JUDGMENT <NAME>, J.

1. The decree with which we are concerned was made by the Subordinate Judge of Belgaum. The decree-holder applied to that Court to transfer the execution of the decree or a part of it to <ORG>, which is a Court of the Native State of Sangli. It is conceded that if this application does not save limitation under Art. 182 , further execution is now barred. If it does, the latest application for execution is in time.

2. The point is a very narrow one. It has been considered by a Bench of <ORG> <CITATION> (1881) P.R. No. 107 of 1881 and a Full Bench of <ORG> <NAME> (1917) I.L.R. 40 Mad. 1069.F.B. These judgments reach the same conclusion. In effect they hold that "execution" in Art. 182 must be strictly confined to execution authorised and controlled by the provisions of the Civil Procedure Code. Nothing done to get in the property decreed, which is not done within those statutory limits, is execution at all. The Civil Procedure Code does not authorize any of our <ORG> to send their decrees for execution to <ORG>. Therefore an application to <ORG> to send one of its decrees to <ORG> is not an application to "take a step-in-aid of execution." Although <ORG> at any rate rejects the extension of the conclusion to the words ' in accordance with law', the reasoning appears to me to go quite that length, because what is asked to be done is not expressly authorized by any section of the Civil Procedure Code and is not therefore "execution " or by a slight extension of the same reasoning, a step-in-aid of execution. Such is the simple reasoning adopted by both <ORG>, and <ORG> in support of the conclusion, that such an application is not within the meaning of Art. 182 and does not save limitation. The conclusion itself appears slightly grotesque in view of changed conditions and the very plain policy of the <ORG>, as expressed in Notifications of the Government of India, embodying the results of its diplomatic dealings with the Native States. It may be very good law, but it is certainly not very good sense. Nevertheless if this is the only construction which can be put upon the Statute law, the answer is plain. It is for the <ORG>, not for the <ORG>, to correct the absurdity. The <ORG> are not to make the law; they are only to enforce it.

3. Since, however, in certain sots of facts, the conclusion is plainly repugnant to common sense, it may be worthwhile to ask whether some other and broader line of reasoning may not yield a more satisfactory result.

4. In the first place " execution" is a word of general meaning. It implies the activity of <ORG>s in assisting a decree-holder to realize the fruits of his decree Such activities are certainly controlled by law, and cannot be carried beyond the limits so prescribed. But if we aro to be so nicely literal, may we not take advantage of the rather curiously worded phrase ' step-in-aid of oxecution" ? An enormous amount of ingenuity and verbal exegesis has been expended upon the words in Art. 182 " to the proper <ORG> in accordance with law, to take a step-in-aid of execution". But first let us ask what is the clear object of the Article ? This, surely, to ensure that a decree-holder shall show suitable diligence in obtaining what has been decreed him, and so ending the matter. ' In accordance with law' would thus ordinarily mean, that a decree-holder must apply to the proper <ORG>, that is the <ORG>, having jurisdiction, observing the prescribed procedure, and asking that which it is within the legal competence of the <ORG> to grant as a step-in-aid of the oxecution of its own decree. Thus such an application must not ask for property which has not been decreed, or for its realization by means unknown to the law. But in this explication of these words we come face to face with the same difficulty which is more prominent perhaps, in applying the later words " a step-in-aid of execution". For if the mode of execution must be one authorized by the Code of Civil Procedure expressly, in order to make the application accord with the law, it is plain that an application to execute by transference to a Native State <ORG> would not be in accordance with law, and it would be needless to go further, and see whether it might be brought within the contemplation and implicit intention of the words "step-in-aid of execution". There we begin to revolve in a circle, for it is quite clear that if "execution "has the narrow meaning given it by the Punjab Chief <ORG> and the Madras High <ORG>, then no application can be in accordance with law which asks a <ORG> to execute a decree, or take some step-in-aid of executing a decree, however reasonable, in the wide sense legal, and manifestly effective, which is not literally authorized by a section in the Civil Procedure Code. But it is submitted, with great respect to the learned Judges responsible for these judgments, that while an application may be prima facie in all respects in accordance with law, as having complied with all required legal formalities, it need not cease to be so merely because it suggests that the <ORG> should take a step which will certainly in the result aid it to get its decree executed whore it could by no means execute it for itself, such step certainly not contravening any express provision of the Statute law, or conflicting with any principle of law, merely'because the <ORG> is not expressly empowered by statute to have recourse to that extraneous assistance. It is hero that some use might be made of the words " step-in-aid of". If it can be shown, as it very easily can, that, while, unfortunately perhaps, our <ORG>s are not expressly empowered to invoke the co-operation of Native State <ORG>s, in the execution of their decrees, they impliedly aro, then recourse to that mode of vicarious execution might very reasonably be held to be a "step-in-aid" of execution, oven if, on the extremely technical view which has found favour, this might not in verbal strictness be execution.

5. While Section 43, Civil Procedure Code, expressly provides for the execution of decrees of the <ORG>s of Native States by our <ORG>s, there is no corresponding provision empowering our <ORG>s to send their decrees as of right for execution to the <ORG>s of a Native State. I entirely neglect section 45 which really has no bearing upon the point under consideration. Now what is the reason for this ? A very plain reason indeed. If we were to examine the Civil Procedure Code of any Native State, with whom reciprocity in this respect had been established, we should be pretty sure to find a provision there of the same kind as Section 43 of our Code. We have no power to legislate for Native States, and feeling is so sensitive on these points, that it is easily intelligible that our <ORG> would have refrained from inserting any provision in our Statute, which might have had the appearance of asserting a right over the <ORG>s of a Native State. The interchangeable use of civil machinery between British and <ORG>, is a matter of comity. But once arranged and understood, surely where the conditions exist our <ORG>s aro intended to make use of it. Else what would be the sense of <ORG> negotiating with Native States, and issuing notifications on the subject ? It is conceded, for the argument before us, that some time prior to the application, a political agreement had been reached under which <ORG> were to execute our decrees, and we were to execute theirs. But if <ORG> could, intra vires, send any of its decrees for execution to <ORG> of the Sangli State this agreement would be entirely unilateral, and for any advantage the British <ORG>s were to have of it might as well not have been made. Are we seriously to suppose that <ORG> plays, and plays repeatedly, such a solemn farce as this ? It is perfectly well known that as soon as our <ORG>s are notified that they must execute the decrees of any given <ORG>, that <ORG> in turn has undertaken to execute the decrees of our <ORG>s-the reason is the same in both cases. Such arrangements imply, because else they would never be made, that in the judgment of <ORG> the <ORG> or <ORG>s of Native States, with which this degree of reciprocity is established, can be trusted to have attained a level of regularized civil administration, which entitles them to be admitted to the comity of our <ORG>s. In particular cases our <ORG>s may derive as much or even more actual advantage from the agreement, but it is certain that it never would be made, without assurance that the administration of civil justice in the Native <ORG>s concerned was sufficiently developed to make it interchangeable, in these matters of procedure, at any rate, with our own.

6. When, then, as the result of agreement between the British Government and the Government of any Native State, we find, as we do in this case, that our <ORG>s are informed that the <ORG>s of the Sangli State will execute their decrees, and our <ORG>s are directed to, execute the decrees of the <ORG>s of the Sangli State, can it be seriously contended that an application by a decree-holder, whose debtor has little or no property outside the jurisdiction of <ORG>, to one of our <ORG>s to send its decree to <ORG> for execution, is not in accordance with law ? And if in accordance with law, using the words here in a wide, natural sense, then again can it be seriously thought that such an application does not invite the <ORG> to which it is made to take a step-in-aid of execution ? For what will be the result ? It is certain, and no one disputes this, that if the application is acceded to, <ORG> will execute the decree if it can. If it does it will as surely notify the result to <ORG>, and pro tanto the latter will have been aided in execution so effectively that it will lie under no further need or duty to exert itself in the matter. In fact, then, it is too clear to admit of argument that the application, being acceded to, and acted upon, will have aided the execution of the decree. Absolutely no distinction further than verbal distinctions which are soon seen to be little better than verbal quibbles, can be drawn between the concrete results of an application to transfer a decree for execution to a <ORG> bound by treaty to execute, and a <ORG> of our own, provided for in Section 39. If the latter is a step-in-aid of execution, then so assuredly is the former, if we look at the sense and substance of the thing and not merely at the letter, and the niceties of a hypercritical verbal analysis.

7. It is true that British <ORG>, executing their own decrees in British territory, are restricted to the modes prescribed by the British Statute law. It is permissible to doubt whether this can be predicated with rigid literalism of certain extended and derivative modes of execution outside British territory. In this connection it is well to remember what is so often forgotten in this and many other wider and more important connexions, that the conditions under which all forms of administration, judicial as well as executive, are carried on in India are unique and cannot be paralleled in the history of any other country, or in the development of our own by way of what are now almost entirely the self-governing dominions. Dotted about, and enclosed in British India, will be found a great number of Native States, many of them very small. It is no uncommon thing to find a single village under a foreign ruler, entirely surrounded by British territory. The Native State of which the village forms a part, and from which it is thus isolated may lie at a considerable distance, if by the Native State here is meant its capital. All over large parts of our dominion we see foreign territory marching, and intricately interlacing with it. A man may be resident in our territory and possess property worth Rs. 100 there, while he possesses property worth a 1,000 rupees in the next village which is foreign territory and subject to the jurisdiction of foreign <ORG>. If he is sued in our <ORG> and a decree for, say Rs. 500, is made against him, it is plain that the amount cannot be realized by execution on his property within the British jurisdiction. The jurist might say that the proper course would be for the decree-holder to take his judgment to the foreign Court and make it the basis of a suit there. And that doubtless would be so between foreign powers, such, for example, as England and France, But to avoid so formal and tedious a procedure, in the special circumstances, understandings have been come to by which, for purposes of execution, our <ORG> accept and execute the decrees of the foreign <ORG>, at their very doors, and they in turn accept and execute ours. Such are the actual facts, Is there anything in them which makes the procedure, thus sanctioned and followed in hundreds of cases, "illegal" in the sense of being " not in accordance with law" ? When in this way hundreds of our decrees are in fact executed by foreign <ORG>, on transference, can it be said that transferring them for execution, under agreement, is not a step-in-aid of execution, or that there is anything more than a distinction without a difference in altering the terminology and saying that in all these cases our <ORG> do not transfer their decrees for execution but merely send all necessary papers for realization of the decreed property ? That is the real point.

