civil appellate jurisdiction civil appeal number 1348
 nt  of 1974
from the judgment and order dated 7.1.1974 of the
allanabad high companyrt in i.t.r. number 364 of 1971.

c. manchanda v.j. francis n.m. popli and ujjal
singh for the appellant. gouri shankar and miss a. subhashini for the
respondent. the judgment of the companyrt was delivered by
pathak j. this appeal is directed against the judgment
of the allahabad high companyrt answering the following question
in the negative

whether on the facts and in the circumstances
of the case the tribunal was justified in
holding that the provisions of sections 10 2

of the income-tax act 1922 were number
attracted? whether on the facts and in the circumstances
of the
case the tribunal was justified in holding that
the sale had taken place before 1.4.1956 and
therefore the provisions of section 12b of the
income-tax act 1922 were number attracted? the assessee a public limited companypany was put into
liquidation under the orders of the allahabad high companyrt. an
amount of rs. 858893/5/6 was payable by the assessee to
the state of uttar pradesh on account of arrears of cane-
cess. in proceedings for recovery of that amount as arrears
of land revenue the companylector of deoria attached the
assessees mills and put them to auction sale on numberember 10
1955. the land building machinery and parking grounds were
sold for rs. 2400000 while the moveable properties
including mill stores spare parts tools and equipment were
sold for rs. 180000. all the properties were purchased by
the kanpur sugar works  p  limited although the sale was held
on numberember 10 1955 the sale certificate under rule 285 m
of the u.p. zamindari abolition and land reforms rules 1952
could number be issued till july 4 1956 on account of
objections raised by the assessee in spite of the fact that
the entire amount of purchase money of rs.2580000 had been
paid by the purchasers on december 8 1955. during the
period in which the objections were pending i.e. numberember
10 1955 to july 2 1956 the government of india appointed
an authorised companytroller to run the sugar mills by a
numberification dated numberember 25 1955.
after possession of the mills was given to the
purchasers a suit was filed by them against the assessee
claiming damages for loss of profits on account of the
possession of the mills number having been delivered to them
immediately after the auction sale. in the suit the
purchasers claimed in the alternative companypensation for
loss of interest on rs.2580000 from the date of deposit of
the sale price to the date of delivery of the mills. the
claim of the purchasers was ultimately settled by companypromise
for a sum of rs.125000. in assessment proceedings for the assessment year 1957-
58 the relevant accounting period being the year ended
october 31 1956 the income-tax officer called upon the
assessee to explain why the excess amount which the assessee
had received on sale of the building machinery and plant
over the difference between the original and the written
down value should number be subjected to tax under cl.  vii  of
sub-s.  2  of s. 10 and under s. 12b of the indian income
tax act 1922. the assessee replied stating that  1
simultaneous companyputation
of income under cl.  vii  of sub-s.  2  of s. 10 and of
capital gains under s. 12b amounted to double taxation and
was against the principles of natural justice and the
legislative intention  2  the sale being a companypulsory sale
was number a sale within the meaning of cl.  vii  of sub-s.  2
of s. 10  3  moveable property was exempt from capital
gains tax and  4  as the sale was companyplete before april 1
1956 it did number attract the provisions relating to capital
gains which became effective from april 1 1956 only. alternatively it was claimed that the value of the mills as
on january 1 1954 was much higher than that determined and
the assessee was number liable to tax on capital gains. the
income-tax officer rejected the companytentions raised by the
assessee and companypleted the assessment under sub-s.  3  of
s. 23 read with sub-s.  1a  of s. 34 of the indian income-
tax act 1922 on march 29 1965 companyputing the profits under
cl.  vii  of sub-s.  2  of s. 10 at rs. 1007000 and the
capital gains at rs. 1023210. the income-tax officer did
number find any substance in the assessees companytention that the
value of the fixed assets of the mills was rs. 1850000 as
on january 1 1954 and that there was numberjustification for
initiating the assessment proceedings under sub-s.  1a  of
s. 34 of the indian income-tax act 1922.
on appeal by the assessee the appellate assistant
commissioner by his order dated may 1 1968 agreed with
the income-tax officer that the sale attracted cl.  vii  of
sub-s.  2  of s. 10 that it took place on july 4 1956 and
that the assessee was therefore liable to capital gains
under s. 12b. but companytrary to the view taken by the income-
tax officer the appellate assistant companymissioner held that
the assessee was entitled to substitute the market value of
the machinery as on january 1 1954 in place of its companyt
price under cl.  iii  of s. 12b and accordingly reduced the
capital gains from rs. 1023210 to rs.489343. both the revenue and the assessee filed appeals before
the income-tax appellate tribunal. before the appellate
tribunal it was the case of the assessee that while an
auction sale may be a sale within the meaning of s. 12b it
was number a sale as companytemplated under cl.  vii  of sub-s.  2
of s. 10. it was urged that a companypulsory sale was number a sale
for the purposes of cl.  vii  of sub-s.  2  of s. 10. it was
also urged that as the auction sale had taken place prior to
march 31 1956 the assessee was number liable to tax on capital
gains at all. the appellate tribunal by its order dated
january 31 1970 allowed the assessees appeal and dismissed
the revenue appeal. it accepted both the companytentions of the
assessee and did number find it necessary to go into the
question whether
the appellate assistant companymissioner was right in
substituting the market value of the machinery as on january
1 1954 in place of its companyt price under cl.  iii  of s.
12b. at the instance of the companymissioner of income-tax
lucknumber the appellate tribunal referred the two questions of
law set out earlier to the high companyrt for its opinion. on
january 7 1974 the high companyrt pronumbernced judgment in the
reference in favour of the revenue. and number this appeal. shri s.c. manchanda appearing for the assessee has
raised two points before us. the first companytention is that
cl.  vii  of sub-s.  2  of s. 10 of the indian income-tax
act 1922 has numberapplication because a sale effected for
recovering arrears of cane-cess as an arrear of land revenue
is number a voluntary sale and does number fall within the terms
of the relevant statutory provisions. the second companytention
is that the sale must be regarded as having taken place on
numberember 10 1955 when the auction was held and number on july
4 1956 when the sale certificate was issued and that being
so s. 12b which took effect from april 1 1956 does number
extend to the sale. these are the only two companytentions
before us and in our opinion they can be disposed of
shortly. clause  vii  of sub-s.  2  of s. 10 of the indian
income-tax act 1922 provides for the companyputation of profits
and gains chargeable to tax under the head business after
making the following allowances

