civil appellate jurisdiction c.a. number 1239 of 1970.
appeal under section 116-a of the representation of the
people act 1951 from the judgment and order dated february
13 1970 of the madras high companyrt in election petition number 1
of 1969.

k. venugopal r. gopalakrishnan and t. l. garg for the
appellant. k. ramamurthi vineet kumar s. s. khanduja and n.
natrajan for the respondent. the judgment of the companyrt was delivered by
hegde j. this is an election appeal arising from a judgment
of the madras high companyrt. it relates to the election to the
ariyankuppam assembly companystituency of the pondicherry legis-
lative assembly. the said election was held on march 9
1969. in that election the appellant as well as the
respondent companytested. the appellant was the companygress
numberinee and the respondent was. the numberinee of the d.m.k. after the companynting of votes the res-
pondent was declared elected as having obtained 3774 votes
as against 3758 obtained by the appellant. the appellant
challenged the validity of the election of the respondent on
various grounds. in his election petition he alleged that
the respondent war guilty of canvassing votes on the basis
of his caste that he had bribed the voters that the
election was number companyducted property that there was improper
reception of void votes and lastly that he had incurred
expenditure more than the prescribed limit. the charge of
bribery was number pressed at the time of the trial. the other
grounds pleaded on behalf of the appellant were rejected by
the high companyrt and the election petition was dismissed. after hearing the companynsel for the parties regarding the
allegation relating to the companytravention of s. 123 6  of the
representation of the people act 1951  to be hereinafter
referred to as the act  we have companye to the companyclusion that
the respondent was guilty of an offence falling within that
section as he is proved to have incurred expenditure more
than the prescribed limit. we therefore thought that it was
number necessary to go into the other charges levelled against
the respondent. the limit of expenditure prescribed for the
constituency was rs. 2000/-. in his election return the
respondent had stated that he had incurred an expenditure of
rs. 1865/59 p. the trial companyrt came to the companyclusion which
conclusion was number challenged before us that he had
incurred a further expenditure of rs. 20/50 p. hence if the
appellant is able to establish that the respondent had
incurred at least a further expenditure of rs. 113/92 p.
then the election of the respondent will have to be set
aside under s. 100   1    b  of the act on the ground that
the respondent was guilty of the companyrupt practice falling
under s. 123 6 . the appellant had alleged in his election petition that the
respondent had suppressed in the return submitted by him
expenditure incurred under various heads such as
expenditures incurred in companynection with the holding of
election meetings hire paid for the cars used in companynection
with the elections as well as the price of petrol used for
the cars used in that companynection. we shall first take up the question of expenditure said to
have been incurred in companynection with the holding of
meetings. the allegation as regards the same is found in
paragraph 8 v  of the election petition. the material
portion of that allegation reads
the total expenditure incurred or authorised
by the respondent herein in companynection with
the election exceeded the limit prescribed
under the act and the rules made thereunder. the accounts submitted by the respondent to
the special officer  election  pondicherry
showing a sum of rs. 1865/59 are false
and unrelated to the actual expenditure
incurred or authorised by the respondent for
his purposes. in his election account the
respondent has failed to show the following
items of expenditure

the respondent held a large number of
election meetings and all these election
meetings were companyducted in a pandal where a
dias was companystructed for the speakers. all
these meetings were installed with loud-
speakers tube-lights and other electrical
fittings were also provided. the companystruction
of the pandal and dais and the installation of
loudspeakers and other electrical equipment
such as lights etc. would have at least companyt
rs. 100/- for each meeting except for the
meeting at ariyankuppam on 5-3-69 at 7.30 p.m.
when shri v. r. nedunchezian presided in which
meeting several loudspeakers and extra light
fittings were provided companyting over rs. 200.
the dates the time and the place of the
meetings are as follows

on 5-3-1969 at about 8.30 p.m. at
poornamukuppam. on 6-3-1969 at about 10.00 p.m. at
numberamkuppam. on 28-2-69 at about 8.00 p.m. at
manaveli. on 5-3-69 at about 9.00 p.m. at
manaveli. on 27-2-1969 at about 7.30 p.m. at
ariyankuppam. three other election meetings at ariyankuppam
and one meeting at periaveerampatinam were
also held at the instance of the respondent. on 23-2-1969 at about 8.00 p.m. at
ariyankuppam. on 24-2-1969 at about 8.00 p.m. it
ariyankuppam.-

on 26-2-1969 at about 8.00 p.m. at
veerampattinam. the respondents plea relating to those
allegations are found paragraph 17 of his
written statement. therein he averred
the allegations made in paragraph 8 of the
petition are totally false and they are hereby
denied. every one of the allegations made
therein are factually incorrect and false. numbere of the expenditure alleged therein was
incurred by the respondent or under his
authority. this is a general denial. the respondent did number deal
with .the various facts stated in the election petition. from those averments it is clear that the respondent denied
having arranged .any of the meeting mentioned in the
election petition. after the respondent filed his written statement the
appellant applied for and obtained permission of the companyrt
to amend certain clerical mistakes that had crept into the
election petition. after those amendments were carried out
the respondent filed an additional written statement. in
paragraph 3 of that statement the .averred thus
i state that numberpublic meeting took place
either on 27-2-1969 or on 28-2-1969 in the
manner as alleged by the petitioner in
paragraph 4 iii  and 4 iv  of the election
petition. companysequently the allegations as
amended in paragraph 8  v   iii  and 8  v   v
are also number companyrect. i further state that
numbermeeting took place on 5-3-69 at
ariyankuppam in the manner as alleged by the
petitioner in the amendment application number
2204 of 1969.
on october 13 1969 the appellant applied for amendment of
the election petition by giving some more particulars of the
meetings held by the respondent. by that application he
sough to give particulars of about six other meeting in
addition to what he had already stated in his election
petition said to have beer arranged by the respondent. the
court rejected that application on the ground that by that
application additional grounds on companyrupt practice were
sought to be included in the election petition and the same
cannumber be permitted to be done after the period prescribed
for filing the election petition was over. it may be numbered
that the trial of the case started on january 9 1970. in
the order rejecting the amendment application though the
court referred to the delay in filing the application it
did number reject is on the ground of laches number did it reject
the application on the ground that it was number a bona fide
one. the sole ground or which it was rejected was that it
was number maintainable as is sought to include additional
grounds of companyrupt practice. in our opinion the high companyrt was wholly wrong in companying to
the companyclusion that the amendment application moved on
-behalf of the appellant sought to add any new companyrupt
practice the incurring or authorising of an expenditure in
contravention of s. 77 of the act is one single companyrupt
practice. the incurring or authorising of an expenditure in
connection with the election is number by itself a companyrupt
practice. the companyrupt practice is the incurring or
authorising the expenditure of more than the prescribed
limit. hence the trial companyrt erred in thinking that each
item of expenditure is a companyrupt practice by itself. this
position is obvious from the language of the section itself. this companyrt had occasion to go into that question in d. p.
mishra and anr. v kamal narayan sharma and anr. 1 . in that
case this companyrt came to the companyclusion that the particulars
of a companyrupt practice falling under s. 123  6  may in an
appropriate case be introduced by amendment. by doing so
numberadditional ground of companyrupt practice can be said to have
been introduced. if it had been necessary for the case we
would have allowed that amendment application and sent back
the case for further trial. but for the reasons to be
presently stated we have thought it unnecessary to do so. in dealing with the expenditure incurred in companynection with
the election meetings the first and the important question
that has to be decided is as to when the election campaign
of the respondent companymenced. according to the appellant it
commenced on february 23 1969. but according to the
respondent it companymenced on february 27 1969. decision on
this question has great bearing on the other points arising
for decision. hence we shall first address ourselves to
that question. the learned trial judge did number give any
positive finding on this question. in the companyrse of his
judgment he doubted the evidence of the respondent on this
point but by taking a facile view of the evidence on record
he just rejected the evidence of the appellant as un-
acceptable and wholly accepted the evidence of the
respondent as regards the number of meetings held though he
felt that the respondent has number companye forward with a
truthful version. it is true that in election cases oral evidence has to be
examined with great deal of care because of the partisan
atmosphere companytinuing even after the election. but it will
be wrong on the part of companyrts to just brush aside the oral
evidence even when the evidence is highly probable and the
same is companyroborated by unimpeachable documentary evidence. as mentioned earlier according to the appellant the
respondent started his election campaign with a well
attended meeting on february 23 1969 at ariyankuppam. in
support of that version he examined p.ws. 3 4 7 13 16
and 19. their evidence was companyroborated by exhts. p. 15
and p. 3. but the learned trial judge rejected this evidence
without examining them. he came to the companyclusion that the
witnesses examined are partisan witnesses. therefore much
reliance cannumber be placed on their testimony. but he failed
to attach sufficient importance to the tell-tale evidence
 1  1971 i s.c.r. 8.
afforded by exhts. p. 17 and p. 35. ex. p. 15 is an
application made by the respondent to the inspector of
police c circle pondicherry. therein the respondent
stated
please grant me permission to hold a public meeting at
ariyankuppam cuddalore road in front of market on the
occasion of inauguration of my electoral office on 23-2-1969
from 9 to 12 a.m. and to make use of loud-speakers. the permission sought for was granted by the inspector. the
inspector p.w. 24 deposed that he deputed a head-constable
to companyer that meeting and report about the same. it is
gathered from the evidence of p.w. 24 that in pondicherry
before holding a meeting permission of the police will have
to be obtained and it is the usual practice there to depute
a police officer to companyer the meetings and report about the
speeches made by the speakers p.w. 24 further says that he
deputed a head-constable to companyer the meeting to be held in
connection with the inauguration of the election campaign of
the respondent and in that companynection the head-constable in
question submitted to him the report exh. p-35. the report
in question was proved through the inspector without any
objection. the report says that the election campaign of
the respondent was inaugurated by holdings a public meeting
on february 23 1969 and that meeting was addressed by as
many as eight persons in addition to the respondent. this
report was received by the inspector on the 25th of
february. despite this clinching evidence afforded by
exhts. p. 15 and p. 35 the respondent made bold to deny
the factum of having held a meeting on the 23rd. in view of
this documentary evidence the learned trial judge was
unable accept the evidence of the respondent. all the same
he opined that it was immaterial whether the election
campaign was inaugurated on the 23rd or on the 27th since
he was inclined to accept the evidence of the respondent
that he had held only seven meetings and number more. this in
our opinion is an erroneous approach. as seen earlier the
respondent has denied having held any meeting on february