8. Now this again must be borne in mind, that when our Statute empowers one of our own <ORG> to transfer its decree for execution to another of our own <ORG>, the latter is bound to accept and oxecute it precisely as the transferring Court would havo done had the property been within its control. The same duty is imposed, the same modes are prescribed, the execution must be subject to exactly the same restrictions. But how can any such terms be imposed upon a foreign Court ? Is not here a sufficient reason for the omission upon which the conclusion of <ORG> and <ORG> rests ? If it be once conceded that, owing to special local conditions, the common rules of international law are relaxed by diplomatic arrangement, in many parts of India, we come in sight at once of a satisfactory ground upon which to distinguish execution proceeding against property in, and property outside, the jurisdiction. By what are commonly called political, but are really rather in the nature of diplomatic arrangements, the latter property can be made available for the satisfaction of the decrees of our <ORG> diroctly and without the need of filing a, fresh suit in the foreign Court, by the simple expedient of sending <ORG> decree to the foreign Court for execution. It is true that our Statute can contain (logically) no provision for this mode of execution corresponding precisely with Section 39, for the reasons already given. But is that any reason for saying that this is not a mode of execution, essentially in accordance with law, and certainly most effective in the direction of working out vicariously the execution of the decree ?

9. Where, therefore, we find a well-recognized and authoritatively established system in actual operation, as we do, for levying execution under decrees of our own <ORG> upon property outside their jurisdiction through the agency of Foreign <ORG>, there should be no insuperable difficulty in giving, within these easily intelligible limits, a slightly extended meaning to "execution" and so bringing the law into conformity with sense and facts of every day experience. If the needs of precise verbal accuracy, the needs of legal technicality, over-riding all other needs, really are so imperative, let the " execution " mentioned in Art. 182 still be regarded as the execution of the <ORG> which passed the decree, but let it also be permitted to call in aid the machinery of a foreign <ORG> bound by reciprocal agreement with it, to aid it in completing that execution. It is true that, as soon as that aid has been invoked, our Statute cannot regulate the mode in which the foreign <ORG> will proceed to execute. That modo may differ in minor points from the mode prescribed by our Statute, but it may be confidently anticipated, in minor points only. Before reciprocal agreements of this kind are made, a substantial agreement in procedure will have been proved ; that is to say, no such agreements would be made by our Government with foreign <ORG> whoso methods of execution were purely arbitrary, barbarous and inhumane. Neither the Punjab Chief <ORG> nor the Madras High <ORG> appears to have questioned the propriety of our <ORG> sending their decrees, under such agreements, to Foreign <ORG>. They split however upon a verbal hair. Doing so is not taking a stop in execution but merely taking a stop to obtain realization of the decreed property.

10. If that is the only theoretical distinction, while in fact we know that hundreds of our <ORG>' decrees have been for years executed in this manner we should much prefer to look to and give effect to the spirit, and discard the letter, even if it be necessary to discard the letter. Such extension however as we would here give to the definition agreed upon by <ORG>, and <ORG>, does not, in our opinion, necessarily violate the letter of Art. 182 provided that it is confined to proper cases, cases, that is to say, of foreign <ORG> into reciprocal engagements with which for the execution of decrees our <ORG> have through the diplomatic intervention of our <ORG> and of course with its sanction, formally entered. The case before us is the case of a foreign <ORG> which has agreed to execute our decrees, in consideration of our <ORG> executing its decrees. And our <ORG> have been informed of that agreement. In every case of that kind we see no reason to hold that an application, well founded, to our <ORG> to transmit its decree for execution to a foreign <ORG>, is not within the letter as it most surely is within the sense and spirit of Art. 182.

Heaton, J.

11. We are dealing with an application to execute a decree. Whether or not it must be dismissed as time-barred depends upon the effect of an application to the decretal <ORG> to send the decree for execution to a <ORG> in a Native State other than a <ORG> of the kind described in Section 45 of the Civil Procedure Code. This is the whole point in the case. The lower <ORG> decided that such an application did not make a fresh starting point of the kind enumerated in Art. 182 to the schedule to the Limitation Act and dismissed the application as time-barred. In so doing he followed the decision in <CITATION> (1881) P.R. No. 107 of 1881. The point has very recently been discussed by a Full Bench of the Madras High <ORG> in the case of <NAME> v. <NAME> (1917) I.L.R. 40 Mad. 1069, F.B. The arguments are fully stated in the judgments in that case. But as we find ourselves unable to agree in the final conclusion arrived at by the Judges of the Madras High <ORG> I set out briefly the reasons which appeal to my mind. I fully agree that an application, such as we are dealing with, is not an application for execution; for it cannot be brought under Rule 11 of Order XXI of the Code; and that it is not within the meaning of the words "applying...for execution" used in Art. 182 of the Indian Limitation Act . But is it nob an application in accordance with law to the proper <ORG> to take some step-in-aid of execution ? It is conceded in the Madras case, in my opinion quite rightly, that the application is in accordance with law and to the right <ORG>, and all that remains to be considered is whether it is an application to "take a step-in-aid of execution." I understand the Madras Judges to hold that by "execution" here is meant such execution as is provided for by the Civil Procedure Code and for the sake of argument I will concede this, though not convinced, that it really is so. But conceding it for the sake of argument there still remains to be considered the effect of the words "to take some step-in-aid of execution.

12. I will test the matter in this way : suppose that as the result of an application to send a decree for execution to <ORG> satisfaction in whole or in part of the decree is obtained, as does in actual practice frequently happen. I feel quite confident that such satisfaction would be recognized by the <ORG> which made the decree. That <ORG> would not permit its own processes to be used to recover over again from the judgment-debtor what had already been recovered from him in the Native State. So satisfaction of the decree would in such a case have been actually aided. What aids the satisfaction of a decree in such a manner aids its execution even though the latter word be used in its strictly technical sense. For however you use the word, even in its most technical sense, execution by the decretal <ORG> is aided, by the doing vicariously of what is that <ORG>'s business.

13. It is the business of the decretal <ORG> to execute its own decrees and the <ORG> is given very comprehensive powers to effect its purpose. It is true that the <ORG> does not go about executing decrees of its own initiative, it waits to be set in motion by the decree-holder; nevertheless the business of execution is the <ORG>'s business so that anything which assists realization of the decree is an aid to the <ORG> and moreover an aid in execution for something is done for the <ORG> which otherwise it might be called on to do for itself '' in execution".

14. It follows that an application to send the decree to another Court is an application to take a step-in-aid of execution. This conclusion, it seems to me, is in accordance with the spirit as well as the letter of the law, for the law intends that reasonable diligence on the part of a decree-holder in getting in the fruits of his decree should be rewarded, not penalized.

15. Therefore, in my opinion, this appeal should be allowed with costs and the lower Court should be directed to proceed with the Darkhast according; to law.


PETITIONER: <NAME>, MEMBER, BOARD OF REVENUE, U.P., <NAME> Vs. RESPONDENT: VINAY CHANDRA MISRA DATE OF JUDGMENT12/12/1980 BENCH: SARKARIA, <NAME> BENCH: SARKARIA, <NAME> REDDY, O. CHINNAPPA (J) CITATION: 1981 AIR 723 1981 SCR (2) 331 1981 SCC (1) 436 CITATOR INFO : R 1988 SC1208 (41) RF 1991 SC2176 (27) ACT: Contempt of <ORG>s Act 1971, S. 15(2) -Scope of Contempt of Subordinate or inferior <ORG>-Whether <ORG> can take suo motu cognizance of and punish. HEADNOTE: The Contempt of <ORG>s Act , 1971 by section 15(2) empowers the <ORG> in the case of any criminal contempt of a subordinate court, to take cognizance on a reference made to it by the subordinate court, or on a motion made by the Advocate-General, or in relation to a Union Territory by the notified Law Officer. In a proceeding under the U.P. Zamindari and Land Reforms Act 1950, the respondent-advocate, appeared as a counsel before the appellant who was a Member of <ORG> to oppose the vacation of a stay order filed before the <ORG>. The respondent, in his petition to the <ORG> under the Contempt of <ORG>s, 1971 alleged that in the course of arguments before the appellant in the aforesaid proceeding, the appellant got infuriated, lost his temper and abused him saying "Nalayak Gadhe Salle ko Jail Bhijwadunga; kis Idiot Ne Advocate Bana Diya Hai", and that thereby the appellant had committed contempt of his own <ORG> as well as that of the <ORG> as provided in sections 15 and 16 of the Contempt of <ORG>s Act which was punishable under section 12 of the said Act. Before the <ORG>, the appellant raised a preliminary objection stating that the <ORG> was not competent to take cognizance of the alleged contempt without any reference from the subordinate <ORG> or without a motion by the Advocate-General as envisaged by section 15(2) of the Act. The <ORG> rejected the preliminary objection and held that the application was maintainable. In the appeal to this <ORG>, on the question whether the <ORG> can take suo motu cognizance of contempt of subordinate/inferior <ORG> when it is not moved in either of the two modes mentioned in section 15(2) of the Act. ^ HELD : 1. Sub-section (2) of section 15 of the Contempt of <ORG>s Act 1971, does not restrict the power of the <ORG> to take cognizance of and punish contempt of a subordinate <ORG>, on its own motion [339 A] 2. In the facts of the instant case the <ORG> has not acted improperly or illegally in taking suo motu cognizance, on the petition of the respondent-advocate. [340 C] 332 3. Articles 129 and 215 preserve all the powers of the Supreme <ORG> and the <ORG>, respectively, as a <ORG> of Record which include the power to punish the contempt of itself. <ORG> has, by virtue of Entry 77 of List I of the Seventh Schedule, and Entry 14 of List III of the Seventh Schedule, power to define and limit the power of the <ORG>s in punishing contempt of <ORG> and to regulate their procedure in relation thereto. [337 <CITATION> ., A.I.R. 1964 S.C. 1625 referred to. 4. Section 15 does not specify the basis or the sources of the information on which the <ORG> can act on its own motion. If the <ORG> acts on information derived from its own sources, such as on a perusal of the records of a subordinate court or on reading a report in a newspaper or hearing a public speech, without there being any reference from the subordinate court or the Advocate-General, it can be said to have taken cognizance on its own motion. But if the <ORG> is directly moved by a petition by a private person feeling aggrieved, not being the Advocate-General, the <ORG>, has, a discretion to refuse to entertain the petition, or to take cognizance on its own motion on the basis of the information supplied to it in that petition. If the petitioner is a responsible member of the legal profession, it may act suo motu. [339B-E] 5. If the <ORG> is prima facie satisfied that the information received by it regarding the commission of contempt of a subordinate court is not frivolous, and the contempt alleged is not merely technical or trivial, it may, in its discretion, act suo motu and commence the proceedings against the contemner. However, this mode of taking suo motu cognizance of contempt of a subordinate court should be resorted to sparingly where the contempt concerned is of a grave and serious nature. [339 P-G] 6. If the intention of the <ORG> was to take away the power of the <ORG> to take suo motu cognizance of contempt, there was no difficulty in saying so in unequivocal language, or in wording sub-section (2) of section 15 in a negative form. [338 H; 339 A] 7. The whole object of prescribing procedural modes of taking cognizance in section 15 is to safeguard the valuable time of the <ORG> or of the Supreme <ORG> from being wasted by frivolous complaints of contempt of court. [339 E] JUDGMENT:

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 294 of 1974.

From the Judgment and Order dated 10.4.1978 of <ORG> in Criminal Misc. Contempt Case No. 115/73.

<NAME> for the Appellant.

<NAME> and <NAME> for the Intervener. The Judgment of the Court was delivered by <NAME>, J. This appeal is directed against an order, dated April 10, 1974, of <ORG> at Allahabad in Criminal Misc. Contempt Case No. 115 of 1973. It raises a question of law as to the jurisdiction and powers of <ORG> to take action suo motu under Section 15 of the Contempt of Courts Act, 1971. The material facts giving rise to this appear are as follows:

<NAME> alias <NAME>, <NAME>, <NAME> alias <NAME> and <NAME>, respondents instituted Suit No. 89/ 168 under Section 209 of the U.P. Zamindari & Land Reforms Act (hereinafter referred to as the Act) for ejectment of eleven defendants.

Issue No. 6 framed in the case was referred under Section 331A of the Act to the Revenue Officer, <ORG>, for seeking declaration under Section 143 or 144 of that Act, with regard to the question as to whether the land in suit was abadi land before the consolidation and even thereafter. The Revenue Officer by his order, dated September 3, 1970, dismissed the suit. Aggrieved by the dismissal of their suit, the plaintiffs preferred an appeal before the Commissioner, <NAME>, who, by his order dated April 29, 1972, allowed the appeal and decreed the suit with costs.

Against the decree of the Commissioner, the defendants preferred Revenue Second Appeal No. 226(2) of 1971-72 before <ORG>. Along with the petition of appeal, they made an application for stay of the execution of the ejectment decree. <ORG> passed an order on June 12, 1972, staying the execution of the decree. The opposite party therein, moved an application for vacation of the ex-parte stay order. The application for vacation of stay order came up for hearing before the appellant, herein, in his capacity as Member of <ORG>, on October 23, 1973. The respondent, <NAME> appeared as a counsel in that Court on behalf of the appellant therein, to oppose the vacation of the stay order. What happened thereafter on that day, according to the allegations in the petition and affidavit, dated October 23, 1973, of <NAME>, Advocate filed before <ORG>, was as follows:

"That on the said date the opposite party (appellant herein) heard the counsel of the parties in the case and was pleased to confirm the stay order.

6. That even after passing of the order aforesaid the counsel of (the respondent in that appeal) addressed the <ORG> (opposite party) further and during the course of his arguments, the opposite party (appellant herein) scored the order and vacated the stay order and threw the file for getting the signatures of the parties affixed on the same.

7. That on this, the deponent (<NAME>) requested the opposite party to hear him and when he resisted, the opposite party got infuriated, lost his temper and abused the applicant and ordered the <ORG> peon to throw the deponent physically out of the <ORG>....."

On the preceding facts, <NAME>, on October 23, 1973, filed a petition under the Contempt of <ORG>s Act , 1971, against the appellant, herein, in <ORG> at Allahabad, alleging that since the facts stated in the petition and the affidavit, supporting it, show that the "opposite party (appellant herein) committed the contempt of his own <ORG> as that of the High <ORG> as provided under Section 15 / 16 of the Contempt of <ORG>s Act punishable under Section 12 of the said Act, he deserves to be punished for the same in order to save the dignity, decorum and honour of his <ORG> and that of the Hon'ble High <ORG>". Shri <NAME> further prayed that the High <ORG> "be pleased to take suo motu action under Section 15(1) of the aforesaid Act against the contemner-opposite party or be pleased to pass such other and further order as the <ORG> deems fit."

In Annexure `1' to his petition, <NAME> gave particulars of the alleged criminal conduct of the appellant and of the contemptuous words uttered by him. In that Annexure, he alleged, inter alia, that the appellant had used these abusive words in respect of him (<NAME>) "Nalayak Gadhe Sale ko Jail Bhijwadunga; Kis Idiot Ne Advocate Bana Diya Hai".

On receiving this petition, <ORG> straight- away issued notice to the appellant, herein, to show cause why he be not proceeded against for committing contempt of Court. The appellant received this notice on November 5, 1973 and filed his reply supported by an affidavit dated November 8, 1973, in which he denied the allegations in the petition levelled by <NAME>. The latter also filed a rejoinder affidavit dated December 10, 1973, in which he reiterated the allegations in his petition and in the Annexures thereto.

A preliminary objection was taken by the appellant before <ORG>, that the latter was not competent to take cognizance of the contempt alleged to have been committed in the petition moved by Shri <NAME> without any reference from the subordinate court or without a motion by the Advocate-General. Reliance in this connection was placed on sub-section (2) of Section 15 of the Act. <ORG> rejected this preliminary objection with these observations:

"Since Article 215 (of the Constitution) states that every High Court shall be <ORG> and shall have all the powers of such a Court, it follows that through that Article the Constitution preserved to <ORG> its power as <ORG> to punish contempt of subordinate Courts. No doubt a special reference is made in Article 215 to the power of <ORG> to punish contempt of itself. That has only been done to emphasise that particular power of <ORG>. The aforesaid words do not exclude what the preceding part of Article 215 preserves to or confers on <ORG>.....

The result of incorporating Article 215 in the Constitution is that the power of <ORG> as a Court of Record to punish contempt of the subordinate courts now carries a constitutional sanction behind it and that the power cannot be done away with except through an amendment of the Constitution. . . Section 2 of the 1926 Act and Section 3 of the 1952 Act do not confer any new power but recognise the power that <ORG> already possesses as a Court of Record; it can be said that equal force about Section 10 of the 1971 Act that it does not confer any new jurisdiction in <ORG> but only recognised the jurisdiction which was initially inherent in <ORG> as a Court of Record and which now has the sanction of the Constitution behind it by virtue of Article 215.

If Section 15 , sub-section (2) is interpreted to mean that <ORG> cannot take cognizance of the contempt committed of a subordinate court, whether committed by the court itself or by a stranger, except in one of the modes specified therein it can lead to anomalous results....

". . . Interpreting sub-section (2) of Section 15 in that manner would be inconsistent with Section 10 of the Act and shall be violative of the powers of this <ORG> as a <ORG> of Record, which powers now carry Constitutional sanction by virtue of Article 215 of the Constitution.

. . Section 10 of 1971 Act explicitly states that every High Court shall have and exercise the same jurisdiction, power and authority in accordance with the same procedure and practice in respect of the contempt of Courts subordinate to it as it has and exercises in respect of contempt of itself,....."

Aggrieved by the order of <ORG> rejecting the preliminary objection, the appellant has now come in appeal before us.

At the outset, a preliminary objection has been taken by <NAME>, learned counsel for the respondent, that under Section 19 (1) of the Act, only a final order whereby the contemner is punished is appealable; that since the impugned order is not such an order, this appeal is incompetent. In this connection <NAME> has referred to several decisions, including that in <CITATION> 'ble Mr. Justice <NAME>, whereby it has been held that it could not be the intention of the legislature to provide for an appeal to this Court as a matter of right from each and every interlocutory order passed in the proceedings initiated under Section 17 of the Act, by <ORG>. An order or decision in order to be appealable under Section 19(1) of the Act, must be such that it decides some bone of contention raised before <ORG> affecting the right of the party aggrieved. Reference has also been made to the decision of this Court in <CITATION> .

This objection of <NAME> has been rendered merely academic, because as a matter of abundant caution, the appellant herein has filed a petition for grant of special leave under Article 136 of the Constitution, also. The matter being important, the leave to appeal has been granted to him.

The controversy in this appeal centres round the question, whether <ORG> can take suo motu cognizance of contempt of a subordinate/inferior court when it is not moved in either of the two modes mentioned in Section 15(2) of the Act.

Before dealing with this contention, it is necessary to have a look at the relevant provisions of the Constitution and the Act.