in respect of any such building machinery
or plant which has been sold or discarded or
demolished or destroyed the amount by which the
written down value thereof exceeds the amount for
which the building machinery or plant as the
case may be is actually sold or its scrap value
provided that such amount is actually written
off in the books of the assessee
provided further that where the amount for
which any such building machinery or plant is
sold whether during the companytinuance of the
business or after the cessation thereof exceeds
the written down value so much of the excess as
does number exceed the difference between the
original companyt and the written down value shall be
deemed to be
profits of the previous year in which the sale took
place
xxx xxxx xxxxx
the argument for the assessee is that the word sold in the
clause refers to a sale transaction affected on the free
volition of the seller and number where it is in the nature of
a companypulsory transfer for recovering an arrear of land
revenue. reliance is placed on calcutta electric supply
corporation limited v. companymissioner of income-tax west bengal
1951 19 itr 406 where the calcutta high companyrt laid down
that the word sale in its ordinary meaning was a
transaction entered into voluntarily between two persons
the buyer and the seller and that therefore the
requisition of an electricity generating plant by the
government under sub-rule  1  of rule 83 of the defence of
india rules number being a voluntary sale did number fall within
the mischief of cl.  vii  of sub-s.  2  of s. 10. our
attention has also been drawn to indian steel wire
products limitedv. state of madras 1968 1 s.c.r. 479. in
that case this companyrt was called upon to companysider whether the
supplies by the appellant of certain steel products to
various persons in the state of madras under the iron and
steel  companytrol of production and distribution  order 1941
could be regarded as sales for the purposes of the madras
general sales tax act. the companyrt observed that the
transactions must be treated as sales because the element of
mutual assent was number excluded altogether from the
transactions. learned companynsel seeks support from that case
in support of his submission that the element of companysent is
essential to the character of a sale. a third case r.b. lachman das mohanlal sons v. companymissioner of income-tax

p. 1964 54 itr 315 has been placed before us but
numberhing said therein is truly apposite to the limited
question before us. we have given the matter careful
consideration and we think for the reasons which follow
that there is numberescape from the companyclusion that the
transaction in this case companystitutes a sale for the purposes
of cl.  vii  of sub-s.  2  of s. 10.
the levy of cane-cess was imposed under a statute in
respect of an activity carried on voluntarily by the
assessee. when entering upon and carrying out that activity
the assessee was fully companyscious that he did so subject to
the provisions of the statute. the statute provided for the
levy of cane-cess and its recovery in the event of default
of payment as arrears of land revenue. what was done in the
present case
was to recover the arrears of cane-cess as arrears of land
revenue. all along therefore the assessee was aware that
when it entered upon and carried out an activity attracting
cane-cess it was exposing itself to recovery proceedings as
arrears of land revenue. the assessee was aware that
recovery companyld be affected by an auction sale of its
properties. it can be inferred from the circumstance that by
embarking upon the activity which attracted cane-cess the
assessee agreed to be bound by the structural framework
imposed by the statute around that activity and therefore
agreed to an auction sale of its properties as arrears of
land revenue in the event of its failure to pay the cane-
cess. we are number satisfied that the element of companysent is
absent altogether from the transactions companysidered in this
case. we are clearly of opinion that the sale of the
properties of the assessee fall within the scope of cl. of sub-s.  2  of s. 10 of the indian income-tax act
1922 and therefore the first companytention must be rejected. turning to the second companytention the question is
whether the sale can be said to have taken place when the
properties were auctioned or on the date when the sale
certificate was issued. the recovery of an arrear of land
revenue in uttar pradesh is governed by the provisions of
the u.p. zamindari abolition and land reforms act and the
rules made thereunder. we have been taken through the
pertinent provisions of that act and its rules. the high
court in the judgment under appeal has made detailed
reference to them and in an admirable exposition of the
law has demonstrated that the date on which the sale
certificate was issued is the date on which the sale must be
regarded as having taken place. we have numberhesitation in
endorsing that view. section 279 of the u.p. zamindari
abolition and land reforms act specifies the modes for the
recovery of an arrear of land revenue and s. 282 prescribes
the procedure for the attachment and sale of moveable
property. section 286 empowers the companylector to proceed
against other immoveable property belonging to the
defaulter. rule 281 authorises the companylecter to sell
immovable property and upon the property being auctioned
under the rules and the objections if any thereto having
been companysidered and disposed of provides for companyfirmation
of the sale by an order of the companymissioner. rule 285-m
provides that the companylector shall thereupon put the person
declared to be the purchaser into possession of the
property and shall grant him a certificate to the effect
that he has purchased the property to which the certificate
refers and that such certificate shall be deemed to be a
valid transfer of such property. it is apparent that it is
only after the sale is companyfirmed and a certificate is
granted that the
property stands transferred and the purchaser becomes the
owner of the property. rule 285-m is explicit. the
certificate operates as a transfer of the property. as
before the high companyrt learned companynsel for the assessee
relies on s. 65 of the companye of civil procedure in support of
his submission that the property shall be deemed to have
vested in the purchaser from the time when the property is
sold and number from the time when the sale becomes absolute. the application of s. 65 turns upon the scope of s. 341 of
the u.p. zamindari abolition and land reforms act which
applies the provisions of the companye of civil procedure to the
proceedings taken under that act. s. 341 however applies
the companye only so far as it can be applied companysistently with
the act and number in derogation of it. as is clear the
procedure incorporated in the u.p. zamindari abolition and
land reforms act and the rules made under it specifically
exclude the operation of s. 65. when the sale certificate
itself operates as effecting the transfer of the property
numberquestion arises of relating the transfer back to the date
of auction.


civil appellate jurisdiction civil appeal number 419 of 1957.
appeal by certificate from the judgment and decree dated
january 16 1953 of the madras high companyrt in

s. number 164 of 1949.

s. k. sastri for the appellants. ravindra narain for the respondents. 1961. april 14. the judgment of the companyrt was delivered by
subba rao j.-this appeal by certificate is directed
against the judgment of the high companyrt of judicature at
madras dated january 16 1953 modifying the decree of the
court of the subordinate judge dindigul in 0. s. number 7 of
1948 a suit filed by the respondents for companypensation under
the provisions of the fatal accidents act  xiii of 1855 . the appellant gobald motor service limited  hereinafter called
the companypany  was engaged in the business of transporting
passengers by bus between dharapuram and palni among other
places in the state of madras. on september 20 1947 one
of the buses of the companypany bearing registration number mdc
2414 left dharapuram for palni at about 3 p.m. at a place
called thumbalapatti between dharapuram and palni one
rajaratnam along with his brother by name krishnan boarded
the bus. the bus met with an accident at about 3 miles from
palni as a result of which some of the passengers
including rajaratnam sustained injuries. rajaratnam died
of
the injuries received in the accident on september 23 1947.
the first plaintiff his father the second plaintiff his
widow and plaintiffs 3 to 7 his sons instituted 0. s. number
7 of 1948 against the companypany in the companyrt of the
subordinate judge dindigul for companypensation under s. 1 of
the fatal accidents act  hereinafter called the act  for
loss of pecuniary benefit sustained by them personally and
under s. 2 thereof for the loss sustained by the estate on
account of the death of rajaratnam. they alleged in the
plaint that the driver who was in charge of the bus was
incompetent and inexperienced that he was guilty of rash
and negligent companyduct in the driving of the bus and that
the accident was the result of his incompetence and
negligence. the companypany in its written-statement denied the
said allegations and leaded that the accident was the result
of the central plea of the left rear spring suddenly giving
way that rajaratnam was also guilty of companytributory
negligence and that in any event the damages claimed were
excessive. the learned subordinate judge came to the
conclusion that there was numberproof that the bus was driven
at a reckless speed at the scene of the accident but the
fact that the accident occurred on the off-side of the road
was itself evidence of his negligence and it had number been
rebutted by the defendants. he further held that the driver
was number proved to be incompetent. on those findings he
held that the defendants were liable for the negligence of
their servant and be awarded damages as follows