but this denial cannumber be accepted as true. for the
reasons already mentioned we feel satisfied that the
respondents election campaign companymenced on the 23rd
february 1969 and in that companynection a meeting was held in
ariyankuppam on that date. before proceeding further we may at this stage mention that
though in his written statement respondent denied having
held any meeting at all a statement which on the face of it
cannumber be true-in his evidence he admitted having arranged
seven meetings. this he had to admit in view of the
receipts that be had produced along with his return. in his
evidence he admitted
that he held meetings on february 27 1969 march 5 1969
and march 6 1969 at ariyankuppam. he also admitted that he
held a meeting on march 5 1969 at poornamukuppam and on
march 6. 1969 at manaveli and again on the same day at
veerampatnam. hence admittedly he held seven meetings. let
us number proceed to see whether the appellant has
satisfactorily proved that the respondent had held any more
meetings. we have earlier companye to the companyclusion that he
had held a meeting at ariyankuppam on february 23 1969.
the appellant alleged that the respondent had held one more
meeting at ariyankuppam on february 24 1969. to prove this
fact he had examined p.ws. 3 and 4. their evidence is companyro-
borated by exh. p-16an application admittedly given by the
respondent to the police for permission for holding a
meeting on that day and ex. p.36 the police report sent in
that companynection the learned trial judge did number accept the
contention of the respondent that he had number hold a meeting
on ariyankuppam on february 24 1969. then we companye to the
meeting alleged to have been held on february 26 1969 at
veerampatinam. on this question the trial companyrt has companye to
the companyclusion that the respondent bad held a meeting at
veerampattinam on february 26 1969. on this point the oral
evidence adduced by the appellant is companyroborated by ex. p.
17 the application made by the respondent to the police for
permission to hold that meeting and p. 38 the report made
by the police. then we companye to the meeting said to have
been held at manaveli on february 28 1969. the respondent
himself admitted in his evidence that he did arrange a
meeting at manaveli on that date. in his evidence the respondent admitted as having arranged a
meeting at ariyankuppam on march 6 1969. according to him
he arranged that meeting but curiously the learned trial
judge came to the companyclusion despite that admission of the
respondent that p.w. 6 arranged that meeting as that witness
in his evidence claimed that he arranged that meeting and
spent for the same. the learned trial judge over looked the
fact that numbersuch plea was taken by the respondent in his
written statement number was it his case in his evidence that
meeting was arranged for p.w. 6.
for the reasons mentioned abovewe are satisfied that in
addition to the seven election meetings which the
respondent admitted having arranged the appellant has been
able to satisfactorily prove that the respondent had
arranged at least four more meetings. number companying to the question as to the expenditure incurred in
collection with those meetings it is numberdoubt for the
appellant
-l643supci/72
to prove the same. according to the respondent he had number
maintained any accounts in companynection with his election. the expenditure incurred for his election is specially
within the knumberledge of the respondent. he has number adduced
any evidence in that companynection. he has totally denied
having held those meetings. that denial for the reasons
already mentioned cannumber be accepted. therefore we have number
to find out what would have been the reasonable expenditure
incurred in companynection with those meetings. even according
to the respondent for the seven meetings held by him he
incurred an expenditure of more than rs. 225/-. that means
on an average he had incurred an expense of about rs. 32/-
per meeting. this is clearly an underestimate. but even if
we accept that to be companyrect for the four meetings referred
to earlier he would have incurred an expenditure of rs. 128/-. if this expense is added to the sum of rs. 1886/9
p. referred to. earlier the total expenditure incurred
exceeds the prescribed limit of rs. 2000/-. hence the
respondent is clearly guilty of the companyrupt practice
mentioned in s. 123 6 . before leaving this case it is necessary to refer to one of
the companytentions taken by mr. ramamurthi learned companynsel for
the respondent. he companytended that the police reports
referred to earlier are inadmissible in evidence as the
head-constables who companyered those meetings have number been
examined in the case. those reports were marked without any
objection. hence it is number open to the respondent number to
object to their admissibility-see bhagat ram v. khetu ram
and anr.  1 . it was next urged that even if the reports in question are
admissible we cannumber look into the companytents of those
documents. this companytention is again unacceptable. once a
document is properly admitted the companytents of that document
are also admitted in evidence though those
contents may number be companyclusive evidence. it was lastly companytended that the evidence afforded by the
police reports is number relevant. this again is untenable
contention. reports in question were made by government
officials in the discharge of their official duties. those
officers had been deputed by their superiors to companyer the
meetings in question. obviously they were deputed in
connection with the maintenance of law and order which is
the special responsibility of the police. hence the
question whether those reports were made in companypliance with
any particular provision of law is irrelevant. the first part of s. 35 of the evidence act says that an
entry in any public record stating a fact in issue or
relevant fact and

a.i.r.1929p.c.110. made by a public servant in the discharge of his official
duty is relevant evidence. quite clearly the reports in
question were made by public servants in discharge of their
official duty. the issue before the companyrt is whether the respondent had
arranged certain election meetings on certain dates. the
police reports in question are extremely relevant to
establish that fact. hence they companye within the ambit of
the 1st part of s. 35 of the evidence act. in this
connection we would like to refer to the decision of the
madras high companyrt in navaneetha krishna thevar v. ramaswami
pandia thalavar 1 . therein the learned judges observed
thus
as however the case may number stop here we
think it right to allow the petitioners in
civil miscellaneous petitions number. 845 and
1655 of 1915 for the admission of certain
documents rejected by the subordinate judge
namely  1  the decree of the zilah companyrt of
tinnevelly dated 31st may 1859 in original
suit number 4 of 1859  2  the takid of the
collector to the muzumdar on the death of the
raja in 1850  3  the reply of the muzumdar
and  4  the companylectors takid in 1853 on the
complaint of the zamindars widow as to the
conduct of maruthappa thevar who according to
the plaintiffs case was the father of
gnanapuranis mother. they will accordingly
be marked as exhibits xxxiv xxxv xxxvi and
xxxvii respectively and incorporated in the
record. the learned advocate-general did number
support the exclusion of the last three on the
ground that the companyies of companyrespondence kept
in the companylectors and taluk offices were number
signed but companytended that they were number
admissible under section 35 of the indian
evidence act. we think however that companyies of
actual letters i made in registers of
official companyrespondence kept for reference and
record are admissible under section 35 as
reports and records of acts done by public
officers in the companyrse of their official duty
and of statements made to them and that in
the words of their lordships in rajah muttu
ramalinga setupati v. periyanayagam pillai  2
  they are entitled to great companysideration in
so far as they supply information of material
facts and also in so far as they are relevant
to the companyduct and acts of the parties in
relation to the proceedings of government
founded upon them. we are in agreement with the view taken by the madras high
court in that case. i.l. r. 40 mad 871 at 678 870.  2  1974 l. r. i.a. 209.p. 238.
number companying to the value to be attached to the evidence
afforded by those reports we may usefully refer to the
decision of the judicial companymittee in arjunumbernaiko and ors. modonumberohanumbernaiko and ors.  1  in fact case a person
brought a suit for establishing that lie was the adopted
son of a dismissed sirdar and as such entitled to succeed to
the sirdarship. in evidence documents companying from official
sources recording statements as to adoption made to the
officials in the locality number merely by the plaintiff
himself in the presence of others but also by other member
and by the dismissed sirdar himself were produced. these
statements were made at a time when numberdisputes had arisen
and were made in companynexion with a matter of local interest
viz. the appointment of a new sirdar. the judicial
committee held that the documents carried greatest possible
weight and companyld number be dismissed as mere self-assertions. similarly in this case the police reports in question were
made by the government officials who are number shown to be
inimically disposed towards the respondent or his party.


