JUDGMENT <NAME>, J.

1. The only question, in this appeal, is whether the plaintiffs claim, which is one to enforce payment of the amount due on a simple mortgage by sale of the mortgaged property, is barred by limitation. The mortgage bond is dated the 16th of July, 1890, and the time fixed for repayment is ten years. Except for another provision in the bond, to which I shall presently refer, the amount secured by it was repayable on the 16th July, 1900, and as the present suit was instituted on the 12th June, 1912, it would be within time under Article 132 Schedule I to the Limitation Act , which has been held by their Lordships of <ORG> to be applicable to a suit of this kind. The defendants, however, rely on the following provision of the bond and urge that the amount of the mortgage became due when default was made in the payment of the first instalment and as more than twelve years have elapsed since the date of default the claim is time-barred. The provision is this : "We shall pay Rs. 625 yearly and we shall pay the interest on the said amount monthly at the rate of 8 annas per month. If we fail to pay the interest aforesaid in any month, or the principal by the end of the stipulated period, as specified above, or no payment is made in a year, the mortgagee shall, under all these circumstances, be at liberty to realize the entire amount with the interest aforesaid in a lump sum, through court, by means of a suit, from the mortgaged and other moveable and immoveable property and the persons of us the executants." Had this clause stood alone it might perhaps be said, on the authority of the English and other cases cited on behalf of the respondents, that the plaintiffs were bound to sue when default was first made in the payment of the instalment fixed in the bond. The document, however, goes on to provide that "if the mortgagees in order to get interest, do not bring a suit in default of payment of any instalment and we be unable to pay the money, the interest should continue up to the stipulated period of ten years and also after it up to date of realization." This clause, in my opinion, means that the mortgagee is competent to wait for the full period of ten years stipulated in the bond and it is not obligatory on him to call in the money on the occurrence of a default in the payment of the instalments. The bond, in its earlier provisions, made the mortgaged property security both for principal and interest and this clause would be wholly unnecessary and redundant if the meaning of it was only to make the property security for interest or to provide for payment of interest. It says nothing about the security and it, in my opinion, clearly intends that the mortgagee might, if he so chose wait for the full term of ten years and if he did so, interest Would run till date of actual payment. This provision in the bond gives full power to the mortgagee not to enforce his right to claim the entire amount of the mortgage on the happening of a default but to wait till the expiry of the stipulated period often years. It is true that under Article 132 time begins to run from the date when the money becomes due, but that date depends upon the terms of each document, and a true construction of those terms. In my judgement, in view of the clause in the bond in suit to which I have referred, the money secured by the bond did not become due until the expiration of ten years from the date of the bond. Where, under the terms of the document, the creditor is authorized to wait for the full period stipulated for repayment, the money cannot be held to have become due, within the meaning of Article 132 , until the expiry of that period. The first clause, as to payment of the whole amount on the occurrence of a default, was clearly inserted in the document for the benefit of the creditor and as he was expressly authorized not to take advantage of the clause, I am unable to hold that he was bound to sue when default was made. Any other view would, as observed in <CITATION> (1907) I.L.R. 29 All. 431 be "very unfortunate." "It would be to punish a creditor for forbearance shown to his debtor, and compel him to press his demands at the earliest opportunity and insist upon speedy and full satisfaction of his claim." The question in that case was of the applicability of article 75 which of course does not govern this case, but the principle of the ruling applies. A similar view was held by <NAME>, C.J., and <NAME>, J., in <NAME> v. <NAME> (1894) I.L.R. 16 All. 371, which was a case of execution of a decree. The decree in that case provided that the amount of it should be paid by eight instalments and that in case of default and non-payment of any instalment the plaintiff had power to realize in one lump sum the entire decretal money payable up to that time by executing the decree. It was held, upon a construction of the decree, that "the decree-holder, on the happening of any default, might, if he wished, execute the decree for all the decretal money then unpaid, but that it was not the intention that on the happening of a default the decree-holder should be bound to execute the decree once and for all." <CITATION> (1875) I.L.R. 1 Calc. 163 their Lordships of <ORG> expressed a similar opinion. That was a suit to recover the amount of a hypothecation bond in which the borrower engaged to repay the amount with interest on a day named, with a condition that in the event of the hypothecated lands being sold in execution of a decree before the day fixed for repayment, the lender should be at liberty at once to sue for the recovery of the debt. It was contended that the plaintiff's cause of action arose on the 18th May, 1865, when the lands pledged were sold in execution and that the suit having been brought after six years from that date was time-barred. With reference to this contention their Lordships observed : Their Lordships must not be supposed, in coming to this decision, to give any countenance to the argument of Mr. <NAME> that this suit would have been barred if the limitation of six years under Clause 16 had been applicable to it. They think upon the construction of this bond there would be good reason for holding that the cause of action arose within six years of the commencement of the suit." Their Lordships thus held that limitation would begin to run from the date fixed for payment and that the cause of action arose, that is to say, the money became due, on that date and not on the date on which the hypothecated property was sold in execution. It is true that their Lordships said that it was not necessary to decide the point in the view which they took of the period of limitation applicable to the case before them but an expression of opinion by their Lordships is entitled to the greatest weight and ought to guide the courts in this country. Considerable reliance Was placed on behalf of the respondents on the cases of <CITATION> (1896) I.L.R. 24 Calc. 281 and <CITATION> (1896) I.L.R. 20 Mad. 245. In neither of those cases was there a clause, in the bond, similar to the one in this case, which expressly empowered the creditor to wait for the full term of the mortgage. Those cases, therefore, are in my opinion no authority on the question before us. The decision of that question depends upon the true construction of the terms of the bond and the intention of the parties as gathered from the bond. I am of opinion that upon a true construction of the bond in this case the money secured by it became due on the expiration of ten years from the date of the bond and that the claim is not barred by limitation. I would allow the appeal, sot aside the decree of the court below and remand the case to that court for trial on the merits.

<NAME>, <NAME>

2. This appeal arises out of a suit to enforce payment of a sum of Rs. 10,000, principal and interest, alleged to be due on foot of a mortgage, dated the 16th July, 1890, by sale of the mortgaged property. The mortgage-deed provided that the mortgagors should pay the principal amount secured in ten years by instalments of Rs. 625 yearly and that the interest should be paid monthly. There was this further clause : "If we fail to pay the interest aforesaid in any month or the principal by the stipulated period, as specified above, or no payment is made in a year, the mortgagee shall, under all these circumstances, be at liberty to realize; the entire amount with the interest aforesaid in a lump sum through court by means of a suit from the mortgaged and other moveable and immoveable property and the person of us the executants." Later on the deed has a provision which has been translated as follows : "If the mortgages, in order to get interest, does not bring a suit in default of any instalment and we are unable to pay the money, the interest should continue up to the stipulated period of ton years and after it [up to the date of realization." This last clause seems to me simply to mean that the mortgaged property should remain and be security for the interest, even if no suit was brought to enforce the monthly payment. No payment was ever made upon foot of either principal or interest up to the date of the institution of the present suit on the 12th June, 1912.

3. The court below has dismissed the plaintiff's suit, holding that the claim is barred by limitation. The plaintiffs have appealed.

4. In my opinion the decision of the court below is correct. It is admitted that the article of the Limitation Act which applies is Article 132 , see the decision of their Lordships of <ORG> in <CITATION> (1907) I.L.R. 30 Mad. 426. This article deals with "suits to enforce payment of money charged upon immoveable property." The period of limitation prescribed is twelve years and time begins to run from the date when the money sued for "becomes due." No doubt if the mortgagors had fulfilled their contract the mortgagees would not have been entitled to sue until the expiration of ten years from the date of the mortgage, and in that case the present suit would have been within time. The provision, however, in the deed admittedly entitled the mortgagee to bring a suit to recover principal and interest after the first default, and if it can be said that the money then "became due" the suit is barred by limitation. It is contended on behalf of the appellant that the mortgagees were entitled to sue, or not to sue, and that accordingly on a true construction of the mortgage deed the money did not "become due" until the expiration of ten years from the date of the mortgage. I cannot agree with this contention. It seems to me that money is "due "when it can be legally demanded, and it is admitted in the present case that the money, secured by this mortgage, could have been legally demanded and recovered after the first default, and had a suit been brought for its recovery by sale of the mortgaged property, the defendants could not have pleaded that such a suit was premature. For this there is the high authority of <ORG> in the case of <NAME> v. <NAME> (1891) 2 Q.B.D. 509. In that case the plaintiff lent money to the defendant under a written agreement for a fixed period of five years "subject to the power to call in the same at an earlier period in the events hereinafter mentioned." The defendant agreed to pay interest quarterly and the plaintiff' agreed not to call in the money for five years if the defendant should regularly pay interest. It was further provided that if the defendant should make default in payment of any quarterly payment of interest for twenty-one days the plaintiff might call in the principal. No interest was ever paid. The plaintiff commenced his action within six years from the end of the period of five years. It was held that time began to run against the plaintiff from the earliest time at which the action could have been brought, that is to say, twenty-one days after the first instalment of interest became due. Lindley, L.J., said: "I am of opinion that we cannot differ from the Judgment below without altering the law. The agreement is one reasonably easy to be understood. It provides for a loan for five years, subject to a provision that if default is made in punctual payment of interest, the principal shall be recoverable at once. Now, the Statute of Limitation (21 Jac. I.C. 16) enacts that such actions as therein mentioned including all actions of debt grounded upon any lending or contract without specialty, shall be brought within six years next after the cause of such action or suit, and not after.' This expression, 'cause of action,' has been repeatedly the subject of decision, and it has been held particularly in <NAME> v. <NAME> (1842) 62 R.R. 423, decided in 1843 that the cause of action arises at the time when the debt could first have been recovered by action. The right to bring an action may arise on various events, but it has always been held that the statute runs from the earliest time at which an action could be brought."

