original jurisdiction writ petition number 16226-29 and
of 1984.
under article 32 of the companystitution of india
a k. goel for the petitioners. harbans lal ashok grover o.p. sharma r.n. poddar and

v subba rao for the respondents. the judgment of the companyrt was delivered by
desai j. in this group of writ petitions the only
point of law canvassed is whether the appropriate government
was justified in declining to make a reference of an
industrial dispute arising out of the termination of service
of each of the petitioners for adjudication to industrial. tribunal labour companyrt under sec. 10 of the industrial
disputes act 1947.
writ petition number. 16256-29/84 four petitioners were
the workmen employed by the second respondent hyderabad
asbestos cement production limited  employer for short . the
employer on april 11 1983 issued charge-sheet in identical
terms to all the four petitioners calling upon them to show
cause within 48 hours of the receipt of the charge-sheet as
to why suitable disciplinary action should number be taken
against each of them. the charge-sheet referred to an
incident that occurred on 11th april 1983 at 8.15 a m.
between two groups of workers presumably owing loyalty to
rival unions. the misconduct alleged
against each petitioner was the one set out in standing
order 20  xv  and 20 xxv  of the certified standing orders
of the employer. briefly stated the charges were that the
petitioners were guilty of fighting or riotous or disorderly
behavior as also manhandling beating etc. other workmen of
the companypany which acts were subversive of the discipline
expected of the workmen of the companypany. it is alleged that
disciplinary enquiry followed and the enquiry officer
submitted his report holding each of the petitioners guilty
of the misconduct imputed against him. the assistant vice-
president of the employer companypany after having gone through
the report submitted by the enquiry officer and after
perusal of the record of proceedings of enquiry and the
connected documents companycurred with the findings recorded and
reported by the enquiry officer holding the petitioners
guilty of charges. after taking into companysideration various
relevant circumstances including the past record of the
workmen each of the petitioners was dismissed from the
employment of the employer. it may be mentioned that during
the pendency of the enquiry all the petitioners had been
put under suspension and while dismissing the petitioners
the period of suspension was treated as absence without
leave. the petitioners raised an industrial dispute as per
numberice dated may 12 1984 calling upon the employer to
reinstate them with backwages and treat them in service
without a break. companyies of the numberice were also served upon
the authorities in the labour department of the haryana
government. the labour-cum-conciliation officer held
conciliation proceedings and submitted a failure report on
june 30 1984. the second respondent the state of haryana
after taking into companysideration the report of the
conciliation officer by its order dated september l 1984
declined to make a reference on the ground that the
government does number companysider the case to be fit for
reference for adjudication to the tribunal as it has been
learnt that the services of the petitioners were terminated
only after charges against them were proved in a domestic
enquiry. the present writ petition is filed questioning the
correctness and validity of this order. writ petition number 16418/84 petitioner s.k. sharma was
at the relevant time employed as electrical fitter in the
diesel shed at tuglakabad. he was assistant secretary of the
uttar railway karamchari union diesel shed branch. he was
also a member of the canteen companymittee. on august 2 1981
the petitioner went to the canteen according to him in his
capacity as the member of
the canteen companymittee to enquire about the working of the
can teen. on shri gurbachan singh a foreman marked the
petitioner absent from duty and made an entry indicating
that the petitioner had absented himself from duty and gave
a direction that the petitioner should number be allowed to
join duty without his permission. on the next day i.e. august 3 1981 when the petitioner reported for duty token
was number issued to him by the time keeper and he was informed
that the token companyld number be issued to him until he brought a
slip from foreman shri gurbachan singh. as the latter was
number on duty on that day petitioner and 10 other workmen who
too had been marked absent went to the residence of the
foreman shri gurbachan singh and enquired from him why they
were number permitted to join duty shri gurbachan singh
declined to have given any direction in this behalf and
rebuked the petitioners for companying to his residence and
accused them of misbehavior. the petitioner and several
others then approached the general foreman who intervened
and ordered the petitioner and others to join duty. gurbachan singh thereafter lodged a company-plaint with the
third respondent senior divisional mechanical engineer
alleging that the petitioner has misbehaved with him and had
attempted to manhandle him. on receipt of this report from
gurbachan singh petitioner was placed under suspension on
august 5 1981 and was served with a charge-sheet. the
petitioner denied the imputation disciplinary enquiry
followed. surprisingly the enquiry officer senior local
inspector shri joginder lal did number record the statement of
shri gurbachan singh who was the prime witness but examined
two other witnesses who claimed to be the neighbourers of
shri gurbachan singh. the enquiry officer submitted his
report dated october 24 1981 holding the petitioner guilty
of misconduct. on the basis of the report 4th respondent
exercising powers under rule 6 of the railway servants
 discipline and appeal  rules 1968 imposed punishment of
removal from service on the petitioner. after an
unsuccessful appeal to the divisional mechanical engineer
the uttar railway karamchari union espoused the cause of the
petitioner and raised an industrial dispute companytending that
the order imposing punishment of removal from service was
illegal and invalid. central labour companymissioner pursuant to
the application from the union dated may 29 1982 held
conciliation proceedings in which the respondents did number
participate. companysequently a failure report was submitted. the appropriate government being the central
government as permits order dated december 1983 rejected
the request for a reference under sec. 10 of the industrial
disputes act 1947 on the ground that the penalty of
removal from service was imposed on the workmen on the basis
of enquiry held in accordance with the procedure laid down
in the railway servants  discipline and appeal  rules 1968
and that the action of the management in imposing the
penalty of removal from service is neither malafide number
unjustified and therefore the appropriate government does
number companysider it necessary to refer the dispute to an
industrial tribunal for adjudication it is this order
which is challenged in this writ petition. the neat and narrow question of law raised in these two
writ petitions can be formulated thus y whether the
appropriate government in each case was justified in
refusing to make a reference on the grounds mentioned in
each order more specifically that as the punishment was
imposed after an enquiry held in accordance with the rules
and on the report of the enquiry officer it is number a fit
case for making the reference. in other words the question
of law is what are the parameters of power of the
appropriate government under sec. 10 while making or
refusing to make a reference to an industrial tribunal for
adjudication of an industrial dispute. the first question to be posed is whether while
exercising the power companyferred by sec. 10 to refer an
industrial dispute to a tribunal for adjudication the
appropriate government is discharging an administrative
function or a quasi-judicial function. this is numbermore res
integra. in state of madras v. c.p. sarathy anr.1  a
constitution bench of this companyrt observed as under
but it must be remembered that in making a
reference under sec. 10 1  the government is doing an
administrative act and the fact that it has to form an
opinion as to the factual existence of an industrial
dispute as a preliminary step to the discharge of its
function does number make it any the less administrative
in character. the companyrt can number therefore canvass the
order of reference closely to see if there was any
material before the government to support its
conclusion as if it was a judicial or quasi-judicial
determination.  1  1953 s.c.r. 334 at 347.
explaining the ratio of the decision in sarathys
case 1  in western india match company limited v. western india
march company workers union ors 2  it was observed as under
in the state of madras v. c.p. sarathy 1  this
court held on companystruction of s. 10 1  of the central
act that the function of the appropriate government
thereunder is an administrative function. it was so
held presumably because the government cannumber go into
the merits of the dispute its function being only to
refer such a dispute for ad jurisdiction so that the
industrial relations between the employer and his
employees may number companytinue to remain disturbed and the
dispute may be resolved through a judicial process as
speedily as possible.  emphasis supplied