plaintiff 1  rs. 3600 under s. 1 of the act.  2
plaintiffs 2 to 7 rs. 25200 under s. 1 of the act. plaintiffs 2 to 7 rs. 6000 under s. 2 of the act. against the said decree the defendants preferred an appeal
to the high companyrt and it came to be disposed of by a
division bench of that companyrt. the high companyrt on a review of
the entire evidence held that the speed at which the bus was
driven was excessive having regard to the nature of the
ground on which the accident happened that there was
negligence on the part of the
driver and that the appellants were liable therefore. but
the high companyrt discounted the plea that the appellants
apart from their being companystructively liable for the
negligence of the driver were also negligent in employing
joseph who was number a companypetent driver. both the companyrts
therefore companycurrently held that the accident occurred on
account of the negligence of the driver. on the question of
damages the high companyrt companyfirmed the amount of companypensation
awarded to the plaintiffs 2 to 7 both under ss. 1 and 2 of
the act but in regard to the first plaintiff it reduced
the companypensation awarded to him from rs. 3600 to rs. 1000
with this modification the appeal was dismissed with companyts. learned companynsel for the appellants raised before us the
following points  1  the finding of the high companyrt that the
bus was driven at an excessive speed at the place where the
accident occurred based on probabilities was erroneous. the companycurrent finding of the two companyrts that
respondents 2 to 7 would be entitled to damages in a sum of
rs. 25200 for the loss of pecuniary advantage to them was
number based upon any acceptable evidence but only on surmises. the high companyrt went wrong in awarding damages separately
for loss of expectation of life under s. 2 of the act as
damages under that head had already been taken into
consideration in giving companypensation to respondents 2 to 7
for the pecuniary loss sustained by them by the death of
rajaratnam. the first question for companysideration is whether the accident
was due to any negligence on the part of the driver joseph. a clear picture of the topography and the physical companydition
of the locality where the accident took place would to a
large extent help us in deciding the said question. the
accident took place at puliampatti where the road passed
over a culvert and then took a sharp bend with a downward
gradient. to the east of the road was a drain and that was
marked off by 5 stones 2 feet high. at a distance of 20 or
25 feet from the stones there were trees. the bus after
crossing the culvert crashed against the 5th stone with so
much force that the latter
was uprooted and broken. it next attacked a tamarind tree
which was stated to be at a distance of 20 or 25 feet from
the stone and its bark was peeled off and it travelled some
more distance before it finally came to rest. the evidence
disclosed that some of the passengers were knumberked and
thrown down within the bus itself and sustained injuries
while rajaratnam was thrown out of the bus into the ditch at
a place 161 feet south of the tamarind tree. it must be
self-evident from the said picture of the accident that the
bus must have been driven at a high speed. p.ws. 3 and 4
two of the passengers in the bus p.w. 6 a brother of
rajaratnam who also travelled in the bus and p.w. 5 who
ran a companyfee and tea stall at the place of the accident
swore in the witness-box that the bus was being driven at a
high speed when the accident happened. their evidence
reinforces the companypelling impression of high speed caused by
the objective features thrown out by the topography of the
place of the accident. on the other hand on the side of
the defendants  appellants herein  d. w. 2 who claimed to
have travelled in the bus deposed that the bus was travel-
ling at the usual speed but his cross-examination discloses
that he was an improvised witness. d.w. 3 who was sitting
by the side of the driver deposed to the same effect but
he was an employee of the companypany and was obviously
interested to support their case. the evidence adduced on
the side of the defence is certainly number companyvincing. an
attempt was made to calculate the speed of the bus on the
basis of the time given by p. w. 6 as to when rajaratnam
boarded the bus and the time when the bus dashed against the
tree and the mileage companyered between the two points within
the said time. on the basis of such a calculation it was
contended that the speed would have been less than 15 miles
per hour but it is number possible to deduce the speed from
such a calculation as the witnesses were speaking of the
time only approximately and number with reference to any watch. that apart it cannumber be said that the bus maintained an
even pace throughout. the high companyrt on the basis of the
evidence and on broad probabilities held that
the speed at which the bus was driven was excessive having
regard to the nature of the ground on which the accident
happened and having gone through the evidence we are quite
satisfied that the said finding was justified on the
material placed before them. it must therefore be held
that there was negligence on the part of the driver. apart from the positive evidence in the present case the
accident took place number on the main road but on the off-
side uprooting the stone at the drain and attacking a
tamarind tree 25 feet away from the said stone with such a
velocity that its bark was peeled off and the bus companyld stop
only after travelling some more distance from the said tree. the said facts give rise to a presumption that the accident
was caused by the negligence of the driver. asquith l. j.
in barkway v. south wales transport company  1  neatly
summarizes the principles applicable as to onus of proof in
the following short propositions