5. <NAME>, L.J., said: "We have not to determine whether the defence here set up is handsome or conscientious, but whether it is good at law, and I am of opinion that it is. The agreement contains a stipulation that the lender shall not call in the principal sum for a period of five years, if the borrower should so long live, and should duly and regularly pay the interest. This implies a contract by the borrower that the principal debt should be paid at once on the death of the borrower, or on default in payment of interest. The subsequent provisions imply a contract by the lender not to enforce payment after the death of the borrower until the expiration of a six months' notice, and a contract not to enforce payment of the capital for default in payment of interest until twenty-one days after such default, thus giving the borrower further time. Subject to the stipulations, the implied contract to pay the principal remained in force. The principal, therefore, became payable twenty days after the first quarterly instalment of interest became due, and from that time the statute of limitations began to run. If authority is wanted. <NAME> v. <NAME> (1842) 62 R.R. 423, is in point."

6. <NAME>, L.J., said : "The defendant alleges that the cause of action arose more than six years before the action was commenced, and that the action is barred by the statute of limitations. Now, when first had the plaintiff a cause of action? When default was made for twenty-one days in payment of an instalment of interest <NAME> v. <NAME> (1842) 62 R.R. 423, is in point. It is said that this case is not good law, and that it has not been referred to for many years. I think that it has not been refer-red to because it has been acquiesced in, and it does not appear that it has ever been questioned. "It seems to me that this case is the clearest authority (if authority were needed) that money "becomes duo" as soon as it is legally recoverable, quite irrespective of when the suit was instituted.

7. This view was taken in the case of <CITATION> (1896) I.L.R. 24 Calc. 281, and in the case of <CITATION> (1896) I.L.R. 20 Mad. 245.

8. A somewhat contrary view was taken in the case of <CITATION> (1898) I.L.R. 22 Mad. 20. In this last case, however, the clause in the mortgage-deed was as follows: "In default of paying on the above dates, I shall pay the said sum with interest at fifteen per cent, per annum from the date of the bond irrespective of the above due date whenever you make the demand." The court seems to have thought that the money did not become due on default unless a demand was made. It is unnecessary lo express any opinion as to whether or not the learned Judges were correct in their construction of the deed in question because there are no similar words in the deed in the present suit.

9. A number of cases have been cited, on behalf of the appellant, including the cases of the <CITATION> (1907) I.L.R. 29 All. 431, <NAME> v. <NAME> (1894) I.L.R. 16 All. 371 and <NAME> v. <NAME> (1908) I.L.R. 30 All. 123. All these cases dealt with the construction of Article 75 of the Limitation Act which contains no reference to the money "becoming due," and in my opinion these cases have no bearing on the question which we have to consider in the present appeal see also <NAME> v. <NAME> (1913) I.L.R. 35 All. 455. Article 75 is the article applicable to quite a different suit from the present. The learned advocate for the appellants also referred to a dictum of their Lordships of <ORG> in the case of <CITATION> (1875) I.L.R. 1 Calc. 163. The facts of that case were quite different, and their Lordships expressly state that it was unnecessary to decide the question to which the dictum refers. Their Lordships have, moreover, in the recent case, to which I have referred, decided that Article 132 is the article which applies to a suit on a simple mortgage to enforce payment of money charged on immoveable property. I am clearly of opinion that in the present case the money "became due" within the meaning of that expression in the article of limitation when the first default was made and that accordingly the suit is barred by limitation. I would dismiss the appeal.

Tudball, J.

10. I concur with the learned Chief Justice that the present suit is barred by limitation. The matter to my mind is a simple one. Article 132 clearly applies and under that article time began to run from the date on which the money became due. To find out the date on which the money became due one has to examine the conditions laid down in the bond. They are simple and run as follows : "It is covenanted that we shall pay the said amount of principal within ten years, that is, we shall pay Rs. 625 annually, and we shall, pay the interest on the said amount monthly at the rate of eight annas per month. If we fail to pay the interest aforesaid in any month or the principal in the stipulated period as specified above, or no payment is made in a year, the mortgagee shall under all these circumstances be at liberty to realize the entire amount with the interest aforesaid in a lump sum through court by means of a suit from the mortgaged and other moveable and immoveable property, and the persons of us, the executants. We or our heirs or representatives shall have no objection or excuse in any way."

11. Then comes a clause on which considerable stress has been laid on behalf of the appellants but which in my opinion is not of the slightest assistance to them. Correctly translated that clause runs as follows : "If the mortgagee, in his desire for interest, does not bring a suit on any default of ours and we are unable to pay the money, the interest shall continue up to the stipulated period of ten years and also after that up to the date of realization." It is an admitted fact that the mortgagors failed to make any payments of interest within the first year after the execution of the deed and no instalment of principal or interest has ever been paid. Under the terms of the bond immediately on the first default occurring, the mortgagor was clearly liable to pay the whole sum to the mortgagee. In other words the money became due from the mortgagor to the mortgagee on the occurrence of the first default. I fail to see how the last clause which I have mentioned above helps the appellants in any way. It seems to me that this clause was simply put into the document in order to make it quite clear that the interest should continue to run, in spite of no suit being brought, not only up to the expiry of the ten years, but also up to the date of realization. It was simply put in to make it clear that interest would not cease to run after the expiry of ten years. The mortgagee on the occurrence of the first default was fully entitled to demand his money and the mortgagor could not have met him with the plea that this demand was premature. There is no question of "waiver" for no waiver has been alleged, much less proved. Paragraph 3 of the plaint is practically a repudiation of any waiver. In my opinion under the clear terms of this bond the money "became due" in the year 1890, and the present suit was many years beyond time. I would, therefore, dismiss the appeal.

11. The order of the <ORG> is that the appeal be dismissed with costs.


REPORTABLE IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 181 OF 2001 <NAME> ...Appellant Versus <NAME> and Ors. ...Respondents WITH CRIMINAL APPEAL NO.182 OF 2001 JUDGMENT

Dr. <NAME>, J.

1. Challenge in these appeals is to the judgment of <ORG> of <ORG> accepting the appeal filed by the respondents who were found guilty of offences punishable under Section 302 read with Section 34 of the Indian Penal Code, 1860 (in short the ` IPC '). <ORG> held that if on taking overall view of the case right of self defence is made out or looks probable from the evidence on record, that right should not be construed narrowly because the right of self defence is a very valuable right and it has a social purpose.

2. Background facts as projected by prosecution in a nutshell are as follows:

The incident occurred on 12.7.1978 at about 5.30 a.m. The respondents 1 and 2 are brothers and sons of <NAME>. On the aforesaid date and time the accused respondents armed with knife and lathi respectively arrived at the `Gotha' of <NAME> (hereinafter referred to as the `deceased') and accused <NAME> started beating the deceased with lathi and also asked his brother <NAME> to kill him, whereupon <NAME> assaulted the deceased with knife. On hearing the cries of deceased, his brother <NAME> (PW-1) who was washing his hands at the Hand Pump installed in the east of `Gotha' of <NAME>, rushed to the scene of occurrence. The cries also attracted <NAME> (P.W.2), <NAME> (P.W.4), <NAME> and <NAME>. <NAME> tried to rescue the deceased but he too was assaulted by <NAME> with knife. Deceased fell down on the ground. The witnesses succeeded in apprehending <NAME> along with the knife with which he had assaulted the deceased and <NAME>. However, accused <NAME> succeeded in making good his escape. Thereafter <NAME> and other witnesses proceeded to Police Station Kotwali along with <NAME> and accused <NAME> on tractor trolley of <NAME>. Before they could reach police station, <NAME> died on the way. <NAME> (P.W.1) prepared F.I.R. (Ex. Ka. I) in his own handwriting and presented the same at Police Station Kotwali at 6.30 a.m. on the same day. <NAME> and blood stained knife, (Ex.1) recovered from him were handed over to police at the police station, in respect of which memo Ex. Ka. 2 were prepared by <NAME> (PW-6) who also prepared Check report and registered the case in general diary. <NAME> (PW-5) was present at the police station when the F.I.R. was lodged. He took up investigation and recorded the statement of first information at the police station. <NAME> conducted inquest on the dead body of <NAME>, which had been brought to the police station by first informant and others. The dead body was then sent for postmortem examination with constable <NAME> and <NAME>. After recording the statements of <NAME> and <NAME> (P.W.4), the Investigating Officer reached the place of occurrence along with first informant and witness <NAME>. He made inspection of the scene of occurrence and prepared site plan Ex. Ka.13. The place where blood was found has been shown by letter `A' in the site plan. <NAME> was arrested on the same day. Injured <NAME> was, however, interrogated on 13.7.1978 and after completing the investigation charge sheet Ex. Ka 15 was submitted against both the accused persons. Dr. <NAME> conducted autopsy on the dead body of <NAME> on 12-7-78 at 12 noon and following ante mortem injuries were found.

1. Incised wound 2" 1/4" x skin deep on right side forehead 1" above the right eye brow and 1-1/2" away from right ear margins clean cut, gaping present, blood clots present and wound was horizontally placed.

2. Incised wound l" x 1/4" x muscle deep on middle of left arm margins clean gaping present, blood clots present.

3. Punctured wound 1-1/4'' x 1/2" x chest cavity deep on right side chest 1" outer to mid line chest and 4" away and above to right nipple, lying vertically, margins clean cut gaping present, blood clots present.

In the internal examination <NAME> was found congested and cut underneath injury No.3, Right lung had also a cut Mark 3/4" x 1/2" pulmonary vessels had also been cut. The chest cavity contained fresh blood about 520 ml. Stomach was empty while large intestines contained gases and faecal matter. In the opinion of the doctor death was due to shock and hemorrhage as a result of ante mortem injuries. The postmortem report is Ex.Ka.4.