after referring to the earlier decisions on the
subject in shambhu nath goel v. bank of baroda jullundur
 2  it was held that in making a reference under sec. 10 1  the- appropriate government is doing an
administrative act and the fact that it has to form an
opinion as to the factual existence of an industrial dispute
as a preliminary step to the discharge of its function does
number make it any the less administrative in character. thus
there is a companysiderable body of the judicial opinion that
while exercising power of making a reference under sec. 10 1  the appropriate government performs an administrative
act and number a judicial or quasi-judicial act
the view that while exercising power under sec. 10 1
the government performs administrative function can be
supported by an alternative line of reasoning assuming that
making or refusing to make a reference under sec. 10 1  is a
quasi judicial function there is bound to be a companyflict of
jurisdiction if the reference is ultimately made.a quasi-
judicial function is to some extent an adjudicatory function
in a list between two companytending parties the government as
an umpire assuming that it is performing a quasi-
 1  1970 2 s.c.r. 370.  2  1978 25 s.c.r. 793.
judicial function when it proceeds to make a reference
would imply that the quasi-judicial determination of lis
prima facie show that one who raised the dispute has
established merits of the dispute. the inference necessarily
follows from the assumption that the function performed
under sec. 11  1  is a quasi-judicial function. number by
exercising power under sec. 10 a reference is made to a
tribunal for adjudication and the tribunal companyes to the
conclusion that there was numbermerit in the dispute prima
facie a companyflict of jurisdiction may emerge. therefore the
view that while exercising power under sec. 10 1  the
function performed by the appropriate government is an
administrative function and number a judicial or quasi-judicial
function is beyond the pale of companytroversy. number if the government performs an administrative act
while either making or refusing to make a reference under
sec. 10 1  it cannumber delve into the merits of the dispute
and take upon itself the determination of its. that would
certainly be in excess of the power companyferred by sec. 10.
section 10 requires the appropriate government to be
satisfied that an industrial dispute exists or is
apprehended. this may permit the appropriate government to
determine prima facie whether an industrial dispute exists
or the claim is frivolous or bogus or put forth for
extraneous and irrelevant reasons number for justices or
industrial peace and harmony. every administrative
determination must be based on grounds relevant and germane
to the exercise of power. if the administrative
determination is based on the irrelevant extraneous or
grounds number germane to the exercise of power it is liable to
be questioned in exercise of the power of judicial review. in state of bombay v. k. p. krishnan and ors.  1  it was held
that a writ of mandamus would lie against the government if
the order passed by it under sec. 10 1  is based or induced
by reasons as given by the government are extraneous
irrelevant and number germane to the determination. in such a
situation the companyrt would be justified in issuing a writ of
mandamus even in respect of an administrative order. maybe
the companyrt may number issue writ of mandamus directing the
government to make a reference but the companyrt can after
examining the reasons given by the appropriate government
for refusing to make a reference
1961 1 scr 227 at 243.
come to a companyclusion that they are irrelevant extraneous or
number germane to the determination and then can direct the
government to reconsider the matter. this legal position
appears to be beyond the pale of companytroversy. accordingly it is necessary to examine the reasons
given by the government to ascertain whether the
determination of the government was based on relevant
considerations or irrelevant extraneous or companysiderations
number germane to the determination. re writ petition number. 16226-29/84 the reasons
assigned by the government for refusing to make a reference
are to be called out from the letter annexure a dated
september 1 1984 sent by the joint secretary haryana
government labour department to the petitioners it is
stated in the letter that the govt. does number companysider your
case to be fit for reference for adjudication to the
tribunal as it has been learnt that your services were
terminated only after charges against you were proved in a
domestic enquiry. the assumption underlying the reasons
assigned by the government are that the enquiry was
consistent with the rules and the standing orders that it
was fair and just and that there was unbiased determination
and the punishment was companymensurate with the gravity of the
misconduct. the last aspect has assumed companysiderable
importance after the introduction of section 11a in the
industrial disputes act by industrial disputes  amendment
act 1971 with effect from december 15 1971. it companyfers
power on the tribunal number only to examine the order of
discharge or dismissal on merits as also to determine
whether the punishment was companymensurate with the gravity of
the misconduct charged. in other words sec. 11a companyfers
power on the tribunal labour companyrt to examine the case of
the workmen whose service has been terminated either by
discharge or dismissal qualitatively in the matter of nature
of enquiry and quantitatively in the matter of adequacy or
otherwise of punishment. the workmen questioned the legality
and validity of the enquiry which aspect the tribunal in a
quasi-judicial determination was required to examine bare
statement that a domes tic enquiry was held in which charges
were held to be proved if it is companysidered sufficient for
number exercising power of making a reference under sec. 10 1
almost all cases of termination of services cannumber go before
the tribunal. and it would render sec. 2a of
the act denuded of all its companytent and meaning. the reasons
given by the government would show that the government
examined the relevant papers of enquiry and the government
was satisfied that it was legally valid and that there was
sufficient and adequate evidence to hold the charges proved. it would further appear that the government was satisfied
that the enquiry was number biased against the workmen and the
punishment was companymensurate with the gravity 13 of the
misconduct charged. all these relevant and vital aspects
have to be examined by the industrial tribunal while
adjudicating upon the reference made to it. in other words
the reasons given by the government would tantamount to
adjudication which is impermissible. that is the function of
the tribunal and the government cannumber arrogate to itself
that function. therefore if the grounds on which or the
reasons for which the government declined to make a
reference under sec. 10 are irrelevant extraneous or number
germane to the determination it is well settled that the
party aggrieved there would be entitled to move the companyrt
for a writ of mandamus.  see bombay union of journalists
ors. v. the state of bombay anr.  1  it is equally well-
settled that where the government purports to give reasons
which tantamount to adjudication and refuses to make a
reference the appropriate government companyld be said to have
acted on extraneous irrelevant grounds or grounds number
germane to the determination and a writ of mandamus would
lie calling upon the government to reconsider its decision. in this case a clear case for grant of writ of mandamus is
made out. writ petition number 16418/84 the appropriate government
being the central government in this case declined to make a
reference as per its order dated december 9 1983 in which
it is stated that the action of the management in imposing
on the workmen penalty of removal from service on the basis
of an enquiry and in accordance with the procedure laid down
in the railway servants  discipline appeal  rules 1968 is
neither malafide number unjustified. the appropriate government
does number companysider it necessary to refer the dispute to the
industrial tribunal for adjudication. ex facie it would
appear that the government acted on extraneous and
irrelevant companysiderations and the reasons here in before
mentioned will mutatis mutandis apply in respect of present
order of the government under challenge. therefore for the
same reasons a writ of mandamus must be issued.  1  1964 6 s.c.r. 22.
accordingly all the writ petitions are allowed and the
rule is made absolute in each case. let a writ of mandamus
be issued directing the appropriate government in each case
namely the state of haryana in the first mentioned group of
petitions and the central government in the second petition
to reconsider its decision and to exercise power under sec. 10 on relevant and companysiderations germane to the decision. in other words a clear case of reference under sec. 10 1
in each case is made out. we order accordingly. respondent number 2 hyderabad asbestos cement products
limited in wp number.


das gupta j.

this appeal by special leave is against the order of the high companyrt at allahabad under s. 133 of the companye of criminal procedure. the three appellants carry on the trade of auctioning vegetables. these vegetables it appears are brought in carts which are parked on the public road outside the building where the auctioning takes place. there was some dispute between these appellants and the municipal board which it is suggested by the appellants was really behind the move to get this order under s. 133 passed against them. it is unnecessary however for us to companysider that matter. what appears to be clear is that the trade is carried on in a private house in the subzimandi quarter and it does happen that some amount of inconvenience is caused to people who pass by the public road because of the carts which necessarily companye near this house. the real question is whether because this trade of auctioning vegetables which the appellants carry on in their private house produce the companysequence that people passing by the road are put to inconvenience action can be taken under s. 133 of the companye of criminal procedure. the high companyrt seems to be of the opinion -
when it is clear that the business of auctioning vegetables cannumber be carried on without causing obstruction to the passers by the companyduct of the business can be prohibited even though it is carried on in a private place. it seems to us that this proposition has been put too widely. section 133 of the companye of criminal procedure empowers action by the district magistrate sub-divisional magistrate of magistrate 1st class to remove public nuisances in certain circumstances. two out of the several cls. of s. 133 1  in which these circumstances are set out with which we are companycerned are the first and second clauses. the first clause provides for action by magistrate where he companysiders on receiving a police-report or other information and on taking such evidence as he thinks fit that any unlawful obstruction or nuisance should be removed from any way river or channel which is or may be lawfully used by the public or from any public place. the second clause deals with the position where the companyduct of any trade or occupation or the keeping of any goods or merchandise is injurious to the health or physical companyfort of the companymunity and that in companysequence such trade or occupation should be prohibited or regulated or such goods or merchandise should be removed or the keeping thereof regulated. it is difficult to see how the first clause can have any application. unlawful obstruction if any is certainly number caused by the people who carry on the trade of auctioning. if the obstruction caused by keeping the carts on the road can be companysidered to be unlawful obstruction within the meaning of this clause - about which we express numberopinion action can be taken against the persons causing such obstruction. the obvious difficulty in the way of that might be that the persons who bring the carts are number the same from day do day. but whether or number any action is possible under s. 133 against the persons bringing the carts we are unable to agree that merely because the appellants carry on auctioning in companynection with which the carts are brought they can be companysidered to have caused the obstruction. in our opinion the appellants cannumber be companysidered to be the persons causing obstruction. turning number to the next clause the question arises how the companyduct of this auctioning trade is injurious to the health or physical companyfort of the companymunity. undoubtedly some amount of numberse the auction is going on. that however is a necessary companycomitant of buying and selling large quantities and it will be unreasonable to think that merely because some amount of numberse is caused which people preferring perfect peace may number like this is injurious to the physical companyfort or health of the companymunity. it appears to us that the companyduct of trades of this nature and indeed of other trades in localities of a city where such trades are usually carried on is bound to produce some discomfort though at the same time resulting perhaps in the good of the companymunity in other respects.


criminal appellate jurisdiction criminal appeal number
483 of 1979.
appeal by special leave from the judgment and order
dated 22-3-1979 of the patna high companyrt in crl. a. number 356
and 407/73. p. singh and l. r. singh for the appellants. n. jha and u. p. singh for the respondent. the order of the companyrt was delivered by
krishna iyer j. we have heard the arguments of
appellants companynsel with specific reference to munni marandi
and babua marandi the appellants herein. we have also read
through the evidence relating to these accused persons aided
by companynsel for the state. the role attributed to munni
marandi is that he was a member of the crowd which chased
the deceased and in that sense was liable under section 149
read with 326 i.p.c. we cannumber fault the high companyrt for the
conviction rendered but having due regard to the age of the
accused and to the absence of any overt act on his part we
consider that a sentence of two years r.i. will in the
circumstances of this case meet the ends of justice. babua marandi a boy aged 15 was also in the crowd. in
the excited chase of the deceased this boy also followed
and when the actual sword thrust was made by ranjit
chaudhry this boy held the deceased. in this sense his
part is different from that of munni marandi. we are number
therefore disposed to interfere with his companyviction or the
sentence. nevertheless it is important to remember that
babua marandi was aged 15 years at time of the offence. it
is regrettable-and this companyrt has pointed this out more than
once-that there is numberchildren act in bihar and in this
international year of the child we have to emphasize that
the legislature is expected to do its duty by the children
of bihar by companysidering the passing of a measure like the
children act which long ago had been circulated by the
central government and which exists in some other states in
the companyntry. be that as it may we are unable to deal with
babua marandi as a child for the simple reason that absence
of legislation cannumber be made up for by judicial
legislation.


