JUDGMENT <NAME>, J.

1. These two are appeals by special leave against a common judgment of <ORG> in its revisional jurisdiction. The appellant who is the same in both was convicted by the Magistrate, First Class, Hoshiarpur at two separate trials, one in respect of a charge under section 420 and the other in respect of a charge under section 409 of the Indian Penal Code. The convictions were confirmed by the Sessions Judge on appeal and by <ORG> in revision. The charges relate to connected matters and the evidence, though separately recorded, was substantially the same. It is, therefore, convenient to deal with the two appeals by a common judgment as <ORG> did.

2. The appellant, <NAME>, was the Civil Nazir in the office of the Senior Subordinate Judge, Hoshiarpur. The main charge against him was that in his capacity as a public servant, he committed criminal breach of trust in respect of a sum of Rs. 3,496/5/- of <ORG> money between the 1st December, and the 18th December, 1948.

The other charge was that in order to find the money to cover up the embezzlement, he tried to raise a sum of Rs. 3,350/- by way of loan from one <NAME>, misrepresenting to him that it was required by the then Subordinate Judge and that by such representation he dishonestly induced the said <NAME> to issue a cheque for the sum of Rs. 3,350/-.

At the material period of time <NAME> was the Senior Subordinate Judge of Hoshiarpur in the place of the regular Senior Subordinate Judge, <NAME>, who was officiating as the District and Sessions Judge, from the 13th November to the 16th December, 1948.

Under arrangements made by <ORG>, the Senior Subordinate Judge of the place was vested with certain administrative duties, one of such being that he was to draw and disburse month by month the salaries of the <ORG> establishments at Hoshiarpur and of three other outlying Tahsils of that district, viz., (1) Una, (2) Dasuya, and (3) <NAME>. The normal procedure for the disbursement of the salaries was to prepare the salary bill of all the four Tahsils and present it to the <ORG> on or about the first of the month, the salary for the Sadar Tahsil of Hoshiarpur being drawn in cash and the salaries for the three other Tahsils being drawn by means of cash orders authorising payment locally.

The embezzlement in question relates to the salary bill for the month of November, 1948. Departing from the pre-existing practice, the said salary bill was drawn entirely in cash for all the four Tahsils. This was done under the authorisation of the Subordinate Judge, <NAME>, but the actual cash amounting to Rs. 5,576/6/- was received from the <ORG> by the appellant on the 4th December, 1948. Out of this amount a sum of Rs. 811/1/- for <NAME> and a sum of Rs. 1,420 for <NAME> were in fact disbursed within a few days. The salaries of <NAME> and <NAME>, totaling an amount of Rs. 3,347/5/- were not disbursed. On the 14th December, a telegram was received by the District Judge, Hoshiarpur, from the Subordinate Judge, <NAME>, complaining that the civil establishment pay of his Tashil was not so far received and requesting him to arrange for the same.

It is the prosecution case that the appellant had misappropriated the amount and that on receipt of the above telegram by the District Judge, he realised the urgency of finding the money somehow and that he accordingly made attempts to raise the money by way of a loan.

It is in evidence that on the 16th December, he approached two persons, by name <NAME> and <NAME> for loans, representing to them that they were required for the Subordinate Judge. Failing in these attempts he approached one <NAME> for the amount of Rs. 3,350/- also making the same representation. He showed them a 'Ruqqa' from the Subordinate Judge purporting to authorise him to raise the money. On the morning of the 17th, <NAME> gave the appellant a bearer cheque on the local <ORG> drawn in favour of <NAME>, Subordinate Judge, by name. The cheque was presented by the appellant on the <ORG> that very day at 10 a. m. But before the cash was paid to the appellant by the <ORG>, <NAME> happened to have gone towards the <ORG> premises and to have met the Subordinate Judge. He informed him that he had issued the cheque to accommodate him. The Subordinate Judge appeared surprised at it and repudiated the same. Consequently <NAME> rushed up to the <ORG> and stopped payment, got back the cheque from the <ORG> authorities, and informed the Subordinate Judge. The Subordinate Judge thereafter took a statement from him. This statement and the returned cheque were duly sent up to the <ORG> for investigation.

Suspicion having been thereby aroused against the appellant as regards the handling of the moneys drawn by him, the relevant accounts were immediately checked and it was discovered that the salaries of <ORG> and <ORG> establishment were not disbursed. Accordingly, two complaints, one in respect of a charge under section 420 and the other in respect of a charge under section 409 of the Indian Penal Code were filed against the appellant, the first on the 17th December at 8-30 p. m. and the second on the 18th December. It would appear also that the appellant left the place on the 17th itself and sent to the Subordinate Judge, an application for leave for a month. He was not found for some days and was actually arrested on the 3rd January, 1949. Meanwhile the entire amount was deposited by the brother of the appellant on the 21st of December, 1948. It may also be mentioned that the Subordinate Judge, <NAME>, contacted the two persons, <NAME> and <NAME>, whom the appellant had approached for raising the loan, and took their statements on the 19th December. These statements also were forwarded to the Police.

3. The appellant substantially admits all the material facts above stated. His defence is that it was the Subordinate Judge, <NAME>, that misappropriated the amount and that it was at his request and under his specific authority that he made the attempts to raise the sum of Rs. 3,350 on the 16th and the 17th of December, from the three persons above mentioned.

In support of this defence he has examined a witness and produced a 'Ruqqa,' Ex. D. A. dated the 4th December, 1948, purporting to bear the signature in English of Shri <NAME> acknowledging receipt of "a sum of Rs. 3,500/- out of the pay account of the process-serving establishment from the Civil Nazir for a day". The said 'Ruqqa' bears an endorsement of repayment of Rs. 150/- on the 8th December, so that, it is, if true, a receipt for the sum of Rs. 3,350/- said to have been misappropriated. The appellant relies on this in respect of the charge under section 409 of the Indian Penal Code.

So far as the charge under section 420 of the Indian Penal Code is concerned, it is his defence that the Subordinate Judge gave him on the 16th December another 'Ruqqa', signed by him and specifically authorising him to raise an amount of Rs. 3,350/- by way of loan on his behalf locally and that he made use of it in his attempts to raise the loan for him. The 'Ruqqa' has not been produced. But it is his case that it was returned to the Subordinate Judge after being shown to <NAME>. He relies on the evidence of the very witnesses whom he is said to have approached for the loan in support of this defence.

<ORG> as well as the appellate Court have disbelieved the defence and convicted him of both the charges and sentenced him to imprisonment as well as fine.

<ORG> on revision confirmed the convictions but considered the fines uncalled for and confined the sentences to the imprisonment awarded.

It may be mentioned that after we heard the arguments fully on these appeals, we have been informed that the appellant has served out the sentences of imprisonment. But we have been pressed to express our view on the merits of the case inasmuch as the conviction has affected the official employment of the appellant and has caused him serious loss and dislocation in his life.

4. On the above statement of the case it is fairly clear that the appellant must be found guilty of the offences charged unless the defence put forward by him can be held to be made out to the extent of its being reasonably probable.

In the course of the trial certain circumstances relating to this transaction have been elicited which have been variously relied on by the prosecution as well as the defence as being in support of their respective cases.

The learned Judge of <ORG> who dealt with this matter in revision sums up the position as follows in his judgment.

"The issue in the cases is quite simple -- either Mr. <NAME> is the villain of the piece and <NAME> is a victim of his oppression and is being made to embezzle a sum of Rs. 3,500/- for Mr. <NAME>'s benefit on the 4th of December, and then falsely being accused of trying to cheat the money-lender <NAME> when in fact the loan was being taken on behalf of Mr. <NAME>, or else Mr. <NAME> is rather a careless officer who allowed himself to be tricked by the accused in the matter of pay-bill on the 4th December and was thereafter falsely accused by <NAME> of being the principal offender when <NAME>'s embezzlement of Rs. 3,500/- could no longer be concealed owing to the urgent demands for the pay of the process serving establishment at <ORG> and <ORG>. 'It cannot be denied that there are circumstances in the evidence on the record which point towards both conclusions'. (Underlined (here in ' ') by me)."

The learned Judge, however, came to the conclusion that the Courts below have carefully considered the circumstances for and against and that they rightly held that it was <NAME>, the appellant who was responsible for the embezzlement and that his efforts to throw the blame on the Subordinate Judge, <NAME>, were false.

5. On a consideration of the merits of the case, it is necessary to notice at the outset that the conviction of the appellant is not based upon a mere acceptance of the oath of shri <NAME> denying the alleged misappropriation by himself and the alleged authorisation by him to the appellant to raise money on his credit but on a consideration of the circumstances brought out in the evidence.

Indeed all the three Courts had severe comments to make against the evidence of the Subordinate Judge. The trial Magistrate Characterised a material item of the evidence of <NAME> as "a piece of falsehood unworthy of a judicial officer of the standing of Mr. <NAME>". The Sessions Judge at the conclusion of the judgment stated as follows:

"Before concluding I would like to say that though I have exonerated Mr. <NAME> from all complicity in the matter of the misappropriation of Government money, I cannot exonerate him from all blame in connection with this affair. He has come in for a good deal of criticism which in my judgment is not altogether unmerited at the hands of the learned trial Magistrate both in regard to the truthfulness of the statement he made in Court and the fact that he arrogated to himself the role of the complainant and the investigator in this case"

The learned Judge of <ORG> has also substantially agreed with this opinion. The question, threfore, that arises in this case is whether the circumstances brought out are or clear as to show that the defence is false or improbable. In a case like this depending on the conclusions drawn from circumstances, it is well settled that the cumulative effect of the circumstances must be such as to negative the innocence of the accused and to bring the offences home to him beyond any reasonable doubt. This Court has affirmed the proposition in - ' <CITATION> ), in the following terms at pp. 345-346.

"It is well to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should in the first, instance be fully established, and alt the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused".

