PETITIONER: <NAME> Vs. RESPONDENT: SMT. INDIRA NEHRU GANDHI AND ANR. DATE OF JUDGMENT15/03/1972 BENCH: <NAME>, K.S. BENCH: <NAME>, K.S. REDDY, P. JAGANMOHAN MATHEW, KUTTYIL KURIEN CITATION: 1972 AIR 1302 1972 SCR (3) 841 1972 SCC (3) 580 CITATOR INFO : RF 1975 SC2299 (434) RF 1976 SC1187 (6) RF 1991 SC1557 (13,18) ACT: Representation of the People Act , 1951-- Section 86(5) --Scope- --Pleadings relating to corrupt Practice--Better Particulars of charges may he introduced by amendment of pleadings. Election Petition--Interrogatories--code of Civil Procedure 1908--Order XI r. 1-Interrogatories must have reasonable close connection with "any matters in question." HEADNOTE: While a corrupt practice has got to be strictly proved it does not follow that a pleading in an election petition should receive a strict construction. The object of section 86(5) of the Representation of the People Act, 1951, is to see that a person accused of a corrupt practice must know precisely what he is accused of so that he may have the opportunity to meet the allegations made against him. If the accusation made is nebulous and is capable of being made use of for establishing more than one charge or if it does not make out a corrupt practice at all then the charge fails at the threshold. So long as the charge levelled is beyond doubt, s. 86(5) is satisfied; rest is mere refinement; they either pertain to the region of particulars or evidence. Under s. 86(5) , if corrupt practice is alleged in the ' petition, the particulars of such corrupt practice may amended or amplified for ensuring a fair and effective trial that is, more and better particulars of the charge may be given later, even after the period of limitation; but if a corrupt practice is not previously alleged in the petition, an amendment which will have the effect of introducing particulars of such a corrupt practice, will not be permitted, after the period of limitation, because, it would tantamount to making a fresh petition. [847 G] The appellant, in his election petition, challenging the validity of the election of respondent No. 1, alleged that the respondent obtained the assistance of K when he was still a Gazetted Officer in <ORG> for the furtherance of the prospects of her election and that K organised the electioneering work for her during the entire period even before the filing of the nomination paper. The petition did not set out specifically that when the respondent obtained the assistance of K, she was a "candidate", nor did it state the date on which K was entrusted with the electioneering work. The respondent filed an appli- cation under 0. XI, Code of Civil Procedure, for sitting aside the interrogatories served on her by the appellant. The trial court set aside some of the interrogatories and struck out the issues relating to corrupt practice on the basis that the facts stated in the petition did not disclose the corrupt practice which were the subject matter of the issues. The Court also dismissed the appellant's application for amending the election petition, on the ground that the appellant was seeking to add material facts and hence they could not be accepted after the period of limitation for filing the election petition. HELD (i) that the trial court was not justified in striking out the issues relating to corrupt practice. The allegations in the petition bring 842 out all ingredients of the corrupt practice alleged though they are lacking in better particulars such as the date on which the respondent became a candidate and the date on which K was entrusted with the responsibility of organising the electioneering work of the respondent. The absence of these particulars does not per, se invalidate 'the charge. [1849 <CITATION> ,  S.C.R. 370; <NAME> etc. v. George Fernandez and ors. etc.  3 S.C.R. 603 and <CITATION> ,  S.C.C. 214, referred to. (ii) that the question as to when K's resignation became effective has to be examined with reference to his conditions of service and this having not been done the conclusion of the trial judge in this regard had to be, ignored. [852) D-E] Raj Kumar v. Union of India,  3 S.C.R. 857, referred to. <NAME> : Whether a government servant's resignation can be accepted with effect from an earlier date and whether such an acceptance has any validity in considering a corrupt practice under s. 123(7) . (iii) that the amendments asked for should have been allowed. election petition is not liable to be dismissed in limine because full particulars of corrupt practice alleged are not set out. If an objection was taken, and the tribunal was of the view that the full particulars have not been set out, the petitioner has to be given in opportunity to amend or amplify the particulars. [853 <CITATION> .,  3 S.C.R. 91, referred to. (iv) that the trial court was right in striking out the interrogatories. The interrogatories served must have reasonable close connection with any matters in question." Questions that may be relevant during cross examination are not necessarily relevant as interrogatories. [853 H] JUDGMENT:

CIVIL APPELLATE JURISDICTION : Civil Appeals Nos. 108 and 109 of 1972.

Appeals by special leave from the orders dated November 27. 1971 and December 22, 1971 of, <ORG> it,. Applications Nos. A- 112 and A- 141 in Election Petition No. 5 of 1971, respectively.

<NAME>,. <NAME>, <NAME>, <NAME>, <NAME>, and <NAME>, for the appellant (in both the appeals) <NAME>, <NAME>, S. <NAME>. Khare, <NAME>, <NAME> and <NAME>, for respondent No. 1 (in both the appeals). The Judgment of the <NAME>ourt was delivered by <NAME>, J. These. appeals by special leave arise from the election petition filed by be, appellant challenging the validity, of the election-of respondent No. 1 (who will hereinafter be referred to as the respondent) to <ORG> from Rae Bareilly consti- tuency, in the General Election to <ORG> held in- March. 1971.

After the pleadings of the parties were completed and the issues framed, the appellant applied to the court under Order Xi of The Civil Procedure, Code for leave to deliver interrogatories in writing for the examination of the respondent. The respondent objected to the same on the ground that the provisions of 0. XI. C.P.C. cannot be applied to election petitions. In her objection-statement, the respondent reserved her right to object to the interrogatories sought to be served at a later stage. The application filed by the appellant for leave 'to serve interrogatories on the respondent was heard by <NAME> The learned Judge by his order dated September 14, 1971 overruled the objections of the respondent and directed as follows :

"Accordingly I allow the application A-29 and grant leave to the petitioner to deliver the accompanying interrogatories for the examination of respondent No. 1. The affidavit in reply shall be filed by 4- 10-1971."

The respondent appealed against that order to this <ORG> after obtaining special leave. That appeal was withdrawn during the course of the hearing.

During the pendency of that appeal, the respondent filed an application before <ORG> under rule 7, Order Xi. C.P.C. praying that the interrogatories served on her may be set aside as they were "unreasonable, vexatious, oppressive, unnecessary and irrelevant". As many as 31 interrogatories had been served on the respondent. All these interrogatories related to Issues 1 to 3. The appellant objected to each one of them. At the hearing of that petition, it appears it was contended on behalf, of the respondent that the allegations in the election petition did not afford any basis for Issues 1 to 3. Consequently the interro- gatories served were irrelevant as well as unnecessary. The entire argument before the trial judge proceeded on the basis that the, facts stated in the petition did not disclose the corrupt practices which were the subject-matter of Issues 1 to 3. The learned judge accepted that contention and set aside some of the interrogatories served on the respondent. Proceeding further, he struck out Issues 1 to 3. Thereafter the appellant applied to that court for amendment of paragraphs 2 and 5 of the election petition by giving better particulars. The learned judge rejected that application on the sole ,round that by the amendment in question, the appellant was seeking to add to material facts and hence, they cannot-be accepted after the period of limitation for filing the, election, petition. Civil Appeal, No. 108 of 1972 is directed against the order setting aside the interrogatories served .and the striking out of Issues 1 to 3 and Civil Appeal No. 109 of 1972 arises from the order rejecting the application seeking permission to amend the election petition. Issue No. 2 had not been pressed before the trial court nor was it pressed before us. Therefore we need not consider whether that issue should be restored. Issue No. 3 is largely consequen- tial to Issue No. 2 though a portion of that issue bears on Issue No. 1. Hence at present we are only concerned with Issue No. 1 and that portion of the third issue which has a bearing on Issue No. 1. Both those aspects will be covered if issue No. 1 is recast thus "Whether respondent No. 1 obtained and procured the assistance of <NAME> in furtherance of the prospects of her election while he was still a Gazetted Officer in the service of <ORG>. If so, from what date ?"

