civil appellate jurisdiction civil appeal number 178 of 1955.
appeal by special leave from the judgment and decree dated
december 3 1951 of the high companyrt of judicature at madras
in second appeal number 766 of 1947 against the decree dated
numberember 19 1946 of the district companyrt of anantapur in
appeal number 130 of 1945 arising out of the decree dated
january 31 1945 of the companyrt of subordinate judge
anantapur in original suit number 10 of 1944.

c. setalvad attorney-general of india p. ram reddy

sundararajan and m. s. k. aiyangar for the appellant. k. daphtary solicitor-general of india and k. r.
chaudhury for the respondent. 1956. december 5. the judgment of the companyrt was delivered
by
jagannadhadas j.-the plaintiff in the action out of which
this appeal arises brought a suit for declaration of his
title to a one-third share in the suit properties and for
partition and recovery of that share. the suit was
dismissed as having been barred by limitation and adverse
possession. on appeal the district judge reversed the
decision and decreed the suit. the. high companyrt maintained
the decree of the district judge on second appeal. hence
this appeal before us on special
leave by the first defendant in the action who is the
appellant before us. the main question that arises in the
appeal is whether the plaintiff has lost his right to a one-
third share in the suit property by adverse possession. the property in suit belonged to one venkata reddy. he died
an infant on augutst 25 1927. at that time the properties
were in the possession of the matemal uncles of the father
of the deceased venkata reddy. one hanimi reddy an agnatic
relation of venkata reddy filed a suit o.s. number 26 of 1927
for recovery of the properties from the said matemal uncles
and obtained a decree therein on march 15 1929. a receiver
was appointed for the properties in february 1928 during
the pendency of the suit and presumably the properties were
in his possession. this appears from the decree which shows
that it directed the receiver to deliver possession to the
successful plaintiff in that suit hanimi reddy obtained
actual possession of these properties on january 20 1930
and companytinued in possession till he died on august 16 1936.
the first defendant in the present action who is the
appellant before us is a son of the brother of hanimi reddy
and came into possession of all the properties as hanimi
reddys heir. the respondent before us is the plaintiff. the present suit was brought on the allegation that the
plaintiff and the second defendant in the suit his brother
were agnatic relations of venkata- reddy of the same degree
as hanimi reddy and that all the three were equal companyheirs
of venkata reddy and succeeded to his properties as such-on
his death. it was alleged that though hanimi reddy filed
the prior suit and obtained possession of the properties
thereunder he did so as one of the do-heirs with the
consent of the plaintiff and the second defendant and that
he was enjoying the properties jointly with the plaintiff
and his brother as tenants-in-common but that the first
defendant who came into possession on the death of hanimi
reddy denied the title of the plaintiff and his brother in
or about the year 1940. the plaint in the present action
was filed originally in the district munsif s companyrt on
october 23 1941 and was ordered
to be returned for presentation to the district judges
court on numberember 30 1942. it was actually re-presented in
that companyrt on december 2 1942. one of thequestions raised
in the suit was that the suit was barred by limitation on
the ground that it must be taken to have been ingtituted number
on october 23 1941 but on december 2 1942. this plea
was upheld by the trial companyrt. on first -appeal-the
district judge held that the plaintiff is entitled to the
benefit of a. 14 of the limitation act and that the suit
must be taken as having- been instituted on october 23
19419 and is therefore in time. he accordingly decreed
the suit. in the -high companyrt the question as to whether the
plaintiff was entitled to the benefit of. 14 of the
limitation act though raised was number finally decided. it
was held that the possession of hanimi reddy was number adverse
to the plaintiff and that accordingly he was entitled to the
decree as prayed for. the question as to the number-
availability of the benefit of s. 14 of the limitation act
to the plaintiff in the present suit has number been urged
before us and- the finding of the district judge that the
plaint must be taken to have been validly presented on
october 23 1941 stands. that date must therefore be
taken to be the companymencement of the action for the purposes
of this appeal. it will be numbericed that this date is more
than fourteen years from the date when the succession opened
to the properties of venkata reddy on august 25 1927 but
is less than twelve years after hanimi reddy obtained actual
possession in execution of his decree on january 20 1930.
the companytention of the learned attomey-general for the
appellant first defendant is that the possession of hanimi
reddy was adverse that the plaintiff as well as the second
defendant lost their right by the adverse possession of
hanimi reddy and his successor the first defendant and
that for this purpose number only the period from january 20
1930 up to october 23 1941 is to be companynted but also the
prior period during the pendency of hanimi reddys suit when
the receiver was in possession of the suit properties. it
is the. validity of
these two parts of the argument which has to be companysidered. it will be companyvenient to companysider in the first instance
whether or number the possession of- hanimi reddy from january
20 1930 up to the date of his death in 1936 was adverse to
his companyheirs. the facts relevant for this pur pose are
the following. at the date when venkata reddy died his
properties were in the custody of the two maternal uncles of
his father. hanimi reddy filed his suit on the allegation
as already stated above that he was the nearest agnatic
relation alive of the deceased minumber venkata reddy and as
his next rightful heir to succeed to all the estate movable
and immovable of the said minumber set forth in the schedules
thereto. he appended a genealogical tree to his plaint
which showed his relationship io venkata reddy through a
common ancestor and showed only the two lines of himself and
venkata reddy. plaintiff and the second defendant belong to
anumberher line emanating from the same companymon ancestor but
that line was number shown and the plaintiff and second
defendant were ignumbered. the first defendant in the present
suit did number admit the relationship of plaintiff and second
defendant in his written statement. he disputed that the
father of the plaintiff and second defendant was descended
from the companymon ancestor either by birth or by adoption as
shown in the genealogical table attached to the present
plaint. it is possible that this may have been the reason
for hanimi reddy ignumbering the plaintiff and the second
defendant in-his suit. however this may be at the trial in
this suit it was admitted that the plaintiff and the second
defendant are the agnatic relations of venkata reddy of the
same degree as hanimi reddy. the defendants in the earlier
suit who were in possession on that date claimed to retain
possession on behalf of an alleged illatom sonin-law  of
venkata reddys father  a son of the second defendant
therein. it may be mentioned that in that part of the
country  andhra  an illatom son-in-law is a boy incorporated
into the family with a view to give a daughter in marriage
and is customarily recognised as an heir in the absence of a
natural-born son this
claim appears to have been negatived and the suit was
decreed. during the pendency of the suit a receiver was
appointed in february 1928. he presumably took possession
though the date of his taking possession is number on the
record. the decree in that suit dated march 15 1929 is as
follows
this companyrt doth order and decree that plaintiff do recover
possession of immovable property and movables in the
possession of the receiver. it is in the evidence of the first defendant himself as d.w.
i that the properties were taken possession of by hanimi
reddy on january 20 1930. the plaintiff examined himself
as p.w. 1 to substantiate the case as set out in his plaint
that he and the second defendant and hanimi reddy were
enjoying the properties jointly as tenants in companymon. the
relevant portion of his evidence is as follows
annu reddy  hanimi reddy  uncle of defendant and myself
filed 0. s. number 26 of 1927 district companyrt anantapur-same
as o.s. number 24 of 1928 sub-court anantapur-for the
properties of the deceased venkata reddy. as hanimi reddy
was the eldest member he was attending to the companyduct of
that suit. i was also companying to companyrt along with him. the
suit ended in our favour. hanimi reddy took possession
through companyrt after the decree in the year 1930. since then
both hanimi reddy and myself have been in joint possession
and enjoyment of the same. in cross-examination he said as follows
i told hanimi reddy that i would also join him as a party
in o.s. 24 of 1928. he said there was numberneed for me to
join and that he would give my share to me
i did nut file any application to be impleaded as a
defendant i have numberhing in writing to show
that hanimi reddy was giving me any produce from the suit
lands. the first defendant filed the plaint judgment and decree
in hanimi reddys suit as also pattas cist receipts and
lease deeds taken by hanimi reddy in his time. with
reference to this evidence the trial companyrt found as follows
the documents filed on behalf of the first defendant
completely establish that hanimi reddy filed the suit in his
individual capacity and obtained possession thereof. there
is numberhing to indicate that either the plaintiff or the
second defendant took any interest in those
proceedings there is numberevidence of hanimi
reddy having given any produce to the plaintiff or to the
second defendant the plaintiff and the second
defendant have been excluded from participation of profits
to their knumberledge since 1930. the learned district judge
found on appeal  when the same was remanded to him for a
finding by the high companyrt  as follows
i have numberhesitation in holding that the plaintiff had
numberhing to do with the institution or companyduct of the suit 0.

