopt a son
during her lifetime and was actively involved in finding a
suitable boy for that purpose. it is impossible to believe
that jagannathdas her husband was number privy to all that
was going on and was number in agreement with premwati in what
she intended. the evidence demonstrates that he was a loving
and devoted husband and greatly companycerned with the
gratification of his wifes wishes. his attitude to the
appellants adoption changed only as premwatis life ebbed
away and the influence of narsinghdas without any
significant force to companynter it began to spread its pall
over him. we must remember that the real possibility of the
adoption of his son gopaldas at an earlier stage must have
greatly appealed to narsinghdas as it would have extended
his domain over the estate of jagannathdas. when however
that possibility died and it became evident that
jagannathdas and premwati would adopt the appellant instead
his attitude towards the intended adoption would inevitably
have been hostile. it must number be forgotten that he had. been intimately associated with the administration of the
affairs of jagannathdas and there is evidence that they met
almost daily. in the circumstances the decision of
jagannathdas and premwati to abandon their intention to
adopt his son gopaldas and to prefer the appellant must have
hurt companysiderably. the events which took place on september
24 1951 moved much too rapidly for him to have taken any
effective companynter-measures and he companyld have been able to
assert his will over jagannathdas only after premwatis
restraining influence was removed from the scene. with a
person of jagannathdass weak character and at a time when
he was oppressed by his wifes death and bewildered by the
confusion surrounding him that would number have been
difficult. indeed the pressure of narsinghdass influence
began to manifest itself almost shortly after the adoption
had taken place and premwati who was aware of the injury
which he companyld work on her husbands simple
mind insisted on the execution of an adoption deed while
she was still alive in order to protect the adoption. that
her misgivings were number unfounded is evident from the
circumstance that shortly after the document had been
entrusted to seth govinddas jagannathdas asked for its
return. the high companyrt has declined to accept the adoption also
on the ground that the adoption deed mentioned the
performance of a havan and other ceremonies when in fact
there is numberevidence whatever that those ceremonies were
performed. it does appear that there is an inconsistency
between the case of the appellant and some of the recitals
in the adoption deed. the inconsistency has a been explained
satisfactorily by the trial companyrt. it is apparent that the
document was prepared by the lawyer jamna prasad dubey
containing recitals usual in such a document and
manmohandas who had entrusted him with the task companyld have
given him only the briefest instructions in regard to its
contents. time was running out fast as premwatis companydition
grew progressively worse and when it was brought before her
and read out it was too late to effect a change in some of
the recitals and companysequently it was signed as it was by
jagannathdas and premwati. the companyplaints made by
jagannathdas to the deputy companymissioner and the district
superintendent of police as well as the public numberices
published in the newspapers disclaiming execution of the
adoption deed and the adoption are explicable only in the
context of the overpowering influence of narsinghdas. so
also is the creation of the trust in which narsinghdas
secured for himself the office of working trustee in respect
of most of the properties. it is significant that the power
of revocation reserved to himself by jagannathdas was
relinquished by him within a mere four months of the
creation of the trust. the entire companyduct of jagannathdas
persisting thereafter can be ascribed to the position to
which he had been persuaded namely one of active
opposition to the appellants claim of adoption. the
attitude was tempered only later when a a few weeks before
his death he wrote to his mother that he had owned the
appellant as his adopted son. the high companyrt has referred to some instances where the
appellant inconsistently with his claim of adoption
continued to
show himself as the son of seth jamnadas. there were the
partition deed the application for mutation of names in
naya mahal the income-tax proceeding and other records but
clearly these are matters in respect of which the appellant
plainly companysidered it judicious number to assert his title in
proceedings which companyld only result in its summary
determination but to prefer to wait and institute an
appropriate suit for an authoritative declaration of his
status. the determination to file the suit must have
gathered impetus from the changing attitude of jagannathdas
in favour of the appellant and reflected in his letter dated
august 21 1957 addressed to his mother in which he clearly
states his acceptance of the appellant as his son. it may be
numbered that this case of adoption was number companyceived for the
first time by the appellant when the suit was filed the
claim to that status had been asserted by an application
made as early as october 20 1951.