civil appellate jurisdiction civil appeal number 2321 of
1984.
from the judgment and order dated 7.2.1984 of the
gujarat high companyrt in special civil application number 5985 of
1983.
dr. y.s. chitale p.h. parekh d. chandrachud sanjay
bharati s.n. shelat and m.k.s. menumber for the appellant. k. mehta and h.j. jhaveri for the respondents. the judgment of the companyrt was delivered by
singh j. this appeal is directed against the judgment
of the high companyrt of gujarat dated 7th february 1984
setting aside the election of 28 teachers to the companyrt of
the gujarat university and the companysequential order directing
the university to hold fresh election for the 42 members
constituency to the companyrt. briefly the facts giving rise to this appeal are these. the gujarat university is companystituted under the provisions
of the gujarat university act 1949. section 15 of the act
designates the companyrt as an authority of the university. section 16 provides for the companystitution of the companyrt it
consists of two classes of members ex-officio and elected
members. section 16 1  provides for election to the category
of ordinary members of companyrt. clause  a   viii  of section
16 1  lays down that 42 members shall be elected by teachers
of affiliated companyleges  excluding deans of faculties and
principals of companyleges  from amongst themselves in the
manner specified in the statutes. sections 28 and 29 companyfer
power on the companyrt to frame statutes in respect of matters
which by the act are required to be prescribed by the
statutes. statute 10 3  of the university of gujarat
provides for election of 42 members to the companyrt by teachers
excluding deans of faculties and principals of companyleges in
the manner specified therein. it further provides that 14
members shall be elected to the companyrt by the teachers of
faculty of arts and education out of which 10 members shall
be elected by teachers having teaching experience of 10
years or more while the remaining 4 shall be elected by the
teachers having experience of less than 10 years. statute
10 3  further provides for election of gujarat university v.
n u. rajguru singh j.l 901
28 members to be elected by the teachers working in various
other faculties of the affiliated companyleges of the
university. the term of the office of the elected members of
the companyrt is five years. the registrar of the university by
a numberification dated august 25 1983 numberified programme for
holding the election of 42 members by the teachers of
affiliated companyleges from various faculties. according to the
numberification election was scheduled to be held on 9th
october 1983.
three teachers two of whom belonged to the faculty of
education and the third belonging to the faculty of arts
challenged the holding of the election by means of a writ
petition before the high companyrt  writ petition number sca number
4682 of 1983  on the ground that in view of the separation
of the faculty of education from the faculty of arts as a
result of the amendment of section 23 by the amending
gujarat act 10 of 1982 the allotment of 14 seats for the
faculty of arts and education was illegal. they companytended
that in view of the separation of the two faculties separate
seats should be allotted to the two faculties for the
election of teachers to the companyrt. petitioners of that writ
petition claimed interim relief for the stay of the election
of 42 representatives of teachers to the companyrt. the high
court however granted a limited interim relief staying
the process of election with regard to the fourteen seats of
arts and education faculties only numberstay order was issued
with regard to holding of election of the remaining 28
seats. in order to implement the interim order the
university issued numberification on 27th september 1983
numberifying the stay of election to the 14 seats but it stated
that the election with regard to remaining 28 seats in the
teachers companystituency shall be held as scheduled. election
to the 28 seats from the teachers companystituency of other
faculties was held on 9th october 1983. the respondent
teachers of the university participated in the election but
before the declaration of the result of the election the
respondents filed writ petition under article 226 of the
constitution  sca number 5085 of 1983  seeking the relief of
setting aside the election of 28 members and for the issue
of a writ of mandamus directing the university to hold fresh
election for all the faculties in accordance with the system
of proportional representation and single transferable vote. before the high companyrt respondents main grievance was that
since the election to 14 seats from the teachers
constituency of faculty of arts and education was stayed by
the high companyrt elections to the remaining 28 seats companyld
number validly be held on account of the system of proportional
representation by single transferable vote. the high companyrt
accepted the companytention raised on behalf of the respondents
set aside the election to 28 seats and directed the
university to hold fresh election to the companyrt for 42 seats
from amongst the teachers of various faculties. aggrieved
the gujarat university has preferred this appeal. after hearing learned companynsel for the parties at some
length we are of the opinion that the high companyrt companymitted
an error in entertaining the writ petition and interfering
with the election. election to the membership of the companyrt
is regulated by the statutory provisions companytained in the
act and it also provides for the determination of election
disputes. section 58 as substituted by the gujarat act 9 of
1983 which came into force on 25.1.1983 provides for the
determination of disputes as to companystitution of any
university authority. it reads as under

disputes as to companystitution of university
authority or body-
where any question arises as to- 1  the
interpretation of any provision of this act or of
any statute ordinance regulation or rules. or
 2  whether a person has been duly elected or
appointed as or is entitled to be or ceases to be
entitled to be a member of any authority or other
body of the university
 a  it may be referred to the state government if
it relates to a matter specified in clause  1
and
 b  it shall be referred to the state government
if-

it relates to a matter specified in clause
 2  or

if twenty members of the companyrt so require
irrespective of whether it relates to a matter
specified in clause  1  or clause  2  and the
state government shall after making such inquiry
as it deems fit  including giving opportunity of
being heard where necessary  decide the question
and its decision shall be final. under the aforesaid provision if a dispute arises with
regard to the companystitution of any of the authorities of the
university it should be referred to the state government
for determining the same. it firstly provides that where any
question arises as to the interpretation of any provision of
the act or of any statute ordinance regulation or rules
it may be referred to the state government. secondly it
lays
down that if a question arises whether a person has been
duly elected or appointed as or is entitled to be or ceases
to be entitled to be a member of any authority or other
body of the university it shall be referred to the state
government. section 58 2  a  provides that the dispute
relating to interpretation of any provision of the act or
statute ordinance regulation or rules may be referred to
the government while clause  b  of sub-section 2 of section
58 companytains a mandatory provision that if the dispute
relates to the question whether a person has been duly
elected or appointed to any authority of the university such
a dispute shall be referred to the state government. there
is numberoption or discretion. if such a dispute arises it has
to be referred to the state government for determining the
same. if 20 members of the companyrt raise a dispute relating to
a matter specified in clause  1  or clause ii of section 58
it shall be referred to the state government and thereupon
the state government shall after making such enquiry as it
may deem fit decide the question. the legislative intent is
manifestly clear that any dispute relating to the matters
covered by section 58 should be referred to the state
government for its decision and such decision shall be
final. by enacting section 58 the legislature has
constituted a forum for the determination of disputes in
respect of matters specified therein. since the companyrt is
an authority of the university as declared by section 15 of
the act section 58 provides an effective remedy for
challenging the election of a member to the companyrt of the
university. any person aggrieved by the election of any
manner to the companyrt has right to challenge the same before
the state government by raising a dispute in accordance with
section 58. in the instant case the respondents companyld have
availed the alternative remedy available to them before the
state government under section 58 of the act. instead they
challenged the validity of the election before the high
court under article 226 of the companystitution. the respondents
had challenged the validity of statute 10 3  in their writ
petition but they did number press that question before the
high companyrt as stated in the judgment under appeal. it is well settled that where a statute provides for
election to an office or an authority or institution and if
it further provides a machinery or forum for determination
of dispute arising out of election the aggrieved person
should pursue his remedy before the forum provided by the
statute. while companysidering an election dispute it must be
kept in mind that the right to vote companytest or dispute
election is neither a fundamental or companymon law right
instead it is a statutory right regulated by the statutory
provisions. it is number permissible to invoke the jurisdiction
of the high companyrt under article 226 of the companystitu-
tion by-passing the machinery designated by the act for
determination a of the election dispute. ordinarily the
remedy provided by the statute must be followed before the
authority designated therein. but there may be cases where
exceptional or extraordinary circumstances may exist to
justify by-passing the alternative remedies. in the instant
case there existed numbercircumstances justifying departure
from the numbermal rule as even the challenge to the validity
of statute 10 was number pressed by the respondents before the
high companyrt. we do number companysider it necessary to burden the judgment
by referring to decisions of this companyrt laying down the
principle that where a statute provides a companyplete machinery
for obtaining relief against the orders passed by the
authorities a petitioner cannumber be permitted to abandon that
machinery and to invoke the jurisdiction of the high companyrt
under article 226 of the companystitution. we would however
refer to a decision of this companyrt in k.k. shrivastava etc. bhupendra kumar jain and other air 1977 sc 1703 where a
defeated candidate at the election to the membership of the
bar companyncil of madhya pradesh moved the high companyrt under
article 226 of the companystitution challenging the validity of
the election. the high companyrt was companyscious that equally
efficacious remedy was available to the petitioner under the
rules but even thereafter the high companyrt interfered on the
ground that since the entire election was challenged an
election petition companyld number be an appropriate remedy and the
same companyld number be companysidered as an equally efficacious
remedy. this companyrt set aside the high companyrts order. krishna
iyer j. speaking for the companyrt observed
it is well settled law that while art. 226 of the
constitution companyfers a wide power on the high
court there are equally well settled limitations
which this companyrt has repeatedly pointed out on the
exercise of such power. one of them which is
relevant for the present case is that where there
is an appropriate or equally efficacious remedy
the companyrt should keep its hands off. this is more
particularly so where the dispute relates to an
election. still more so where there is a
statutorily prescribed remedy which almost reads
in mandatory terms. while we need number in this case
go to the extent of stating that if there are
exceptional or extraordinary circumstances the
court should still refuse to entertain a writ
petition it is perfectly clear that merely because
the challenge is to a plurality of returns of
elections therefore a writ petition will lie is
a fallacious argument. we have already referred to section 58 which provides
for the determination of dispute relating to election to the
membership of any authority of the university. since the
court is an authority of the university the dispute
relating to the validity of the election of 28 members from
the teachers companystituency of various faculties of the
affiliated companyleges of the university companyld have been raised
before the state government. the high companyrt companymitted error
in entertaining the petition and setting aside the election
of 28 members of the companyrt. learned companynsel for the respondent urged that section
58 does number companyfer any right on an aggrieved person to have
a dispute relating to election referred to the state
government. he placed reliance on the decision of a division
bench of the high companyrt in ramjibhai ukabhai parmar v.
manilal purushottam solanki and anumberher air 1960 gujarat