We can now leave out of consideration Issue No. 3. The main question to be decided in these appeals is whether the allegations made in the election petition can be said to disclose the corrupt practice which is the subject matter of Issue .No. 1. Section 123 of the Representation of the People Act, 1951 (lo be hereinafter referred to as the 'Act') begins by saying that "The following shall be deemed to be corrupt practices for the ,purposes of this Act".

Sub-s. (7) of s. 123 to the extent material for our present purpose reads :

"The obtaining or procuring or abetting or attempt- ing to obtain or procure by a candidate or his agent or, by any other person with the consent of a candidate or his election agent, any assistance (other than the giving of vote) for the furtherance of the prospects of that candidate's election, from any person in the service of the Government and belonging to any of The following 'classes, namely (4) gazetted officers;

The appellant's contention is that the respondent after she be- came a candidate in The election in question obtained the services of <NAME> when he was still a gazetted officer in <ORG> for the furtherance of the propects of her election. In order to establish that plea, he must plead and prove (1) That the respondent obtained the assistance of <NAME> when he was a gazetted officer; (2) That the assistance obtained by her was for the furtherance of the prospects of her election and (3) That she obtained that assistance after she became a candidate.

A candidate is defined in s. 79(b) of the Act.

That section says :

" candidate' means, a person who has been or claims to have been duty nominated as a candidate at any election and any such person shall be deemed to have been a candidate as from the time when, with the election in prospect, he began to hold himself out as a prospective candidate.

The respondent became a candidate within the first part of 79(b) when she was nominated on February 1, 1971. But if she had held herself out as a prospective candidate with the election in prospect before her nomination, she must be deemed to have become a candidate from the date she so held out.

In order lo establish his plea, the appellant has to establish that the assistance of <NAME> was obtained when he still was a government servant and at the time such an assistance was obtained, the respondent had become a candidate. Now let us turn to the averments in the election petition which alone is relevant for finding out whether the corrupt practice referred to in Issue No. 1 is made out. Relevant averments are said to be in paragraphs 2, 5 and 6. They read as follows :

"2 That the respondent No. 1 <NAME> and the respondent No. 2 <NAME> were also candidates in the said election from the 22-Rae Bareili Parliamentary constituency for <ORG>.

"5 That the said Shri <NAME> was Gazetted Officer in the Government of India, holding the post of an officer on Special Duty. The respondent No. 1 <NAME> obtained and procured ,the assistance of the said Shri <NAME> for the furtherance of the prospects of her election from the 8-L1061Sup.Cl/73 constituency aforesaid inasmuch as the said Shri <NAME> was a gazetted officer in the service of the Government of India when his assistance was obtained and procured (a corrupt practice under section 123(7) of the R.P. Act, 1951 was committed by the respondent No. 1 <NAME>. The said Shri <NAME> on the directions of <NAME> organised the electioneering work for her in the constituency as her election agent during the entire period from even before the tiling of the nomination paper the filing(?) the counting and the declaration of the result of the election. The election of the respondent No. 1 is liable to be declared void on the ground of the commission of this corrupt practice under section 100(1)(b) of 'the Representation of Peoples Act, 1951.

6. That as the petition's candidature was being supported not only by <ORG> to which the petitioner belonged but also by <ORG>, <ORG>), <ORG> and <ORG> and since the candidature of respondent No. 1, <NAME> was being supported by the Muslim <ORG>, <ORG> and <ORG> (it was apprehended by <NAME> and her election agent <NAME> that an overwhelming majority of Hindu voters migh cast their votes for the petitioner against <NAME>. It was accordingly decided by them to induce the respondent No. 2 <NAME> to also stand as a candidate in the election. The said <NAME>, the election agent of <NAME> offered and paid a sum of Rs. 50,000/- to the respondent No. 2 <NAME> as a gift with the object of directly including him to stand as a candidate at the said Selection. The offer and payment of the amount of Rs. 50,000/- was made by the said <NAME> to <NAME> on the 28th January 1971 in the town of Rae Barlow. A corrupt practice of 'bribery under section 123 (1) (A) (a) was thus committed by <NAME>, election agent of Sm. <NAME> and her election is therefore liable to be declared void under section 100 (1 ) of the R.P. Act."

It is true that the election petition nowhere specifically say ,as to when the appellant became a "candidate". But it is clear from a reading of paragraphs 5 and 6 that according to the appel- lant, the respondent became a "candidate" even before she was nominated on February 1, 1971. The petition proceeds on that basis. It is not clear from the petition that how long before her nomination ,he respondent held herself out as a prospective candidate. But all the same, it is obvious from those averments that the respondent is alleged to have obtained the assistance of <NAME> when he continued to be a gazetted. officer for organizing her electioneering work. The expression "electioneer- ing" is explained in Universal English Dictionary as "act of canvassing for votes, speaking in public and otherwise promoting the election of a particular candidate for <ORG>". Reference to <NAME> as an election agent on a date prior to the date when he was appointed as such-his nomination Lis an election agent could not have been done before February 1, 1971 is clearly a misnomer but that is irrelevant. The in paragraph 5 of the election petition that <NAME> appellants organised the electioneeing work in the constituency a at the direction of the respondent even before her nomination and agent the reference to her candidature in January in paragraph shall that according to the petitioner 'the respondent was a "candidate" even before her nomination and. further that she obtained the assistance of <NAME> when he was still a gazetted officer. There is no gainsayirng the fact that the election petition was not artistically drawn LIP. That unfortunately is the case with most of our pleadings. But if the petition is read reasonably, as it should it is clear that the allegation of the petitioner is that the service of <NAME> were obtained by the respondent when she had already become a candidate and when she so obtained his assistance, <NAME> was still a gazetted officer.' It is true (hat one of the ingredients of the corrupt practice alleged i.c. that when 'the respondent obtained the assistance of <NAME>, she was a candidate is not specifically set out in the petition but from 'the allegations made, it flows as a necessary implication. While a corrupt practice has got to be strictly proved but from that it does not follow that a pleading in an election preceding should receive a strict construction. This Court has held that even a defective charge does not vitiate a criminal trial unless it is proved that the same has prejudiced the accused. If a pleading on a reasonable construction could sustain the action, the court should accept that construction. The courts are reluctant to frustrate an action on technical grounds. The charge of corrupt practice in an election 'Is a very serious charge. Purity of election is the very essence of real democracy. The charge in question has been denied by the respondent. It has yet to be proved. It may or may not be proved. The allegations made by the appellant may ultimately the proved to be wholly devoid of truth. But the question is whether the appellant should be refused an oppor- tunity to prove his allegations ? Should the court refuse to en- quire into those allegations merely because the appellant or Someone who prepared his brief did not know the language of the law. We have no hesitation in answering those questions in the negative. The implications of the rule of law are manifold. It was contended on behalf of the respondent that the relevant provisions of the Act precluded the appellant from proving his allegations. Therefore let us look at those provisions in the Act i.e. Clauses (a) and (b) of S. 83(1) and cl. (5) of s. 86 for finding out whether the charge has to be rejected in limine. Section 8  3 (1 ) (a) and (b) read "(1) An election petition-

(a) shall contain a concise statement of the material facts on which the petitioner relies;

(b) shall set forth full particulars of any corrupt practice that the petitioner alleges, including as full a statement as possible of the names of (the parties alleged to have committed such corrupt practice and the date and place of the commission of each such practice.