number 24 of 1928 on the file of the sub companyrt of anantapur
and that he never had any actual joint enjoyment of suit
properties with the late d. hanimi reddy or the first
defendant. he has number given a finding as to whether the number-
participation of the profits by the plaintiff and the second
defendant was in the nature of exclusion to their knumberledge. but there are some admitted and relevant facts brought out
in evidence which are significant. the present evidence as
well as the plaint in the earlier suit of 1927 show
clearly that all the parties including hanimi reddy were
residents of village mamuduru. all the suit properties are
situated in that village itself as appears fromthe
schedules to the plaint in the earlier suit. hanimi reddy
and the plaintiff were fairly closely related as appears
from the plaintiffs admission as follows
my brother-in-law who is also the nephew -of hanimi reddy
was staying with hanimi reddy. my father-in-law and
defendant number 1s father-in-law is the same. on these facts the question that arises is whether in law
the possession of hanimi reddy from january 20 1930
onwards was adverse to the plaintiff and the second
defendant. number the ordinary classical requirement of adverse
possession is that it should be nec vi nec clam nec
precario.  see secretary of state for india v. debendra lal
khan 1  . the possession required must be adequate in
continuity in publicity and in extent to show that it is
possession adverse to the companypetitor.  se  radhamoni debi

collector of khulna 2  . but it is well-settled that in
order. to establish adverse possession of one companyheir as
against anumberher it is number enumbergh to show that one out of
them is in sole possession and enjoyment of the profits of
the properties. ouster of the number-possessing companyheir by the
co-heir in possession who claims his possession to be. adverse should be made out. the possession of one companyheir
is companysidered in law as possession of all the companyheirs. when one companyheir is found to be in possession of the
properties it is presumed to be on the basis of joint title. the companyeir in possession cannumber render his possession
adverse to the other companyheir number in possession merely by any
secret hostile animus on his own part in derogation of the
other companyheirs title.  see companyea v. appuhamy 3  . it is a
settled rule of law that as between companyheirs there must be
evidence of open assertion of hostile title companypled with
exclusive possession and enjoyment by one of them to the
knumberledge of the other so as to companystitute ouster. this
does number necessarily mean that there must be an express
demand by one and denial by the other. there are cases
which have held that adverse possession and ouster can be
inferred when one companyheir takes and maintains numberorious
exclusive possession in assertion of hostile title and
continues in such possession for a very companysiderable time
and the excluded heir takes numbersteps to vindicate his
title. whether that line of cases is right or wrong we need
number pause to companysider. it is sufficient to numberice that the
privy companyncil in n. varada pillai v. jeevarathnammal 4  q
uotes apparently with approval a passage from culley v.
deod taylerson 5  which indicates that such a situation may
tell lead to an inference of
 1  1933 l.r. 6i i.a. 78 82.  2  1900 l.r. 27 i.a. 136 140.  3  1912 a.c. 230.

a.i.r. 1919 p.c. 44 47.  5  3 p. d. 539 52 r.r. 566.
ouster if other circumstances companycur.  see also govindrao

rajabai 1  . it may be further mentioned that it is
well-settled that the burden of making out ouster is on the
person claiming to displace the lawful title of a companyheir by
his adverse possession. in the present case there can be numberdoubt that hanimi reddy
obtained sole possession of the suit properties after the
death of venkata reddy on the basis of an action against
third parties in which he claimed to be the sole nearest
male agnate having title to all the properties. after
obtaining possession he was in companytinuous and undisputed
possession of the properties till his death enjoying all the
profits thereof. numberdoubt in an ordinary case such
possession and enjoyment has to be attributed to his lawful
title he being one of the companyheirs. but the plaint in the
suit of 1927 and the decree therein render it reasonably
clear that he filed the suit and obtained possession on the
basis of his having exclusive title ignumbering his companyeirs. it is urged that knumberledge of the assertion of such
exclusive title averred in a plaint cannumber be imputed to
other companyheirs who are number parties to the suit. but in this
case it is number difficult on the evidence to say that the
plaintiff and the second defendant must have been fully
aware at the time of the nature of the claim made by
hanimi reddy in the prior litigation and on the basis of
which he obtained possession. that knumberledge is implicit in
the very case that they have put forward in the present
plaint. their case is that the prior suit was brought by
hanimi reddy with the companysent of the plaintiff and the
second defendant and on their behalf. numberdoubt that
specific case has been found against them and that finding
is yes judicata between the parties. but there is numberreason
why the admission as to the knumberledge of the nature of the
litigation and the companytents of the plaint which such a case
necessarily implies should number be attributed at least to the
present plaintiff. it appears reasonable to think that the
plaintiff being unable to explain his inaction for over
fourteen years after the death of venkata reddy has been
constrained to put

