PETITIONER: STATE OF PUNJAB Vs. RESPONDENT: GURDIAL SINGH & ORS. DATE OF JUDGMENT25/10/1979 BENCH: <NAME>, V.R. BENCH: <NAME>, V.R. PATHAK, R.S. CITATION: 1980 AIR 319 1980 SCR (1)1071 1980 SCC (2) 471 CITATOR INFO : RF 1981 SC 818 (62) D 1984 SC1020 (8) R 1985 SC1622 (26) RF 1987 SC 877 (16) D 1988 SC1459 (14) R 1992 SC 604 (144) ACT: Land Acquisition Act 1894 , Ss 4, 5A, 6 and 17-Land acquisition High <ORG> held state action malafide- same land acquired later under emergency power dispensing with statutory enquiry-Acquisition-Validity of. Land acquisition proceedings-Allegation by land owner that statutory power misused to satisfy personal ends of an individual with political influence - No attempt to contradict allegation despite opportunity being afforded- malafides-If proved. HEADNOTE: In 1962, a site was chosen for a grain market and the foundation stone for it was laid. This spot belonged to a cousin of Respondent No. 22, an ex- Minister and an influential politician. This spot was eventually abandoned in favour of the lands of Respondents Nos. 1 to 21, which were notified in 1971. The landowners resisted and successfully impeached the acquisition on the ground of mala fides before <ORG>. After a long interval, the <ORG> initiated acquisition proceedings in respect of the same land a second time, invoking the emergency powers under Section 17 of the Land Acquisition Act. The Respondents Nos. 1 to 21 assailed the acquisition before <ORG> on the ground that the statutory power to acquire land had been misused to satisfy the personal ends of Respondent No. 22 and that the acquisition was not for a legitimate statutory purpose. <ORG> struck down the 'declaration', and invalidated the acquisition. Dismissing the Special Leave Petition of the <ORG>, ^ HELD: <NAME>, J.) 1. It is fundamental that compulsory taking of a man's property is a serious matter and the smaller the man the more serious the matter. Hearing him before depriving him is both reasonable and preemptive of arbitrariness, and denial of this administrative fairness is constitutional anathema except for good reasons. Save in real urgency where public interest does not brook even the minimum time needed to give a hearing, land acquisition authorities should not, having regard to Articles 14 (and 19), burke an enquiry under S. 17 of the Land Acquisition Act. [1078H-1079B] In the instant case a slumbering process, pending for years and suddenly exciting itself into immediate forcible taking, makes a travesty of emergency power. [1079B] 1072 2. The power to select land for acquisition proceedings is left to the responsible discretion of Government under the Act, subject to Articles 14, 19 and 31 (then). The <ORG> is handcuffed in this jurisdiction and cannot raise its hand against what it thinks is a foolish choice. Wisdom in administrative action is the property of the <ORG> and judicial circumspection keeps the court lock-jawed save where power has been polluted by oblique ends or is otherwise void on well-established grounds. [1075 F-G] 3. Legal malice is gibberish unless juristic clarity keeps it separate from the popular concept of personal vice. Bad faith which invalidates the exercise of power-sometimes called colourable exercise or fraud on power and often times overlaps motives, passions, and satisfactions-is the attainment of ends beyond the sanctioned purposes of power by simulation or pretension of gaining a legitimate goal. If the use of the power is for the fulfillment of a legal object the actuation or catalysation by malice is not legicidal. The action is bad where the true object is to reach an end different from the one for which the power is entrusted, goaded by extraneous considerations, good or bad, but irrelevant to the entrustment. When the custodian of power is influenced in its exercise by considerations outside those for promotion of which the power is vested, the court calls it a colourable exercise and is undeceived by illusion. [1075H-1076C] 4. Fraud on power voids the order if it is not exercised bona fide for the end designed. Fraud in this context is not equal to moral turpitude and embraces all cases in which the action impugned is to effect some object which is beyond the purpose and intent of the power, whether this be malice-laden or even benign. If the purpose is corrupt the resultant act is bad. If considerations, foreign to the scope of the power or extraneous to the statute, enter the verdict or impel the action, mala fides or fraud on power vitiates the acquisition or other official act. [1076 D-E] In the instant case the moving consideration was not that this land was needed for the mandi, in the judgment of Government, but that the mandi need was hijacked to reach the private destination of depriving an enemy of his land through back-seat driving of the statutory engine. Respondent No. 22 when he became <ORG> Minister of Panchayat and Development constituted <ORG> and appointed himself as President thereof. The choice was made of the site belonging to Respondents 1 to 21 and lest the take-over delayed, even the S5A enquiry was scuttled by invoking the emergency power S17. At times, natural justice is the natural enemy of intolerant authority. The judicial process under Article 226 therefore, rightly invalidated the acquisition on the ground of mala fide. [1076F, 1078 C-E] 5. This court does not upset a factual finding unless it is upset by perverse assessment, absence of evidence and the like. [1077A] 6. Counsel in court are 'robed' representatives, within the parameters of the adversary system, geared to the higher cause of justice, not amoral attorneys paid to ventriloquize the case of the principal. Every 'lawless' cause brought recklessly before the <ORG>, is a dubious gamble which blocks the better ones from getting speedy remedy. [1074E, 1073F] 1073 (Per <NAME> J. concurring) 1. On a conspectus of the material on the record it does seem that the impugned acquisition proceeding cannot be sustained. There is reason to believe that the statutory power to acquire land has been misued to satisfy the personal ends of the Respondent No. 22, an individual who appears to be not without considerable political influence. Despite an opportunity afforded to controvert the allegations made by the Respondents Nos. 1 to 21, no attempt has been made by him to contradict the allegations. [1079 E- F] 2. Whether or not the deliberations which were said to have led to the selection of the land belonging to Respondent Nos. 1-21, were affected by the influence or pressure of the Respondent No. 22 is a matter to which the officials or members selecting the land could alone be privy. In the absence of any denial of the allegations made by the Respondents Nos. 1 to 21 in the writ petition by a person having personal and direct knowledge in the matter, and having regard to the entire history of the case, it is difficult to resist the conclusion that the averments in the writ petition alleging mala fides must be accepted. [1079H- 1080B] JUDGMENT:

CIVIL APPELLATE JURISDICTION: Special Leave Petition (Civil) No. 1207 of 1978.

From the Judgment and Order dated 28-7-1977 of <ORG> in Civil Writ No. 1457 of 1977.

<NAME> for the Petitioner.

<NAME> and <NAME> for the Respondents. The following Orders were delivered:

KRISHNA IYER, J.-Every meritless petition for special leave commits a double sin and here we are scandalized that the sinner is the <ORG> itself. When thousands of humble litigants are waiting in the queue hungry for justice and the docket-logged court is desperately wading through the rising flood, every 'lawless' cause brought recklessly before it is a dubious gamble which blocks the better ones from getting speedy remedy. Here is an instance.

If-this is a big 'if'-I assume some of the uncontradicted statements in the counter-affidavit and writ petition to be true, read in the light of <ORG> decision against the <ORG> twice over that its action was mala fide and void, this disturbing petition, by the State of Punjab for leave to appeal, which I now dismiss, lays bare the basics of Power pathology and judicial philosophy in the unhappy setting of personal vendetta fuelling the politics of compulsory land acquisition. Prof. <NAME>'s assertion that <ORG> "acting as the 'national conscience' of the.. people" does mandate standards towards which public and private behaviour must gravitate' is as true in our jurisdiction as in his country.

The factual matrix, enough to unfold why <ORG> twice condemned the <ORG>'s action in a case of land acquisition as mala fide and why we endorse so that view, must be stated. The order under appeal is brief but there is more than meets the credulous eye beneath the verbal surface available in the affidavits. The vice of misuse of power centred round one Sri <NAME>, 22nd Respondent, a former minister, a quondom M.L.A., and a continuous politician. The 'writ-petitioners' (respondents 1 to 21 before us) seek to crucify him as the malefic presence prodding the impugned acquisition. Since he did not enter appearance, despite service of notice, we felt that a fresh opportunity or reminder should be afforded to him to deny, if he so desired, the sinister imputations made against him. The benefit of presumption of good faith belongs to every man, until rebutted. Fresh notice was directed and effected to the extent feasible but he did not respond and we leave it at that. We proceeded to hear the case after a few adjournments.

We must highlight the fact that <NAME> appearing for the <ORG>, struck a refreshing note of forensic propriety in dissociating himself from supporting <ORG> action if there be any, which, in the court's view was seared with bad faith and argued that, for his part, the officers appear to have exercised power on the advice of the <ORG>'s legal remembrance without ill-will or affection. Counsel in court are 'robed' representatives, within the parameters of the adversary system, geared to the higher cause of justice, not amoral attorneys paid to ventriloquize the case of the principal. We cannot dismiss truth in paper- logged impatience but must try, with counsel's services, to discover the justice of the cause. So we proceed to the facts.