Sub-s. (5) of s. 86 prescribes :

"<ORG> may upon such terms as to costs and otherwise as it may deem fit, allow the particulars of any corrupt practice alleged in the petition to be amended or amplified in such manner as may in its o pinion be necessary for ensuring a fair and effective trial of the petition but shall not allow any amendment of the petition which will have the effect of introducing particulars of a corrupt practice not previously alleged in the petition." From these two provisions, it follows that if the allegations made regarding a corrupt practice do not disclose the constituent parts of the corrupt practice alleged, the same will not be allowed to be proved and further those allegations cannot be amended after the period of limitation for filing an election petition-, but the court may allow particulars of any corrupt practice alleged in the petition to be amended or amplified. The scope of these provisions has been considered in several deci- sions of this Court. The leading decision on this point is Harish indra <CITATION> (1). It is not necessary to go to that decision as the ratio of that decisions has been elaborately (1)  S.C.R. 370.

explained by this Court in <NAME> v. <NAME> and ors. etc.(1). Dealing with the scope of ss. 83 and 86(5) , this Court observed that s. 83 requires that the petition must contain a concise statement of the material facts on which the petitioner relies and the fullest possible particulars of the, corrupt practice alleged. 'Material facts' and 'particulars' may overlap but the word 'material' shows that the ground of corrupt practice and the facts necessary to formulate a complete cause, of action must be stated. The function of the particulars is to present as full a picture of the cause of action as to make the opposite party understand the case he will have to meet. Unders. 86(5), if corrupt practice is alleged in the petition, the particulars of such corrupt practice may be amended or amplified for ensuring a fair and effective trial, that is, more and better particulars of the charge may be given later, even after the period o' limitation; but if a corrupt practice is not previously alleged in the petition, an amendment which will have the effect of introducing particulars of such a corrupt practice will not be permitted, after the period of limitation, because, it would tantamount to making a fresh petition. The same view was taken by this Court in <CITATION> (3). From these decisions, it follows that facts stated in the petition relating to any corrupt practice must be sufficient to constitute a cause of action. In other words the facts must bring out all the ingredients of the corrupt practice alleged. If the facts stated fail to satisfy the hat requirement then they do not give rise, to a triable issue. Such a defect cannot be cured by any amendment after the period of limitation for filing the election petition. But even if all the material facts are stated in the election petition. For a proper trial better particulars may still be required. If those particulars are not set out in the election petition, they may be incorporated into the election petition with the permission of the court even after the period of limitation. The controversy in this case is whether the election petition discloses a cause of action for trying Issue No. 1. We think it does. The- allegations made in paragraphs 2, .5 and 6 of the petition, if read together do show that the allegation against the respondent is that she obtained the assistance of <NAME>, a gazetted officer, to support her candidature by organising her electioneering work. These allegations bring out all the ingredients of the corrupt practice alleged though they are lacking in better particulars such as the date on which the respondent became a candidate and the date on which <NAME> was entrusted with the responsibility of organizing the electioneering work of the respondent. The absence of those particulars does not per se invalidate the charge. They can be Supplied even now with the permission of the Court. In this con- (1)  3 S.C.R. 603.

(2) [1972] S.C.C. 14.

nection it is necessary to mention that the respondent in her written statement did not say that the allegations in question did not raise a triable issue. No such objection appears to have been taken at the time of the framing of the issues or in any of her pleadings. It seems that the objection was taken up for the first time when the petition to set aside the interrogatories was heard. We are saying all these only ,to show as to how the parties understood the allegations at the earlier stages, of the proceedings.

Rules of pleadings are intended as aids for a fair trial and for reaching a just decision. An action at law should not be equated to a game of chess. Provisions of law are not mere formulaes to be observed as rituals. Beneath the words of a provision of law. generally speaking,, there lies a juristic principle. It is the duty ' of the court to ascertain that principle and implement it. What then is the principle underlying s. 86(5) ? In our opinion the aim of that section is to see that a person accused of a corrupt practice must know precisely what he is accused of so that he may have the opportunity to meet the allegations made against him. If the accusation made is nebulous and is capable of being made use of for establishing more than one charge or if it does not make out a corrupt practice at all then the charge fails at the very threshold. So long, as the charge levelled is beyond doubt. s. 86(5) is satisfied; rest is mere refinement. They either pertain to the region of particulars or evidence. That section is not designed to interdict a mere clumsy pleading like the petition before us. The purpose of that section is to see that every charge of corrupt practice should be brought before the court before the prescribed period of limitation and none thereafter so that the trial of the case may not be converted into a persecution by adding more and more charges or by converting one charg another as the trial proceeds. The best illustration of the problem that s. 86(5) tries to meet is found in, <NAME> case (supra). The allegations made in paragraph 16 of the petition ,therein were as follows :

"That the respondent committed the corrupt practice of obtaining and procuring or- attempting to obtain and procure the assistance for the furtherance of the prospects of his election from the following, persons who are in the service of the <ORG> and belonging to the prohibited classes within the meaning of section 123 (7) of the Act-

1. <NAME>, Lecturer in Political Science, <ORG>, Gurgaon.

<NAME>, B.A.B.Ed., <ORG> Jharsa (Gurgaon).

3. <NAME>, Asstt. Sub-inspector, <ORG>, Lytton Road, New Delhi. 4 .Ch<NAME>, M.A.B.T., Teacher, V.& P.O. Bharai via Bahadurgarh, District Rohtak.

5. <NAME>, Inspector of Police, Delhi-

6. <NAME>, M.A., B.T., Bahadurgarh. The respondent has written letters under his own signatures to the above <ORG> servants soliciting their help and assistance in furtherance of the prospects of his election."

These were all the material facts stated in the petition. From those averments, it was not possible to make out from whom among the government servants mentioned, the returned candidate alleged to have obtained or procured assistance for the furtherance of the prospects of his election and who are those from whom he is alleged to have attempted to obtain and procure the assistance for the said purpose. That petition was also silent as regards the type of assistance obtained or procured or attempted to be oil gained or procured. In that case, it was necessary to state the type of assistance obtained or procured or attempted to be obtained or procured because a candidate can take the assistance. of government servants in certain respects. The allegations made in the petition were so elastic that it could have been used for establishing multitude of charges, leaving it free to the petitioner to pick and choose the charge he is in a position to establish. That was an intolerable position for his opponent. In substance. the petitioner therein had merely quoted the relevant provision of law; he bad failed to state the material fact,, Lo bring out the charge sought to be levelled. He had cast a wide net. This is not so in the case before us. Herein all the in- gredients of the corrupt practice viz. (1) that the respondent obtained the assistance of <NAME>; (2) <NAME> was a government servant and (3) his services were obtained in support of the candidature of the respondent by organising her election compaign are mentioned in the petition. The question when the respondent became a candidate is merely a matter of evidence. For the reasons mentioned above, we think that the learned judge was not justified in striking out Issue No. 1. On the other hand. he should have reframed that issue, as mentioned earlier. Before leaving- this question, it is necessary to mention one other fact. Yashpal <NAME> appears to have tendered his resignation to the office he was holding on January 13, 1971. The certified copy of the notification produced shows that the President accepted his resignation on the 25th of January '71 and the same was gazetted on February 6, 1971. The order of the President shows that he accepted Yashpal <NAME>'s resignation with effect from January 14, 1971. The learned trial judge without examining the true effect of the President's order has abruptly come to the conclusion that Yashpal <NAME>'s resignation became effective as from January 14, 1971. This conclusion, in our opinion, requires re examination. It is necessary to examine whether a government servant's resignation can be accepted with effect from an earlier date. At any rate whether such an acceptance has any validity in considering a corrupt practice under S. 123(7) . If such a course is permissible, it might enable the government to defeat the mandate of S. 123(7) . The question as to when a government servant's resignation becomes effective came up for consideration by this Court in <CITATION> (1). Therein this Court ruled that when a public servant has invited by his letter of resignation the determination of his employment, his service normally stands terminated from the date on which the letter of resignation is accepted by the appropriate authority and, in the absence of any law or statutory rule governing the conditions of his service, to the contrary, it will not be open to the public servant to withdraw his resignation after it is accepted by the appropriate authority. Hence the question as to when Yashpal <NAME>'s resignation became effective will have to be examined with reference to his conditions of service. This examination having nor been done, the conclusion of the learned trial judge that it became effective on January 14, 1971, has to be ignored. For the foregoing reasons, we set aside the order of the trial judge striking out Issue No. 1 and the last part of Issue No.3 and restore Issue No. 1 as amended by us.