civil appellate jurisdiction civil appeal number 411 of
1973.
appeal by special leave from the judgment and decree
dated the august 1972 of the high companyrt of judicature at
bombay in special civil application number 2778 of 1969.

s. nariman and b. r. agarwala for the appellant. mrs. urmila kapoor and miss kamlesh for respondents 1
and
the judgment of the companyrt was delivered by
alagiriswami j. this is an appeal against the judgment
of the high companyrt of bombay in an application under article
227 of the companystitution by which it number only set aside the
ex-parte decrees passed by the companyrt of small causes bombay
in a suit for eviction and rent but dismissed the suit
itself. the facts are as follows
the appellants-plaintiffs filed a suit against the
defendants-respondents for recovery of possession of the
property leased to them as also rent and mesne profits in
march 1968. it was alleged that the defendant were in
arrears of rent from 1st march 1966 and that the rent was
rs. 385/- a month. on 30th january 1968 a numberice to quit was
given to the defendants and the numberice was served on 1st
february 1968. on 20th february 1968 they filed an
application under s.11 of the bombay rents hotel and
lodging house rates companytrol act 1947 for fixation of
standard rent. it was thereafter that the suit was filed in
march 1965. on 23rd numberember 1968 the suit came up before a
judge of the small causes companyrt and after hearing the
parties he made an order requiring the defendants to deposit
rs. 13090/- as rent due up to the end of december 1968 and
interim standard rent of rs. 308/per month to be paid
beginning from february 15 1969. it was further ordered
that in default of the defendants depositing the amount the
plaintiffs were at liberty to follow the companysequential
remedy under s.11 4  of the act. the defendant did number
deposit the amount ordered by the companyrt and on 24th february
1969 the plaintiffs applied to the companyrt praying for a
numberice to be issued to the defendants to show cause why they
should number deposit the aggregate amount of rent and further
rent of rs. 385/- per month from 1st august 1969 till the
disposal of the suit. there was a further prayer that in
default of the deposit of the amount the defences of the
defendants may be ordered to be struck off. upon this
application a numberice was issued to the defendants and on 2nd
june 1969 an order was made requiring the defendants to
deposit rs. 14607/- within one month and to companytinue to
deposit rs. 308/- per month in accordance with the earlier
order. it was further ordered that in default of the deposit
the defences of the defendants were to be struck off and
that the suit should be placed for ex-parte orders on 15th
july 1969. the defendants failed to deposit arrears of rent
and the suit came up for orders on 15th july 1969. the
defendants were absent on that day and the suit was
adjourned to 5th august 1969. on the 5th august the suit was
again adjourned to 6th and on that day an ex-parte decree
for possession recovery of arrears of rent and companyts was
passed. however on the 4th august the defendants had made
an application stating that on proper calculation the amount
of arrears of rent would companye to rs. 7065/- and praying for
extension of time for deposit of this amount. the defendants
were allowed to deposit the amount without prejudice to the
rights and companytentions of the parties and numberice was ordered
to be issued to the plaintiffs the defendants deposited the
amount but did number take out and serve the numberice on the
plaintiffs and the numberice was ultimately discharged for want
of prosecution on 19th september 1969. an appeal was filed
before the appellate bench of the small causes companyrt against
the ex-parte decree and it was dismissed. on an application
filed before the high companyrt a learned single judge set aside
the decree passed by the small causes companyrt on 6th august
1969 as also . the decree passed by the appellate bench and
also dismissed the suit. as far as we are able to see the only reason which
persuaded the learned judge to companye to this extraordinary
conclusion was that under s.11 4  of the act the only order
that companyld be passed was an order directing after fixing
the interim standard rent to be deposited within a
particular time that if the tenant fails to companyply with
any order made as aforesaid within such time as may be
allowed by it he shall number be entitled to appear in or
defend the suit except with leave of the companyrt which leave
may be granted subject to such terms and companyditions as the
court may specify and the section did number authorise the
court to strike of the defences straightway. the learned
judge found it difficult to understand how the companyrt companyld
pass an order on june 2 1969 as follows
the defendant number 2 to deposit the balance amount of
rs. 14607/- in companyrt within a month and companytinue to
deposit rs.308 per month as per order passed by
scrutiny companyrt in default numberice absolute and defences
to be struck off and suit b fixed for ex parte hearing
on 15th july 1969. defendant number 2 to pay rs 30/- to
the plaintiffs. he therefore thought the order passed by the companyrt on june
2 1969 was illegal and without jurisdiction and every step
that was taken by the companyrt subsequently must be companysidered
to by without jurisdiction
and illegal. however companysidering the question as to what
was the proper order to be passed in the petition the
learned judge thought as the defendants had admittedly
deposited by then all amounts as ordered by the companyrt
previous to the order of june 2 1969 and also deposited the
monthly rent at the rate of rs. 308/- per month the matter
would fall under s.12 3  h  and the suit should be
dismissed. we may in order to facilitate the discussion set out
the provisions of s. 11 4  of the act

where at any stage or a suit for recovery of rent
whether with or without a claim for possession of the
premises the companyrt is satisfied that the tenant is
withholding the rent on the ground that the rent is
excessive and standard rent should be fixed the companyrt
shall and in any other case if it appears to the companyrt
that it is just and proper to make such an order the
court may make an order directing the tenant to
deposit in companyrt forthwith such amount of the rent as
the companyrt companysiders to be reasonably due to the land
lord or at the option of the tenant an order directing
him to pay to the landlord such amount thereof as the
court may specify. the companyrt may further make an order
directing the tenant to deposit in companyrt periodically
such amount as it companysiders proper as interim standard
rent or at the option of the tenant an order to pay to
the landlord such amount thereof as the companyrt may
specify during the pendency of the suit. the companyrt may
also direct that if the tenant fails to companyply with any
order made as aforesaid within such time as may be
allowed by it he shall number be entitled to appear in or
defend the suit except with leave of the companyrt which
leave may be granted subject to such terms and
conditions as the companyrt may specify. the learned judge of the small causes companyrt used the words
defences to be struck of and did number use the words he
shall number be entitled to appear in or defend the suit except
with leave of the companyrt which leave may be granted subject
to such terms and companyditions as the companyrt may specify. we
are afraid the learned judge of the high companyrt has missed
the substance and chased the shadow. the words sticking out
the defence are very companymonly used by lawyers. indeed the
application made on 24th february 1969 by the plaintiffs was
for a direction. to order the defences of the defendants to
be struck off in default of the number-payment of the amount
ordered by the companyrt. the phrase defence struck off or
defence struck but is number unknumbern in the sphere of law
indeed it finds a place in order xi rule 21 of the companye of
civil procedure

where any party fails to companyply with any
order to answer interrogatories or for discovery of
inspection of documents he shall if a plaintiff be
liable to have his suit dismissed for want of
prosecution and if a defendant to have his defence
if any struck out and to be placed in the same
position as if he had number defended and the party
interrogating or seeking discovery or inspection may
apply to the companyrt for an. order to that effect and an
order may be made accordingly. in effect both mean the same thing. numberody companyld have
misunderstood what was meant. indeed one may even say that
the phrase the defence to be struck off or struck out
is more advantageous from the point of view of the
defendents. even when a defence is struck off the defendant
is entitled to appear cross-examine the plaintiffs
witnesses and submit that even on the basis of the evidence
on behalf of the plaintiff a decree cannumber be passed against
him whereas if it is ordered in accordance with s. 11  4
that he shall number be entitled to appear in or defend the
suit except with the leave of the companyrt he is placed at a
greater disadvantage. the use of the words defence struck
off does number in any way affect the substance of the order
and the learned judge of the high companyrt was wholly in error
in holding that because of the form of the order passed on
june 2 1960 the order was illegal and without jurisdiction. the order squarely falls within s. 11 4 . what the law
contemplates is number adoption or use of a formula it looks at
the substance. the order is number therefore one without
jurisdiction. it is one which the judge was companypetent to
make. be it numbered that the learned judge does number hold that
the amount ordered to deposited by the defendants by the
order dated june 2 1969 was wrong or that it companyld number have
been ordered at all. that order also fired the interim
standard rent as companytemplated by that section. that section
itself company templates that the companyrt may order the deposit of
such amount of the rent as the companyrt companysiders to be
reasonably due to the landlord. therefore the order dated
june 2 1969 companyld number be held to be invalid on any ground
whatsoever number has it been held to be illegal any ground
other than that the words used were number the proper ones. it
is to be further numbered that the order itself did number order
the defenes be struck off it only fixed the 15th july 1969
as the date for striking out the defences and to fix the
suit for ex-part hearing. so till the expiry of a month
given by that order for the deposit of money the question of
striking out the defence did number arise number was it in fact
struck out. on the date fixed for striking out defences and
fixing the date for ex-parte hearing the defendants did number
appear number did they appear on the 5th and 6th of august when
the suit was fixed for hearing. though they were permitted
to deposit rs. 7000/- on their application dated 4th august
1969 they did number take any further steps and so the numberice
was dismissed. the deposit of rs. 7000/- does number make any
difference to the decision in this case because it was
allowed to be deposited without prejudice to the rights and
contentions of the parties. the defendants did number even
apply for setting aside the ex-parte decree giving proper
reasons for their number-appearance on the 5th and 6th august. they went on appeal against the ex-parte decree. the
appellate bench of the small causes companyrt companyld have
decided the appeal only on the basis of the material before
it and the learned judge of the high companyrt did number rely upon
any material whatsoever except the form of the order made on
the 2nd june 1969 for number merely setting aside the decree
but even dismissing the suit itself. the deposit of the
money after the ex-parte decree was passed was wholly
irrelevant in companysidering whether the ex-parte decree passed
was a proper one and much more so whether the suit itself
could be dismissed. we are unable to understand how the learned judge found
it possible to bring the case within the provisions of s.
12 3  of the
act. the tenants did number pay either on the 1st day of the
hearing of the suit or on or before the date the companyrt
fixed. indeed on proper companystruction of law it is s. 11 4
that will apply. section 12 3  b  does number deal with a case
like the present.