Punjab, the pride of the green revolution, is a great agricultural <ORG> and, naturally, grain markets are a developmental imperative. The whole litigation is about a piece of land sought to be taken by the <ORG> to build a new mandi. Way back in 1962, a site apparently best suited was selected in Qadian and the then Chief Minister, <NAME> laid the foundation stone, and a few poles erected there bear witness to this old ceremony. Notification under Sec. 4 and declaration under Sec. 6 were reportedly issued ten years ago (1969). But the very next year the proceedings were denotified and in 1971 the land of respondents 1 to 21 were notified. In Punjab, a province of peasant prosperity and private ownership, land is held dear even to the point of murder, and tragic factions fester round agriculture. Naturally, the land owners resisted and successfully impeached the acquisition on the ground of mala fides before <ORG>. This order of the court, surprisingly enough, proceeded on the admitted mala fides of the <ORG> and should have liberated this innocent piece of land from litigative laceration. But, after a long interval, the <ORG> chased the same land and rushed through acquisition proceedings a second time invoking emergency powers under Sec. 17 of the Land Acquisition Act . This too was assailed before <ORG> on the ground of perversion of <ORG> power to satisfy the malefic appetite of a particular person, not the legitimate statutory purpose. Struck down again by <ORG>, the <ORG> was chagrinned and, perhaps, encouraged by the fact that <ORG> dropped contempt proceedings, the jurisdiction under Art. 136 has been invoked by the Government of Punjab.

I have had the benefit of reading my learned brother's concise judgment. The reasons given there have my broad agreement.

Four issues may be formulated to focus specific attention.

1. What is mala fides in the province of exercise of power ?

2. Is the acquisition proceeding in the instant case bad for bad faith ?

3. Where, in the setting of Sec. 17 of the Act, do we draw the legal line between legitimate emergency power and illegitimate 'emergency excess' ?

4. On the facts, here, do we bastardize or legitimize the <ORG> action under challenge ?

First, what are the facts ? A grain market was the public purpose for which <ORG> wanted land to be acquired. Perfectly valid. Which land was to be taken ? This power to select is left to the responsible discretion of <ORG> under the Act, subject to Articles 14, 19 and 31, (then). The <ORG> is handcuffed in this jurisdiction and cannot raise its hand against what it thinks is a foolish choice. Wisdom in administrative action is the property of the <ORG> and judicial circumspection keeps the court lock-jawed save where power has been polluted by oblique ends or is otherwise void on well-established grounds. The constitutional balance cannot be upset.

The question, then, is what is mala fides in the jurisprudence of power? Legal malice is gibberish unless juristic clarity keeps it separate from the popular concept of personal vice. Pithily put, bad faith which invalidates the exercise of power-sometimes called colourable exercise or fraud on power and oftentimes overlaps motives, passions and satisfactions-is the attainment of ends beyond the sanctioned purposes of power by simulation or pretension of gaining a legitimate goal. If the use of the power is for the fulfillment of a legitimate object the actuation or catalysation by malice is not legicidal. The action is bad where the true object is to reach an end different from the one for which the power is entrusted, goaded by extraneous considerations, good or bad, but irrelevant to the entrustment. When the custodian of power is influenced in its exercise by considerations outside those for promotion of which the power is vested the court calls it a colourable exercise and is undeceived by illusion. In a broad, blurred sense, <NAME> was not off the mark even in <NAME> when he stated: "I repeat...that all power is a trust-that we are accountable for its exercise-that, from the people, and for the people, all springs, and all must exist".

Fraud on power voids the order if it is not exercised bona fide for the end designed. Fraud in this context is not equal to moral turpitude and embraces all cases in which the action impugned is to effect some object which is beyond the purpose and intent of the power, whether this be malice- laden or even benign. If the purpose is corrupt the resultant act is bad. If considerations, foreign to the scope of the power or extraneous to the statute, enter the verdict or impel the action, mala fides or fraud on power, vitiates the acquisition or other official act.

By these canons it is easy to hold that where one of the requisites of s. 4 or s. 6 , viz., that the particular land is needed for the public purpose in view, is shown to be not the goal pursued but the private satisfaction of wreaking vengeance, if the moving consideration in the selection of the land is an extraneous one, the law is derailed and the exercise is bad. No that this land is needed for the mandi, in the judgment of Government, but that the mandi need is hijacked to reach the private destination of depriving an enemy of his land through back- seat driving of the statutory engine ! To reach this conclusion, there is a big 'if' to be proved-if the real object is the illegitimate one of taking away the lands of the respondents 1 to 21 to vent the hostility of Respondent 22, under the mark of acquistion for the mandi.

This is a question of fact and <ORG>, twice over, within a period of seven years, held so, although the second time no specific finding of mala fides was made. I do not quite see how else the acquisition can fail and infer, not res judicata nor contempt of court but repetition of mala fide acquisition as the real ground behind <ORG>'s holding. This court does not upset a factual finding unless it is upset by perverse assessment, absence of evidence and the like. None such exists and I concur. But what have respondents 1 to 21 made out ? When power runs haywire under statutory cover, more needs to be said to make good the exposure. This takes me to a projection, in detail, on the screen of time, of the alleged politicking behind the taking of property challenged in this case.

We assume the facts, stated in the counter-affidavits, to the extent not expressly denied, especially because the 22nd respondent, <NAME>, has not cared to contradict the turpitude imputed to him, which is unfortunate. We draw tentative conclusions based on the averments without the advantage of the affected party's response.

Long ago in 1962, a site was chosen for a new grain market and the then Chief Minister, <NAME>, laid the foundation stone, and some surviving poles bear testimony to this ancient ritual. This spot belonged to a cousin of <NAME> and was eventually abandoned in favour of the lands of respondents 1 to 21. This venture of 1971 was shot down by judicial fire triggered by the admitted ground of mala fides. Years rolled by, but malice dies hard, if egged on by political scramble. So much so, the same lands were again acquired in 1977, dispensing with so much as a statutory enquiry, undeterred by the earlier decision of <ORG>. The respondents again assailed the acquisition as fuelled wholly by vendetta. <ORG> struck down the 'declaration' over again, and here we are with an application for leave to appeal against the adverse order.

We cannot appreciate the unusual step of quashing the acquisition twice over by <ORG> on the rare score of fraud on power unless we are instructed in the bitter longevity of election hostility and the gentle genuflexion of administrative echelons when political bosses express their wishes.

The version of the contesting respondents is that two political factions go into action in all elections in Quadian, led by Respondent 22, <NAME> on the one hand, and his rival <NAME>, supported by the other respondents, on the other. Party labels, where poll politics are personal, are less than borrowed apparel. <NAME> ran <ORG> and won a seat in <ORG> in 1962 in the teeth of hot contest by <NAME> and the respondents. This election had its impact on the mandi acquisition. The site where the foundation stone had been laid belonged to <NAME>'s cousin and this was the best of the four alternatives selected by <ORG>, the least suitable, in their opinion, being of the respondents 1 to 21. But should an M.L.A. oblige his cousin and crush his rival, according to poll dharma? We cannot answer but here <NAME>'s 'influence' postponed acquisition proceedings, notwithstanding the ceremonial stone. In 1967, again, elections came and <NAME> won on the <ORG> ticket. But when <ORG> formed the <ORG> <NAME> decided to serve the people as Minister and for that purpose transferred his politics from <ORG> to Akali. This ensured the safety of the cousin's land from the mandi peril. The Akali <ORG> fell in 1969 but he fought as Akali, won the seat and became 'Forest Minister'. The respondents, all the time, resisted him in vain. When 'President's Rule' came, statutory notifications were issued for acquisition of the first site. The mandi project remained frozen till then and showed signs of life during the short-lived President's Rule, only to be given up in 1970 when <NAME> became <ORG> Minister of <ORG>. He struck when the iron was hot by constituting <ORG> and appointing himself President thereof. The choice was made of the site which was allegedly the least suitable. Thus the axe fell on the respondents 1 to 21 and lest the take-over be delayed, even the S. 5A enquiry was scuttled by invoking the emergency powers under Sec. 17. At times, natural justice is the natural enemy of intolerant authority. Therefore, the judicial process, under Art. 226 , invalidated the acquisition on the ground of mala fides. Back as an M.L.A. in 1972 <NAME> nurtured the faction politics, and there is reference in the writ petition to a murder and other official interference which do not directly concern the case. He was detained and paroled, and the contestants swear that by political influence and use of relationship he revived the same acquisition once quashed by <ORG>. We skip many allegations of vice, of pressure, of defection as drawing red-herring across the trail. But the crux of the matter is that uncontradicted aspersions on <NAME> having pressured the political <ORG> to seize the contestants' land goes a long way to affirm <ORG>'s view, in the background of the long chronicle we have set out. The indefensible resort to Sec. 17 is evidence of the length to which the executive would go to come to terms with men wielding political power. No reason exists for us to grant leave in the case where factually <ORG> has found improper attempt to take a citizen's land. We need not record any positive finding. It is sufficient to state that no ground to grant leave has been made out.

The fourth point about the use of emergency power is well taken. Without referring to supportive case-law it is fundamental that com-

pulsory taking of a man's property is a serious matter and the smaller the man the more serious the matter. Hearing him before depriving him is both reasonable and preemptive of arbitrariness, and denial of this administrative fairness is constitutional anathema except for good reasons. Save in real urgency where public interest does not brook even the minimum time needed to give a hearing land acquisition authorities should not, having regard to Arts. 14 (and 19), burke an enquiry under Sec. 17 of the Act. Here a slumbering process, pending for years and suddenly exciting itself into immediate forcible taking, makes a travesty of emergency power.

No constituency in our poor country can afford Kilkenny cat politics and personality cult.

I dismiss the <ORG>'s petition.

<NAME>, J. I agree that the petition should be dismissed.

The original acquisition proceeding in respect of the land belonging to Respondents Nos. 1 to 21 was quashed by <ORG> under Article 226 of the Constitution on the finding that the action was vitiated by mala fides. A fresh attempt at acquiring the land was assailed by the said respondents and has been struck down by <ORG>. The petitioners now pray for special leave to appeal.