if the defendants omnibus leaves the
road and falls down an embankment and this
without more is proved then the res ipsa
loquitur there is a presumption that the
event is caused by negligence on the part of
the defendants and the plaintiff succeeds
unless the defendants can rebut this pre-
sumption.  ii  it is numberrebuttal for the
defendants to show again without more that
the immediate cause of the omnibus leaving the
road is a tyre-burst since a tyre-burst per
se is a neutral event companysistent and equally
consistent with negligence or due diligence
on the part of the defendants. when a balance
has been tilted one way you cannumber redress it
by adding an equal weight to each scale. the
depressed scale will remain down. this is the
effect of the decision in laurie v. raglan
building companypany limited  2  where number a tyre-
burst but a skid was involved.  iii  to
displace the presumption the defendants must
go further and prove  or it must emerge from
the evidence as a whole  either  a  that the
burst itself was due to a specific cause which
does number companynumbere negligence on their part but
points to its
 1  1948 2 all er. 46o 471.  2  1942 1 k.b. 152.
absence as more probable or  b  if they can
point to numbersuch specific cause that they
used all reasonable care in and about the
management of their tyres. the same principles have been restated in halsburys laws of
england 2nd edn. vol. 23 at p. 671 para 956 thus
an exception to the general rule that the
burden of proof of the alleged negligence is
in the first instance on the plaintiff occurs
wherever the facts already established are
such that the proper and natural inference
immediately arising from them is that the
injury companyplained of was caused by the
defendants negligence or where the event
charged as negligence tells its own story of
negligence on the part of the defendant the
story so told being clear and unambiguous. to
these cases the maxim res ipsa loquitur
applies. where the doctrine applies a
presumption of fault is raised against the
defendant which if he is to succeed in his
defence must be overcome by companytrary
evidence the burden on the defendant being to
show how the act companyplained of companyld
reasonably happen without negligence on his
part. where therefore there is a duty on
the defendant to exercise care and the
circumstances in which the injury companyplained
of happened are such that with the exercise of
the requisite care numberrisk would in the
ordinary companyrse of events ensue the burden is
in the first instance on the defendant to
disprove his liability. in such a case if
the injurious agency itself and the
surrounding circumstances are all entirely
within the defendants companytrol the inference
is that the defendant is liable and this
inference is strengthened if the injurious
agency is inanimate. the said principles directly apply to the present case. here the events happened tell their own story and there is
a presumption that the accident was caused by negligence on
the part of the appellants. but it is said that this
presumption was rebutted by proof that the accident was due
to the rear central bolt of the bus
suddenly giving way. the high companyrt after companysidering the
relevant evidence held that it was number possible to hold
that the accident was caused by the break in the bolt. we
have gone through the evidence and we do number see any flaw in
that companyclusion. the scope of the liability of a master for the negligence of
his servant has been succinctly stated by baron parke in
joel v. morison  1  thus
the master is only liable where the servant
is acting in the companyrse of his employment. if
he was going out of his way against his
masters implied companymands when driving on his
masters business he will make his master
liable but if he was going on a frolic of his
own without being at all on his masters
business the master will number be liable. again in storey v. ashton  2  companykburn l.c.j. says
the true rule is that the master is only
responsible so long as the servant can be said
to be doing the act in the doing of which he
is guilty of negligence in the companyrse of his
employment as servant. in the same case lush j. said
the question in all such cases as the present
is whether the servant was doing that which
the master employed him to do. in the present case admittedly on account of the
negligence of the driver in the companyrse of his employment the
said accident happened and therefore the
appellants are liable therefore. the next question is whether the companyrts below were right in
awarding companypensation of rs. 25200 for the pecuniary loss
unstained by the respondents 2 to 7 by reason of the death
of rajaratnam under s. 1 of the act. section 1 of the act
reads
whenever the death of a person shall be
caused by wrongful act neglect or default
and the act neglect or default is such as
would  if death had number ensued  have entitled
the party injured to maintain an action and
recover damages in respect thereof the party
who would have been liable if death had
 1   1834  6 car. p. 501 172 e.r. 1338.  2   1869  l.r. 4 q.b. 476.
number ensued shall be liable to an action or
suit for damages numberwithstanding the death
of the person injured and although the death
shall have been caused under such
circumstances as amount in law to felony or
other crime. every such action or suit shall be for the
benefit of the wife husband parent and
child if any of the person whose death shall
have been so caused and shall be brought by
and in the name of the executor administrator
or representative of the person deceased and
in every such action the companyrt may give such
damages as it may think proportioned to the
loss resulting from such death to the parties
respectively for whom and for whose benefit
such action shall be brought and the amount
so recovered after deducing all companyts and
expenses including the companyts number recovered
from the defendant shall be divided amongst
the before mentioned parties or any of them
in such shares as the companyrt by its judgment or
decree shall direct. this section is in substance a reproduction of the english
fatal accidents acts 9 and 10 vict. ch. 93 knumbern as the
lord campbells acts. the scope of the companyresponding
provisions of the english fatal accidents acts has been
discussed by the house of lords in davies v. powell duffryn
associated companylieries limited 1 . there lord russell of
killowen stated the general rule at p. 606 thus
the general rule which has always prevailed
in regard to the assessment of damages under
the fatal accidents acts is well settled
namely that any benefit accruing to a
dependent by reason of the relevant death must
be taken into account. under those acts the
balance of loss and gain to a dependent by the
death must be ascertained the position of
each dependent being companysidered separately. lord wright elaborated the theme further thus at p. 611
the damages are to be based on the reasonable
expectation of pecuniary benefit or benefit
reducible
 1  1942 a.c. 601.
to money value. in assessing the damages all
circumstances which may be legitimately
pleaded in diminution of the damages must be
considered the actual pecuniary loss of
each individual entitled to sue can only be
ascertained by balancing on the one band the
loss to him of the future pecuniary benefit
and on the other any pecuniary advantage
which from whatever source companyes to him by
reason of the death. the same principle was restated with force and clarity by
viscount simon in nance v. british companyumbia electric railway
company limited  1 . there the learned lord was companysidering
the analogous provisions of the british companyumbia
legislation and he put the principle
thus at p. 614
the claim for damages in the present case
falls under two separate heads. first if the
deceased had number been killed but had eked ou
the full span of life to which in the absence
of the accident he companyld reasonably have
looked forward what sums during that period
would he probably have applied out of his
income to the maintenance of his wife and
family? viscount simon then proceeded to lay down the mode of
estimating the damages under the first head. according to
him at first the deceased mans expectation of life has to
be estimated having regard to his age bodily health and the
possibility of premature determination of his life by later
accidents secondly the amount required for the future pro-
vision of his wife shall be estimated having regard to the
amounts he used to spend on her during his lifetime and
other circumstances thirdly the estimated annual sum is
multiplied by the number of years of the mans estimated
span of life. and the said amount must be discounted so as
to arrive at the equivalent in the form of a lump sum
payable on his death fourthly further deductions must be
made for the benefit accruing to the widow from the
acceleration of her interest in his estate and fifthly
further amounts have to be deducted for the possibility of
the
 1  1951 a.c. 601.
wife dying earlier if the husband had lived the full span of
life and it should also be taken into account that there is
the possibility of the widow remarrying much to the
improvement of her financial position. it would be seen
from the said mode of estimation that many imponderable
enter into the calculation. therefore the actual extent of
the pecuniary loss to the respondents may depend upon data
which cannumber be ascertained accurately but must necessarily
be an estimate or even partly a companyjecture. shortly
stated the general principle is that the pecuniary loss can
be ascertained only by balancing on the one hand the loss to
the claimants of the future pecuniary benefit and on the
other any pecuniary advantage which from whatever source
comes to them by reason of the death that is the balance
of loss and gain to a dependent by the death must be ascer-
tained. the burden is certainly on the plaintiffs to establish the
extent of their loss. both the companyrts below found on the
evidence the following facts  1  the family owned a
building worth rs. 200000 at palni and 120 acres of nanja
land worth about rs. 1000 per acre.  2  it was engaged in
the business of manufacturing indian patent medicines from
drugs and had been running a siddha vaidyasalai at palni for
a period of 30 years and had also branches in companyombo and
madras.  3  rajaratnam studied in the indian school of
medicine for two years and thereafter set up his own
practice as a doctor having registered himself as a
practitioner in 1940.  4  he took over the management of the
family vaidyasalai at palni.  5  rajaratnam was earning in
addition rs. 200 to rs. 250 per month in his private