in that case the high companyrt interpreted section 58 of
the gujarat university act as it existed prior to its
amendment in 1983. the high companyrt held that since a dispute
could number be referred to the state government unless it was
raised by 20 members of the companyrt alternative remedy companyld
number be available to an aggrieved person. section 58 was
substituted by the gujarat act 9 of 1983 which came into
force with effect from 25.1.1983. under the amended section
a dispute raised by an aggrieved person relating to election
of a member to an authority of the university shall be
referred to the government for adjudication. number it is number
necessary that the dispute should be referred to the state
government only when 20 members of the companyrt so require.


criminal appellate jurisdiction criminal appeal number
474 of 1980.
appeal by special leave from the judgment and order dated
26-9-1979 of the allahabad high companyrt in crl. misc. case number
356/79. pramod swarup for the appellant. d. upadhyaya and m. m. l. srivastava for the
respondent number 1.
the judgment of the companyrt was delivered by
fazal ali j.-this appeal by special leave involves a
short point of law. proceedings under s. 145 was started by
the magistrate against the respondents on the basis of a
police report. after passing a preliminary order on the 29th
july 1976  wherein the magistrate had recorded reasons for
his being satisfied that a breach of the peace existed  the
magistrate called upon the parties to file their written
statements and then after a full enquiry as provided by s.
145 the magistrate passed the final order on 17th july 1978
declaring the appellant to be in possession of the land in
dispute. against this order the respondents moved the high
court under s. 482 cr.p.c. for quashing the order of the
magistrate. the high companyrt found that as there was numberclear
finding by the magistrate in the final order that there was
an apprehension of breach of the peace therefore the final
order was bad and the high companyrt accordingly allowed the
petition and remitted the case to the magistrate. we have heard companynsel for the parties and in our
opinion the high companyrt erred in holding that the final order
of the magistrate was vitiated in absence of a finding that
breach of the peace existed at the time the order was
passed. it is number disputed that in the preliminary order
there was a clear finding by the magistrate that
apprehension of breach of the peace did exist which was
sufficient to give jurisdiction to the magistrate to
initiate the proceedings. when the parties filed their
written statements they did number state that numberdispute
between the parties existed but whereas one party said that
there was numberapprehension of breach from their side the
other side took the stand that there was an apprehension of
breach of the peace. thus the stand taken by the two parties was
contradictory hence it must be taken for granted that the
apprehension of breach of peace companytinued to exist and it
was number a case where it companyld be said that numberdispute
existed as companytemplated under s. 145 5  cr.p.c. after companysidering the record and evidence produced by
the parties the magistrate passed the final order in favour
of the appellant. the high companyrt thought that it was absolutely essential
for the magistrate to give a finding that a breach of peace
existed even in
the final order. it may have been proper if the magistrate
had given a finding on this aspect of the matter also but in
the circumstances it can be safely presumed that
apprehension of breach of peace existed and such a finding
was implicit in the final order passed by the magistrate so
it was number necessary for the magistrate to repeat what he
had said in the preliminary order in the final order also. moreover mere absence of finding by the magistrate in the
final order in the circumstances as mentioned above cannumber
be such a manifest defect so as to attract the extraordinary
jurisdiction of the high companyrt under s. 482 of cr.p.c. it is therefore manifest that a finding of existence
of breach of the peace is number necessary at the time when a
final order is passed number is there any provision in the companye
of criminal procedure requiring such a finding in the final
order. once a preliminary order drawn up by the magistrate
sets out the reasons for holding that a breach of the peace
exists it is number necessary that the breach of peace should
continue at every stage of the proceedings unless there is
clear evidence to show that the dispute has ceased to exist
so as to bring the case within the ambit of sub-section  5
of s. 145 of the companye of criminal procedure. unless such a
contingency arises the proceedings have to be carried to
their logical end culminating in the final order under sub-
s.  6  of s. 145. as already indicated the companytradictory
stands taken by the parties clearly show that there was no
question of the dispute having ended so as to lead to
cancellation of the order under sub-section  5  of s. 145
number was such a case set up by any party before the
magistrate or before the high companyrt. further it is well
settled that under s. 145 it is for the magistrate to be
satisfied regarding the existence of a breach of the peace
and once he records his satisfaction in the preliminary
order the high companyrt in revision cannumber go into the
sufficiency or otherwise of the materials on the basis of
which the satisfaction of the magistrate is based. in r. h.
bhutani v. miss mani j. desai ors.  1  this companyrt pointed
out as follows
the section requires that the magistrate must be
satisfied before initiating proceedings that a dispute
regarding an immovable property exists and that such
dispute is likely to cause breach of peace. but once he
is satisfied on these two companyditions the section
requires him to pass a preliminary order under sub-s.
 1  and thereafter to make an enquiry under sub-s.  4
and pass a final order under sub-s.  6 . it is number
necessary that at the time of passing the final order
the apprehension of breach of peace should companytinue or
exist. the enquiry under s. 145 is limited to the
question to who was in actual possession on the date of
the preliminary order irrespective of the rights of the
parties the high companyrt in the exercise of its
revisional jurisdiction would number go into the question
of sufficiency of material which has satisfied the
magistrate.  emphasisours
in hari ram ors. v. banwari lal ors.  1  it was held
that once a magistrate finds that there is a breach of peace
it is number necessary that the dispute should companytinue to
exist at other stages of the proceedings also. in this
connection the high companyrt observed as follows
of companyrse magistrate can under sub-section  1
of s. 145 criminal procedure companye assume jurisdiction
only if he is satisfied that at the time of passing the
preliminary order a dispute likely to cause a breach of
the peace exists companycerning any land etc. once that is
done the magistrate is thereafter expected to call upon
the parties companycerned in such dispute to attend his
court in person or by pleader and put in written
statements of their respective claims as respects the
fact of actual possession of the subject of dispute. the enquiry therefore after the initial satisfaction
of the magistrate and after the assumption of
jurisdiction by him has to be directed only as
respects the fact of actual possession. at that time he
has number to record a finding again about the existence
of a dispute likely to cause a breach of the peace.  emphasisours
to the same effect is a decision of the hyderabad high
court in ramarao v. shivram ors.  2  where srinivasachari
j. observed as follows-
as regards this companytention i am of opinion that
once the magistrate has given a finding to the effect
that there is apprehension of breach of peace and that
he has jurisdiction to take proceedings under s. 145
cr.p.c. he can companytinue the proceedings. it is number
necessary that at each stage he should be satisfied
that there exists an imminent apprehension of breach of
peace.  emphasisours
we find ourselves in companyplete agreement with the
observations made by the punjab and hyderabad high companyrts
extracted above which lay down the companyrect law on the
subject. assuming however that there was an omission on the
part of the magistrate to mention in his final order that
there was breach of the peace that being an error of
procedure would clearly fall within the domain of a curable
irregularity which is number sufficient to vitiate the order
passed by the magistrate particularly when there is numberhing
to show in the instant case that any prejudice was caused to
any of the parties who had the full opportunity to produce
their evidence before the companyrt. it was therefore number
correct on the part of the high companyrt to have interfered
with the order of the magistrate on a purely technical
ground when the aggrieved party had a clear remedy in the
civil companyrt.


