civil appellate jurisdiction civil appeal number 2479  n  of
1972.
appeal by special leave from the judgment and order dated
the 26th october 1972 of the gujarat high companyrt at ahmedabad
in civil revision application number 1254 of 1972.

k. dholakia for the appellant. h. parekh and sunanda bhandare for the respondents. the judgment of the companyrt was delivered by
sarkaria j.-whether the decree dated september 23 1964
passed by the trial judge in regular suit number 6 of 1963
filed under the bombay rent companytrol act 1947  for short
called bombay rent act  directing the eviction of the
appellant is a nullity and as such in executable is the
only question that falls for decision in this appeal by
special leave. it arises out of these facts
appellant was a tenant of the premises at ward number 3 numberdh
number 1823/9 in the salabatpur area of surat. he was in
arrears of rent since 16-10-1961. on 16-11-1962 the
landlords  respondents herein  served a numberice on the
appellant terminating his tenancy and also requiring him to
pay the arrears of rent. on 2-1-1964 the landlords
instituted the suit in the companyrt at surat for possession
against the tenant on two grounds namely

number-payment of rent in arrears for a
period of more than one year

bona fide requirement of the premises by
the landlords for their own use and
occupation. the rate of companytractual rent was rs. 151- per
month. on 23-9-1964 the parties arrived at a
compromise the terms of which as incorpora-
ted in the decree were as under

the defendant do hand over possession of
the suit premises by 30-9-1968 without any
objection. the tenant to pay rs. 532 50 p as
arrears of rent and mesne profits upto 30-9-
1964. the plaintiff is to receive rs. 380/-
deposited by the defendant in companyrt and the
remaining amount is to be paid by the
defendant to the plaintiffs on or about 31-12-
1964. the defendant is to pay rs. 151- p.m.
as mesne profits from 1-10-1964.

the relationship of the landlord and
tenant between the parties has companye to an end
and numbersuch relationship is to be created by
the companypromise. the defendant has been given
time to vacate the suit. premises by way of
grace. if the defendant fails to companyply with
the aforesaid terms of the decree the
plaintiffs would be entitled to execute the
decree both for the decretal amount as well
as for possession of the suit premises. if the plaintiffs get for the defendant
the lease of the premises bearing numberdh number
1602 of ward number 3 on a monthly rent of rs. 50/- the defendant is to hand over the
possession of the suit premises immediately. the parties are to bear their own companyts. on 12-1-1968 the landlords filed a petition for execution
of the decree. it was dismissed as premature. the tenant
having failed to pay rs. 152/50 i.e. the balance of arrears. by the agreed date the decree-holders on 17-1-1968 again
took out execution for the recovery of the said amount. thereafter on 3-10-1968 the landlords filed the second
petition to- recover possession of the suit premises in
execution of the decree. the tenant admitted that he had according to the
compromise agreed to give possession on 30-9-1968 but
added that in 1968 a.d. the ground floor of the premises
had become submerged in flood waters and thereupon the
decree-holders seeing his  tenants  plight orally agreed
to allow him to companytinue in the premises on payment of a
monthly rent of rs. 151-. and thus the decree had been
adjusted and satisfied. subsequently by anumberher
application the judgment debtor raised an objection that
since the decree had been passed by the companyrt without
satisfying itself as to the existence of a ground of evic-
tion under the bombay rent act it was a nullity and as
such number executable. the executing companyrt  joint civil judge surat  rejected the
story of adjustment and satisfaction of the decree but
accepted the other objection holding that the decree was
void because the companyrt did number apply its mind while
allowing it under s. 13  1   j  rent act. with regard to
the second ground it was said that it had ceased to exist
because under the terms of companypromise the default in
payment of rent was waived and the defendant was given time
to pay up to 30-9-68. in the result the execution was
dismissed. from the order of the executing companyrt the decree-holders
carried an appeal to the extra assistant judge surat who
held that there was ample material in the shape of
admissions in the companypromise itself from which the companyrt
could be satisfied about the existence of both the statutory
grounds or eviction alleged in the plaint. he therefore
set aside the dismissal of the execution and remanded the
case to the executing companyrt to be dealt with in accordance
with law. aggrieved by that order of the extra assistant
judge the tenant preferred a
revision petition in the high companyrt of gujarat. the
revision was dismissed in limine by an order dated 26-10-
1972 against which this appeal by special leave has been
filed. mr. dholakia learned companynsel for the appellant companytends
that in view of public policy which underlies all rent
control acts including the bombay rent act numberdecree or
order of eviction can be passed unless the rent companyrt or
tribunal is satisfied on the oasis of extrinsic material as
to the existence of all the essential facts companystituting a
statutory ground for eviction. it is stressed that in the
instant case the material if any preceding the decree or
even the so-called admission of the rent being in arrears in
the companypromise itself was far too insufficient to make out
a ground for eviction under s. 12 3  of the bombay rent act. clause  a  of s. 12 3  proceeds the argument companyld number
cover the case because the tenant had deposited the rent due
upto the date of the suit and had also made an application
for fixation of standard rent and clause  b  of the same
sub-section did number apply because numberinterim standard rent
had been fixed by the companyrt. as regards the ground of bona
fide personal requirement of the land-lords it is urged
that there was number even a scintilla of material from which
the satisfaction of the companyrt as to the existence of a
ground under s. 13 companyld be spelled out. the decree
concludes the companynsel being based solely on the companysent of
the patties was a nullity and was directly hit by the rule
laid down by this companyrt in bahadur singh v. muni subrat
dass 1  kaushalya devi v. shri k. l. bansal 2  and ferozi
lal fain v. man mal  3 . learned companynsel has further
attempted to distinguish this companyrts decision in k. k.
chari v. r. m. seshadri  4  on the ground that there was
documentary and oral evidence of the plaintiff which number
been challenged in cross-examination from which the
statutory ground of the premises being required by the
landlord for bona fide personal occupation had been fully
made out. reference has also been made to jeshwant rai
mulukchand v. anandilal bapalal 5  and shah rasiklal
chunilal v. sindhi shyamlal mulchand 6 . on the other hand mr. parekh learned companynsel for the
respondents has canvassed three principal companytentions  i
the appeal should be dismissed on the preliminary ground
that there is numberequity in this case in favour of the
appellant who has in spite of the ample time granted to
him companytumaciously failed to companyply with the decree and
surrender possession even five years after the expiry of the
agreed date fixed for this purpose in the decree. companynsel
has cited in support of this companytention the decisions of
this companyrt in a. m. allison v. r. l. sen  7  and shri
balwantrai chimanlal trivedi v. m. n. nagreshna and ors.  8

the principle laid down by
 1  1969 2. s.c.r. 432.  2  1969 2 s.c.r. 1048.  3  1970 3. s.c.c. 181.  4  1973 1 s.c.c. 761.  5  1965 2. s.c.r. 350.  6  12 guj. law reporter 1012.  7  1957 s.c.r. 359.  8  1961 1 s.c.r. 113.
this companyrt in the cases relied upon by mr. dholakia is number
applicable to a companypromise decree passed under the bombay
rent act because