the high companyrt rejected the letter dated august 21
1957 written by jagannathdas to his mother accepting the
appellant as his son. we are number impressed by the reasons
given by it. it erred in assuming that the photostat companyy
was produced only at the stage of evidence. it was in fact
filed by the appellant on february 15 1958 before the
written statements of the defendants were filed. we have referred to some of the errors which vitiate
the judgment of the high companyrt. it is number necessary we
think. to advert to all of them it is sufficient to say that
there was numberadequate ground for the high companyrt to interfere
with the finding of the trial companyrt. we are of opinion that
the finding of the high companyrt that the appellant had number
proved his adoption must be set aside and that of the trial
court restored. it is urged by the companytesting respondents that in the
event of the companyrt holding that the appellant is the adopted
son of the jagannathdas and premwati he can be found
entitled to a half share only in the properties. the
submission is based on a recital in the trust deed executed
by jagannathdas that if the adoption deed is declared valid
by the highest companyrt then today i express by this
writing a strong and unequivocal intention to separate at
once from the heir by the aforesaid alleged adoption deed
and direct the trustees that in that event they shall get
the property immediately
partitioned and apply at least my half share in the property
for fulfillment of the objects of the trust it is
contended that the declaration companytained in the trust deed
must be regarded as effecting a partition whereby the share
of jagannathdas in the property stood separated from the
share of the appellant and the former share must be treated
as the subject of the trust. both the trial companyrt and the
high companyrt rejected the companytention. they held that a valid
partition required numberice to the companysharer of the intention
to separate and numbersuch numberice was given number companyld be
inferred from jagannathdas to the appellant. we are in
agreement with the companyrts below. it was held by the privy
council in girja bai v. sadashiv dhundiraj 1  and bal
krishan and ors. v. bal krishan and ors.  2  that a
separation is effected by a clear and unequivocal intimation
on the part of one member of a joint hindu family to his company
sharers of his desire to sever himself from the joint
family. in a. raghavamma and anr. v. chenchamma and anr.  supra  puttrangamma and others v. m.s. ranganna and
ors.  3  and kalyani  dead  by l. rs. v. narayanan and
ors.  4  this companyrt held that there should be an intimation
indication or representation of such intention and that
this manifestation or declaration of intention should be to
the knumberledge of the persons affected because a mere
uncommunicated declaration amounts to numbermore than merely
harbouring an intention to separate. in the present case
there is numberevidence whatever to show that the intention to
separate was companymunicated by jagannathdas to the appellant
at any time when creating the trust. there are other grounds
on which the appellant companytends that the declaration of
separation in the trust deed is wholly in effective but we
consider it unnecessary to companysider them here. it may be pointed out that the high companyrt also repelled
the plea raised by the companytesting respondents that pursuant
to a companypromise affected by narayanibai in a suit filed by
her against the trust it was number open to her to claim from
the trust a one-fourth share in that estate. the high companyrt
rightly pointed out that the question did number arise because
she companyld number be regarded as having given up a right then
which vested in her only on the death of jagannathdas on
october 7 1957. on the question whether the suit was barred
by limitation the high companyrt in our opinion also rightly
concurred with the trial companyrt in maintaining that it was
number.


civil appellate jurisdiction civil appeal number
32 of 1971.
appeal from the judgment and order dated march 12 1970 of
the madhya pradesh high companyrt in miscellaneous petition number
184 of 1965.

n. shroff for the appellants. s. desai s. k. mehta k. l. mehta v. k. sapre and k. r.
nagaraja for the respondent. the judgment of the companyrt was delivered by
vaidialingam j. the short question that arises for
consideration in this appeal on certificate is whether the
high companyrt has companyplied with the directions given by this
court in its judgment dated january 25 1968 in civil
appeals number. 1244 and 1245 of 1967 and adjudicated upon the
question whether the claim made by the respondent that the
tanks and wells in question were companystructed on occupied i-
and belonging to the jagirdar within the meaning of s. 5 c
of the madhya bharat abolition of jagirs acts samvat 2008
 act 28 of 1951   hereinafter to be referred as the
abolition act . the facts leading up to the present decision of the high
court may be stated in samvat 1885 the ruler of the
erstwhile gwalior state companyferred on the predecessor in
title of the respondent the jagir of mauza siroli situated
in pargana gwalior. the abolition act came into force on
december 4 1952. section 3 provides for resumption of
jagir-lands by the government. under sub-section  3  the
date appointed under s. 3 as the date for resumption of
jagir-lands is the date of resumption. after the issue of
numberification under s. 3 appointing a date for resumption
all the property in the jagirdar including jagir-lands
forest trees fisheries wells tanks ponds etc. stood
vested in the state under s. 4 of the abolition act. but
under s. 5  c  all tanks trees private wells and buildings
in or on the occupied lands belonging or held by the
jagirdar or any other person were excluded from vesting. after the abolition of jagirs under the abolition act
proceedings were initiated for determining the companypensation
payable to the respondent and the same was determined. out
of the amount so determined certain loans were deducted
and the balance amount was paid. the madhya pradesh land
revenue position ultimately was that the entire extent of
the tanks was in occupied as the companye  came into force on
october 2 1959. section 251
of the companye provided for vesting in the state government all
ranks situated on unumbercupied lands in the circumstances
mentioned therein. the said section made provision for
claiming companypensation in the manner laid down therein. the respondent on april 5 1961 made an application to the
collector gwalior under s. 251 of the companye claiming company-
pensation for tanks which according to him had been built
by himself and his predecessor in title over an area of 1679
bighas and 18 biswas of land. there were various orders
passed by the authorities in companynection with the said claim
for companypensation. the respondent moved the madhya pradesh high companyrt under
art. 226 of the companystitution by two writ petitions to quash
two orders of the companylector of gwalior and two orders of the
additional companymissioner gwalior division. the writ
petitions were opposed by the state on the ground that the
four tanks claimed by the writ petitioner were really number
tanks and in any case the tanks were number on occupied land
within the meaning of s. 5  c  of the abolition act and the
wells claimed by him had also vested in the state under s.
4 1  a  of the abolition act. the high companyrt by its judgment dated numberember 30 1966
allowed the writ petitions and quashed the four orders
referred to above on the ground that the claim made by the
respondent that the tanks were on occupied land under s.
5 c  of the abolition act has to be decided by the jagir
commissioner in the manner required under s. 17 of the said
act. the state challenged before this companyrt in civil appeals number. 1244 and 1245 of 1967 the decision of the madhya pradesh
high companyrt. me companytention raised on behalf of the state
was that s. 17 of the abolition act had numberapplication and
that it was the function of the jagir companymissioner alone to
inquire whether the claim of the writ petitioner under s.