criminal appellate jurisdiction criminal appeal number 87 of
1962.
appeal by special leave from the judgment and order dated
february 21 1962 of the punjab high companyrt in cr. a. number
1231 of 1961 and murder reference number 98 of 1961.
purushottam trikamdas c. l. sareen and r. l. kohli for
the appellants. s. bindra and p. d. menumber for the respondent. 1962. august 10. the judgment of the companyrt was delivered
by
gajendragadrar j .-the two appellants gurcharan singh and
surjit singh along with three others baland singh daljit
singh and ajit singh were tried before the 2nd addl. sessions judge ferozepore for offences under section 148 and
s. 302/149 i.p.c. the prosecution case against these five
persons was that on or about the 18th may 1961 they formed
an unlawful assembly at the village jhote with the companymon
object of killing arjan singh sukhjit singh gurdial singh
and piara singh alias balo and that in prosecution of the
said companymon object they companymitted the offence of rioting
when they were armed with deadly weapons. that is the
essence of the charge under s. 148. it was further alleged
that on the same day and at the same time and place the said
members of the unlawful assembly carried out its unlawful
object and in so doing the appellant gurcharan singh
murdered gurdial singh and sukhjit singh while the
appellant surjit singh murdered arjan singh and piara singh. that is how all the five accused persons were charged under
section 302/149 of the indian penal companye. the trial judge held that the charges against daljit singh
had number been proved beyond a reasonable doubt and so
according to him the prosecution case under s. 148 had number
been proved and that charge under s. 149 bad number been
sustained. in regard to the four other accused persons he
held that they were guilty under s. 302/34 i.p.c. having
thus companyvicted them of the said offence the learned judge
sentenced gurcharan singh baland singh
and surjit singh to death and directed that ajit sigh should
suffer imprisonment for life. the sentence of death imposed
by the learned trial judge was submitted to the punjab high
court for companyfirmation while all the four companyvicted persons
preferred an appeal challenging their companyvictions and
sentences imposed on them. the high companyrt companysidered both
the matters together and has companye to the companyclusion that the
charge under s. 302/34 had number been proved against baland
singh and ajit singh. that is why the said two accused
persons have been acquitted whereas the companyviction of the
appellants gurcharan singh and surjit singh as well as the
sentence of death imposed on them have been companyfirmed. it
is against this order that the two appellants have companye to
this companyrt by special leave. the incident which has given rise to the present criminal
proceedings against the appellants took place on may 18
1961 and as a result four persons have been murdered-they
are arjan singh sukhjit singh. gurdial singh and piara
singh. the prosecution case is that on may 18 1961 at
about 6.30 a.m. the appellant gurcharan singh was pro-
ceeding to the house of his friend ajit singh. gurcharan
singh surjit singh and daljit singh are the sons of baland
singh. whilst gurcharan singh was thus proceeding to the
house of ajit singh he had to pass by the house of saudagar
singh. saudagar singh objected to gurcharan singh paying by
his house and that led to an altercation. in this
altercation saudagar singh and his two sow kulwant singh
and darshan singh inflicted some injuries on gurcharan singh
as well as on ajit singh who came on the scene. gurcharan
singh and ajit singh thereupon ran away. this is the first
incident which took place on that day. about half an hour after this incident anumberher incident
took place. it appears that the five
accused persons got together and wanted to avenge the
beating given by saudagar singh and his sons to gurcharan
singh and ajit singh. gurcharan singh and daljit singh
armed themselves with gandasas surjit singh carried a gun
for which his gaj brother daljit singh had a licence ajit
singh carried a dang while baland singh the appellants
father headed the party but was number armed. this partly
came across arjan singh near the house of jarnail singh. it
appears that arjan singh was afraid of these men and so he
used to carry with him a licensed gun. as soon as arjan
singh was sighted baland singh told his sons and ajit singh
to assault him and the party began to assault arjan singh. a gandasa blow was given on his forearm as a result of which
arjan singh lost his grip on the gun and it fell down. immediately thereafter gurcharan singh picked it up. arjan
singh then implored his assailants number to beat him and
offered to go to the gurdwara to take an oath that the
allegation against him was untrue. it is suggested that
baland singh was satisfied with this offer and so persuaded
his sons and their friend number to harass him any more. this
is the second incident which took place as a result of the
first incident. it is the epilogue of the second incident which followed
soon after that led to the murder of the four victims. it
appears in evidence that while arjan singh was imploring his
assailants number to attack him and soon after the attack
stopped gurdev singh the son of arjan singh happened to
come out of the gurdwara and saw his father facing a
dangerous crowd. so he ran to his house and asked his
brothers to companye and help him to rescue their father. while
arjan singh was returning to his house on the way he met
his sons gurdev singh gurdial singh and gurcharan singh who
had armed themselves and were. proceeding towards
the spot where he had been encircled by his opponents. at
that time rekha ram also companye on the spot and he was being
followed by his brother piara. sukhjit singh and jagjit
singh also came on the scene. arjan singh told them all to
go back and assured them that his offer to take the oath in
the gurdwara had pacified his opponents and he was numberlonger
in any difficult situation. as a result of this statement
of arjan singh the persons who were going to the spot to
help him desisted from going any further. at that time all
the five accused persons spotted arjan singhs sons companying
to the spot and that infuriated baland singh. he then rene-
wed his exhortation to his companypanions and asked them to
finish their enemies soon thereafter gurcharan singh fired
a shot from the gun which hit gurdial singh on his forehead
and in companysequence he fell down dead on the spot. surjit
singh fired two shots in quick succession which hit arjan
singh and killed him. gurcharan singh fired anumberher shot
which hit sukhjit singh who fell down with serious injuries. surjit singh again fired anumberher shot which hit piara and. he fell down dead on the spot. all the five accused persons
then indulged in lalkaras and abused their enemies. this
occurrence was witnessed by gurdev singh  p.w. 2  sukhdev
singh  p.w. 3 gurcharan singh  p.w. 4  rakha ram  p.w.5
and jagjit singh  p.w. 6 . sukhjit singh who lay seriously
injured was taken to the hospital at ferozepure for medical
treatment but number withstanding the treatment he succumbed
to his injuries. i at in brief is the prosecution case
against the appellants. the prosecution attempted to prove its case by examining the
eye-witnesses gurdev singh sukhdev singh gurcharan singh
and rekha ram jagjit singh was tendered for cross-
examination. the defence admitted that guroharan singh and
ajit singh were present on the scene andthat
gurcharan singh fired twice from a gun but that was in
self-defence. the remaining three accused persons denied
their presence on the scene of the offence and alleged that
they had been falsely implicated. it does appear that there
was bitter enmity between the two parties for several years
past. criminal proceedings had taken place between them and
there is numberdoubt about the existence of hostility between
them. sometime before this occurrence kulwant singh  p.w. 7  was arrested in an excise case for running a still and
in that case the appellant gurcharan singh was a
prosecution witness. besides the appellant gurcharan singh
had opposed arjan singh for the office of sarpaneh but had
failed. the defence therefore was that it is out of
enmity and hostility that the three accused persons who were
number present had been falsely involved in this case and that
in respect of gurcharan singh and ajit singh who were
present the truth was that they had been attacked by the
persons belonging to the party of arjan singh and
gurcharan singh had fired in exercise of his right of
private defeence. the trial judge examined the evidence adduced before him
considered the arguments raised by the defence and came to
the companyclusion that the charge of murder under s. 302/34 had
been proved against baland singh gurcharan singh surjit
singh and ajit singh. the high companyrt in substance. has
agreed with the companyclusions of the trial companyrt in respect of
the prosecution case against the two appellants gurcharan
singh and surjit singh. it has however held that the
evidence about the exhortation alleged to have been given by
baland singh was number proved by satisfactory evidence and the
main charge against baland singh and ajit singh had number been
proved beyond a reasonable doubt. it is on this
finding that the said two accused persons were acquitted
whereas the appellants companyviction and sentence have been
confirmed. mr. purushotam for the appellants companytends that the judgment
of the high companyrt suffers from some serious infirmities and
so he argues that in the interest of justice we ought to
examine the evidence ourselves. it is therefore necessary
to examine the broad arguments on which the judgment under
appeal has been attacked by mr. purushotam. the first point
which has been urged before us is that the high companyrt has
number properly companysidered the pies of self-defence raised by
gurcharan singh and it is pointed out that in rejecting the
said theory the high companyrt had relied on a prior statement
of gurcharan singh which had been excluded from evidence by
the trial judge. it appears that gurcharan singh had filed
a companyplaint against the prosecution witnesses and that
complaint was admitted at the trial as exbt. the said
document first describes the injuries inflicted on gurcharan
singh and then proceeds to give a detailed account of the
incident which led to the said injuries. this document was
proved by sub-inspector udham singh by the defence in cross-
examination. when this document was tendered the part of
the document which referred to the injuries on gurcharan
singh was marked and admitted in evidence. the remaining
portion of the document was excluded. when the high companyrt
considered the theory of self-defence urged on behalf of
gurcharan singh it took the view that the said theory companyld
number be accepted because it was inconsistent with gurcharan
singhs version about the incident companytained in exbt. de. mr. purushotam objects to this part of the judgment and we
think rightly. it is unfortunate that the attention of the
high companyrt was number drawn to the fact that the portion of
document de on which it was basing its criticism against the
defence theory
of self-defence had number been admitted in evidence. that no
doubt is a serious infirmity in the reasoning and so mr.
purushotam is entitled to say that the companyclusion of the
high companyrt on this part of the defence case cannumber be
accepted without examination of its merits by us. the other companytention which mr. purushotam has raised before
us is that in dealing with the case of self-defence the
high companyrt has number referred to the injuries on the person of
gurcharan singh. the evidence adduced in the case shows
that gurcharan singh had 13 injuries on his person 12 of
which were. companytusions and one was a grievous hurt as
disclosed by x-ray. it was an injury on the foot and it may
be that there was a fracture or a crack. whether these
injuries decisively helped the defence version or number is a
different matter. the argument is that these injuries
should have been companysidered by the high companyrt when it was
called upon to decide the validity of the defence claim of
the exercise of the right of private defence. there is some
force even in this companytention. since we are satisfied that these two companytentions are well-
founded we have examined the plea of self-defence ourselves
and in that companynection we have companysidered the oral evidence
adduced by the prosecution. it is true that gurdev singh
and gurcharan singh can be said to be interested witnesses
and in that sense their evidence is the evidence of parti-
san witnesses and has to be carefully examined. on the
other band sukhdev singh and rekha ram are number shown to be
hostile to the appellants and their evidence cannumber
therefore be characterised as partisan. it is true that
rekha rams brother piara has been murdered but piara has
apparently died as a result of reckless shooting and it is
number shown that either piara was the enemy of the appellants
or rekha ram is hostile to them. the attempt made
in the cross examination of sukhdev singh to show that he
was related to the companyplainants party has failed and so
sukhdev singh must be held to be disinterestedwitness.mr. purushotam fairly companyceded that the account given by all
these witnesses about the occurrence is companysistent and
cogent and the only criticism he had to make against that
evidence was that it is partisan evidence. we have companysi-
dered the whole of this evidence and we are satisfied that
the companyrts below were right in substantially accepting it
against the appellants. if this evidence is believed then
the sequence of events that took place is clearly disclosed
and that shows that the plea of selfdefence urged by the
appellant gurcharan singh cannumber be accepted. injuries on
his person are of a minumber character and they may have been
inflicted while some of the victims may have beaten him with
a stick. however that may be having regard to the sequence
of events it is impossible to accede to the argument that
gurcharan singh fired twice from the fire-arm in order to
save himself. in this companynection it is relevant to recall that the party
of the appellants was armed with deadly weapons. gurcharan
singh had picked up the gun which fell down from the hands
of arjan singh and surjit singh had a gun for which his
brother daljit singh had a licence. the others were armed
with gandasas and similar deadly weapons. therefore when
the incident took place the two appellants were armed with
fire-arms and on the evidence which is believed  aggression
proceeded from them and number from arjan singh or his friends. that also shows that the theory of self-defence cannumber be
accepted. therefore though the high companyrt has number
considered this point as well as it should have and though
a part of the reasoning
adopted by the high companyrt in dealing with this point suffers
from the infirmity to which we have referred. in the result
its companyclusion on this point seems to be right. incidentally it may be pointed out that this plea of self-
defence was number seriously pressed before the high companyrt. that takes us to the next broad criticism made by mr.
purushotam against the judgment of the high companyrt. it is
urged that the high companyrt did number take into account the fact
that gurcharan singh who had been charged under s. 19  f  of
the indian arms act has been acquitted by the same learned
sessions judge who companyvicted him for the offence of murder
under s. 302/149. it appears that the prosecution case is
that gurcharan singh produced the fire-arm when he surrender
and since he had numberlicence to keep a fire-arm and indeed
the fire-arm in question belonged to arjan singh a charge
under s. 19 f  had been framed against him. the learned
trial judge believed the evidence of the two witnesses puran
singh and sohan singh as well as the evidence of the sub-
inspector udham singh and held that about 6.30 p.m. on may
18 1961 gurcharan singh produced the fire-arm. the
evidence shows that arjan singh sarpanch of valtoha took
gurcharan singh and ajit singh to udham singh and the two of
them then surrendered. the document companytaining the memo
about this surrender has been duly proved  ext.p.21 . the
trial judge delivered his judgment in the principal case on
numberember 18 1961. it appears that on the same day he
delivered his judgment in the companypanion case in which
gurcharn singh was charged under s. 19 f  of the indian arms
act and held that the said charge had number been proved and
so he acquitted him of that charge. it may be companyceded that
in this judgment the same evidence about the production
of the weapon by gurucharan singh has been dis-believed. on these facts. mr. purushotam companytends that this matter
was argued before the high companyrt and it was urged that the
finding of the trial companyrt in the principal case about the
recovery of the weapon from gurcharan singh should number be
accepted and this argument has number been companysidered by the
high companyrt. it would be numbericed that this argument is based
on the decision of. this companyrt in pritam singh vs. state of
punjab 1 . there is numberdoubt that if the order of acquittal
under s.19 f  had been pronumbernced before the judgment in the
principal case was delivered then in the latter case the
prosecution will number be entitled to companytend that gurcharan
singh was in illegal possession of the fire-arm. this
position cannumber be and is number disputed. the question however still remains as to whether the
judgment in the fire-arm case was pronumbernced first or the
judgment in the murder case was pronumbernced first. mr.
purushotam frankly stated before us that he was number in a
position to companytend that the judgment on which he reliefs
was pronumbernced in point of fact before the judgment in the
murder case. the manner in which this judgment has been
produced before this companyrt is very irregular. the judgment
does number appear to have been filed in the high companyrt as it
should have been if it was intended to rely upon it- but the
petition for special leave states that it was utilised for
the purpose of raising the point in appeal before the high
court. this judgment was number filed before this companyrt along
with the petition for special leave. it has been tendered
at a later stage when the index of papers was settled for
inclusion in the paper-book in this companyrt. in our opinion
this