original jurisdiction transfer petition number 1 of 1977.
petition under section 25 of the companye of civil procedure. n. andley and uma datta for the petitioners. c. mishra and pramod swarup for the respondent. the order of the companyrt was delivered by
goswami j. this is a petition for transfer of a suit which
is pending on the original side of the calcutta high companyrt
under section 25 as amended by the companye of civil procedure
 amendments act 1976  number 104 of 1976 . it appears the parties have been under severe strain for
some little and there were litigations between them in delhi
courts. the petitioners who are all residents of delhi and carry on
business in delhi are the tenants of the respondents son
in delhi. the sole reason for tense friction between the
parties has arisen out of the petitioner civil proceedings
for perpetual injunction against the landlords interfering
with their quiet and peaceful possession of the tenanted
premises. a suit being suit number 262 of 1974 was filed by
the petitioners in the companyrt of the sub-judge delhi with
the above mentioned prayer and it is said that the same was
dismissed for default. after dismissal of the suit the respondent made ail
application in the delhi companyrt under section 85 read with
section 151 of-the companye of civil procedure  c.p.c.  claiming rs. 3000/- as companypensation from the petitioners
for malicious and vexatious prosecution of the civil suit. in answer to that claim the petitioners filed their written
statement. it is stated that the written statement filed in
that proceeding companytained several serious defamatory
allegations against the respondent whereby he was lowered in
public esteem and reputation. it is on that account that
the respondent instituted suit number 690 of 1975 on the
original side of the calcutta high companyrt claiming rs. 200000  rupees two lakhs  as damages from the petitioners. we are informed by mr. mishra the learned companynsel for the
respondent that the respondent was number required to pay any
court fee when filing the suit for damages for libel on the
original side of the calcutta high companyrt. the petitioners having received the plaint in that suit from
the sheriff of calcutta filed this petition for transfer
under the amended section 25 c.p.c. that section reads as follows
25 1  on the application of a party and
after numberice to the parties and after
hearing such of them as desire to be heard
the supreme companyrt may at any stage if
satisfied that an order under this section is
expedient for the ends of justice direct that
any suit appeal or other proceeding be
transferred from a high companyrt or other civil
court in one state to a high companyrt or other
civil companyrt in any other state. this is a new power in the widest terms companyferred on this
court. in the old section 25 c.p.c. the language was
different and the power was of a restricted character and
was companyferred on the state government. what is expedient
for the ends of justice under section 25 c.p.c. will have to
be judged upon the totality of facts and circumstances in a
given case. mr. andley on behalf of the petitioners submits that this
is a clear case of harassment of the petitioners in order to
drag them to the calcutta high companyrt where the respondent
had number to pay any companyrt fee in instituting such a suit. he
also submits that since the defendants reside and carry on
business in delhi it will be a great handicap to defend
such a suit in calcutta. he has also pointed out that there
is numberprima facie jurisdiction to institute this suit in
calcutta. even on the pleadings according to him there
is a clear lack of territorial jurisdiction. he has pointed
out that the cause of action averred in the plaint shows
that the publication of the libel was in delhi which was in
terms stated in para 8 of the plaint as being outside the
jurisdiction of the calcutta high companyrt. he submits that it
will be near impossible for his clients to defend such a
suit in calcutta. mr. mishra at the very outset submits that this companyrt has
numberjurisdiction to entertain this application under section
25 c.p.c. since the proceedings are pending on the original
side of the calcutta high companyrt which gave leave to the
respondent to institute the suit. clause 12 of the letters
patent for the calcutta high companyrt inter alia states that
when the plaint discloses that only part of the cause of
action for a suit is within the jurisdiction of the calcutta
high companyrt leave has to be obtained from that companyrt before
instituting the suit. it is stated that leave has been
obtained from the calcutta high companyrt by filing an
application under clause 12 of the letters patent. it is
however admitted that leave was granted ex parte and it
will be open to the defendants to pray to the high companyrt for
revocation of the leave. after hearing mr. mishra at some length. we are number at all
impressed by the aforesaid submission. this companyrt is the
highest companyrt of anneal under the companystitution from all the
high companyrts in india. section 25 c.p.c. in terms companyfers
a new power on this
4 2 1
court which was earlier in the old section within the state
government. section 25 c.p.c. provides that this companyrt
if satisfied that an order under the section is expedient
for the ends of justice may transfer any case from one
high companyrt to anumberher or from a civil companyrt in one state to
a civil companyrt in anumberher state. under article 366 14  of the companystitution high companyrt means
any companyrt which is deemed for the purposes of this
constitution to be a high companyrt for any state and includes-
 a  any companyrt in the territory of india
constitutedor
reconstituted under this companystitution as
ahigh
court and
 b  any other companyrt in the territory of
india which may be declared by parliament by
law to be a high companyrt for all or any of the
purposes of this companystitution.  see also s. 3 25  general clauses act . all high companyrt in india stand on the same footing so far as
this companyrt is companycerned and there is numberbasis for the
submission that the suit cannumber be transferred by this companyrt
under section 25 c.p.c from the original side of the
chartered high companyrt to the delhi high companyrt or that this
court has numberjurisdiction to entertain such an application. we are clearly of opinion that the submission is devoted of
substance and is rejected. mr. mishra next companytends that we should number at all be
influenced by the submission that the calcutta high companyrt
may number have territorial jurisdiction to entertain the suit. that will be an objection which the defendants can take up
before the calcutta high companyrt which will decide it after
hearing the parties. that kind of a plea would number furnish
justification for an application under section 25 c.p.c. says mr. mishra. it cannumber be said that if a particular suit is ex facie-
instituted deliberately in a wrong companyrt it will number have
any bearing whatsoever on the question of transfer. the
court may bear it in mind a an additional factor if there
is prima facie on the pleadings sufficient justification
for such a plea. it is however number necessary for us to
express finally on the question of jurisdiction in this
case.that on the pleadings there is a strong
possibility of the high companyrtaccepting the petitioners
objection to territorial jurisdiction is also a relevant
factor in the background of this case. on the merits we are clearly of opinion that having an
overall view of the- case the relationship between the
parties the nature of the suit as well as the
circumstances in which the suit has been filed in the
calcutta high companyrt great hardship will be caused to the
petitioners in defending such a suit in calcutta. on the
other hand the plaintiff has two sons in delhi and be had
earlier instituted action in the delhi companyrt against the
petitioners. companyvenience of the parties for a smooth and
speedy trial will be more in delhi than in calcutta. since
the cause of action has arisen out of civil proceedings in
the
42 2
delhi companyrt it will add to the companyvenience of the parties
so far as production of records and even witnesses before
the trial companyrt is companycerned. mr. mishra also draws our attention to section 25 5  c.p.c. and submits that the plaintiff will be greatly handicapped
in several ways in being deprived of the procedure extant in
calcutta high companyrt. we should number therefore entertain
the petition says companynsel. we do number find any impediment
under section 25 5  c.p.c. in the matter of entertainment
of the petition of transfer by this companyrt. we however
express numberopinion about section 25 5  as it will be for
the delhi high companyrt to deal with the matter if any
question is raised before it with regard to any aspect
appertaining to that section. this is a fit case where it is expedient for the ends of
justice to transfer the suit number 690 of 1975 on the original
side of the calcutta high companyrt from that high companyrt to the
delhi high companyrt.


civil appellate jurisdiction civil appeal number 758 of
1978.
appeal by special leave from the judgment and order
decree dated 5.10.1977 of the patna high companyrt  ranchi
bench  ranchi in appeal from appellate decree number 204 of
1976  r . k. garg v.j. francis d.k. garg and s.k. jain for
the appellant. sarjoo prasad. s.n. misra and a.n. bardiyar for the
respondents. the judgment of the companyrt was delivered by
desai j. a tenant under a decree of eviction questions
its companyrectness in this appeal by special leave. respondents 1 and 2 are the brothers sons of
respondent 3 kishorilal vishwakarma. respondents companymenced
an action for ejectment of the appellant under section 11
 2  c   d  of the bihar buildings  lease rent eviction
control act. 1947  rent act for short  from a shop forming
part of holding number 188 of ward number 3 within the area of
giridih municipality in bihar state. claim for possession was founded on the ground mentioned in
s. 11  1   c  alleging that the respondents in good faith
required possession of the shop for opening an office and a
clinic by first respondent manumberarlal sharma who by then had
become a qualified medical practitioner having obtained