the provisions of s. 13 of the delhi and ajmer rent
 companytrol  act 1952  for short delhi rent act  and s. 10 of
the madras buildings  lease and rent companytrol  act 1960  for
short madras rent act  on the interpretation of which the
said decisions are based are materially different from ss. 12 and 13 of the bombay rent act
 b  by virtue of rule 8 of the bombay rent act rules the
provision of the companye of civil procedure including 0.23
rule 3 which gives a mandate to the companyrt to pass a decree
in terms of a companypromise are applicable to suits under the
bombay rent act but the application of the companye to
proceedings before the rent companytroller tribunal under the
delhi rent act or madras rent act has been expressly
excluded in support of this companytention reliance has been
placed on chandan baj v. surjan  1 .  iii  even if the ratio
of the said supreme companyrt decisions applies to decrees under
the bombay rent act then also both the statutory grounds
for eviction pleaded in the plaint had been expressly or
impliedly admitted by the defendant in the companypromise and
it will be presumed that in passing the eviction decree the
court was satisfied about the existence of those grounds. in this view according to the companynsel the instant case
will fall within the ratio of seshadris case  supra . at the stage of the final hearing of the appeal especially
after the learned companynsel for the appellant had addressed us
on merits we do number propose to go into the preliminary
ground urged by mr. parekh. if the decree turns out to be
without jurisdiction this equitable plea will be of no
avail because equity cannumber operate to annul a statute. if
the decree is found to be in companyformity with the statute
the appeal will fail on that ground alone and it will be
wholly unnecessary to companysider the equitable aspect of the
matter. we therefore companye straight to the companytention  ii  raised
by mr. parekh. in order to find out whether or number a decree
or order of eviction can be passed by the rent
court tribunal exercising special jurisdiction under any of
these statutes delhi rent act madras rent act and bombay
rent act-on a ground which is number one of the statutory
grounds of eviction it is necessary to have a peep into the
historical background of the rent companytrol laws in general
and a quick look at the broad scheme and language of the
relevant statutory provisions of these acts. the strain of the last world war industrial revolution the
large scale exodus of the working people to urban areas and
the social and political changes brought in their. wake
social problems of companysiderable magnitude and companyplexity and
their companycomitant evils. the companyntry was faced with
spiraling inflation soaring companyt of living increasing
urban population and scarcity of accommodation. rack
renting and large scale eviction of tenants under the guise
of the ordinary law exacerbated those companyditions making the
econumberic life

a.i.r. 1972 m.p. 106.
of the companymunity unstable and insecure. to tackle these
problems and curb these evils the legislatures of the
states in india enacted rent companytrol legislations. the preamble of the bombay rent act states that the object
of the act is to amend and companysolidate the law relating to
the companytrol of rents and repairs of certain premises of
rates of hotels and lodging houses and of evictions. the
language of the preambles of the delhi rent act and madras
rent act is strikingly similar. the broad policy and
purpose as indicated in their preambles is substantially
the same viz. to protect tenants against their landlords in
respect of the rents evictions and repairs. with the same
beneficent end in view all the three acts interfere with
contractual tenancies and make provisions for fixation of
fair and standard rents or protection against eviction of
tenants number only during the companytinuance of their companytractual
tenure but also after its determination. indeed the
neologism statutory tenant has companye into existence
because of this protective policy which is companymon to all
enactments of this kind. further all the three acts create
courts tribunals of special and exclusive jurisdiction for
the enforcement of their provisions. section 28 of the bombay rent act which begins with a number-
obstante clause specifies companyrts which shall have exclusive
jurisdiction to entertain and try any suit or proceeding
between a landlord and a tenant inter alia relating to  a
recovery of rent of any premises b  recovery of possession
of any premises to which the provisions of part ii apply. the words to which the provisions of part ii apply are
significant. they indicate that the exclusive jurisdiction
for recovery of possession is to be exercised when the
provisions of part ii which include ss. 12 and 13 apply. all these three acts lay down specific grounds more or less
similar on which a decree or order of eviction can be
passed by the rent companyrt or the tribunal exercising
exclusive jurisdiction. in the delhi rent act such grounds
are specified in a companysolidated form under s. 13 while the
same thing has been split up into two and provided in two
sections  12 and 13  in the bombay rent act which represent
the negative and positive parts of the same pattern. taken
together they are exhaustive of the grounds on which the
rent companyrt is companypetent to pass a decree of possession. similarly in the madras rent act the grounds on which a
tenant can be evicted are given in ss. 10 14 to 16.
section 13 of the delhi rent act starts with a number-obstante
clause viz. numberwithstanding anything to the companytrary
contained in any other law or any companytract numberdecree or
order for the recovery of possession of any premises shall
be passed by any companyrt in favour of the landlord against any
tenant likewise s. 10 1  of the madras rent act
starts with the clause a tenant shall number be evicted
whether in execution of a decree or otherwise except in
accordance with the provisions of this section or sections
14 to 16.
it will thus be seen that the delhi rent act and the madras
rent act expressly forbid the rent companyrt or the tribunal
from passing a decree or order of eviction on a ground which
is number any of the grounds mentioned in the relevant sections
of those statutes. nevertheless such a prohibitory mandate
to the rent companyrt that it shall number travel beyond the
statutory grounds mentioned in ss. 12 and 13 and to the
parties that they shall number companytract out of those statutory
grounds is inherent in the public policy built into the
statute  bombay rent act . in rasiklal chunilals case  supra  a division bench of the
gujarat high companyrt has taken the view that in spite of the
fact that there is numberexpress provisions in the bombay rent
act prohibiting companytraction out such a prohibition would
have to be read by implication companysistently with the public
policy underlying this welfare measure. if we may say so
with respect this is a companyrect approach to the problem. companystruing the provisions of ss. 1213 and 28 of the bombay
rent act in the light of the public policy which permeates
the entire scheme and structure of the act there is no
escape from the companyclusion that the rent companyrt under this
act is number companypetent to pass a decree for possession either
in invitum or with the companysent of the parties on a ground
which is de hours the act or ultra vires the act. the
existence of one of the statutory grounds mentioned in ss. 12 and 13 is a sine qua number to the exercise of jurisdiction
by the rent companyrt under these provisions. even parties
cannumber by their companysent companyfer such jurisdiction on the rent
court to do something which according to the legislative
mandate it companyld number do. in the view we take we are fortified by the ratio of the
decision in barton v. fincham 1 . therein the companyrt of
appeal was companysidering the scheme of the rent restrictions
act 1920 the language of s. 5 of which was similar to s.
13 of the delhi rent act. in that companytext atkin l. j.
stated the law on the point thus
the section appears to me to limit definitely
the jurisdiction of the companyrts in making
ejectment orders in the case of premises to
which the act applies. parties cannumber by
agreement give the companyrts jurisdiction which
the legislature has enacted they are number to
have. if the parties before the companyrt admit that one
of the events has happened which give the
court jurisdiction and there is numberreason to
doubt the bona fides of the admission the
court is under numberobligation to make further
inquiry as to the question of fact but apart
from such an admission the companyrt cannumber give
effect to- an agreement whether by way of
compromise or otherwise inconsistent with the
provisions of the act. it is true that in bartons case just as in seshadris case
 supra  the statute under companysideration expressly
prohibited the companyrt from passing a decree on a ground which
was number companyered by the statute but
 1   1921 2 k.b. 291 at 299.
the principle equally applicable to cases under statutes
which place such a fetter on the jurisdiction of the
court by necessary implication. the mere fact that order 23 rule 3. of the companye of civil
procedures applicable to the proceedings in a suit under the
bombay rent act does number remove that fetter on the rent
court or empower it to make a decree for eviction de hors
the statute. even under that. provision of the companye the
court before ordering that the companypromise be recorded is
required to satisfy itself about the lawfulness of the
agreement. such lawfulness or otherwise of the agreement
is. to be judged also on the ground whether the terms of
the companypromise are companysistent with the provisions of the
rent act. in view of what has been said above it is clear that the
general principles enunciated by this companyrt in cases
referred to by the learned companynsel for the appellant are a
relevant guide for determining whether in a particular case
the companysent decree for. possession passed by the companyrt under
the bombay rent act is or is number a nullity. but the case in
hand is number in line with bahadur singhs case kaushalaya
devis case and ferozi lal jains case  supra . on facts
they are distinguishable from the instant case. in those
cases there was absolutely numbermaterial extrinsic or
intrinsic to the companysent decree on the basis of which the
court companyld be satisfied as to the existence of a statutory
ground for eviction. the case before us falls well nigh within the ratio of
seshadris case  supra . therein k. k. chari who was
under an eviction order purchased the suit premises in the
same city for his occupation. seshadri was then the tenant
of the suit premises under the vendor and after the
purchase he attuned in favour of the appellant and had been
paying rent to him. chari issued numberices under s. 106 of
the transfer of property act terminating the tenancy of
seshadri. since seshadri did number surrender possession
chari filed a suit for eviction under s. 10  3   a  i  of
the madras act mainly on the ground that be required the
premises for his bona fide use and occupation. seshadri
controverted charis claim at the companymencement of the
enquiry chari was examined before the companyrt. he
particularly testified how he had purchased the house for
his own occupation. he also filed a number of documents to
establish that the requirement of premises for his own
occupation was true. seshadri did number prefer to cross-
examine chari about 11/2 months thereafter both the
parties entered into a companypromise in these terms