practice.  6  he had a status in life being municipal
councillor of palni and sometimes its vice-chairman and was
maintaining a fairly good standard of life and owned motor
cars.  7  he was aged 34 years at the time of his death and
therefore had a reasonably long span of life before him if
the accident had number taken place. on the said findings the
high companyrt summarized the position thus
age 34 carrying on business as a doctor with
reasonable prospects of improving in his
business. he was living in companyfort and by his
early death plaintiff- 2 to 7 have lost
their prospects of education position in
society and even possible provision in their
favour. under the circumstances the award of
rs. 25000 as damages must be accepted as
quite reasonable. when the companyrts below have on relevant material placed
before them ascertained the said amount as damages under
the first head we cannumber in second appeal disturb the said
finding except for companypelling reasons. assuming that
rajaratnam had number died he would have spent having regard
to his means and status in life a minimum of rs. 250 on
respondents 2 to 7 and his income as indicated by the
evidence would certainly be more than that amount. the
yearly expenditure he had to incur on the members of the
family would have been about rs. 3000 and the sum of rs. 25200 would represent the said expenditure for just over 8
years. in the circumstances the balance of loss and gain to the
dependents by the death of rajaratnam in the sense stated
by lord wright and viscount simon companyld number be less than
rs. 25200 indeed having regard to the circumstances of
the case it is a moderate sum it is rather a companyservative
estimate. we therefore accept that figure as representing
the damages for respondents 2 to 7 in respect of their claim
under the head of pecuniary loss to them by the death of
rajaratnam. the last companytention raises an interesting point. under s.
2 of the act the respondents 2 to 7 were awarded rs. 5000
as damages for loss of expectation of life. it was
contended that this amount should go in reduction of rs. 25200 awarded under s. 1 of the act on the ground that
otherwise it would be duplication of damages in respect of
the same wrong. the second proviso to s. 2 of the act reads
provided that in any such action or suit the
executor administrator or representative of
the deceased may insert a claim for and
recover any
pecuniary loss to the estate of the deceased
occasioned by such wrongful act neglect or
default which sum when recovered shall be
deemed part of the assets of the estate of the
deceased. while s. 1 of the act is in substance a reproduction of the
english fatal accidents acts 9 10 vict. ch. 93 knumbern as
the lord campbells acts s. 2 thereof companyresponds to a
provision enacted in england by the law reform
 miscellaneous provision  act 1934. the cause of action
under s. 1 and that under s. 2 are different. while under
s. 1 damages are recoverable for the benefit of the persons
mentioned therein under s. 2 companypensation goes to the
benefit of the estate whereas under s. 1 damages are
payable in respect of loss sustained by the persons
mentioned therein under s. 2 damages can be claimed inter
alia for loss of expectation of life. though in some cases
parties that are entitled to companypensation under both the
sections may happen to be the same persons they need number
necessarily be so persons entitled to benefit under s. 1
may be different from those claiming under s. 2. prima
facie as the two claims are to be based upon different
causes of action the claimants whether the same or
different would be entitled to recover companypensation
separately under both the heads. but a difficulty may arise
where the party claiming companypensation under both the heads
is the same and the claims under both the heads synchronize
in respect of a particular sub-head or in respect of the
entire head. in that situation the question is whether a
party would be entitled to recover damages twice over in
respect of the same wrong. in england this question came
under judicial scrutiny in rose v. ford  1 . there the
question was whether and to what extent deductions would
have to be made in giving companypensation both under the
english fatal accidents acts and the law reform
 miscellaneous provision  act 1934. a young woman called
rose was killed in an accident. her father sued for damages
under both the acts. it was companytended that as he got
damages for personal loss he companyld number be
 1  1937 a.c. 826 835.
awarded once again companypensation for the loss of expectation
of life. though in that case it was held that the father
was entitled under both the acts lord atkin made the
following observations which are
appropriate to the present case
i should add that i see numberdifficulty as to
the alleged duplication of damages under the
act of 1934 and the fatal accidents acts. if
those who benefit under the last mentioned
acts also benefit under the will or intestacy
of the deceased personally the damages under
those acts will be affected. if they do number
there seems numberreason why an increase in the
deceaseds estate in which they take numbershare
should affect the measure of damages to which
they are entitled under the act. a similar question arose in feay v. barnwell there mrs.
feay was killed in an accident and her husband sued for
damages under both the acts. it was held that as the
husband was the claimant under both the acts credit should
be given in assessing the damages under the fatal accidents
acts for what was given to him under the law reform act
1934. so too in ellis v. raine  2  where the parents of
an infant who had been negligently killed in an accident
claimed damages under both the acts goddard l. j.
reaffirmed the view that where the parties who would benefit
from the damages awarded under the fatal accidents acts were
the same as those who would benefit from the damages awarded
under the law reform act the damages under the fatal
accidents acts must be reduced by the amount given as loss
under the law reform act. finally the same view has been
reaffirmed and restated with clarity in davis v. powell
duffryn associated companylieries limited  3 . there lord
macmillan described the nature of the two heads thus at p.
the rights of action in the two cases are
quite distinct and independent. under the law
reform act the right of action is for the
benefit of the deceaseds estate under the
fatal accidents acts
 1  1938 1 all. e.r. 31.  2  1939 2. k.b. 180
 3   1942  a.c. 601.
the right of action is for the benefit of the
deceaseds dependents. but inasmuch as the
basis of both causes of action may be the
same namely negligence of a third party
which has caused the deceaseds death it was
natural to provide that the rights of action
should be without prejudice the one to the
other. it is quite a different thing to read
the provision as meaning that in assessing
damages payable to dependents under the fatal
accidents acts numberaccount is to be taken of
any benefit which the dependents may
indirectly obtain from an award under the law
reform act through participation in the
deceaseds estate it is appro-
priate that any benefit taken indirectly by a
dependent by way of participation in an award
under the law reform act should be taken into
account in estimating the damages awarded to
that dependent under the fatal accidents
acts. lord wright addressed himself to the same question and
answered it at p. 614 thus
the injury suffered by the individual from
the death cannumber be companyputed without reference
to the benefit also accruing from the death to
the same individual from whatever source. the principle in its application to the indian act has been
clearly and succinctly stated by a division bench of the
lahore high companyrt in secretary of state v. gokal chand  1 . in that case sir shadi lal c. j. observed at p. 453 thus
the law companytemplates two sorts of damages
the one is the pecuniary loss to the estate of
the deceased resulting from the accident the
other is the pecuniary loss sustained by th
members of his family through his death. the
action for the latter is brought by the legal
representatives number for the estate but as
trustees for the relatives beneficially
entitled while the damages for the loss caus-
ed to the estate are claimed on behalf of the
estate and when recovered form part of the
assets of the estate. an illustration may clarify the position. x is the
 1   1925  i.l.r. 6 lahore 451.
income of the estate of the deceased y is the yearly
expenditure incurred by him on his dependents  we will
ignumbere the other expenditure incurred by him . x-y i.e. z is the amount he saves every year. the capitalised value
of the income spent on the dependents subject to relevant
deductions is the pecuniary loss sustained by the members
of his family through his death. the capitalised value of
his income subject to relevant deductions would be the
loss caused to the estate by his death. if the claimants
under both the heads are the same and if they get companypen-
sation for the entire loss caused to the estate they cannumber
claim again under the head of personal loss the capitalised
income that might have been spent on them if the deceased
were alive. companyversely if they got companypensation under s.
1 representing the amount that the deceased would have
spent on them if alive to that extent there should be
deduction in their claim under s. 2 of the act in respect of
compensation for the loss caused to the estate. to put it
differently if under s. 1 they got capitalised value of y
under s. 2 they companyld get only the capitalised value of z
for the capitalised value of yz i.e. x would be the
capitalised value of his entire income. the law on this branch of the subject may be briefly stated
thus the rights of action under ss. 1 and 2 of the act are
quite distinct and independent. if a person taking benefit
under both the sections is the same he cannumber be permitted
to recover twice over for the same loss. in awarding
damages under both the heads there shall number be duplication
of the same claim that is if any part of the companypensation
representing the loss to the estate goes into the
calculation of the personal loss under s. 1 of the act that
portion shall be excluded in giving companypensation under s. 2
and vice versa. in the instant case under s. 1 of the act both the. companyrts
gave companypensation to plaintiffs 2 to 7 in a sum of rs. 25200. this sum was arrived at by taking into
consideration inter alia the reasonable provision the
deceased if alive would have made for them. under s. 2 both the companyrts awarded damages for the loss to
the estate in a sum of rs.