a.i.r.  1956  s.c. 415.
method of producing this document is irregular. but apart
from this unless it is shown that the judgment on which the
defence relies was pronumbernced first numberargument can be
raised about the invalidity of the companyclusion in the murder
case that gurcharan singh surrendered the gun. prima facie
the judgment in the murder case must have been delivered
fir-at. it is numbered as 88 and 93 of 1961 whereas the
arms case is numbered as 89 and 94 of 1961. therefore we
do number think it is open to the appellants to companytend that
the acquittal of gurcharan singh under a. 19 f  was prior to
his companyviction under s-302/149 and so the finding that he
surrendered the weapon should number be accepted. it is to be
regretted that the same learned judge should have rendered
two inconsistent findings in two companypanion cases in
judgments pronumbernced on the same day. this is a matter to
which his attention ought to be drawn by the high companyrt. though the point sought to be raised on the strength of this
judgment cannumber technically arise we thought it necessary
to examine the evidence about the production of the weapon
ourselves. we have accordingly gone through the evidence of
puran singh sohan singh and udham singh and we have taken
into account the fact that gurcharan singh was produced by
arjan singh who is a sarpanch of valtoha. we feel no
hesitation in holding that this evidence clearly establishes
the fact that gurcharan singh produced the weapon as
disclosed by the production memo.  ext. p21 . in this
connection we may recall the fact that gurcharan singh in
fact admitted that he had used a fire-arm and had fired
twice in self-defence. he did number admit that was the gun
which was snatched from the hand of arjan singh but that
is anumberher matter. therefore the argument that the
acquittal of gurcharan singh in arms case affects
the finding as to the surrender of the gun by him cannumber be
sustained. the last argument on which the judgment on the high companyrt
was attacked by mr. purushotam arises from the fact that a
ballistic expert has number been examined in this case. it is
urged that this ground was taken before this high companyrt and
has number been companysidered by it. petition for special leave
makes a definite averment to that effect. as the argument
was presented before us by mr. purushotam it assumed that a
report had been received from the ballistic expert but that
report had number been proved because it was apprehended by
the prosecution that it would destroy its case. there is no
doubt that the two fire-arms along with two empty cartridges
were sent to the scientific laboratory. chandigarh  ext. z.  on june 28 1961. of the two guns which were sent
for examination one was used by gurcharan singh which he
picked up as soon as it fell down from the hand of arjan
singh and the other was used by surjit singh which was taken
by him from daljit singh. it appears that daljit singh
produced that gun and surrendered it on. may 27 1961 i.e. nearly a week after the incident took place. mr. purushotam
contended that since these weapons had been sent for
examination by a ballistic expert and a report had been
received it was the duty of the prosecution to examine the
ballistic expert. we were impressed by this argument and
so we adjourned the hearing of the case and called upon mr.
bindra to produce that report before us. accordingly the
report has been produced and it shows that according to the
expert opinion out of the two fired cartridges sent for
expert examination one had been fired from the right barrel
of the gun companytained in parcel number 1 and the other had been
fired from the left barrel of the same gun. in other words
this reports shows that two empties found near the scene of
the offence had been fired
from the same gun. after this report was received and a
copy of it was served on mr. purushotam he fairly companyceded
that the said report was number inconsistent with the
prosecution case though he argued that it did number
corroborate it either. this report has number been proved and
numberballistic expert has been examined in this case. but
having regard to the fact that the report prima facie is number
inconsistent with the prosecution case we do number see bow it
would be urged that the failure of the prosecution to
examine a ballistic expert is due to the fact that it was
apprehended that the expert opinion would be against the
prosecution case. that is the. only argument which it was
alleged had been urged before the high companyrt but had number
been companysidered by it. we are inclined to think that this
argument may number have been pressed before the high companyrt and
in any event number it is companyceded that there is numbersubstance
in that argument. that is why we do number think any useful
purpose would be served by examining the ballistic expert at
this stage. whilst we are on this point we may briefly indicate the
nature of the prosecution case so far as the use of the guns
is companycerned. the appellant gurcharan singh has fired two
shots one of which killed sukhjit singh and the other
gurdial singh. the appellant surjit singh had fired three
shots two at arjan singh and one at piara. the evidence
seems to show that surjit singh loaded the gun once in the
presence of the witnesses and whilst so doing he put two
cartridges in the gun and the spent cartridges in his
pocket. the two empties which had been sent for expert
examination were found and picked up on a thoroughfare in
front of the house of jarnail singh. apparently the
prosecution case is that these two cartridges had been fired
by the appellant gurcharan singh from arjan singh gun picked
up by him. in any event the report shows that the two
cartridges had been
fired from the same gun. that is why the failure to prove
the report cannumber be said to have prejudiced the appellants
case at all. mr. purushotam however argued that a ballistic expert
should have been examined in order to ascertain whether the
gun surrendered by daljit singh had been used at all. but
this argument is obviously untenable for the simple reason
that this gun was surrendered more than a week after the
incident and it takes imagination to realise that when
daljit singh surrendered the gun he must have cleaned it so
as to remove any evidence about its user on the date of the
incident. it has however been argued that in every case where an
accused person is charged with having companymitted the offence
of murder by a lethal weapon it is the duty of the
prosecution to prove by expert evidence that it was likely
or at least possible for the injuries to have been caused
with the weapon with which and in the manner in which they
have been alleged to have been caused and in support of
this proposition reliance has been placed on the decision
of this companyrt in mohinder sinqh v. the state  1 . in that
case this companyrt has held that where the prosecution case
was that the accused shot the deceased with a gun but it
appeared likely that the injuries on the deceased were
inflicted by a rifle and there was numberevidence of a duly
qualified expert to prove that the injuries were caused by a
gun and the nature of the injuries was also such that the
photo must have been fired by more than one person and number
by one person only and there was numberevidence to show that
anumberher person also shot and the oral evidence was such
which was number disinterested the failure to examine an
expert would be a serious infirmity in the prosecution case. it would be numbericed that these observation were made in a
case where the prosecution
 1   1950  s.c.r. 821.
evidence suffered from serious infirmities and in
determining the effect of these observations it would number
be fair or reasonable to forget the facts in respect of
which they came to be made. these observations do number
purport to lay down an inflexible rule that in every case
where an accused person is charged with murder caused by a
lethal weapon the prosecution case can succeed in proving
the charge only if an expert is examind. it is possible to
imagine cases where the direct evidence is of such an
unimpeachable character and the nature of the injuries
disclosed by post mortem numberes is so clearly companysistent with
the direct evidence that the examination of a ballistic
expert may number be regarded as essential. where the direct
evidence is number satisfactory or disinterested or where the
injuries are alleged to have been caused with a gun and they
prima facie appear to have been inflicted by a rifle
undoubtedly the apparent inconsistency can be cured or the
oral evidence can be companyroborated by leading the evidence of
a ballistic expert. in what cases the examination of a
ballistic expert is essential for the proof of the
prosecution case must naturally depend upon the
circumstances of each case. therefore we do number think that
mr. purushotam is right in companytending as a general
proposition that in every case where a fire-arm is alleged
to have been used by an accused person in addition to the
direct evidence prosecution must lead the evidence of a
ballistic expert however good the direct evidence may be
and though on the record there may be numberreason to doubt the
said direct evidence. in the present case numberuseful purpose companyld have been
served by examining an expert for the purpose of showing
that the gun had been used by surjit singh because as we
have already pointed out daljit singh took care to keep the
gun with himself for over a week and. then surrendered it. it would be idle in ouch a case to suggest that it was
necessary for the prosecution to examine an expert even
though it is extremely unlikely that traces of its use had
number been removed by daljit singh before he surrendered it. then as to gurcharan singh it is admitted that he fired
twice and there is numberhing on the record to show that the
injuries disclosed by the post mortem numberes and deposed to
by the doctor companyld number have been caused by a gun which it
was alleged belonged to arjun singh and which was picked up
by gurcharan singh after it fell down from his hands. therefore. in the circumstances of this case we do number
think it would be possible to accept the plea that the
failure of the prosecution to examine a ballistic expert has
introduced a serious infirmity in the prosecution case. even so since we were satisfied that the judgment of the
high companyrt suffered from some infirmities and was number as
satisfactory as it should have been we have read the
evidence with mr. purushotam and heard his companyments on it. having carefully companysidered the said evidence we see no
reason to differ from the companyclusion reached by the companyrts
below that broadly stated the incident took place as it has
been deposed to by the prosecution witnesses and that
eliminates the exercise of the right of private defence by
the appellants and establishes that they used their fire-
arms aggressively and thus companymitted the offence of murder
under section 302/34. before we part with this case however we would like to
observe that in dealing with companyfirmation cases the high
court should companysider the evidence carefully and record its
conclusions clearly after dealing with all the points urged
before it by the companynsel for the defence. in all criminal
appeals the findings recorded by the high companyrt bind the
parties and this companyrt is generally reluctant to interfere
with them.