We cannot help noticing that the <ORG> below do not appear to have kept this fundamental approach in view. The first question that arises in this case is whether from the circumstances it is so well-established beyond doubt that it is the appellant that has misappropriated the amount in question.

There are at the outset two circumstances 'against' him, (1) that the amount in question was drawn by him from the <ORG>, and (2) that it remained unpaid to the parties concerned, viz., to the Civil Establishments at Una and Dasuya. But he asserts that the money was taken from him by the Subordinate Judge himself temporarily for his own purpose. Apart from the alleged receipt, Ex. D. A. which will be dealt with presently, the defence relies on the following circumstances. It is pointed out that the scope for misappropriation by one party or the other arose in this case by virtue of deviation from the normal practice of drawing the pay of outlying Tahsils by way of cash orders and that this deviation was at the instance of the Subordinate Judge himself and with his full knowledge, but that he now falsely denies all knowledge of the same.

It is in evidence that the salary bill as originally presented to the <ORG> had a note at the top thereof that the amounts for the three outlying Tahsils were to be paid by cash-orders. The bill was returned on the 4th December for correction of a small mistake in the details thereof. The evidence shows that before re-presenting it to the <ORG>, the note above referred to was scored out under signatures of the Subordinate Judge at the two ends of the note, thus converting the bill into one for payment of the entire amount thereof in cash to the appellant. A look at the original bill which has been exhibited also shows this. In addition to this authorisation to draw the entire amount in cash, in departure from the pre-existing practice, another circumstance has also been brought out in the evidence. As already stated the Subordinate Judge of Una sent a telegram to the District Judge of Hoshiarpur on the 14th December complaining that the pay of the Civil establishment was not disbursed till then. The District Judge forwarded it to the Subordinate Judge, <NAME>, on that very date marking it "immediate". No action appears to have been taken on it by him. All that appears is that certain memos were issued to the other Subordinate Judges of the outlying stations requesting that their respective Nazirs should be sent over to the Sadar station for receiving the salaries of their establishments. This order appears to have been issued as part of a general order, Ex. P. W. 9/A, which is as follows:

"Generally salaries of officials in the <ORG> are received late. To avoid this delay it is proposed that Nazirs posted at the <ORG> should personally come to the <ORG> along with their respective pay bills in the first week of every month and should not send anybody else so that they should take with them salary of the establishment. As a rule, pay is drawn at the <ORG> on the first day of every month. Hence, all <ORG> Nazirs should bring with them their pay bills within the first week of every month and return the same day after receiving salaries of their establishments to avoid cash-order or any other trouble. Acquittance roll shall be kept at the <ORG>. Nazirs may also take them along with salaries. This is for urgent information.

ORDER This <NAME> be sent to the Sub-Judge, <NAME>, with the request that the <NAME> may be kindly instructed to comply (with the above instructions) in future."

Thus not only was there a departure from the previous practice by way of drawing cash also for the outlying stations under the specific orders of the Subordinate Judge but when delay in payment was made a matter of complaint no action was taken thereon but there was only an attempt to gain time by adopting the device of appearing to make a general change in the practice for the future and asking the outlying Nazirs to go over to Sadar for receiving the moneys.

The Subordinate Judge disclaims responsibility for these circumstances, by putting forward the plea that he signed the scoring out in the salary bill merely as a matter of routine and without being conscious of the implication thereof and that the instructions in Ex. P. W. 9/A were issued without his knowledge. He asserts that the appellant alone was responsible in getting his signatures and for issuing these instructions.

It cannot be disputed that under the rules, the responsibility was entirely that of the Subordinate Judge and that it was a serious one and that a disclaimer thereof is not to be lightly accepted. The Punjab Financial Rules lay down as follows:

"The head of an office is personally responsible for every pay drawn on a bin signed by him or on his behalf until he has paid it to the person entitled to receive it and obtained his receipt, duly stamped where necessary on the office copy of the pay bill".

The Rules and Orders of the Punjab High Court also are as follows:

"As the Government is responsible for the due application of all property and money received in accordance with law by any court of justice the officers presiding over such courts must be held directly and personally responsible for any loss caused by failure to observe rules or neglect on their part to exercise supervision and control over the officials subordinate to them in accordance with law and the orders issued by <ORG> ..................".

To negative the plea of the Subordinate Judge that he had no knowledge of the pre-existing practice, evidence has been given of previous instances when this practice was within his notice. This appears from Ex. P. W. 6/D. A. and B. W. 6/D. C. When confronted with these documents in cross-examination, he has mo answer except to say that he does not remember. Having regard to the matter therein and dates thereof this answer appears to be false. There can also be no doubt that the orders contained in Ex. P. W. 9/A were issued under his specific instructions.

The Subordinate Judge takes advantage of the fact that Ex. P. W. 9/A is signed by P. W. 6 and the matter thereof is in the handwriting of the appellant. But P. W. 6 deposes that the Subordinate Judge admitted before him that he did instruct the appellant to send for the Mofassil Nazirs to receive payment at <NAME>. P. W. 6 also deposes that he made similar admission before <NAME> in the departmental enquiry against the appellant which followed, pending the prosecution. <NAME>'s evidence confirms this but the Subordinate Judge, <NAME>, falsely denies having so admitted. If as appears to us to be clear, the pleas put forward by the Subordinate Judge to explain these circumstances are false and if the Subordinate Judge not only authorised cash to be drawn for outside stations instead of mere cash-orders but when the delay in disbursement was specifically drawn to his attention, he did not also take any notice of it as against the appellant and only authorised the issue of instructions to the outlying stations that their Nazirs should he sent over to the <NAME> in order to receive the moneys, the reasonable probability is that the non-availability of the money for disbursement by about the 16th December was a situation for which the Subordinate Judge was deliberately and primarily responsible.

6. It is as against this background that the defence of the appellant, that he in fact handed over the money to the Subordinate Judge, has got to be considered. As already stated he produced a receipt Ex. D-A in support of it. The Courts below have discredited that receipt. All the three Courts below were inclined to hold that that receipt bears the genuine signature of the Subordinate Judge notwith-standing the denial thereof by him. But, all the same, they held it to be a forgery. The reasons given by the trial Court and the appellate Court for this are not by themselves convincing. The main reason given is that the very look at the piece of paper on which this receipt was written indicates its forged character.

We have had the opportunity of looking at the original 'Ruqqa'. Ex. <NAME>, ourselves, bat do not think that it can be definitely pronounced to be a forgery by appearance. The <ORG> below were inclined to think that it is on a piece of paper which may have been torn out from a larger sheet containing the genuine signature of the Subordinate Judge in which a blank space was by some chance left above it. But a look at it shows clearly that the suggested blank space is about 2 to 3 inches in size commencing from the normal uncut top line of an ordinary sheet. It is not easy to see how a blank space of that size and in that position was likely to have been left above a genuine signature. The impression of the <ORG> below in this behalf is mere speculation and there is nothing in the evidence of the Subordinate Judge to indicate any such likelihood.

7. Another consideration which weighed with the trial Court and the appellate Court in rejecting this 'Ruqqa' is that the Subordinate Judge was very unlikely to have admitted in a piece of paper under his signature that he had taken a sum out of the pay account of the process-establishment even for a day, for that would have meant a complete ruin of his official position and of his future career and that so responsible an officer was not likely to have done so. This consideration is not without force. But the <ORG> do not seem to have appreciated that the same consideration equally weighs in favour of the appellant. The trial Magistrate has noted in his judgment that the appellant had an unblemished record of service. The prospect of jeopardizing the same is one which would equally weigh with him to prevent his misappropriating the money for his own use. The reaction on his position and on his future, consequent on such misappropriation, is not the less for him, from his point of view, merely because he is a person in lesser official situation and drawing a lower salary.

One cannot help feeling that in viewing this circumstance as in others, the Courts below have without justification -- unconsciously it may be -- adopted differing standards as between the Subordinate Judge and <NAME>. One of the main reasons which persuaded the learned Judge of <ORG> to accept the view of the Courts below that Ex. D. A. was a forgery was the following. The very next day after the incident took place, i. e., on the 18th December, the appellant sent two letters, Exs. P. W. 6/C and P. W. 6/D, one to the clerk, P. W. 6, <NAME>, and another to a process-server, <NAME>. In the letter, Ex. P. W. 6/D, he states as follows:

"On the 4th December, 1948, he took Rs. 3,500/- in cash and gave a ruqqa. But he took back that ruqqa on the 17th December".

In view of this categorical admission, the learned Judge was inclined to think that the piece of paper that has now been produced into <ORG> as Ex. D. A. could not have been genuine. While this inference is not without force, it must be noticed that the accused who has put forward this 'Ruqqa' in the forefront of his defence throughout and who has admitted the genuineness of the two letters, Exs. P. W. 6/C and P. W. 6/D has not at all been asked to explain how with reference to his previous statement in Ex. P. W. 6/D he was now able to produce it into <ORG>. One cannot imagine what explanation he may have been able to give. Having read the two letters Exs. P.W.6/C & P.W.6/D carefully together, we feel that it is not altogether unlikely that the statement in Ex. P. W. 6/D which has been relied on as negativing the genuineness of Ex. D. A. may have been due to some confusion at the time, for, we find that in Ex. P. W. 6/C which is much more detailed and categorical as regards the material facts in this case, the only 'Ruqqa' stated to have been returned to the Subordinate Judge is the second 'Ruqqa' of the 16th December ¬ the first 'Ruqqa' dated the 4th December, while there is reference to both in the contents thereof.

However that may be, it is unnecessary for the purposes of this case to find positively that Ex. D. A. is genuine. It is sufficient to say that we cannot agree with the view taken by the Courts below that it is proved to be a forgery.

8. In this context it is also relevant to consider whether there is any indication in the case as to who out of the two was likely to have had need for the money at the time.