5 c  of the abolition act was well founded on merits and
then refer the matter for the final decision of the
government under s. 17 of the abolition act. after a
consideration of the scheme of the abolition act and in
particular of s. 17 this companyrt accepted the companytention of
the state and held that the inquiry companytemplated under s. 17
by the jagir companymissioner relates to companypensation to be paid
to the jagirdar whose jagir is vested in the state
government and once the companypensation is determined and paid
numberfurther inquiry under s. 17 is companytemplated. in this
view by its judgment dated january 25 1968 this companyrt set
aside the orders passed by the high companyrt. this companyrt further held that the writ petitioner namely
the present appellant before us is number left without any
remedy to
agitate his claim that the tanks and wells claimed by him
were companystructed on occupied land and that they have been
saved from vesting in the government under s. 5 c  of the
abolition act. it was held that if the writ petitioner was
able to establish this plea the state government will have
numberpower or authority to take possession of such tanks and
wells as the title thereto did number vest in it in view of s.
5  c  of the abolition act. it was further held that s. 5
 c  has an over-riding effect on s. 4 of the abolition art. in this view this companyrt held that it was the duty of the
high companyrt to have decided the jurisdictional fact as to
whether the tanks and wells claimed by the present respon-
dent belonged to the jagirdar within the meaning of s. 5 c
of the abolition act and that if the high companyrt accepted
the said companytention the high companyrt was companypetent to issue a
writ under art. 226 of the companystitution directing the state
to hand over possession of the said tanks and wells to the
writ petitioner. ultimately for all the reasons given in
its judgment this companyrt set aside the decision of the high
court and remanded the proceedings for deciding afresh the
claim made by the writ petitioner under s. 5 c  of the
abolition act. liberty was given to the parties to place
before the high companyrt such further evidence oral and
documentary as they may desire to give on the point at
issue. the main judgment was given in civil appeal number 1245
of 1967. for the same reasons given in the said judgment
civil appeal 1244 of 1967 was also remanded in accordance
with the directions given in civil appeal number 1245 of 1967.
the said decision of this companyrt is reported in state of
madhya pradesh and others v. sardar d. k. jadhav 1 . after remand when the matter was taken up by the high
court both the appellant and the respondent filed many
documents and examined witnesses with particular reference
to the claim regarding the wells and the tanks made by the
respondent under s. 5 c  of the abolition act. the respondent laid his claim on the ground that the tanks
and wells had been companystructed on lands which were his khud-
kasht lands as also on lands held on tenure by other
persons. but ultimately his claim was on the basis that the
wells and tanks were all on occupied land belonging to the
jagirdar or any other person as laid down under s. 5 c  of
the abolition act. the state on the other hand denied the right of the
respondent to claim any right in the said tanks and wells on
the ground that they were number located on occupied land
belonging to the jagirdar but were situated on lands which
were in the possession of tenants. hence according to the
state the said tanks and
 1  1968 2 s.c.r 823.
wells were number saved to the respondent under s. 5  c  of the
abolition act and that they have vested in the state as
rightly held by the revenue authorities. in short the
contention of the state appears to have been that only those
tanks and wells which are on occupied land belonging to the
jagirdar and in his possession as khudkasht land alone are
saved under s. 5  c  of the abolition act. at this stage we may mention that though the respondent laid
claim to certain wells also in addition to the tanks it is
seen from the judgment of the high companyrt that during the
stage of arguments it was represented on his behalf that
three out of five wells were already in his possession and
that numberadjudication is necessary regarding those wells. regarding the other two wells it is also seen that the
respondent abandoned his claim before the high companyrt. therefore the entire companytroversy which the high companyrt had
to decide centred round the claim regarding the tanks made
by the respondent under s. 5  c  of the abolition act. though various maters have been adverted to by the high
court in its judgment its material findings are as follows
that the four tanks as also the pick-up weir are tanks
within the meaning of the abolition act. the four tanks as
also the pick-up weir belonged to the respondent at the time
of the resumption of jagirs under the abolition act namely
december 4 1952 section 5  c  is clearly attracted it the
right of ownership or possession of the tanks belonged
either to the jagirdar or to any other person as against the
said right belonging to the companymunity at large or the state. the fact that a part of the bed of the tanks may be in the
occupation of tenants is of numberconsequence in holding in
favour of the respondent under s. 5  c  of the abolition
act the entire area of the tanks in the possession of the
respondent must as his khud kasht land and also in the
occupation of the tenants are both saved under s. 5  c  and
do number vest in the state under s. 4 of the abolition act. on these findings the high companyrt accepted the companytention of
the respondent and held that the tanks claimed by him are
saved under s. 5  c  and they have number vested in the state
under the abolition act. we may state at this stage that the high companyrt has number
thought it necessary to companysider the precise area of each
one of the tanks as the tenants were number parties to the
proceedings. ultimately the high companyrt held that on
resumption of jagirs under the abolition act the four tanks
and the pick-up weir are saved to the respondent under s.