On a conspectus of the material on the record it does seem that the impugned acquisition proceeding cannot be sustained. There is reason to believe that the statutory power to acquire land has been misused to satisfy the personal ends of the respondent No. 22, an individual who appears to be not without considerable political influence. Despite an opportunity afforded to controvert the allegations made by the respondents Nos. 1 to 21, no attempt has been made by him to contradict the allegations. A counter affidavit has been filed in this Court on behalf of the petitioners, the State of Punjab and the Extra Assistant Colonization Officer, but the material portion of the counter affidavit has been verified by its deponent "to the best of my knowledge and belief as derived from official record". The land belonging to the respondents Nos. 1 to 21 was selected by a body described as <ORG>. There was also <ORG>. The deponent of the counter affidavit was not a member of either Board. He was not a participant in the deliberations which are said to have led to the selection of the land belonging to the said respondents. Whether or not the deliberations were effected by the influence or pressure of the respondent No. 22 is a matter to which the officials or members selecting the land could alone be privy. In the absence of any denial of the allegations made by the respondents Nos. 1 to 21 in the writ petition by a person having personal and direct knowledge in the matter, and having regard to the entire history of the case, it is difficult to resist the conclusion that the averments in the writ petition alleging mala fides must be accepted.

The petition is dismissed.

N.V.K. Petition dismissed.


PETITIONER: <NAME> & ORS. Vs. RESPONDENT: THE PUNA MUNICIPAL CORPN. & ANR. DATE OF JUDGMENT23/01/1995 BENCH: (K.RAMASWAMY & N. VENKATACHALA) ACT: HEADNOTE: JUDGMENT:

ORDER

1. This appeal by special leave arises from the order of the Single Judge of <ORG> in Special Civil Application No.2521 of 1978, dated December 20, 1978 wherein the learned Single Judge set aside the order of the Joint Judge, <NAME>, dated 29.8.1973 made in Misc. Appeal No.92 of 1973. The facts necessary for disposal of this appeal lie in a short compass.

2. The Poona Municipality has undertaken widening of the road to remove traffic congestion and initiated proceedings under s.4(1) of the Land Acquisition Act , 1894 for acquiring two storied building belonging to <NAME> at Kotwal Chowk. The Notification under s.4(1) was published in the Gazette in December 1966. The Land Acquisition Officer passed his award on December 14, 1970. Thereafter the compensation was deposited and paid to the owner. Pursuant thereto possession was taken on March 13, 1971 by the competent officer and handed over to the corporation. However, the earlier 24 appellants/tenants who entered into leave and licence agreements with the <ORG> were allowed to get into possession. After the expiry of the period of leave and licence, proceedings were initiated for eviction of the appellants and an order in that behalf came to be passed. Calling in question that order of eviction, they went in appeal and writ petition but were unsuccessful. Ultimately, this Court affirmed the order of eviction of the appellants. Subsequently, they filed Civil Suit No.590/73 in the Court of the Joint Civil Judge, Poona and sought perpetual injunction from dispossession and for ad interim injunction. The Civil Judge by his order dated 27.4.1973 refused to grant ad interim injunction. The Joint Judge, as stated earlier, on appeal under s.43(r) C.P.C. allowed the appeal and granted ad interim injunction pending disposal of the suit. <ORG> in the Special Civil Application under Art.227 of the Constitution, by its impugned order dated 20.12.1978 set aside the appellate order and confirmed that of the Civil Judge. Thus this appeal, by special leave.

3. <NAME>, the learned Senior counsel for the appellants contended that under s. 115 <ORG>, <ORG> has power of revision where the appeal is not provided for either to it or subordinate court. Since the Joint Judge had exercised the appellate power, by operation of s. 1  15(2) , the <ORG> was devoid of jurisdiction to exercise the revisional power. When statutory prohibition was im- posed by <ORG> which is more expeditious and efficacious remedy, the exercise of' jurisdiction by the <ORG> under Art.226 was not warranted. At this juncture it is necessary to point out that the <ORG> exercised its power under Art.227 and not either under Art.226 or under s. 115 <ORG>. Even otherwise the bar under s. 115(2) is to exercise revisional power where the party is provided with right of appeal to the <ORG> or <ORG> against the impugned order. It is not a bar to exercise revisional power under s. 115(1)  507 against appellate order. The ratio in <CITATION> , 1987 (1) SCR 485, is that no second revision under s. 1  15(1) would lie against revisional order of <ORG>.

4. He further contended that the exercise of power under Art.226 is only discretionary; the appellate Judge has gone into the questions of fact and law; the exercise of power under Art.226 is not an appellate power but only one of correcting errors of jurisdiction. Appellate Judge ex- haustively dealt with all the points raised by the appellants, it is one of taking an alternative view by <ORG> to the one taken by the appellate Judge. <ORG> in that situation was not justified in interfering with the order of the appellate Judge, in particular, when scope of the revisional power tinder s. 1 15 CPC itself is very rigid. Even in equity the appellants are entitled to remain in possession since they have been continuing under the respondents since 1971 uninterruptedly and they should be allowed to continue till the disposal of the suit by giving suitable directions for expeditious trial. He also contended that in view of the resolutions passed by <ORG> on November 11, 1972 and November 29, 1972, suitable direction may be given to the Municipality to reconsider the matter whether the building is still needed for widening the road and based thereon, they could take appropriate steps or to provide alternative shops.

5. <NAME>, the learned Senior counsel appearing for the respondents, on the other hand contended that the need for widening the road still subsists and that the <ORG> having taken possession of the building and the order of eviction passed against the appellant having been allowed to become final by disposing the S.L.P. by this Court, the appellate Judge had committed palpable error of law in interfering with the order. He also contended that the Civil Suit itself is not maintainable as being barred by the provisions in the <ORG> Act and C.P.C.

6. Having heard the learned counsel for the parties, the question arises whether the appellant had shown that there was a prima facie case, triable issue and balance of convenience for granting ad interim injunction pending the suit. It is an admitted position that after the award was made by the Collector, possession was taken. Thereafter, the appellants entered into leave and licence with the <ORG>. On expiry thereof, the <ORG> had initiated proceedings for ejectment of the appellants and the order of ejectment had become final when the SLP was dismissed by this court. Thereafter, the appellants had no legal right to remain in possession of the shops. The question then is, whether an injunction could be granted in favour of the persons who remain in possession of the property. After the order of ejectment had become final, their continuance will be only unlawful possession and that therefore strong prima facie case need to be made out. Further question is, whether an injunction could be granted against the rightful owner in favour of the persons Who remain in unlawful possession. The appellate Court has not gone into the pertinent aspects of the matter. The founda- tion for action is based on the subsequent reservation of the <ORG>.

7. <CITATION> , (1993)3 SCC 161, a Bench of three Judges of this Court held that "a party is not entitled to an order of injunction as a matter of course. Grant of injunction is within the discretion of the court and such discretion is to be exercised in favour of the plaintiff only if it is proved to the satisfaction of the court that unless the defendant is restrained by an order of injunction, an irreparable loss or damage will be caused to the plaintiff during the pendency of the suit. The purpose of temporary injunction is, thus, to maintain the status quo. The court grants such relief according to the legal principles - ex debito justifiae. Before any such order is passed the court must be satisfied that a strong prima facie case has been made out by the plaintiff including on the question of maintainability of the suit and the balance of convenience is in his favour and refusal of injunction would cause irreparable injury to him. Further the court should be always willing to extend its hand to protect a citizen who is being wronged or is being deprived of a property without any authority in law or ,without following the procedure which are fundamental and vital in nature. But at the same time the judicial proceedings cannot be used to protect or to perpetuate a wrong committed by a person who approaches the court.

8. <CITATION> , (1992)1 SCC 719, a Bench of two Judges (in which <NAME>, J. was a Member) of this Court held that the phrases "prima facie case", "balance of convenience" and "irreparable loss" arc not rhetoric phrases for incantation but words of width and elasticity, intended to meet myriad situations presented by men's ingenuity in given facts and circumstances and should always be hedged with sound exercise of judicial discretion to meet the ends of justice. The court would be circumspect before granting the injunction and look to the conduct of the party, the probable injury to either party and whether the plaintiff could be adequately compensated if injunction is refused. The existence of prima facie right and infraction of the enjoyment of his property or the right is a condition for the grant of temporary injunction. Prima facie case is not to be confused with prima facie title which has to be established on evidence at the trial. Only prima facie case is a substantial question raised, bona fide, which needs investigation and a decision on merits. Satisfaction that there is a prima facie case by itself is not sufficient to grant injunction. The court further has to satisfy that noninterference by the court would result in "irreparable injury " to the party seeking relief and that there is no other remedy available to the party except one to grant injunction and he needs protection from the consequences of apprehended injury or dispossession. Irreparable injury, however, does not mean that there must be no physical possibility of repairing the injury but means only that the injury must be a material one, namely one that cannot be adequately compensated by way of damages. The balance of convenience must be in favour of granting injunction. The court while granting or refusing to grant injunction should exercise sound judicial discretion to find the amount of substantial mischief or injury which is likely to be caused to the parties if the injunction is refused and compare it with that which is likely to be caused to the other side if the injunction is granted. If on weighing competing possibilities or probabilities of likelihood of injury and if the court considers that pending the suit, the subject matter should be maintained in status quo, an in-

junction would be issued. The court has to exercise its sound judicial discretion in granting or refusing the relief of ad interim injunction pending the suit."