The motive for assaulting <NAME> as alleged in the first information report was that on 10-7-78 <NAME> had made an attempt to have carnal intercourse with <NAME>, son of deceased and <NAME> told this fact to his father. Deceased accosted accused <NAME> whereupon the latter threatened him with dire consequences.

Since the accused persons pleaded innocence, trial was held. In order to substantiate the accusations six witnesses were produced. <NAME> (PW-1) is the first informant and younger brother of the deceased. <NAME> (PW-2) is an eye witness. It is to be noted that PW-1 was the injured witness. The accused persons took the stand that on the date of occurrence accused <NAME> went to throw cow dung in the field in the morning and he was assaulted by <NAME> with lathi. On hearing his cries his younger brother <NAME> came there with spear in his hand to save <NAME>. He assaulted the deceased.

As noted above, <ORG> found the evidence of eye witnesses to be credible, cogent and recorded conviction. In appeal, <ORG> found substance in the plea of exercise of right of private defence and directed acquittal.

Criminal Appeal No.181 of 2001 has been filed by the complainant while State of U.P. has filed other Criminal Appeal No.182 of 2001.

3. In support of the appeals, learned counsel for the appellants submitted that <ORG> has acted on surmises and conjectures and has accepted the plea of exercise of right of private defence. <ORG> conclusion as regards non-mention in the FIR that the witness managed to evade the lathi blow or about the injury on the accused are legally untenable. <ORG> has not examined the question as to whether the right of private defence as claimed to have been exercised has been exceeded. It was pointed out that the witness stated about the assault by lathi but in the instant case the deceased does not appear to have received any lathi blow. Since lathi was found at the spot as claimed the defence version, <ORG> probabilised that deceased had made an assault on accused <NAME> by lathi. The genesis and origin of the occurrence has been suppressed and true facts have not been presented. <ORG>, it is submitted, accepted the plea of right of private defence but without any material to substantiate the plea, <ORG> came to an abrupt conclusion that the right has been exercised and the accused persons were acting in self defence. <ORG> also came to a conclusion that the injuries on accused <NAME> were not satisfactorily explained. It was pointed out that those injuries were superficial in nature. To similar effect is the stand taken by the <ORG>.

4. Learned counsel for the accused respondents submitted that in the case of acquittal if two views are possible, the view in favour of the accused has to be accepted. <ORG> on analyzing the evidence came to a conclusion that the accused persons were exercising the right of private defence.

5. Only question which needs to be considered is the alleged exercise of right of private defence. Section 96 , IPC provides that nothing is an offence which is done in the exercise of the right of private defence. The Section does not define the expression `right of private defence'. It merely indicates that nothing is an offence which is done in the exercise of such right. Whether in a particular set of circumstances, a person legitimately acted in the exercise of the right of private defence is a question of fact to be determined on the facts and circumstances of each case. No test in the abstract for determining such a question can be laid down. In determining this question of fact, the <ORG> must consider all the surrounding circumstances. It is not necessary for the accused to plead in so many words that he acted in self-defence. If the circumstances show that the right of private defence was legitimately exercised, it is open to the <ORG> to consider such a plea. In a given case the <ORG> can consider it even if the accused has not taken it, if the same is available to be considered from the material on record. Under Section 105 of the Indian Evidence Act, 1872 (in short `the Evidence Act '), the burden of proof is on the accused, who sets up the plea of self-defence, and, in the absence of proof, it is not possible for the <ORG> to presume the truth of the plea of self-defence. The <ORG> shall presume the absence of such circumstances. It is for the accused to place necessary material on record either by himself adducing positive evidence or by eliciting necessary facts from the witnesses examined for the prosecution. An accused taking the plea of the right of private defence is not necessarily required to call evidence; he can establish his plea by reference to circumstances transpiring from the prosecution evidence itself. The question in such a case would be a question of assessing the true effect of the prosecution evidence, and not a question of the accused discharging any burden. Where the right of private defence is pleaded, the defence must be a reasonable and probable version satisfying the <ORG> that the harm caused by the accused was necessary for either warding off the attack or for forestalling the further reasonable apprehension from the side of the accused. The burden of establishing the plea of self-defence is on the accused and the burden stands discharged by showing preponderance of probabilities in favour of that plea on the basis of the material on record. ( <CITATION> (AIR 1968 SC 702), <CITATION> (AIR 1975 SC 1478), <CITATION> (AIR 1977 SC 2226), and <CITATION> (AIR 1979 SC

577). Sections 100 to 101 define the extent of the right of private defence of body. If a person has a right of private defence of body under Section 97 , that right extends under Section 100 to causing death if there is reasonable apprehension that death or grievous hurt would be the consequence of the assault. The oft quoted observation of this <ORG> in <CITATION> . (AIR 1979 SC 391), runs as follows:

"It is true that the burden on an accused person to establish the plea of self-defence is not as onerous as the one which lies on the prosecution and that, while the prosecution is required to prove its case beyond reasonable doubt, the accused need not establish the plea to the hilt and may discharge his onus by establishing a mere preponderance of probabilities either by laying basis for that plea in the cross-examination of the prosecution witnesses or by adducing defence evidence."

The accused need not prove the existence of the right of private defence beyond reasonable doubt. It is enough for him to show as in a civil case that the preponderance of probabilities is in favour of his plea.

6. A plea of right of private defence cannot be based on surmises and speculation. While considering whether the right of private defence is available to an accused, it is not relevant whether he may have a chance to inflict severe and mortal injury on the aggressor. In order to find whether the right of private defence is available to an accused, the entire incident must be examined with care and viewed in its proper setting. Section 97 deals with the subject matter of right of private defence. The plea of right comprises the body or property (i) of the person exercising the right; or (ii) of any other person; and the right may be exercised in the case of any offence against the body, and in the case of offences of theft, robbery, mischief or criminal trespass, and attempts at such offences in relation to property. Section 99 lays down the limits of the right of private defence. Sections 96 and 98 give a right of private defence against certain offences and acts. The right given under Sections 96 to 98 and 100 to 106 is controlled by Section 99 . To claim a right of private defence extending to voluntary causing of death, the accused must show that there were circumstances giving rise to reasonable grounds for apprehending that either death or grievous hurt would be caused to him. The burden is on the accused to show that he had a right of private defence which extended to causing of death. Sections 100 and 101 , IPC define the limit and extent of right of private defence.

7. Sections 102 and 105 , IPC deal with commencement and continuance of the right of private defence of body and property respectively. The right commences, as soon as a reasonable apprehension of danger to the body arises from an attempt, or threat, to commit the offence, although the offence may not have been committed but not until there is that reasonable apprehension. The right lasts so long as the reasonable apprehension of the danger to the body continues. In <NAME> v. State of Punjab (AIR 1963 SC 612), it was observed that as soon as the cause for reasonable apprehension disappears and the threat has either been destroyed or has been put to route, there can be no occasion to exercise the right of private defence.

8. In order to find whether right of private defence is available or not, the injuries received by the accused, the imminence of threat to his safety, the injuries caused by the accused and the circumstances whether the accused had time to have recourse to public authorities are all relevant factors to be considered. Similar view was expressed by this Court in <CITATION> (AIR 1975 SC 87). (See: <CITATION> , <NAME> alias <CITATION> represented by Inspector of Police, T.N. (2002 (8) SCC 354).

9. As noted in <CITATION> (AIR 1991 SC 1316), a person who is apprehending death or bodily injury cannot weigh in golden scales in the spur of moment and in the heat of circumstances, the number of injuries required to disarm the assailants who were armed with weapons. In moments of excitement and disturbed mental equilibrium it is often difficult to expect the parties to preserve composure and use exactly only so much force in retaliation commensurate with the danger apprehended to him where assault is imminent by use of force, it would be lawful to repel the force in self-defence and the right of private-defence commences, as soon as the threat becomes so imminent. Such situations have to be pragmatically viewed and not with high-powered spectacles or microscopes to detect slight or even marginal overstepping. Due weightage has to be given to, and hyper technical approach has to be avoided in considering what happens on the spur of the moment on the spot and keeping in view normal human reaction and conduct, where self-preservation is the paramount consideration. But, if the fact situation shows that in the guise of self-preservation, what really has been done is to assault the original aggressor, even after the cause of reasonable apprehension has disappeared, the plea of right of private-defence can legitimately be negatived. The <ORG> dealing with the plea has to weigh the material to conclude whether the plea is acceptable. It is essentially, as noted above, a finding of fact.

10. The right of self-defence is a very valuable right, serving a social purpose and should not be construed narrowly. ( <CITATION> . (AIR 1971 SC 1857). Situations have to be judged from the subjective point of view of the accused concerned in the surrounding excitement and confusion of the moment, confronted with a situation of peril and not by any microscopic and pedantic scrutiny. In adjudging the question as to whether more force than was necessary was used in the prevailing circumstances on the spot it would be inappropriate, as held by this <ORG>, to adopt tests by detached objectivity which would be so natural in a <ORG> room, or that which would seem absolutely necessary to a perfectly cool bystander. The person facing a reasonable apprehension of threat to himself cannot be expected to modulate his defence step by step with any arithmetical exactitude of only that much which is required in the thinking of a man in ordinary times or under normal circumstances.

11. In the illuminating words of <NAME> (<NAME> on Crime, 11th Edition Volume I at page 49):

"....a man is justified in resisting by force anyone who manifestly intends and endeavours by violence or surprise to commit a known felony against either his person, habitation or property. In these cases, he is not obliged to retreat, and may not merely resist the attack where he stands but may indeed pursue his adversary until the danger is ended and if in a conflict between them he happens to kill his attacker, such killing is justifiable."