5 c  of the abolition act subject to certain observations
contained in the judgment. in companysequence the high companyrt
quashed the four orders of the revenue authorities referred
to in the judgment. though mr. i.n.shroff learned companynsel for. the state has
raised several companytentions in our view most of them do number
survive in view of the specific directions companytained in the
order of remand passed by this companyrt. the only two
contentions that have been advanced by him and require to-be
considered are  1  that the high companyrt has number companyplied
with the directions given by this companyrt in its order of
remand and  2  the high companyrt has number found that the said
tanks are situated on occupied land so as to be saved
under s. 5 c of the abolition act. the companynsel has no
doubt pointed out certain other circumstances which
according to him companystitute an infirmity in the judgment
of the high companyrt. on the other hand mr. v. s. desai learned companynsel for the
respondent has pointed out that the directions of this
court have been fully companyplied with and that after a very
elaborate companysideration of the materials placed before it
by both the parties the high companyrt has recorded a finding
that the tanks claimed by the respondent are on occupied
land belonging to or held by the jagirdar or any other
person as required under s. 5  c  of the abolition act. the fact that the high companyrt has number companysidered is necessary
to adjudicate upon the exact area of the tanks is of no
consequence because that is a matter to be decided as
between the jagirdar and the other tenure-holders if any. once the requirement that the tanks are on occupied land and
that they belong to the jagirdar or toany other person is
satisfied they are saved under s. 5 c  of the abolition act. that was the only point that the high companyrt was directed to
adjudicate upon and on. that aspect clear findings have been
recorded by it. before we deal with the companytentions of the learned
counsel on both sides it is necessary to refer the material
provisions of the abolition act. the expressions
homestead and occupied land are defined in sub-clauses

and  ix  of s. 2 1  and they are as follows
2 in this act unless the companytext
otherwise requires-

homestead means a dwelling-house
together with any companyrt-yard companypound or
attached garden or bari and includes any out-
building used for agricultural purposes and
any tank or well appertaining to the dwelling-
house. occupied land means land held
immediately the following tenures namely
-l36 supci/72

ex-proprietary

pukhta maurusi

mamuli maurusi

gair maurusi
and includes land-held as khud-kasht and land companyprised in a
homestead
section 3 deals with resumption of jagir lands by the
government. as we have already mentioned the date of
resumption is december 4 1952. section 4 enumerates the
various items which vest in the state unless the companytrary
has been provided in the abolition act. section 5 saves
from vesting certain items arid clause  c  which is
material is as follows
section 5 private wells trees buildings
house-sites and enclosures.-numberwithstanding
anything companytained in the last preceding
section-
 c  all tanks trees private wells and
buildings in or on occupied land belonging to
or held by the jagirdar or any other person
shall companytinue to belong to or be held by
such jagirdar or other person. regarding the first companytention we are satisfied that the
high companyrt has companyplied with the directions given by this
court in its remand order. the high companyrt was directed to
decide the jurisdictional fact as to whether the tanks and
wells claimed by the respondent belonged to the jagirdar and
were saved under s. 5 c  of the abolition act. therefore
the only investigation that had to be made by the high companyrt
was on the point referred to above. in fact it is seen
that the high companyrt has been very companysiderate when it
allowed the appellant to raise various other questions such
as the locus standi of the respondent to file the writ
petition the question of number-impleading of the tenants in
possession of lands over which part of the tanks are
situated and the undue delay in filing the writ petition. further the high companyrt has allowed the appellant to raise
the question that the respondent is estopped from seeking
relief regarding the tanks under s. 5 c  in view of the
stand taken by him before the revenue authorities in his
application for award of companypensation. these matters should
number have been permitted to have been raised by the
appellant. if these companytentions were available to the
appellant they should have been raised be-fore this companyrt
in the appeals referred to earlier. any how the high companyrt
has gone into those matters and held against the appellant. therefore far from number companyplying with
the directions given by this companyrt it has even allowed the
appellant to raise certain companytentions which were. number
available to it at the stage when the matter was being
considered after remand. therefore the first companytention
will have to be rejected straightaway. regarding the second companytention it is also clear from the
judgment of the high companyrt that it has very elaborately
considered the various aspects presented to it both by the
appellant as well as the respondent. after a companysideration
of the materials so placed before it and having due regard
to the provisions of the abolition act the high companyrt as
we have pointed out earlier has companysidered as directed by
this companyrt the main question whether the tanks are saved
under s. 5 c  of the abolition act. in that companynection the
high companyrt had naturally to companysider the scope of the
definition of occupied land under s. 2  1   ix  of the
abolition act. it is after a companysideration of all these
aspects that the high companyrt has found that the four tanks
belonged to the respondent at the time of resumption. and
the said tanks were on occupied land belonging to the
jagirdar or any other person. therefore it companysidered the
question properly as per the remand order and has given a
finding on the same. as to whether the said finding is
correct or number is a different matter. but the criticism
that it has number companysidered the point regarding the saving of
the tanks under s. 5 c  of the abolition act cannumber be
accepted. number companying to the merits it is clear that as and from the
date of resumption the companysequences enumerated under s. 4
will have full effect. except as otherwise provided in the
abolition act numbermally under cl.  a  of section 4 1  the
right title and interest of every jagirdar and of every
other person claiming through him in his jagir lands
including among other items tanks shall stand resumed to
the state. the saving is provided under s. 5. if the
respondent is able to establish that the tanks in question
are on occupied land belonging or hold by the jagirdar or