9.It is settled law that no injunction could be granted against the true owner at the instance of persons in unlawful possession.It is true that the appellants placed reliance in their plaint on resolutions passed by the <ORG>. on 11.11. 72 and 29.11.72. A reading of those resolutions would prima facie show that possession would be taken where the acquisition proceedings have become final and land acquisition proceedings would not be pursued where award has not been made as on the date of the resolutions. In this case, since the acquisition proceedings have become final, then necessarily possession has to be taken by the <ORG> for the public purpose for which the acquisition was made. In that context the question arises whether the appellants can seek reliance on two resolutions. They furnish no prima facie right or title to the appellants to have perpetual injunction restraining the <ORG> from taking possession of the building. The orders of eviction were passed by due process of law and had become final. Thereafter no right was created in favour of the appellants to remain in possession. Their possession is unlawful and that therefore, they cannot seek any injunction against the rightful owner for evicting them. There is thus neither balance of convenience nor irreparable injury would be caused to the appellants.

10. In <NAME>'s "Law Relating to Injunctions, Second revised and enlarged edition, 1992, at page 56 in para 30.01, it is stated that "an injunction will only be granted to prevent the breach of an obligation (that is a duty enforceable by, law)existing in favour of the applicant who must have a personal interest in the matter. In the first place, therefore, an interference by injunction is founded on the existence of a legal right, an applicant must be able to show a fair prima facie case in support of the title which he asserts". At page 80 in para 33.02, it is further stated that "if the court be of opinion that looking to these principles the case is not one for which an injunction is a fitting remedy, it has a discretion to grant damages in lieu of an injunction. The grounds upon which this discretion to grant damages in lieu 'of an injunction should be exercised, have been subject of discussion in several reported Indian cases". At page 83, it is stated that "the court has jurisdiction to grant an injunction in those cases.where pecuniary compensation would not afford adequate relief, The expression "adequate relief" is not defined, but it is probably used to mean - such a compensation as would, though not in specie, in effect place the plaintiffs in the same position in which they stood before. The determination of the question whether relief by injunction or by damages shall be granted depends upon the circumstances of each case.

11.In "Law of Injunctions" by <ORG>, at page 64, it is stated that "an application for temporary injunction is in the nature of a quia timet action. Plaintiff must, therefore, prove that there is an imminent danger of a substantial kind or that the apprehended injury, if it does come, will be irreparable. The word "imminent" is used in the sense that the circumstances are such that the remedy sought is not premature. The degree of probability of fu- ture injury is not an absolute standard: what is aimed at is justice between. the parties, having regard to all the relevant circumstances". At page 116, it is also stated that "in a suit for a perpetual or mandatory injunction, in addition to, or in substitution for, the plaintiff can claim damages. The court will award such damages if it thinks fit to do so. But no relief for dam- ages will be granted, if the plaintiff has not claimed such relief in the suit".

12. In "Modem Law Review", Vol 44, 1981 Edition, at page 214, <NAME> stated that "a plaintiff may still be de- prived of an injunction in such a case on general equitable principles under which factors such as the public interest may, in an appropriate case, be relevant. It is of interest to note, in this connection, that it has not always been regarded as altogether beyond doubt whether a plaintiff who does thus fail to substantiate a claim for equitable relief could be awarded damages". in "The Law Quarterly Review" Vol 109, at page 432 (at p.446), <NAME> under Title "Mareva Injunctions and Security for Judgment in a Framework of Interlocutory Remedies" stated that "if the plaintiff is likely to suffer irreparable or uncompensable damage, no interlocutory injunction will be granted, then, provided that the plaintiff would be able to compensate the defendant for any unwarranted restraint on the defendant's right pending trial, the balance would tilt in favour of restraining the defendant pending trial. Where both sides are exposed to irreparable injury pending trial, the courts have to strike a just balance". At page 447, it is stated that the court considering an application for an interlocutory injunction has four factors to consider: first, whether the plaintiff would suffer irreparable harm if the injunction is denied; secondly, whether this harm outweighs any irreparable harm that the defendant would suffer from an injunction; thirdly, the parties' relative prospects of success on the merits; fourthly, any public interest involved in the decision. The central objective of interlocutory injunctions should therefore be seen as reducing the risk that rights will be irreparably harmed during the inevitable delay of litigation".

13. In "Injunctions" by <NAME>, <ORG>, at page 22, it is stated -that "if the plaintiff obtains an interlocutory injuntion, but subsequently the case goes to trial and he fails to obtain a perpetual order, the defendant will meanwhile have been restrained unjustly and will be entitled to damages for any loss he has sustained. The practice has therefore grown up, in almost every case where an interlocutory injunction is to be granted, of requiring the plaintiff to undertake to pay any damages subsequently found due to the defendant as compensation if the injunction cannot be justified at trial. The undertaking may be required of the plaintiff in appropriate cases in that behalf". In "Joyce on Injunctions Vol. 1 in paragraph 177 at page 293, it is stated "Upon a final judgment dissolving an injunction, a right of action upon the injunction bond immediately follows, unless the judgment is superseded. A right to damages on dissolution of the injunction would arise at the determination of the suit at law".

14. It would thus be clear that in a suit for perpetual injunction, the court would enquire on affidavit evidence and other material placed before the court to find strong prima facie case and balance of convenience in favour of granting injunction otherwise irreparable damage or damage would ensue to the plaintiff The Court should also find whether the plaintiff would adequately be compensated by damages if injunction is not granted. It is common experience that injunction normally is asked for and granted to prevent the public authorities or the respondents to proceed with execution of or implementing scheme of public utility or granted contracts for execution thereof Public interest is, therefore, one of the material and relevant considerations in either exercising or refusing to grant ad interim injunction. While exercising the power of discretion, the court should also adopt the procedure of calling upon the plaintiff to file a bond to the satisfaction of the court that in the event of his failing in the suit to obtain the relief asked for in the plaint, he would adequately compensate the defendant for the loss en- sued due to the order of injunction granted in favour of the plaintiff. Even otherwise the court while exercising its equity jurisdiction in granting injunction as also juris- diction and power to grant adequate compensation to mitigate the damages caused to the defendant by grant of injunction restraining to proceed with the execution of the work etc. which is retrained by an order of injunction made by the court. The pecuniary award of damages is consequential to the adjudication of the dispute and the result therein is incidental to the determination of the case by the court. The pecuniary jurisdiction of the court of first instance should not impede nor a bar to award damages beyond its pecuniary jurisdiction. In this behalf, the grant or re- fusal of damages is not founded upon the original cause of action but the consequences of the adjudication by the con- duct of the parties, the court gets inherent jurisdiction in doing ex debito justifiae mitigating the damage suffered by the defendant by the act of the court in granting injunction restraining the defendant from proceeding with the action complained of in the suit. It is common knowledge that injunction is invariable sought for in laying the suit in a court of lowest pecuniary jurisdiction even when the claims are much larger than the pecuniary jurisdiction of the court of first instance, may be, for diverse reasons, Therefore, the pecuniary jurisdiction is not and should not stand -an impediment for the court of first instance in determining damages as the part of the adjudication and pass a decree in that behalf without relegating the parties to a further suit for damages. This procedure would act as a check on abuse of the process of the court and adequately compensate the damages or injury suffered by the defendant by act of court at the behest of the plaintiff.

15. Public purpose of removing traffic congestion was sought to be served by acquiring the building for widening the road. By orders of injunction, for 24 years the public purpose, was delayed. As a consequence execution of the project has been delayed and the costs now stand mounted. The courts in the cases where injunction arc to be granted should necessarily consider the effect on public purpose thereof and also suitably mould the relief In the event the plaintiffs losing ultimately the suit, they should necessarily bear the consequences. namely, escalation of the cost or the damages the <ORG> suffered on account of injunction issued by the courts. Appellate court had not adverted to any of the material aspects of the matter. Therefore, <ORG> has rightly, though for different reasons, dissolved the order of ad interim injunction. Under these circumstances, in the event of the suit to be dismissed while disposing of the suit the trialcourt is directed to assess the damages and pass a decree for recovering the same at pro rata against the appellants.

16. The appeal is accordingly dismissed with costs.


REPORTABLE IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 580 OF 2001 State of A.P. ...Appellant Versus P. Satyanarayana Murthy ...Respondent J U D G M E N T

Dr. <NAME>, J.

1. Challenge in this appeal is to the judgment of a learned Single Judge of <ORG> directing acquittal of the respondent who faced trial for alleged commission of offence punishable under Section 13(2) read with Section 13(1)(d)(i) of the Prevention of Corruption Act, 1988 (in short the `Act'). <ORG> i.e. <ORG>, Hyderabad, found the accused guilty. He was convicted and sentenced to two years rigorous imprisonment under each count. Both the sentences were directed to run concurrently. He was also fined with Rs.1000/- under each count with default stipulation.

2. Background facts in a nutshell are as follows:

One Gande Vaikuntam (PW-1) was sanctioned a loan of Rs.15,000/- in the year 1986 by <ORG>, Sangareddy. But due to some unavoidable circumstances he could not avail the facility. After about three years between April and May 1989 he approached the respondent-accused officer who was the Development Officer of <ORG> and requested him for revival of the lapsed loan. According to the defacto complainant, respondent dodged him on 25th May, 1989 when he went to his office at Sangareddy and asked him to see him in <ORG> of <ORG> at Hyderabad on 27th May, 1989. Accordingly, the complainant and one <NAME> (PW-2) met the respondent at <ORG> in Hyderabad on 27.5.1989. The respondent demanded bribe of Rs.500/- from him so that his loan case could be revived. He also told PW-1 to meet him on 31st May, 1989 at 8.00 a.m. at his residence. PW-1 approached the Dy. Superintendent of Police, <NAME> and gave a report. On 31.5.1989 at about 7.25 a.m. PW-1 met the respondent who demanded and accepted the sum of Rs.500/- from him in presence of <NAME> Reddy and <NAME>. The respondent was caught red handed and bribe money was recovered in presence of mediators from the respondent. To prove the accusations the prosecution examined eight witnesses and 31 exhibits were exhibited. Accused examined one witness and exhibited 2 exhibits.