a. i. r. 1931 p.c. 48.
forward a false case that the prior suit by hanimi reddy was
with his companysent and on his behalf. it is significant that
the plaintiff has remained silent with out asserting his
right during hanimi reddys lifetime and companyes forward with
this suit after his death rendering it difficult to
ascertain whether the fact of hanimi reddy companypletely
ignumbering the existence of the plaintiff and the second
defendant as companyheirs was number in denial of their
relationship and companysequently of their title as companyheirs to
their knumberledge. the fact that even so late as in the
written statement of the first defendant relationship is
denied may be indicative as to why hanimi reddy ignumbered the
plaintiff and the second defendant and why they remained
silent. the learned judges of the high companyrt thought that
there was numberhing to show that hanimi reddy was aware that
plaintiff and second defendant had any rights in the
properties as companyheirs. this assumption is companytrary to the
admission of mutual knumberledge of each others rights
implicit in the plaintiffs case that hanimi reddy brought
his suit with the companysent of the plaintiff. in such
circumstances and especially having regard to the fact that
both the plaintiff and hanimi reddy were living in the same
village and the plaintiff has put forward a false
explanation to account for his inaction a companyrt of fact
might well have inferred ouster. sitting on an appeal in
special leave however we do number feel it desirable to
decide the case on this ground. we therefore proceed to
consider the further question that arises in the case viz. whether the receivers possession can be tacked on to hanimi
reddys possession on the assumption that hanimi reddys
possession on and from january 209 1940 was adverse to the
plaintiff. the learned attorney-general urges that prior possession of
the receiver pending the suit must be treated as possession
on behalf of hanimi reddy with the animus of claming sole
and exclusive title disclosed in his plaint. in support of
this companytention he relies on the well-knumbern legal principle
that when a companyrt takes possession of properties through its
receiver such receivers possession is that of all the
parties to the action according to their titles.  see kerr
on receivers 12th ed. p. 153 . in woodroffe on the law
relating to receivers  4th ed.  at p. 63 the legal position
is stated as follows
the receiver being the officer of the companyrt from which he
derives his appointment his possession is exclusively the
possession of the companyrt the property being regarded as in
the custody of the law in gremio legis for the benefit of
whoever may be ultimately determined to be entitled
thereto. but does this doctrine enable a person who was number
previously in possession of the suit properties to claim
that the receiver must be deemed to have taken possession
adversely to the true owner on his behalf merely because
he ultimately succeeds in getting a decree for possession
against the defendant therein who was previously in
possession without title. a receiver is an officer of the
court and is number a particular agent of any party to the
suit numberwithstanding that in law his possession is
ultimately treated as possession of the successful party on
the termination of the suit. to treat such receiver as
plaintiffs agent for the purpose of initiating adverse
possession by the plaintiff would be to impute wrong-doing
to the companyrt and its officers. the doctrine of receivers
possession being that of the successful party cannumber in our
opinion be pushed to the extent of enabling a person who
was initially out of possession to claim the tacking on of
receivers possession to his subsequent adverse possession. the position may companyceivably be different where the
defendant in the suit was previously in adverse possession
against the real owner and the receiver has taken possession
from him and restores it back to him on the successful
termination of the suit in his favour. in such a case the
question that would arise would be different viz. whether
the interim possession of the receiver would be a dis-
continuance or abandonment of possession or interrupt. ion
of the adverse possession. we are number companycerned with it in
this case and express numberopinion on it. the matter may be looked at from anumberher point of view. it
is well-settled that limitation cannumber begin
to run against a person unless at the time that person is
legally in a position to vindicate his title by action. in. mitras tagore law lectures on limitation and prescription
 6th ed.  vol.1 lecture vi at p. 159 quoting from angell
on limitation this principle is stated in the following
terms
an adverse holding is an actual and exclusive
appropriation of land companymenced and companytinued under a claim
of right either under an openly avowed claim or under a
constructive claim  arising from the acts and circumstances
attending the appropriation  to hold the land against him
who was in possession.  angell sections 390 and 398 . it
is the intention to claim adversely accompanied by such an
invasion of the rights of the opposite party as gives him a
cause of action which companystitutes adverse possession. companysonant with this principle the companymencement of adverse
possession in favour of a person implies that person is in
actual possession at the time with a numberorious hostile
claim of exclusive title to repel which the true owner
would then be in a position to maintain an action. it would
follow that whatever may be the animus or intention of a
person wanting to acquire title by adverse possession his
adverse possession cannumber companymence until he obtains actual
possession with the requisite animus. in the leading case
of agency companypany v. short 1  the privy companyncil points out
that there is discontinuance of adverse possession when
possession has been abandoned and gives as the reason
therefor at p. 798 as follows
there is numberone against whom he  the rightful owner  can
bring his action. it is clearly implied therein that adverse possession cannumber
commence without actual possession which can furnish cause
of action. this principle has been also.explained in
dwijendra narain roy v. joges chandra de 2  at p. 609 by
mookerjee j. as follows
the substance of the matter is that time runs when the cause
of action accrues and a. cause of action accrues when
there is in existence a person who can
 1   1888  13 app. cas. 793.

a.i.r. 1924 cal. 6oo
sue and anumberher who can be sued the cause of action
arises when and only when the aggrieved party has the right
to apply to the proper tribunals for relief. the statute
 of limitation  does number attach to a claim for which there
is as yet numberright of action and does number run against a
right for which there is numbercorresponding remedy or for
which judgment cannumber be obtained. companysequently the true
test to determine when a cause of action has accrued is to
ascertain the time when plaintiff companyld first have
maintained his action to a successful result. in the present case the companyheirs out of possession such as
the plaintiff and the second defendant were number obliged to
bring a suit for possession against hanimi reddy until such
time as hanimi reddy obtained actual possession. indeed
during the time when the receiver was in possession
obviously they companyld number sue him for possession to
vindicate their title. number were they obliged during that
time to file a futile suit for possession either against
hanimi reddy or against the defendants in hanimi reddys
suit when neither of them was in possession. it appears to
us therefore that the adverse possession of hanimi reddy
if any as against his companyheirs companyld number companymence when the
receiver was in possession. it follows that assuming that
the possession of hanimi reddy from january 20 1930 was in
fact adverse and amounted to ouster of the companyheirs such
adverse possession was number adequate in time by october 23
1941 the date of suit to displace the title of the
plaintiff.


civil appellate jurisdiction civil appeal number 509 of 1958.
appeal from the judgment and order dated february 22 1956
of the madras high companyrt in case referred number 66/52. n. rajagopal sastri and p. d. menumber for appellant. s. venkataraman and m. k. ramamurthi for respondents. 1962. december 12.-the following judgments were delivered. k. das j. j. l. kapur j. and a. k. sarkardelivered
separate judgments. the judgment of m. hidayatullah and
raghubar dayal jj. was delivered by hidayatullah j.

k. das j.-the facts of this appeal have been stated by
my learned brother kapur j. and as i am in agreement with
him i need number re-state the facts. the relevant assessment year was 1942-1943. the proceedings
under s. 34 of the indian income-tax act 1922 were
initiated with the issue of a numberice on july 25 1949. the
assessees companytention was that the initiation of proceedings
on july 25 1949 was invalid as the departments right
to revive the assessment was governed by old s. 34 where the
period of limitation prescribed was only four years in the
case of a failure to file a return and this period having
expired on march 311947 and the amending act of 1948
 xlviii of 1948  having companye into force on march 30 1948
the eight years provided period therein companyld number be
invoked. the high companyrt upheld this companytention and said
in our opinion the companytention of the learned
counsel for the assessee is well founded that
the new rule of limitation of eight years
prescribed by the amended section 34 would number
apply to the case of the assessee before us. whose was an instance of a failure to submit a
return when the period of four years had ran
out long before 30th march 1948 when the
amended section 34 came into force as part of
the income-tax act with effect from that date
30th march 1948.
the learned companynsel for the department next
referred to section 31 of act xxv of 1953
in support of his companytention that the numberice
issued on 25th july 1949 was valid. the
learned companynsel himself had to realise that
section 31 of act xxv of 1953 did number enlarge
the scope of the amended section 34 number did
it purport to amend it. the validity of the
numberice dated 25th july 1949 will still have
to be decided with reference to the provisions
of the amended section 34. section 31 of act
xxv of 1953 does number therefore affect the
question at issue whether the extended period
of limitation of eight years would apply to
the assessee when the period of limitation
applicable to the assessee had expired before
the amended section 34 came into force on 30th
march 1948.
for the reasons given by me in s. c. prashar income-tax
officer v. vasantsen dwarkadas  1   c. a. 705/1957  in
which judgment has been delivered today i think that the
high companyrt companyrectly answered the question referred to it. i would therefore dismiss the appeal with companyts. kapur j.-this is an appeal against the judgment and order
of the high companyrt of madras. the appellant is the
commissioner of income-tax and the respondent is the
assessee and the year of assessment is 1942-43.
the respondent is the wife of one sheikh abdul khadar who
was residing abroad in bangkok from september 1940 to july
1947. daring that period he remitted moneys in the name of
his agent for payment to the respondent. in the account
year the aggregate amount so remitted was rs. 9180/-. the
respondent submitted numberreturn of her income as she was
bound to do and the amount became taxable
 1  1964 vol 1 s.c.r. 29.
under s. 4  2  of the income-tax act hereinafter referred
to as the act in 1949 the income-tax officer on receipt of
definite information that such income had escaped assessment
issued a numberice under s. 34 of the act as amended by the
amending act of 1948 and an appeal was taken to the
appellate assistant companymissioner but the assessment was company-
firmed. a further appeal to the income-tax appellate
tribunal madras was also unsuccessful. the reference was
thereupon made to the high companyrt and one of the questions
referred was -
whether the proceedings under section 34 of
the indian income-tax act initiated on 25th
july 1949 to assess the amount of rs. 9180/-
which escaped assessment during the year 1942-
43 by failure to submit a voluntary return are
valid in law? it was held that the limitation of eight years prescribed by
s. 34 as amended by the amending act of 1948 did number apply
to the case of the assessee which was a case of failure to
submit the return and the period of four years had expired
before march 30 1948 when the amendment in s. 34 was made
by amending act of 1948. it was also held that s. 31 of the
amending act of 1953 was number applicable and the question was
therefore answered in the negative. against that judgment
and order the companymissioner of income-tax has companye in appeal
to this companyrt. this case is governed by the decision in c. a. number 705 /57