The learned Judge of <ORG> very rightly touched on this aspect of the case. But his assumption that there is no indication in the evidence that the Subordinate Judge had any need for the money at the time is not correct. It is in the evidence of P. W. 4, <NAME>, that, when approached by the appellant for a loan on behalf of the Subordinate Judge, he believed it to be genuine because he knew already that the Subordinate Judge, <NAME>, had purchased land and therefore guessed that the money may have been required by him in that connection. Even in the earliest statement (Ex. P-B. dated the 19th December, 1948), which he made to the Subordinate Judge, <NAME>, he stated as follows:

"He (the appellant), however, told me that the Sub-Judge had to repay the amount in respect of land. Since it was within my knowledge that <NAME>, Sub-Judge, had purchased land, I guessed that the said <NAME> might have asked for money."

The Subordinate Judge himself, in his cross-examination says as follows:

"I offered a bid to purchase two plots of land offered to the refugees by <ORG> for sale at Hoshiarpur on 25-6-48 and 10 per cent of the amount was paid the same day. It was about Rs. 580/- or a little above or less. It was paid on the same day and after a month or so the Government refused to confirm the sale and the money was refunded to the bidders and the balance was never paid. Two plots were purchased by me one in my name and one in the name of my son <NAME> and another plot was purchased by my father-in-law. I had taken to the spot Rs. 300/-. I handed over that money to <NAME> and my father-in-law gave me a cheque for Rs. 4,000/-. I think I gave that cheque to the accused for getting it credited into my account with <ORG> and gave him another cheque either to <NAME> my orderly or to the accused and perhaps this cheque was for Rs. 600/- or 700/-".

All this, no doubt, is far from proving that the Subordinate Judge had any substantial need for money at the time. But such as it is, it gives some indication that there may have been need for him in connection with the land transaction. It does not appear whether there has been any investigation of the circumstances of the Subordinate Judge relating to his land transactions though the statement of <NAME> made to the Subordinate Judge himself on the 19th December indicating this was forwarded to the <ORG> and was before them during investigation. In the circumstances, the remark made by the learned Judge of <ORG> that the Subordinate Judge may have had no need for the money at the time cannot be of much weight.

On the other hand it is a matter not without some significance in this context, that no need of the appellant for any finance at the time has even been indicated. The fact that his brother has paid up the entire amount so quickly as the 21st December, obviously in response to the suggestion conveyed in the letter, Ex. P. W. 6/D, must furnish some indication that the appellant could command ready money for a crisis like this and have been able to make it up on his own account if he had himself misappropriated the amount instead of having to go about in the open market trying to raise money by false representations as to the authority of the Subordinate Judge.

9. It appears to us, therefore, that the defence put forward by the accused on this part of me case cannot be said to have been disproved or to be so improbable that his guilt must be taken to have been established beyond reasonable doubt.

10. Coming to the other part of the case which is the subject matter of the prosecution under section 420 of the Indian Penal Code it is clear that in the above view, his defence on this part also cannot be said to be improbable. If the defence of the appellant that the Subordinate Judge took the money from him is accepted as not improbable, it follows that the defence that the attempts to raise the loan were for him and on his authorisation, becomes probable. There is also some evidence in support of this. <NAME>, P. W. 5 and <NAME>, P. W. 14, both definitely say that a 'Ruqqa' bearing the signature of the Subordinate Judge and authorising the raising of a loan on his behalf for a sum of Rs. 3,350/- was shown to them.

No doubt the 'Ruqqa' itself has not been produced and <NAME> says that he was not in a position to identify the signature of the Subordinate Judge. But he does say that he read the 'Ruqqa' carefully and was satisfied that the Judge <NAME> really wanted money. In his earliest statement Ex. P/B dated the 19th December, made to this very Subordinate Judge, <NAME>, sets out the contents of the 'Ruqqa' as follows:

"I (i. e. <NAME>, Sub-Judge) need Rs. 3,350/- which I will repay to you after some days".

Here again it is not either necessary or feasible to hold definitely that this defence has been completely made out. But it certainly cannot be said that it is improbable or false.

11. One of the outstanding features of this, case is that the defence which has been put forward at the trial is one which has been very elaborately and categorically set out the very next day after the incident in Ex. P. W. 6/C. One has only to read the whole of that letter closely and carefully to see that the great deaf of detail that has been set out therein was very unlikely to have been an anticipatory false-defence. The learned Judges of the Courts below have almost ignored this letter excepting to make a reference to it for the purpose of discrediting the defence.

They do not seem to have realised the significance of the fact that quite a member of details furnished therein have found ample corroboration from the very evidence of the prosecution witnesses Nos. 4, 5 and 14, persons in respect of whom the appellant could not have felt sure at the time when he was setting out the details in his letter. It is somewhat unusual to find the accused in a case like this coming out with his entire defence so early after the occurrence and the same finding substantial corroboration at the trial from the witnesses for the prosecution. The only reason that the learned Judges give for discrediting this is that a period of 24 hours had elapsed by then. Having regard to the nature and contents of the letter and the fact that it has been sent by registered posts the next day from & different place--probably at a distance--called Daulatpur as indicated by the stamping on the registered envelope thereof, we are not able to share the view that there was time enough for concocting such a false defence in this letter. To our mind, the very fact that the defence was given out at such an early stage and that it has, to such a large extent, been corroborated is a strong reason for thinking that the defence was very likely to have been true.

12. The Courts below have relied on a number of circumstances which they consider to be against the accused, most of which appear to us inconsequential and to be based on insufficient appreciation of the surrounding situation. For instance the learned Judge of <ORG> thinks that "there was no necessity for the Subordinate Judge, <NAME>, to repudiate the whole scheme when confronted by <NAME> on the 17th December after the loan had in fact been raised and the money was about to be realised which would tide over the embezzlement and give <NAME> a breathing space for some time, if in fact he was a party and indeed the principal figure in the embezzlement".

He treats this as crucial in the case.

With respect, the learned Judge does not seem to have appreciated that the fact of <NAME> having issued a cheque in the name of the Subordinate Judge himself makes all the difference. It is obvious that if the embezzlement, however temporary, came to light, the fact of the amount having been raised on the basis of a cheque in his name and his having taken advantage of it in spite of information thereof having been conveyed by Seth <NAME> himself, would have been a serious matter. The cheque itself would have been fairly strong evidence against him. It is not unlikely that he expected merely cash accommodation which would leave no documentary evidence behind but that when he found that that expectation did not materialise, he saw the danger into which he was running.

13. Again the Courts below were inclined to think that if the defence of the appellant was true and he had in his possession a '<NAME>' Ex. D. A., acknowledging receipt of the amount of Rs. 3,500/-, the appellant would have at once put it forward on the 17th itself at the premises of <ORG> when <NAME> stopped payment on the ground of misrepresentation of the Subordinate Judge's authorisation in this behalf.

But it does not appear to have been appreciated that the question uppermost in the minds of everybody at that time was as to whether he was obtaining the loan on the authority of the Subordinate Judge. For this it was the 'Ruqqa' alleged to have been given to the appellant by the Subordinate Judge on the 16th that would have been material and not the 'Ruqqa' of the 4th December. If what is stated in Ex. P. W. 6/C namely that the 'Ruqqa' of the 16th December was returned by the appellant to the Subordinate Judge at the suggestion of <NAME> himself is true, he may well have become panicky on the realisation of the mistake he had committed in so returning it in view of the prosecution for an offence under section 420 of the Indian Penal Code that was imminent and probably threatened.

14. There are a number of other similar circumstances relied on by the Courts below into which it is unnecessary to go at length. It is enough to say that in our opinion none of them can be legitimately treated as circumstances which disprove the defence put forward by the appellant. We are clearly of the opinion, as already stated, that the defence was not improbable both as regards the assertion that the money was taken by the Subordinate Judge from the appellant by way of temporary accommodation and as regards the assertion that the Subordinate Judge not being able to put the money back within the expected time and in view of the urgency, authorised the appellant to raise money for him. In this view it would follow that the offences charged cannot be said to have been brought home to the appellant beyond reasonable doubt. The Courts below in taking the contrary view have failed to keep in mind the fundamental rule stated at the outset relating to the proof of guilt based on circumstantial evidence and have proceeded on conjectures in a case where statedly the circumstances are more or less equally balanced. They have adopted varying standards as between the accused and the Subordinate Judge in weighing the circumstances against them. They have also virtually ignored a crucial circumstance in favour of appellant, '<NAME>.' that he came forward with his defence on the very next day which finds considerable support from the prosecution evidence itself. The interference of this Court to prevent miscarriage of justice is accordingly called for.

15. It may be noted that in the above discussion we have ignored the alleged embezzlement of the small extra amount of Rs. 149/- since we consider the appellant's explanation therefore in answer to question No. 7 on 19-11-1949 not to be improbable and the same has also been paid up.

16. There is, however, one other aspect of the matter which requires consideration. The very receipt, Ex. D. A., on which the appellant relies shows that the appellant intentionally handed over the money in his custody to the Subordinate Judge for being utilised by him for purposes other than the disbursement of the salaries though it be statedly for a day.

<ORG> has pointed out that even on this view the offence under section 409 of the Indian Penal Code stands committed. That is also the view taken by the Sessions Judge on appeal as an alternative.

The correctness of this view, however, would depend upon whether the Civil <NAME>, in drawing the money from the <ORG> under the authority of the Subordinate Judge, and keeping the same in his custody, can be said to have been entrusted with the money. The exact legal position as to the nature of the custody of the money by the Civil <NAME> in such a case has not been clarified. We have been shown no rule which authorises or enables the Civil <NAME> in such cases to keep custody of the money with himself pending disbursal. If there was any such rule such custody may well amount to entrustment.

The only rule that has been placed before as shows that it is the Subordinate Judge that is fully responsible for the drawal and the disbursal. It is he that must be primarily taken to be entrusted with the money. No doubt the Subordinate Judge himself in his evidence says that it is the duty of the Civil <NAME> to draw the pay of the subordinate employees and to keep the same in his personal custody along with any other <ORG> money in the safe provided to him which is kept in the <NAME> Khana. Also one of the witnesses, <NAME>, a Civil <NAME>, states that it is incumbent on the Civil <NAME> to keep all the <ORG> money lying undisbursed with him in the safe provided by the <ORG> fixed in the <NAME>'s room.