<ORG> found the evidence of PWs 1 and 2 to be clear and cogent and accordingly recorded the conviction and sentence as afore- stated. In appeal before <ORG> it was submitted that the accusations have not been established so far as the respondent is concerned. <ORG> held that according to the evidence of prosecution the application given by PW-1 was found in the brief case of the accused person. But the High court observed that normally one would expect that if the accused officer kept the application in the brief case he would also keep the money in the brief case and it is not expected that he would keep the money on a tea-pot and the application in the brief case. This according to <ORG> created doubt whether any money was demanded and received by the accused person. It was further observed that the evidence of PW-1 was not corroborated. Although there was an independent witness available, he was not examined. <ORG> also observed that non examination of one <NAME> rendered the prosecution version fragile. Accordingly, the conviction was set aside and acquittal was directed.

Questioning the acquittal, the State of Andhra Pradesh has filed this appeal.

3. Learned counsel for the appellant-State submitted that <ORG> by a cryptic order has set aside the well reasoned judgment of the trial Court. Merely because some persons were not examined, same cannot be a ground to discard the evidence of a reliable witness. It is pointed out that the bribe money purported to have been given by <NAME> was also seized. The Investigating Officer had clearly stated the reasons for the non examination of <NAME>. It was stated that he had joined naxalites. The presumption available under Section 20 of the Act was not kept in view by <ORG>. It is submitted that <ORG>'s conclusions are based on surmises and, therefore, the judgment of acquittal cannot be maintained.

4. Learned counsel for the respondent on the other hand submitted that <ORG> has analysed the evidence in great detail to find that the prosecution version is not believable. That being so, there was no scope for any interference in this appeal.

5. It is to be noted that the evidence of PW-1 has not been discarded by <ORG>. But it is observed by <ORG> that there was no corroboration to the evidence of PW-1 and therefore it recorded the order of acquittal. The evidence of PW-1 does not suffer from any infirmity. Mere non- examination of any other person would not render his evidence suspect. The IO has categorically stated that <NAME> was not available to be examined as a witness. Further, there was no suggestion given by the accused that money was forced on his hands and thereafter he put it on the table. No such suggestion was given and for the first time during examination under Section 313 of the Code of Criminal Procedure, 1973 (in short the `Code') such a stand was taken. <ORG> has also not considered the effect of the presumption flowing from Section 20 of the Act. It is not understood as to the basis on which <ORG> found that accused would not put the application form and the money in different places. The conclusion has no basis. The accused did not dispute that the application form (Ext.P5) was found in a brief case. In fact the bribed money from <NAME> was also seized. It has been clearly indicated by the witness that the money given by PW-1 and money given to <NAME> were kept side by side and were not mixed up. In the present case, <ORG> had elaborately dealt with the evidence to record conviction. The High court has not indicated any reason as to how the conclusions of <ORG> are wrong. In any event, <ORG> by a cryptic conclusion held that the evidence led was not sufficient. As noted above, reasons for <NAME>'s non examination has been disclosed by the prosecution.

6. Above being the position, the judgment of <ORG> is clearly unsustainable and set aside. Considering the background facts, one year custodial sentence with fine of Rs.1,000/- as was imposed by <ORG> are imposed. The respondent shall surrender to custody forthwith to serve the remainder of sentence.

7. The appeal is allowed to the aforesaid extent.

.................................J.

(Dr. <NAME>) .................................J.

(P. SATHASIVAM) .................................J.

(<ORG> ALAM) New Delhi October 3, 2008


JUDGMENT <NAME>, C.J.

1. The question referred to <ORG> arises under Article 180 of the Limitation Act .

2. A person, who purchased certain properties at a <ORG> auction in execution of his own decree on the 25th of March 1913, applied for delivery of possession on the 19th of February 1917. An order confirming the sale was made on the 26th of April 1913, but on the 3rd of January 1914, that is more than 30 days afterwards, an application was made on behalf of the judgment-debtor for the setting aside of the sale. That application was disposed of by the <ORG> of First Instance on the 25th of June 1915, the <ORG> setting aside the sale in respect of some of the items and upholding it as regards the other items. That order was appealed from and the Appellate <ORG> dismissed the appeal on the 13th of May 1916.

3. It will thus be seen that the application for delivery of possession of the property would be barred under Article 180 if the time of 3 years allowed by the second column be reckoned from the 26th of April 1913 when the sale was confirmed under Rule 92 of Order XXI of the Civil Procedure Code no application for setting aside the sale having been made by that time; but it would be within time if the period of limitation commenced on the 25th June 1915, the date of the order adjudicating upon the application made under Rule 90 to set aside the sale on the ground of irregularity or fraud by which the sale as regards some of the items was set aside and the sale as regards the other items was upheld.

4. There can be no doubt that Article 180 applies to cases where the sale is confirmed and thereupon becomes absolute under the provisions of Rule 92. That rule contemplates that such an order is not to be made until the application to set aside the sale under Rule 89 or 90 or 91 if any, has been disposed of and disallowed. The question under reference would hardly arise in cases where the application to set aside the sale is made in the ordinary way within the period of 30 days under Article 166. The difficulty has evidently arisen because, no application to set aside the sale having been made within 30 days, the <ORG> had in the usual course made the order confirming the sale.

5. The question then is, when the <ORG> entertains an application to set aside the sale after the order confirming the sale had been made but before the period of 3 years allowed to the purchaser for applying for delivery of possession has expired, whether time must be reckoned against the applicant from the date of the order of confirmation of sale, or whether that order should be treated as not having the effect of making the sale absolute within the meaning of Article 180 but that the sale should be deemed to have so become absolute from the date when the application for setting it aside was disposed of. I do not think the fact that the sale was set aside in respect of some of the items included therein and upheld as regards the other items should make any difference as to the application of Article 180 for we are not concerned with the properties the sale of which has been set aside and as regards the rest possession of which alone is sought, the point for decision is whether the entertainment of the application to set aside the sale had or had not the effect of preventing the sale becoming absolute within the intendment of Article 180. Even without the help of the Privy Council rulings which I shall presently notice, I should answer, that in the given circumstances, the sale did not become absolute until the petition made to set it aside had been disallowed. Rule 92 has primarily in contemplation cases where the application to set aside the sale is made within the limit of 30 days allowed by the law so that any order confirming the sale would be ordinarily made after the disposal of such applications. But if the <ORG> in this case was justified--and I take it that it was--in entertaining the application to set aside the sale after it had made the order confirming the same, can it be said that, whatever be the result of the application, the order confirming the sale remained effective so as to make the sale absolute from the date on which it was drawn up? To my mind, obviously not. The effect of entertainment of the application to set aside the sale after the order of confirmation must, having regard to the intention of the legislature as disclosed in this rule and quite apart from any general theory in such connections, be to render the order ineffective so as to make the sale absolute. If we were to proceed upon an absolutely literal interpretation of the language of Rule 92 without paying due regard to the intention of the legislature, this case would have to be treated as lying outside that rule, for it requires that the order of confirmation should be made after the disposal of any application to set aside the sale. If so treated there would be no difficulty in the application of Article 180. Whether it is the practice to issue a second certificate on the disposal of such an application or not cannot, to my mind, affect the application of Article 180; but I should suggest that a fresh certificate ought to be issued, if not in all cases, at least in those cases where the sale is only partly upheld as the result of an application made to set it aside after the passing of the order confirming the sale.

6. Upon a proper interpretation, therefore, of Article 180 read with Rule 92 of Order XXI, Civil Procedure Code, I should hold that, where an application is made for delivery of possession of property sold in execution of a decree, the sale does not become absolute within the meaning of the third column of Article 180 until the application made to set aside the sale under Rule 89 or 90 or 91 has been disallowed and the sale upheld, although an order confirming the sale had been passed before the application to set aside the sale was made. The question referred to <ORG>, I may mention, is framed in the form as it is, apparently with a view to ascertain the scope and effect of certain rulings of <ORG> which have latterly been the subject of much discussion in this Court. But I do not feel myself bound by the frame of the question to state my conclusion as to the application of the Article 180 to circumstances such as arose in this case with reference only to the mode of computation mentioned in the question.

7. Of the <ORG> rulings, the one that has the closest application to the facts of this case is that of <CITATION> (1896) I.L.R. 23 C. 775. There stating shortly the effect of the judgment of <ORG> as given in the head note, <ORG>, discharged an order of the Commissioner, dated January 25th, 1884, which had confirmed a sale by the Collector in 1882, but afterwards on August 21st, 1886, discharged its own order and revived that of the Commissioner. It was held that the confirmation of sale dated only from the last order of August 21st, 1886, within the meaning of Article 12 of Act XV of 1877, which provides one year, for a suit to set aside a sale for arrears of <ORG>, or for any demand recoverable as such arrears, from the date on which the sale is confirmed, or would otherwise have become final and conclusive had no such suit been brought. At page 785 their Lordships say that they did not base their decision on the provision of Section 14 of the Limitation Act which provides for the exclusion of the time of proceeding bona tide in <ORG> without jurisdiction, but because they were of opinion "that there was no final, conclusive and definitive order confirming the sale, while the question whether the sale should be confirmed was in litigation, or until the order of the Commissioner of the 25th January 1884 became definitive and opera-tive by the final judgment of <ORG> on the 21st August 1886, or (in other words) that for the purpose of the law of limitation there was no final or definitive confirmation of the sale until that date."