Article 215 of the Constitution provides : "<ORG> shall be a court of record and shall have all the powers of such a court including the power to punish for contempt of itself."

Entry 14 of List III of the Seventh Schedule is to this effect : "Contempt of <ORG>, but not including contempt of the Supreme <ORG>." A provision analogous to Article 215 is Article 129 which preserves to the Supreme <ORG> all the powers of a <ORG> of Record including the power to punish for contempt of itself. Entry 77 of List I of the Seventh Schedule is relatable to Article 129.

Articles 129 and 215 preserve all the powers of <ORG> and <ORG>, respectively, as a Court of Record which include the power to punish the contempt of itself. As pointed out by this Court in <CITATION> ., there are no curbs on the power of <ORG> to punish for contempt of itself except those contained in the Contempt of Courts Act . Articles 129 and 215 do not define as to what constitutes contempt of court. <ORG> has, by virtue of the aforesaid Entries in List I and List III of the Seventh Schedule, power to define and limit the powers of the courts in punishing contempt of court and to regulate their procedure in relating thereto. Indeed, this is what is stated in the Preamble of the Act of 1971.

Section 2(c) of the Act defines `criminal contempt". Section 9 emphasises that "nothing contained in this Act shall be construed as implying that any disobedience, breach, publication or other act is punishable as contempt of court which would not be so punishable apart from this Act". Section 10 runs as under :

"<ORG> shall have and exercise the same jurisdiction, powers and authority, in accordance with the same procedure and practice, in respect of contempts of courts subordinate to it as it has and exercises in respect of contempts of itself."

Then, there is a proviso which is not material for our purpose. The provision in Section 10 is but a replica of Section 3 of the 1952 Act. The phrase "courts subordinate to it" used in Section 10 is wide enough to include all courts which are judicially subordinate to <ORG>, even though administrative control over them under Article 235 of the Constitution does not vest in <ORG>. Under Article 227 of the Constitution <ORG> has the power of superintendence over all courts and tribunals throughout the territories in relation to which it exercises jurisdiction. <ORG>, therefore, in the instant case, is a court "subordinate to <ORG>" within the contemplation of Section 10 of the Act.

Section 14 provides for the procedure where contempt is committed in the face of <ORG> or <ORG>. Section 15 is very material for our purpose. It provides in regard to cognizance of `criminal contempt' in cases other than those falling under Section 14 . The material portion of Section 15 reads thus :

"(1) In the case of a criminal contempt, other than a contempt referred to in Section 14 , <ORG> or <ORG> may take action on its own motion or on a motion made by-

(a) the Advocate-General, or

(b) any other person, with the consent in writing of the Advocate-General.

(2) In the case of any criminal contempt of a subordinate court, <ORG> may take action on a reference made to it by the subordinate court or on a motion made by the Advocate-General or, in relation to a Union Territory, by such Law Officer as the Central Government may, by notification in the Official Gazette, specify in this behalf............."

The operation of sub-section (1) appears to be confined to cases of `criminal contempt' of <ORG> or <ORG>, itself. Criminal contempt of a subordinate court is dealt with in sub-section (2).

A comparison between the two sub-sections would show that whereas in sub-section (1) one of the three alternative modes for taking cognizance, mentioned is "on its own motion", no such mode is expressly provided in sub-section (2). The only two modes of taking cognizance by <ORG> mentioned in sub-section (2) are : (i) on a reference made to it by a subordinate court; or (ii) on a motion made by the Advocate-General, or in relation to a Union Territory by the notified Law Officer. Does the omission in Section 15(2) of the mode of taking suo motu cognizance indicate a legislative intention to debar <ORG> from taking cognizance in that mode of any criminal contempt of a subordinate court? If this question is answered in the affirmative, then, such a construction of sub-section (2) will be inconsistent with Section 10 which makes the powers of <ORG> to punish for contempt of a subordinate court, co-extensive and congruent with its power to punish for its own contempt, not only in regard to quantum or pre- requisites for punishment, but also in the matter of procedure and practice. Such a construction which will bring Section 15(2) in conflict with Section 10 , has to be avoided, and the other interpretation which will be in harmony with Section 10 is to be accepted. Harmoniously construed, subsection (2) of Section 15 does not deprive <ORG> of the power of taking cognizance of criminal contempt of a subordinate court, on its own motion, also. If the intention of the <ORG> was to take away the power of <ORG> to take suo motu cognizance of such contempt, there was no difficulty in saying so in unequivocal language, or by wording the sub-section in a negative form. We have, therefore, no hesitation in holding in agreement with <ORG>, that sub-section (2) of Section 15 , properly construed, does not restrict the power of <ORG> to take cognizance of and punish contempt of a subordinate court, on its own motion.

It is, however, to be noted that Section 15 does not specify the basis or the source of information on which <ORG> can act on its own motion. If <ORG> acts on information derived from its own sources, such as from a perusal of the records of a subordinate court or on reading a report in a newspaper or hearing a public speech, without there being any reference from the subordinate court or the Advocate-General, it can be said to have taken cognizance on its own motion. But if <ORG> is directly moved by a petition by a private person feeling aggrieved, not being the Advocate-General, can <ORG> refuse to entertain the same on the ground that it has been made without the consent in writing of the Advocate-General? It appears to us that <ORG>, has, in such a situation, a discretion to refuse to entertain the petition, or to take cognizance on its own motion on the basis of the information supplied to it in that petition. If the petitioner is a responsible member of the legal profession, it may act suo motu, more so, if the petitioner-advocate, as in the instant case, prays that the court should act suo motu. The whole object of prescribing these procedural modes of taking cognizance in Section 15 it to safeguard the valuable time of <ORG> or <ORG> from being wasted by frivolous complaints of contempt of court. If <ORG> is prima facie satisfied that the information received by it regarding the commission of contempt of a subordinate court is not frivolous, and the contempt alleged is not merely technical or trivial, it may, in its discretion, act suo motu and commence the proceedings against the contemner. However, this mode of taking suo motu cognizance of contempt of a subordinate court, should be resorted to sparingly where the contempt concerned is of a grave and serious nature. Frequent use of this suo motu power on the information furnished by an incompetent petition, may render these procedural safeguards provided in sub-section (2), otiose. In such cases, <ORG> may be well advised to avail of the advice and assistance of the Advocate-General before initiating proceedings. The advice and opinion, in this connection, expressed by <ORG> is a pertinent reminder. "In the case of criminal contempt, not being contempt committed in the face of the court, we are of the opinion that it would lighten the burden of the court, without in any way inter-

fering with the sanctity of the administration of justice, if action is taken on a motion by some other agency. Such a course of action would give considerable assurance to the individual charged and the public at large. Indeed, <ORG> have already made rules for the association of the Advocate-General in some categories of cases at least.....the Advocate-General may, also, move the <ORG> not only on his own motion but also at the instance of the court concerned."

In the peculiar circumstances of the instant case, we do not think that <ORG> has acted improperly or illegally in taking suo motu cognizance, on the petition of the respondent-advocate.

We, therefore, dismiss this appeal and send the case back to <ORG> for further proceedings in accordance with law.

As a matter of caution, we would add that nothing in this judgment shall be construed as an observation relating to the merits of the allegation levelled by <NAME> against the appellant.

N.V.K. Appeal dismissed.


JUDGMENT

1. The appellant claimed either that the attachment should be set aside in its entirety, as the decree was fraudu-lently obtained or in the alternative, that the sale under the attachment should be subject to the mortgage. In either case we think that the claim is covered by Order XXI Rule 58 of the Civil Procedure Code. Rule 62 provides for the recognition of the mortgage. Rule 61 provides for the rejection of the claim. We are unable to accept Mr. <NAME>'s contention that the Code does not contemplate the rejection of a claim of a mortgagee as such; the decision in <NAME> v. <NAME> (1897) I.L.R 22 B. 640 shows, that claims founded on mortgages are as much within the rule as any other claim. The learned Counsel for the appellant has quoted no cases to the contrary : the decision <NAME> v. <NAME> (1901) I.L.R. 29 C. 25 refers to the question of possession being disturbed after sale : that has no bearing on the present question. Moreover the language of Article 11 of the Limitation Act shows that orders refusing to recognise mortgages are within the article.

2. Mr. <NAME>'s contention that as there was no investigation, the one year rule does not apply comes too late in the day. The language of Article 11 in the new Act is more comprehen-sive than that of the previous Act and that has been construed in this Court as covering orders after full investigation as well as orders passed on default. We entirely agree with these decisions. <CITATION> (1897) I.L.R 22 B. 640 and <CITATION> (1915) 31 I.C. 205.