12. The right of private defence is essentially a defensive right circumscribed by the governing statute i.e. the IPC , available only when the circumstances clearly justify it. It should not be allowed to be pleaded or availed as a pretext for a vindictive, aggressive or retributive purpose of offence. It is a right of defence, not of retribution, expected to repel unlawful aggression and not as retaliatory measure. While providing for exercise of the right, care has been taken in IPC not to provide and has not devised a mechanism whereby an attack may be a pretence for killing. A right to defend does not include a right to launch an offensive, particularly when the need to defend no longer survived.

13. The above position was highlighted in <CITATION> (2005 (10) SCC 358).

14. In the instant case <ORG> held that the lathi injuries were there but came to erroneous conclusion that the injuries appear to have been inflicted in a different manner. <ORG> also came to a conclusion that if the spear was used blunt injury could not have been caused.

15. Unfortunately, <ORG> overlooked that the categorical finding recorded by the trial Court was that one side of the weapon was blunt and other side was sharp and one blunt injury was explained. <ORG> appears to have wrongly interpreted the opinion of the doctor. The genesis according to <ORG> has not been established. If that be so, there was no question of exercise of right of private defence. <ORG>'s conclusion as regards shifting the onus on the prosecution is also without any legal foundation. It is to be noted that nothing was found in the field as was pleaded by the defence to substantiate the right of private defence. The FIR was promptly lodged. The doctor had opined that the injury was possible with knife but <ORG> without any discussion held otherwise. So far as the alleged non-explanation of injuries on the accused aspect is concerned, <ORG> clearly overlooked the relevant materials. From the evidence it is clear that after the accused persons assaulted the deceased and the injured witnesses they were beaten by the villagers. In the FIR also there is mention about the beating given by villagers. <ORG> held that the details of the assaults were not given in the FIR. In this context, the view expressed by this Court in <CITATION> (2004 (12) SCC 269) needs to be noted. In paras 7 and 8 it was observed as follows:

"7. Coming to the question whether on the basis of a solitary evidence conviction can be maintained. A bare reference of Section 134 of the Indian Evidence Act, 1872 (in short `the Evidence Act ') would suffice. The provision clearly states that no particular number of witnesses is required to establish the case. Conviction can be based on the testimony of single witness if he is wholly reliable.

Corroboration may be necessary when he is only partially reliable. If the evidence is unblemished and beyond all possible criticism and the <ORG> is satisfied that the witness was speaking the truth then on his evidence alone conviction can be maintained. Undisputedly, there were injuries found on the body of the accused persons on medical evidence. That per se cannot be a ground to totally discard the prosecution version. This is a factor which has to be weighed along with other materials to see whether the prosecution version is reliable, cogent and trustworthy. When the case of the prosecution is supported by an eyewitness who is found to be truthful, as well, mere non-explanation of the injuries on the accused persons cannot be a foundation for discarding the prosecution version.

Additionally, the dying declaration was found to be acceptable.

8. Other plea emphasized related to alleged exercise of right of private defence. Merely because there was a quarrel and two accused persons sustained injuries, that does not confer a right of private defence extending to the extent of causing death as in this case. Though such right cannot be weighed in golden scales, it has to be established that the accused persons were under such grave apprehension about the safety of their life and property that retaliation to the extent done was absolutely necessary. No evidence much less cogent and credible was adduced in this regard. The right of private defence as claimed by the accused persons have been rightly discarded."

16. So far as non-explanation of superficial injuries on the accused persons is concerned, in <CITATION> . (2004 (13) SCC 257), it was held as follows:

"Non-explanation of injuries by the prosecution will not affect prosecution case where injuries sustained by the accused are minor and superficial or where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it outweighs the effect of the omission on the part of prosecution to explain the injuries. As observed by this <ORG> in <CITATION> (AIR 1972 SC 2593) prosecution is not called upon in all cases to explain the injuries received by the accused persons. It is for the defence to put questions to the prosecution witnesses regarding the injuries of the accused persons. When that is not done, there is no occasion for the prosecution witnesses to explain any injury on the person of an accused. In <NAME> and <NAME>. v. State of Bihar (AIR 1988 SC 863), it was observed that the obligation of the prosecution to explain the injuries sustained by the accused in the same occurrence may not arise in each and every case. In other words, it is not an invariable rule that the prosecution has to explain the injuries sustained by the accused in the same occurrence. If the witnesses examined on behalf of the prosecution are believed by the <ORG> in proof of guilt of the accused beyond reasonable doubt, question of obligation of prosecution to explain injuries sustained by the accused will not arise. When the prosecution comes with a definite case that the offence has been committed by the accused and proves its case beyond any reasonable doubt, it becomes hardly necessary for the prosecution to again explain how and under what circumstances injuries have been inflicted on the person of the accused. It is more so when the injuries are simple or superficial in nature. In the case at hand, trifle and superficial injuries on accused are of little assistance to them to throw doubt on veracity of prosecution case. ( <CITATION> (2003) 8 Supreme 476)."

17. The basic question which was to be considered by <ORG> was that even if the right of private defence was exercised, whether that was exceeded. In the instant case, the evidence clearly shows that though there may be at some point of time the exercise of right of private defence by the respondents existed, the same has been exceeded. The respondents are therefore convicted of offence punishable under Section 304 Part I . Custodial sentence of 8 years would meet the ends of justice. The appeals are allowed to the aforesaid extent. The respondents who are on bail shall surrender to custody forthwith to serve the remainder of sentence.

................................<NAME>

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

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

(<ORG> ALAM) New Delhi, August 22, 2008


JUDGMENT <NAME>, Kt., C.J.

1. In Appeal No. 71 of 1886 from original decree, <ORG> framed a scheme for the management of <ORG> including the Devasthans of Morgaum, Sidhatek and Theur. Under Clause 2 of that scheme, one of the trustees referred to in Clause 1 was to be selected from among the dessendants of <NAME>, the eldest son of <NAME>, to represent the eldest branch of the family; one was to be selected from among the descendants of <NAME> generally, and the third was to be selected entirely according to the discretion of the District Judge of Poona. The District Judge was to nominate the trustees after ascertaining from the members of the family, or in such other manner as he might deem desirable, who were eligible to act as such trustees, and what were their respective qualifications.

2. We are concerned in this case with the selection or nomination by the District Judge of Poona of a trustee from amongst the descendents of <NAME> in consequence of a vacant having arisen. There were twelve candidates for the post, and the Judge said, after carefully considering their qualifications, that he had decided to appoint applicant No. 7 to fill the vacancy.

3. Three of the disappointed applicants Nos. 1,2 and 6 have filed first appeals in this <ORG>, and the first question that arises is whether an appeal lies to this <ORG>. An appeal can only lie if the order of the District Judge can be said to be an order in execution, and therefore appealable as a decree under Section 47. Section 47 says : " All questions arising between the parties to the suit in which the decree was passed, or their representatives, and relating to the execution, discharge or satisfaction of the decree, shall be determined by the <ORG> executing the decree and not by a separate suit." It was contended that an application would be made to the District Judge of Poona to select a trustee by way of execution, but we are of opinion that clearly the District Judge is a persona designata under the scheme which expressly mentioned the District Judge as the person to select the trustees under Clause 2 of the scheme. Under Section 100 of the Code "an appeal lies to the High <ORG> from every decree passed in appeal by any <ORG> Subordinate to the High <ORG>," so that the order passed by the District Judge is not an order of the District <ORG> of Poona, but an order of the District Judge. Consequently, of appeal would lie under Section 47 read with Section 2 and Section 100.

4. The difference between <ORG> and the District Judge is emphasized by a reference to Clause 21 which directs that " the trustees shall furnish to <ORG> on or before the 31st day of October as amended by <ORG> about three years ago in each year an account of the property in their charge." It must follow then that no appeal has from the order of the District Judge appointing a trustee.

5. The appellants, however, contended that if no appeal lies, they are entitled to apply to the <ORG> to exercise its revisional jurisdiction under Section 115. There they are met with the same objection, because under Section 115 "the High <ORG> may call for the record of any case which has been decided by any <ORG> subordinate to such High <ORG> and in which no appeal lies thereto." Consequently, there is the same objection to entertain an application in revision as there is to entertain an appeal.

6. We think from the scheme it was intended that the question of selection should be left to the District edge, and if <ORG> had intended that on every occasion when the District Judge selected a trustee, an appeal to <ORG> should be open to every disappointed candidate, then the Court would certainly have directed in the scheme that such an appeal would lie. Reference may be made to Clause 26 of the scheme which directs "the District Judge to frame rules for the guidance of the trustees in the conduct of the <ORG> business and submit them for the sanction of <ORG>." So that in framing the scheme a distinction has been made between the acts to be performed by the District Judge, without any further reference to an higher authority, and the questions which were to be dealt with by him subject to the sanction of <ORG>.

7. We are not concerned with hypothetical cases which have been suggested to us, such as, the District Judge declining to exercise the functions imposed upon him by the scheme, or in the exercise of those functions entirely failing to exercise any discretion in the matter, When such cases arise, we have no doubt that <ORG> will be competent to deal with them. In the meantime the appeals and the applications will be dismissed with costs.