8. I do not think that much light would be obtained over the present question by discussing in 'detail the other rulings of <ORG> cited before us a summary of which is set out in the Order of Reference and which I also had the occasion to discuss previously in Secretary of <ORG> v. Raja Vadreva Ranganayakamma A.S. Nos. 113 and 402 of 1917. No doubt there are general observations in some of the cases such as <NAME> v. <NAME> (1888) I.L.R. 11 A. 47 at 56 where it is stated, "It would be an inconvenient state of the law if it were found necessary for a man to institute a perfectly vain litigation under peril of losing his property if he does not, or that the right of plaintiffs to bring an action to recover certain property would be suspended because of certain intermediate litigation (See <NAME> v. <NAME> (1907) I.L.R. 35 C. 209 and <NAME> v. <NAME> (1916) I.L.R. 43 C. 660) in which his title to the property happened to be under investigation. But it is hardly to be inferred from such observations that <ORG> intended to lay down any rule or rules for exclusion of time other than "those mentioned in various sections of the Limitation Act , such as 12, 14 etc. Or that when time has once begun to run, it will be, suspended otherwise than according to the provisions of Section 9 or any other similar provision of the Limitation Act itself. In <NAME> v. <NAME> 12 M.I.A. 244 their Lordships had to determine when the cause of action accrued with reference to Section 32 of Act. X of 1859 whether at the end of each fasli year when the rent became due or on the date of the decree reversing the auction sale of the Putnee Talook belonging to the plaintiff <NAME>, and they decided in favour of the date of the decree reversing the auction sale. I do not see that any general principle of interpretation or application of the Limitation Act can be deduced from this decision which would be of any guidance in the present case. In <NAME> v. <NAME> (1888) I.L.R. 11 A. 47 in a suit for specific performance for sale of land, it was ruled that the plaintiff's cause of action for recovering the debt which was the consideration for the agreement for sale which failed, arose on the date the decree refusing specific performance was passed, because a new obligation was imposed on the defendant by that decree. The cases in <NAME>. v. <NAME> (1903) I.L.R. 25. A. 618 and <CITATION> (1906) I.L.R. 28 A. 466 were also of a similar nature. And in all these cases the article tinder consideration was No. 97 of Act 1877 which was applicable to suits for money paid upon an existing consideration which afterwards failed. In Rangayya Appa Row v. <NAME> (1903) I.L.R. 27. M. 143 <ORG> held that until the puttah was settled under the special provision of the Local Act VIII of 1865, time did not run, but that limitation was to be computed only from the date of the final decree determining the rent. I must however observe that it would almost look that in my judgment in Secretary of <ORG> v. <NAME> 113 and 402 of 1917. I tried to deduce from these cases a principle of general and unlimited application to the effect that where the rights of the parties have been subjected to determination by the <ORG>, it is from the date of the determination of such rights the limitation should be computed. But on further consideration I am persuaded that any such deduction would be unjustified, if it be meant thereby to introduce a rule of exclusion or suspension of time covering a larger ground than that traversed by Sections 12 , 14 , 15 , 16 , 19 and other similar provisions of the Limitation Act . I need hardly say that I do not desire to express any opinion on the question of limitation involved in the Appeals Nos. 113 and 402 of 1917 as a Letters Patent Appeal is now pending from my judgment. But as I have already suggested, it is not necessary to attempt to deduce any rule of general application in order to answer the question which arises in this case and that the answer, as I have stated, should be that time should be computed from the date of the order disallowing the petition to set aside the sale and not from the date of confirmation passed before the application to set aside the sale was made.

Oldfield, J.

9. The question I propose to answer is that which has been referred and not any other, which may appear to afford a ground of disposal in the appeal, in which the reference has been made.

10. That question is whether the existence of the cause of action for an application for delivery is suspended during the pendency of proceedings for the setting aside of the sale and I do not understand it as raising the distinct question whether the order of confirmation, which had been passed in the case before the referring Judges, had been deprived of the finality which it originally possessed. The distinction is clearly marked in my referring order by the reference to the judgment of <NAME>, J., in <CITATION> (1917) 33 M.L.J. 46 and I propose to adhere to it.

11. The conflict we have to resolve is between, on the one hand the unrestricted language of Sections 3 and 9 , Limitation Act , which has more than once, as the referring order of <NAME> J., shows, been regarded as subject only to the exceptions allowed by some specific provision of law, and on the other certain decisions of <ORG> and the language used in them, which are relied on as involving the existence of an equitable power to relax the provisions of the Act in such cases as the one before us.

12. It is unnecessary to extract the sections of the Act or to insist on their unrestricted character except by pointing out, what will be material in the sequel, that Section 3 is affected by Section 14 in the case of an application, only when the applicant has been prosecuting, not when, as in the case under reference, he has been on his defence, in another proceeding. That is involved by the reference in Section 14 for prosecution in good faith, by the terms of explanation II and by the absence of any reason for supposing that a change in the law was intended when the clear language in the corresponding Section of the former Act XV of 1877 Vas abandoned. Subject however to this, Sections 3 and 9 are comprehensive. In order to evade them, reliance has been placed on decisions of <ORG>, the effect of which was stated in the recent judgment in <NAME> v. Vannilinga Pillai C.M.A No. 355 of 1915. to which <NAME> J., was a party, as being that " if circumstances exist, which would render a suit or application infructuous, a party should not be compelled to institute it, until the impediment in the way is removed." It is for us to decide whether this general principle can be deduced from the cases relied on.

13. Those cases have been referred to in my order of reference as falling into three classes; and I adhere to that classification in supporting the conclusion, which the fuller argument we have now heard in my opinion entails, that the proceedings in each case were really regarded as in time with reference, not to any extension of the period available for taking them, but to the adoption of a starting point for limitation, which was discovered, either where none had been available before or in supersession of one already in existence. This is, if I understand the opinion to be given by <NAME> J., correctly, in accordance with the view which he would take although I should respectfully describe it as putting a more accurate, not a more liberal, construction on column 3 of the schedule.

14. Thus in the first class of cases referred to, those in which the plaintiff, after claiming one remedy in good faith, but unsuccessfully, sought another to which his right was ascertained in his previous proceedings, the decision in <NAME> v. <NAME> (1888) I.L.R. 11 A. 47 was based statedly on the fact that from the date, on which an agreement to convey property in satisfaction of a debt was held unenforceable, a new liability for money paid on a consideration which failed was imposed on the debtor in supersession of his liability under the agreement or for the debt; and the dictum relied on here, " It would be an inconvenient state of the law if it were found necessary for a man to institute a perfectly vain litigation on pain of losing his property " can be fairly applied, as stating not any general principle, but merely an argumentum ab inconvenient in connection with the reference immediately preceding it to the period during which the decree of <ORG> upholding the agreement was in force. This is in fact the explanation of the decision, which was given in <NAME> v. <NAME> (1906) I.L.R. 28 A. 466 and approved by <ORG> in <NAME> v. <NAME> (1903) I.L.R. 25 A. 618 and <NAME> v. <NAME> (1908) I.L.R. 31 A. 68.

15. The next class of cases comprised those in which the plaintiff, having obtained all he wanted in previous proceedings, had, when those proceedings were set aside, to take fresh ones in connection with which limitation was pleaded; and the decisions in his favour are easily intelligible with reference to the date of his deprivation of the relief he had secured. Thus in <NAME> v. Shooshee Mokhee Burmonia (1868) 12 M.I.A. 244 the plaintiffs claim having, as the <ORG> pointed out, once been satisfied by the sale, which was afterwards set aside, it was only when it ceased to be satisfied that the cause of action afterwards sued on became available; and, although Sir <NAME> in <CITATION> (1882) I.L.R. 9 C. 255 referred to this case, as establishing an exception to the operation of the statute, and in explaining it spoke of the "period of time in which the statute might not run" he described the exception as "rather apparent than real" and the whole tenor of his Judgment was consistent with the view I am taking. Another case in this class <NAME> v. <NAME> (1907) I.L.R. 35 C. 209 calls for notice, because there is no doubt that the judgments in it contain language, in which a suspension of the running of time is referred to. The facts however need cause no difficulty. For they were that certain defendants in a suit for possession and account in respect of a share, from which the plaintiff's alleged dispossession, succeeded in obtaining a decree for ascertainment of their own share; and the suit for such ascertainment; which they had to bring when the decree in their favour was set aside, was held to be in time, as it might be consistently with the principle under discussion, on the ground that their cause of action arose, only when they were deprived of the relief they had once obtained. In <ORG> however, although the judgment mentions the inability of these parties, so long as the decree in their favour subsisted, " to institute a fresh suit for the object, which had been successfully attained, " their case is described as having been that their rights were suspended; and <NAME> v. <NAME> (1859) 7 M.I.A. 323and the observations of Lord <NAME> in <NAME> v. <NAME> (1801) 6 Ves. 73 are referred to the former dealing with the existence of sufficient cause within the meaning of Bengal Reg. III of 1873, Section 14 and the latter with the English principle reproduced in our Section 15(1) . The Judicial <ORG> also, in shortly approving <ORG>'s decision, referred to the suspension of limitation and the deduction of the period spent in the previous litigation. <ORG> however had relied on <NAME> case (1868) 12 M.I.A. 244 and the Judicial <ORG> had also referred to the existence of an effective decree, which was capable of being enforced until set aside; and in these circumstances these judgments indicate only that, although the existence of alternative grounds for their conclusions was present to the minds of the Courts concerned, it was not thought worth while to maintain the distinction between them for the purpose in hand. In the last case of this kind to which I need refer <CITATION> (1896)I.L.R. 23 C. 775 the ground of decision is clearly not any suspension of the right to sue. For the Judgment statedly expresses no opinion on the applicability of Section 11 of the Act and is based on the absence of any sale, which the plaintiff could have sued to have set aside, until the cancellation order obtained by him in good faith had been displaced.