The appellant when asked about these matters under section 342 , Cr. P. C. in questions 1, 2 and 3 makes a distinction between amounts drawn in respect of pay and the amounts drawn on contingent bills and says that it was his duty to keep only contingent amounts with him implying that in respect of salaries it was not his regular duty. In the absence of a clear rule defining this responsibility in this behalf and the nature of his custody of money in such circumstances, we do not think that he can be held to have been entrusted with the custody of the money.

But, inasmuch as he has handed over the money to the Subordinate Judge with the knowledge that it was to be utilised for a purpose other than that for which it was legally intended, he may be said to have abetted criminal breach of trust by the Subordinate Judge. In an appropriate case the conviction may probably have been altered to one of abetment of an offence under Section 409 of the Indian Penal Code. But in this case an alteration of the appellant's conviction under section 409 of the Indian Penal Code into one of abetment thereof would imply a definite finding of guilt against the Subordinate Judge, <NAME>, who is not before us. It would, therefore, be unfair to make such an alteration. We do not accordingly feel called upon to do so in an appeal on special leave.

17. In the result Criminal Appeals 46 and 47 of 1953 are allowed and the convictions of the appellant for both the offences with which he was charged are hereby set aside.


PETITIONER: <NAME> Vs. RESPONDENT: <NAME> SINGH DATE OF JUDGMENT: 19/09/1963 BENCH: <NAME>, BHUVNESHWAR P.(CJ) BENCH: <NAME>, BHUVNESHWAR P.(CJ) <NAME>, J.C. AYYANGAR, N. RAJA<NAME>A CITATION: 1964 AIR 260 1964 SCR (1) 982 CITATOR INFO : R 1964 SC1099 (5,23) R 1970 SC1093 (7) D 1974 SC 480 (15) D 1976 SC 105 (5,6,7) R 1979 SC 984 (12) ACT: Code of Criminal Procedure, s. 417(3), (4)-Accused acquitted by Additional Sessions judge-Application for special leave to appeal to <ORG> against acquittal filed after 60 days of order- Provisions of Limitation Act , s. 5 , whether applicable-Special law- Limitation Act  s. 29(2) . HEADNOTE: The respondent was committed to <ORG> to stand his trial. However, he was acquitted by the Additional Sessions Judge on December 31, 1959. The appellant filed on April 22, 1960, an application under s. 417(3) of the Code of Criminal Procedure in the <ORG> for Special Leave to appeal from the order of the Additional Sessions Judge. The <ORG> dismissed the appeal on the ground that the application for special leave to appeal was barred by time. It was held that the provisions of s. 417(4) of the Code of Criminal Procedure were in the nature of a special law and the provisions of s. 5 of the Limitation Act were not applicable. The appellant came to this Court after getting a certificate of fitness to appeal to this Court. Dismissing the appeal, HELD : (i) The special rule of limitation laid down in s. 417(4) of the Code of Criminal Procedure is a special law of limitation Governing appeals by private prosecutors and s. 5 of the Limitation Act does not apply in view of s. 29(2)(b) of. the Limitation Act . A special law means a law enacted for special cases, in special circumstances, in contra- distinction to the general rule of law laid down as applicable generally to all cases with which general law deals. In that sense, the Code of Criminal Procedure is a general law regulating the procedure for the trial of criminal cases Generally. When it lays down the bar of time in respect of special cases, in special circumstances, like those contemplated by s. 417(3) and (4), it is a special law contained within the general law. likewise, the Limitation Act is a general law laying down general rules of limitation applicable to all cases dealt with by the Act, but there may be instances of a special law of limitation laid down in other statutes, though not dealing generally with the law of Limitation. <NAME> v. The State of Bihar, 30 Pat. 126; <CITATION> .  Bom. 1083; <CITATION> , A.I.R. (1958) All. 691; Rajjan Lal v. State I.L.R.  2 All. 761; <NAME>, in re. (1957) 1 M.L.). 150; <CITATION> A.I.R. (1958) Mad. 416; <CITATION> , 983 A.I.R. (1957) Andh. Pra. 406; In re Parchuri Adeshamma, A.I.R. (1958) Andh. Pra. 230; <CITATION> .  Bom. 135, referred to. JUDGMENT:

CRIMINAL APPELLATE JURISDICTION Criminal Appeal No. 126 of 1962.

Appeal from the judgment and order dated October 31, 1961 of <ORG> in Criminal Appeal No. 825 of 1960. <NAME>, for the appellant.

The Judgment of the Court was delivered by <ORG>, C. J.-In this appeal, on a certificate of fitness granted by <ORG>, the only question for determination is whether the provisions of S. 5 of the Limitation Act  apply to an application for special leave to appeal, from an order of acquittal, under sub-s. of S. 417 of the Code of Criminal Procedure (to be hereinafter referred to as the Code ). The certificate was granted by <ORG> "because there is a considerable conflict of opinion in the various <ORG>". In this case we are not concerned with the factual aspect of the controversy between the parties. It is not, therefore, necessary to set out in any detail the facts of that controversy. It is enough to state that the respondent was committed to <ORG> to stand his trial under s. 493, or in the alternative under S. 495 , of the Indian Penal Code , on the charge that he had, by deceit, caused the appellant who was not lawfully married to him to believe that she was so married and in that belief had sexual intercourse with her. In the alternative, it was alleged that he married the appellant after concealing the fact that he was already married.

The prosecution was launched by a petition of complaint filed by the appellant before the Magistrate. The respondent was tried by the Additional Sessions judge, Gurdaspur, who by his judgment dated December 31, 1959, acquitted him on the ground that the prosecution had failed to prove that there was a marriage between the ,complainant and the accused. The appellant filed an ap-

application on April 22, 1960, very much later than 60 days from the date of the order of acquittal, for special leave to appeal from that order, under s. 417(3) of the Code. In a note appended to the application it was stated "that the time in filing the present petition might be excluded in view of the fact that the District Magistrate, Gurdaspur, moved the Advocate-General in filing the appeal under s. 417 , Criminal Procedure Code , which if filed would have obviated the necessity of filing this petition. But., <ORG> declined to file appeal and the intimation to this effect was received on April 1, 1960. The original letter is attached herewith; from this date, it is within time." On this application, <ORG> of <ORG> passed the order "Admitted", on September 1, 1960. When the appeal was placed for hearing before <NAME> and <NAME>, JJ, a preliminary objection was raised on behalf of the respondent that the appeal was out of time. While it was admitted on behalf of the appellant that the appeal was filed long after the period prescribed by sub. s. (4) of s. 417 of the Code, it was argued that the delay could be condoned under s. 5 of the Limitation Act, and that the delay had been so condoned by the Bench when the appeal was admitted.

The Bench pointed out that as a matter of fact no application had been made by the appellant for extension of the period of limitation for filing the petition for special leave. The Bench further held that it could not accede to the contention that the Bench while admitting the appeal had condoned the delay. The <ORG>, on an elaborate examination of the provisions of the Code , and of the Limitation Act , came -to the conclusion that the bar of time prescribed by sub-s. (4) of s. 417 was a 'special law' within the meaning of s. 29(2) of the Limitation Act, and that, therefore, s. 5 of the Limitation Act would not be available to the appellant for condoning the admitted delay in filing the application for special leave. The High <ORG> noticed a number of decisions of the different High <ORG>s and preferred to accept the view that the provisions of sub. s. (4) of s. 417 of the Code were in the nature of a 'special law' though the Code as a whole was a general law. In that view of the matter, the High <ORG> dismissed the appeal on the ground that the application for special leave to appeal was barred by time. The appellant applied to the High <ORG> and obtained the necessary certificate of fitness and has come up to this <ORG> on appeal from that order of the High <ORG>. The High <ORG> ,naturally did not go into the merits of the controversy. We have, therefore, to consider whether the High <ORG>. was right in coming to the conclusion that s. 5 of the Limitation Act could not be available to the appellant for condonation of the delay in filing the application for spe- cial leave under sub-s. (3) of s. 417 of the Code. Before we refer to the different decisions of the High <ORG>s, taking conflicting views on the only question now before us, we would examine the relevant provisions of the Code and the Limitation Act . Section 417 of the Code is in these terms : -

"417(1) Subject to the provisions of sub- section (5), the State Government may, in any case, direct the Public Prosecutor to present an appeal to <ORG> from an original or appellate order of acquittal passed by any Court other than <ORG>.

(2)If such an order of acquittal is passed in any case in which the offence has been investigated by <ORG> constituted under <ORG> Act , 1946 (XXXV of 1946), <ORG> may also direct the Public Prosecutor to present an appeal to <ORG> from the order of acquittal. (3)If such an order of acquittal is passed in any case instituted upon complaint and <ORG>, on an application made to it by the complainant in this behalf, grants special leave to appeal from the order of acquittal, the complainant may present such an appeal to <ORG>.

(4)No application under sub-section (3) for the grant of special leave to appeal from the order of acquittal shall be entertained by <ORG> after the expiry of sixty days from the date of that order of acquittal.