3. The second appeal must be dismissed with costs.


PETITIONER: <NAME> Vs. RESPONDENT: <NAME> DATE OF JUDGMENT04/12/1979 BENCH: <NAME>, O. CHINNAPPA (J) BENCH: <NAME>, O. CHINNAPPA (J) KRISHNAIYER, V.R. PATHAK, R.S. CITATION: 1980 AIR 587 1980 SCR (2) 334 1980 SCC (2) 151 CITATOR INFO : R 1981 SC1455 (20) R 1984 SC1392 (3,4,13,15,16) R 1985 SC 964 (11) R 1987 SC1010 (15) RF 1989 SC 162 (10) ACT: Madhya Pradesh: Accommodation Control Act, 1961 (41 of 1961), Ss. 12, 13(1) and 13(6)-Suit for eviction of tenant for failure to pay arrears rent-Monthly rent falling due after filing of suit-Default in payment of-<ORG> whether can extend time for payment and condone delay Protection against eviction-Whether tenant can claim. HEADNOTE: The respondent-landlord sought eviction of the appellant-tenant from the suit premises for failure to pay arrears of rent, despite service of notice of demand. The trial court found that the tenant was in arrears o. payment of rent, but the tenant having deposited the arrears of rent within the time allowed by the court on his application the tenant was entitled to avail the protection of section 12(3) of the Madhya Pradesh Accommodation Control Act. 1961. and dismissed the suit for eviction. The landlord preferred an appeal and while the same was pending? the tenant filed an application under section 13(1) of the Act for condonation of delay in depositing,, the rent, month by month. which had become payable after the filing of the suit. On several occasions, when the suit and the appeal were pending before the trial court and the appellate court respectively, the tenant had deposited the monthly rent a day or two or three beyond the prescribed date, and the same had been received by the court and drawn out by the landlord, without any protest. The landlord, taking advantage of the filing of the tenant s application for condonation of delay, contended that the court had no power to extend the time for deposit of the monthly rent and that he was entitled to a decree for eviction consequent on the non-compliance with the provisions of section 13(1) of the Act. The appellate court negatived this contention and dismissed the appeal. In the second appeal preferred by the landlord, <ORG> held that the <ORG> had no power to extend time and decreed the Suit for eviction. In the tenant's appeal to this <ORG> on the question whether the <ORG> ha(l. the power to condone the delay in depositing the monthly rent falling due after the filling of the suit for eviction. ^ HELD :1. The court had the jurisdiction to extend time for deposit or payment of monthly rent falling due after the filing of the suit. [338 G] 2. In order to entitle a tenant to claim the protection of section 12(3). the tenant had to make payment or deposit as required by section 13. The arrears of rent should be paid or deposited within one month of the service of the writ of summons on the tenant or within such further time as may he allowed by the court, and should further deposit or pay every month by the 15th. a sum equivalent to the rent. [338 A-B]. 335 3. Failure to pay or deposit a sum equivalent to the rent by the 15th of every month, subsequent to the filing of the suit for eviction will not entitle the landlord, straightaway, to a decree for eviction. The consequences of the deposit or payment and non-payment or non-deposit are prescribed by subsection and (6) of section 13. [338 B] 4. A discretion is vested in the court under section 13(6) to order the striking out of the, defence against eviction. [338 D] 5. If the court has the discretion not to strike out the defence or a tenant committing default in payment or deposit of rent as required by section 13(1), the court surely has the further discretion to condone the default and extend the time for payment or deposit. Such a discretion is a necessary implication of the discretion not to strike out the defence. Any other construction may lead, to a perversion of the object of the Act. namely, 'the adequate protection of the tenant.' [338 F-G] 6. Section 12(3) entitles a tenant to claim protection against eviction on the ground specified in section 12(1)(a) if he makes payment or deposit as required by section 13. As the court has under section 13, the power to extent: the time for payment or deposit, payment or deposit, within the extended time will entitle the tenant to claim the protection of section 12(3). [338 H] 1 7. Express provision for extension of time for deposit or payment or rent falling due after the filing of the suit was not made in section 13(1! as the consequence of non- payment was dealt with by a separate sub-section, section 13(6). The discretion given to the court under section 13(6) must imply a discretion to condone the delay and extend the time in making deposit or payment under section 13(1). [339A, <CITATION> (1967) Jabalpur L.J. 859 disapproved. <CITATION> , A.I.R. 1970 S.C. 981. referred to. JUDGMENT:

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 854, of 1977.

Appeal by Special Leave from the Judgment and order dated 2-8-1976 of <ORG> in S.A. No. 440/71.

<NAME> and <NAME> for the Appellant. <NAME> and <NAME> for the Respondent. The Judgment of the <ORG> was delivered by <NAME>, J.-The respondent-landlord sought eviction of the appellant-tenant from the suit premises an two grounds: (i) failure to pay arrears of rent of Rs. 158.25 despite service of notice of demand and (ii) bonafide requirement of premises for landlord's personal occupation. The second ground was rejected by all the sub- ordinate courts and we are no longer concerned with that ground. In regard to the first ground, <ORG> found that the tenant was in arrears of payment of rent but that the tenant was entitled to the Protection of s. 12(3) of the Madhya Pradesh Accommodation Control Act, 1961, as the tenant had deposited the arrears of rent within the time allowed by the <ORG> on his application. When the appeal preferred by the landlord was pending before the Additional District Judge, Satna, the tenant filed an application for condonation of delay R in depositing the rent, month by month, which had become payable after the filing of the suit, as stipulated by s. 13(1) of the Act. It appears that, on several occasions, when the suit and the appeal were pending before the trial court and the appellate court respectively, the tenant had deposited the monthly rent a day or two or three, beyond the prescribed date. The amount had been received by the court and drawn out by the landlord, apparently without any protest. Taking advantage of the filing of the tenant's application for condonation of delay, the landlord contended that the court had no power to extend the time for deposit of the monthly rent and that he was entitled to a decree for eviction consequent on the non-compliance with the provisions of s. 13 ( 1 ) of the Madhya Pradesh Accommodation Control Act. The appellate court negatived the landlord's contention and dismissed the appeal. The landlord preferred a Second Appeal to the High <ORG> of Madhya Pradesh. The High <ORG>, holding that the court had no power to extend time, decreed the suit for eviction. The tenant, having obtained special leave, has appealed to this <ORG>.

<NAME>, learned counsel for the appellant, raised two contentions before us. The first contention was that <ORG> was wrong in holding that the Court had no power to condone the delay in depositing the monthly rent falling due after the filing of the suit for eviction. The second contention was that, in the circumstances of the case. the respondent must be considered to have waived or abandoned the right to insist on dis-entitling the tenant of the protection to which he was otherwise entitled. <NAME>, learned counsel for the respondent, contended to the contrary on both the questions.

The Madhya Pradesh Accommodation Control Act, 1961, was enacted, as recited in the statement of objects and reasons, "for the purpose of controlling, letting of and rents of residential and nonresidential accommodation and giving adequate protection to tenants of such accommodation in areas where there is dearth of accommodation". Section 12(1) of the Act provides that no suit shall be-filed ill any civil court against a tenant for his eviction from any accommodation except on one or more of the grounds specified therein. Several grounds are specified, such as, failure to pay the arrears of rent after the service of notice of demand, unlawful sub-letting of the whole or part of the accommodation, creation of a nuisance, bonafide requirement of the accommodation by the landlord for his own occupation, causing of substantial damage to the accommodation etc. etc. The ground with which we are concerned is that mentioned in s. 12(1) (a) and-it is: "that the tenant has neither paid nor tendered the whole of the arrears of rent legally recoverable from him within two months of the date on which a notice of demand for the arrears of rent has been served on him by the landlord in the prescribed manner". Thus, where a tenant is in arrears of rent, a landlord is obliged, before instituting a suit for eviction on that ground, to serve a notice of demand calling upon the tenant to pay or tender the whole of the arrears of rent within two months of the date of service of the notice. S. 12(3) provides that an order for the eviction of a tenant shall not be made on the ground specified in s. 12(1) (a), if the tenant makes payment or deposit as required by s. 13. S. 13,sub-ss. (1), (5) and (6) which are relevant for the present purpose are as follows:

"13. (1) on a suit or proceeding being instituted by the landlord on any of the grounds referred to in s. 12, the tenant shall, within one month of the service of the writ of summons on him or within such further time as the <ORG> may, on an application made to it, allow in this behalf, deposit in the <ORG> or pay to the landlord an amount calculated at the rate of rent at which it was paid, for the period for which the tenant may have made default including the period subsequent thereto up to the end of the month previous to that in which the deposit or payment is made and shall thereafter continue to deposit or pay, month by month, by the 15th of each succeeding month a sum equivalent to the rent at that rate.

xx xx xx xx xx (5) If a tenant makes deposit or payment as required by sub-section (1) or sub-section (2), no decree or order shall be made by the <ORG> for the recovery of possession of the accommodation on the ground of default in the payment of rent by the tenant, but the <ORG> may allow such cost as it may deem fit to the landlord.

(6) If a tenant fails to deposit or pay any amount as required by this section, the Court may order the defence against eviction to be struck out and shall proceed with the hearing of the suit."

It is true that in order to entitle a tenant to claim the protection of s. 12(3), the tenant has to make a payment or deposit as required by s. 13, that is to say, the arrears of rent should be paid or deposited within one month of the service of the writ of summons on the tenant or within such further time as may be allowed by the court, and should further deposit or pay every month by the 15th, a sum equivalent to the rent. It does not, however, follow that failure to pay or deposit a sum equivalent to the rent by the 15th of every month, subsequent to the filing of the suit for eviction, will entitle the landlord, straight away, to a decree for eviction. The consequences of the deposit or payment and non-payment or non-deposit are prescribed by sub-ss. (5) and (6) of s. 13. Since there is a statutory provision expressly prescribing the consequence of non- deposit or non-payment of the rent, we must look to and be guided by that provision only to deter mine what shall follow. S. 13 (6) does not clothe the landlord with an automatic right to a decree for eviction; nor does it visit the tenant with the penalty of a decree for eviction being straightaway passed against him. S. 13(6) vests, in the court, the discretion to order the striking out of the defence against eviction. In other words, the <ORG>, having regard to all the circumstances of the case, may or may not strike out the defence. If s. 13 were to be construed as mandatory and not as vesting a discretion in the <ORG>, it might result in the situation that a tenant who has deposited the arrears of rent within the time stipulated by s. 13(1) but who fails to deposit thereafter the monthly rent on a single occasion for a cause beyond his control may have his defence struck out and be liable to summary eviction. We think that s. 13 quite clearly confers a discretion, on the court, to strike out or not to strike out the defence, if default is made in deposit or payment of rent as required by s. 13(1). If the court has the discretion not to strike out the defence of a tenant committing default in payment or deposit as required by s. 13(1), the court surely has the further discretion to condone the default and extend the time for payment or deposit. Such a discretion is a necessary implication of the discretion not to strike out the defence. Another construction may lead, in some cases, to a perversion of the object of the Act namely, 'the adequate protection of the tenant'. S. 12(3) entitles a tenant to claim protection against eviction on the ground specified in s. 12(1) (a) if the tenant makes payment or deposit as required by s. 13. On our construction of s. 13 that the <ORG> has the power to extend the time for payment or deposit, it must follow that payment or deposit within the extended time will entitle the tenant to claim the protection. of s. 12(3). One of the arguments advanced before us was that there was no express provision for extension of time for deposit or payment.

of monthly rent subsequent to the filing of the suit whereas there was such express provision for payment or deposit of arrears of rent that had accrued before the filing of the suit. Obviously, express provision for extension of time for deposit or payment of rent falling due after the filing of the suit was not made in s. 13(1) as the consequence of non- payment was proposed to be dealt with by a separate sub- section. namely s. 13(6). Express provision had to be made for extension of time for deposit or payment of rent that had accrued prior to the filing of the suit, since that would ordinarily be at a very early stage of the suit when a written statement might not be filed and there would. therefore, be no question of striking out the defence and, so, there would be no question of s. 13(6) covering the situation.