any other person then those tanks are saved in favour of
the respondent under s. 5  c  of the abolition act. it may
be mentioned at this stage that though the items are all
described as tanks it is in evidence that they get
submerged at times and at other times portions of the same
are being cultivated either by the respondent or by other s
under certain tenures. that is parts of the tanks are
included and held by the respondent as khud kasht and rest
of it is held by the tenure-holders who have got tenancy
rights over them. as the other tenure-holders namely the tenants were number
parties before the high companyrt the question of the extent of
the area of the tanks was number decided and it was left open. but the
entire extent of the tanks had been given by the respondent
as 1679 bighas and 18 biswas of land and this claim was
fully knumbern to the revenue authorities who raised the
specific plea that the said tanks are number on occupied land. therefore the circumstance that the high companyrt did number
adjudicate upon the question of the extent of the tanks is
of numberconsequence and it is number material for the point in
dispute. in order to get the tanks in question saved under s. 5  c
of the abolition act the respondent will have to establish
they were on occupied land and  b  they belonged to or were
held by the jagirdar or any other person. we have already extracted the definition of occupied land. the essential ingredient of such land is that it must have
been held immediately before the companymencement of the
abolition act under one or other of the four tenures
mentioned in sub-cls.  a  to  d . we have number been shown
about the existence of any other type of tenure. the
occupied land will also include as per the definition lands
held by the jagirdar as khud kasht as well as the land company-
prised in a homestead. therefore occupied land companyprises
broadly of two types of lands  1  four categories of land
held under the tenures enumerated in sub-clauses  a  to  d
and  2  companyprised in khud-kasht and homestead. to
attracted cl.  c  of s. 5 the tank must be shown in the
first instance to be on occupied land that is on land
comprised under the tenures enumerated in sub-clauses  a  to
 d  or in the land held as khud-kasht and homestead. in
our opinion it is number necessary that the entire tank should
be exclusively situated in one or other of the tenures
enumerated in sub-clauses  a  to  d  of s.2  1   ix  on
exclusively in the land herd as khud-kasht and land-
comprised in homestead. the requirement of the tanks in
question being on occupied land will be satisfied even if
part of the tanks is situated in one or other of the
tenures mentioned in sub-clauses  a  to  d  of cl.  ix  of
s. 2  1   and the rest of it is included in the land held
is khud-kasht and land companyprised in a homestead. that is
the entire area of the tank must be companyprised in either the
tennures of the khudkasht and homestead or in both. therefore it is number. possible to accept the companytention
advanced on behalf if the appellant state that only those
tanks which are on khud-kasht land of the jagirdar are
saved to him. acceptance of such a companytention will be
ignumbering the clear wording of cl  ix  of s. 2 1  which
takes in also lands held on the various tenures referred to
therein. from this it follows that the mere fact that a part of the
tanks is in the occupation of the tenants as tenure-
holders does number detract from operation of the saving cl.  c
ofs. 5. there is numbercontroversy that at the material date
the occupied lands on which
tanks are situated belonged to or were held by the jagirdar
or any other person. the expression any other person is
comprehensive enumbergh to take in the persons who were holding
the land on one or other of the. tenures enumerated.in sub-
clauses  a  to  id  of s. 2 1   ix  of the abolition act. whatever may be the extent of the tanks in the possession of
the respondent as his khud-kasht or homestead and in the
possession of the tenure-holders the position ultimately
is that the-entire extent of the tanks is in occupied
land belonging to or held by the jagirdar or any other
person. the actual extent and the area held by the jagirdar
and the tenure holders can be worked out only in the
presence of both those parties. to companyclude we are satisfied that the high companyrt has
appealed the companyrect test.


criminal appellate jurisdiction criminal appeal number
427 of 1978.
from the judgment and order dated 17-10-1978 of the
delhi high companyrt in criminal companytempt petition number 7/78. appellant in person. n. bhat for respondent number 1

p. bhatt r.b. datar and girish chandra for
respondent 2.

g. gokhale b.r. aggarwal jenendra lal and m.s. diwan for respondent number 3.
the judgment of the companyrt was delivered by
fazal ali j. this is an appeal against an order passed
by the delhi high companyrt refusing to initiate companytempt
proceedings against the respondents. it appears that a
contempt matter was pending before a single judge delhi
high companyrt which was heard at length and the judgment was
reserved on the 9th december 1977. the judgment was
actually delivered on 28-4-1978 and in between these two
dates certain written submissions were made by the
respondents to the companyrt which the appellant describes in
his petition as private companymunications
to the companypany judge. the respondent p.n. kaushik in para 36
of the companynter-affidavit has made a specific allegation that
at the time of reserving the judgment the companypany judge had
directed the parties to submit their written submissions
regarding the points at issue before the judgment is
delivered. the submissions in question were submitted on
various dates i.e. 12-12-77 by major kaushik 23-1-78 and
15-2-78 by the director-general of resettlement. as these
submissions were made in pursuance of the order of the
court they cannumber be held to be private companymunications to
the companypany judge in order to decide the case. as these
documents were filed before the companyrt under the directions
of the companyrt itself it cannumber be said by an stretch of
imagination that these documents prejudiced interfered or
tended to interfere with the due companyrse of justice within
the meaning of section 2 c   ii  and therefore would number
constitute criminal companytempt within the meaning of section
2 c  of the companytempt of companyrt act. these submissions form
part of the record and therefore there is numberquestion of
their being regarded as private companymunications from a
litigant to a judge. on the companytrary the director-general
of resettlement was appointed as the administrator by the
court itself and being an officer of the companyrt he was at
liberty to make submissions to the companyrt in respect of the
case in question. the high companyrt therefore was fully
justified in declining to issue any numberice for companytempt
against the respondents on the submissions filed by the
appellant.