16. In the remaining classes of cases the plaintiff's claim depended on the principle stated in the judgment of <NAME>, J. in <NAME> v. <NAME> (1877) I.L.R. 3 C. 30 as deducible from <NAME> case (1865) 10 M.I.A. 203 that on the reversal of the main decree, which was the basis of subsequent decrees, the latter are superseded and a suit lies to recover what has been wrongfully paid under them. This principle is of course not one of limitation and its exact scope may come under discussion in another case now pending, to which the reference is made in the judgment of the learned Chief Justice. But <NAME> v. <NAME> (1877) I.L.R. 3 C. 30 is material at present, because consistently with it when the limitation applicable to the suit it authorises was considered in <NAME> v. <NAME> (1878) 2 C.L.R. 354 (it was held that time ran from the date of the superseding judgment under Article 120 , not from the erroneous receipt of the payment under Article 62 ) and no provision relating to suspension was relied on. The decision in <CITATION> (1889) I.L.R. 13 M. 437 proceeded on similar grounds; and both authorities exemplified the conclusion reached in connection with the first class of cases already dealt with, that an accurate application of the third column of schedule 1 rather than reliance on suspension of the running of time, is the means by which apparent hardship to plaintiffs should be avoided.

17. In the foregoing representative instances from each of the classes of cases referred to in argument have been dealt with and the result is that none supports the general equitable principle, for which the respondents before us contend. It has been pointed out that Section 14 of the Limitation Act is inapplicable to the case submitted to us and no other positive provision has been relied on. I would therefore answer the question referred in the negative, that in the circumstances stated, if time has begun to run, its running is not suspended <NAME> J.

18. The question referred to <ORG> is whether the existence of the cause of action for an application for delivery to which Article 180 of schedule 1 of the Limitation Act applies, is suspended during the pendency of the proceedings for the setting aside of the sale.

19. The relevant dates are as follows:

(a) the court auction sale took place in March 1913;

(b) the sale was confirmed on the 26th April 1913;

(c) application to set aside the sale was made on the 3rd January 1914;

(d) the sale was set aside as regards the interest of some of the judgment-debtors, and it was upheld as regards the others on 25-6-1915;

(e) the application for possession of the interests of the judgment debtors the sale of whose interests was finally confirmed on 25-6-1915 was made on 19-2-1917.

If the time between 3-1-1914 (when the application to set aside the whole sale was made) and 25-6-1915 (when the final order confirming part of the sale was made) is deducted, then the application of 19-2-1917 is within the period of three years from the date when the sale became absolute, which is, the date mentioned in column 3 of Article 180.

20. The matter in controversy was argued in two aspects on behalf of the decree-holder-purchaser (1) that even if the cause of action for the application for possession as made arose when the sale of the interests of all the judgment-debtors was confirmed on 26-4-1913; in other words, that even if the application for possession dated 19-2-1917 is based on the cause of action for possession of the entire interests which arose on 26-4-1913 (the date when the first order of confirmation was made); to put it again differently, even if the time of three years began to run From 26-4-1913 itself notwithstanding that the application was for possession of a fraction of the interests sold on that date, the running of time, was suspended between 3-1-1914 and 25-6-1915 (2) that a new cause of action arose on 25-6-1915 when the final order confirming the sale of the interests of some only of the Judgment-debtors was made and that the time for calculation of the period of limitation for the application of 19-2-1917 arose only on 25-6-1915.

21. Section 9 of the Limitation Act says "When once time has begun to run, no subsequent disability or inability to sue stops it." Though this section, in terms, relates only to a suit and not to an application, in <NAME> v. <NAME> (1904) I.L.R. 29 B. 68 and <CITATION> (1912) I.L.R. 36 B. 498 the words "to sue" have been taken as including " to apply in execution." Further the <ORG> auction-purchaser who has made the application for possession can hardly be said to rely on any "subsequent disability or inability," (that is, subsequent to the date of sale), to make the application as" disability " and " inability to sue " are not the same as "inconvenience" or "futility" of suing--one of the two branches of his contention is that his right to apply for possession of those interests whose sale was finally confirmed, arose only on the date of that final confirmation and that as the original confirmation of 1913 was modified by the final confirmation of 25-6-1915, he obtained a new cause of action for the application making in conformity with that final order. <CITATION> (1896) I.L.R. 23 C. 775 their Lordships of the Privy Council held that a suit for setting aside a sale made on the 25th September 1882 by the District Collector and confirmed by the Commissioner on 25-1-1884, though brought in July 1887 more than one year from the date of such confirmation, was not barred by Article 12 of Act 15 of 1877, because <ORG> whether with or without jurisdiction, had set aside the Commissioner's order though it afterwards discharged its own order on 21-8-1866. Their Lordships held that limitation for the suit commenced only from the final order of the <ORG> dated 21-8-1886, because there was no "conclusive and definitive order " confirming the sale while the question whether the sale should be confirmed was under litigation, and until the order of the Commissioner on 25-1-1881 became' definitive and operative by the final judgment of <ORG> on 21-8-1886; in other words, that for the purposes of the law of limitation, there was no final or definitive confirmation of the sale until that date. Their Lordships do not rely upon Section 14 of the Limitation Act which relates to the exclusion of time during which proceedings in <ORG> without jurisdiction are being prosecuted; but put it on the broad ground that the sale itself became " confirmed" within the meaning of the expression in the third column of Article 12 of the Limitation Act only on the date when the proceedings closed before <ORG>, that is in August 1886, though there had been a confirmation by the Commissioner in 1884 itself. 1 think the present case is a stronger case for the purchaser than the case reported in <CITATION> (1896) I.L.R. 23 Cal. 775. Whereas Article 12 uses the expression "when the sale is confirmed," Article 180 uses the expression "when the sale becomes absolute. "lf, on an application made to set aside the sale, an order setting aside the sale in part is passed as it has been passed in this case, the sale as made cannot be said to have become "absolute," though a formal confirmation after the expiry of;30 days had taken place. Further, whereas in <CITATION> (1896) I.L.R. 23 Cal. 775 the 'Commissioner's confirmation order of 1884 was ultimately upheld by the final order of <ORG> in 1886, the confirmation order of 1913 in this case was modified ultimately by the final order of 1915. I think the principle underlying the decision of their Lordships both in <NAME> v. <NAME> (1868) 12 M.I.A. 244 and <CITATION> (1896) I.L.R. 23 Cal. 775 might be invoked in favour of the applicant in this case. That Principle (as I understand it is that whenever proceedings are being conducted between the parties bona fide in order to have their mutual rights and obligations in respect of a matter finally settled, the cause of action for an application or for a suit the relief claimable wherein follows naturally on the result of such proceedings, should be held to arise only on the date when those proceedings finally settle such rights and liabilities. (The case where the proceedings are by way of appeal is specially provided for by statute law and the decisions based on those special provisions are irrelevant and merely confuse the mind in its analysis of the relevant precedents).

22. I shall refer to only one more authority. <CITATION> (1916) I.L.R. 43 C. 660 their Lordships of <ORG> confirmed the Full Bench decision of <ORG> in <NAME>, <NAME> v. Madhusadan <NAME> (1907) I.L.R. 35 Cal. 209. The judgment of their Lordships on the question of law involved begins by saying "Their Lordships concur generally with the reasons given by <ORG> for overruling the plea of limitation". In the judgment in <NAME> <NAME> v. Madhusadan <NAME> (1907) I.L.R. 35 Cal. 209 the learned judges of <ORG> (<ORG>) not only do not rely upon Section 14 of the Limitation Act, but expressly say "We feel grave doubt whether the case falls within that section". But they reiy upon the principle of <ORG> decision in <NAME> v. <NAME> (1868) 12 M.I.A. 244 and hold that the right of the plaintiffs to bring an action to recover the. property was suspended Between the 20th of April 1903 and the 22nd of February 1904, because on the 20th April 1903 they had, as defendants, in a former suit, obtained a decree for the same relief as was claimed in their present action which decree however was reversed on the appeal filed by the plaintiffs of that suit on 22-4-1904. Thus the suspension was not by reason of Section 14 of the Limitation Act but by reason of the principle that a person is not bound to bring an unnecessary suit or to make futile and unnecessary applications during the course of other litigation proceedings in which he and his opponent had been bona fide engaged for the ascertainment and settlement of the same rights. The rule of law derivable from the decisions of their Lordships seems to have thus two applications according to circumstances (a) creating a fresh cause of action under some circumstances (b) suspending the running of time in other circumstances. In <NAME> <NAME> v. Madhusudan <NAME> (1907) I.L.R. 35 Cal 209 affirmed by <ORG> in <NAME> v. <NAME> <NAME> (1916) I.L.R. 43 Cal. 660 the "suspension" principle was applied in the case of a suit also. Mr. <NAME> in his book on Limitation published in 1915 (after I.L.R. 35 Cal. and before I.L.R. 43 Cal.) remarks as follows at page 44 (under Section 9 ) about the decision in <NAME> <NAME> v. Madhusudan <NAME> (1907) I.L.R. 35 Cal. 209: "It is difficult to see under what provision of the Limitation Act , the Court held that there was a suspension of the right of suit". But as their Lordships of <ORG> have confirmed <NAME> <NAME> v. Madhusudan <NAME> (1907) I.L.R. 35 Cal 209 approving generally the ratio of its decision, we must hold that notwithstanding Section 9 of the Limitation Act there are exceptional cases where such suspension, even as regards the running of time on the cause of action for a suit can take place. I think that, in either aspect (I am myself inclined to think that in the present case, a new cause of action for this special application for possession of the interests in respect of which alone the sale was finally confirmed arose in 1915), the application for possession in 1917 in this case is not barred by limitation.