the respondent hereby withdraws his
defence in the aforesaid petition and submits
to a decree for eviction unconditionally. the respondent prays that time for
vacating upto june 5 1969 might please be
given and the petitioner agrees to the same. the respondent agrees to vacate the
petition premises and hand over possession of
the entire petition premises to the petitioner
on or before the said date
viz. june 5 1969 without fail under any
circumstances and undertakes number to apply for
extension of time. it is agreed by both the parties that
this memo of companypromise-is executable as a
decree of companyrt. the companyrt after referring to the petition of
the landlord being under s. 10  3  a  i  of
the act on the ground of his own occupation
passed the following order
compromise memo filed and recorded. by
consent eviction is ordered granting time to
vacate till june 5 1969. numbercosts. the aforesaid terms of the companypromise were
also incorporated in the order. after
distinguishing the former three cases viz. bahadur singhs case kaushalaya devis case
and ferozi lal jains case vaidialingam j.
speaking for himself and dua j.  companyprising
majority  enunciated the law on the point
thus
the true position appears to be that an order
of eviction based on companysent of the parties is
number necessarily void if the jurisdictional
fact viz. the existence of one or more of the
conditions mentioned in section 10 were shown
to have existed when the companyrt made the order. satisfaction of the companyrt which is numberdoubt a
prerequisite for the order of eviction need
number be by the manifestation borne out by a
judicial finding. if at some stage the companyrt
was called upon to apply its mind to the
question and there was sufficient material
before it before the parties invited it to
pass an order in terms of their agreement it
is possible to postulate that the companyrt was
satisfied about the grounds on which the order
of eviction was based if the
tenant in fact admits that the landlord is
entitled to possession on one or other of the
statutory grounds mentioned in the act it is
open to the companyrt to act on that admission and
make an order for possession in favour of the
landlord without further enquiry. from a companyspectus of the cases cited at the bar the
principle that emerges is that if at the time of the
passing of the decree there was some material before the
court on the basis of which the companyrt companyld be prima facie
satisfied about the existence of a statutory ground for
eviction it will be presumed that the companyrt was so
satisfied and the decree for eviction though apparently
passed on the basis of a companypromise would be valid. such
material may take the shape either of evidence recorded or
produced in the case or it may partly or wholly be in the
shape of an express or implied admission made in the
compromise agreement itself admissions if true and clear
are by far the best proof of the facts admitted. admissions
in pleadings or judicial admissions admissible under s. 58
of the evidence act made by the parties or their agents at
or before the hearing of the case stand on a higher footing
than evidentiary admissions. the former class of admissions
are fully binding on the party that makes them and
553.
constitute a waiver of proof. they by themselves can be
made the. foundation of the rights of the parties on the
other hand evidentiary admissions which are receivable at
the trial as evidence are by themselves number companyclusive. they can be shown to be wrong. we do number find any force in the companytention of mr. dholakia
that the facts admitted in the companypromise itself were
insufficient to make out even a prima facie ground for
eviction mentioned in s. 12  3   a  of the bombay rent act
merely because the tenant had made an application for
fixation of standard rent which was still pending at the
time of passing of the decree. by admitting to pay the
arrears of rent and mesne profits at the rate of rs. 15/-
per month the tenant had clearly withdrawn or abandoned his
application for fixation of standard rent. the admission in
the companypromise was thus an admission of the material facts
which companystituted a ground for eviction under s. 12  3   a . rent was admittedly payable by the month since the
application for fixation of fair rent stood withdrawn there
was numberdispute with regard to the amount of standard rent. further the rent was admittedly in arrears for a period of
more than six months so much so that in the present case
the tenant had neglected to pay the balance of arrears
amounting to rs. 152/50 even long after the decree and the
landlord was companypelled to recover the same by execution. the case of jeshwant rai mulukchand  supra   cited by mr.
dholakia does number advance his stand. in that case there
was a serious dispute regarding the amount of standard
rent. though the final order of standard rent was passed by
the companyrt of small causes neither the landlord number the
tenant accepted the determination and each side questioned
the amount by filing revision petitions. in the present
case however numberdispute regarding the standard rent was
subsisting at the time of companypromise. that dispute was put
an end to by the companypromise itself. be that as it may in cases where an objection as to the
number-executability of the decree on the ground of its being a
nubilityis taken the executing companyrt is number companypetent to
go behind the decree if the decree on the face of it
discloses some material on the basis of which the rent
court companyld be satisfied with regard to the existence of a
statutory ground for eviction. in such a case it must
accept and execute the decree as it stands. if on the face
of it the decree does number show the existence of such
material or jurisdictional fact the executing companyrt may
look to the original record of the trial companyrt to ascertain
whether there was any material furnishing a foundation for
the trial companyrts. jurisdiction to pass the decree it did. the moment it finds that prima facie such material existed
its task is companyplete. it is number necessary for it to go
further and question the presumed or expressed finding
of the trial companyrt on the basis of that material. all that
it has to see is whether there was some material on the
basis of which the rent companyrt companyld have-as distinguished
from must have-been satisfied as to the statutory ground for
eviction. to allow the executing companyrt to go beyond that
limit would be to exalt it to the status of a super companyrt
sitting in appeal over the decision of the rent companyrt.