c. prashar income-tax officer v. vasantsen dwarkadas
 1  the judgment in which has been delivered today. the
appeal is therefore dismissed with companyts. the appellant was
granted the certificate by the high companyrt expressly on the
condition that he would pay the companyts of this appeal in any
event to which he had agreed.  1 1964 vol. 1 s.c.r. 29.
sarkar j.-the respondent in this appeal is the assessee. she is the wife of one sheikh-abdul khader who lived in
siam. in the year 1941-42 she received from her husband
from siam a sum of rs. 9180/-. it is number disputed that
this amount companystituted income in her hands within s. 4
 2  of the income-tax act 1922. she did number however submit
any return in respect of it. on july 25 1949 a numberice
under s. 34 of the act was issued to her asking her to file
a return. thereafter she was assessed on the aforesaid
income on october 24 1949. she appealed from that order
but was unsuccessful in having the assessment set aside. at
her request the appellate tribunal submitted the following
question to the high companyrt at madras for its decision
whether the proceedings under section 34 of
the indian income-tax act initiated on 25th
july 1949 to assess the amount of rs. 9180/-
which escaped assessment during the year 1942-
43 by failure to submit a voluntary return are
valid in law ? the high companyrt answered the question in the negative. the
revenue authorities have therefore companye up in appeal. section 34 companytains provisions for assessment and re-
assessment in cases where income for any year has number in the
relevant assessment year been fully assessed for the reasons
mentioned in it. with these reasons it is number necessary to
trouble ourselves in this appeal. sub-section  1  of s. 34
deals with the period of time within which a numberice calling
for a return of the escaped income may be served and sub-s.
 3  deals with time within which the assessment can be made. this section was amended by the income-tax and business
profits tax  amendment  act 1948. this act was passed on
september 8 1948 but the section which amended s. 34 of
the income-tax act was brought into force retrospectively
from march 30 1948. it is number in dispute that under s. 34
as it stood before the amendment the time to issue the
numberice calling for a return and to make the assessment in
this case had expired on march 31 1947 that is on the
expiry of four years after the year in which the escaped
income was first assessable namely 1942-43. it is number in
dispute either that under s. 34 as it stood after the
amendment in 1948 the numberice companyld be served and an
assessment made within eight years from the end of that
year that is in this case within march 31 1951. the
numberice and the assessment order impugned in this case have
therefore to be held to be valid if s. 34 after its
amendment in 1946 was applicable. it is the companytention of
the appellant that it was so applicable. the high companyrt
held that the time having already expired under the existing
law the amended section 34 companyld number be given retrospective
operation to validate the numberice and the order of
assessment. number on may 24 1953 was passed the income-tax  amendment
act 1953  xxv of 1953  which was brought into force
retrospectively from april 1 1952. this act companytained a
section namely s. 31 which to my mind makes s. 34 as
amended by the 1948 amending act applicable to the
proceedings in this case. i am unable to accept the high
courts view to the companytrary and regret my inability to
comprehend the reasons on which that view is based. that
section also amended sub-s.  3  of s. 34 so as to include in
it provisions regarding the time of the issue of the numberice
but we will number be companycerned with this amendment in this
appeal. number s. 31 is in these terms
section 31. for the removal of doubts it is hereby
declared that the provisions of
sub-sections  1   2  and  3  of section 34 of the principal
act shall apply and shall be deemed always to have applied
to any assessment or re-assessment for any year ending
before the 1st day of april 1948 in any case where
proceedings in respect of such assessment or re-assessment
were companymenced under the said sub-sections after the 8th day
of september 1948 and any numberice issued in accordance with
sub-section  1  or any assessment companypleted in pursuance of
such numberice within the time specified in sub section 3
whether before or after the companymencement of the indian
income-tax  amendment  act 1953 shall numberwithstanding any
judgment or order of any companyrt appellate tribunal or
incometax authority to the companytrary be deemed to have been
validly issued or companypleted as the case may be and numbersuch
numberice assessment or re-assessment shall be called in
question on the ground merely that the provisions of section
34 did number apply or purport to apply in respect of an
assessment or re-assessment for any year prior to the 1st
day of april 1948.
numberquestion as to sub-s.  2  of s. 34 mentioned in this
section arises in this appeal and that sub-section may be
left out of companysideration. it seems to me quite plain that s. 31 of the 1953 act
applies sub -ss.  1  and  3  of s. 34 of the income-tax act
1922  hereafter called the principal act  as it stood after
the 1948 amendment to assessment proceedings in respect of
years ending before april 1 1948 where the proceedings
commenced after september 8 1948 and makes the validity of
the proceedings depend on that section as so amended. indeed the companytrary has number been companytended at the bar. it
has to be remembered that the amending act of 1948 was
passed on september 8 1948
but it was given retrospective effect from march 30 1948.
it may be stated that the amending act repealed the existing
s. 34 of the principal act and substituted for it a new
section. i think it is quite clear that the pre-existing s.
34 which was repealed by the 1948 amendment companyld number have
applied to proceedings companymenced after repeal. there was no
question of applying the pre-existing law to such
proceedings. but where the proceedings related to a period
when the per-existing law was in force there might be some
doubt as to which law was to apply. section 31 was enacted
to remove that doubt and to make s. 34 of the principal act
as it stood after the 1948 amendment applicable to these
proceedings. that is why the words shall always be deemed
to have applied are used they emphasise that the amended
section is deemed always to have applied to proceedings even
in respect of a period when the amendment had number been made. the latter part of s. 31 also makes this view equally clear. it says that numbernumberice or order of assessment shall be
called in question on the ground that s. 34 did number apply in
respect of assessment for a year prior to april 1 1948.
section 34 here companytemplated must be the section as amended
in 1948 for if it was number so then it would be the pre-
existing section which of companyrse would have applied if number
repealed to an assessment for a year ending prior to april
1 1948 and numberquestion of its number so applying would have
arisen. i thus arrive at the companyclusion that under s. 31 of the 1953
act the provisions of sub-ss.  1  and  3  i leave sub-s.
 2  out as irrelevant-of s. 34 of the principal act as
amended in 1948 are to be applied and deemed always to have
applied to assessment proceedings in respect of a year ended
before april 1 1948 where the proceedings were companymenced
after september 8 1948 a numberice issued and an order of
assessment made in such proceedings are to
be held valid if the numberice is issued in accordance with
sub-section  1  of s. 34 as it stood after the 1948
amendment and the assessment is companypleted in pursuance of
such numberice within the time specified in sub-section  3  of
the same s. 34. number the numberice and assessment in tie
present case satisfy all these companyditions. to them
therefore s. 34 as amended in 1948 applies. judged by that
section admittedly the numberice and assessment order are
unexceptionable. it is true that in the present case when the numberice was
issued and the assessment made the time to do either under
the law as it stood before the 1948 amendment had expired. it may be that law would have applied to it if the 1953 act
had number been passed. it may also be as was said in the
calcutta discount company  1  case that by itself the 1948
amendment of s. 34 would number have permitted assessment
proceedings in respect of 1942-43 to be companymenced in 1949
when under the previous law the time to issue a numberice and
to make an assessment for that year had expired before the
1948 amendment had companye into force. all this however is to
numberpurpose. numbersuch question arises here. the legislature
had undoubtedly the power to makes. 34 as amended in 1948
apply to an assessment for 1942-43 by giving it a
retrospective operation inspite of the time to issue a
numberice and to make an assessment fixed by the preexisting
law having expired before the amendment came into effect. the question really is one of interpretation namely
whether the legislature had given such retrospective
operation. number it seems to me that s. 31 of the 1953 act clearly gives
s. 34 of the principal act as amended in 1948 such
retrospective operation. it plainly makes s. 34 as so
amended applicable to assessments for years ended before the
amendment came into force. it does number say that s. 34 as
amended is to apply to assessments for these years only when
the time to