<NAME>, J.

23. I had to consider the <ORG> decisions quoted before us on a number of occasions. I was therefore at first disinclined to write a separate judgment in this case. But as in a case depending upon this judgment and which was posted before <NAME> and <NAME>, and myself the subject matter is of a value which will enable the parties to go before <ORG>, and as I think that some of my observations in the previous judgments have been expressed more broadly than they need have been, I have resolved to give expression to my views on the present occasion. By common consent of both parties, notwithstanding the somewhat limited scope of the question referred, arguments were addressed to ascertain the exact scope of the pronouncements of <ORG> on the point, whether in addition to the exception enumerated in the Limitation Act it is open to <ORG> to import a new principle of equity regarding the articles in the first schedule to that Act.

24. Mr. <NAME> contended that the decision in the case which led to the reference is governed by <CITATION> (1896) I.L.R. 23 Cal. 775. In my opinion this contention is right. But I base that conclusion not on the ground that there is a general principle of equity apart from the statute, but because in the present case, the construction to be placed on the third column of Article 180 of the first schedule is concluded by that decision.

25. It was suggested in the course of the argument that the decisions of <ORG> on this subject are not reconcilable with each other. After giving my best consideration to this argument, I do not think that this argument is well founded. Broadly speaking the decisions of the Board fall under two heads, Under the first head, come <CITATION> (1896) I.L.R. 23 Cal. 775 Mussammat Sumo Mooyee v. <NAME> (1868) 12 M.I.A. 244 Basu Kuar v. <NAME> (1888) I.L.R. 11 All. 47 <NAME> v. <NAME> (1903) I.L.R. 27 Mad. 143 Amma Bibi v. <NAME> (1908) I.L.R. 31 All. 68 <NAME> v. <NAME> (1916) I.L.R. 43 Cal. 660. Under the second, <CITATION> (1882) I.L.R. 9 Cal. 259 <CITATION> (1913) I.L.R. 35 All. 227 and <CITATION> (1918) 36 M.L.J. 210. It was argued, not without some plausiblity, that the first class of cases recognises the doctrine that where a party in whose favour a cause of action has arisen cannot usefully pursue a remedy at the time, his right of action is postponed to a subsequent date. It was next argued that the second class of cases takes a too literal view of the provisions of the Act, and ignores the above principle of equity. This ingenious suggestion of a conflict between law and equity is not borne out by a close examination of the authorities.

26. In the cases coming under the second head <ORG> have laid down that there can be no saving of limitation apart from the provisions of the Limitation Act . They have drawn attention to Sections 9 and 14 of the Act and have held that exemptions not covered by these and the other sections should not be imported by <ORG>, to relieve a party from the bar of limitation. I do not think in the first class of cases this principle is overlooked. What has been done is to put a liberal (rather in (he language of Oldfield, J., an accurate) construction on the somewhat loosely expressed words in col. 3 of the first schedule. The sections have been more clearly worded than the third column of the first schedule. In a case decided by five Judges of this <ORG> to which I was a party, almost every one of us pointed this out with reference to Article 134 of the Limitation Act . There are other instances of a similar kind. <ORG> have, therefore, placed a liberal construction upon the words in the third column to the schedule. Let us take for example <CITATION> (1896) I.L.R. 23 Cal. 775 and the present case. <CITATION> (1896) I.L.R.23 Cal. 775. the party through no fault of his found himself in this unfortunate position. The only authority which could confirm the <ORG> sale was the Commissioner; no appeal is allowed from his decision. But an appeal was taken to the <ORG> of <ORG> against his order and that body admittedly set aside the order though it had no jurisdiction to do so. Both parties were not aware of this defect of jurisdiction. Both of them submitted to the interference by the <ORG> of <ORG>. At a subsequent stage the <ORG> of <ORG> confessed that their orders were ultra vires and passed proceedings to the effect that the confirmation by the Commissioner was right. In these circumstances <ORG> pointed, out that the cause of action arose only when the <ORG> of <ORG> vacated their former order and ruled that the order of the Commissioner was valid. This decision does not ignore either Section 9 of the Limitation Act or import a theory of suspension not sanctioned by Section 14 . In the view of <ORG>, the cause of action should not be regarded as having taken place on a date when no step could be taken to obtain delivery owing to the interference by the <ORG> with the order of confirmation. That is to say, they held that the third column of the schedule should be constructed as if it said that the cause of action arose only when a remedy based on it was available. I shall now examine the case before us. The decision in <CITATION> (1896) I.L.R.23 Cal. 775. would apply word for word to the facts of the present case. Here there was a confirmation, of sale. But the Civil Procedure Code has provided the procedure for that confirmation being challenged; it was in fact challenged; and although one might think that the challenge came after the time allowed by law, it was allowed to be agitated; the <ORG> upheld the challenge to some extent. The third column of Article 180 ignores these considerations, and insists upon a party, if it is literally interpreted, filing a petition for delivery which owing to the pendency of the petition challenging confirmation could not be granted. If this case were before <ORG>, I make bold to say to that they would hold that the cause of action really arose only when there was a final decision on the challenge, Similar explanation can be given with regard to every one of the cases which are catalogued under the first head. None of them contravenes the provisions of the Limitation Act as embodied in Sections 4 to 31 . All of them may be said to go to some extent, behind the actual words of the third column and to import into the decision considerations based on the intention of the legislature: but none of them introduce a principle which adds to or subtracts from the statutory exemptions. That is my view of the decisions of <ORG>. Therefore in my opinion the true rule deducible from these various decisions of <ORG> is this: that subject to the exemptions, exclusion, mode of computation and the excusing of delay etc., which are provided in the Limitation Act , the language of the third column of the first schedule should be so interpreted as to carry out the true intention of the legislature, that is to say, by dating the cause of action from a date when the remedy is available to the party. This is a rule of construction and not a rule of law. I would answer the reference as above leaving each case to be dealt with in the light of these observations.

<NAME>, <NAME>

27. I agree with the conclusions come to by the learned Officiating Chief Justice in the Judgment just pronounced.


JUDGMENT

1. This is an appeal by one <NAME> against the order of the learned Sessions Judge of Noakhali who has complained against him in that he brought a false charge of theft against one <NAME>. The case of theft was instituted by <NAME> by giving information to the <ORG>. The <ORG> enquired into the case and sent up <NAME> who was committed to the Sessions. The learned Sessions Judge found the case false and complained against <NAME> under Section 476, Criminal P.C. The first point urged by the learned vakil for the appellant is that the alleged offence was not committed in a proceeding or in relation to a proceeding before the Sessions Judge. The learned vakil contends that the offence, if any, was committed by the institution of the case before the <ORG> and further that Section 476 refers to offences which are committed after the proceedings have begun before the <ORG>.

2. We think, however, that the words "in relation to" are sufficiently wide to cover a case where the offence was actually committed before the proceedings began in the complaining Court. In the present case the proceeding was the trial of <NAME> for theft by <ORG> and that Court found that the charge was false and hence that the charge made to the <ORG> was false. The false charge to the <ORG> was obviously a matter related to the proceedings in <ORG> for it was the basis of the proceedings. Had there been no charge to the <ORG> there would have been no proceedings in <ORG>.

3. So far as this Court is concerned the question may be considered as one of first impression. Our attention has not been drawn to any decision of this Court since Section 476 was amended. We are, however, fortified in the view that we take of the meaning of the expression 'in relation to' by a recent decision of <ORG> in the case of <CITATION> A.I.R. 1925 Pat. 717, Mr. Justice <NAME> held that if two offences are even remotely connected by the relationship of cause and effect then the first may be said to be committed in relation to the second. If we consider the institution of the false base to the <ORG> as the cause of the proceedings before the Sessions Judge - and this we think no doubt it was - then it may beheld that the false case instituted before the <ORG> was in relation to the proceedings in <ORG>.

4. That being so the present case falls within Section 476 and the Sessions Judge had jurisdiction to make the complaint. Mr. <NAME> would then seem to argue that the evidence which is relied on is not worthy of belief, that if we examine the evidence we shall not find it worthy of credit.

5. That is a question for <ORG> to decide in the first instance and not for us. It might obviously be very unfair to the appellant that we should express any opinion whatever on the point at this stage and we purposely refrain from So doing.

6. The Magistrate who hears the case will decide it and it is not for us to do the work of the Magistrate.

7. The appeal is dismissed.