(5) If, in any Case, the application under sub-section (3) for the grant of special leave to appeal from an order of, acquittal is refused, no appeal from that order of acquittal shall lit under sub-section (1)." 63-2 S. C. India/64 It will appear that the section, which was recast by Act XXVI of 1955, for the first time made provision for an appeal by a private complainant from an order of acquittal, if he obtained special leave to appeal from <ORG>. Previous to the Amending Act aforesaid, it was only <ORG> which could come up in appeal from an order of acquittal. The section, thus, provides for an appeal by <ORG>, as also by the complainant in a cast instituted upon a complaint, provided that special leave of the <ORG> is obtained. So far as appeal by <ORG> is concerned, s. 417 itself does not provide for any period of limitation. The period of limitation for such an appeal is laid down in Art. 157 of the Limitation Act . Previous to the amendment of 1955, the period of limitation for such an appeal by <ORG> was six months, which was reduced to three months by the Act XXVI of 1955 with effect from January 1, 1956. Hence, so far as an appeal by <ORG> is concerned, the period of limitation thus reduced is a part of the general law of limitation and is amenable to the operation of s. 5 of the Limitation Act. But the provisions of sub-s. (3) and (4) of s. 417 arc in the nature of 'special provisions' introduced for the first time by the Amending Act XXVI of 1955. Sub- section (4), in terms, is very precise and mandatory, prohibiting <ORG> from entertaining any application for special leave to appeal from an order of acquittal after the expiry of 60 days from the date of such an order. On a perusal of the bare provisions of the section and the history of the law on the subject, two things are clear; namely, (1) that the legislature thought it expedient in the interest of justice and public policy that the period of six months allowed to <ORG> to appeal from an order of acquittal should be curtailed by half, thus evincing its clear intention to cut short the duration of the litigation which had already resulted in an order of acquittal; and (2) that in certain cases <ORG> should have the power of granting special leave to a complainant, as distinguished from <ORG>, to come up in appeal from an order of acquittal, but at the same time indicating in clear and unambiguous terms that such an application must be made within 60 days from the date of the order of acquittal. This rule of 60 days bar of time has been specifically provided for in the section itself, unlike the general rule of limitation applicable to an appeal against acquittal, at the instance of <ORG>. In our opinion, therefore, the position is clear that so far as appeal by <ORG> is concerned, the law of limitation is the general law laid down in the Limitation Act ( Art. 157 ) to which s. 5 would apply by its own force. But in so far as an appeal by a private prosecutor is concerned, the legislature was astute to specifically lay down that the foundation for such an appeal should be laid within 60 days from the date of the order of acquittal. In that sense, this rule of 60 days bar is a special law, that is to say, a rule of limitation which is specially provided for in the Code itself, which does not ordinarily provide for a period of limitation for appeals or applications. It is the general law of limitation, as laid down in the Limitation Act , which governs appeals ordinarily preferable under the Code , vide Arts. 150, 154, 155 and 157. To such appeals the provisions of s. 5 would apply.

It has been observed in some of the cases decided by <ORG> that the Code is not a special or a local law within the meaning of s. 29(2) of the Limitation Act, that is to say, so far as the entire Code is concerned, because it is a general law laying down procedure, gene- rally, for the trial of criminal cases. But the specific question with which we are here concerned is whether the provision contained in s. 417(4) of the Code is a special law. The whole Code is indeed a general law regulating the procedure in criminal trials generally, but it may contain provisions specifying a bar of time for particular class of cases which are of a special character. For example, a Land Revenue Code may be a general law regulating the relationship between the revenue-payer and the revenue- receiver or the rent-payer and the rent-receiver. It is a general law in the sense that it lays down the general rule governing such relationship, but it may contain special provisions relating to bar of time, in specified cases, different from the general law of limitation. Such a law will be a 'special law' with reference to the law generally governing the subject-matter of that kind of re- 64-2 S C India/64 lationship. A 'special law', therefore, means a law enacted for special cases, in special circumstances, in contradis- tinction to the general rules of the law laid down, as ap- plicable generally to all cases with which the general law deals. In that sense, the Code is a general law regulating the procedure for the trial of criminal cases, generally; but if it lays down any bar of time in respect of special cases in special circumstances like those contemplated by s. 417(3) & (4), read together, it will be a special law contained within the general law. As the Limitation Act has not defined 'special law', it is neither necessary nor expedient to attempt a definition. Thus, the Limitation Act is a general law laying down the general rules of limitation applicable to all cases dealt with by the Act; but there may be instances of a special law of limitation laid down in other statutes, though not dealing generally with the law of limitation. For example, rules framed under Defence of India Act, vide <NAME> v. The State of Bihar(1); <CITATION> .(2) dealing with the special rule of limitation laid down in the Bombay Land Requisition Act (Bom. XXXIII of 1948). These arc mere instances of special laws within the meaning of s. 29(2) of the Limitation Act. Once it is held that the special rule of limitation laid down in sub-s. (4) of s. 417 of the Code is a 'special law' of limitation, governing appeals by private prosecutors, there is no difficulty in coming to the conclusion that s. 5 of the Limitation Act is wholly out of the way, in view of s. 29(2) (b) of the Limitation Act . But the question is whether it can be said that even though the provisions of s. 417(4) are a 'special law', they prescribe a different period of limitation from that prescribed by the First Schedule of the Limitation Act, because s. 29(2) applies where there is a difference between the period prescribed by the Limitation Act and that prescribed by the special law. It is said that the Limitation Act does not prescribe any period of limitation for an application for special leave to appeal from an order of acquittal at the instance of a private prosecutor. In the first instance, the Limitation Act , Art. 157 , has prescribed the rule of limitation (1) I.L.R. 30 Pat. 126.

(2) I.I.R. [1952] Bom. 1083.

in respect of appeals against acquittal at the instance of the <ORG>. Hence, it may be said that there is no limitation prescribed by the Limitation Act for an appeal against an order of acquittal at the instance of a private prosecutor. Thus, there is a difference between the Limitation Act and the rule laid down in s.417(4) of the code in respect of limitation affecting such an application. Section 29(2) is supplemental in its character in so far as it provides for the application of s. 3 to such cases as would not come within its purview but for this provision. And for the purposes of determining any period of limitation prescribed by any special law, it has made the provisions of the Limitation Act , referred in cl. (a) of sub-section (2) of section 29 applicable to such cases to the extent to which they are not expressly excluded by such special or local law, and cl. (b) of that subsection expressly lays it down that the remaining provisions of the Limitation Act shall not apply to cases governed by any special or local law. In our opinion, therefore, the provisions of the Code , supplemented by the provisions of s. 29(2) of the Limitation Act, make it clear that s. 5 of the Limitation Act would not apply to an application for special leave to appeal under s. 417(3) of the Code.

That is our conclusion based on the interpretation of the statutes in question. But <ORG> of Allahabad, Andhra Pradesh and Madras have taken the contrary view. On the other hand, earlier decisions of <ORG> at-id <ORG>, to be presently noticed, have taken the view that what we have indicated is the correct view of the legal position.

A Division Bench of <ORG>, in the case of <CITATION> (1) bad taKen the view that the words of sub.s. (4) of s. 417 make it clear that the application under sub.s. (3) must be made within 60 days of the order of acquittal, and that <ORG> had no power to extend the period of limitation, and 5. 5 of the Limitation Act did not apply to such cases. They based their conclusion entirely on the wording of sub. ss. (3) and (4) of s. 417 of the Code. That Bench decision of <ORG> was overruled by a Full Bench of that Court in <CITATION> (2). The three Hon'ble judges con-

(1) A.I.R. (1958 All 691).

(2) I.L.R. [1960] 2 All. 761.

stituting the full bench, in separate but concurring judg- ments, took the view that the Code was not a local or a special law and that s. 5 of the Limitation Act was applicable to an application under s. 417(3) of the Code. In <ORG> a Division Bench was of the same opinion as had been held by <ORG> of <ORG>, but the decision was obiter because the Court dismissed the petition on the ground that the order of acquittal had been passed before the Amending Act XXVI of 1955 came into force, so that the order of acquittal was not amenable to an appeal at the instance of the private prosecutor.

A Single Judge of <ORG> took the view that s. 5 was applicable to applications for special leave under s. 417(4) .

In <ORG>, a Single Judge decided the case of <NAME>. in re (1) and held that " section 1 , sub-section (2) of the Criminal Procedure Code makes all laws applicable to Criminal Procedure Code including the Law of Limitation and nothing could prevent the appellant from taking advantage of section 5 of the Limitation Act." He also held that there was no difference between the period prescribed by the law of limitation and the Criminal Procedure Code . Both these observations do not appear to be correct.

Another Single Judge of <ORG> decided in the case of <CITATION> (2) that s. 5 of the Limitation Act could be availed of by the private prosecutor, but the learned judge did not base his decision on the reasoning of the previous judgment of that Court but preferred to follow the reasoning adopted by <ORG> in <CITATION> (3) and in re Parchuri Adeshamma(4). In our opinion, the view taken by the Full Bench of <ORG> in the case of <CITATION> (5) is the correct one. In that case it was (1)(1957) 1 M.L.J 150.

(2) A.I.R. [1958] Mad. 416.

(3) A.T.R. [1957] And. Pra. 406.

(4) A.I.R. [1958] And. Pra. 230.

(5) I.L.R. [1961] Bom. 135.

held that the provisions of s. 417(4) were a 'special law' within the meaning of s. 29(2) of the Limitation Act. In that cast" <ORG> has dealt with the decisions of the different High courts on the question and with the reasonings for those decisions. As we agree with the conclusions of <ORG> of Bombay, we do not think it necessary to repeat the observations made therein, bearing on the reasons given by <ORG>s of Allahabad, Andhra Pradesh and Madras for coming to contrary conclusions. For the reasons given above, We hold that the view taken by <ORG> of Punjab is entirely correct. The appeal is accordingly dismissed, Appeal dismissed.


CASE NO.: Appeal (civil) 4250 of 2000 PETITIONER: B.P. ACHALA ANAND RESPONDENT: S. APPI REDDY & ANR. DATE OF JUDGMENT: 11/02/2005 BENCH: CJI,G.P. Mathur & <NAME> JUDGMENT:

J U D G M E N T <NAME>, CJI Unusual fact situation posing issues for resolution is an opportunity for innovation. Law, as administered by <ORG>, transforms into justice. "The definition of justice mentioned in <NAME>'s Corpus Juris Civilis (adopted from the Roman jurist Ulpian) states 'Justice is constant and perpetual will to render to everyone that to which he is entitled.' Similarly, <NAME> described justice as 'the disposition of the human mind to render everyone his due'." The law does not remain static. It does not operate in a vacuum. As social norms and values change, laws too have to be re-interpreted, and recast. Law is really a dynamic instrument fashioned by society for the purposes of achieving harmonious adjustment, human relations by elimination of social tensions and conflicts. Lord <NAME> once said: "Law does not standstill; it moves continuously. Once this is recognized, then the task of a judge is put on a higher plain. He must consciously seek to mould the law so as to serve the needs of the time."