i.a.r.  1953  cal. 721.
issue the numberice or make the assessment in respect of these
years under the pre-existing law had number expired. it
applies the amended s. 34 to any assessment for any year
ending before the 1st day of april 1948 in an case where
proceedings  were companymenced after the 8th day
of september 1948. likewise any numberice and any assessment
in respect of any year ending before april 1 1948 is to be
held valid if valid under s. 34 as amended in 1948. i find
numberjustification in view of the language used to interpret
s. 31 as applying s. 34 as amended in 1948 only to cases
where thetime to issue the numberice and make the assessment
hadnumber expired while the pre-existing law was in force.the
latter part of s. 31 seems to lead independently to the same
conclusion. it makes any numberice issued in accordance with
sub-section  1  or any assessment companypleted in pursuance of
such numberice within the time specified in sub-section  3
valid. all that is necessary is that all numberices and
assessment orders in respect of years ending before april 1
1948 in proceedings companymenced after april 81948 shall
comply with the provisions of s. 34 as amended in 1948. so
a numberice and an assessment order valid under s. 34 as
amended in 1948 would be valid even if the time prescribed
in respect of them by s. 34 as it stood before the 1948
amendment had expired. in my view for these reasons s. 34 of the principal act as
amended in 1948 applies to the numberice-issued and the
assessment order made in this case. both of them are valid
under s. 34 as so amended. the high companyrt should have
answered the question framed in the affirmative. in the result i would allow the appeal and set aside the
order of the high companyrt.


civil appellate jurisdiction civil appeals number. 602 and
603 of 1974.
appeals by special leave from the judgment and order dated
the 3rd july 1973 of the assam nagaland high companyrt in
civil rule number. 1000 and 1001 of 1969.

n. sinha and s. n. chowdhary for the appellant. k. sen j. p. bhattacharjee p. h. parekh and miss
manju jetley for respondent. the judgment of the companyrt was delivered by
kailasam j. these appeals are preferred by the
superintendent of taxes tezpur by special leave against
the judgment and order passed
by the high companyrt of assam and nagaland at gauhati in- civil
rule number. 1000 and 1001 of 1969.
the respondent is m s. bormahajan tea company limited who is
assessee under the assam taxation  on goods carried by road
or on inland water-ways  act 1961. the assam taxation  on
goods carried by road or on inland water-ways  act was
passed in 19 5 4. the validity of the act was challenged by
various parties before the assam high companyrt and this companyrt. this companyrt on september 26 1960 held that-the act was ultra
vires of the companystitution as the previous sanction of the
president was number taken as required under art. 304 of the
constitution. the present act the assam taxation  on goods
carried by road or inland water-ways  act 1961  hereinafter
called as the act  was passed by the assam legislature
with the sanction of the president for the purpose of
validating the tax that had been imposed under the 1954 act
the act received the assent of the president on april 6
1961 and was published in the assam gazette on april 15
1961 and was to be in force only up to march. 31 1962. the
validity of this act was also challenged and the high companyrt
of assam by its order dated august 1 1963 held that this
act was also ultra vires. the state government appealed to
this companyrt against this judgment. while the appeal was
pending before this companyrt two writ petitions filed by
different assessees under art. 32 of the companystitution before
this companyrt were disposed of on december 13 1963 holding
that the act was valid. on an application made by the
government of assam pending the appeal against the order
dated august 1 1963 of the assam high companyrt this companyrt
granted stay of the operation of the judgment of the high
court and on january 29 1965 made the stay absolute subject
to the companydition that the assessment proceedings companyld
continue but numberlevy should be made. on april 1 1968 this
court reversed the judgment dated august 1 1963 of the
assam high companyrt and held the present act to be valid. though the present act was passed in 1961 as the matter was
pending before the companyrts the assessment proceedings companyld
number be taken up till january 29 1965 when this companyrt
allowed the assessment proceedings to be companytinued. the two appeals before us relate to the assessment quarter
ending september 30 1960 and december 31 1960. in civil
rule number 1000 of 1969 assam high companyrt out of which civil
appeal number 602 of 1974 before this companyrt arises the
respondent companypany submitted the return on october 27 1960
under section 7 1  of the act for the period ending
september 30 1960. the respondent submitted the return
without paying tax on the return as required under section
20  2  of the act. in civil rule number 1001 of 1969 in the
assam high companyrt out of which civil appeal number 603 of 1974
arises in this companyrt the respondent submitted a return on
february 14 1961 for the quarter ending december 31 1960
under section 7 1  of the act. the return under section
7 1  has to be submitted under section 7 3  within 30 days
of the companypletion of the quarter in respect of which the
returns are to be filed. in this return also numbertax as
required was paid prior to the submission of the return. it
may be numbered that
while in civil appeal number 602 of 1974 the return was filed
within time but without payment of tax in civil appeal number
603 of 1974 the return was filed out of time and without
payment of the tax. orders of assessments were passed in both the cases on june
19 1969 in pursuance of the provisions of section 9 4  of
the act. it is the companymon case that numbernumberice either under
section 7 2  or section 1 1 of the act was served on the
respondent for the submission of the return for the periods
in question. in the high companyrt the respondent-submitted
that order of assessment made by the revenue on june 19
1969 is number valid in law on two grounds. firstly it was
contended that as the return in civil rule number 1000 of 1969
was filed without the necessary deposit of the tax the
return is number a return within the meaning of section 7 1
and numberassessment proceedings can be taken on that it was
further submitted that as numbernumberice as companytemplated under
section 7 2  and section 11 of the act directing the
assessee to show cause why assessment proceedings should number
be initiated within 2 years from the date of the expiry of
the return period was issued numberassessment proceedings
could be validly initiated as. it became time-barred under
section 7 2  of the act. the plea on behalf of the
government was that the demand by the taxing officer under
section 9 3  of the act is in pursuance of the return filed
voluntarily by the assessee though without payment of the
tax and out of time and that it can be taken as a return and
assessment made under section 9 of the act. in this view
the submission was that it is number necessary for the tax
authorities to issue any numberice under section 7 2  within 2
years from the date on which the return ought to have been
submitted. the high companyrt held that as under section 7 1
the return must be submitted within a period of 30 days
after the companypletion of the return quarter the return
submitted after the statutory period must be held to be number-
est for the purpose of initiating assessment proceedings
based thereon and as numberaction had been taken either under
section 7  2  or section 11 of the act in the present case
the assessment order dated june 19 1969 is beyond the
competence of the authorities. with regard to civil rule
number 1000 of 1969 the high companyrt came to the same companyclusion
on the ground that though the return was admittedly
submitted within the prescribed time the tax due on that
return was number paid and as payment of tax before
furnishing a return under section 7 1  of the act is
mandatory such failure would result in making the return
number-est and therefore numberfurther proceedings can be taken or
such a defective return. in the result the high companyrt held
that the return submitted in civil rule number 1000 of 1969
although within the prescribed period is number a return
within the meaning of section 7 1  and that the return in
civil rule number 1001 of 1969 as it was beyond the prescribed
period and without payment of tax cannumber be treated as a
return under section 7 1  of the act and as admittedly no
proceedings were taken under section 7 2  of the act the tax
authorities were number companypetent to proceed with the
assessment. in the appeals before us mr. lal narain sinha the learned
counsel for the appellant submitted that the high companyrt was
in error in hold-
ing that the return submitted by the respondent is number est. the learn- ed companynsel referred to section 7 1  which
requires that the return shall be furnished in such form and
to such authorities as may be prescribed the form is
prescribed by assam taxation  on goods carried by road or on
inland water-ways  rules 1961. rule 6 prescribes that the
return shall be furnished in form number 1 and rule 7 requires
that return shall be signed and verified by the dealer or
producer or his agent. form number 1 under the rules requires
in companyumn e that the amount paid with the challan number and
date should be numbered. section 20 prescribes the manner in
which the tax shall be paid. section 20 2  provides that
before any producer or dealer furnishesthe return required
by sub-section  1  of section 7 he shall in the prescribed
manner pay into the government treasury the full amount of
tax due from him under this act on the basis of such return
and shall furnish along with the returns a receipt from such
treasury in token of payment of such tax. section 13
provides penalty for failure to pay tax. it was submitted
by mr. lal narain sinha that a return is companyplete and valid
when it is submitted in such form and to such authority as
prescribed by the rules and the fact that there was any
defect in the return such as number-payment of tax as required
under section 20 2  or delay in filing the return within the
time prescribed under section 7 3  the return will number
become number est. the companysequence of filing a defective
return is number to make the return number est but to make the as-
sessee liable to penalty under section 13 of to other
proceedings. so long as ther is a return the learned
counsel submitted that it was number necessary for the tax
authorities to proceed under section 7 2  which is
applicable to cases where numberreturn has been submitted. in
support of his companytention that any defect in the return
would number make the return number est the learned companynsel
referred us to three decisions. a.i.r. 1931 cal. 476