<CITATION> , a full bench of <ORG> held that s. 13((6) of the Madhya Pradesh Accommodation Control Act did not make it obligatory for the court to strike out the defence but vested in the court a discretion to strike out or not to strike out the defence. Having so held, the full bench stopped short of giving full effect to their conclusion by holding D. that the <ORG> could condone the default and refuse to strike out the defence but it could not give the benefit of s. 12(3) or 13(5) to the tenant. We do not see any justification for adopting this narrow construction of ss. 12 and 13. In our view the discretion given to the court under s. 13(6) must be held to imply a discretion to condone the delay and extend the time in making deposit or payment under s. 13(1). <CITATION> , a tenant had committed default both in payment of arrears as well as in payment of the monthly rent which became payable after the filing of the suit. This <ORG> took the view that on an application made by the tenant time for deposit or payment could be extended. Though the observations made by the <ORG> read as if they were made with reference to the default in payment. Of arrears, a reference to the facts of the case as set out in the very judgment shows that there was default both in payment of the arrears of rent that had accrued before the filing of the suit and in payment of the monthly rent that fall due after the filing of the suit.

We are accordingly of the opinion that the <ORG> has the jurisdiction to extend time for deposit or payment of monthly rent falling due after the filing of the suit. In that view it is not necessary to express our opinion on the question of waiver or abandonment. The appeal is allowed with costs and the suit for eviction is dismissed.

N.V.K. Appeal allowed.


PETITIONER: <ORG>. Vs. RESPONDENT: MUNICIPAL CORPORATION & ANR. DATE OF JUDGMENT07/04/1995 BENCH: J.S. VERMA & MRS. <NAME>, JJ. ACT: HEADNOTE: JUDGMENT:

ORDER

1. Heard the learned Additional Solicitor General.

2. The impugned judgment by a <ORG> of <ORG> overrules the decision of a Division Bench in <ORG> Indore and Others v. Smt. Ratnaprabha Dhanda, Indore and Another, 1989 MPLJ 20. The challenge in this special leave petition is to the correctness of the <ORG> decision. The question involved relates to the construction of Section 138(b) of the Madhya Pradesh Municipal Corporation Act, 1956 (for short the " M.P. Act ") which reads as under:-

"The annual value of any building shall notwithstanding anything contained in' any other law for the time being in force be deemed to be the gross annual rent at which such building, together with its appurtenances and any furniture that may be let for use or enjoyment therewith might reasonably at the time of assessment be expected to be let from year to year, less any allowance of ten percent for the cost of repairs and for all other expenses necessary to maintain the building in a state to command such gross annual rent."

(emphasis supplied)

3. In <ORG> the matter was not res integra being concluded by the authority of the direct decision by a 3- Judge Bench of this Court in <CITATION> , 1977 (1) SCR 1017, on the correct construction of Section 138(b) of the M.P. Act. No other direct decision of this Court is to the contrary. However, <ORG> of <ORG> in a later case between the very same parties took a different view on the construction of the same provision placing reliance on some other decisions of this Court wherein the question arose for decision in the context of a similar provision in some other statutes applicable in the other States wherein there was no non-obstante clause as in the M.P. Act . The Division Bench took the view that the de- cision of this Court in Ratna Prabha (supra) was not binding on it even though it related to construction of the same provision, namely, Section 138(b) of the M.P. Act since it was in conflict with later decisions of this Court by co- equal Benches wan <NAME> etc. etc. v. <ORG> & Another etc. etc., 1980 (2) SCR 607 and Dr. <NAME> and <ORG> etc. v. <ORG> Delhi and Ors., 1985 (2) SCR 439. Accordingly, it proceeded on the basis that the decision of this Court in Ratna Prabha (supra) is no longer good law binding on it. This situation gave rise to the need for <ORG> to consider the correctness of the view taken by <ORG>. <ORG> has overruled the decision of <ORG>. In our opinion, <ORG> was right in its view that the decision of this Court in Ratna Prabha (supra) binds <ORG>. There is no ground to entertain this special leave petition which challenges the decision of <ORG> of <ORG>.

4.The only, direct decision of this Court on the construction of Section 138(b) of the M.P. Act, with which we are concerned, is Ratna Prabha (supra). It referred to the earlier decision in <CITATION> , 1962 (3) SCR 49 and distinguished it on the ground that Section 127(a) of the Calcutta Municipal Corporation Act, 1923 on which the decision in Padma Debi (supra) was based, did not contain a non obstante clause like that in Section 138(b) of the M.P. Act. The other earlier decisions of this Court in which construction of similar provision in other statutes was involved were also referred and distinguished in Ratna Prabha (supra); and it was then held as under:-

"As has been stated, clause (b) of section 138 of the Act provides that the annual value of any building shall " notwithstanding anything contained in any other law for the time being in force" be deemed to be the gross annual rent for which the building might "reasonably at the time of the assessment be expected to be let from year to year". While therefore the requirement of the law is that the reasonable letting value should determine the annual value of the building, it has also been specifically provided that this would be so "notwithstanding anything contained in any other law for the time being in force". It appears to us that it would be a proper interpretation of the provisions of clause (b) of section 138 of the Act to hold that in a case where the standard rent of a building has been fixed under section 7 of the Madhya Pradesh Accommodation Control Act, and there is nothing to show that there has been fraud or collusion, that would be its reasonable letting value, but, where this is not so, and the building has never been let out and is being used in a manner where the question of fixing its standard rent does not arise, it would be permissible to fix its reasonable rent without regard to the provisions of the Madhya Pradesh Accommodation Control Act, 1961. This view will, in our opinion, give proper effect to the non-obstante clause in clause (b), with due regard to its other provision that the letting value should be reasonable ".

We have gone through the decision in <NAME> case (supra). There the premises were on rent and section 127(a) of Calcutta Municipal Corporation Act, 1923, did not contain a non-obstante clause. That the section provided, inter alia, was that the annual value shall be deemed to be the gross annual rent at which the land or building might at the time of assessment "reasonably be expected to let from year to year. " This Court examined the significance of the word "reasonable" and held that it would be incongruous to consider fixation of rent beyond the limits fixed by penal legislation as reasonable. That view was taken with reference to the provisions of the Rent Control Act which penalised the taking of a higher rent, and also made it irrecoverable. While, therefore, we are in agreement with the view taken in <NAME> case (supra) that it would not be reasonable to consider fixation of rent beyond the limits fixed by the Rent Control Act as reasonable, it would not be a proper interpretation of section 138(b) to hold that as no standard rent has been fixed so far in respect of die Viram Lodge, the Municipal Commissioner was justified in adopting another suitable criterion for determining the annual value of the building. There is in fact nothing in the Act to make it obligatory for the Commissioner to follow the provisions of the Madhya Pradesh Accommodation Control Act in spite of the non- obstante clause and to limit the annual value to any standard rent that the building might fetch under that Act.

xxx xxx xxx <ORG> did not properly appreciate the difference between the wording of section 127 of the Calcutta Municipal Corporation Act, 1923, and section 138(b) of the Act, and committed an error in thinking that this was virtually similar to <NAME> case. " (at pages 10 1 9-20 of <ORG>) (emphasis supplied)

5. In <NAME> (supra), an other 3-Judge <ORG> of this <ORG> while construing a similar provision in the Punjab Municipal Act, 1911 referred to the decision in RatnaPrabha (supra) and distinguished it on the ground that there was n non-obstante clause in the relevant provision of the Punjab Municipal Act and therefore, the decision in Ratna Prab (supra) had no application. No doubt, i doing so, a reservation was expressed about the view taken in Ratna Prabha (supra) on the basis of the existence of the non-obstante clause in Section 138(b) of the M.P. Act but that cannot have the effect of overruling the decision of this <ORG> in Ratna Prabha (supra) inasmuch as a later co-equal <ORG> could not overrule it and could only refer it for reconsideration to a larger <ORG>, which it did not do.

6. In Dr. <NAME> (supra), after pointing out that the relevant provisions in the Delhi Municipal Corporation Act, 1957 and the Punjab Municipal Act, 1911 were almost identical, the decision in <NAME> (supra) was followed by another 3-Judge Bench. No reference was made therein to the decision of this Court in <NAME> (supra).

7. Recently, another 3-Judge Bench of this Court in <CITATION> ., 1993 (2) SCR 803, dealt with the same question with reference to the provisions of the Gujarat Municipalities Act, 1963. It referred to the earlier decisions and indicated that the presence of the non-obstante clause "notwithstanding anything contained in any other law" in Section 138(b) of the M.P. Act distinguished the decision of this Court in <NAME> (supra); and since in the Gujarat act there was no such non-obstante clause that decision had no application to the Gujarat Act.