The facts which are either not disputed, or, are, at this stage, beyond the pale of controversy, may briefly be noticed. The appellant <NAME> (hereinafter '<NAME>' for short) was the legally wedded wife of <NAME>-respondent No. 2. Their relationship got estranged so much so that in the year 1983 <NAME> deserted his wife <NAME>. The matrimonial home was a tenanted premises owned by respondent No.1. <NAME> left behind his wife with the children in the tenanted premises and walked away to reside in a lodge. In the year 1991, proceedings for dissolution of marriage by decree of divorce seem to have been initiated between the estranged couple. On 3/12/1998 the marriage stood dissolved by a decree of divorce based on mutual consent. That was an unhappy ending so far as the matrimonial relationship is concerned. However, what transpired between the couple has given a complex turn to an otherwise simple landlord-tenant litigation which we are called upon to deal with in this appeal.

The premises forming part of dispute in the present litigation is situated on the ground floor of a property bearing No. 522, Upper Palace Orchards, Bangalore. <ORG> had taken the ground floor of the building on tenancy from the landlord-respondent No.1. The rent of the premises was fixed at Rs. 300/- which was later on revised and enhanced to Rs. 600/- and then to Rs. 700/- (the rate which <ORG> has found proved on evidence). The ground floor premises consisted of one verandah, one hall, two bedrooms with attached toilet, kitchen, bathroom, another toilet and corridor with overhead water supply and other incidental facilities. The tenant <ORG> resided in the premises with his family members including his wife <NAME>.

The tenanted premises were badly in need of repairs and in April 1991, consequent upon a mutual agreement arrived at between the landlord and the tenant, a major portion of the ground floor-tenanted - premises was handed over by the tenant to the landlord for the purpose of carrying out repairs and the tenant continued to retain and enjoy the verandah, one bedroom and an attached toilet. However, the repairs, as were agreed upon, were not carried out.

On 28/11/1991, the landlord served a notice upon the tenant <NAME> and initiated proceedings for eviction from the suit premises on the grounds available under Clauses (a) and (h) of sub-section (1) of Section 21 of the Karnataka Rent Control, Act, 1961 (hereinafter "the Act" for short). The tenant was alleged to be in arrears of rent and was, therefore, called upon to clear the same within a period of two months from the date of the service of the notice in this regard. It was also alleged that the landlord and his wife were old-aged couple and now-a-days residing in some adjoining premises not their own and needed bona fide the ground floor premises for their own occupation. The tenant-<NAME> appeared in <ORG> and defended the suit. However, it seems that on account of strained relationship between him and his wife and, further as he had discontinued his residence in the tenanted premises, he was not serious in contesting the suit and consequently, in the event of a decree for eviction being passed, the family members including the appellant-Smt. <NAME>, the deserted wife, ran the risk of being thrown away from the tenanted premises which happened to be the matrimonial home. Briefly stating these facts, the appellant moved an application under Order I Rule 10 of the Code of Civil Procedure (for short "the Code") seeking her own impleadment in the eviction proceedings so as to defend against the eviction. The trial court, by order dated 30.01.1993, rejected the application.

The appellant preferred a revision petition in <ORG>. Obvious as it is, the revision petition preferred by the appellant was contested by the landlord-respondent No. 1 submitting that it being a landlord-tenant dispute, the appellant- wife had no right to be joined as a party to the proceedings and further that the rent being substantially in arrears, the case for eviction was already made out and impleadment of the appellant would only prolong the proceedings. <ORG> vide its order dated 02/12/1993 (Civil Revision Petition No. 1309/1993) noted the submission of the parties and passed an order which can be termed an equitable one. Legality or otherwise of the contentions raised by the parties in <ORG> was left open, the revision petition was allowed and the trial court's order dated 30/01/1993 was set aside. The appellant was permitted to be brought on record as defendant No. 2 in the original case subject to her depositing a sum of Rs. 10,000/- towards payment of arrears of rent. <ORG> did not express any opinion as to the status of the appellant as tenant or otherwise which issue was left open to be decided by the trial court. The fact remains that the appellant did deposit an amount of Rs. 10,000/- towards the arrears of rent claimed by the landlord and it appears that the amount has been withdrawn by the landlord without prejudice to his rights. The appellant has, thereafter, contested the suit.

The trial court disposed of the suit on 04/12/1998. The trial court held that <NAME>-respondent No. 2 was the tenant. A case for eviction under Section 21(1)(a) of the Act was not made out in the opinion of the trial court. However, a case for partial eviction under Section 21(1)(h) was made out. The trial court directed partial eviction of the two defendants (i.e. <NAME> and his wife <NAME>) from that portion of the premises over which the tenant had surrendered possession to the landlord and allowed the tenant to continue in the front portion, namely, bedroom, hall, verandah, toilet etc. as to which accommodation the eviction petition was directed to be dismissed.

Feeling aggrieved, the landlord preferred a revision petition in <ORG> which has been disposed of by the judgment impugned herein. It will be useful to notice in brief the findings arrived at by <ORG> which are as follows. According to <ORG> ___ "There is no relationship of landlord and tenant between the landlord and Smt. <NAME>. The tenancy vested only in <NAME> who had given away the contest. He was served with a prior notice of demand. The rent was Rs. 700/- per month. The provisions of Section 21(2) of the Act were not complied with and therefore, the question of extending protection under Section 21(2) did not arise and the tenant was liable to be evicted under Section 21(1)(a)." So far as the ground for eviction under Section 21(1)(h) is concerned, <ORG> has not discussed the evidence in very many details but seems to have been persuaded to hold against the landlord on the ground that the first and second floor of the premises fell vacant but were not occupied by the landlord and were rather let out which is a pointer to the lack of bona fides. Even the back portion of the ground floor premises which was got vacated from the tenant was not put to any use for satisfying the alleged need of the landlord. <ORG> set aside the order of partial eviction under Section 21(1)(h) and instead directed the tenant to be evicted under Section 21(1)(a) of the Act. It may be noted that neither the tenant <NAME> nor Smt. <NAME>, the wife had challenged the order for partial eviction passed by the trial court and it became final. Smt. <NAME> has, feeling aggrieved by the judgment of <ORG>, preferred this appeal by special leave. The tenant  <NAME> has not filed any appeal.

The Karanataka Rent Control Act, 1961 has been enacted to provide for the control of rents and evictions and for the leasing of buildings amongst other things. It is not necessary to extract and reproduce in extenso the relevant provisions of the Act. For our purpose, it would suffice to notice that vide clause

(a) of sub-section (1) of Section 21 of the Act, the tenant's failure to pay or tender the whole of the arrears of the rent legally recoverable from him within two months of the date of service of notice of demand on him in this regard provides a ground for eviction. In spite of a ground for eviction having been made out within the meaning of the said provision entitling the landlord to initiate proceedings for eviction of the tenant, no order for the recovery of possession of any premises on that ground shall be made if the tenant deposits or pays to the landlord rent during the pendency of proceedings in the manner prescribed by Section 29 of the Act and satisfies the <ORG> that there was a sufficient cause for the default to pay or tender the rent within the period referred to in Section 21(1)(a) and further pays to the landlord or deposits in the <ORG> such further amount as may be determined and fixed by the <ORG> within the meaning of clause (iii) of sub-section (2) of Section 21 of the Act.

Under Section 30 of the Act once the interest of the tenant in any premises has been determined and order for recovery of possession has been made by the Court the same is binding on all persons who may be in occupation of the premises and vacant possession of the premises has to be given to the landlord by evicting the tenant and all persons in occupation of the premises excepting those who have any independent title to such premises. The term 'family' has been defined in clause (ff) of Section 3 of the Act as ___ "'family' in relation to a person means the wife or husband of such person and his or her dependent children". Once the premises are taken on lease by any individual as tenant he is entitled to exercise all such rights and is subject to all such obligations qua the landlord as are referable to a lessee under the law. Yet, the tenant in whose name the tenancy has been created is not the only one who is entitled to live in the residential premises; he has a right to live therein with his family wherein is included the spouse. In any litigation, based on landlord-tenant relationship, when the tenant enters upon defence, he does so not only for himself but also for protecting the interest of his family as its members do live and are entitled to live with him, because in the event of an order for eviction being made it is not only the tenant but also his family members who shall be liable to be evicted from the tenancy premises along with him.

Having said so generally, we may now deal with the right of a wife to reside in the matrimonial home under personal laws. In the factual context of the present case, we are confining ourselves to dealing with the personal law as applicable to Hindus as the parties are so. A Hindu wife is entitled to be maintained by her husband. She is entitled to remain under his roof and protection. She is also entitled to separate residence if by reason of the husband's conduct or by his refusal to maintain her in his own place of residence or for other just cause she is compelled to live apart from him. Right to residence is a part and parcel of wife's right to maintenance. The right to maintenance cannot be defeated by the husband executing a will to defeat such a right. (See: <ORG>, Vol. I, 18th Ed. 2001, paras 554 and 555) The right has come to be statutorily recognized with the enactment of the Hindu Adoption and Maintenance Act , 1956. Section 18 of the Act provides for maintenance of wife. Maintenance has been so defined in clause

(b) of Section 3 of the Hindu Adoption and Maintenance Act , 1956 as to include therein provision for residence amongst other things. For the purpose of maintenance the term 'wife' includes a divorced wife.