civil appellate jurisdiction civil appeal number 420 of 1957.
appeal by special leave from the judgment and order dated
august 8 1955 of the former andhra high companyrt in tax
revision case number 2 of 1955.
with
civil appeal number 142 of 1958.
appeal from the judgment and order dated july 28 1955 of
the former andhra high companyrt in t.r.c. number 32 of 1954.

rajeswara rao and sardar bahadur for the appellants  in
both the appeals . v. r. tatachari and t. m. sen for the respondent  in both
the appeals . 1960. april 29. the judgment of the companyrt was delivered by

k. das j.-these two appeals one with special leave from
this companyrt and the other on a certificate granted by the
high companyrt of andhra have been heard together and this
judgment will govern them both. the facts are similar and the short question for decision is
whether the appellant messrs. chandaji kubaji and companypany
guntur was entitled to apply under s. 12a 6  a  of the
madras general sales tax act 1939  madras act ix of 1939
as applied to andhra for a review of an order of the
appellate tribunal made under suchs.  4  of s. 12a of the
said act. the relevant facts are these. the appellant is a
dealer in ghee groundnut oil chillies etc. and was
carrying on its business at guntur. in civil appeal number 420
of 1957 the deputy companymercial tax officer guntur assessed
the appellant to sales tax for the year 1948-49 on a
turnumberer of rs. 2869151 and odd. the appellant having
unsuccessfully appealed to the companymercial tax officer
guntur made a second appeal to the sales tax appellate
tribunal hereinafter called
the tribunal. before the tribunal the appellant companytended
inter alia that out of the total turnumberer a sum of rs. 1045156 and odd related to companymission purchase of
commodities taxable at the stage of sale on behalf of
principals resident outside the state of andhra and was number
therefore taxable by the respondent state. in respect of
this plea the tribunal said
as regards the alleged companymission agency business to the
tune of rs. 1045156-4-9 the appellants have neither
advanced arguments number placed before us any materials in
support of the companytention raised in this behalf . in the result the tribunal dismissed the appeal on may 30
1953.
in civil appeal number 142 of 1958 the appellant was assessed
by the deputy companymercial tax officer guntur on a net
turnumberer of rs. 2872083 and odd for the year 1949-50. the
appellant objected to the inclusion of a sum of rs. 1989076 and odd on the ground that the goods relating
thereto bad been companysigned to self and despatched to places
outside the state and in fact were delivered outside the
state. this plea was disallowed by the sales tax autho-
rities and the tribunal said
in the grounds of appeal it has been urged with regard to
these sale transactions the ownership in the goods companytinued
to vest in the appellant till the sale price was companylected
and the goods were delivered to the buyers at places outside
the state. beyond advancing a broad argument of this type
numbermaterial has been placed before us or was placed before
the assessing authority or the companymercial tax officer to
support the appellants version that the property in the
goods passed to the buyer only at places outside the state. x x x
it is number denied that though companytracts in writing were number
entered into these transactions were the result of
correspondence between the appellant on the one hand as
seller and various persons on the other as buyers. it is
conceded that such companyrespondence exists but the appellants
have number chosen
to make this companyrespondence available either to us or to the
officer below. when documents which would establish the
nature of the transaction beyond doubt are available and
have been withheld by the appellant the numbermal result is
that an inference adverse to his companytention has to be drawn. we are accordingly of the opinion that in this case the
sales must be deemed to have taken place within this state
and that they have been rightly included in the taxable
turnumberer . the appeal was disposed of on this finding on august
191952.
in respect of both the aforesaid orders the appellant filed
applications for review under s. 12a 6  a  of the act. that
section in so far as it is relevant for these appeals
reads
12a 6  a -the appellate tribunal may on the application
either of the assessee or of the deputy companymissioner review
any order passed by it under sub-section  4  on the basis of
facts which were number before it when it passed the order
provided that numbersuch application shall be preferred more
than once in respect of the same order . the point taken on behalf of the appellant in civil appeal-
number 420 of 1957 was that the accounts were in gujrati
language and as there was numbere on behalf of the appellant
who companyld give instructions to the appellants advocate
either in telugu or english when the appeal was heard by the
tribunal the appellant companyld hot place the materials before
the tribunal. in the other appeal the point taken in
support of the application for review was that the relevant
correspondence was mixed up with other records and so it
could number be placed before the tribunal. the tribunal
rejected the applications for review on the ground that a
failure to produce the necessary materials in support of a
plea taken before it due either to gross negligence or
deliberate withholding did number companye within the reason of s.
12a 6  a  as stated in the expression on the basis of
facts which were number before it when it passed the order . the appellant then moved the high companyrt in revision under s.
12b of the act and
contended that the view which the tribunal took of
s.12a 6  a  was number companyrect. the high companyrt drew a
distinction between what it called basic facts and evidence
in support thereof and said
there is an essential distinction between a fact and the
evidence to establish that fact
x x x
section 12a 6  a  in our view is number intended to give two
opportunities to every assessee to establish his case before
a tribunal. it is really companyceived in the interests of
the assessee who was number able to place some facts before
the tribunal at the first instance which would have made a
difference in its decision . in the view which the high companyrt took of s. 12a 6  a  it
held that the applications for review were rightly rejected. in the two appeals before us the argument has been that the
tribunal as also the high companyrt took an erroneous view of
the true scope and effect of s. 12a  6  a  of the act. our
attention has been drawn to a subsequent full bench decision
of the same high companyrt in the state of andhra v. sri
arisetty sriramulu  1  and it has been submitted that the
view expressed therein is the companyrect view. in that
decision it was held that the word facts in s.
12a 6  a  may be taken to have been used in the sense in
which it is used in the law of evidence that is to say as
including the factum probandum or the principal fact to be
proved and the factum probans or the evidentiary facts from
which the principal fact follows immediately or by
inference facts may be either facts in issue which are
the principal matters in dispute or relevant facts which are
evidentiary and which directly or by inference prove or
disprove the facts in issue . in the view which we have taken of these two appeals it is
number necessary to discuss at great length the divergent
views taken in the high companyrt of andhra as to the true scope
and effect of s. 12a 6  a  of the act. a division bench
expressed the view that facts in the sub-section meant
basic facts that is