Now coming to the appeal against the' order on the amendment application, the learned trial judge disallowed the amendments sought on the sole ground that if those amendments are allowed, it will amount to amending the statement of material facts and The same is not permissible in view of S. 86(5) . We have already found that that conclusion of the learned trial judge is not correct. The amendment application was moved even before the trial of the case commenced. It is not shown how the amendments sought in respect of paragraphs 2 and 5 of the petition can prejudice the case of the respondent. They are merely clarifica- tory in character. This Court ruled in <CITATION> .(2) that an election petition was not liable to be dismissed in limine because full particulars of corrupt practice alleged were not set out. It further observed that if an objection was taken and the tribunal was of the view that the full particulars have not been set out, the. petitioner had (1)  3 S.C.R.857.

(2) [1960] 3 S.C. R. 9 1.

to be given an opportunity to amend or amplify the particulars. It was only in the event of non-compliance with the order to supply the particulars that the charge which remained vague could be struck out. In that case The amendment was sought after the evidence was closed in the case. This Court allowed the same. Courts are ordinarily liberal in allowing amendment of pleadings unless it results in prejudicing the case of the opposite party. Any inconvenience caused by an amendment can always be compen- sated by costs. We think that the amendments asked for, should have been Allowed and we allow the same. The election petition will be accordingly amended and the respondent will be afforded an opportunity to file any additional written statement, if she so desires.

as 31 interrogatories have been served on the respondent as men- tioned earlier. Out of them Nos. 24 to 30 have been allowed, Hence we need not consider them. Interrogatories Nos. 19 to 23 relate to Issue No. 2. Therefore they are rightly struck out. We now come to interrogatories Nos. 1 to 18 and 31. We have carefully examined those interrogatories. None of them touch the core of the allegations relating to commission of the corrupt practice which is the subject matter of Issue No. 1. They merely touch the fringe of the matter.

Order XI, r. 1, C.P.C. provides "In any suit the plaintiff or defendant by leave of the <ORG> may deliver interrogatories in writing for the examination of the opposite parties or any one or more of such parties and such interrogatories when delivered shall have a note at the foot thereof stating which of such interrogatories each of such person is required to answer; Provided that no party shall deliver more than one set of interrogatories to the same party without an order for that purpose.

Provided also that interrogatories which do not relate to any matters in question in the suit shall be deemed irrelevant, notwithstanding that they might be admissible on the oral cross-examination of a witness."

Questions that may be relevant during cross-examination are not necessarily relevant as interrogatories. The only questions that are relevant as interrogatories are those relating to "any matters in question". The interrogatories served must have, reasonably close connection with "matters in question". Viewed thus, interrogatories 1 to 18 as well as 31 must be held to irrelevant.

In the result Civil Appeal No. 108 of 1972 is allowed to the extent mentioned above. In other respects the same is dismissed. Civil APpeal No. .109 of 1972 is allowed in full. In the circum- stances of these cases, we make no order as to costs. K. B. N.

Civil Appeal No. 108 of 1972 allowed in part.

Civil Appeal No. 109 of 1972 allowed.

<NAME>


PETITIONER: <NAME> & <NAME>. Vs. RESPONDENT: <NAME> GUPTA DATE OF JUDGMENT18/04/1985 BENCH: DESAI, D.A. BENCH: DESAI, D.A. MISRA RANGNATH CITATION: 1985 AIR 964 1985 SCR (3) 825 1985 SCC (3) 53 1985 SCALE (1)806 CITATOR INFO : R 1987 SC1010 (14) APL 1989 SC 291 (5) R 1989 SC2073 (22) R 1989 SC2206 (21) ACT: The Bihar Buildings (Lease, Rent and Eviction) Control Act 1947, Section 11A Suit for eviction of tenant for default in payment of rent-Failure of tenant to comply with court's order to deposit rent-Striking off defence against eviction-Whether legal. Interpretation of Statutes: State-Words 'may' and 'shall used fn different parts of a provision-Whether mandatory or directory-Ascertainment of by the <ORG>. Words & Phrases: 'Shall order the defence against ejectment be struck off-Meaning of-Bihar Building (Lease, Rent and Eviction) Control Act 1947, Section 11A. HEADNOTE: The respondent-plaintiff filed a suit for eviction against the appellant defendant on the ground that the tenant committed default in payment of rent. The defendant contested the suit contending that he was not in default. An application was filed by the respondent-landlord for a direction under Sec. 11A of the (Bihar Buildings Lease, Rent and Eviction) Control Act, 1947 to the defendant-tenant to deposit the rent in arrears; and a further direction to deposit the future rent from month to month. The trial judge ordered the appellant to deposit the rent in arrears at the rate of Rs. 32 per month and thereafter to continue to deposit the rent at the rate of Rs. 12 20 per month. The defendant preferred a revision petition which was dismissed. The suit was fixed for hearing. The tenant moved an application for adjournment which was rejected. the plaintiff witnesses were examined and the suit was decreed ex-parte. On an application moved by the defendant praying for relief under 826 Order IX Rule 13 CPC, the trial judge set aside the ex-parte decree and set down the suit for proceeding further from the stage it was decreed ex-parte. The respondent-landlord moved an application contending that as there was irregularity and delay in depositing the rent, the defence of the appellant be struck off for his failure to strictly comply with the order made under Section 11A, but the trial judge rejected it on the ground that the earlier order was made prior to the date on which the suit was decreed ex-parte; on the setting aside of the ex-parte decree and revival of the suit, the order giving directions for deposit of future rent does not per se revive and therefore even if there was some default on the part of the tenant in depositing the rent, his defence cannot be struck off. The respondent-landlord moved a revision petition before <ORG>.<ORG> interpreted the expression 'shall' in Sec. 11 A of the Act , as mandatory, and finding that there was default in making the deposit for the months mentioned in the landlords' application, it could be shown that there was non-compliance with the order passed under Sec. 11A, and therefore 'the tenant will have to bear the consequence thereto.' It further held that 'once a default is found, the courts are powerless; the statutory consequences are bound to follow,' It made the rule absolute and set aside the order of the trial judge refusing to strike off the defence of the appellant and directed the trial judge to note that the defence of the appellant would be deemed to have been struck off due to non-compliance of the order Passed under Section 11A . Allowing the Appeal to this <ORG>, ^ HELD: 1. (i) Failure to comply with an earlier direction should not necessarily visit the tenant with the consequence of his defence being struck off because there might be myriad situations in which default may be committed. The <ORG> should adopt such a construction as would not render the court powerless in a situation in which ends of justice demand relief being granted. [835 F-F] In the instant case, <ORG> had adopted a construction of Section 11A of the Act which would defeat the beneficient nature of the pro vision. The decision of <ORG> is set aside because it proceeds on the basis that once there is default, the tenant must suffer the consequences of it. The trial judge held that once a suit ended in an ex-parte decree the earlier direction for making necessary deposit given under Sec. 11A would remain ineffective even if the ex-parte degree is set aside and would not revive, was rightly disapproved by <ORG>. The trial judge did grant relief to the tenant by refusing to strike off the defence, but on an erroneous view of the law. <ORG> reversed it on yet another erroneous view of law holding that the court was powerless to grant any relief once a default is established. [835 F-H; 836 A- B]. 827 (ii) The tenant has deposited all the arrears. There was some irregularity in making the deposit but it was not of such a nature as to visit the tenant with the consequence of striking off his defence. The judgment of <ORG> directing that the defence be deemed to be struck off is set aside and the order of the trial judge is restored. [836 C] 2 (i) Section I IA, can he styled as a check on the tendency of the defendant to protract the litigation by frivolous defences more especially where the duty to pay the rent is unmistakably admitted. [830 F] (ii) In a suit for eviction, Sec. 11A enables the court to give a direction to pay rent which is claimed to be in arrears as also to compel, the defendant who continues to remain in possession during the pendency of the proceedings to perform his obligation to deposit the rent regularly. It also enables the court to determine the rate of rent at which the deposit shall be made, where in a case there is a dispute as to the rate of rent. [830 G] (iii) An undeniable feature of the tenancies in this country is that, the tenancy is generally oral and no written record is usually available to furnish evidence as to the terms of lease. Giving a receipt for the rent paid has not still become a part of the culture of a landlord. Therefore, where eviction is sought on the ground of non- payment of rent, it places a tenant at a comparative disadvantage if the landlord chooses to claim rent at the rate which is beyond the capacity of the tenant to pay. In such a situation, the tenant will be exposed to double jeopardy in that on a prima face pleading he will be directed to deposit the rent at the rate claimed by the landlord, if the court has no power to determine rate at an interim stage. Such power is conferred by Section 11A on the <ORG>. It is whole-some provision which would advance justice. [830 H; 83 1 A-C] 3. Where the legislature uses the two words may and shall in two different parts of the same provision prima facie it would appear that the <ORG> manifested its intention to make one part directory and another mandatory. But that by itself is not decisive. The power of the court still to ascertain the real intention of the <ORG> by carefully examining the scope of the statute to find out whether the provision is directory or mandatory remains un- impaired even where both the words are used in the same provision, [833 H; 834 A] In the instant case, if one ascertains the intendment of the legislature, the purpose for which the provision was enacted, the beneficent nature of the statute-to protect the harassed tenant, it does not require long argument to hold that the expression 'shill' was used not with a view to making the provision mandatory or imperative but it to was be directory. Such a construction would advance the purpose for which the Act was enacted namely the protection of tenants. It will also not render the court powerless in the face of harsh facts where striking off the defence would be nothing short of miscarriage of justice. [833 D-E] 828 R.V Inhabitants of Great Bolton, (1828) 8B & 71 at 74 <CITATION> , 1 SCR 451, referred to. 4. Where the court fixes a time to do thing, the court always retains the power to extend the time for doing so. Sec. 148 of the Code of Civil procedure provides that where any period is fixed or granted by the court for the doing of any act prescribed or allowed by the Code, the <ORG> may, in its discretion, from time to time, enlarge such period, even though the period originally fixed or granted may have expired. The principle this section must govern in not whittling down the discretion conferred on the court, by Section 11A of the Act. [834 F-G] Shyamcharan Sharma v Dharamdas,  2 SCR 334, referred to. JUDGMENT:

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1365 of From the Judgment and Order dated 11.8.77 of <ORG> in Civil Revision No. 585 of 1976.

<NAME> and <NAME> for the Appellants. Mrs. <NAME> for the Respondent.

The Judgment of the <ORG> was delivered by <ORG> Where a plaintiff in a suit bitterly complains that the defendant would be getting unfair advantage of his own lapse, if we were to interfere with the judgment rendered by <ORG>, we put ourselves on caution whether such be the outcome of our setting aside the order under appeal. Unwittingly, this <ORG> should not be a party to the conferment of an undeserved advantage on a party to a proceeding guilty of a lapse though remediable and even unintentional. Deeper probing into the facts reveals that the boot is on the other foot in that the respondent-plaintiff is wholly to be blamed for the delay.

The facts first. The respondent-plaintiff field a suit for eviction against the appellant-defendent on the only ground that the tenant committed default in payment of rent for the period May, 1969 to December, 1971. The defendant contested the suit inter-

alia contending that he was not in default. There followed an application by the respondent-landlord for a direction under Sec. 11A of the Bihar Buildings (Lease, Rent and Eviction) Control Act, 1947 ('Act' for short). Section 11A reads as under:

"11A. Deposit of rent by tenants in suits for ejectment- If in a suit for recovery of possession of any building the tenant contests the suit, as regards claim for ejectment the landlord may make an application at any stage of the suit for order on the tenant to deposit month by month rent at a rate at which it was last paid and also the arrears of rent, if any and the <ORG>, after giving an opportunity to the par- ties to be heard, may make an order for deposit of rent at such rate as may be determined month by month and the arrears of rent, if any and on failure of the tenant to deposit the arrears of rent within fifteen days of the date of the order or the rent at such rate for any month by the fifteenth day of the next following month, the <ORG> shall order the defence against ejectment to be struck out and the tenent to be placed in the same position as if he had not defended the claim to ejectment. The landlord may also apply for permission to withdraw the deposited rent without prejudice to his right to claim decree for ejectment and the <ORG> may permit him to do so. The <ORG> may further order recovery of cost of suit and such other compensation as may be determined by it from the tenant."

The prayer in the application was that the defendant-

tenant be directed to deposit the rent in arrears upto and inclusive of June 1973 within a period of fifteen days from the date of the order and a further direction be given that he should continue to deposit the rent from month to month. The learned Judge made an order directing the appellant to deposit rent for the period upon and inclusive of June 1973 at the rate of Rs. 32 per month and there after to continue to deposit the rent from month to month at the rate of Rs. 12.20 per month. The tenant preferred a revision petition which was dismissed on March 26, 1974. The such was fixed fore haring on January 28, 1975. The tenant moved an application for adjournment which was rejected. Plaintiff's witnesses were examined and the suit was decreed ex-parte on January 30, 1975. On an application moved by the defendant praying for relief under Order IX Rule 13, Code of Civil Procedure the learned Judge set aside the ex-parte decree and set down the suit for proceeding further from the stage where it was decreed ex- parte. On January 5, 1976, the respondent-landlord moved an application praying that as there was irregularity in depositing the rent for the month of August to October, 1975, defence of the appellant be struck off, the his failure to strictly comply with the order made under Section 1 IA. After the appellant filed his rejoinder, the learned Judge heard the application and rejected the same on the ground that as the earlier order was made prior to the date on which the suit was decreed exparate, on the setting aside of the exparte decree and revival of the suit, the order giving directions for deposit of future rent does not per se revive and therefore even if there was some default on the part of the tenant in depositing the rent for the months from February to April, 1979, his defence cannot be struck off. Promptly, the respondent-landlord moved a revision petition before <ORG> being Civil Revision No. 585 of 1976.A Division Bench of <ORG> heard and disposed of the revision petition on August 11, 1977. The learned Judges of <ORG> made the rule absolute and set aside the order of the learned trial Judge refusing to strike off the defence of the appellant and directed the learned Judge to note that the defence of the appellant will be deemed to have been struck off due to non-compliance of the order dated April 26, 1973. Hence this appeal by special leave which is being heard after seven years.

Section 11A , to some extent, can be styled as a check on the tendency of the defendent to protract the litigation by frivolous defences more especially where the duty to pay the rent is unmistakably admitted. In a suit for eviction, Sec. 11A enables the court to give a direction to pay rent which is claimed to be in arrears as also to compell the defendent who continues to remain in possession during the pendency of the proceedings to perform his obligation to deposit the rent regularly. It also enables the court to deter mine the rate of rent at which the deposit shall be made, wherein a case there is a dispute as to the rate of rent. It is an undeniable feature of the tenancies in this country that more or less excluding the metropolitan areas, the tenancy is generally oral and no written record is usually available to furnish evidence as to the terms of lease. Giving a receipt for the rent paid has not still become a part of the culture of a landlord. Therefore where eviction is sought on the ground of non-payment of rent, it places a tenant at a comparative disadvantage if the landlord chooses to claim rent at the rate which is beyond the capacity of the tenant to pay. In such a situation, the tenant will be exposed to double jeopardy in that on a prima facie pleading he will be directed to deposit the rent at the rate claimed by the landlord, if the court has no power to determine rate of rent at an interim stage. Such power is conferred by Sec. 11A on the court. The court can also determine as to from what date the tenant appears to be in arrears so that an appropriate direction can be given that the rent in arrears may be deposited within the time stipulated by the court as also future rent may be deposited regularly in the court. It is a whole some provision which would advance justice.