The position of law which emerges on a conjoint reading of the Rent Control Legislation and Personal Laws providing for right to maintenance ___ which will include the right to residence of a wife, including a deserted or divorced wife, may be examined. The Rent Control Law makes provision for protection of the tenant not only for his own benefit but also for the benefit of all those residing or entitled to reside with him or for whose residence he must provide for. A decree or order for eviction would deprive not only the tenant of such protection but members of his family (including the spouse) will also suffer eviction. So long as the tenant defends himself, the interest of his family members merges with that of the tenant and they too are protected. The tenant cannot, by collusion or by deliberate prejudicial act, give up the protection of law to the detriment of his family members. So long as a decree for eviction has not been passed the members of the family are entitled to come to the court and seek leave to defend and thereby contest the proceedings and such leave may be granted by the court if the court is satisfied that the tenant was not defending ___ by collusion, connivance or neglect ___ or was acting to the detriment of such persons. Such a situation would be rare and the court shall always be on its guard in entertaining any such prayer. But the existence of such a right flows from what has been stated hereinabove and must be recognized. Persons residing with the tenant as members of his family would obviously be aware of the litigation and, therefore, it will be for them to act diligently and approach the court promptly and in any case before the decree of eviction is passed as delay defeats equity. Such a prayer or any dispute sought to be raised post- decree by a member of family of the tenant may not be entertained by the court.

Any precedent, much less of a binding authority, from any Court in India and dealing with a situation as we are called upon to deal with is not available. At least, none has been brought to our notice. However, English decisions can be found. Lord <NAME> states in The Due Process of Law (London, Butterworths, 1980, at page 212) ___ "A wife is no longer her husband's chattel. She is beginning to be regarded by the laws as a partner in all affairs which are their common concern. Thus the husband can no longer turn her out of the matrimonial home. She has as much right as he to stay there even though the house does stand in his name. . . . . . . . Moreover it has been held that the wife's right is effective, not only as against her husband but also as against the landlord. Thus where a husband who was statutory tenant of the matrimonial home, deserted his wife and left the house, it was held that the landlord could not turn her out so long as she paid the rent and performed the conditions of the tenancy."

In <ORG> v. <ORG>, [1949] 2 All England Law Reports 822, a statutory tenant living with his wife in a flat which constituted the matrimonial home left the premises following a quarrel with his wife, and purported to surrender them to the landlords by agreement. His wife remained in occupation with the use of his furniture. On the wife's refusing to quit the premises, the husband gave her written notice revoking any authority which she might have from him to occupy the flat. In proceedings by the landlords against the tenant and his wife for possession, the court held that the tenant had not given up possession, as he remained in occupation through his wife and furniture, and, accordingly, his statutory tenancy had not been terminated. The statement of law as made by Denning, L.J. is instructive. He said ___ "If a statutory tenant goes out of occupation, leaving lodgers or sub- tenants or no one in the house, he ceases to be entitled to the protection of the Rent Restrictions Acts, but he does not, in my opinion, lose the protection if he goes out leaving his wife and furniture there. The reason is because the wife has a very special position in the matrimonial home. She is not the sub- tenant or licensee of the husband. It is his duty to provide a roof over her head. He is not entitled to tell her to go without seeing that she has a proper place to go to. He is not entitled to turn her out without an order of the court : see <NAME> v. <NAME>, [1947] 2 All E.R. 792. Even if she stays there against his will, she is lawfully there, and, so long as she is lawfully there, the house remains within the Rent Act s and the landlord can only obtain possession if the conditions laid down by the Acts are satisfied."

Their Lordships referred to and applied the dictum of Lord <NAME>, M.R., in Brown v. <NAME>, [1944] 1 All E.R. 246, where the facts were somewhat similar. A husband was the tenant of a house on a weekly tenancy. As in this case, he left the house in a dispute with his wife, and his wife and child remained in occupation of the house with the use of his furniture and he continued to pay rent. He received notice to quit from the landlord and he then stopped paying the rent, but he did not revoke his leave to the wife to reside in the house nor did he remove his furniture. Later, the landlord brought proceedings against the wife for trespass and at the hearing, the husband, who was not made a party to the proceedings, gave evidence that he had no interest in the house. It was held by <ORG> that the husband was still in possession of the house, and the only way he could be deprived of the protection of the Rent Act s was by his going out of possession or having an order for recovery of possession made against him.

Applying the law propounded in <NAME> v. <NAME> (supra) and in <ORG> v. <NAME> and Anr. (supra), <ORG> held in <NAME> v. <NAME>, [1950] 1 All England Law Reports 708, that where a husband had deserted his wife and the wife remained in the matrimonial home, she was lawfully there and the husband remained in occupation through her; possession of a dwelling-house to which the Rent Restrictions Acts applied could only be ordered on one of the grounds specified in the Acts, and a tenant could not by agreement waive the statutory protection afforded by the Acts; and, therefore, the orders for possession were wrongly made.

The deserted woman's equity (as it was called) was considered by <ORG> in <ORG> v. <NAME> [1965] AC 1175. The <ORG> held that the rights of a deserted wife were their personal rights and as such that they could not be treated as in any sense constituting a clog on the property of the husband so as to run with the land as in the case of reality; and that, accordingly, a deserted wife could not resist a claim from a genuine purchaser of the matrimonial home from her husband whether the purchase took place after or before desertion. Lord <NAME> stated: "The duration of the right if it were held to affect the land would be uncertain. It would not survive divorce nor would it necessarily survive a judicial separation by order of the court which puts an end to the duty of cohabitation on both sides." He concluded:- "Having done the best I can to analyze the nature of the right which the wife has against her husband which is fundamentally the right relied on by the respondent, I conclude that it does not operate as a clog on the land which protects her by operating as a mere equity against anyone but a purchaser for value without notice". Lord <NAME> stated:- "The cases that I have already cited show that, provided the wife's marital rights are adequately safeguarded in some such way, the court would not normally refuse to evict a wife if the husband wants to deal with his property. Or he may return and resume cohabitation when the domestic forum resumes exclusive jurisdiction. Or the wife may change her position. She may commit a matrimonial offence which may lead the court to refuse her the right to continue under her husband's roof; she may obtain (as in this case) a decree of judicial separation which at all events brings the husband's desertion to an end [<NAME> v. <NAME> (1909 P 123)]. Such a decree must necessarily be an important though not conclusive factor, if the husband is seeking to turn his wife out of occupation. Finally, any right on the part of the deserted wife to remain in occupation, terminates when the marriage terminates." (emphasis supplied). His Lordship in conclusion stated:-

"My Lords, when differing as I do with regret from so eminent a judge as the Master of the Rolls I think it is important to see how this problem has been dealt with in other comparable jurisdictions.

In several States of Australia there has been a refusal to recognize that the deserted wife has any equity available against third parties. In <NAME> vs. <NAME> (1953 V.L.R. 111) <NAME> sitting in <ORG> after an exhaustive review of the authorities, including Bendall Vs. McWhirter ( 1952(2) Q.B. 466) then recently decided in <ORG>, refused to recognize any right on the part of the wife available against purchasers for value.

In Public Trustee vs. <NAME> ( 1956 V.L.R.

64) sitting in the same court <NAME> <NAME> criticized the doctrine.

In <NAME> vs. <NAME> (1956 S.A.S.R. 233) <NAME> sitting in <ORG> followed <NAME> in preference to the English decisions.

Finally, in <NAME> vs. <NAME> [(1958) 58 S.R. (N.S.W.) 179], <ORG> refused to follow <NAME> vs. <NAME> (supra) save in relation to bankruptcy. I derive much comfort from such a strong body of opinion in favour of the view I have expressed."

In <NAME> v. <NAME>, [1948] 64 TLR 596, it was held that "after the date of the divorce the former wife of the defendant was a stranger to him and was not in occupation of the flat as his representative and that as he had abandoned possession himself, the Rent Restriction Acts did not apply."

In <NAME> v. <NAME> [1953] 1 QB 762, a wife continued to reside in the matrimonial home even after she obtained a decree of divorce against her husband. After some time the husband brought proceedings for possession. The divorced wife resisted claiming that she had an irrevocable licence during her lifetime. It was held by <ORG> (<ORG> <NAME>. L.J.J.) that after they had ceased to be husband and wife, the wife could not justify her claim unless she could set up a contract. As it was, the statement originally made to her could after the divorce, amount to no more than she, as ex wife, was entitled to remain in occupation as a bare licensee and the licence was, therefore, revocable. Lord <NAME> stated:

"The wife ought to have protected her position by applying for maintenance in the divorce proceedings before decree absolute and should have come to an arrangement with her husband whereby he agreed not to turn her out except by an order of the court, she agreeing to accept a reduced sum for maintenance as long as she lived there."

This indicates that the right of residence is a part of the right to maintenance and in which case in the absence of an order by the matrimonial court in the proceedings for divorce, she would not be able to set up a claim in respect of the house even as against her husband, leave alone the landlord of her husband.

It is of interest to note that the above decision of <ORG> led to the enactment of the Matrimonial Homes Act, 1983. The preamble of the Act says "an Act to consolidate certain enactments relating to the rights of a husband or wife to occupy a dwelling house that has been a matrimonial home". So long as one spouse has right to occupation, either of the spouses may apply to the court for an order requiring either spouse to permit the exercise by the other of that right. This is one of the several rights expressly provided for.