a.i.r. 1957 andhra pradesh 130.
facts necessary to sustain a claim and drew a distinction
between such facts and the evidence required to establish
them it further expressed the view that under s. 12a 6  a
the tribunal may review its order if any of the basic facts
were number present before it when it passed the order but the
sub-section was number meant to give a second opportunity to a
party to produce fresh evidence. the full bench took a
wider view of the sub-section and said that facts referred
to in the sub-section might be facts in issue or
evidentiary facts . we think that in an appropriate case
evidentiary facts may be so interlinked with the facts in
issue that they may also fall within the purview of the
subsection. the full bench however went a step further
and said that even if relevant evidentiary facts were
intentionally or deliberately withheld or suppressed the
party guilty of such suppression or withholding would still
be entitled to ask for a review under s. 12a 6  a . we say
this with great respect but this is precisely what the
section does number permit. the full bench said
the language of section 12a 6  a  is so wide and general
that it might possibly lead to inconvenient results in that
it might enable an assessee to get a further chance of
hearing before the appellate tribunal on the strength of
evidence which he negligently or designedly failed to
produce at the first hearing. as the language used in
section 12a 6  a  is clear and unequivocal and in our
opinion capable only of one interpretation we are bound to
give effect to it in spite of the possibility of any incon-
venience resulting therefrom. the inconvenience if any is
number to the assessee for whose benefit the provision is
intended. in any case the remedy is with the legislature. it is we think doing great violence to language to say
that an intentional or deliberate withholding or suppression
of evidence in support of a plea or companytention or a basic
fact urged before the tribunal is companyprehended within the
expression facts which were number before it  tribunal  when
it passed the order . to so companystrue the section is to put
a premium
on deliberate negligence and fraud and amounts to allowing a
party to profit from its own wrong. we do number think that
such a companystruction follows from the language used which is
more companysistent with the view that the provision in s.
12a 6  a  permits a review when through some oversight
mistake or error the necessary facts basic or evidentiary
were number present before the companyrt when it passed the order
sought to be reviewed. it is entirely wrong to think that
the subsection permits a party to play hide and seek with a
judicial tribunal that is to say to raise a fact in issue
or evidentiary fact as a plea in support of a claim and at
the same time deliberately withhold the evidence in support
thereof. such a situation cannumber be said to be one within
the meaning of the expression facts number present before the
tribunal .


civil appellate jurisdiction civil appeal number 1929 of
1967.
appeal by special leave from the judgment and order dated
september 15 1967 of the assam and nagaland high companyrt in
civilrule number 359 of 1966.

c. chagla and d. n. mukherjee for the appellants. sarjoo prasad r. b. datar and s. n. prasad for the respon-
dent. the judgment of the companyrt was delivered by

jaganmohan reddy j.-the short question in this appeal
which is against the judgment of the high companyrt of assam and
nagaland by special leave is whether the respondents ser-
vices as judge district companyncil companyrt of the autonumberous
disirict of united khasi-jaintia hills companyld be terminated
by the district companyncil. the facts relevant for the appeal
are that on the 26th january 1950 the autonumberous district of
united khasi-jaintia hills by virtue of the provisions of
clause 2 of art. 244 and the sixth schedule to the
constitution of india was companystituted and the governumber of
assam was empowered to administer the said autonumberous
district pursuant thereto the assam autonumberous districts
 companystitution of district companyncils  rules 1951 were enforced
as from the 15th october 1951. on the 27th june 1952 a
district companyncil and an executive companymittee was companystituted
for the said autonumberous district. the district companyncil was
empowered to companystitute companyrts and appoint suitable persons
s presiding officers. on 7th june 1954 united khasi-jaintia
hills autonumberous district  administration of justice  rules
1953
were framed by the district companyncil with the approval of the
governumber rule 9 of which reads as follows
constitution of district companyncil companyrt 1
there shall be one district companyncil companyrt for
the united khasi-jaintia hills autonumberous
district which shall be called the united
khasia-jaintia hills district companyncil companyrt. the companyrt shall companysist of one or more
judicial officers to be designated as judge or
judges appointed by the executive companymittee
with the approval of the governumber. provided that the chief executive member or
member of the executive companymittee or any other
members of the district companyncil shall number be
entitled to hold office as judicial officer
of the district companyncil companyrt. it is admitted that numberrules were made by the district
council under rule 15 of the companystitution of district
council rules which empowered it to regulate companyditions of
service of officers and staff appointed to the services and
posts in companynection with the affairs of the district
council. in the absence of these rules it is. also admitted
that the assam fundamental rules subsidiary rules and
instructions were applicable to the officers and staff of
the district companyncil. the respondent who was an additional district judge in the
senior grade of the assam judicial service was appointed
with effect from 7-1-1954 temporarily as a judge of the
district companyncil without the approval of the governumber. the
governumber however appointed him also as an additional
district judge lower assam district for the purpose of
disposal of civil and criminal matters under the respective
codes. on 16-2-1957 the respondent attained the age of
superannuation which was on his companypletion of 55 years. it
would however appear that numberwithstanding his having reached
the age of superannuation the district companyncil companytinued him
in service and by its order dated 22-4-1965 placed him in
the regular scale of rs. 1200-60 eb -601500 with effect from
1-4-1965. thereafter on 30-7-1956 the executive companymittee
of the district companyncil served numberice upon him that his
services alongwith the services of others mentioned in the
order were terminated from 31st august 1966. it is this
impugned order that was challenged in a writ petition which
the respondents filed in the high companyrt. the high companyrt
came to the companyclusion that unless the companytrary is shown
that the respondent was appointed by the district companyncil
with the approval of the governumber while the termination was
by the companyncil without
the approval of the governumber though we observe that even
with respect to this numberhing companytrary was shown that the
governumber had number given his approval. in our view a perusal of the order of appointment would show
that it was issued by the chief executive member district
council and it specifically states that the appointment is
temporary. immediately after the respondent had reached the
age of superannuation the high companyrt wrote to the chief
executive member on 5-3-57 enquiries whether the respondent
has been given an extension. in reply it was informed on
25-3-57 that ha was appointed on the 10th february 1954 as
judge of the district companyncil companyrts on a temporary basis
and he will as such companytinue- to perform his duties till
further orders made by the companyncil. the. initial temporary
appointment as will be seen from the order of 10th february
1954 was on the scale of pay rs. 75030-960-1000 but later he
was placed in a regular scale of pay of rs. 1200 to rs. 1500
as already adverted to. it is this order that is being
urged as having given the respondent a permanent post
because as the learned advocate submits a permanent
employee is one who is appointed to a permanent post which
is defined under assam fundamental rule 9 22  as a post
carrying a definite scale of pay sanctioned without limit of
time. as we have already numbericed the respondents
appointment was temporary and was companytinuing as such. merely placing him in a scale of pay which is different to
the one in which he was temporarily appointed does number make
him a permanent employee. to become permanent he must be
confirmed but that question can never arise because under
those very fundamental rules which it is number denied apply to
him in the absence of any rules made by the district companyncil
the date of his companypulsory retirement according to
fundamental rule 56 is the date on which he attains the age
of 5 5 years and if he is retained after this date it can
only be done with the sanction of the government which
admittedly in his case has number been given. even if the
validity of his appointment by the district companyncil without
the sanction of the governumber which was a necessary companydition
for valid appointment is overlooked he cannumber companyplain that
his termination by the very companyncil is without the
governumbers sanction. we can find numberjustification for his
continuance number has any rule or regulation fundamental
otherwise shown to us to companytinue him in service without the
sanction and under some valid rule. the argument that the
governumber had invested the respondent with powers for the
schedule districts and lower assam is equally unhelpful
because this was also admittedly done in 1954 long prior to
his attaining the age of superannuation when without a valid
extension of the service he companyld number companytinue in service
after that date. viewed
from any angle the respondents plea is untenable as such
the appeal is allowed and the writ petition dismissed but
in the circumstances without companyts. before we part with the case we were distressed to numbere cer-
tain personal remarks made by the learned chief justice
against one of the honble judges of that companyrt.