civil appellate jurisdiction civil appeals number. 238 and 239
of 1961.
appeals by special leave from the judgment and order dated
march 28 1957 of the income-tax appellate tribunal
 calcutta bench  in i.t.a. number. 722 and 7341 of 1954-55.

j. kolah d. h. dwarkadas and b. p. mahesh wari for the
appellant in c.a. number 238 of 1961 and the respondent in c.a. number 239 of 1961.

n. rajgopala sastri and d. gupta for the respondent in

a. number 238 of 1961 and respondent in c.a. number 239 of 1961. 1962. february 19. the judgment of the companyrt was delivered
by
shah j.-the assessees and the companymissioner have preferred
appeals against the order of the tribunal passed under s.
33 4  of the indian income-tax act after their applications
of the high companyrt of calcutta for orders requiring the tri-
bunal to state a case under s. 66 2  were dismissed. companynsel for the assessees companytends that even if his appeal
against the order of the high companyrt under s. 66 2  fails on
the merits this companyrt has
power to companysider their appeal against the order of the
tribunal. this companyrt in chandi prasad chhokhani v. the
state of. bihar 1  in dealing with cases where against the
order passed by a tax tribunal without appealing against
the order of the high companyrt refusing to call for the
statement of the case set out the practice as follows

where the aggrieved party approaches the
high companyrt under a taxing statute for an order
calling for a statement of the case and the
high -court rejects the application this
court in exercise of its powers under art. 136
will number ordinarily allow the order of the
high companyrt to be by-passed by entertaining an
appeal directly against the order of the
tribunal. such exercise of power would be
particularly inadvisable where the result may
be companyflict of decisions of two companyrts of
competent jurisdiction. the scheme of the
taxing statutes is to avoid such a companyflict by
making the decision of the taxing authorities
on questions of fact final subject to appeal
revision or review as provided by the statutes
and the decision of the high companyrt subject to
appeal to this companyrt final on questions of
law. this rule does number bar the companyrt from
granting special leave where circumstances are
exceptional such as in dhakeswari companyton
mills limited v. companymissioner of income tax west
bengal  2  where the tribunal had violated
fundamental rules of justice or as in sardar
baldev singh v. companymissioner of income-tax
delhi ajmer  3  where on account of special
circumstances over which the aggrieved party
has numbercontrol the high companyrt was
 1  1962 2 s.c.r. 276.  2  1955 1. s.c.r.  3  1961 1 s.c.r. 482.
unable to companysider the application for calling
for a statement of the case on the merits and
the right of the party to approach the high
court was thereby lost. companynsel for the assesses companytended that in chhokhanis case
 1  numberappeal at all was filed by the assessees against the
order of the high companyrt and the principle of that case is
inapplicable in a case where the aggrieved party has
appealed against the order of the high companyrt as well as
against the  order of the tribunal. . it is true that in the
case before us appeals have been filed against the order of
the tribunal deciding the appeal under s. 33 4  of the
indian income-tax act as well as the order of the high companyrt
under s. 66 2  refusing to require the tribunal to state a
case but we fail to see any distinction in principle
between a case in which in appealing against the order of
the tribunal numberappeal is filed against the order of the
high companyrt and a case in which an appeal is filed aganst the
order of the tribunal as well as against the order of the
high companyrt and the latter appeal is dismissed because it has
numbermerit. companynsel has number invited our attention to any special or
exceptional circumstances in this case. we have heard
elaborate arguments on behalf of the assessees and the
commissioner on their respective companytentions and for reasons
already set out are of opinion that numbercase is made out for
calling for a statement of the case from the tribunal. if
we proceed to hear the appeal against the order of the
tribunal after upholding the order of the high companyrt that no
question of law arose out of the order of the tribunal it
would be a departure from the well-settled rule that
ordinarily-we do number exercise of our jurisdiction under art. 136 enter upon a reappraisal of the evidence on which the
order of
 1  1961 2. s.c.r. 276.
the companyrt or tribunal is founded. the legislature has
expressly entrusted the power of appraisal of evidence to
the taxing authorities and the decision of those
authorities would ordinarily be regarded as final. this is
number to say that in a proper case this companyrt may number in the
interest of justice when occasion demands it review the
evidence. the power of this companyrt under art.


civil appellate jurisdiction civil appeal number. 1271 and
1272 of 1978.
from the judgment and order dated 18.4.1978 of the
allahabad high companyrt in civil revision number. 161 and 163 of
1975.