8. It is thus clear that the decision of this <ORG> in <NAME> (supra) on the construction of Section 138(b) of the M.P. Act has all along been understood and justified on the basis of the presence of the non-obstante clause in Section 138(b) of the M.P. Act and the later decisions have distinguished it on that ground. That is the basis on which the decision in Padma Debi (supra) was distinguished in <NAME> (supra) itself It is also obvious that <ORG> only in the later decisions could not overrule the decision of this <ORG> in <NAME>, 1977 (1) SCR 10 1 7 and, therefore, none of the later decisions could be so read to have that effect. <ORG> of <ORG> in 1989 MLJ 20 was clearly in error in taking the view that the decision of this <ORG> in <NAME> (supra) was not binding on it. In doing so, <ORG> of <ORG> did something which even a later co-equal Bench of this <ORG> did not and could not do. The view taken by <ORG> of <ORG> in 1989 MPLJ 20 pro- ceeds on a total misunderstanding of the law of precedents and Article 141 of the Constitution of India, to which it referred. But for the fact that the view of <ORG> of the High court proceeds on a misapprehensions of the law of precedents and Article 141 of the Constitution, it would be exposed to the criticism of an aberration in judicial discipline. The decision of <ORG> of <ORG> was, therefore, rightly overruled by the Full Bench in the impugned judgment.

9. The other submission of the learned Additional Solicitor General is a plea for reconsideration of the decision of this Court in Ratna Prabha, 1977 (1) SCR 1017, which can arise only in this Court and was not available in <ORG>. The decision in Ratna Prabha (supra), the only direct decision of this Court on the construction of Section 138(b) of the M.P. Act has held the field for a long time and has formed the basis of assessment of the annual value in the State of Madhya Pradesh since then. That decision is based on the presence of the non-obstante clause in the M.P. Act and distinguishes the earlier larger Bench decision in Padma Debi (supra) on that ground. There can be no doubt that the view taken by this Court in Ratna Prabha (supra) is a reasonably permissible construction of Section 138(b) of the M.P. Act. In the later decisions of this Court, Ratna Prabha (supra) was invariably distinguished and not referred for reconsideration by a larger Bench. There is thus no ground now for reconsideration of the decision in Ratna Prabha (supra).

10. <CITATION> - tax, Bombay North, 1965 (2) SCR 908, the correct approach in this behalf was indicated as under:-

"........ In exercising this inherent power, however, this <ORG> would naturally like to impose certain reasonable limitations and would be reluctant to entertain pleas for the reconsideration and revision of its earlier decisions, unless it is satisfied that there are compelling and substantial reasons to do so When it is urged that the view already taken by this <ORG> should be reviewed and revised it may not necessarily be an adequate reason for such review and revision to hold that though the earlier view is a reasonably possible view, the alternative view which is pressed on the subsequent occasion is more reasonable. In reviewing and revising its earlier decision, this <ORG> should ask itself whether in the interests of the public good or for any other valid and compulsive reasons, it is necessary that the earlier decision should be revised.......".

(at page 921 of SCR) (emphasis supplied)

11.In our opinion, the test indicated in Keshav Mills (supra) for reconsideration of a decision of this Court is not satisfied in the present case and, therefore, we are unable to entertain the plea for reconsideration of the decision in Rama Prabha.

12.The special leave petition is, therefore, dismissed for the above reasons.


PETITIONER: <NAME> Vs. RESPONDENT: <NAME> AND OTHERS. DATE OF JUDGMENT: 25/04/1954 BENCH: <NAME>, <NAME> BENCH: <NAME>, <NAME> MAHAJAN, <NAME>, B.K. BOSE, VIVIAN BHAGWATI, <NAME> CITATION: 1954 AIR 411 1955 SCR 140 CITATOR INFO : F 1955 SC 610 (4) R 1957 SC 397 (30) R 1959 SC 459 (50) F 1968 SC 22 (4) RF 1986 SC 441 (4) ACT: Constitution of India- Article 136- Supreme Court-If and when can interfere with findings of facts in appeal- Representation of the People Act (XLIII of 1951), ss. 85 , 90(4) -Requisites and finality of condonation of delay under s. 85 and powers conferred thereunder-Scope and extent of powers given to <ORG> under s. 90(4) . HEADNOTE: Held, that <ORG> does not, when hearing appeals under Article 136 of the Constitution, sit as a Court of further appeal on facts, and does not interfere with findings given on a consideration of evidence, unless they are perverse or based on no evidence and this is particularly so when the findings under challenge are those of Election <ORG>s. The rights under litigation in election proceedings are not common law rights but rights which owe their existence to statutes and the extent of those rights must be determined by reference to the statutes which create them. The proviso to section 85 of the Representation of the People Act, 1951, does not contemplate <ORG> giving to the respondent notice of the petition for condonation of the delay, or the holding of an enquiry as to the sufficiency of the grounds in his presence before passing an order under it. The policy underlying the provision is to treat the question of delay as one between <ORG> and the petitioner, and to make the decision of <ORG> on the question final and not open to question at any later stage of the proceedings. Under section 90(4) of the Act, when the petition does not comply with the requirements of section 81 , section 83 or section 117 , <ORG> has a discretion either to dismiss it or not, "notwithstanding anything contained in section 85 ". The scope of the power conferred on <ORG> under section 90(4) is that it overrides the power conferred on <ORG> under section 86 to dismiss the petition. It does not extend further and include a power in <ORG> to review any order passed by <ORG> under section 85 of the Act. The words of section 90(4) are, "notwithstanding anything contained in section 85 " and not "notwithstanding anything contained in section 85 or any order passed thereunder". An order of <ORG> under section 85 dismissing a petition as barred will, under the scheme of the Act, be final, and the same result must follow under section 90(4) when the order is one excusing the delay. Section 90(4) will be attracted only when <ORG> passes the petition on to the <ORG> 141 without passing any order under section 85 . If <ORG> can thus pass a final order condoning delay without notice to the respondent, there is no reason why it should not pass such an order suo motu. In this respect, the position under the proviso to section 85 is materially different from that under section 5 of the Limitation Act, under which an order excusing delay is not final and is liable to be questioned by the respondent at a later stage. The proviso advisedly confers on <ORG> wide discretion in the matter, and the obvious intention of the <ORG> was that is should be exercised with a view to do justice to all the parties. <ORG> might therefore be trusted to pass the appropriate order when there is avoidable and unreasonable delay. That a power might be liable to be abused is no ground for denying it, when the statute confers it, and where there is an abuse of power by statutory bodies the parties aggrieved are not without remedies under the law. While the proviso to section 85 requires that "the person making the petition" should satisfy <ORG> that there was sufficient cause for delay, it does not require that he should do so in person. <CITATION> ( S.C.R. 892); <NAME> v. <NAME> (45I.A. 25); <NAME> v. <NAME> (I.L 'R. 13 Mad. 269) referred to. JUDGMENT:

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 25 of 1954.

Appeal by Special Leave granted by <ORG> by its Order dated the 11th December, 1953, from the Judgment and Order dated the 16th November, 1953, of <ORG>, Cuttack, in Election Case No. 4 of 1952. <NAME>, ( <NAME>, <NAME>, <NAME> and <NAME>, with him) for the appellant.

<NAME>, (<NAME> and <NAME>, with him) for respondent No. 1.

<NAME>, (<NAME> and <NAME>, with him) for respondent No. 2.

1954. April 25. The Judgment of the Court was delivered by <NAME> is an appeal by special leave against the order of <ORG>, Cuttack, setting aside the election of the appellant to <ORG>, Orissa, from the Kendrapara Constituency. Four persons, the appellant and respondents Nos. 1 to 3, were duly nominated for election to the seat. One of them, <NAME> (the third respondent herein), withdrew his candidature, leaving the contest to the other three. At the election which was held between 9th and 15th January, 1952, the appellant secured the largest number of votes and was declared elected. The respondent <NAME>, then presented a petition under section 81 of the Representation of the people (Act No. XLIII of 1951) alleging various corrupt practices on the part of the appellant, and praying that at the election might be set aside. The last date for presenting the petition was 4th April, 1952. It was delivered at the post office at Cuttack on 3rd April, 1952, for being sent by registered post, and actually reached <ORG> at Delhi on 5th April, 1952, a day beyond the period prescribed. It was also defective in its verification. Section 83(1) of the Act enacts that the petition should be verified in the manner laid down in the Civil Procedure Code for the verification of the pleadings. Order VI, rule 15, sub- clause (2), of the Civil Procedure Code provides that "the person verifying shall specify by reference to the numbered paragraphs of the pleading what he verifies on his own knowledge and what he verifies upon information received and believed to be true." The verification in the petition did not specify which of the paragraphs were verified on personal knowledge and which on information received and believed to be true. On 2nd July, 1952, <ORG> passed an order condoning the delay in the presentation of the petition. By another communication, dated 3rd July, 1952, it drew the attention of the peti- tioner to the defect in the verification, and suggested that he might apply to the <ORG> for amending it. On 15th July, 1952 an order was passed under section 86 of the Act appointing <ORG>, Cuttack, for the hearing of the petition. The petitioner then applied to <ORG> for amending the verification. That was ordered, and the verification was amended on 24th July, 1952, so as to conform to the prescriptions laid down in Order VI, rule 15(2), of the Civil Procedure Code.

In the written statement filed by the appellant, he raised the contention that as the petition was presented out of time and as the verification was defective, it was liable to be dismissed by <ORG> under section 85 of the Act, and that, in consequence, <ORG> ought to dismiss it as not maintainable. Disagreeing with this contention, <ORG> proceeded to hear the petition on the merits, and by its judgment dated 16th November, 1953, it held by a majority that three of the corrupt practices set out in the petition had been established against the appellant. They were (1) that the appellant had, in violation of section 123(1) of the Act, induced the third respondent to withdraw from the election on a promise to get him employment; (2) that he had, in breach of section 123(6) of the Act, used Bus No. O.R.C. 1545 for convoying the electors to polling booths; and (3) that he had, in contravention of section 123(8) of the Act, obtained the assistance of Extra Departmental Agents in branch post offices and of Presidents of <ORG> in canvassing for him in the election, they being in the view of <ORG>, Government servants as defined in that provision. On these findings, <ORG> passed an order setting aside the election of the appellant. The matter now comes before us on special leave under article 136 of the Constitution.