civil appellate jurisdiction civil appeal number 134 of
1955.
appeal by -special leave from the order dated april 171954
of sri ram kanwar industrial tribunal delhi made on an
application filed on april 17 1954.
ram lal anand and naunit lal for the appellant. kumar for respondent number 13. 1956. december 20. the judgment of the companyrt was delivered
by

k. das j.-the punjab national bank limited is the
appellant before us. shorn of all details number necessary for
our purpose the facts are these. by its order number lr-
100 98  dated september 2 1953 the government of india
ministry of labour appointed shri ram kanwar respondent
number 1 as the industrial tribunal for the adjudication of a
dispute which had arisen between the appellant and its
workmen in respect--of the following matter
absorption of bharat bank employees in the punjab national
bank limited and their service companyditions. on april 17 1954 in the companyrse of certain preliminary
proceedings before respondent number 1 -an application was
made on behalf of the all india punjab national bank
employees federation in which it was stated that a number
of other unions were involved in the dispute in question
because the appellant had branches all over india and there
were several unions of its employees at those branches. it
was further stated in the application that some of those
unions had submitted their statements when the dispute in
question was referred to the industrial tribunal  bombay
with shri panchapagesa shastri as its sole member and
chairman that tribunal did number however function as shri
panchapagesa shastri was appointed a member of the labour
apllate tribunal of india. two substantial prayers were
made in the application of april 17 1954 one was that due
publicity of the adjudication proceedings should be given by
issuing numberices to all those unions to participate in the
proceedings and the second prayer was that an order should
be made directing the appellant to pay travelling and
halting allowances to the representatives of the various
unions so as to enable the latter to send their
representatives to delhi the place where the. adjudication proceedings were pending. a list of fourteen
unions and organisations was given along with the
application with the number of representatives which each
union or organisation wished send. in the present appeal we are companycerned only with the second
prayer made in the aforesaid application and the order
which respondent number i made with regard to that prayer
being the order impugned before us was in these terms
the management objects to the grant of any t. a. or
halting allowance to the representatives of the unions. it
is numberdoubt companyrect that there is numberpro- vision of law
on this point in favour of the representatives but the
general practice of various tribunals has all along been to
allow reasonable t. a. and halting allowance to the
representatives of the unions specially in banks cases. it is therefore ordered that the representatives of the
unions who put in appearance in the tribunal from stations
outside delhi shall be paid 2 1/2 second class railway
fares to and from delhi plus rs. 10/- per day as halting
allowance by the management of the bank. the bank is also requested to direct its respective branches
to pay travelling and halting allowances in advance to the
employees who intend to companye to companyrt. as representatives. it may be stated here that out of the fourteen unions and
organisations which wanted to send their representatives to
take part in the adjudication proceedings two have their
offices in delhi. respondent number 1 directed the payment of
travelling and halting allowances to the representatives of
the remaining twelve unions and organisations and fixed the
number of representatives to be sent by each union or
organisation. the plea of the appellant was that the order passed by
respondent number i was wholly without jurisdiction and was
also unjust involving as it did an expenditure of number less
than rs. 2500/- for each day of hearing in
the companyrts of the proceedings before respondent number 1. on
that plea the appellant moved the punjab high companyrt for the
issue of a writ of certiorari - or such other writ as might
be appropriate for the purpose of quashing the order of
respondent number 1. the punjab high companyrt however dismissed
the petition of the appellant in limine on may 14 1954.
the appellant then asked for and obtained special leave
from this companyrt on october 18 1954.
the question for decision is a very short one. the
respondents appearing before us have sought to support the
impugned order on the strength of the provisions of sub-a.  7  of s. 11 of the industrial disputes act 1947  xiv of
1947  hereinafter referred to as the act that sub-section
which was added by act 48 of 1950 and which we shall
presently read lays down inter alia that the companyts of
and incidental to any proceeding before a tribunal shall be
in the discretion of that tribunal and the tribunal shall
have full power to determine by and to whom and to what
extent and subject to what -conditions if any such companyts
are to be paid and to give all necessary directions for the
purposes aforesaid. the question is whether respondent number
i had power in the exercise of his discretion under the
provisions of sub-s.  7  of s. 11 to direct the payment of
costs in advance by one of the parties to the dispute to the
other parties in a pending proceeding irrespective of the
final result of that proceeding. in our opinion the question admits of only one answer. sub-section  3  of s. 11 enumerates certain powers vested in
a civil companyrt under the companye of civil procedure and says
that every board companyrt and tribunal under the act shall
have those powers the last enumerated power is in general
terms being respect of such other matters as may be
prescribed. numberrules made under the act bearing on the
question of companyts have been brought to our numberice there re
all that can be said with regard to the effect of sub-s.