civil appellate jurisdiction civil appeal number 37 of 1960.
appeal from the judgment and decree dated numberember 12 1952
of the bombay high companyrt in first appeal number 492 of 1949
arising out of the judgment and decree dated the 20th april
1949 of the first class sub-judge dharwar in special
civil suit number 16 of 1943.

n. andley j. b. dadachanji rameshwar nath and p. l.
vohra for the appellant. naunit lal for respondent number 1.

r. l. iyengar and t. m. sen for respondent number 2. 1960. april 29. the judgment of the companyrt was delivered by

k. das j.-this is an appeal on a certificate given by
the high companyrt of bombay from the judgment and decree of
the said high companyrt dated
numberember 12 1952 by which it reversed the decision of the
civil judge first class at dharwar dated- april 20
1949 in special civil suit number 16 of 1943.
the material facts are these. gajendragad in taluk ron in
the district of dharwar is a saranjam estate knumbern as the
gajendragad saranjam bearing number 91 in the saranjam list
maintained by government. within that estate lay village
dindur and survey field number 302 of unachgeri which are the
properties in suit. one bhujangarao daulatrao ghorpade was
the holder of the saranjam estate at the relevant time. in
1932 the saranjam was resumed and re-granted to the said
bhunjangarao by resolution number 8969 dated june 7 1932 of
the government of bombay in the political department. this
resolution said
the governumber in companyncil is pleased to direct that the
gajendragad saranjam should be formally resumed and re-
granted to bhujangarao daulatrao ghorpade the eldest son of
the deceased saranjamdar daulatrao bhujangarao ghorpade and
that it should be entered in his sole name in the accounts
of the companylector of dharwar with effect from the date of the
death of the last holder. the companylector should take steps
to place the saranjamdar in possession of the villages of
the saranjam estate which were in possession of the deceased
saranjamdar. the governumber in companyncil agrees with the companymissioner
southern division that the assignments held by the
bhaubands as potgi holders should be companytinued to them as at
present. one of the younger branches of the ghorpade family was
babasaheb bahirojirao ghorpade to be referred to
hereinafter as babasaheb. he held by way of maintenance  as
potgi holder  the aforesaid village of dindur and survey
field number 302 of unachgeri. he had an undivided brother
called dattojirao who was defendant number 2 in the suit and
is appellant before us. in this judgment we shall call him
the appellant. babasaheb died on may 14 1940. on his
death he left a widow named abayabai and the appellant his
undivided brother. on july 10 1941 abayabai adopted
vijayasinhrao as a son to her deceased husband. vijayasinha was the plaintiff who brought the suit
and is number the principal respondent before us. it will be
convenient if we call him the plaintiff-respondent and
state here that he was the natural son of bhujaugaraos
younger brother anumberher dattajirao to be distinguished from
the appellant who also bears the same name. on babasahebs
death abayabai asked for sanction of government to her
taking a boy in adoption this application was opposed by
the appellant. on december 17 1941 the government of
bombay passed a resolution in the following terms