JUDGMENT FACTS The petitioner was an officiating clerk in a temporary vacancy in the office of <ORG>, Poona. Later on the post was made permanent and the petitioner was confirmed; but shortly afterwards the Divisional Forest Officer passed and order that the orders of confirmation should not be given effect to and the petitioner was informed that his services were no longer required. On appeal to <ORG> the petitioner was informed by the Conservator that the order terminating his services was cancelled and that he was reinstated. Simultaneously, another letter was addressed suspending the petitioner pending departmental enquiry on the ground that he had been found indulging in objectionable activities, which conduct was in contravention of R. 30 of the Bombay Civil Services Conduct, Discipline and Appeal Rules. The annexure to the charge sheet set out nine items all of which were answered by the petitioner. Later on, the Conservator informed the petitioner that all the charges against him were proved and called upon him to show cause against the proposed dismissal. Ultimately the petitioner was dismissed. On appeal the Government did not consider it necessary to revise the order passed by the Conservator. Thereafter the petitioner field an application under Art. 226 of the constitution for a writ of Certiorari or any other appropriate writ, order or direction. This application had been filed more than seven months after the date on which the dismissal order was confirmed by <ORG>. As however a Rule had been issued by <ORG> and <ORG> had heard the Counsel for the parties on merits their Lordships did not think it proper to dispose of the application merely on the ground of delay.

<NAME>, <NAME>

1. It was also urged by Mr. <NAME> that the petitioner as a temporary employee of the <ORG> cannot challenge the order of dismissal on the plea that it violated the constitutional protection granted to civil servants under Article 311 of the Constitution, it being open to the <ORG> Government or to an officer competent in that behalf to dismiss the petitioner from service having regard to the precarious nature of the tenure of his employment. According to Mr. <NAME>, Article 311 of the Constitution confers a protection only upon civil servants who are permanently employed in certain posts and a temporary servant cannot claim protection of Article 311 against dismissal or discharge from service. We are not impressed by that argument. Article 310 of the Constitution provides that every member of a civil service of the <ORG> or of an all-India service or who holds any civil post under the <ORG> holds office during the pleasure of the President and every person who is a member of a civil service of a <ORG> or who holds any civil post under a <ORG> holds office during the pleasure of the Governor of the <ORG>. By clause (2) of Article 311 it is provided that no person who is a member of a civil service of the <ORG> or an all-India service or a civil service of a <ORG> or holds a civil post under the <ORG> or a <ORG> shall be dismissed or removed or reduced in rank until he has been given a reasonable opportunity of showing cause against the action proposed to be taken in regard to him. Articles 310 and 311 do not appear to make a distinction between civil servants who are permanently employed and those who are temporarily employed. The expression "no person" in Clause (1) of Article 311 , in our Judgment, includes all civil servants, whether they have been appointed temporarily as members of a civil service or as permanent employees : and there is nothing implicit In the context of Article 311 or in "Its content which supports the plea that protection is conferred only upon persons who have been permanently appointed to a post in the civil service of the <ORG> or of the <ORG>.

2. In the view we are taking we are supported by the observations made in a judgment of this Court, <NAME> v. <ORG>, (A). In that case the plaintiff. Who was a temporary employee of <ORG>, was discharged from service on the ground that ho was declared medically unfit for further service. The plaintiff then filed a suit challenging the order and he invoked the provisions of S. 240(3) of the <ORG> of India Act, 1935; and contended that he was dismissed from service without any reasonable opportunity being given to him to show cause against the charge that he was permanently incapacitated. It was held by this Court that the order was not an order of dismissal or removal from service and, therefore, the plaintiff could not contend that he was entitled to the rights given to an employee under Section 240(3) of the <ORG> of India Act. It was observed in that case that "it is only in cases falling within Article 311 or Section 240(3) that the <ORG> as an employer is bound to conform to certain rules of natural justice indicated in that article and that section. But if the case does not fall either within the ambit of Article 311 or Section 240(3), then the relationship of master and servant is governed by the rules if there are any which would constitute the contract of employment, or it would be governed by the Common law if the rules do not provide for the employment of the particular person." At p. 676 (of <ORG>): (at p. 58 of A I R) of the report, the learned Chief Justice, in dealing with the contention that a temporary employee of the <ORG> was entitled to the benefit of the guarantee under Section 240(3) of the <ORG> of India Act, observed :

"Therefore, in order to succeed, Mr. <NAME> must satisfy us that <ORG>, which is the employer in this case, acted in such a manner that its action came within the ambit, of Section 240(3) of the Government of India Act. In other words, its action was tantamount to dismissing or removing the plaintiff from service. If Mr. <NAME> satisfies us on that count, then undoubtedly if reasonable opportunity has not been afforded to the plaintiff, the plaintiff would be entitled to succeed."

It is evident from these observations that the <ORG> took the view that even in respect of temporary employee if an order of dismissal or removal from service is passed, the employee is entitled to claim the benefit of Article 311 of the Constitution : and if no reasonable opportunity is afforded to him to show cause against the proposed action, the dismissal or removal from service wilt be regarded as ineffective.

3. Mr. <NAME> on behalf of the <ORG> con-tended that the observations made by the <ORG> in <NAME> case (A) are mere dicta and are not binding upon this <ORG>. Mr. <NAME> invited our attention to certain unreported judgments delivered by Mr. Justice <NAME> in which it was opined that the observations set out by us are mere dicta and that the true rule applicable to temporary employees of a Government department is that they are liable to be dismissed or discharged from service without being afforded an opportunity of showing cause against the action proposed to be taken against them. Now the order passed against the plaintiff in <NAME> case was one of discharge from service: it was not in terms an order of dismissal or removal from service, nor was it an order terminating the employment of the plaintiff. The <ORG> on the Interpretation of the order held that the order was one merely terminating employment and did not fall within Section 240(3), of the Government of India Act, 1935. If the order was one of dismissal or removal from service, the provisions of Article 311 of the Constitution and Section 240(3) of the Government of India Act were, it was observed, attracted and the plaintiff was entitled to the benefit of an enquiry and of being afforded an opportunity of showing cause against the action proposed to be taken against him. Even assuming that these observations were not strictly necessary for the decision, we may respectfully state that these observations correctly state the true rule applicable to termination of employment of temporary employees. Articles 310 and 311 of the Constitution do not make any distinction between members of a civil service who are permanently employed in certain posts and those who are temporarily employed. When an employee of the <ORG> or the <ORG> is dismissed or removed from service or reduced in rank, the order necessarily involves some stigma and the Constitution Has provided that before that stigma attaches to the employee he must be given a reasonable opportunity of showing cause against the action proposed to be taken in regard to him. The plea that a temporary employee may not be given that opportunity of showing cause and a permanent employee alone may be given that opportunity is not sought to be sustained on any rational principle. A temporary civil servant has also some expectation of being continued in his employment and so long as his employment continues he must in our judgment, have the same rights and privileges as the civil servants holding permanent posts have. It is always open to the <ORG> Government or the <ORG> Government to terminate the employment of a civil servant and a bona fide termination of employment does not attract the operation of Article 311 of the Constitution. It is only when an order of dismissal, removal or reduction in rank is passed that the civil servant can claim an opportunity of showing cause.

4. In <NAME> v. State of Uttar Pradesh, (B), their Lordships of <ORG> dealt with the question whether compulsory retirement of an employee holding a permanent post amounted to dismissal or removal from service. Their Lordships observed that "under the Constitution removal and dismissal stand on the same footing except as to future employment. In this sense removal is but a species of dismissal. Removal, like dismissal, no doubt brings about a termination of service but every termination of service does not amount to dismissal or removal. Article 311 does not apply to all cases of termination of service." It is true that in <NAME>'s case the civil servant concerned was a permanent employee but it was held that compulsory retirement of that civil servant was not removal or dismissal from service and he was, therefore, not entitled to be afforded an opportunity under Article 311(2) of showing cause against the action proposed to be taken against him. Article 311 has undoubtedly a limited operation : its protection avails an employee against an order of dismissal, removal or reduction in rank, but, in our judgment, within the ambit of its operation the Article applies to all employees whether they are permanently employed or temporarily employed.

5. Mr. <NAME> relied upon a judgment of <ORG> in <CITATION> ), in support of the contention that only permanent employees are entitled to the benefit of Article 311 of the Constitution. In that case a civil servant, who had been engaged under a special contract for a certain term, was, on the expiry of the term, re-appointed by another contract on a temporary basis. In accordance with the <ORG> rules, which formed part of the contract, he was discharged from service after notice. The employee then filed a petition under Article 32(1) of the Constitution seeking redress for infringement of his fundamental rights under Articles 14 and 16(1) of the Constitution. It wag held by their Lordships of <ORG> that Article 311 had no application because there was neither a dismissal nor a removal from service, nor a reduction in rank. That case appears to have no direct application to the facts of the present case, but the ratio of the judgment destroys the contention which Mr. <NAME> raises. If Article 311 had no application to temporary employees, their Lordships' judgment could have been founded simply on the view that to temporary employees Article 311 did not afford any protection. It was unnecessary to go further and to hold that the order was not one of dismissal or removal from service, and, therefore. Article 311 had no application. Implicit in the observation appears the view that even temporary employees are covered by Article 311 if an order of dismissal or removal from service or reduction in rank had been passed. But Mr. <NAME> relied upon the observation made at page 252 of the report to the following effect:

"When the employment is permanent there are certain statutory guarantees but in the absence of any such limitations <ORG>, is, subject to the qualification mentioned above, as free to make special contracts of service with temporary employees, engaged in works of a temporary nature, as any other employer."