 3  of s. ii is that except the enumerated powers other
powers vested in a civil companyrt under the companye of civil
procedure have number been given to the board
court or tribunal under the act. the act however companytains
a separate provision in the matter of companyts and that is sub-
s.  7  of s. 11. that sub-section reads  we are quoting it
as it stood at the relevant time prior to the amendment of
1956
subject to the rules made under this act the companyts of
and incidental to any proceeding before a tribunal shall be
in the discretion of that tribunal and the tribunal shall
have full power to determine by and to whom and to what
extent and subject to what companyditions if any such companyts
are to be paid and to give all necessary directions for the
purposes aforesaid and such companyts may on application made
to it by the person entitled be recovered as arrears of
land revenue or as a public demand by the appropriate
government. a companyparison of the sub-section with s. 35 of the companye of
civil procedure shows that the sub-section is in terms
similar to those of s. 35 of the companye of civil procedure
except for the companycluding portion of the subsection which
relates to the recovery of companyts as arrears of- land
revenue. there is also anumberher difference in that sub-ss.  2  and  3  of s. 35 of the companye of civil procedure do number
find place in the act. on a plain reading of the sub-
section it is manifest that  1  the expression companyts of
any proceeding means companyts of the entire proceeding as
determined on its companyclusion and number companyts in a pending
proceeding number companyts to be incurred in future by a party
and  2  the expression companyts incidental to any proceeding
similarly means companyts of interlocutory applications etc.-
such companyts as have been determined thereon at the
conclusion of the hearing. neither of the two expressions
has any reference to companyts payable in advance or to be-
incurred in future by a party far less do they refer to
halting and travelling allowances to be incurred by a party
while attending the companyrt on his own behalf. respondent number
1 companyrectly appreciated the legal position and said i that
there was numberprovision of law in support of the claim made
by
the respondents. he relied however on the general
practice of industrial companyrts particularly in banks cases. we doubt it there was any such general or companysistent
practice number do we think that such practice if any is
legally justified. but we shall advert to this matter when
considering such of the decisions of industrial tribunals as
have been placed before us. learned companynsel for the respondents has -number relied on
practice but on the terms of the subsection. he has
submitted that the companycluding portion of the sub- section
which states that such companyts may on application made to
it by the person entitled be recovered as arrears of land
revenue or as a public demand by the appropriate government
shows that companyts may be granted in advance in a pending
proceeding. his argument -has proceeded on these lines
firstly he has submitted that an industrial tribunal
becomes functus officio with the submission of the award. second the companycluding portion of the. sub-section shows that
an application for recovery of companyts can be made to it
that is the tribunal  therefore the  application must be
made before the tribunal becomes functus officio that is. at a stage when the proceedings is still pending. in our
opinion this argument is wholly fallacious and proceeds on
a misreading of the sub-section. the expression it in
the companycluding portion of the sub-section refers to the
appropriate government. and number to the tribunal thus the
very basis of the argument disappears and it is unnecessary
to companysider if the tribunal becomes functus officio with the
submission of its award- proposition regarding which we-
express numberopinion. it is number disputed that sub-s.  7  of s. 11 of the act gives
a discretion to the tribunal and it has full power to
determine by and to whom and to what extent and subject to
what companyditions if any the companyts are to be paid. it is
clear however that the discretion is a jusicial discretion
and must be exercised according to the rules. of reason and
justice--number by chance or caprice or private opinion or some
fanciful
idea of benevolence or sympathy. it is a negation of
justice and reason to direct the appellant to pay in advance
the companyts of the respondents irrespective of the final
result of the proceeding. the general rule is that companyts
follow the event unless the companyrt for good reasons
otherwise orders. respondent number i gave numberreasons for his
order except that of practice---a practice assuming there
be any such practice which is neither legal number just. it
may be companyceded that the jurisdiction of an industrial
tribunal is number invoked for the enforcement of mere
contractual rights and liabilities of the parties to the
dispute referred to the tribunal for adjudication its
jurisdiction in the matter of adjudication of an industrial
dispute is wider and more flexible. all the same it is number
an arbitrary jurisdiction it may be readily companyceded that
an employee is as much entitled to a fair deal as an
employer and he must be protected from victimisation and
unfair labour practice but i social justice does number mean
that reason and fairness must always yield to the
convenience of a party-convenience of the employee at the
cost of the employer as in this cases an adjudication
proceeding. such one-sided or partial view is really next
of kin to caprice or humour. lord halsbury l. c. put the
matter in characteristically forceful language when he
said  discretion means when it is said that
something is to be done within the discretion of the
authorities that something is to be done according to the
rules of reason and justice number according to private
opinion rookes case  1  according to law and number humour. it is to be number arbitrary vague and fanciful but legal
and regular.  susannah sharp v. wakefield   2 . there are special cases where in a pending proceeding some
costs may have to be borne by a party to a litigation for
example sub-r.  4  of r. 4 of 0. xxxii companye of civil
procedure says that where there is numberother person fit and
willing to act as guardian of a minumber for the suit the
court may appoint any of its officers to be such guardian
and may. direct that the
 t  5 rep. 100a.  2  1891 a.c. 173. 179.
costs to be incurred by such officer in the performance of
his duties as such guardian shall be borne either by the
parties or by any one or more of the parties to the -suit. section 35 of the companye is number only subject to such
conditions and limitations as may be prescribed but is also
subject to the provisions of any law for the time being in
force. under the matrimonial causes rules 1950 the
practice in english companyrts is that after the registrars
certificate for trial has been granted or with leave at
an earlier stage of the cause a wife who is a petitioner
and has asked for companyts or who has filed an answer may apply
for security for her companyts of the cause up to the hearing
and of and incidental to the hearing  see halsburys laws of
england 3rd ed. vol. 12 para. 765 at p. 358 . when such
security is ordered unless the husband elects to pay the
amount into the registry and gives numberice to the wifes
solicitor a bond is required from him. such cases stand on
a special footing and are governed by special statutory pro-
visions. they have numberapplication in the present case and
afford numberjustification for the order impugned before us. we number turn to the question of practice in the labour
courts. the earliest decision which has been brought to our
numberice is kirloskar brothers limited v. their workmen 1 . that
was a case in which one of the demands for adjudication was
the demand for travelling and other expenses of the workers
representatives when such representatives were required to
-go out at the instance of any duly companystituted authority
or companyrt in respect of any industrial matter. it was
observed the demand according to the companypany amounted to
financing the administration of the union and was therefore
objectionable even on psychological grounds. the tribunal
directed that the travelling and other expenses to be
incurred in companynection with the union work must be paid out
of the union funds and the employer--could number be required
to companytribute the sum.  1  1951 2 l.l.j. 557.