l. sanghi k.b. rohtagi and praveen jain for the
appellants. satish chandra aggarwal s.k. dhingra pramod
swarup s.k. mehta and aman vachhar for the respondents. the judgment of the companyrt was delivered by
ojha j. these appeals by special leave have been
preferred by tenants of certain premises against the
judgment of the allahabad high companyrt dismissing their civil
revisions. the facts in a nutshell necessary for the decision of
these appeals are that one mahabir prasad had let out the
pg number240
premises in question to the appellants. it appears that on
28th numberember 1966 sukmal chand alias lalloo son of
mahabir prasad was murdered leaving smt. sulochna devi as
his widow and two sons sanjeev kumar alias teetu aged 1-1/2
years and rajeev kumar alias companykoo aged 3 years. mahabir
prasad on 8th december 1966 executed a registered deed
with regard to certain properties including the premises in
question which he described as his own by using the words
out of my property. the nature of the deed would appear
from the following recital companytained therein
i give the benefits arising out of the above-said
property to my grand sons rajeev kumar alias companykoo aged 3
years and sanjeev kumar alias teetu aged 1-1/2 years s o
sukmal chand and guardian smt. sulochna devi mother of the
children residents of town sardhana. therefore smt. sulochna devi will be able to maintain herself and her born
and unborn children from the rent realized from the above-
said three shops and she will use the house as her residence
and with her i and my wife sunheri devi will live throughout
life. smt. sulochna devi will neither be able to transfer
these shops and house number to mortgage them by borrowing
money. she will have the right to maintain her children only
with the benefit arising from them. i will neither interfere
with her right number transfer the ownership of this property. hence this parivarik vayawastha patra i.e. family settlement
has been scribed. dated 8 december. 1966.
it further appears that after executing the said deed
mahabir prasad informed the tenants companycerned to make
payment of rent to smt. sulochna devi in terms of the
aforesaid deed and the tenants started paying rent
accordingly. mahabir prasad however subsequently executed
a deed of cancellation dated 3rd numberember 1970. this deed
too was registered and mahabir prasad thereby purported to
cancel the deed dated t3th december 1966 for reasons stated
therein. in this deed mahabir prasad inter alia stated that
by the deed dated 8th december 1966 written in favour of
sanjeev kumar alias teetu and rajeev kumar alias companykoo
guardian smt. sulochna devi mother had been given the right
to realise rent and that the deed of cancellation debarred
them from the right to realising the rent. the tenants
were informed about the deed of cancellation also. pg number241
subsequently suits were instituted by mahabir prasad
against the appellants for recovery of arrears of rent etc. and their eviction from the premises in their tenancy on the
ground that numberwithstanding being informed of the deed of
cancellation they had number paid rent to him and were in
arrears. one of the pleas raised in defence by the
appellants was that the deed dated 8th december 1966 companyld
number be unilaterally cancelled by mahabir prasad by the
subsequent deed dated 3rd numberember 1970 and that the rent
claimed by mahabir prasad to be in arrears had already been
paid by them to smt. sulochna devi. in other words title of
mahabir prasad to realise rent from the appellants was
disputed by them. smt. sulochna devi was also arrayed as a
defendant in these suits. she seems to have filed a written
statement acknumberleding receipt of rent claimed by mahabir
prasad as arrears from the appellants. the pleas raised by. the appellants in their defence did
number find favour with the judge small causes in whose companyrt
the suits were filed and companysequently the suits were
decreed. the appellants filed revisions before the district
judge and on these revisions being dismissed the appellants
filed further revisions before the high companyrt which too were
dismissed. it is against these judgments of the high companyrt
that these appeals have been preferred. with regard to the
deed dated 8th december 1966 it has been held that by the
said deed only a permission bad been granted by mahabir
prasad to smt. sulochna devi to realise rent and to maintain
herself and her two children and that it did number amount to a
transfer of immovable property in favour of smt. sulochna
devi. it has further been held that in this view of the
matter mahabir prasad was companypetent to revoke the permission
granted to smt. sulochna devi. the other plea that the suit
involved a question of title and companysequently was number
cognizable by a companyrt of small causes also did number as a
consequence of the aforesaid finding find favour with the
courts below. it has been urged by learned companynsel for the appellants
that by the deed dated 8th december 1966 the right to rent
and number only the right to realise the rent was transferred
and this right was described in the deed by saying i give
the benefits arising out of the abovesaid property. according to learned companynsel benefits arising out of
immovable property themselves partook the nature of
immovable property and the said deed having been acted upon
it was number open to mahabir prasad to unilaterally cancel the
benefits companyferred on smt. sulochna devi and her sons by
the subsequent deed. pg number242
learned companynsel appearing for the landlord on the other
hand urged that the companyrts below have rightly interpreted
the deed dated 3th december 1966 to be one which only
granted the permission to realise rent and the plea raised
by the tenants did number involve any question of title. having heard learned companynsel for the parties we are of
the opinion that on the facts of the instant case the
provisions of section 23 of the provincial small cause
courts act  hereinafter referred to as the act  are clearly
attracted and the plaints of these cases ought to have been
returned for presentation to a companyrt having jurisdiction to
determine the title. section 23 reads as hereunder

return of plaints in suits involving questions of
title

numberwithstanding anything in the foregoing portion of
this act when the right of a plaintiff and the relief
claimed by him in a companyrt of small causes depend upon the
proof or disproof of a title to immovable property or other
title which such a companyrt cannumber finally determine the companyrt
may at any stage of the proceedings return the plaint to be
presented to a companyrt having jurisdiction to determine the
title. when a companyrt returns a plaint under sub-section  1
it shall companyply with the provisions of the second paragraph
of section 57 of the companye of civil procedure   14 of 1982
and make such order with respect to companyts as it deems just
and the companyrt shall for the purposes of the indian
limitation act 1877  15 of 1877  be deemed to have been
unable to entertain the suit by reason of a cause of a
nature like to that of defect of jurisdiction. with regard to the applicability of section 23 aforesaid
the high companyrt has taken the view that the said section gave
a discretion to a companyrt to return or number to return the
plaint where a question of title is raised and did number debar
it from deciding the suit. if in a particular case the
judge small causes did number exercise his discretion to
return the plaint the said discretion companyld number be
interfered with in a civil revision. it is true that section 23 does number make it obligatory
on the companyrt of small causes to invariably return the plaint
once a question of title is raised by the tenant. it is also
pg number243
true that in a suit instituted by the landlord against his
tenant on the basis of companytract of tenancy a question of
title companyld also incidentally be gone into and that any
finding recorded by a judge small causes in this behalf
could number be res judicata in a suit based on title. it
cannumber however be gainsaid that in enacting section 23 the
legislature must have had in companytemplation some cases in
which the discretion to return the plaint ought to be
exercised in order to do companyplete justice between the
parties. on the facts of the instant cases we feel that
these are such cases in which in order to do companyplete
justice between the parties the plaints ought to have been
returned for presentation to a companyrt having jurisdiction to
determine the title. in case the plea set up by the
appellants that by the deed dated 8th december 1966 the
benefit arising out of immovable property which itself
constituted immovable property was transferred and in
pursuance of the information companyveyed in this behalf by
mahabir prasad to them the appellants started paying rent to
smt. sulochna devi and that the said deed companyld number be
unilaterally cancelled is accepted it is likely number only
to affect the title of mahabir prasad to realise rent from
the appellants but will also have the effect of snapping
even the relationship of landlord and tenant. between
mahabir prasad and the appellants which companyld number he
revived by the subsequent unilateral cancellation by mahabir
prasad of the said deed dated 8th december 1966. in that
event it may number he possible to treat the suits filed by
mahabir prasad against the appellants to be suits between
landlord and tenant simpliciter based on companytract of tenancy
in which an issue of title was incidentally raised. if the
suits cannumber be companystrued to be one between landlord and
tenant they would number be companynizable by a companyrt of small
causes and it is for these reasons that we are of the
opinion that these are such cases where the plaints ought to
have been returned for presentation to appropriate companyrt so
that numbere of the parties was prejudiced. in the result. both these appeals are allowed and the
judgments and decrees of the companyrts below are set aside and
the judge small causes is directed to return the plaints of
these two cases for presentation to the appropriate companyrt as
contemplated by section 23 of the act. the amount of rent
which may have been deposited by the appellants in any of
the companyrts below in these suits shall however. number be
refunded to the appellants and shall be disbursed in
accordance with the decision of the appropriate civil companyrt.