It has been held in India that right to maintenance arises out of the status as a wife and not by way of a contract or otherwise. <CITATION> , AIR 1925 Madras 757, Specncer, Officiating CJ, stated:

"The obligation of a husband to maintain his wife is described, as one arising out of the status of marriage. It is a liability created by the Hindu Law in respect of the jural relations of the Hindu family. When there is no contract between the parties to a marriage, as among Hindus, a suit for maintenance is not a suit based upon contract, but it is a suit arising out of a civil relation resembling that of a contract, which is specially provided for in Article 128 of the Limitation Act ". ( <CITATION> , AIR 1927 Madras 1187, it was stated that the maintenance of a wife by a husband is a personal obligation upon him arising from the existence of the relations. <CITATION> 43 Madras 635, it was held that an auction purchaser of an ancestral house sold in execution of a money decree passed on a personal debt of the mother who inherited the property as heir to her son, is not entitled to oust the unmarried sisters of the latter, who reside in the house. <ORG> in <CITATION> , AIR 1936 Bombay 138, held that under the Hindu Law, the right of a wife to maintenance is a matter of personal obligation on the husband. It rests on the relations arising from the marriage and is not dependent on or qualified by a reference to the possession of any property by the husband. In <NAME> v. <NAME>, ILR 45 Bombay 337, it was held:-

"Under Hindu Law, a widow cannot assert her right of residence in a house which has been sold by her husband during his life time, unless a charge is created in her favour prior to the sale. The right which a Hindu wife has during her husband's life time is a matter of personal obligation arising from the very existence of the relation and quite independent of the possession by the husband of any property, ancestral or self acquired." ( <CITATION> , AIR 1982 Bombay 341, is a Division Bench decision of <ORG>, dealing with right to residence of a wife in the matrimonial home. The marriage between the parties was subsisting in law but had broken down beyond repairs. The husband filed a suit inter alia for injunction, restraining the wife from entering the matrimonial house. The Court held that an injunction subject to certain terms and conditions could be granted. The parties, on account of seriously estranged relationship between them could not be forced to live together. The flat was big enough to allow the parties to live there separately. The Court earmarked separate portions for the husband and the wife to live separately and restrained the wife from entering the portion in occupation of the husband, who was an eminent surgeon, so that he could have a peace of mind to enable him to discharge his duties as a surgeon more efficiently. In addition, the husband was directed to pay a certain amount of money by way of maintenance to the wife.

A Single Bench decision of <ORG> in M/s. Bharat Heavy Plates and Vessles Ltd., AIR 1985 Andhra Pradesh 207, is more near to the facts of the case at hand. The husband was an employee in a company. He was allotted a company quarter in which he lived with his wife. The quarter was the matrimonial home. However, differences developed between the husband and wife, leading to their estrangement and finally the wife went to the Court, charging her husband with neglect to maintain her and her three minor children. The husband left the company quarter and it was occupied only by his wife and minor children. The husband also wrote to the company, terminating the lease which was in his favour. The hovering prospects of eviction led the wife to the Court for protection, seeking an injunction restraining the company from evicting the wife and her three minor children. <ORG> upheld the order impugned before it, whereby the company was restrained from evicting the wife and her minor children. For forming this opinion, the Court took into consideration the facts that the quarter was meant to be used by the employee and the husband was under an obligation to provide shelter to the wife and children. The husband and the company had both recognized the quarter to be the matrimonial home wherein the wife too was residing. The amount of rent was directed to be deducted from the salary of the husband.

This <ORG> in <CITATION> , , has held: "According to the law of land with regard to maintenance there is an obligation on the husband to maintain his wife which does not arise by reason of any contract - expressed or implied - but out of jural relationship of husband and wife consequent to the performance of marriage. .. The obligation to maintain them is personal, legal and absolute in character and arises from the very existence of the relationship between the parties."

Section 18 of the Hindu Adoption and Maintenance Act confers a right on a wife to be maintained by her husband during her life time. According to <NAME>, the right of a wife for maintenance is an incident of the status or estate of matrimony and a Hindu is under a legal obligation to maintain his wife. (See : <NAME>, ibid, pp 454-455) The Hindu Marriage Act provides for divorce. Section 15 indicates when divorced persons may marry again. Section 25 enables the court to pass an order for providing alimony and maintenance in favour of the divorced wife. Section 27 enables the court to make provisions in the decree in respect of a property that may belong to the wife or to both. On the status of wife being terminated by a decree for divorce under the Hindu Marriage Act , the rights of the divorced wife seem to be cribbed, confined and cabined by the provisions of the Hindu Marriage Act and to the rights available under Sections 25 and 27 of the Act. <CITATION> , 1997 (2) MLJ 366, <ORG> has held that a court can pass an appropriate order under Section 27 of the Hindu Marriage Act even when one of the parties to a marriage claims the property as belonging to him exclusively thereby indicating that it might have been possible to make a provision regarding the tenanted premises, in the proceedings under the Hindu Marriage Act . How far that order would be binding on a landlord who is not a party is another question, but it would certainly give her a right to defend the proceedings for eviction.

Incidentally, we may refer to <CITATION> ., AIR 1964 SC 1305, though not directly in point. Proceedings for eviction were initiated by the landlord against the tenant and sub-tenant unlawfully inducted by the tenant in the premises. The tenant suffered a decree for eviction and decided not to file an appeal. This Court upheld the right of sub-tenant to file an appeal in his own right against the decree so as to protect himself even though thereby the tenant would also be freed from the decree.

In our opinion, a deserted wife who has been or is entitled to be in occupation of the matrimonial home is entitled to contest the suit for eviction filed against her husband in his capacity as tenant subject to satisfying two conditions : first, that the tenant has given up the contest or is not interested in contesting the suit and such giving up by the tenant-husband shall prejudice the deserted wife who is residing in the premises; and secondly, the scope and ambit of the contest or defence by the wife would not be on a footing higher or larger than that of the tenant himself. In other words, such a wife would be entitled to raise all such pleas and claim trial thereon, as would have been available to the tenant himself and no more. So long as, by availing the benefit of the provisions of the Transfer of Property Act and <ORG>, the tenant would have been entitled to stay in the tenancy premises, the wife too can continue to stay exercising her right to residence as a part of right to maintenance subject to compliance with all such obligations including the payment of rent to which the tenant is subject. This right comes to an end with the wife losing her status as wife consequent upon decree of divorce and the right to occupy the house as part of right to maintenance coming to an end.

We are also of the opinion that a deserted wife in occupation of the tenanted premises cannot be placed in a position worse than that of a sub-tenant contesting a claim for eviction on the ground of subletting. Having been deserted by the tenant-husband, she cannot be deprived of the roof over her head where the tenant has conveniently left her to face the peril of eviction attributable to default or neglect of himself. We are inclined to hold  and we do so  that a deserted wife continuing in occupation of the premises obtained on lease by her husband, and which was their matrimonial home, occupies a position akin to that of an heir of the tenant-husband if the right to residence of such wife has not come to an end. The tenant having lost interest in protecting his tenancy rights as available to him under the law, the same right would devolve upon and inhere in the wife so long as she continues in occupation of the premises. Her rights and obligations shall not be higher or larger than those of the tenant himself. A suitable amendment in the legislation is called for to that effect. And, so long as that is not done, we, responding to the demands of social and gender justice, need to mould the relief and do complete justice by exercising our jurisdiction under Article 142 of the Constitution. We hasten to add that the purpose of our holding as above is to give the wife's right to residence a meaningful efficacy as dictated by the needs of the times; we do not intend nor do we propose the landlord's right to eviction against his tenant to be subordinated to wife's right to residence enforceable against her husband. Let both the rights co-exist so long as they can.

We have dealt with all the abovesaid aspects of the law as it was urged on behalf of the landlord __ respondent No. 1 that Smt. <NAME>, the appellant has no right to contest or defend herself in these proceedings nor a right to file and prosecute this appeal as there is no privity of contract between the appellant and landlord and the appellant is neither a tenant nor so recognized ever by the respondent No. 1 __ landlord. We cannot agree. We feel that the appellant was rightly ___ in the facts and circumstances of the case ___ permitted by <ORG> to be joined as a party to the proceedings. She was also rightly allowed to contest the suit and deposit the rent in the court for payment to landlord for and on behalf of the tenant-husband.

So far as a deserted wife, whose status as wife has not come to an end by a decree of divorce or by decree for annulment of marriage, is concerned, we have made the position of law clear as above. However, the case of a divorced wife stands on a little different footing. Divorce is termination of matrimonial relationship and brings to an end the status of wife as such. Whether or not she has the right of residence in the matrimonial home, would depend on the terms and conditions in which the decree of divorce has been granted and provision for maintenance (including residence) has been made. In the event of the provision for residence of a divorced wife having been made by the husband in the matrimonial home situated in the tenanted premises, such divorced wife too would be entitled to defend, in the eviction proceedings, the tenancy rights and rights of occupation thereunder in the same manner in which the husband-tenant could have done and certainly not higher or larger than that. She would be liable to be evicted in the same manner in which her husband as tenant would have been liable to be evicted.

In the present case, it is admitted by the appellant that on 3.12.1998, that is, during the pendency of these proceedings and while the matter was pending in <ORG> a decree for dissolution of marriage by divorce based on mutual consent has been passed. The terms and conditions of such settlement have not been brought on record by the appellant which she ought to have done. It is not the case of Smt. <NAME>, the appellant that she is entitled to continue her residence in the tenanted premises by virtue of an obligation incurred by her husband to provide residence for her as a part of maintenance. She cannot, therefore, be allowed to prosecute the appeal and defend her right against the claim for eviction made by the landlord.

The appeal is, therefore, held liable to be dismissed and is dismissed accordingly. However, in the facts and circumstances of the case, the appellant is allowed time till 31.12.2005 for vacating the suit premises, subject to the following conditions:-

(i) that the appellant shall clear all the arrears of rent (calculated upto the date of deposit) at the rate of Rs.700/- per month, on or before 31st March, 2005, by depositing the same in the executing court;

(ii) with effect from 1st April, 2005 the appellant shall continue to deposit rent calculated at the rate of Rs.700/- per month on or before 15th day of each month for payment to landlord;

(iii) on or before 31st December, 2005, the appellant shall hand over vacant and peaceful possession over the suit premises to the landlord and shall not in-between part with possession to anyone else or create third party interest;

(iv) that an undertaking on affidavit, incorporating the above said terms, shall be filed in the executing court on or before 31.3.2005.

No order as to the costs.