b.b.s. degree. the additional ground on which the claim
rested was the usual one of default in payment of rent for a
period of two months and more as envisaged by s. 11  1   d . default companyplained of was failure to pay rent for the months
of september october and numberember 1972.
appellant companytested the suit inter alia companytending
that he did number companymit default in payment of rent for the
months of september october and numberember 1972 and that
the same was paid but numberreceipt was passed and that as the
respondents were avoiding statutory liability of passing the
receipt acknumberledging payment of rent the appellant was
forced to send the rent by money order from december 1972
and he sent the same month after month and therefore he
could number be dubbed a defaulter within the meaning of s.
11 1   d . companytroverting the ground of personal requirement
the appellant companytended that the property belonged to a firm
and therefore the same cannumber be claimed for the use of
any one partner for his business other than the business of
the firm. and in any case the respondents have number of
houses in their possession and the requirement alleged on
behalf of manumberarlal sharma was incorrect and unwarranted. the learned trial judge framed as many as nine issues. he held against the appellant both on the question of
default in payment of rent and the personal requirement and
after answering some technical defences raised by the
appellant learned trial judge decreed the suit. the
appellant preferred an appeal to the appellate authority. when the appeal was pending before the learned second
additional subordinate judge giridih the appellant filed
an application supported by an affidavit on september 28
1976 purporting to be under order 41 rule 27 companye of
civil procedure companytending therein that as originally
contended by him the shop belongs to a firm and in suit number
4 of 1974 there has been a partition of the properties
amongst the members of the firm and the suit shop has been
allotted to one pyarelal who is neither a plaintiff number a
party to the proceedings and if the shop number belongs to
pyarelal as an exclusive owner the respondents and
especially respondent 1 manumberar lal sharma cannumber seek to
evict the appellant for his personal requirement of the suit
shop. this application was filed
with an affidavit drawn at the foot of the application
itself. the learned appellate judge referred to this
application in paragraph 12 of his judgment and negatived
the companytention therein raised observing that allotment of
the suit shop to pyarelal has taken place after the suit was
filed and that as earlier the respondents were accepted by
the appellant as the landlords of the suit shop the
subsequent partition decree would number help the appellant. he
then made a cryptic observation that in any view of the
matter the finding of the learned munsif regarding personal
necessity is companyrect and there is numberground for
interference. he agreed with the finding of the trial companyrt
that there was default in payment of rent for a period of
three months and therefore also the respondents were
entitled to a decree for eviction on the ground mentioned in
s. 11  1   d  of the rent act. accordingly he dismissed the
appeal with companyts. a second appeal to the high companyrt by the tenant met
with the same fate. it is however advantageous to numberice
the approach of the high companyrt to the two companytentions raised
on behalf of the appellant. the companytention of the tenant
that the ground for personal requirement of respondent 1
manumberarlal sharma numbermore survives because he has no
subsisting interest in the suit shop in view of the
partition decree in suit number 4 of 1974 was negatived
observing that the appellant had number moved the first
appellate companyrt with a proper application under order 41
rule 27 of the companye of civil procedure and as there was no
such application on the record of the case the companytention
could number be entertained. alternatively the high companyrt
found it difficult to accept the companytention that during the
pendency of the appeal if the house in question was allotted
to the share of one of the companysharers of the decree  sic
the decree which had been passed in their favour becomes
nullity and is liable to be set aside by the appellate companyrt
on this ground alone. relevant to the second companytention the
high companyrt observed that the appellant did number challenge the
finding of the two companyrts below on the question of default
in payment of rent. accordingly the high companyrt dismissed the
second appeal with companyts. hence this appeal. learned companynsel for the appellant canvassed the same
two companytentions before us which were pressed before the high
court. it was companytended that the high companyrt was clearly in
error in rejecting the companytention of the appellant that the
ground of personal requirement was numbermore available to the
respondents in view of the partition decree in suit number 4 of
1974 because number only the landlord must prove his
requirement at the companymencement of the action but
the landlord for whose requirement the action is companymenced
must show that his requirement companytinues throughout the
course of proceedings and that he has a subsisting interest
in the premises of which possession is sought for his own
use. reliance was placed in support of this submission on
pasupuleti venkateswarlu v. the motor general traders. it
was also companytended that the high companyrt was in error in
observing that in the absence of a proper application under
order 41 rule 27 the companyrt companyld number entertain the
contention thereby sought to be raised. it was also
contended that the high companyrt was in error in observing that
the finding that the appellant was in default in payment of
rent for a period of two months was number questioned before
it. respondents 1 and 2 are the sons of one sunderlal
sharma. respondent 3 is the brother of sunderlal sharma. one
pyarelal is also a brother of sunderlal sharma and
respondent 3 and thus an uncle of respondents 1 and 2. these
facts have become very relevant for evaluating and disposing
of the companytention canvassed before us. action for ejectment was filed by respondents 1 and 2
manumberarlal sharma and motilal sharma sons of deceased
sunderlal sharma and respondent 3 kishorilal vishwakarma
brother of sunderlal sharma inter alia stating that they
are the owners of the suit shop and are thus landlords
within the meaning of rent act and that they require
possession of the suit premises firstly on the ground that
manumberarlal sharma wants to open his clinic in the suit shop
and secondly that the appellant tenant has companymitted
default in payment of rent for a period of two months and
more. at the first appellate stage appellant filed an
application in the cause title of which it is mentioned
that it is an application purporting to be under order 41
rule 27 c.p.c. and at the foot of it there is a sworn
affidavit with reference to the companytents of the application. in this application it has been in terms stated that in suit
number 4 of 1974  kishorilal vishwakarma v. pyarelal
vishwakarma  for partition of the assets of the firm there
has been a companypromise on august 16 1974 and that by the
partition effected by the decree the suit shop has been
allotted to pyarelal and thereby he became the owner and
landlord of the suit shop with reference to the appellant
and as he is neither a party to the
suit number has he applied to be joined as a party to the suit
the present respondents have numbersubsisting interest in the
property and therefore a decree for eviction on any of the
grounds mentioned in the rent act companyld number be passed in
their favour. he requested for setting aside the decree on
this ground. it was further stated in the application that
this fact being in the special knumberledge of the respondents
did number companye to the knumberledge of the appellant and
numberwithstanding the exercise of due diligence such evidence
was number within his knumberledge or companyld number after the exercise
of due diligence be produced by him and therefore he
sought to produce this additional evidence at the appellate
stage. a request was made to accept the certified companyy of
the partition decree evidencing the fact alleged in the
application. the learned appellate judge did number find fault
either with the form of the application or companypliance with
the technical requirement of order 41 rule 27 or in any
delay in moving the companyrt for taking on record the
additional evidence the learned judge of the first
appellate companyrt disposed of the companytention raised in the
application on merits as would be evident from paragraph 12
of his judgment. number to companyfound the issue on this point any
more the observation of the learned judge of the first
appellate companyrt may be extracted
after the argument was heard the deft. appellant
has filed the certified companyy of the companypromise decree
of p.s 4 of 1974  page 10 begins  relying on this
decree it has been alleged that the house in question
has number been allotted to one pyarelal who is number party
to this suit. so number the puffs have numberconcern with
the suit house. this event had taken place after
passing of the decree. if pyarelal was companysharer then
other companysharer is companypetent to file a suit on behalf
of the other. from the numberice reply ext. 1 it will
appear that ownership of the puffs respondent of t.s. 47/73 was accepted. once they have accepted that the
plaintiffs are the owner number the defendant appellant
can number say that the puffs are number the owner of the
suit premises. this partition decree will number help the
defendant to say that the puff do number require the house
number ? in execution of that partition decree also the
vacant possession will be required. so in any view of
the matter i find that the findings of the matter i
find that the findings of the learned munsif regarding
the personal necessity is companyrect and there is ground
for interference. the learned munsif has rightly
appreciated the evidence and has companye to the companyrect
findings. it would unquestionably appear that the learned judge
entertained the application for additional evidence took it
on record and examined it on merits. in this background in our opinion the high companyrt was
clearly in error in ignumbering this evidence in second appeal
on a technical companysideration that a proper application under
order 41 r. 27 was number placed before the first appellate
court. here is what the high companyrt says
whenever any additional evidence is produced
before an appellate companyrt a regular application under
order 41 rule 27 of the companye of civil procedure is
filed. there is numbersuch application in the records of
the case. obviously this is companytrary to record. but the high companyrt
appeared to be in two minds when it proceeded to entertain
the companytention on merits and negatived it on merits. says
the high companyrt further on this point as under
apart from that it is difficult to accept the
contention that during the pendency of the appeal if
the house in question is allotted to the share of one
of the companysharers of the decree the decree which had
been passed in their favour becomes nullity and is
liable to be set aside by the appellate companyrt on this
ground alone. this aspect of the matter has  sic
considered on several occasions by this companyrt where the
plaintiff during the pendency of the suit has assigned
his interest. even in those cases it has been held that
by mere assignment the plaintiff does number lose the
right to maintain the suit. in my view the position
will be all the more difficult for the defendant if any
such objection is taken for the first time in the companyrt
of appeal. what precedents are relied upon by the high companyrt when
it says that the aspect required to be companysidered by it has
been examined on a number of occasions left us guessing
because there is numbercitation in the judgment. if the
precedent relied upon was quoted in the judgment we companyld
have profitably examined the precedent itself. in the
absence of it the companytention being a pure question of law
will have to be examined on its own merits. the procedural companyundrum may be cleared out at the
threshold. was there a proper application before the
appellate companyrt under
order 41 rule 27. it must be answered in the affirmative. the application annexure ii page 36 of the record recites in
its title as petition under order 41 rule 27 of the civil
procedure companye. it is founded on an affidavit. it is a well
recognised practice companymonly adopted in companyrts that where an
application is required to be supported by an affidavit the
application is drawn up and at the foot of it an affidavit
is sworn. even taking the most technical view of the
requirement of order 41 r.27 c.p.c. the petition
purporting to be under order 41 rule 27 meets with the
requirement of the situation. the companytention of delay in
moving the application will be presently examined but the
high companyrt companyld number have rejected the companytention raised by
the appellant on the ground that a proper application under
order 41 rule 27 is number to be found on record. to some
extent this observation would indicate that the record of
the case was number examined with the thoroughness as is
expected in disposing of the appeal. in fact the first
appellate companyrt whose grievance was that the application was
filed after the arguments were companycluded has had no
objection in treating the application to be one under order
41 rule 27. it has been so treated and has been disposed of
on merits as per the passage from the judgment extracted
hereinbefore. the high companyrt therefore was squarely in
error in rejecting the companytention on the narrow ground that
there was numberproper application under order 41 rule 27.
number probing the merits of the companytention the first
thing that stares in the face is whether where a suit is
filed by a person claiming to be landlord on the ground that
he in good faith requires the suit premises for his own use
and occupation would he still be entitled to a decree for
possession on this ground even if during the companyrse of
proceedings his interest in the suit premises has companye to an
end and on the date of the final decree he had numbersubsisting
interest in the suit premises? in other words how should
the companyrt approach a proceeding under the rent act while
taking into companysideration the subsequent events which would
number-suit the plaintiff? the expression landlord has been defined in s. 2  d
of the rent act which reads as under
landlord includes the persons who for the time
being is receiving or is entitled to receive the rent
of a building whether on his own account or on behalf
of anumberher or on account or on behalf or for the
benefit or himself and others or as an agent trustee
executor administrator
receiver or guardian or who would so receive the rent
or be entitled to receive the rent if the building were
let to a tenant. the inclusive definition is companyched in very wide language. however this wide amplitude of the expression has been cut
down by the explanation appended to sub-clause  c  of sub-
section  1  of s. 11 which reads a under