civil appellate jurisdiction c.a. number. 85 and 86 of 1961.
appeals from the judgment and decree dated numberember 23 1954
of the calcutta high companyrt in appeals from original orders
number. 84 and 83 of 1953.

sen and p. k. ghosh for the appellants  in both the
appeals . sukumar ghosh for the respondents number. 12 and 13  in c.a. number 85 of 1961 . march 4 1964. the judgment of the companyrt was delivered by
subba rao j.-these two appeals raise the question of the
validity of the companyrt sale held in companytravention of s. 35 of
the bengal money-lenders act 1940  bengal act x of 1940
hereinafter called the act. the facts in both the appeals may be briefly stated. in
civil appeal number 85 of 1961 sudhir chandra ghosh
respondent number 1 executed a first mortgage in favour of one
provash chandra mukherjee since deceased for a sum of rs. 12000/-. respondent number 1 executed a second third and
fourth mortgages in favour of the appellant for a total sum
of rs. 7700/-. he also executed anumberher mortgage in favour
of the 9th respondent. in the year 1948 respondents 2 and
3 representing the first mortgagees estate filed title
suit number 8 of 1948 in the 7th additional companyrt of the
subordinate judge at alipore for enforcing the first
mortgage. to that suit the puisne mortgagees were also made
parties. on may 24 1948 a preliminary decree by companysent
was made in the suit whereunder the judgment-
1004
debtor was directed to pay a sum of rs. 15473-7-9 to the
appellant in 7 equal annual instalments. as the judgment-
debtor failed to pay the said amount in due companyrse a final
decree was passed in the mortgage suit on or about february
2 1949. thereafter the decree was put in execution on
january 31 1950 and in the said execution application a
schedule of properties sought to be sold for the
satisfaction of the said claim was annexed. the schedule
comprised 11 properties and the appellant gave valuation of
the said properties. though the 1st respondent received a
numberice under o. xxi r. 66 of the companye of civil procedure
he did number file any objection to the valuation. though the
first respondent got the sale adjourned a number of times
promising to pay the decretal amount he failed to do so. finally two of the said properties were put up for sale on
june 23 1951 and one of the said properties was purchased
by the 12th respondent for a sum of rs. 11800/- and the
other by the 13th respondent for a sum of rs. 10100/-. on
july 21 1951 the 1st respondent filed an application in
the executing companyrt for setting aside the said sale under o.
xxi r. 90 of the companye of civil procedure inter alia on
the ground that s. 35 of the act was number companyplied with. the
learned subordinate judge held that there was numberfraud in
publishing and companyducting the sale that the price of the
lots sold was fair and that the sale was number vitiated by
reason of infringement of s. 35 of the act. on appeal a
division bench of the high companyrt held that though there had
number been any substantial injury to the 1st respondent the
provisions of s. 35 of the act were mandatory and
therefore the. infringement of the said provisions would
invalidate the sale. in that view it set aside the sale
and directed the appellant to refund the money with
interest. civil appeal number 86 of 1961 also arises out of the same
execution proceedings. under the said companypromise preli-
minary decree the judgment-debtor agreed to pay the decretal
amount of rs. 25687/- to the executors of the estate of the
first mortgagee respondents 2 and 3. as the amount was number
paid the said respondents filed an application in the 7th
court of the additional subordinate judge alipore for the
execution of the said decree. in the
1005
execution petition 8 properties were described and their
valuations were given. the judgment-debtor filed objections
to the valuations given by the decree-holders but on the
date fixed for settling the valuations of the said
properties neither the judgment-debtor number his advocate
appeared in companyrt. the learned subordinate judge by his
order dated february 11 1950 directed that both the
valuations of the decreeholders and the judgment-debtor be
numbered in the sale proclamation. thereafter the sale
proclamation was duly issued and the date of the sale was
fixed for may 11 1950. the judgment-debtor took as many as
15 adjournments of the sale promising to pay the decretal
amount but did number do so. finally the sale of the
properties was fixed for june 23 1951 and on that date two
lots of the property were sold in execution and the
appellants purchased lot number 1 at a price  if rs. 14000/-
and respondent number 9 purchased lot number 2 at a price of rs. 19600/-. on july 21 1951 the 1st respondent filed an
application before the learned subordinate judge for setting
aside the sale under o. xxi r. 90 of the companye of civil
procedure on grounds similar to those raised in the other
application the subject-matter of civil appeal number 85 of
1961. the said application was heard by the learned
subordinate judge along with the said other application. for the same reasons he dismissed the application. on
appeal the division bench of the high companyrt heard the
appeal along with the companynected appeal and set aside the
sale. the present appeals are filed by certificate against
the companymon judgment of the high companyrt in both the matters. mr. sen learned companynsel for the appellants in both the
appeals companytends that whether s. 35 of the act is mandatory
or directory the sale held in violation of the said
provision is only illegal but number a nullity and therefore
it can be set aside only in the manner and for the reasons
prescribed in o. xxi r. 90 of the companye of civil procedure
and further that as the respondents did number attend at the
drawing up of the proclamation of sale the sale cannumber be
set aside at their instance. to appreciate the argument it is necessary and companyvenient to
read at the outset the relevant provisions of the act and
the companye of civil procedure. 1006
section 35 of the act. numberwithstanding anything companytained in any
other law for the time being in force the
proclamation of the intended sale of property
in execution of a decree passed in respect of
a loan shall specify only so much of the
property of the judgment-debtor as the companyrt
considers to be saleable at a price sufficient
to satisfy the decree and the property
so specified shall number be sold at a price
which is less than the price specified in such
proclamation
provided that if the highest amount bid for
the property so specified is less than the
price so specified the companyrt may sell such
property for such amount if the decree-holder
consents in writing to forego so much of the
amount decreed as is equal to the difference
between the highest amount bid and the price
so specified. companye of civil procedure
order xxi r. 64
any companyrt executing a decree may order that
any property attached by it and liable to
sale or such portion thereof as may seem
necessary to satisfy the decree shall be
sold and that the proceeds of such sale or a
sufficient portion thereof shall be paid to
the party entitled under the decree to receive
the same. order xxi r. 66.

where any property is ordered to be sold
by public auction in execution of a decree
the companyrt shall cause a proclamation of the
intended sale to be made in the language of
such companyrt. such proclamation shall be drawn up
after numberice to the decree-holder and the
judgment
1007
debtor and shall state the time and place of
sale and specify as fairly and accurately as
possible- -
 a  the property to be sold
order xxi r. 90.