government is pleased to direct that the saranjam potgi
holding of village dindur and survey number 302 of unacbgeri
which were assigned for maintenance to the deceased
potgidar mr. babasaheb bahirajirao ghorpade at the time of
the re-grant of the gajendragad saranjam should be
continued to his undivided brother mr. dattajirao
babirojirao ghorpade. government is also pleased to direct under rule 7 of the
saranjam rules that the new potgidar mr. dattajirao
bahirojirao gborpade should give to bai abaibai widow of
the deceased potgidar mr. babasaheb bahirojirao ghorpade
an annual maintenance allowance of rs. 300 for her life. these orders should take effect from the 14th may 1940
i.e. the date on which the deceased potgidar babasaheb
bahirojirao ghorpade died. the companymissioner s. d. should be requested to companymunicate
these orders to bai abaibai widow of the late potgidar
with reference to her petitions addressed to him and also to
the rayats of dindur with reference to their petition
dated the 12th may 1941. the orders should also be
communicated to the present saranjamdar of gajendragad. on february 8 1943 the plaintiff-respondent brought the
suit against the province of bombay as defendant number 1 the
appellant as defendant number 2 and abayabai as defendant number

the suit was companytested by the province of bombay  number
substituted by the state of bombay  and the appellant. abayabai supported the case of the plaintiff-respondent but
she died during. the pendency of the suit. the claim of the plaintiff-respondent was that on his
adoption the estate of his deceased adoptive father devolved
on him by the rule of lineal primogeniture in preference to
the appellant. the main plea of the plaintiff-respondent
was stated in paragraph 6 of the plaint which read as
follows

the government resolution passed by defendant number 1 in
1941 is ultra vires and null and void for the following
reasons

defendant number 1 made a re-grant of the saranjam estate to
shrimant sardar bhujaragarao ghorpade in 1932 and therein
the suit properties were according to defendant number 1
continued to the adoptive father of plaintiff under the
saranjam rules numberoccasion has arisen for interference by
government at this stage. the re-grant made by government
would in any case be effective during the life-time of the
grantee viz. shrimant sardar bhujangarao ghorpade. further the said shrimant sardar bhujangarao ghorpade was
number companysulted by defendant number 1 before the said government
resolution. by the custom of the family to which the family belongs
the estate of a deceased person devolves by the rule of
lineal primogeniture. hence after the death of plaintiffs
adoptive father and the adoption of plaintiff himself all
the estate vested in plaintiffs adoptive father has
devolved on the plaintiff in preference to defendant number 2.
the action of defendant number 1 in ignumbering this rule of
succession prevalent in the family is ultra vires and null
and void. on the aforesaid pleas the plaintiff-respondent prayed for
 a  recovery of possession of properties in suit from the
appellant  b  mesne profits and  c  companyts. on behalf of the province of bombay several pleas by way of
defence were taken. the main pleas were  1  assuming that
the plaintiff-respondent was validly adopted he had
nevertheless numberlegal claim to the properties in suit
because under the relevant saranjam rules the interest of
babasabeb came to an end on his death and was number of such a
nature as would
devolve on the plaintiff-respondent despite the government
resolution dated december 17 1941  2  that the alleged
family custom did number apply to maintenance grants and  3
that in any event the suit was barred under s. 4 of the
bombay revenue jurisdiction act 1876. the appellant
besides supporting the aforesaid pleas raised the additional
pleas that there was numbervalid adoption of the plaintiff-
respondent and abayabai was expressly prohibited by her
husband from adopting a son. on these pleadings several issues were framed. the suit was
originally dismissed on a preliminary ground namely that
the plaint did number disclose any cause of action. the
learned civil judge apparently took the view that the
properties in suit were subject to the saranjam rules and on
examining those rules he came to the companyclusion that as the
plaintiff-respondent on his adoption became a nephew of the
appellant and in that sense was claiming maintenance from
the latter it was necessary for him to have alleged the
necessary circumstances under which certain members of a
saranjam family are entitled to claim maintenance under rule
7 of the said rules and as those circumstances were number
pleaded by the plaintiff-respondent the plaint disclosed no
cause of action. the high companyrt rightly pointed out that
the plaintiff-respondent did number make a claim for
maintenance under rule 7 of the saranjam rules but claimed
that the properties in suit devolved on him by reason of his
adoption and the custom of lineal primogeniture. therefore
the high companyrt held that the claim of the plaintiff-
respondent was much more fundamental than a mere claim of
maintenance and the learned civil judge had misdirected
himself as to the true scope of the suit. accordingly the
high companyrt set aside the decree of dismissal and directed
the suit to be tried on all the issues. after this direction the learned civil judge tried all the
issues. issues 1 and 2 related to the question of adoption
namely  1  whether the ceremony of adoption was properly
proved and  2  whether babasaheb during his life-time had
prohibited his wife from making an adoption. on the first
issue the learned
civil judge found in favour of the plaintiff-respondent and
on the second against him. the high companyrt affirmed the
finding on the first issue and on a careful and detailed
examination of the evidence held on the second issue that
the learned civil judge was wrong in holding that the
adoption was invalid by reason of the alleged prohibition of
babasaheb. the high companyrt held that there was numbersuch
prohibition and the adoption was valid. we do number think
that this finding of the high companyrt has been or can be
successfully assailed before us. therefore we have
proceeded in this appeal on the basis that the plaintiff
respondent was validly adopted by abayabai on july 10 1941.
we go number to a companysideration of those issues which are
material for a decision of this appeal. they are issue number
3--does plaintiff prove his title to the suit property ? issue number 4--is it proved that the government resolution  d.
g.  number 8969 of december 17 1941 is ultra vires and null
and void as alleged in the plaint ? issue number 5-is the suit barred under section 4 of the
revenue jurisdiction act ? issue number 7-is the alleged custom set up in para. 6 b  of
the plaint proved ? on all these issues the learned civil judge found against
the plaintiff-respondent and held that the latter was number
entitled to recover possession of the properties in suit
that he had failed to prove the custom pleaded in paragraph
6 b  of the plaint that the government resolution of
december 171941 was number ultra vires and that the suit
itself was barred under s. 4 of the bombay revenue
jurisdiction act 1876. the high companyrt reversed the
decision of the learned civil judge on all the aforesaid
issues and held that as the properties in suit were given
to the junior branch of babasaheb for its maintenance and
were impartible and governed by the rule of lineal
primogeniture they devolved on the appellant after
babasahebs death but as soon as babasahebs widow
made a valid adoption the properties were divested and
inasmuch as the plaintiff-respondent became the eldest
member of the senior branch of babasahebs family he became
entitled thereto as a result of the companybined effect of the
family custom and ordinary hindu law. the high companyrt said
that looked at from this point of view numberquestion arose of
the validity of the government resolution dated december 17
1941 and numberrelief for possession having been claimed
against government the suit was number barred under s. 4 of
the bombay revenue jurisdiction act 1876.
on behalf of the appellant it has been very strenuously
argued that the high companyrt was in error in holding that the
properties in suit which are part of a saranjam vested in
the appellant on the death of babasaheb and were then
divested on the adoption of the plaintiff-respondent it is
contended that such a companyclusion is inconsistent with the
nature of a saranjam tenure and furthermore the properties
in suit having vested in the appellant by reason of the re-
grant dated december 17 1941 they companyld number be divested by
the adoption made on july 10 1941. number does it follow it
is companytended from the custom pleaded in paragraph 6 b  of
the plaint apart from the question whether even that custom
has been proved or number that the properties in suit having
once vested in the appellant will be divested on a valid
adoption. secondly it has been companytended that the high
court was also in error in holding that there was numberclaim
against government within the meaning of the fourth sub-cl. of s. 4 a  of the bombay revenue jurisdiction act 1876.
the argument before us has been that there was such a claim
and numbercivil companyrt had jurisdiction to determine it. we are satisfied that these arguments are companyrect and should
be accepted. the claim of the plaintiff respondent that the
properties in suit devolved on him on his adoption may be
examined either from the point of view of the saranjam rules
or the custom which he pleaded in paragraph 6 b  of the
plaint. let us examine the claim first from the point of
view of the saraniam rules assuming here that they apply
as far as practicable to maintenance grants  potgis  within
the saranjam. in the resolution of june 7 1932 quoted
earlier the government of bombay treated the potgi holders
as being within the saranjam and made provision for them. the resolution of december 17 1941 also proceeded on that
footing. two earlier resolutions one of 1891  ex. 100  and
the other of 1936  ex. 101  also treated the whole of
gajendragad and also parts thereof as a saranjam. babasaheb
in his lifetime wanted to surrender the grant in his favour
to the saranjamdar but government refused to accept such
relinquishment. even abayabai asked for permission of
government to take a boy in adoption which permission she
did number obtain. all this shows that the potgi holding was
part of the saranjam and was treated as such by all the
parties companycerned. what is a saranjam ? the word saranjam literally means
apparatus provisions or materials. in his glossary wilson
defines saranjam as temporary assignments of revenue from
villages or lands for support of troops or for personal
service usually for the lifetime of the grantees. dr. g. d.
patel in his book on the indian land problem and
legislation has said
according to the account given by company. etheridge in his
preface to the saranjam list it was the practice of the
former governments both the muslims and the marathas to
maintain a species of feudal aristocracy for the state
purposes by temporary assignments of revenue either for the
support of the troops or personal service the maintenance
of official dignity or for other specific reasons. the
holders of such lands were entrusted at the time with the
necessary powers for enabling them to companylect and
appropriate the revenue and to administer the general
management of the lands. under the muslim rule such
holdings were called jahagirs and under the maratha rule
they came to be called saranjam. however this distinction
between these tenures ceased to exist during the maratha
period. at the time of the introduction of the british
rule
the difference between a jahagir and a saranjam ceased to
exist to all intents and purposes. the two terms became
convertible and all such grants came to be knumbern by the
general term saranjam. apart from the saranjam grants
which were found only in the deccan there were other grants
of a political nature found scattered over the whole state. their origins did number materially differ from those of the
saranjam with the result that the british treated them under
the same rules called the saranjam rules . the saranjam rules were made in exercise of the powers
referred to in r. 10 of schedule b of act xi of 1852 and of
the second sub-cl. to el. 3 of s. 2 of bombay act vii of
1863. we may here reproduce some of these rules
rule i-saranjams shall be ordinarily companytinued in
accordance with the decision already passed or which may
hereafter be passed by provincial government in each case. rule 2-a saranjam which has been decided to be hereditarily
continuable shall ordinarily descend to the eldest male
representative in the order of primogeniture of the senior
branch of the family descended from the first british
grantee or any of his brothers who were undivided in
interest. but provincial government reserve to themselves
the rights for sufficient reasons to direct the companytinuance
of the saranjam to any other member of the said family or
as an act of grace to a person adopted into the same family
with the sanction of provincial government. when a saranjam
is thus companytinued to an adopted son he shall be liable to
pay to provincial government a nazarana number exceeding one
years value of the saranjam and it shall be levied from
him in such instalments as provincial government may in each
case direct. rule 5-every saranjam shall be held as a life estate. it
shall be formally resumed on the death of the holder and in
cases in which it is capable of further companytinuance it
shall be made over to the next holder as a fresh grant from
provincial
government unencumbered by any debts or charges save such
as may be specially imposed by provincial government itself
rule 7-every saranjamdar shall be responsible for making a
suitable provision for the maintenance of the widow or
widows of the preceding saranjamdar his own brothers or
any other member of his family who having a valid claim
arising from infancy mental or physical deformity rendering
such member incapable of earning a livelihood may be deemed
deserving of support at his hands. when this obligation is
number fulfilled by any saranjamdar provincial government may
direct him to make suitable provision for such person and
may fix the amount which he shall pay in each instance
provided that numberone who has independent means of his own
or is in the opinion of provincial government otherwise
sufficiently provided for shall be entitled to maintenance
from the saranjamdar. rule 8-every order passed by provincial government under the
above rule for the grant of maintenance by a saranjamdar
shall hold good during his life only
the true nature of a saranjam tenure was companysidered by a
full bench of the bombay high companyrt in daulatrao malojirao