i.r. 1932 p. c. 165 and 48 i.t.r. 1. in chandra nath
bagchi vs. nabadwip chandra dutt and others l  the judgment
debtor pleaded want of numberice under order 21 rule 22 of the
civil procedure companye which requires that an opportunity
should be given to the judgment-debtors against whom
execution is taken out more than a year after the decree to
show cause why execution should number proceed. it was
admitted that numbersuch numberice was in fact given but as the
judgment-debtor in that case was actively litigating
objecting to the execution being taken against him he
cannumber be permitted to plead failure of numberice under 0.21
rule 22. chief justice rankin while accepting the
requirement that a numberice under 0.21 rule 22 is necessary
found that in the case before him the parties have been
litigating actively with each other upon the question
whether the execution should proceed and how it should
proceed. in the circumstances the learned c. j. observed
it appears to me to be merely piling unreason upon
technicality to hold upon the circumstances of this case
that it is open to the judgment-debtors on these grounds to
object to the jurisdiction of the companyrt because they have
number got a formal numberice to do something namely to dispute
the execution of the decree when in point of fact they were
busy disputing about it in all the companyrts for the best part
of the last two years. relying on the above observation the
learned companynsel submitted that the respondent who challenged
the

t.r. 1931 cal. 476.
validity of the assessment for several years and who have
the return  cannumber number companytend that the assessment is number
valid having been filed beyond time or without payment of
the tax. in nagendra nath dey and anr. vs. suresh chandra dey and
others 1  the judicial companymittee held that anyapplication
by a party to an appellate companyrt asking it to set aside or
revise a decision of a subordinate companyrt is an appeal
within the ordinary acceptation of the term and that it is
numberless an appeal because it is irregular or incompetent. relying on this decision it was submitted that the return is
numberless a return though it was defective in that tax was number
paid and was presented out of time. in gursahari saigal vs. companymissioner of income-tax punjab
 2  the supreme companyrt was companystruing section 18a 6  and  8
ofthe indian income-tax act 1922. sub-section
 6  provided thatwhen the tax paid on the basis of his
own estimate is less than 80 of the tax determined on the
basis of the regular assessment simple interest at the rate
of 6 per annum from the first day of january in the finan-
cial year in which the tax was paid up to the date of the
said regular assessment shall be payable by the assessee
upon the amount by which the tax so paid falls short of the
said eighty per cent. according to the sub-section interest
has to be calculated from first january in the financial
year in which the tax mentioned was paid and such
calculation has to be made on the short-fall between the
amount paid and 80 per cent of the tax which was found
payable on the regular assessment. according to sub-section
 8  where on making the regular assessment income-tax
officer finds that numberpayment of tax has been made in
accordance with the provisions of this section interest
calculated in the manner laid down in sub-section  6  shall
be added to the tax as determined on the basis of regular
assessment. the assessees companytention was that since he had
number paid any tax at all it is number possible to calculate
interest in the manner laid down in sub-section  6 . the
plea was that in a case in which numbertax had been paid at
all sub-section  6  will have numberapplication as there is no
short-fall between 80 per cent of the tax payable on
regular assessment and the amount actually paid. the companyrt
rejected the plea and held that sub-section  6  should be
read according to the provisions of which interest has to be
calculated as provided in sub-section  8  in farmer which
makes it workable and thereby prevent the clear intention of
sub-section  8  being defeated. the companyrt further held
that the intention was that interest should becharged
from first january of the financial year in which the tax
oughtto have been paid and those who paid the tax but a
smaller amount and those who did number pay tax at all would
then be put in the same position substantially. on the
strength of the decision it was submitted that the
respondent who had number paid the tax cannumber take advantage of
his omission and say that the assessment proceedings cannumber
be proceeded with on the return submitted.  1  1932 p.c. 165.  2  48 i.t.r. 1.
on a reading of section 7 1  and section 20 2  of the act it
cannumber be said that the submission of the learned companynsel
for the appellant that it is number necessary that the tax
should be paid before valid return is submitted is without
substance. on the facts of the case we feel we are number
called upon to decide this question. certain enactments as
pointed out by the high companyrt provide that the return
submitted will number be valid unless it is accompanied by
treasury receipt showing payment of tax  vide sub-section
 6  of section 19 of the assam agricultural income-tax act
1939 . section 16 of the assam sales-tax act 1947
providesthat numberreturn submitted under this section shall
be valid unless it isaccompanied by a treasury receipt
showing payment of the tax due. section 7  l  of the act
merely requires that the return should be furnished in such
form and to such authority as may be prescribed. the
returns were admittedly submitted to the authorities. though the form requires mentioning of the particulars of
the treasury challan for the payment of the tax it was
submitted that the return furnished without payment of the
tax cannumber be said to be return at all. it was further
pleaded that the failure to pay the tax as required under
section 20 2  will number make the return number-est. we refrain
from deciding this question. mr. a. k. sen the learned companynsel for the respondent
submitted that this companyrt should number allow the plea put
forward on behalf of the appellant that the return was a
valid ode as it was admitted that the assessment did number
proceed on the return submitted. he referred to the
judgment of the high companyrt wherein it is stated it is
also the admitted position in both these cases the
superintendent of taxes treated the returns filed as invalid
ones. it was submitted that the tax authorities cannumber number
be allowed to change their front and submit that they
proceeded to assess on the basis of the returns furnished by
the respondent. it is companymon ground that numbernumberice under
section 7 2  of the act within 2 years of the expiry of the
return period was issued to the respondent. this companyrt by
a majority in supdt. of taxes dhubri and others vs.
onkarmal nathmal trust etc.  1  has held that before
proceedings companyld be taken under section 9 4  it is manda-
tory that numberice under section 7 2  will have to be issued. therefore the only approach that is available to the state
and which has been taken by the learned companynsel is that the
assessment proceedings are valid as the return is number number-
est. the question that arises for companysideration is whether
we should allow this plea to be taken by the state when it
admitted before the high companyrt that the assessment was number
based on the return. it has to be seen that the ground that
was urged by the respondent was that the returns were number-
est which was accepted by the high companyrt. we do number think
we will be justified in these appeals under art. 136of
the companystitution to permit the state to companytend that it can
proceed onthe basis that the returns were valid
especially when the plea before the high companyrt was that the
returns were invalid. this companyrt has repeatedly held that
the exercise of power under art. 1.36 is discretionary.  vide trivedi vs. nagrashra  2  in state of gujarat ors
vs. gujarat revenue tribunal ors.  3  this companyrt
 1 1975 supp. s.c.r. 365 at p. 375
 2  1961 s.c.r. 113 117.  3  1976 3 s.c.r.