Now where power is conferred on the court to give such directions, a sanction had to be created to guard against the failure to comply with the court's directions. This sanction is to be found in the conferment of power on the court to strike off the defence of the tenant if the tenant fails to comply with the order of the court giving directions for deposit. Such a sanction would again advance justice. So far there is no dispute.

The contention of the landlord which has found favour with <ORG> is that the moment the failure of the tenant to comply with the earlier order is brought to the notice of the court, without anything more the defence has to be struck off. This view of the court is founded on the use of the expression 'shall' in that part of section by which power in conferred on the court to strike off the defence. The relevant part of the expression reads thus: F ".... on failure of the tenant to deposit the arrears of rent within fifteen days of the date of the order or the rent at such rate for any month by the fifteenth day of next following month, the court shall order the defence against ejectment to be struck off and the tenant be placed in the same position as if he had not defended the claim to ejectment."

Interpreting this expression 'shall' as mandatory in the afore-mentioned clause, <ORG> was of the opinion that as there was default in making the deposit for the month herein before mentioned which would show non-compliance with the order dated July 26, 1973 passed under Sec. 11A and therefore 'the tenant will have to bear consequences thereto ' <ORG> further observed that 'once a default is found, the courts are powerless; the statutory consequences are bound to follow.' In the back-drop of the rival contentions, the neat question that arises is: whether the use of the word 'shall' in the expression herein before extracted makes the provision imperative or mandatory or the court still retains the discretion to relieve against the default ?

Ordinarily the use of the word 'shall' prima facie indicates that the provision is imperative in character. However, by a catena of decisions, it is well-established that the court while considering whether the mere use of the word 'shall' would make the provision imperative, it would ascertain the intenedment of the legislature and the consequences flowing from its own construction of the word 'shall'. If the use of the word 'shall' makes the provision imperative, the inevitable consequence that flows from it is that the court would be powerless to grant any relief even where the justice of the case so demands. If the word 'shall' is treated as mandatory the net effect would be that even where the default in complying with the direction given by the court is technical, fortuitous, unintended or on account of circumstances beyond the control of the defaulter, yet the court would not be able to grant any relief or assistance to such a person. Once a default is found to be of a very technical nature in complying with the earlier order, the court must have power to relieve against a drastic consequence all the more so if it is satisfied that there was a formal or technical default in complying with its order. To illustrate, if the tenant while he has on the way to the court on the 15th day to deposit the rent for the just preceeding month as directed by an order under Sec. 11A, met with an accident on the road and could not reach the court before the court hours were over, should he be penalised by his defence being struck off. Even if the court is satisfied that he was on the way to the court to make the necessary deposit, that he had the requisite amount with him, and that he started in time to reach the court within the prescribed court hours and yet by circumstances beyond his control, he met with an accident would the court be powerless to grant him relief? This illustration would suffice to the intendment of the legislature that it never used the word 'shall' to make it so imperative as to render the court powerless.

The statute in which the expression is used is The Bihar Buildings (Lease, Rent and Eviction) Control Act, 1947. It is a statute enacted with a view to providing a fetter on the right of a landlord to evict tenant at his whim or fancy. The long title of the Act shows that it was enacted to regulate the letting of buildings 13 and the rent for such buildings and to prevent unreason able eviction of tenants therefrom in the Province of Bihar.A provision in such a statute primarily enacted for the protection of tenants against unreasonable eviction that the court is required to find out whether the word 'shall' was used as to make the provision mandatory or imperative. Obviously if one ascertains the intendment of the legislature, the purpose for which the provision was enacted, the beneficient nature of the statute and to protect the harassed tenant obviously it does not require long argument to hold that the expression 'shall' was used not with a view to making the provision mandatory or imperative but it was to be directory. Such a construction would advance the purpose for which the Act was enacted namely the protection of tenants. It will also not render the court powerless in the face of harsh facts where striking off the defence would be nothing short of miscarriage of justice.

Mrs. <NAME>, learned counsel however contended that where the expression 'may' and 'shall' both are used in the same provision the legislative intendment is unmistakable that the provision where the word 'shall' is used must be held to be mandatory because the previous use of the expression 'may' shows that the legislature was conscious, which part of the provision is to be directly and which other part to be mandatory. She relied upon a statement in Maxwell on the Interpretation of Satutes 12th Edn. Page 282 where in it is stated relying upon the decision is R. v. Inhabitants of Great Bolton(1) that "where the <ORG> in the same sentence uses different words, we must presume that they were used in order to express different ideas." Obviously where the legislature uses two words 'may' and 'shall' in two different parts of the same provision prima facie it would appear that the legislature manifested its intention to make one part directory and another (1) [1828] 8 B & C 71 at 74 mandatory. But that by itself is not decisive. The power of the court still to ascertain the real intention of the <ORG> by care fully examining the scope of the statute to find out whether the provision is directory or mandatory remains unimpaired even where both the words are used in the same provision. <CITATION> (1) <NAME>, J. speaking for the <ORG> approved the following passage in <NAME> on 'Statutory Construction' (Ed. 1940 Art. 261 , p. 516):

"The question as to whether a statute is mandatory or directory depends upon the intent of the legislature and not upon the language in which the intent is clothed. The meaning and intention of the legislature must govern and these are to be ascertained, not only from the phrasacology of the provision, but also while considering its nature, its design and the consequences which would follow from construing it the one way or the other."

Applying this well-recognised canon of construction the conclusion is in escapable that the word 'shall' used in the provision is directory and not mandatory and must be read as 'may'. .

This construction also commends to us for the additional reason that where the court fixes a time to do a thing, the court always retains the power to extend the time for doing so. Sec. 148 of the Code of Civil Procedure provides that where any period is filed or granted by the court for the doing of any act prescribed or allowed by the Code, the <ORG> may, in its discretion, from time to time, enlarge such period, even though the period originally fixed or granted may have expired. The principle of this section must govern in not whittling down the discretion conferred on the court.

The view which we are taking is in accord with the construction put by this court on a provision imparimateria in a similar statute. <CITATION> (2) a question that arose (1)  1 S.C.R. 451.

(2) [1980] 2 S.C.R. 334.

<NAME>

before this <ORG> was whether the construction put by <ORG> on Sec. 13 (1) read with Sec. 13 (6) of the Madhya Pradesh Accommodation Control Act, 1961 accords with the intendment of the <ORG>. The relevant provision provides that on an application, a tenant can be directed by the <ORG> to pay to the landlord an amount calculated at the rate of the rent at which it was paid for the period for which a tenant may have made a default including the period subsequent thereto upto 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 of tenth of each succeeding month, the sum equivalent to the rent. It was contended that the provision i i mandatory so that the court has to power to extend the time initially liked by it for making the deposit.A submission before the court was that the expression used in sub-sec. (1) discloses the legislative intent and the use of the word 'may' in sub- sec. (6) would not make the provision directory. The <ORG>, speaking through <NAME>, J. after ascertaining the intendment of the <ORG> held that the court has the jurisdiction to extend time once fixed for deposit or payment of monthly rent falling due after the filing of the suit.

Failure to comply with an earlier direction should not necessarily visit the tenant with the consequence of his defence being struck off because there might be myriad situations in which default may be committed. The Court should adopt such a construction as would not render the court powerless in a situation in which ends of justice demand relief being granted. <ORG> has adopted such a construction which would defeat the beneficent nature of provision. The decision of <ORG> will have to be set l, aside because it proceeds on the basis that once there is default, the tenant must suffer the consequences of it.