Mr. <NAME> says that their Lordships intended to lay down that the statutory protection under Article 311 is available only when the employment is permanent and not in other cases. But their Lordships merely juxtaposed the case of a civil servant whose employment is permanent against the case of a servant employed on special contract of service. There is nothing in the observation which supports the plea that where the employment is not permanent the statutory guarantee under Article 311 does not protect the civil servant

6. Mr. <NAME> invited our attention to a judgment of. Mr. Justice <NAME> in <NAME> v. <ORG>, Misc. Petn. No. 237 of 1956, D/-8-10-1956 (Bom)(D). In that case, it is true, Mr. Justice <NAME> observed that it was the consistent view taken by this Court that Article 311 did not apply in the case of temporary servants. It may be mentioned that the order impugned by the petitioner in that case was one of removal from service : but the learned Judge proceeded to decide the case upon the premise that consequences of removal from service of a temporary employee and the termination of his employment were identical. That is clear from the reference made to the judgment in Misc Appln. No. 239 of 1952 (Bom) (E). As we have already pointed out; an order of dismissal or removal from service or reduction in rank attracts the provisions of Article 311. but not a mere termination of employment, whether the employee is holding a permanent post or is temporarily employed. Mr. Justice <NAME> also relied upon the analogy of reversion of a probationer to a subordinate post and observed :

"In its very essence a person on probation may be removed from the post to which he is appointed at any time during the period of probation or on the expiry of it. Article 311 confers a right on "the member of <ORG>" or a person who" holds a civil post" ; and in my opinion these phrases are not capable of including within their scope persons who by the very terms of their appointment are liable to be removed from the posts during the period of probation."

In that judgment, Mr. Justice <NAME> also expressed the view that the observations made in the judgment in <NAME> case (A), to which we have already referred, were mere dicta and were not binding. With respect, we are unable to accept the view which appealed to Mr. justice <NAME>. However precarious the tenure of a temporary servant in the post to which he is appointed may appear to be, if he is to be dismissed or discharged from service or to be reduced in rank, Re must, in our view, be given the benefit of the Statutory protection of Article 311. A dismissal or removal from service cannot in our judgment, Be equated with mere termination of employment of a temporary servant, nor can it be equated with reversion of a probationer to his substantive appointment. The analogies on which Mr. Justice <NAME> relied were in our judgment not true analogies. After anxiously Considering the question we are of the view that the rule enunciated by the learned Chief Justice in <NAME> case (A) must be regarded as the true rule.

7. We may point out that whereas Mr. Justice <NAME> observed that the Provision of section 240 of the Government of India Act had never been made applicable to the case of a probationer, our attention was invited to an unreported judgment of this Court in <NAME>, Appeal No. 44 of 1955, D/-1-12-1955 (Bom) (F), which lays down a different rule. It was held in that case that Rule 7 of the Police Rules assumed that a person appointed on probation had the right to hold that appointment for the period of his appointment and he could not be dismissed or discharged before the expiry of the period of probation. The learned Chief Justice in delivering the judgment of the Court observed :

"If a person is appointed oil probation for one year or two years or a person is appointed for a definite period, one year, two years or less or more under the contract, he is entitled to hold that Post for that period and if the Commissioner of Police wants to dispense with his service prior to that period, then he has the same rights and privileges as a permanent employee and for a very good reason because he has as much right during that definite period to continue to hold that office as a permanent employee has and, therefore, to that extent no distinction can be made between a permanent police officer and a police officer appointed on probation for a fixed period or appointed to a post for a definite period."

8. In our opinion, the principle of that case also supports the view which we are willing to take in the case before us. We, therefore, negative the contention raised by Mr. <NAME> that the circumstance that the petitioner is a temporary employee is sufficient to disentitle him to the statutory protection under Article 311 of the Constitution.

(The rest of the judgment is not material for this report.)

9. Petition dismissed.


JUDGMENT <NAME>, J.

1. This is an application in revision against the order of the Chief Judge of <ORG>, Bombay, dismissing the plaintiff's suit in pursuance of an award under by-law 38A of <ORG>.

2. The applicant filed a suit in <ORG> at Bombay to recover a sum of Rs. 1,023-8-0, consisting of Rs. 1,000, the amount paid as deposit, together with Rs. 11 as interest, and Rs. 12 8-0 on account of profits in the transactions of sale and purchase of one hundred bales of cotton done by the defendants as the plaintiff's brokers, on December 10, 1926, and December 14, 1926. The defendants admitted the amount of the deposit and interest, and also the two contracts sued upon ; but contended that there were other contracts and several payments by them on account of the transactions which resulted in a loss to the plaintiff, and the amount of Rs. 100-10-0 was payable by the plaintiff to the defendants, and that the whole matter had been referred by the defendants to the arbitrators of <ORG>, and, therefore, the Court had no jurisdiction to try the suit.

3. The learned Chief Judge of <ORG> stayed the petitioner's suit pending the arbitration. On an application in revision, No. 148 of 1927, <ORG> refused to interfere with the order of stay, and directed that all the objections to the award might be taken before the learned Chief Judge. The learned Chief Judge appreciated the force of the argument on behalf of the plaintiff that the award was null and void, as it embraced matters not recognised by law, and that the contracts on which the plaintiff sued were in sanctioned forms whereas the arbitrators in arriving at their conclusion considered other contracts which were made in contravention of the by-laws, but held that under by-law 38A, all unpaid claims, whether admitted or not, were required to be referred to the arbitration of two disinterested persons, and therefore the reference to arbitration was valid, and that if the arbitrators in investigating the dispute referred to other contracts and took into consideration the liabilities under non-sanctioned contracts, it did not amount to any judicial misconduct, and the award was binding as an adjustment of the suit according to the ruling in <CITATION> (1920) I.L.R. 45 Bom. 245, s. o. 22 Bom. L.R. 1048, and, therefore, dismissed the plaintiff's suit, as the arbitrators had held that instead of the amount of Rs. 1,023-8-0 being due to the plaintiff, the amount of Rs. 100-10-0 was due by the plaintiff to the defendants.

4. <ORG> was incorporated under the Bombay Cotton Contracts Act, XIV of 1922. The order of <ORG> staying the suit was not interfered with by <ORG>. <ORG> has power to stay the suit in order to enable the parties to it to refer to arbitration under para, 18 of Schedule II of the Civil Procedure Code, 1908, which has been made applicable to <ORG> by the rules under Section 9 of the Presidency Small Cause Courts Acts, or under Section 19 of the Indian Arbitration Act, IX of 1899 according to the decision in <CITATION> .

5. The next question is, whether <ORG> had jurisdiction to accept the award which was, as alleged by the applicant, illegal and void. It is urged on behalf of the applicant that, so far as the deposit of Rs. 1,000 was concerned, the arbitrators had no power to decide the question relating thereto, and that the arbitrators could only give an award in respect of the two contracts which were in the sanctioned form, and the award was illegal so far as it proceeded to take into consideration all other contracts alleged by the defendants which were not in the sanctioned form. We are unable to accept the argument on behalf of the applicant that the deposit of Rs. 1,000 was unconnected with the contracts on which the suit was based. The receipt for the deposit of Rs. 1,000 recites that the deposit was taken from the plaintiff for doing business in cotton. It represents the earnest or margin money required to be deposited for any loss that would have resulted from the contracts made by the plaintiff with the defendants brokers. The sanctioned contract form at page 68 of the rules refers to a margin to be paid and maintained by the broker until the completion of the contract. It would, therefore, follow that the amount of Rs. 1,000 deposited is closely connected with the contracts entered into by the plaintiff with the defendants which were in the sanctioned form. By-law 38 A framed under the Act provides as follows:-

All unpaid claims whether admitted or not and all disputes (other than those relating to quality) arising out of, or in relation to, (a) contracts (whether forward or 'ready' and whether between members or between a member and a non-member) made subject to these by-laws, or (b) the rights and/or responsibilities of commission agents, muccadums and brokers not parties to such contracts, shall be referred to the arbitration of two disinterested persons one to be chosen by each disputant...

6. By-law 81 runs as follows:-

Contracts between agents and their constituents, e.g., between a member and a non-member or between a member acting as an agent and a member acting as his constituent shall be subject to the by-laws and shall be in writing in the form given in the Appendix (pages 67, 68, 69 and 70), provided that to such contracts by-laws 130 to 166 inclusive shall not apply.

A member whose constituent has agreed in writing to sign the prescribed form of contract and fails or refuses to do so after terms have been arranged shall be treated in all respects as if he had done so and both parties shall have the rights and remedies accorded by these by-laws.

7. It is, therefore, necessary that the contracts must be in writing and signed in the sanctioned form, or in the absence of any contract in the sanctioned form there must be a written undertaking by the constituent to sign. A mere oral undertaking would be insufficient according to the decision in <NAME> v. <NAME> (1927) 30 Bom. L.R. 122. The contracts which are not in the sanctioned form are void under Section 5 of the Bombay Cotton Contracts Act, XIV of 1922. It would, therefore, follow that the applicant could bring a suit in <ORG> on the two contracts which were in the sanctioned form to recover the deposit and also the profit accruing thereunder, and it would be open to the defendants to apply under the Indian Arbitration Act to stay the action, but it is not open to the defendants to say that the action would not lie. <CITATION> . referred to by-law 38 of the East India Cotton Association and observed as follows (p. 1328):-

I can see nothing in that clause to make arbitration a condition precedent to the right to bring an action. It seems to mo to be an ordinary provision for referring disputes to arbitration, and such a provision does not in any way oust the jurisdiction of the <ORG>. If an action is brought in respect of a matter covered by the arbitration clause, the defendant can apply under the Indian Arbitration Act to stay the action, but it is not open to him to say that the action does not lie.

8. With regard to by-law 81, it was held that a suit could not be maintained on a contract which was not in compliance with the statutory form, unless there was an agreement in writing to sign the prescribed form of contract.