It is obvious that any one of these findings, if accepted, would be sufficient to support the order of <ORG>. With reference to the last of the findings, it is possible to urge with some force that Extra Departmental Agents and Presidents of <ORG> are not, having regard to their functions, Government servants, and that accordingly there was no contravention of section 123(8) . But the position is different as regards the other two findings. They are pure questions of fact, depending on appreciation of evidence. Mr. <NAME>, learned counsel for the appellant, argued that the conclusion of the majority were not justified by the evidence or record, and that the findings of the third member in his dissentient opinion were the right ones to come to But this <ORG> does not, when hearing appeals under article 136 , sit as a <ORG> of further appeal on facts, and does not interfere with findings given on a consideration of the evidence, unless they are perverse or based on no evidence. This is particularly so, when the findings under challenge are those of Election <ORG>. the findings in this case that the appellant got the third respondent to withdraw on a promise to get him employment, and had used Bus No. O.R.C. 1545 for conveying voters to the polling booths, are supported by the evidence, and cannot be characterised as perverse, and are therefore not open to attack in this appeal.

in this view, counsel for the appellant concentrated on the issues relating to the maintainability of the petition. He contended that as the petition was not presented within the time as required by section 81 of the Act, it was liable to be dismissed under the mandatory provision in section 85 , and that when the matter came before <ORG>, its jurisdiction was only to pass the order which <ORG> ought to have passed, and that the petition should accordingly have been dismissed in limine us not maintainable. The proviso to section 85 of the Act runs as follows:

"Provided that if a person making the petition satisfies <ORG> that sufficient cause existed for his failure to present the petition within the period prescribed therefor, <ORG> may in its discretion condone such failure."

It was in exercise of the discretion vested in it under this provision that <ORG> condoned the delay by its order dated 2nd July, 1952. It is not disputed that if this order is valid, there can be no question of dismissing the petition on the ground of delay. The contention of Mr. <NAME> is that the order is not valid, because it was passed not on any application of the party praying that the delay might be excused but suo motu; and such an application, it is contended, is a condition to the exercise of jurisdiction under that proviso, Support for this contention was sought in the decisions under section 5 of the Limitation Act, holding that it was incumbent, on the party praying that delay might be excused under that section to clearly allege and strictly prove the grounds therefor, We are not impressed by this contention. As was pointed, out by this Court in <CITATION> (1), the rights under litigation in these proceedings are not common law rights but rights which owe their existence to statutes, and the extent of those rights must be determined by reference to the statutes which create them. The proviso to section 85 does not contemplate <ORG> giving to the respondent notice of the petition for con- donation of the delay, or the holding of an enquiry as to the sufficiency of the grounds in his presence before passing an order under it. The policy underlying the provision is to treat the question of delay as 'one between <ORG> and the petitioner, and to make the decision of <ORG> on the question final and not open to question at any later stage of the proceedings. Under section 90(4) of the Act, when the petition does not comply with the requirements of section 81 , section 83 or section 117 , <ORG> has a discretion either to dismiss it or not, " notwithstanding anything contained in section 85 ." The scope of the power conferred on <ORG> under section 90(4) is that it overrides the power conferred on <ORG> under section 85 to dismiss the petition. It does not extend further and include a power in <ORG> to review any order passed by <ORG> under section 85 of the Act. The words of section 90(4) are, it should be marked, "notwithstanding anything contained is section 85 " and not "notwithstanding anything contained in section 85 or any order passed thereunder." An order of <ORG> under section 85 dismissing a petition as barred will-,, under the scheme of the Act, be final, and the same result must follow under section 90(4) when the order is one excusing the delay. Section 90(4) will be attracted only when <ORG> passes the petition (1) A.I.R. 1954 S.C. 210  on to the <ORG> without passing any order under section

85. If <ORG> can thus pass a final order condoning delay without notice to the respondent, there is no reason why it should not pass such an order suo motu. In this respect, the position under the proviso to section 85 is materially different from that under section 5 of the Limitation Act, under which an order excusing delay is not final, and is liable to be questioned by the respondent at a later stage. [ Vide the decision of <ORG> in <CITATION> (1)]. It was argued that in this view the respondent would be without remedy even if <ORG> should choose to condone delays-it might be of years-, and that that would result in great hardship. But the proviso advisedly confers on <ORG> wide discretion in the matter, and the obvious intention of the <ORG> was that it should be exercised with a view to do justice to all the parties. <ORG> might therefore be trusted to pass the appropriate order when there is avoidable and unreasonable delay. That a power might be liable to be abused is no ground for denying it, when the statute confers it, and where there is an abuse of power by statutory bodies, the parties aggrieved are not without ample remedies under the law. With particular reference to the order dated 2nd July, 1952, it is difficult to come to any conclusion other than that in passing that order the discretion under the proviso to section 85 has been properly exercised. The petition had been presented at the post office one day earlier, and reached <ORG> one day later than the due date. Even if the matter had to be judged under section 5 of the Limitation Act, it would have been a proper exercise of the power under that section to have excused the delay. As was observed in the <ORG> ,decision in <NAME> v. <NAME>), in a passage which has become classic, the words "Sufficient cause" should receive "a liberal construction so as to advance substantial justice when no negligence nor inaction nor want of bona fides is imputable to the appellant." We (1) 45 I.A. 25.

(2) I.L.R. 13 Mad. 269, have, therefore, no hesitation in holding that the order dated 2nd July, 1952, is on the facts a proper one to pass under the proviso to section 85 .

It wag also argued for the appellant that the power conferred by the proviso to section 85 could, on its true construction, be exercised only when the petitioner moved the matter in person, and as <ORG> had found that that was not done, there was no jurisdiction in <ORG> to pass the order which it did. We do not see anything in the language of the section to support this contention. While the proviso requires that "the person making the petition " should satisfy <ORG> that there was sufficient cause for delay, it does not require that he should do so in person. And there is. nothing in the character of the proceedings requiring that the petitioner should make the representations under that proviso in person. It is only a question of satisfying <ORG> that there was sufficient ground for excusing the delay, and that could be done otherwise than by the personal appearance of the petitioner. None of the objections advanced against the validity of the order dated 2nd July, 1952, being tenable, the contention that the petition was liable to be dismissed under section 85 as presented out of time must be rejected.

There is another ground on which also the contention of the appellant that the petition is not maintainable should fail. When the election petition came before <ORG> by virtue of the order under section 86 of the Act, the appellant moved for its dismissal under section 90(4) on the grounds, firstly that it was not presented within the time prescribed by section 81 , and secondly, that it was not verified in accordance with section 83 ; but <ORG> declined to do so. If it was within the competence of <ORG> to pass such an order, that would itself furnish a complete answer to the contention of the appellant that the petition was not maintainable. Mr. <NAME> sought to get over this difficulty by contending that the order of <ORG> sending the petition for hearing by <ORG> under section 86 of the Act, was without jurisdiction, because an order under that section could be passed only when the petition is not liable to be dismissed under section 85 as when the requirements of sections 81 , 83 or 117 are complied with ; but that when those provisions are not complied with, its only power under that Act was to dismiss it under section 85 ; that, in consequence, <ORG> acquired no jurisdiction to hear the petition by virtue of that order, and that all the proceedings taken under it culminating in the order now under appeal were a nullity. This contention is, in our judgment, wholly untenable. The jurisdiction to pass an order under section 86 arises "if the petition is not dismissed under section 85 ." That has reference to the factual position whether the the petition was, in fact, dismissed under section 85 and not to the legal position whether it was liable to be dismissed. That is the plain meaning of the words of the section, and that is made plainer by section 90(4) which provides that, Not withstanding anything contained in section 85 , the <ORG> may dismiss an election petition which does not comply with the provisions of section 81 , section 83 or section 117 ."

This provision clearly contemplates that petitions which are liable to be dismissed for non-compliance with sections 81 , 83 or 117 might not have been so dismissed, and provides that when such petitions come before <ORG>, it is a matter of discretion with it to dismiss them or not. The power of <ORG> to condone delay in presentation or defective verification is thus unaffected by the consideration whether that petition was liable to be dismissed by <ORG> under section 85 . The effect of an order under section 90(4) declining to dismiss the petition on the ground of delay or defective verification is clearly to condone those defects. In the instant case, with reference to the, plea of limi- tation the position stands thus: The delay was condoned by <ORG> under the proviso to section 85 , and by reason of, that order, the question is,as already held no longer open to consideration at any later stage. Even assuming for the sake of argument that <ORG> had no jurisdiction to pass an order of condonation suo motu, and further accepting the finding of <ORG> that the order dated 2nd July, 1952, was so made, and that it was therefore a nullity, when the matter came before <ORG> by transfer under section 86 , it had jurisdiction to pass appropriate orders under section 90(4) , and its order declining to dismiss the petition is sufficient to condone the defect. The position as regards verification is slightly different. There is no provision corresponding to the proviso to section 85 conferring express power on <ORG> to permit amendment of the verification. Whether it has inherent power to permit such amendment, it is not necessary to decide, because when it did not, in fact, dismiss the petition under section 85 for not complying with section 83 and passed an order under section 86 appointing <ORG> for the hearing of the petition, the matter is thereafter governed by section 90(4) of the Act, and it is a matter of discretion with <ORG> either to dismiss the petition for defective verification or not. In the present case, <ORG> directed the verification to be amended on 24 July, 1952, and further declined to dismiss the petition under section 90(4) for defective verification. These are not orders with which this <ORG> will interfere in appeal under article 136 of the Constitution.

The objection to the maintainability of the petition on the ground of delay in presentation and of defective verification must therefore be overruled, and this appeal dismissed with costs.

Appeal dismissed.