The learned trial Judge had held that once a suit ended in exparte decree the earlier direction for making necessary deposit given under Sec. it would remain ineffective even if the exparte is, decree is set aside and would not revive was rightly disapproved by <ORG>. To that extent the view of the learned trial Judge was unsustainable.

The learned trial Judge did grant relief to the tenant by refusing to strike off the defence, of course, on an erroneous view of law that the direction did not revive after the setting aside of the ex-parte decree. And <ORG> reversed it on another crroneous view of law that the court was powerless to grant any relief once a default is established ? The question then is what relief we should grant ?

The tenant has deposited all the arrears. There was some irregularity in making the deposit but it was not of such a nature as to visit the tenant with the consequence of striking off his defence. Therefore the Judgment of <ORG> directing that the defence be deemed to be struck off is set aside and the order of the learned trial Judge is restored for the reasons herein stated.

This appeal is allowed accordingly and the matter is remitted to the trial court to proceed further with the suit from the stage where the defence of the present appellant was struck off. The defence will be treated as part of the proceedings and suit shall be proceeded with accordingly. As the matter is delayed for long, we direct that the suit shall be accorded priority by the trial court and shall be disposed of within a period of six months from the date of this judgment.

Mrs. <NAME> on behalf of the respondent submitted that the respondent has filed a second suit for eviction on the ground of personal requirement. If that is pending the same must be heard alongwith the suit from which the present appeal arises.

We leave the parties to bear their respective costs both in <ORG> as well as in this <ORG>. Costs in the trial court will abide the outcome of the suit.

N.V.K. Appeal Allowed;


JUDGMENT

1. This is a plaintiff's appeal arising out of a snit for sale brought on the basis of a mortgage deed, dated the 21st of February 1893, purporting to hare been executed by two persons, <NAME> and his mother, <NAME>, in favour of the plaintiff-appellant, <NAME>, According to the document Rs. 4,000 was the loan and it was secured on two classes of property. Firstly, pure Zemindari in <NAME> and <NAME>, Perganah Jhusi, of the Allahabad District and 13 items of property which the mortgagors of held as mortgagees from other persons. Among these 13 items were two mortgages of property in Mauza Chintemanpar and Sidhaura. Oat of the sum of Rs. 4,000, Rs. 1,400 purported to have been paid in cash prior to the registration and Rs. 2,600 purported to have been left with the creditor for payment of certain debts due from the mortgagors to other persons. They were as follows:

Rs. 1,000 due to <NAME> on account of his decree.

Rs. 700 due to <NAME> of Utraon.

Rs. 400 due to <NAME> who held a mortgage of sir land in Mauza Deoria; and Rs. 500 to <NAME>, Banker of the City of Allahabad,

2. According to the terms entered in the document the interest was to be Rs. 1 per cent. per mensem and the executants stipulated to re-pay the loan in 12 years. They further stipulated that they would pay annually a sum of Rs. 500 on account of principal and interest. The interest at Rs. 12 per cent. per mensem for one year amounted to Rs. 480, so that this sum allowed for the payment of the annual interest and a little over. They stipulated that the amount thus paid annually should be set off against the interest and the balance should be credited towards the principal. Further on in the document the mortgagors stipulated that if in any year they were unable to pay the interest, the interest might be treated as principal and would carry interest at the rate of Rs. 1 per cent. per mensem. Further on in the deed they further stipulated that if there was any default in payment of the Rs. 500 per annum, the mortgagee was to have power, without waiting for the expiry of the stipulated period, to set aside all the other stipulations embodied in the document and to bring a suit in Court to realise the entire principal together with interest and costs from the parsons of the mortgagors and from the hypotheacted property. <NAME> and <NAME> are both dead and the persons who are now sued are their heirs. They pleaded in defense that the deed had not been executed by <NAME> and <NAME>. They pleaded that no consideration had passed; and they lastly pleaded that the suit was barred by limitation. We may note here that it is an admitted fact that all the 13 items of mortgagee rights which were hypotheacted under the deed in suit have disappeared, that is, the original mortgagors have paid of the mortgages, but not to <NAME> or any of the present plaintiffs. The plaintiffs have not made the original mortgagors of these properties parties to the present suit. The Court below has held that Rs. 3,000 out of the Rs. 4.000 entered in the deed as consideration was actually paid. It has further held that the deed was duly executed by <NAME> and <NAME>. It has held that the suit is barred by limitation.

3. The plaintiffs in their appeal urge:

That the Rs. 1,000 of consideration which the <ORG> below has disallowed has been established. They further plead that the suit is not barred by limitation.

4. So far as the Rs. 1,000 of the consideration is concerned, the appeal has not been particularly strongly pressed. The learned <NAME> for the appellants states that his clients will be quite satisfied if they can get a decree for Rs. 3,000 principal together with interest thereon by sale of the hypotheacted property. With regard to this item, therefore, we need not say mush, except that we agree with the <ORG> below, that the appellants have failed to establish the payment of this item. It was a sum which they had to pay to the decree holder, <NAME>. Excepting the bare statement of the plaintiff <NAME> there is practically no evidence. No receipt has been produced, and the best evidence which was obtainable from the records of the Civil <ORG> has not been put forward. We, therefore, agree with the <ORG> below that the plaintiffs have failed to establish the payment of this Rs. 1,000.

5. We next come to the question of limitation. This may be divided into two heads. First of all it is pleaded that the plaintiffs had a period of 24 years within which to bring their suit on the basis of the bond. Next it is pleaded that even if they had not this lengthy period, still the plaintiffs have adduced evidence and have established the payment of some 10 sums of money on various dates on account of interest due under the deed and that these payments of interest have given the plaintiffs further time and the suit is, therefore, within 12 years of the last payment. The first portion of the plea is based upon the terms of the deed. The document is dated the 21st of February 1893. The period fixed for payment was 12 years, which would bring the time up to the 21st of February 1905, The suit 19 within 12 years of this date, it having been filed on the 21st of February 1917, that is, on the very last day of limitation. The <ORG> below, however, has held, relying on the Fall Bench decision of this <ORG> in <CITATION> 28 Ind. Cas. 910 : 37 A. 400 : 13 A.L.J. 510, that the suit ought to have been brought within 12 years of the 21st of February 1894,. It is an admitted fast that the sum of Rs. 500 which the mortgagors stipulated to pay annually was not paid at any time. The first sum of Rs. 500 was due on the 21st of February 1894. Admittedly it was not paid. Even the entries of the alleged payments on the back of the document do not begin before the 15th of December 1899. According to the terms of the deed the mortgagee was entitled to sue on the 21st of February 1894 by reason of the default. Article 132 of the Limitation Act clearly applies to the suit and that Article fixes a period of 12 years from the date on which the money became due. The lower <ORG> has also held that excepting the one alleged payment of the 15th of December 1899, none of the other alleged payments of interest have been proved. It has, therefore, held that the suit is out of time. It is urged before us practically that we should not apply the ruling in <CITATION> 28 Ind. Cas. 910 : 37 A. 400 : 13 A.L.J. 510, because in the case of certain other suits to which Article 132 does "not" apply, this <ORG> has in certain instances tome to a decision which in principle may clash with the principle laid down in the <ORG> ruling. We do not think that this is a good argument. The first question is, whether the circumstances of the two cases, that is of the reported case and the case before us, are identical or not, and whether the <ORG> ruling does as a matter of fact apply to the suit before us. We have compared the two cases and find it impossible to distinguish between them. In the present suit no option whatsoever was given to the mortgagee in the matter. The stipulation laid down (and the mortgagors agreed) that if they failed to pay the annual sum of Rs. 500, the mortgagee had a right to sue. On the face of this document now in suit the mortgage money became due on the 21st of February 1894 and time began to run. That time, in the absence of any payments on account of interest, came to an end at the end of 12 years and the present suit was brought, as we have already pointed out, at the end exactly of 24 years from the emotion of the document. It is true that the Madras High <ORG> has, in a recent case, differed from the decision of this <ORG> In doing so, it has had to go contrary to one of its own farmer decisions, whereas the Calcutta Might <ORG> has consistently followed the opinion of this <ORG>, or rather the decision in the <ORG> is based partly on the decisions of the Calcutta High <ORG>, and we see no reason whatsoever not to follow the decision of this <ORG>, which up to the present moment has not been upset and with which we agree. Unless, therefore, the plaintiffs are able to satisfy us that the alleged payments of interest entered on the back of the document were made, their suit is clearly barred by limitation, In regard to these payments, they are ten in number the earliest payments purport to have been endorsed on the deed in December 1899, <NAME> 1901 February 1902 and January 1903 The four sums mentioned in these four entries purport to have been paid by <NAME> and the entries on the deed to have been made by <NAME>. The next two entries are of January 1904 and December 1904 and purport to cover two sums of Rs. 700 and Rs. 300 sent by <NAME> through <NAME> one of her servants. The entries which are made in the Urdu character purport to have been made by <NAME>. The 7th item is dated the 10th of April 1906 and purports to relate to a sum of Rs. 900 paid on that date by <NAME> herself. The entry purports to have been made by <NAME> Dube. The 8th and 9th items of Rs. 1,000 each dating in 1910 and 1911 also purport to have been paid by <NAME> herself and both the entries are in the handwriting of or purport to be in the handwriting of <NAME>.