9. In the present case it is alleged on behalf of the applicant that there were only two contracts in writing in the sanctioned form on which the suit is based, and that the arbitrators took into consideration other contracts which were not in the sanctioned form, nor was there any agreement in writing to sign those contracts. It is urged, on the other hand, that the award (SIC) not disclose the fact that the arbitrators took into consideration contracts which were not in the sanctioned form. It is conceded on behalf of the opponents, and it is also clear from the authorities, that if a suit had been brought by the defendants on any contracts which were not in the sanctioned form in the absence of any agreement in writing to sign those contracts, it would not have been maintainable. It is, therefore, contended on behalf of the applicant that the arbitrators took into consideration contracts which were not in the sanctioned form, and that the whole award is illegal and void, as the award which is legal so far as it is based on the contracts in sanctioned forms cannot be separated from the other portion of the award which is based on contracts which were illegal and void. The remarks in the judgment of the learned Chief Judge lend support to the contention on behalf of the applicant that the arbitrators took into consideration other contracts between the parties which were not in the sanctioned form, though there is no specific and clear finding on that point. The award, if it has proceeded on contracts which were not in the sanctioned form, would be illegal and void, and if the portion of the award which is illegal and void cannot be separated from the portion of the award which is valid, the whole award would be invalid. <CITATION> . (1920) 34 C.L.J. 253 it was held that if in the event of an award made by arbitrators on grounds some of which did, while the others did not, justify the exercise of their jurisdiction, the Court cannot hold with certainty that the arbitrators acted exclusively on grounds within their jurisdiction, and the award is null and void on the principle that if the bad is not separable from the good, the whole is bad. See also <CITATION> (1915) 22 C.L.J. 237, 240.

10. The learned Chief Judge, however, held that the award not having been set aside, he was bound to dismiss the plaintiff's suit on the authority of <CITATION> (1920) I.L.R. 45 Bom. 245, s.c. 22 Bom. L.R. 1048, on the ground that the award was an adjustment of the suit. Where the parties to a suit refer their disputes to arbitration without the intervention of the <ORG> and an award is made, an application to pass a decree in terms of the award is an application to record a compromise within the meaning of Order XXIII, Rule 3. It was observed by <NAME> (p. 260):-

But when parties have been negotiating for a settlement, and one party con" aiders a settlement has been arrived at, which the other party denies, or where there has been a settlement which one party seeks to avoid on any of the grounds on which an agreement can be avoitied, recourse is had to Order XXIII, Rule 3, so that the <ORG> may determine whether an adjustment has actually been ,made or whether an adjustment made is one which can be recorded.

11. <NAME>, however, at page 270, held that Order XXIII, Rule 3, of the Civil Procedure Code, contains provisions corresponding to the plea of "accord and satisfaction after writ," and that an agreement to refer to arbitration after suit together with the award thereon is on the same footing as a direct settlement between the parties, but the award to be effective for such a plea must be a valid one according to the general rules of law governing the validity of awards in arbitration proceedings.

12. It would, therefore, follow that if the award is invalid or illegal, it cannot be recorded as an adjustment of the suit. If the defendants had proceeded under the Indian Arbitration Act and got a decree on the award in <ORG>, or if the plaintiff had got the award set aside under the Indian Arbitration Act , the matter would have been conclusive. But where, as in the present case, the award is sought to be recorded as an adjustment of the suit, the <ORG> has jurisdiction to consider whether the award is legal and enforceable. The view in <CITATION> has been confirmed by the full bench decision in <NAME> v. <NAME> (1927) I.L.R. 51 Bom. 908, s.c. 29 Bom. L.R. 1254, F.B., where it was held that where in a suit parties have referred their differences to arbitration without an order of the <ORG> and an award is made, a decree in terms of the award cap be passed by the <ORG> under Order XXIII, Rule 3, of the Civil Procedure Code, but not otherwise. At page 948 <NAME> observed:-

I would only add that in my judgment the word 'lawful' in Order XXIII Rule 3, refers to the nature of the compromise arrived at, not to the procedure which the parties may have followed in bringing it about. But it is of course the duty of the <ORG> to be satisfied that there has in fact been an adjustment by compromise.

13. Under by-law 38 A. only disputes arising out of or in relation to contracts made subject to the by-laws shall be referred to arbitration. Under by-law 81 such contracts must be in writing in the form given in the appendix. It would, therefore, follow that the arbitrators had no jurisdiction to decide disputes arising out of contracts not in the sanctioned form. In cases where an arbitrator enters upon a consideration of matters which are not referred to him or which he has no jurisdiction to try by arbitration clause or submission between the parties, the appearance of the party after objection taken and protest made, does neither give the arbitrator authority to make an award nor estop him from urging that the arbitrator has exceeded his authority. See <NAME> v. <NAME> (1864) 33 L.J.C.P. 337 and <CITATION> (1927) 29 Born. L.R. 1087, 1092. The attendance of the applicant before the arbitrators after protest would not amount to a waiver of his right to object to the jurisdiction of the arbitrators.

14. It is urged on behalf of the applicant that he was never prepared to refer the dispute between the parties on contracts which were not in the sanctioned form to arbitration, and the award on such contracts as were not in the sanctioned form would be illegal and void. It would, therefore, appear that if the contention of the applicant, which the arbitrators entered upon a consideration of matters when they had no jurisdiction to do so, is correct, it cannot be said that the suit has been adjusted by a lawful compromise. The view of <ORG> in <CITATION> (1921) I.L.R. 49 Cal. 608 that where in a pending suit the parties go to private arbitration without the consent of the <ORG>, the award cannot be enforced either under Order XXIII, Rule 3, or under the provisions of the Indian Arbitration Act , has not been accepted by the full bench decision in <NAME> v. <NAME> (1927) I.L.R. 51 Bom. 908, s.c. 29 Bom. L.R. 1254, F.B.

15. It would, therefore, be necessary to send the case back to the lower <ORG> to decide on taking fresh evidence, if necessary, whether the arbitrators took into consideration the contracts which were not in the sanctioned form, and which were illegal and void under Section of the Bombay Cotton Contracts Act, XIV of 1922. If the <ORG> comes to the conclusion that the arbitrators took into consideration contracts which were not in the sanctioned form, the award would be illegal and void and the legal part of the award would not be capable of being separated from the illegal part. The <ORG> would then be entitled to disregard the award and decide the suit on the merits.

16. The lower <ORG>, in my opinion, failed to exercise the jurisdiction vested in it by law in omitting to consider the question whether the award was a lawful compromise under Order XXIII, Rule 3.

17. We would, therefore, reverse the decree of the lower Court dismissing the suit, and send the case back for disposal of the suit in the light of the remarks made in this judgment.

18. Costs of this application will be casts in the suit.

Broomfield, J.

19. I agree.

20. As this is a matter of importance and we are differing from the learned Chief Judge of <ORG> after the full <ORG> has declined to issue a rule, I think it desirable to state my reasons.

21. The plaintiff filed his suit on February 12, 1927. The plaint was as follows:-

The plaintiff above named states the following:-

(1) That on December 6, 1926, the plaintiff engaged the defendants as his brokers to effect transactions in cotton on his behalf, and as required by the defendants deposited a sum of Rs. 1,000 with them the same day. The defendants agreed to pay interest at six per cent, per annum on that amount.

(2) That on December 10, 1926, on instructions from plaintiff the defendants effected a sale on behalf of plaintiff of one hundred bales of <ORG> cotton of April-May 1927 delivery at Rs. 242 per Candy.

(3) That on December 14, 1926, on instructions from plaintiff, to cover the above sale, the defendants effected a purchase on behalf of plaintiff of one hundred bales of <ORG> cotton of April-May 1927 delivery at Rs. 240-12-0 per Candy.

(4) That in respect of these transactions a sum of Rs. 12-80 became due by the defendants to the plaintiff after giving credit for brokerage to the defendants, as per memo of account hereto annexed and marked 'A.' (5) That the plaintiff several times verbally and finally by his <NAME>'s letter of February 3, 1927, called upon the defendants to pay up the said sum of Rs. 1,000 and interest due thereon as mentioned in para 1 of this plaint and the sum of Rs. 12-8-0 as per para 4 hereof but the defendants have failed to pay the same or any part thereof.

(6) That the total amount due by the defendants to the plaintiff comes to Rs. 1,023-8-0 inclusive of interest up to date.

(7) The plaintiff therefore prays for judgment for Rs. 1,023-8-0 and interest thereon at six per cent till judgment and further interest on judgment at six per cent. per annum till realisation and such further and other relief as to the <ORG> may seem fit.

22. On March 14, 1927, the defendants filed the following written statement:-

1. Deny plaintiff's right to sue.

2. Deny that plaintiff engaged the defendants as brokers.

3. Say it was one <NAME> who was doing business in the name of <NAME> by whom all the transactions mentioned in the plaint were done and all orders for the transactions given to the defendants.

4. Without prejudice say that plaintiff has not filed the suit on the whole account between the parties and say that the real account between the parties is given in the annexed particulars marked 'A' and on the whole account a sum of Rs. 100-10 will be found due by the said <NAME>.

5. Without prejudice claim credit for Rs. 300 paid as under: -

Rs, 50 on January 10, 1927.

Rs. 100 on January 18, 1927.

Rs. 150 on January 31, 1927.

6. Say that disputes having arisen between the (SIC) all matters have been referred by the defendants to <ORG> for their arbitration and the said Association have already appointed arbitrators and the matter is pending before the said arbitrators."7. Say that the suit should be stayed.

23. The suit was stayed sine die pending the result of arbitration on the defendants' reference.

24. On April 12, 1927, an award was made in the following terms:-

We were nominated arbitrators in a dispute between the above parties by the Deputy Chairman of <ORG>. We notified both the parties to be present at a meeting convened on March 28, 1927, when Mr. <NAME> representing the plaintiffs and Mr. <NAME> representing the defendant with his pleader wore present. The meeting was adjourned to April 2, 1927, when also both the parties were present.