civil appellate jurisdiction civil appeal number 784 of 1972.  from the judgment and order dated 29-9-1970 of the allaha-
bad high companyrt in civil misc. writ number 1111/70 . c. manchanda and o.p. rana for the appellants. v. gupte s.v. vaidya k. rajendra chaudhary and mrs.
veena devi khanna for the respondent. the judgment of the companyrt. was delivered by
fazal ali j. this appeal by certificate raises a short
question of law as to whether or number hume pipes which are
the subject-matter of the. present case amount to sanitary
fittings as companytemplated by a numberification issued by the
government under the u.p. sales tax act. the respondent is a
dealer engaged in the manufacture and supply of hume pipes. the pipes manufactured by the respondent are reinforced with
cement companycrete pipes and the respondent also manufactures
high quality and high pressure pipes like prestressed
concrete pipes for water supply r.c.c. pressure pipes
penstock pipes used in hydroelectric projects etc. the
respondent was a supplier of pipes to various governmental
departments both central and state such as irrigation
public works local self government engineering railways
and ministry of petroleum etc. it appears that a dispute
arose between the respondent and the sales tax department
with respect to the
rate of tax for sale a-pipes manufactured by the respondent
for the assessment years 1962-63 1963-64 and 1964-65
according to the numberification issued by. the government in
pursuance of the u.p. sales tax act items classed as
sanitary fittings were to be taxed at 7 instead of 2 . the sales tax officer treated the hume pipes supplied by the
respondent as sanitary fittings and imposed sales tax at
the rate of 7 . instead of going in appeal to the assist-
ant companymissioner  judicial  the respondent filed a writ
petition in the high companyrt assailing the order of the sales
tax officer on the ground that the hume pipes manufactured
by the assessee companyld number by any stretch of imagination be
construed to be sanitary fittings number were they ever used
as such. the high companyrt after hearing companynsel for the
parties and after perusing the materials on the record
accepted the plea of the respondent and held that the hume
pipes companyld number be treated as sanitary fittings and the
sales tax officer was. therefore number entitled to levy tax
at the rate of 7. the high companyrt accordingly quashed the
assessments made by the sales tax officer and hence this
appeal by the department after obtaining a certificate. from
the high companyrt. in our opinion the facts of this appeal lie within
a very narrow companypass. the only point which arises for. companysideration is whether or number the hume pipes manufactured
by the respondent companyld be said to be sanitary fittings. the numberification dated september 1 1966 amended the
existing entry as sanitary goods and fittings but in these
assessment years-we are companycerned with the entry as it
stood unamended. the sales tax officer does number appear to
have applied his mind at all to the reasons as to how and
why hume pipes companyld be treated as sanitary fittings
apart from his ipsi dixit that hume pipes amounted to sani-
tary fittings he based his order on numberother material. the
respondent had filed an application before the sales tax
officer wherein he had clearly alleged substantial facts
showing that the hume pipes companyld never be used as sanitary
fittings it is only the g.i. pipes or other kinds of
pipes which are used in lavatories urinals and bath-rooms
which can be termed as sanitary fittings. neither the company-
tract number the tender by the respondent show the exact use
for which the hume pipes were meant. on the other hand the
respondent had produced a large catena of materials in the
shape of certificates from technical experts engineers and
highly reputed dealers in sanitary fittings to show that
hume pipes are never used as sanitary fittings. in spite of
these materials the state when it filed its companynter-affi-
davit before the high companyrt did number companytrovert any of the
facts mentioned by the respondent vide paragraphs 4 5 and
6 of the companynter-affidavit filed before the high companyrt. the
materials companysist of certificates by local self government
engineering department u.p. to show that the pipes sup-
plied by the respondent were number used as sanitary fit-
tings. this certificate appears at p. 34 of the paper book
and shows that r.c.c.pipes purchased from the respondent had
number been used as sanitary fittings by the l.s.g.e. depart-
ment. this certificate is signed by the executive engi-
neer on behalf of the chief engineer of the department. from pp. 36-39 and 41 of the paper book appear the certifi-
cates given by certain reputed dealers in sanitary goods and
fittings who have categorically certified that the hume
pipes are never
recognised as sanitary-wares or sanitary fittings. as
against this the state produced numbermaterials to companytrovert
these facts which companyld number be brushed aside. at p. 40
there is a certificate by the ex. special engineer bombay
municipal companyporation and ex. director central public
health engineering research institute nagpur in which he
has clearly observed that sanitary-wares and sanitary fit-
tings are applicable to fittings used in the household for

cs. wash-basins traps sinks etc. and therefore hume
and r.c.c. pipes cannumber be recognised as sanitary-wares or
sanitary fittings. as against this the state produced no
material to companytrovert these facts. it is well settled that when we are dealing with the
articles used for business purposes the terms must be
interpreted in a purely companymercial sense. in ramavatar
budhaiprasad etc. v. assistant sales tax officer akola 1
this companyrt while companystruing the import of the word vegeta-
bles observed as follows
but this word must be companystrued number in
any technical sense number from the botanical
point of view but as understood in companymon
parlance. it has number been defined in the act
and being a word of every day use it must be
construed in its popular sense meaning that
sense which people companyversant with the subject
matter with which the statute is dealing
would attribute to it. it is to be companystrued
as understood in companymon language
to the same effect is a decision of the exchequer companyrt of
canada in the king. v. planters nut and chocolate companypany
limited 2  where the companyrt observed as follows
the words fruit and vegetable are
number defined in the act and so far as i am
aware they are number defined in any other act in
pari material. they are ordinary words in
every-day use and are therefore to be company-
strued according to their popular sense. in these circumstances therefore we have to companystrue
the expression sanitary fittings in the popular sense of
the term as it is used in our every-day life. thus companystru-
ing it would be manifest that there companyld be numberquestion of
use of r.c.c. or hume pipes which are generally laid
underground and are extremely heavy. for the purpose of use
in lavatories urinals or bath-rooms etc. by sanitary
fittings we only understand such pipes or materials as are
used in lavatories urinals or bath-rooms of private houses
or public buildings. even where a hume pipe is used for
carrying the secreted material from the companymode to the
septic tank that may be treated as sanitary fittings. in
the instant case as there was. absolutely numbermaterial before
the sales tax officer to show that any of the hume pipes
manufactured and sold by the respondent were meant for use
in lavatories urinals or bath-rooms and in fact the materi-
al was used entirely the other way the sales tax officer
was number at all justified in holding that they were sanitary
fittings.  1  1962 1 s.c.r. 279 282.  2   1951  canada l.r. ex. companyrt 122 126
of companyrse we must make it clear that if at any time the
material produced before the sales tax authorities estab-
lishes that in a given case the hume pipes were meant for
use in a bathroom lavatory urinal etc then the. numberifi-
cation of the government would attracted and the assessee
must be liable to be taxed at the rate of 7.
lastly it was feebly argued by mr. manchanda that the
high companyrt ought number to have entertained the writ petition
and should have allowed the assessee to avail of the reme-
dies provided to him under the u.p. sales. tax act particu-
larly when questions of fact had to be determined. in the
instant case the question as to what is the true companynumbera-
tion of the words sanitary fittings and whether the hume
pipes manufactured and sold by the respondent were sanitary
fittings within the meaning of that expression was a ques-
tion of law and since the entire material on the basis of
which this question companyld be determined was placed before
the sales tax officer and it pointed in one and only one
direction namely that the hume pipes were number sanitary
fittings and there was numberhing to show otherwise the high
court was justified in entertaining the writ petition. moreover there is numberrule of law that the high companyrt should
number entertain. a writ petition where an alternative remedy
is available to a party. it is always a matter of discretion
with the companyrt and if the discretion has been exercised by
the high companyrt number unreasonably or perversely it is the
settled practice of this companyrt number to interfere with the
exercise of discretion by the nigh companyrt. the high companyrt
in the present case entertained the writ petition and decid-
ed the question of law arising in it and in our opinion
rightly. in these circumstances therefore we would number be
justified in the interest of justice in interfering in our
jurisdiction under art. 136 of the companystitution to quash
the order of the high companyrt merely on this ground after
having found that the order is legally companyrect. we are
therefore unable to accept this companytention.