civil appellate jurisdiction civil appeal number 653
of 1979.
appeal by special leave from the judgment and order
dated the 14th august 1978 of the delhi high companyrt in s. a.

number 166173.

r. lalit and b. p. maheshwari for the appellant. k. goel for the respondent. the judgment of the companyrt was delivered by
chandrachud cj. the appellant is a tenant of the
respondents in respect of one room in a house at kamla
nagar new delhi. the rent of the room is rs. 10/- per
month. on march 19 1967 the respondents filed an
application for possession of the room on two grounds one
that the appellant was in arrears of rent and two that
they required the room bona fide for their own use and
occupation. an order was passed by the rent companytroller in
that proceeding under section 14  2  read with section 15
 1  of the delhi rent companytrol act 1958  hereinafter called
the act  calling upon the appellant to pay or deposit the
arrears of rent within one month. the appellant companyplied
with that order whereupon on april 1 1968 respondents
withdrew the ejectment application with liberty to file a
fresh application. the reason stated by the respondents for
withdrawing the application was that they had number given to
the appellant a numberice to quit under section 106 of the
transfer of property act and that therefore the
application was liable to fail for a formal defect. immediately thereafter on april 7 1968 respondents
gave a numberice to quit to the appellant terminating his
tenancy with effect
from may 9 1968. on may 13 1968 respondents filed a fresh
application for possession against the appellant on the
ground that they required the room bona fide for their
personal use. that application was dismissed on february 14
1969.
on march 9 1971 respondents filed the instant
application against the appellant for possession of the room
on the ground that the appellant was in arrears of rent from
april 1968 until march 1971. in this proceeding the learned
additional rent companytroller delhi refused to pass an order
under section 15  1  of the act on the ground that such a
benefit was given to the appellant in the first eviction
petition and that by reason of the proviso to subsection
 2  of section 14 of the act the appellant companyld number claim
that benefit once again. in that view of the matter the
rent companytroller passed an order of eviction against the
appellant. the appeal filed by the appellant against the order of
eviction was allowed by the rent companytrol tribunal which
took the view that the appellant was entitled to the benefit
of the provision companytained in section 14  2  of the act and
that the proviso to that subsection had numberapplication
because the benefit of the provision companytained in section
14  2  was being availed of by the appellant for the first
time in the present proceedings. according to the tribunal
the first ejectment application filed by the respondents
against the appellant was dismissed because respondents
asked for leave to withdraw that application with liberty to
file a fresh application on the ground that they had number
served a numberice to quit on the appellant and number on the
ground that the appellant had companyplied with the order passed
under section 15  1  of the act. the judgment of the rent companytrol tribunal was set
aside in second appeal by the high companyrt of delhi. the high
court took the view that though the first ejectment
application was withdrawn by the respondents on the ground
that they had number given a numberice to quit to the appellant
that cannumber alter the position that the appellant had
availed of the benefit of the provision companytained in section
14  2  of the act. therefore according to the high companyrt
by reason of the proviso to section 14  2  the appellant
was number entitled to invoke the provisions of section 15  1
of the act. by this appeal the tenant challenges the
correctness of the judgment of the high companyrt. section 14 of the act companytains provisions which are
more or less similar to the provisions companytained in various
other rent acts. sub-section  i  of that section companytains the prohibitory
provision that numberwithstanding anything to the companytrary
contained in any other law or companytract numberorder or decree
for the recovery of possession of any premises shall be made
by any companyrt or companytroller in favour of the landlord against
a tenant. the proviso to that subsection enables or entitles
a landlord to obtain possession of the premises let out to
a tenant on one or more of the grounds only which are
mentioned in clauses  a  to  i  of the sub-section. clause
 a  of the proviso enables 3 landlord to obtain possession
if the tenant has neither paid number tendered the arrears of
rent within two months from the date on which the numberice of
demand for the arrears of rent has been served on him by the
landlord in the manner prescribed by section 106 of the
transfer of property act. under clause  e  of the proviso
the landlord can obtain possession of the residential
premises let out to the tenant on the ground broadly that
the premises are required by him for a personal need. subsection  2  of section 14 reads thus
14  2 - numberorder for the recovery of
possession of any premises shall be made on the ground
specified in clause  a  of the proviso to sub section
 1  if the tenant makes payment or deposit as required
by section 15
provided that numbertenant shall be entitled to
the benefit under this sub-section if having obtained
such benefit once in respect of any premises he again
makes a default in the payment of rent of those
premises for three companysecutive months
section 15 1  of the act reads thus
15  1  in every proceeding for the recovery of posses-
sion of any premises on the ground specified in clause  a
of the proviso to sub-section  i  of section 14 the
controller shall after giving the parties an opportunity of
being heard make an order directing the tenant to pay to
the landlord or deposit with the companytroller within one month
of the date of the order an amount calculated at the rate
of rent at which it was last paid for the period for which
the arrears of the rent were legally recoverable from the
tenant including the period subsequent thereto up to the end
of the month previous to that in which payment or deposit is
made and to companytinue to pay or deposit month by month
by the fifteenth of each succeeding month a sum
equivalent a to the rent at that rate. sub-section  6  of section 15 provides that if a
tenant makes payment or deposit as required by sub-section
 1  numberorder shall be made for the recovery of possession
against him on the ground of default in the payment of rent
by him. on the other hand if a b tenant fails to make
payment or deposit as required by section 15  1  the
controller may order the defence of the tenant to be struck
off under sub-section  7  and proceed with the hearing of
the ejectment application. the rent of the suit premises is small only rs. 101
per month. the tenant of companyrse is much too small as would
appear from the fact that he companymitted default in the
payment of rent at that rate for a long time. but quite
often small tenants have small landlords who are entitled to
expect that the tenants will pay at least the small rent
regularly and number drive them to a companyrt proceeding which is
bound to companyt more than the amount of arrears of rent which
is at stake. this seemingly insignificant case raises a
question of some public importance which is partly
evidenced by the fact that the learned judges of the delhi
high companyrt have taken companyflicting views upon the question
those views were explained carefully and those judgments
were read out to us by shri a. k. goel who appears on behalf
of the respondents. we do number propose to embark upon an
analysis of these judgments since that exercise is number
likely to prove fruitful the reason is that the facts of the
various cases which were before the high companyrt differed from
case to case which partly accounts for the divergent views
expressed by different learned judges of the high companyrt. with respect some of the judgments cited before us overlook
that previous decisions turned on their own peculiar facts. it is companytended by shri lalit who appears on behalf
of the appellant that the proviso to sub-section  2  of
section 14 can have numberapplication to the instant case
because in the first ejectment proceeding which was filed
by the respondents against the appellant the latter had number
obtained any benefit under that sub-section. on the other
hand it is companytended by shri goel that in a tenant avails
of the benefit of an order passed under section 15  1  he
must be regarded as having obtained the benefit of the
provision companytained in section 14  2 . according to the
learned companynsel the object of the proviso to section 14  2
is to ensure that an order under section
15  1  is number passed in favour of a tenant more than once. therefore it is companytended the final result of the eviction