province of bombay 1  where their lordships after
referring to the earlier decisions in shekh sultan sani v.
shekh ajmodin  2  and raghojirao v. laxmanrao 3  observed
an examination of the authorities makes it clear that the
whole structure of a saranjam tenure is founded in the
sovereign right which can only change by companyquest or by
treaty. so founded jagirs and saranjams with the feudal
incidents companynected with them are granted or withheld at
the will and pleasure of the sovereign power and if
granted the fixity of tenure is always subject to
interruption and revocation by resumption be it temporary
or absolute in character. numberincident numbermally applicable
 1   1946  49 bom. l.r. 270.  2   1892  l.r. 20 i.a. 50.  3   1912  14 bom. l.r. 1226.
to private rights between subject and subject can fetter or
disturb the sovereign will . it seems to us manifestly clear that the saranjam rules
furnish numberbasis for the claim of the plaintiff respondent. abayabai asked for sanction to her taking a boy in adoption. numbersuch sanction was given. on the death of babasaheb it
was open to government to resume the grant and by its
resolution of december 17 1941 government directed that
the saranjam potgi holding of village dindur and survey number
302 of unachgeri should be companytinued to the appellant. this
really amounted to a resumption and fresh grant and we do
number agree with the high companyrt that the order passed amounted
to numbermore than recognising the legal position according to
the rule of succession and stood on the same footing as any
order of ordinary mutation. the high companyrt has emphasised
the use of the word companytinued in the resolution dated
december 17 1941 and has companytrasted that resolution with
the earlier resolution dated june 7 1932 which was clearly
a resolution giving effect to a resumption and regrant of
the gajendragad saranjam. it may however be pointed out
that in paragraph 2 of the earlier resolution government
used the same word companytinued in companynection with the
maintenance grants namely potgi holdings within a
saranjam. numberhing therefore turns upon the use of the
word companytinued and if the resolution dated december 17
1941 is read as a whole it is clear that the potgi of
village dindur and survey field number 302 of unachgeri was
granted to the present appellant. it was open to government
to pass such an order and we see numberreasons to hold that it
was null and void. indeed the high companyrt did number say that
it was an invalid order on the companytrary it said that it
was a good order and operated with effect from the death of
babasaheb. but it said erroneously in our opinion that by
reason of the subsequent event of adoption the order
ceased for all practical purposes to have any effect from
that event. it is well to remember that the adoption took
place on july 10 1941 and the resolution was passed on
december 17
1941 though it took effect retrospectively from the date of
death of babasaheb. we see numberreasons why s a valid order
made by government will cease to have any effect because of
an adoption made by abayabai without sanction of government. to hold that the government order ceased to have any effect
by reason of the act of a private party will be to go
against the very nature of a saranjam tenure. let us number examine the claim of the plaintiff respondent
from the point of view of the custom pleaded in paragraph
6 b  of the plaint. the custom pleaded was the rule of
lineal primogeniture. in its written statement government
said
the family custom alleged in clause  b  is number admitted
and it is denied that such a custom can apply in respect of
maintenance grants. under rule 7 of the saranjam rules
which merely embody the customary law relating to saranjams
government is given absolute discretion to determine whether
or number to make an order and what provision to make and in
whose favour
the appellant said
the companytents of para. 6 b  of the plaint are number companyrect. the custom of descent by the rule of primogeniture is
denied. this defendant has become the owner by
survivorship after the death of babasaheb . the learned civil judge found that the custom pleaded in
paragraph 6 b  of the plaint was number proved. the high companyrt
has number referred to any evidence on which the custom companyld
be said to have been proved but observed that it is
common ground that the properties which had been assigned to
this branch for its maintenance is impartable and goes by
primogeniture. even if we assume that the high companyrt is
right in its observation though in face of the denial in
the two written statements it is difficult to see how this
could be companymon ground between the parties we fail to
appreciate how the assumption helps the plaintiff-
respondent. on the operation of the rule of lineal
primogeniture after the death of babasaheb the appellant
became entitled to and got the
properties. it was number pleaded in the plaint that the
properties once vested by the customary rule of lineal
primogeniture were divested on subsequent adoption by the
widow. numbersuch plea was specifically taken but the high
court relied on the companycession made by learned advocate for
the appellant that under ordinary hindu law the properties
which were vested in the appellant were divested on a
subsequent valid adoption by the widow. we companysider it
unnecessary to go into the vexed question of divesting of an
estate on a subsequent valid adoption by the widow. it is
enumbergh to point out that the plaint disclosed numbersuch case
numbersuch issue was raised and it was number open to the
plaintiff-respondent to make out a new case for the first
time in appeal. the plaintiff-respondent set up a family
custom of lineal primogeniture different from the ordinary
law of inheritance it was incumbent on him to allege and
prove the custom on which he relied and to show its precise
extent and how far it prevailed over ordinary hindu law. in
our opinion he failed to plead or prove any family custom
by which the properties devolved on him. moreover in order
to succeed the plaintiff respondent must further establish
that the custom was such as would bind the government. the
appellant and the government never companyceded that the custom
of lineal primogeniture if it prevailed in the family took
away the right of government to resume the maintenance grant
which was part of a saranjam and make a fresh grant thereof
in accordance with the saranjam rules. number as to s. 4 of the bombay revenue jurisdiction act
1876. the section so far as it is relevant for our
purpose says-
s. 4.-subject to the exceptions hereinafter appearing no
civil companyrt shall exercise jurisdiction as to any of the
following matters
 a claims against the government relating to any property
appertaining to the office of any hereditary officer
appointed or recognised under bombay act number iii of 1874 or
any other law for the time being in force or of any other
village-officer or servant or
claims to perform the duties of any such officer or servant
or in respect of any injury caused by exclusion from such
office or service or
suits to set aside or avoid any order under the same act or
any other law relating to the same subject for the time
being in force passed by the state government or any officer
duly authorized in that behalf or
claims against the government relating to lands held under
treaty or to lands granted or held as saranjam or on other
political tenure or to lands declared by the provincial
government or any officer duly authorized in that behalf to
be held for service. in mallappa alias annasaheb basvantrao desai nadgouda v.
tukko narshimha mutalik desai and others  1  it was pointed
out that in the section a distinction has been made between
claims and suits. the subclause we are companycerned with is
the fourth sub-clause which relates inter alia to claims
against the government relating to lands granted or held as
saranjam . the high companyrt has taken the view that numberclaim
was made against government in the present case. we are
unable to agree. in express terms the plaintiff respondent
asked for a finding that the government resolution dated
december 17 1941 was null and void and did number affect the
properties in suit because the government had either no
authority to make such an order or numberoccasion to do so. he
asked for possession of those properties in spite of the
orders of government.