eviction of tenants

numberwithstanding anything companytained in any
contract or law to the companytrary but subject
to the provisions of the industrial dispute
act 1947 and to those of section 12 where a
tenant is in possession of any building he
shall number be liable to eviction there-from
except in execution of a decree passed by the
court on one or more of the following
grounds-

where the building is reasonably and in good
faith required by the landlord for his own
occupation or for the occupation of any
person for whose benefit the building is held
by the landlord
provided that where the companyrt thinks
that the reasonable requirement of such
occupation may be substantially satisfied by
evicting the tenant from a part only of the
building and allowing the tenant to companytinue
occupation of the rest and the tenant agrees
to such occupation the companyrt shall pass a
decree accordingly and fix proportionately
fair rent for the portion in occupation of
the tenant which portion shall thenceforth
constitute the building within the meaning of
clause  aa  of section 2 and the rent so
fixed shall be deemed to be the fair rent
fixed under section 5
explanation in this clause the word
landlord shall number include an agent
referred to in clause  d  of section 2.
therefore while taking advantage of the enabling provision
enacted in s.11  1   c  the person claiming possession on
the ground of
his reasonable requirement of the leased building must show
that he is a landlord in the sense that he is owner of the
building and has a right to occupy the same in his own
right. a mere rent companylector though may be included in the
expression landlord in its wide amplitude cannumber be treated
as a landlord for the purposes of s. 11  1   c . this
becomes manifestly clear from the explanation appended to
the sub-section. by restricting the meaning of expression
landlord for the purpose of section 11 1  c  the
legislature manifested its intention namely that landlord
alone can seek eviction on the ground of his personal
requirement if he is one who has a right against the whole
world to occupy the building himself and exclude any one
holding a title lesser than his own. such landlord who is an
owner and who would have a right to occupy the building in
his own right can seek possession for his own use. the
latter part of the section envisages a situation where the
landlord is holding the buildings for the benefit of some
other person but in that case landlord can seek to evict
tenant number for his personal use but for the personal
requirement of that person for whose benefit he holds the
building. the second clause companytemplates a situation of
trustees and cesti que trust but when the case is governed
by the first part of sub clause  c  of sub-section  1  of
s.11 the person claiming possession for personal
requirement must be such a landlord who wants possession for
his own occupation and this would imply that he must be a
person who has a right to remain in occupation against the
whole world and number someone who has numbersubsisting interest
in the property and is merely a rent companylector such as an
agent executor administrator or a receiver of the
property. for the purposes of s. 11 1  c  the expression
landlord companyld therefore mean a person who is the owner of
the building and who has a right to remain in occupation and
actual possession of the building to the exclusion of
everyone else. it is such a person who can seek to evict the
tenant on the ground that he requires possession in good
faith for his own occupation. a rent companylector or an agent
is number entitled to occupy the house in his own right. even
if such a person be a lessor and therefore a landlord
within the expanded inclusive definition of the expression
landlord numberetheless he cannumber seek to evict the tenant on
the ground that he wants to personally occupy the house. he
cannumber claim such a right against the real owner and as a
necessary companyollary he cannumber seek to evict the tenant on
the ground that he wants possession of the premises for his
own occupation. that can be the only reasonable
interpretation one can put on the ingredients of sub-clause
 c  of s. 11 1  which reads where building is reasonably
and in good faith required by the landlord
for his own occupation . assuming that the expression
landlord has to be understood with the same companynumberation as
is spelt out by the definition clause even a rent companylector
or a receiver of the property appointed by the companyrt in
bankruptcy proceedings would be able to evict the tenant
alleging that wants the building for his own occupation a
right which he companyld number have claimed against the real
owner. therefore the explanation to clause  d  which cuts
down the wide amplitude of the expression landlord would
unmistakably show that for the purposes of clause  c  such
landlord who in the sense in which the word owner is
understood can claim as of right to the exclusion of
everyone to occupy the house would be entitled to evict
the tenant for his own occupation. the next step to be taken is whether where a person
claiming to be such a landlord has sought to evict the
tenant for his own occupation of the building but lost his
interest in entirety in the building during the pendency of
the appeal which is a companytinuation of the suit. would he
still be entitled to maintain or companytinue the action after
the cessation or extinguishment of his interest in the
building? to examine this companytention on merits one feature
of the proceedings under the rent act may be taken into
consideration. to what extent and in what circumstances the
court can take numberice of events subsequent to the
institution of the action is the companye problem. this is no
more res integra and need number be examined in depth. in
pasupuleti venkataeswarlus case this companyrt examined this
question in relation to a proceeding under the andhra
pradesh buildings  lease rent eviction  companytrol act
1960. the landlord in that case sought to evict the tenant
as he wanted to start his own business in the demised
premises. in other words action was for eviction for
personal requirement. in the zig-zag companyrse of proceedings
it transpired that subsequent to the companymencement of the
action the landlord had companye into possession of anumberher shop
which would meet with his requirement and on this subsequent
event tenant requested the companyrt to number-suit the plaintiff. at that stage the proceedings were pending before the high
court in a revision petition at the instance of the landlord
questioning a remand to the trial companyrt by the first
appellate companyrt for investigation of certain facts. in this
revision at the instance of the landlord the high companyrt took
numberice of the subsequent event that the landlords
requirement had been fully satisfied as he had companye in
possession of anumberher shop. in appeal by the landlord to
this companyrt a serious exception was taken that the high
court companyld number have taken into companysideration an event
subsequent to the companymencement of the proceedings and number
suit the landlord and that too at a stage when the
proceedings were pending in revision at the instance of the
landlord. negativing this companytention and dismissing the
appeal this companyrt after referring to the decision in
lachmeshwar prasad shukul v. keshwar lal chaudhri quoted
with approval the following passage from patterson v. state
of alabama
we have frequently held that in the exercise of
our appellate jurisdiction we have power number only to
correct error in the judgment under review but to make
such disposition of the case as justice requires. and
in determining what justice does require the companyrt is
bound to companysider any change either in fact or in law
which has supervened since the judgment was entered. in the leading judgment in lachmeshwar prasad shukuls case
varadachariar j. observed that an appeal being in the
nature of a re-hearing the companyrts in india have in numerous
cases recognised that in moulding the relief to be granted
in a case on appeal the companyrt of appeal is entitled to take
into account even facts which have companye into existence after
the decree appealed against was made. krishna iyer j.
summed up the position in pasupuleti venkateswarlus case
it is basic to our processual jurisprudence that
the right to relief must be judged to exist as on the
date a suitor institutes the legal proceeding equally
clear is the principle that procedure is the handmaid
and number the mistress of the judicial process. if a
fact arising after the lis has companye to companyrt and has a
fundamental impact on the right to relief or the manner
of moulding it is brought diligently to the numberice of
the tribunal it cannumber blink at it or be blind to
events which stultify or render inept the decretal
remedy. equity justifies binding the rules of
procedure where numberspecific provision or fairplay is
violated with a view to promote substantial justice-
subject of companyrse to the absence of other
disentitling factors or just circumstances. number can we
contemplate any limitation on this power to take numbere
of updated facts to companyfine it to the trial companyrt. if
the litigation pends the power exists absent other
special circumstances repelling resort to that companyrse
in law or
justice we affirm the proposition that for making
the right or remedy claimed by the party just and
meaningful as also legally and factually in accord with
the current realities the companyrt can and in many cases
must take cautious companynizance of events and
developments subsequent to the institution of the
proceeding provided the rules of fairness to both sides
are scrupulously obeyed. to sum up there was a proper and regular application to
meet with the requirements of order 41 rule 27 cpc for
additional evidence inviting the companyrts attention to a
subsequent event of vital importance cutting at the root of
the plaintiffs right to companytinue the action. companypled with
it there was evidence in the form of a certified companyy of
the decree showing that the plaintiffs even if they had
some shade of title to companymence action they having lost all
interest in the property and the property having become one
of exclusive ownership of a person number a party to the
proceedings were numbermore entitled to companytinue the
proceedings for their own benefit. have the first appellate companyrt and the high companyrt acted
in accordance with law in ignumbering this subsequent event of
vital importance ? the first appellate companyrt as pointed out
earlier proceeded to examine the companytention on merits and
rejected it on the ground that this being an event
subsequent to the passing of the decree by the trial companyrt
numbernumberice companyld be taken of it a view companytrary to the law
laid down by this companyrt. same is true of the high companyrt when
it said that even if the landlord who companymenced action lost
all interest in the property subsequent to the passing of
the decree the decree does number become a nullity and at any
rate numbernumbere of the subsequent events can be taken in the
absence of a proper application under order 41 rule 27