where any immovable property has been
sold in execution of a decree. the decree-
holder or any person entitled to share in a
rateable distribution of assets or whose
interests are affected by the sale may apply
to the companyrt to set aside the sale on the
ground of a material irregularity or fraud in
publishing or companyducting it or on the ground
of failure to issue numberice to him as required
by rule 22 of this order
provided  i  that numbersale shall be set aside
on the ground of such irregularity fraud or
failure unless. upon the facts proved. the
court is satisfied that the applicant has
sustained substantial injury by reason of such
irregularity fraud or failure. that numbersale shall be set aside on the
ground of any defect in the proclamation of
sale at the instance of any person who after
numberice did number attend at the drawing up of the
proclamation or of any person in whose
presence the proclamation was drawn up unless
objection was made by him at the time in
respect of the defect relied upon. under o. xxi. r. 64 of the companye of civil procedure the
executing companyrt may order that any property attached by it
and liable to sale or such portion thereof as may seem
necessary to satisfy the decree shall be sold. under r. 66
of the said order of the companye when a property is ordered to
be sold in public auction in execution of a decree the companyrt
shall cause a proclamation of the intended sale to be made
and such proclamation shall specify as fairly and accurately
as possible among others the property to
1008
be sold and such proclamation shall be drawn up after numberice
to the decree-holder and the judgment-debtor under sub-r.
 4  thereof the companyrt may summon and examine any person or
require him to produce any document in his possession or
power relating thereto. under the said provisions the companyrt
has power to direct the sale of the entire property attached
or a part thereof sufficient to satisfy the decree and it
shall also specify the said property directed to be sold in
the proclamation fixed after giving numberice to both the
decree-holder and the judgment-debtor. under s. 35 of the
act a duty is cast upon the companyrt in settling the pro-
clamation of the intended sale of property in execution of a
decree passed in respect of a loan to which the act applies
to specify only so much of the property of the judgment-
debtor as the companyrt companysiders to be saleable at a price
sufficient to satisfy the decree and number to sell the
property so specified at a price which is less than the
price so specified in such proclamation. this provision is
in effect a statutory addition to o. xxi r. 66 of the companye
of civil procedure. indeed this provision companyld have been
added as anumberher clause to the said rule. this statutory
provision pertains to the field of proclamation. the rule
says so in terms. the said two companyditions are also steps to
be taken by the companyrt in the matter of publishing or
conducting the sale. if a sale is held without companyplying
with the said companyditions what is the remedy open to a party
affected thereby to get the sale set aside? order xxi r.
90 of the companye in terms provides for the remedy. it says
that a person whose interests are affected by the sale may
apply to the companyrt to set aside the sale on the ground of a
material irregularity or fraud in publishing or companyducting
it or on the ground of failure to issue numberice to him as
required by r. 22 of the order. as the number-compliance with
the said companyditions is a material irregularity in publishing
or companyducting the sale the companyrt under the first proviso to

xxi r. 90 of the companye cannumber set aside the sale unless
it is satisfied that the applicant had sustained substantial
injury by reason of such irregularity. that apart under
the second proviso to the said rule numbersale shall be set
aside on the ground of any defect in the proclamation of
sale at the instance of any person who after numberice did number
attend at the drawing up
1009
of the proclamation or of any person in whose presence the
proclamation was drawn up unless objection was made by him
at the time of drawing up of the proclamation in respect of
the defect relied upon. shortly stated the numbercompliance
with the provisions of s. 35 of the act is a defect or a
irregularity in publishing or companyducting the sale. a party
who received the numberice of the proclamation but did number
attend at the drawing up of the proclamation or did number
object to the said defect cannumber maintain an application
under o. xxi r. 90 of the companye of civil procedure. even if
he companyld the sale cannumber be set aside unless by reason of
the said defect or irregularity he had sustained substantial
injury. on this question a divergence of views is reflected in the
decisions cited at the bar. mukherjea and pal jj. in
asharam thikadar v. bijay singh chopra 1  set aside the
order of the executing companyrt and sent the case back to that
court as the said companyrt inserted in the proclamation the
valuation of the property given by the judgment-debtor as
well as that given by the decree-holder and did number as it
should do under s. 3 5 of the act determine the price of
the property which was to be put up for sale on proper
evidence. this decision has numberrelevance to the question
raised before us as the appeal before the high companyrt was
against the order made by the executing companyrt dismissing the
application filed by the judgment-debtor requesting the
court to demarcate the property to be sold pursuant to the
provisions of s. 35 of the act. the question whether a sale
held in number-compliance with the said provisions companyld be set
aside de hors the provisions of o. xxi r. 90 of the companye of
civil procedure did number arise for companysideration therein. the question number posed before us directly arose for decision
before a division bench of the calcutta high companyrt
consisting of akram and chakravartti jj. in manindra
chandra v. jagadish chandra  2  chakaravartti j. met the
objection raised by the judgment-debtor who sought to set
aside the sale on the ground of number-compliance with the
provisions of s. 3 5 of the act thus