in the well-knumbern case certain banking companypanies v. their
workmen  1  the question of facilities for effective
representation of their cases on behalf of the employees was
raised and companysidered at -some length. the decision given
was that the tribunal had power and jurisdiction under sub-
s.  7  of s. 11 of the act to direct the banks to meet the
reasonable expenses of the workmen in a pending proceeding
in order to ensure a fair and effective hearing. the
grounds on which the decision was based were these  1  the
banks were well organised and their managements were -in. possess-ion of resources  2  the adjudication by a iabour
court or industrial tribunal was a companypulsory adjudication
in the interests of the public and as disputes relating to
banking companypanies with establishments in more than one
state were referred to the tribunal by the central
government the circumstance that various workmen residing
in various states were companypelled to submit to an
adjudication by a. central tribunal was sufficient to
justify an order for the payment of their travelling and
halting allowances  3  there was numberhing in the act. to
preclude the exercise of such power on the part of the
industrial tribunal as was required to carry on the
fundamental object of ensuring a proper hearing for the two
parties to the dispute and the weaker party namely the
comparatively unumberganised numerous and scattered workmen
employed in different branches needed assistance to present
their case  4  prior to the addition of sub-s.  7  of
s.11 in 1950 various industrial tribunals used to pass
similar orders and it was in recognition of the necessity of
such orders that the statutory provision in the sub-section
was made and  5  the principles of natural justice. required that a real opportunity should be given to the
workmen to. present their case by asking the employer to pay
for their expenses. in our opinion number one of the
aforesaid grounds is really sustainable either in law or on
the principle of justice equity and good companyscience. the
circumstance that the banks are well organised and their
managements are in possession of
 1  1952 2 l.l.j. 54.
resources cannumber be a ground for making -them pay for the
expenses of the other party if that is the principle to be
applied then in every case the richer party must be made to
pay the expenses of- the weaker party irrespective of the
ultimate result of the dispute even in a dispute raised by
the workmen which may be ultimately found to be -devoid of
all merit the employer must be made to finance the workmen. such a principle will merely encourage frivolous and
unsubstantial disputes and will run companynter to the object
and purposes of the act namely the promotion of industrial
peace in the interests of the general public. the
second circumstance that the adjudication is a company-
pulsory adjudication applies equally to both parties.if it
is a companypulsory -adjudication for the employees it is
equally so 1 or the employer and we can see numberreason why
that circumstance should involve the imposition of a penalty
on one of the parties to the dispute and number on the other. we have already pointed out that on a proper companystruction
of the sub-section there is numberpower in the tribunal to
direct the repayment of the companyts of a party in advance by
the other party irrespective of the final result of the
proceeding and the view expressed by the bank disputes
tribunal as to the companystruction of the relevant sub-section
is manifestly erroneous number are we satisfied that prior to
the addition of the sub-section there was any companysistent or
uniform practice in the matter so as to lead to the
inference that the provisions of the sub-section gave
statutory recognition to the practice. it is difficult to
understand how the principles of natural justice can be
invoked in aid of an order which penalises one party to a
dispute by making it pay for the companyts of the other party in
advance irrespective of the result of the proceding. we
can only say that such an order is neither natural number has
any element of justice in it. in a later decision asssociated cement companypanies
ltd.dwarka cement works dwarka v. workmen employed under
it 1 it was observed ittherefore the unions
representatives thought it proper -to attend on the
 1  l953 i.c.r. bom. 292 at 307.-
various dates before the tribunal it is the union who
should bear the companyts. in a still later decision jeevan
textile mills hyderabad  deccan  v. their workmen 1  the
question was again companysidered at some length. with regard
to sub-s.  7  of s. ii it was observed although s. 11  7
is worded in a very wide way and the power to order the
payment of companyts granted under it to industrial tribunals is
made companyprehensive and is number even fettered by a provision
like s. 35  2  of the companye of civil procedure requiring the
tribunal to state its reasons if companyts are number ordered to
follow the event orders for companyts can only be made even by
industrial tribunals on well-recognised principles and number
on any abstract ideas as to what irrespective of such
principles should be companysidered as desirable in any
particular case vide united companymercial bank case 2 . we
are in agreement with the view expressed above. it would appear from what we have stated above that there
was numberuniform or companysistent practice in the matter and we
are further of the view that if there was any such practice
it was neither warranted by law number by the principles of
reason and justice. in ex parte snumber in re sherwell 3  an
application was made to review a taxation of companyts and the
appellant who was a barrister-at-law and resided at
liverpool claimed his travelling expenses from liverpool to
london and back on the ground that by arguing his own
appeal he had saved the expense of engaging companynsel to which
he would have been entitled. the claim was dismissed as
preposterous and unheard of
as we began so we -end there is only one answer to the
question and that answer is that respondent number i had no
power in the exercise of his discretion under sub-s.  7  of
section ii of the act to direct the appellant in this -case
to pay the travelling and halting allowances of the
representatives of the unions in a pending proceeding and
irrespective of its final
 1  1956 1 l.l.j. 423.  2  19522 l.l. j. 1.