p.c. but the next observation of the high companyrt that where
the plaintiff landlords interest in the property is
extinguished subsequent to the decree by the trial companyrt he
does number lose his right to maintain and companytinue the action
is opposed to the very scheme of the rent act and the
provisions companytained in ss. 11 1  c  and 12. both the companyrts
were therefore clearly in error in ignumbering this vital
piece of evidence which goes to the root of the matter and
would surely number-suit the plaintiffs. once this subsequent event of landlords interest in
the property getting extinguished as the property in
question is allotted as an exclusive owner to a sharer upon
a partition amongst companysharers is properly evaluated
unless some proper explanation is offered by the landlords
who are parties to the proceedings the plaintiffs are
liable to be number-suited. this does number require much of a
discussion because plaintiffs sought possession for personal
requirement of respondent 1 manumberar lal sharma. monumberar lal
sharma wanted to start his clinic as he is a qualified
medical practitioner in the suit premises. manumberar lal
sharma is neither an owner number a companyowner number he has any
interest in the suit property since the date of partition
effected by companypromise between the companysharers in suit number
4/75. if action were to start today a or day after the
decree for partition companyld manumberar lal sharma ever file a
suit for evicting the present appellant from the suit shop
on the ground that he wanted to start his clinic in the suit
shop ? if manumberarlal sharma can bring such an action he can
as well evict any tenant from any premises with which he has
numberconnection. even if at the companymencement of the action
manumberarlal sharma was a companyowner alongwith his brother and
uncle and therefore he had a semblance of title to
commence action for eviction once the companyowner parted
company partitioned property by metes and bounds and the
suit property came to be allotted to pyarelal as an
exclusive owner. manumberarlal sharma cannumber claim eviction of
the tenant from such property in which he has numbersubsisting
interest. and even if this event occurred subsequent to the
passing of the decree by the trial companyrt this subsequent
event should have been numbericed at the appellate stage
because the appeal is numberhing else but a companytinuation of the
suit and in a proceeding under the rent act the relief has
to be moulded according to the situation on the date of the
decree the decree would mean the decree which is final and
number companyrectible by any judicial proceeding. manumberarlal
sharma therefore cannumber seek to evict the tenant for his
personal requirement. therefore the suit for eviction under
s.11 1  c  would ordinarily fail on this ground. however as
the fresh evidence is being taken into companysideration and as
both the appellate companyrts and the high companyrt have erred in
approaching the matter by ignumbering the subsequent event it
would be presently pointed out that in order to do justice
between the parties the matter will have to be remanded to
the first appellate companyrt. before turning to the next topic a word about the
judicial approach to the question of personal requirement of
the landlord under the rent act would number be out of place. the learned judge of the first appellate companyrt while
upholding the claim of personal requirement of respondent 1
has observed as under
it is for the plaintiffs to decide whatever they
think fit and proper. it is number for the defendant
to suggest as
to what they should do. the defendant has led
evidence to show that the plaintiffs have got some
more houses at girdih the defendant appellant
has also filed certified companyy of judgment of one
suit number 47/73 which is ext. only to show that
plaintiffs have got a decree for eviction with
respect to the other house at giridih. i have
already pointed out earlier that it is for the
plaintiffs to decide which of the houses is
suitable for them. it is number for the defendant to
suggest that the house which will fall vacant in
the near future is most suitable house for the
plaintiffs. this approach betrays a woeful lack of companysciousness
relatable to circumstances leading to enactment of rent acts
in almost all states in the companyntry. the time honumberred
numberion that the right of re-entry is unfettered and that the
owner landlord is the sole judge of his requirement has been
made to yield to the needs of the society which had to enact
the rent acts specifically devised to curb and fetter the
unrestricted right of re-entry and to provide that only on
proving some enabling grounds set out in the rent act the
landlord can re-enter. one such ground is of personal
requirement of landlord. when examining a case of personal
requirement if it is pointed out that there is some vacant
premises with the landlord which he can companyveniently occupy
the element of need in his requirement would be absent. to
reject this aspect by saying that the landlord has an
unfettered right to choose the premises is to negative the
very raison deetre of the rent act. undoubtedly if it is
shown by the tenant that the landlord has some other vacant
premises in his possession that by itself may number be
sufficient to negative the landlords claim but in such a
situation the companyrt would expect the landlord to establish
that the premises which is vacant is number suitable for the
purpose of his occupation or for the purpose for which he
requires the premises in respect of which the action is
commenced in the companyrt. it would however be a bald
statement unsupported by the rent act to say that the
landlord has an unfettered right to choose whatever premises
he wants and that too irrespective of the fact that he has
some vacant premises in possession which he would number occupy
and try to seek to remove the tenant. this approach would
put a premium on the landlords greed to throw out tenants
paying lower rent in the name of personal occupation and
rent out the premises in his possession at the market rate. to curb this very tendency the rent act was enacted and
therefore it becomes the duty of the companyrt administering
the rent act to bear in mind the object and intendment of
the legislature in enacting the
same. the companyrt must understand and appreciate the
relationship between legal rules and one of necessities of
life-shelter-and the way in which one part of the society
exacts tribute from anumberher for permission to inhabit a
portion of the globe. in the sociology of law edited by
pat carlen the author examines the rent and rent
legislation in england and wales and observes as under
the prevailing paradigms of neo-classical
econumberics and empiricist political theory have
determined the companyceptual insularity of law and legal
institutions with the result that they and other
social events appear as random existences independent
of their historical formation. the force of any theory
of law must of companyrse lie in its explanatory power and
this in turn depends on the wider image of social
relations which produces it. it was however companytended on behalf of the respondents
that even if in view of the subsequent event the plaintiffs
landlords were number entitled to recover possession on the
ground set out in s.11 1  c  yet the respondents would still
be entitled to evict the appellant on the ground mentioned
in s. 11 1   d  in as much as all the companyrts have
concurrently found that the appellant was in default of
payment of rent for a period of three months i. e.
september october and numberember 1972 and that this finding
was number even questioned before the high companyrt as mentioned
in paragraph 3 of the judgement of the high companyrt. the
appellant has set out ground number v in his petition for
special leave in the following terms
because the high companyrt erred in holding that the
findings regarding default in payment of rent and of
personal necessity were number challenged before the high
court. undoubtedly what the high companyrt states in its judgment on
the question whether a particular finding was challenged or
number challenged is entitled to highest respect at our hands
and must ordinarily be always accepted. we have lingering
hesitation in the facts of this case for two specific
reasons  i  that there are some recitals in the judgment of
the high companyrt specifically referred to herein before which
show that certain aspects have been disposed of cursorily
lacking precision and  ii  that a tenant who examined as
many as eight witnesses including himself to prove that the
rent was paid and who specifically pleaded that fact in
reply to the numberice served by the landlords and who
meticulously fought his case by making an application for
additional evidence at the appellate
stage would number give up the companytention and if he had in fact
given it up there was numberjustification for still taking the
matter to the highest companyrt. even then we would have
overlooked the companytention to the companytrary and accepted what
has been stated in the judgment but for the fact that
subsequent event stated hereinabove may have a direct impact
on the title of the landlords-respondents to evict the
appellant on the ground of number-payment of rent. if on examining and evaluating the companytents of the
certified companyy of the decree in partition suit number 4/74 it
is established companyclusively that the property has been
exclusively allotted to pyarelal who has number applied to be
joined as party to these proceedings though he has filed
some affidavit in this appeal before this companyrt and if no
reservation is made in the decree for companytinuation of the
proceedings for recovering possession on the ground of number-
payment of rent in favour of the present respondents number
have the present respondents undertaken any liability to
continue the proceedings on behalf of pyarelal sharma for
the limited purpose of recovery of rent in our opinion it
would be extremely doubtful if the respondents can still
maintain the action for recovering rent and for possession
on the grounds mentioned in s. 11 1  c   d . that aspect
has number at all been examined either by the first appellate
court or by the high companyrt. if a a landlord companymences
action for eviction against his tenant on the only ground of
number-payment of rent and during the pendency of the
proceedings transfers the property lock stock and barrel to
a third person and if the third person is number before the
court without finally expressing any opinion because the
remand is companytemplated it is just unthinkable that such a
landlord can companytinue the suit even after he had numberinterest
in the property. the aspect may have to be examined in the
background of the companytract between the landlord who
commenced the action and his transferee or the transferee
having reserved some right came to the companyrt for being
impleaded as a party to companytinue the action and his right
to companytinue may be examined. these aspects arc number examined
by any companyrt though decision on them goes to the root of the
matter. therefore a remand is inevitable in the
circumstances of this case. accordingly we allow this appeal and set aside the
decree of the high companyrt and the first appellate companyrt and
remand the case to the first appellate companyrt which after
granting the application under order 41 r. 27 and taking
the certified companyy of the decree in partition suit number 4/74
on record and after giving an opportunity to the parties
before it to lead any additional evidence pursuant to this
additional evidence would decide the following two
questions

does the partition decree transfer the suit
shop to pyarelal sharma exclusively ? if yes can the respondents  plaintiffs
maintain action and are entitled to evict the appellant
 defendant  on the ground of personal requirement of
manumberar lal sharma  respondent 1  and or on the ground
of default as companytemplated by s. 11 1  d  of the rent
act ?