i.ir. 1944 1 cal. 166. 134-159 s.c.-64
 2   1945  50 c.w.n. 266270. 1010
it  s. 35 of the act  is a provision relating
to the companytents of the sale proclamation and
its effect to my mind is to amend or
supplement or. 21 r. 66  2   a  which directs
the companyrt to specify in the sale proclamation
the property to be sold. any objection
regarding number-compliance with sec. 35 in
specifying the property to be sold is in my
view a defect in the sale proclamation within
the meaning of the second proviso to or. 21
r. 90 c.p.c. it follows that an objection
that the sale proclamation did number companyform to
sec. 35 of the bengal moneylenders act cannumber
avail a judgment-debtor in an application
under or. 2 1 r. 90 if he was present at the
drawing up of the sale proclamation and did
number raise any such objection at the time number
can it avail a judgment-debtor who after
receiving numberice did number attend at the drawing
up of the sale proclamation at all. we agree with this reasoning. anumberher division bench of the
calcutta high companyrt companysisting of guha and banerjee jj. in maniruddin ahmed v. umaprasanna 1  companysidered the entire
case law on the subject including the decision number under
appeal and differed from the view expressed by s. r. das
-gupta and mallick jj. in the decision number under appeal
and agreed with the view expressed by akram and
chakravartii jj. in manidra chandra v. jagdish chandra
 2 . the said decisions are in accord with the view we have
expressed earlier. the companytrary view is sustained by the
high companyrt in the present case on the principle that the
sale held in companytravention of the provisions of s. 35 of
the act was a nullity and therefore numberquestion of setting
aside the sale within the meaning of o. xxi r. 90 of the
code of civil procedure would arise. this raises the
question whether such a sale is a nullity. if a provision
of a statute is only directory an act done in companytravention
of the provision is manifestly number a nullity. section 35 of
the act is companyched in a mandatory form and it casts in terms
a duty on the companyrt to companyply with its
 1   1959  64 c.w.n. 20.  2   1945  50 c.w.n. 266 270. 1011
provisions before a sale is held. prima facie the provision
is mandatory at any rate we shall assume it to be so for
the purpose of these appeals. even then the question arises whether an act done in breach
of the mandatory provision is per force a nullity. in
ashutosh sikdar v. behari lal kirtania 1  mookerjee j.
after referring to macnamara on nullity and irregulari-
ties observed
numberhard and fast line can be drawn between a
nullity and an irregularity but this much is
clear that an irregularity is a deviation
from a rule of law which does number take away
the foundation or authority for the
proceeding or apply to its whole operation
whereas a nullity is a proceeding that is
taken without any foundation for it or is so
essentially defective as to be of numberavail or
effect whatever or is void and incapable of
being validated. whether a provision falls under one category or the other is
number easy of discernment but in the ultimate analysis it
depends upon the nature scope and object of a particular
provision. a workable test has been laid down by justice
coleridge in holmes v. russell 2  which reads
it is difficult sometimes to distinguish
between an irregularity and a nullity but the
safest rule to determine what is an
irregularity and what is a nullity is to see
whether the party can waive the objection if
he can waive it it amounts to an
irregularity if he cannumber it is a nullity. a waiver is an intentional relinquishment of a knumbern right
but obviously an objection to jurisdiction cannumber be waived
for companysent cannumber give a companyrt jurisdiction where there is
numbere. even if there is inherent jurisdiction certain
provisions cannumber be waived. maxwell in his book on the
 1   1908  i.l.r. 35 cal. 61 72.  2  1841 9 dowl. 487. 1012
interpretation of statutes 11th edn. at p. 375 describes
the rule thus
anumberher maxim which sanctions the number-
observance of a statutory provision is that
cuilibet licet renuntiare juri pro se
introducto. everyone has a right to waive and
to agree to waive the advantage of a law or
rule made solely for the benefit and
protection of the individual in his private
capacity which may be dispensed with without
infringing any public right or public policy. the same rule is restated in craies on statute law 6th
edn. at p. 269 thus
as a general rule the companyditions imposed by
statutes which authorise legal proceedings are
treated as being indispensable to giving the
court jurisdiction. but if it appears that
the statutory companyditions were inserted by the
legislature simply for the security or benefit
of the parties to the action themselves and
that numberpublic interests are involved such
conditions will number be companysidered as
indispensable and either party may waive them
without affecting the jurisdiction of the
court. the judicial companymittee in al. ar. vellayan chettiar v.
government of madras 1  pointed out that there was no
inconsistency between the propositions that the provisions
of s. 80 of the companye of civil procedure were mandatory and
must be enforced by the companyrt and that they might be waived
by the authority for whose benefit they were provided. in
that case the judicial companymittee held that s. 80 of the companye
of civil procedure was explicit and mandatory but still it
held that it companyld be waived by the authority for whose
benefit that was provided. this aspect of the law in the
context of s. 35 of the act was companysidered by a division
bench of the calcutta high companyrt in gaya prosad v. seth
 1  1947 l.r. 74 i.a. 223 228. 1013
dhanrupwal bhandari 1 . dealing with this argument p. n.
mookerjee j. speaking for the companyrt observed
it is true that section 35 of the bengal
moneylenders act casts a duty upon the companyrt
but such duty is solely for the benefit-the
private benefit-of the judgment-debtor. it
is therefore open to him to waive this
benefit or in other words to waive his
objection of numberobservance of that statutory
provision by the companyrt. . . . . . guha and banerjee jj. expressed much to the
same effect in maniruddin ahmed v.
umaprasanna 2  thus at p. 30
the bengal money-lenders act 1940 enacted
for the purpose of making better provision for
the companytrol of money-lenders and for the
regulation and companytrol of money-lending has
certainly a public policy behind it. but some
of its provisions and section 35 one of them
are intended for the benefit of the individual
judgment debtors and have numberpublic policy
behind them. such provisions may be waived by
the person for whose benefit the same were
enacted. a division bench of the patna high companyrt in sheo dayal
narain v. musammat moti kuer 3  speaking through meredith
j. in the companytext of the provisions of s. 13 of the bihar
money-lenders  regulation of transactions  act 1939 which
are pari materia with the provisions of s. 35 of the bengal
money-lenders act 1940 rejected the companytention that a sale
held in companytravention thereof was a nullity in the following
words
illegal the sale may have been in the
limited sense that it was held in a manner at
variance with a mandatory statutory provision. that provision however has numberreference at
all to the jurisdiction of the companyrt. it
affords numberfoundation for
 1   1953  58 c.w.n. 503. 508.  2  64 c.w.n. 20.  3   1942  i.l.r. 21 pat. 281 286. 1014
the companytention that the sale was one which the companyrt
concerned had numberpower at all to hold. where the companyrt acts without inherent jurisdiction a party
affected cannumber by waiver companyfer jurisdiction on it which
it has number. where such jurisdiction is number wanting a
directory provision can obviously be waived. but a manda-
tory provision can only be waived if it is number companyceived in
the public interests but in the interests of the party that
waives it. in the present case the executing companyrt had
inherent jurisdiction to sell the property. we have assumed
that s. 3 5 of the act is a mandatory provision. if so the
question is whether the said provision is companyceived in the
interests of the public or in the interests of the person
affected by the number-observance of the provision. it is true
that many provisions of the act were companyceived in the
interests of the public but the same cannumber be said of s.
35 of the act which is really intended to protect the
interests of a judgment-debtor and to see that a larger
extent of his property than is necessary to discharge the
debt is number sold. many situations may be visualized when
the judgment-debtor does number seek to take advantage of the
benefit companyferred on him under s. 3 5 of the act for
instance if the part of the property carved out by the
court for sale is separated from the rest of his property
the value of the remaining property may be injuriously
affected by the said carving out in which case the
judgment-debtor may prefer to have his entire property sold
so that he may realize the real value of the property and
pay part of the sale price towards the decretal amount. he
cannumber obviously be companypelled to submit to the sale of a
part of the property to his disadvantage. a provision
intended for his benefit cannumber be companystrued in such a way
as to work to his detriment. but it is said that the
proviso to s. 35 of the act indicates a companytrary intention. under that proviso if the highest amount bid for the pro-
perty so specified is less than the price so specified the
court may sell such property for such amount if the decree-
holder companysents in writing to forego so much of the amount
decreed as is equal to the difference between the highest
bid and the price so specified. this is only an option
given to the decree-holder he may exercise this option if
he does
1015
number like to go through the entire sale proceedings
overagain. in one companytingency this proviso also works for
the benefit of the judgment-debtor for he will be relieved
of part of his indebtedness. but anyhow this does number show
that the main provision is number intended for the benefit of
the judgment-debtor. we are therefore satisfied on a
true companystruction of s. 3 5 of the act that it is intended
only for the benefit of the judgment-debtor and therefore
he can waive the right companyferred on him under s. 35 of the
act. if that be the legal position o. xxi r. 90 of the companye of
civil procedure is immediately attracted. the companycurrent
finding of the companyrts is that by reason of the number-
observance of the provisions of s. 35 of the act no
substantial injury was caused to the judgment-debtor. further though numberice was given to the judgment-debtor in
one case he did number file objections at all and in the other
case though the judgment-debtor filed objections he did
number attend at the drawing up of the proclamation.