6. The last item of 11th August 1912 is a sum of Rs. 1,000 and the entry purports to have been made by one <NAME> a servant of the plaintiffs. The <ORG> below has pointed to the fact that the evidence of these payments consists only of the statements of <NAME> and <NAME>. It has in the circumstances of the case reinsert to accept their evidence as sufficient proof. The lower <ORG> clearly hesitated to believe there two men. In regard to the payment of the 15th of December 1899 the <ORG>, however, has accepted their statements because of an entry in the deed, dated 16th of January 1900. That deed purports to be a sale-deed of a half share in this document as well as other documents by <NAME> in favour of <NAME>. There had been a partition apparently in the plaintiffs' family and their rights under certain deeds were distributed among them, and then there were transfers from one to the other of their shares. In this sale-deed there is an entry of the deed now in suit showing the value of the bond itself on the 31st of December 1899. According to the calculation made therein the interest shown as then due was really less than the full amount calculated according to the bond; therefore, it was pleaded on behalf of the plaintiffs that this shows that there must have been some payment of interest prior to the 31st of December 1899 and they point to the entry dated 15th of December 1899, which shows a payment of Rs. 353-8-0, and they say this, therefore, is corroborated by the entry in the sale-deed of the 16th of January 1910. The lower <ORG> has more or less made a present of this item to the plaintiffs. We have been taken over the evidence of <NAME>, <NAME> and <NAME> and on a consideration of their evidence, we have come to the conclusion that all these entries of payments on the back of the deed are highly suspicious and that not even the entry of the 15th of December 1899 has been established to our satisfaction The appellants are people who on the face of the record have done in the past a considerable amount of money lending. Even their sale-deed of 16th January 1904 shows that. They have not produced in <ORG> any books of account whatsoever to show that any of these payments were made. They have stated in <ORG> that they kept no account books; that they every year prepared what they call a choubandi, which we presume consisted of papers stitched together and which they say they threw away and destroyed at the end of each year. Now the evidence shows that not only did they lend money but they also lent grain; they are described as Mahajans in <NAME>'s own deposition. He there gave his occupation as that of a Mahajan and Zemindar. <NAME> also described himself as a Mahajan. They are residents of Jhusi, which is a suburb of the town of Allahabad. We find it impossible to believe that they maintained no account books at all. Not a single receipt purports to have been given. No signature of any of the alleged payers has been taken. We are asked to accept the statements of <NAME> and <NAME> as being simply true, unsupported practically by any other evidence. An examination of the back of the bond will show that the entries Nos. 1, 2, 3 and 4 are not in the position on that bond where one would naturally expect to find them. Beneath the registration endorsement there was a certain amount of open space. One would have thought that a person endorsing a payment on thin document would have naturally begun the first entry at the beginning of the open space, but we find that these four earlier payments are entered in cramped spaces in between the entries made by the Registration Officer and the stamp vendor on the back of the deed.

7. The next point which is worthy of notice is this: The plaintiffs would ask ns to believe that on the 10th of April 1908, <NAME> herself paid the sum of Rs. 900 and that she made three further payments of Rs. 1,000 each on the 9th of November 1910, 20th of October 1911 and the 11th of August 1912. Now in 1906 on the plaintiffs' own showing the amount of their debt was Rs. 14,647-2-0. The value of the property could not have been more than this amount. The amount of the debt continued to swell up to Rs. 21,622 in 1910 when the <NAME> is said to have paid Rs. 1,000 more; In 1911 it had swollen to Rs. 23,094 when another sum of Rs. 1,000 is said to have been paid, and in 1912 it had swollen to Rs. 24,745 when in August of that year another Rs. 1,000 is said to have been paid. The income of this property is said to be Rs. 500 to Rs. 600 per annum. The amount of the debt in 1910,1911 and 1912 was considerably more than the value of the property. It is difficult to believe that any mortgagor would in these circumstances have thrown Rs. 1,000 into the pocket of the plaintiffs without any object what soever. It made no appreciable reduction in the amount of the debt. The latter was far greater than the value of the property, and it would have been a hopeless payment which no sane person would have made. But there is another fast which goes to show that no such payment would, however, have been made by <NAME>. On the 24th of May 1906, that is, a month and fourteen days after the alleged payment of Rs. 900 of the 10th of April 1906, the mortgagor of two portions of the mortgaged property, that is, the shared of Mauza Chintamanpur and Sidhaura, filed an application under Section 83 of the transfer of Property Act to which he made both Sadar-un-nissa and <ORG> parties. He tendered the money due under his mortgage and made <ORG> a party because, as he alleged, he had discovered the existence of the document of 21st of February 1893, under which the mortgagee purported to have sub-mortgaged her rights, and he had questioned <NAME> who had denied the mortgage of the 21st of February 1893, and, therefore, to protect himself he made both <ORG> and Sadar-un-nissa parties to his application and paid the money into <ORG>. Notice in that case was issued to <ORG>. It was not served upon him personally but was attached to the door of his house. On the 22nd of November 1906 <NAME> filed a reply in that proceeding, in which she also stated that she had denied the execution and completion of the deed of the 21st of February 1893 and she claimed the money deposited by the mortgagor, <NAME>, as belonging to herself. Apparently <ORG> took no farther steps in the matter and the money was withdrawn from <ORG> by <NAME>. It in, therefore, clear that so early as the beginning of the 10th of April 1905 <NAME> sadar-un-nissa had publicly denied execution of the deed now in suit. We have pointed out above that the mortgage debt in that year was practically equal to the value of the property, if not greater and that in subsequent years it continued to increase till the payment of the debt was a hopeless one. We have also the admitted fact that all the mortgagee rights that were hypothecated to the present plaintiffs have been redeemed and the plaintiffs have not deemed it worth their while to make these mortgagors parties to the present suit. In these circumstances, we think that it would be dangerous in the extreme to place any reliance whatsoever on the evidence of <ORG>, <NAME> or any of the plaintiffs' witnesses. We cannot and we do not believe that any of the payments endorsed on the document were ever made. They certainly have not been established to our satisfaction. In any view, it is clear that the suit was barred by limitation and was properly dismissed by the <ORG> below. The appeal fails and we dismiss it with costs, including fees on the higher scale.