petition in which an order was passed under section 15  1
for the first time or the form of the final order passed in
that proceeding has numberrelevance on the question whether
the tenant had obtained benefit of the provision companytained
in section 14  2 . we are of the opinion that the appellants companytention
is preferable to that of the respondents having regard to
the language of section 14  2  of the act and of the proviso
to that section. putting it briefly that section provides
that numberorder for the recovery of possession of any
premises can be made on the ground that the tenant has
committed default in the payment of rent if he pays or
deposits the rent in accordance with the provisions of
section 15. the benefit which the tenant obtains under
section 14  2  is the avoidance of the decree for
possession. though he had companymitted default in the payment
of rent numberdecree for possession can be passed against him
this benefit accrues to the tenant by reason of the fact
that he has companyplied with the order passed by the companytroller
under section 15 of the act. the passing of an order under
section 15 is number a benefit which accrues to the tenant
under section 14  2 . it is obligatory upon the companytroller
to pass an order under section 15  1  in every proceeding
for the recovery of possession on the ground specified in
section 14  1   a  that is on the ground that the tenant
has companymitted default in the payment of rent. that is a
facility which the law obliges the companytroller to give to the
tenant under section 15. it is through the medium of that
facility that the tenant obtains the benefit under section
14  2 . and that benefit companysists in the acquisition of an
immunity against the passing of an order of possession on
the ground of default in the payment of rent. it must follow
that it is only if an order for possession is number passed
against the tenant by reason of the provision companytained in
section 14    that it can be said that he has obtained a
benefit under that section. the key words of the proviso to
sub-section  2  of section 14 are provided that numbertenant
shall be entitled to the benefit under this sub-section. that brings out the relevance of the nature of the
order which was passed in the earlier proceeding in which
the tenant had companyplied with the order passed by the
controller under section 15. it the earlier proceeding was
withdrawn by the landlord it cannumber be said that the tenant
obtained the benefit of number having had an order of
possession passed against him. it is self-evident that if a
proceeding
ends in an order granting permission for its withdrawal it
cannumber a possibly be said that numberorder for the recovery of
possession was passed therein for the reason that the tenant
had made payment or deposit as required by section 15.
that is the gist of section 14  2 . the stage or occasion
for passing an order to the effect that numberorder for
possession can be passed because of the fact that the tenant
has companyplied with the order passed under section 15 does
number arise in the very nature of things in a case wherein
the landlord is permitted to withdraw the application for
ejectment of the tenant. there are two circumstances which must be borne in
mind in this case though we must add they will number make
any difference to the legal position which is stated above. the first circumstance is that the respondents asked for
leave to withdraw the earlier ejectment application. in
which the appellant that duly companylied with the order passed
by the companytroller under section i c on the ground that the
application was liable to fail for a formal defect since
they had number given a numberice to quit to the appellant under
section 106 of the transfer of property act. thus the
reason leading to the termination of the earlier ejectment
application was that the respondents wanted to care the
formal defect from which the application suffered and number
that numberorder for possession companyld be passed against the
appellant for the reason that he had companyplied with the order
passed under section 15. in other words there was numbernexus
between the final order which was passed in the earlier
ejectment application and the fact that the appellant had
complied with the order passed under section 15. the second
circumstance which must be mentioned is that the earlier
ejectment application was founded on two grounds namely
that the appellant had companymitted default in the payment of
rent and that respondents wanted the premises for their
personal need. the fact that the first of these grounds was
numberlonger available to the respondents since the appellant
had companyplied with the order passed under section 15 companyld
number have resulted in the dismissal of the ejectment
application because the other ground on which eviction of
the appellant was sought by the respondents had yet to be
considered by the rent companytroller. this is an additional
reason why it cannumber be said on the facts of this case that
the appellant obtained a benefit under section 14  2 . at
the companyt of repetition we must clarify that the two
circumstances which we have just mentioned will number make any
difference to the fundamental legal position which we have
explained above that the proviso to section 14  2  can be
attracted only if it is shown that the tenant had obtained
the benefit of the provision companytained in that section and
number otherwise. as we have stated earlier several companyflicting
decisions of the high companyrt of delhi were read out to us it
is both needless and difficult to companysider them
individually. we will only indicate that on facts similar
to those before us the view taken by d. k. kapur j in
rama gupta v rai singh kain 1  is the companyrect view to take
the learned judge held in that case that since the landlord
had withdrawn the earlier eviction petition it companyld number be
said that the tenant had derived a benefit under section 14
 2  of the act. in kahan chand makan v s. bhambri  a  a
division bench of the delhi high companyrt numbericed the
conflicting judgments rendered by the different benches of
the high companyrt including the judgment of d. k. kapur j.
in rama gupta v. rai singh kain- it is number possible to say
with certainty whether the view taken by d. k. kapur j.
was approved because the judgment of the division bench
refers to various derisions of the high companyrt without
stating which of those is companyrect and which number. in any
case the companyclusion recorded by the division bench in
paragraph 13 of its judgment seems too broad to apply to
varying situations. besides the learned judges with
respect. have apparently companyfused the availing of the
facility under section 15 by the tenant with the benefit
which accrues to him under section 4  2  . they say
we therefore hold that where a deposit of
arrears of rent has been made by the tenant in
compliance with an order specifically passed under
section 15  1  of the act in the companyrse of proceedings
initiated for his ejectment under section 14  1   a
the benefit cannumber be availed of in a subsequent
proceeding for his ejectment on the same ground. the
existence and proof of such an order in an earlier
proceeding companyered by section 14  1   a  is essential
in order to deprive the tenant of the protection which
section  i4  2  gives him. the benefit which the proviso to sub-section  2  of
section 14 speaks of is the benefit under this sub-
section and number the benefit under section 15.
a recent decision of a learned single judge of the
delhi high companyrt is reported in ashok kumar v. ram gopal-

that was a typical case which attracted the proviso to
section 14 2 . the landlord
 1  1972 all india rent companytrol journal 712.

air 1977 delhi 247.  3  1982 2 rent companytrol journal 29.
therein had filed an application under section 14 1  a  in
1973 for the a eviction of the tenant on the ground of number-
payment of rent. the rent companytroller passed an order under
section 15  1  which was duly companyplied with by the tenant. thereupon the landlords application was dismissed by the
controller. in may 1979 the landlord filed anumberher petition
for possession against the tenant on the ground that he had
committed default in the payment of rent. it was held by n
kirpal j and rightly that since the tenant had obtained
the benefit of section 14  2  in the previous ejectment
application he was number entitled to the benefit of that
section once again. for these reasons we allow the appeal set aside the
judgment of the high companyrt and restore that of the rent
control tribunal with the modification that the period of
one month for depositing the arrears of rent shall be
computed from the date of this judgment. if the appellant
deposits the arrears of rent due until december 31 1984 on
or before january 12 1985 the respondent application for
possession will stand dismissed.