After hearing them fully and carefully looking into the accounts, correspondence and papers in respect of the above matter, we find that the plaintiffs' claim of Rs. 100-10-0 is fully corroborated by their books of accounts, <ORG> etc., that were placed before us and by the oral evidence of independent witnesses. We therefore award the plaintiffs' claim of Rs. 100-10-0 together with interest at six per cent till the date of payment, plus Rs, 70 for cost of this arbitration against the defendant.

25. Against the order of stay Revision Application No. 148 of 1927 was made to this Court. The Court refused to interfere on the ground that it was an interlocutory order, and directed that the objections to the award might be taken before the Chief Judge. The suit was then again taken up in <ORG> at the stage at which it was left, except that in the meantime the award had been made.

26. The plaintiff objected that the award was null and void because the arbitrators had taken into consideration certain transactions which were not in the prescribed contract forms as required by by-law 81 of <ORG>. The terms of bylaw 81 have been set out in the judgment of my learned brother. Section 5 of Act XIV of 1922 provides that contracts in contravention of any by-law shall be void. The learned Judge said that he appreciated the force of the argument, but he held that there was a valid reference to arbitration under by-law 38A and that the award was binding on the parties as an adjustment of the suit. He cited and apparently professed to follow <CITATION> (1920) I.L.R. 45 Bom. 245, s.c. 22 Bom. L.R. 1048. The plaintiff's suit was dismissed and he has come to this <ORG> in revision.

27. At the outset it should be stated that the plaintiff has all along denied that he had any dealings with the defendants other than the transactions mentioned in the plaint, and, at any rate so far as the proceedings in <ORG> are con cerned, the other transactions alleged by the defendants have not been proved. On the other hand, it has not been proved that the other transactions referred to were not in the standard forms, though the plaintiff has asserted that they were not and the defendants do not appear to have ever asserted that they were. Again, it cannot be said to be apparent from the record that the arbitrators in making their award took account of any transactions not in the standard forms, although it is probable that they did so since they have awarded the defendants the exact sum claimed in their written statement. These questions, in the view we take of the case, it will be necessary for the trial <ORG> to clear up.

28. But it appears from the judgment of the learned Chief Judge that he dealt with the case on the basis that there were some other transactions between the parties which contravened the provisions of by-law 81, and that the award covered these transactions also. For the purposes of this application we must take it that the facts are so, and consider whether on that basis the suit has been rightly dismissed.

29. As I have found some difficulty in analysing the learned Judge's reasoning, I quote the relevant passage from his judgment in full:-

The arbitration was, however, set up under by-law 38A, of the bylaws framed under the Act. It runs as follows:-' All unpaid claims, whether admitted or not, and all disputes arising out of, or in relation to, (a) contracts made subject to these by-laws, or (b) the rights and responsibilities of brokers, shall be referred to the arbitration of two disinterested persons.' The facts here are that the defendant did not admit the claim of the plaintiff. The existence of that fact is enough to give jurisdiction to the arbitrators. Plaintiff contends that the claim to the margin money and Rs. 12-8-0, for profit, was an admitted claim. Defendant disputes and denies it. But; granting that it was so, still it was an unpaid claim, and all unpaid claims are referable to arbitration, whether admitted or not. The arbitrators had therefore to determine whether the claim to Rs. 1,012-8-0 was an admitted claim or not, They had jurisdiction, even if it was admitted,-which it was not,-because it was unpaid. I think power is taken in oases of admitted but unpaid claims, deliberately by the <ORG>, in respect of brokers and others, so that where they find that there are unjustifiable instances of any broker admitting claims, but not paying them, action can be taken against him, In investigating the dispute, they had, therefore, to refer to the whole account and in doing so, if they took into consideration liabilities under non-sanctioned contracts, it would not vitiate or invalidiate their award, as it would not amount to any judicial misconduct on their part. Ab initio, I find, that the reference was a valid one, as conditions calling for it under by-law 38 did exist in this case. Taking plaintiff's case at its best, there was an unpaid claim, arising under sanctioned contracts, and if there was an unpaid claim, a reference was called for, as a reference has to be made in case of ' all unpaid claims.' Really speeking, he should have referred the matter to arbitration, as defendant was not paying him his admitted claim.

Even if under the Limitation Act , the remedy of the parties to have the award enforced as an order of the <ORG> or otherwise, is barred, it cannot be said that they have no other rights in respect of it. I need not discuss what they are.

I find that there was a valid reference and that there is an award published under it. It is therefore binding on parties as an adjustment of the suit, <CITATION> . Whether the plaintiff appeared before the arbitrators under protest or not, does not affect the submission and the award, as under the by-law there was a valid reference.

30. The findings appear to be: (1) There was a valid reference to arbitration under by-law 38A, and (2) as there was a valid reference and an award published under it, and as the award is not invalidated by judicial misconduct on the part of the arbitrators the fact that the arbitrators took into consideration liabilities under void contracts not being in the learned Judge's view judicial misconduct,-therefore, the award is binding as an adjustment of the suit.

31. As regards the reference to arbitration it is to be noted, first of all, that there has been no submission to arbitration in the ordinary sense by both parties to the dispute. I do not say that it would necessarily have made any difference if the plaintiff and the defendants had agreed that the whole series of transactions including the void contracts should be referred to the arbitrators, but it is important to bear in mind that there was no such agreement. The defendants placed before the arbitrators what they considered to be the subject-matter of the arbitration. The plaintiff appeared in the proceedings under protest, and he is only bound by them in so far as they can be held valid under by-law 38A: see <CITATION> (1027) 29 Bom. L.R. 1087.

32. The learned Judge says that the plaintiff had an unpaid claim, namely, for Rs. 1,023-8-0, arising out of, or relating to, the two contracts made subject to the by-laws, that really speaking he ought to have referred the matter to arbitration himself, and that as he did not, the arbitrators had jurisdiction to consider the claim on the defendants' reference. So far I have DO difficulty in following him. But the real question which it seems to me the learned Judge has hardly faced is this: When there is an unpaid claim or a dispute arising out of, or relating to, a series of transactions consisting partly of contracts made subject to the by-laws and partly of contracts not so made, does bylaw 38A empower one party to refer the whole matter to arbitration without the consent of the other, and if a reference is so made, have the arbitrators authority to deal with the whole series of transactions? Now, there was no agreement between the parties, as I have said, and the arbitration proceedings depend for their validity on the provisions of by-law 38A. These have been set out in my learned brother's judgment. So far as Clause (a) is concerned, it is clear that arbitration is not contemplated or made compulsory in the case of contracts not made subject to the by-laws. In Clause (b) "such contracts" mean contracts made subject to the by-laws, and the meaning of the clause seems to be that when commission agents or brokers are concerned in such contracts, and there is a dispute as to their rights or liabilities, the dispute shall be referred to arbitration although they were not actually parties to the contracts. It would be putting a very unnatural interpretation on the by-law as a whole, if we were to take the words "not parties to such contracts," i.e., not parties to contracts subject to the by-laws, as though they meant " parties to contracts not subject to the bylaws," and I may say that no such construction appears to have been put upon the words either by the learned Judge or by the learned advocate for the opponents. There is nothing in the by-law then which gives power to one of the two disputing parties to refer any matters to arbitration which do not arise out of valid contracts, and the learned Judge's finding that there was a valid reference in this case appears to me to be clearly wrong. As to the award, it is not altogether clear to me whether the learned Judge held it to be valid or not. What he says is:-

In investigating the dispute, they had, therefore, to refer to the whole account and in doing so, if they took into consideration liabilities under non-sanctioned contracts, it would not vitiate or invalidate their award, as it would not amount to any judicial misconduct on their part.

33. It seems that this might mean either that the arbitrators were justified in looking at the whole account, or that they; were not justified in doing so, but the <ORG> could not interfere and must accept the award because there is nothing amounting to judicial misconduct. If, as I hold, the submission to arbitration as regards the whole series of transactions is invalid, it follows that the award based on a consideration of the whole series of transactions must also be invalid. The authority of the arbitrators is limited to the matters lawfully submitted to them. Several authorities were cited on this point. I need only refer to <CITATION> (1884) I.L.R. 9 Bom. 82, noting that the present is not a case in which the part of the award which is beyond the submission can be separated from that which is within it. As I have suggested it is by no mears clear that the award would have been valid if it had been entirely within the terms of the submission, for if the arbitrators were at liberty to take account of the contracts not in the prescribed form, they would be giving effect to contracts which the law has declared to be void, and that would apparently be contrary to public policy. In that connection I may refer to the cases cited in <NAME>'s Commentary on Order XXIII, Rule 3, under the heading "Lawful agreement or compromise", 9th Edition, page 822; but I need not go into the cases in detail, because, in the view I take, the point does not actually arise in this case.

34. If, on the other hand, the learned Judge's view was that the award was not a lawful one, but that he had no jurisdiction to go into that question, then on that point also, I think, he was clearly wrong. If the award had been made a decree of <ORG>, then, of course, no order could have been made in the plaintiff's suit inconsistent with such decree. But that course has not been followed, and it is well settled that the mere making of an award even on a valid submission does not, ipso facto, oust the jurisdiction of the <ORG>: see <CITATION>  3 K.B. 257, cited as an authority by <NAME> in <NAME> v. <NAME> (1929) 31 Bom. L.R. 1403, and also <CITATION> (1930)32 Bom. L.R. 1319, 1328. In the case of <CITATION> (1920) I.L.R. 45 Bom. 245, s.c. 22 Bom. L.R. 1048, which the learned Judge himself appears to have made the basis of his decision, it was held that an award could be regarded as an adjustment of the suit under Order XXIII, Rule 3, and the terms of that rule make it clear that the <ORG> must first be in a position to hold that the award amounted to a lawful agreement or compromise.

35. For these reasons I agree with the order proposed by my learned brother.