advocatemmmohan

My photo

ADVOCATEMMMOHAN -  Practicing both IN CIVIL, CRIMINAL AND FAMILY LAWS,Etc.,

WELCOME TO LEGAL WORLD

WELCOME TO MY LEGAL WORLD - FOR KNOWLEDGE IN LAW & FOR LEGAL OPINIONS - SHARE THIS

Tuesday, January 26, 2016

appearing in two examinations simultaneously for the same year is violation of the Regulations of the Board, this reason given by the High Court is clearly unsustainable inasmuch as no such Regulation is shown by the Board which prohibited any such candidate to appear in two examinations in the same year. The learned senior counsel further argued that the impugned order passed by the respondents for confiscating his Certificate of Intermediate exam was, otherwise also, contrary to the principles of natural justice inasmuch as no show cause notice and opportunity of hearing was given to the appellant before passing such an order, which was passed belatedly after a period of nine years from the passing of the said examination by the appellant. 7. We are of the opinion that both the submissions of the learned senior counsel are valid in law and have to prevail. The High Court has been influenced by the argument of the respondents that simultaneous appearance in two examinations by the appellant in the same year was 'contrary to the Regulations'. However, no such Regulation has been mentioned either by the learned Single Judge or the Division Bench. Curiously, no such Regulation has been pointed out even by the respondents. On our specific query to the learned counsel for the respondents to this effect, he expressed his inability to show any such Regulation or any other rule or provision contained in the U.P. Intermediate Education Act, 1921 or Supplementary Regulations of 1976 framed under the aforesaid Act or in any other governing Regulations. Therefore, the entire foundation of the impugned judgment of the High Court is erroneous. 8. It is also pertinent to note that the appellant's intermediate examination and result thereof was not in question before the U.P. Board. No illegality in the admission in that class has been pointed out by the respondents. The alleged charge of simultaneously appearing in two examinations, one of the U.P. Board and other of the Sanskrit Board, was with respect to Class X and equivalent examination which did not relate to admission in intermediate course. The only provision for canceling the said admission is contained in Regulation (1) of Chapter VI-B. It details the procedure for passing the order of punishment canceling intermediate results and, inter alia, prescribes that a committee consisting of three different members is to be constituted and entrusted with the responsibility of looking into and disposing of cases relating to unfair means and award appropriate penalty as specified in the Regulations itself. However, there is no allegation of any unfair means adopted by the appellant in the instant case and, therefore, that Regulation has no applicability. Even otherwise, no such committee was constituted. Therefore, having taken admission in Intermediate on the basis of past certificate issued by a separate Board, which was recognised, and not on the basis of the result of Class X of the U.P. Board, the appellant derived no advantage from his examination of the U.P. Board while seeking admission in Intermediate course. Thus, from any angle the matter is to be looked into, the impugned orders dated April 20, 2011 and May 10, 2011 passed by the respondents are null and void, apart from the fact that they are in violation of the principles of natural justice. 9. The appeal is, accordingly, allowed with costs by quashing the aforesaid impugned orders and reversing the impugned judgment of the High Court. The appellant shall, accordingly, be entitled to all consequential benefits.

                                                              NON-REPORTABLE

                        IN THE SUPREME COURT OF INDIA

                        CIVIL APPELLATE JURISDICTION

                        CIVIL APPEAL NO. 11   OF 2016
                  (ARISING OUT OF SLP (C) NO. 2964 OF 2015)


|KULDEEP KUMAR PATHAK                       |.....APPELLANT(S)            |
|VERSUS                                     |                             |
|STATE OF U.P. AND OTHERS                   |.....RESPONDENT(S)           |



                               J U D G M E N T


A.K. SIKRI, J.

                 Leave granted.  Matter  is  finally  heard  at  this  stage
itself with the consent of the learned counsel for the parties.

2.     The  appellant  herein  appeared  in  the  Intermediate   Examination
conducted by Madhyamik Shiksha Parishad, U.P., Allahabad in  the  year  2002
and successfully cleared the said examination.  On that  basis,  he  pursued
the Graduation and  passed  Bachelor  of  Arts  (B.A.)  in  the  year  2005.
Thereafter, he even successfully completed his Post-Graduation  course  i.e.
Masters of  Arts (M.A.) in the year 2007 with a  desire  to  pursue  further
studies.  He  even  joined  LL.B.  course  and  successfully  cleared  LL.B.
examinations also in the year 2011.  He had  the  ambition  to  get  himself
enrolled as an Advocate so as to  pursue  the  legal  profession.   However,
before he could do that, respondent-authorities inflicted  upon  him  a  big
blow in the form of canceling his intermediate  results  of  the  year  2002
which examination was conducted by Madhyamik  Shiksha  Parishad,  Allahabad.
Order to this effect, without  putting  the  appellant  to  any  notice  and
without affording any opportunity of hearing, was passed  nine  years  after
the said exam with the direction to confiscate his Certificate.  The  effect
of the aforesaid action of the respondent was not only take away the  result
of the Intermediate Examination,  but  it  also  nullified  further  courses
which he had pursued and passed in the meantime.

3.    The  reason  for  canceling  the  said  examination  by  the  Regional
Secretary,  U.P.  Board  of  High  School   and   Intermediate   Examination
(hereinafter referred to  as  the  'U.P.  Board'),  Varanasi  was  that  the
appellant had simultaneously appeared in two examinations, one of  the  U.P.
Board and other of Sanskrit Board with respect to  Class  X  and  equivalent
examination and it was not permissible for the appellant to  appear  in  two
examinations conducted by two different Boards simultaneously.

4.    The appellant, aggrieved by the aforesaid orders dated April 20,  2011
passed by the Regional Secretary,  Intermediate  Education  Board,  Varanasi
(respondent No. 3), preferred a representation dated  May  10,  2011  before
the Director,  Education  (Secondary),  Lucknow  (respondent  No.  2).  This
representation was also addressed to respondent No. 3. Request was  made  to
both respondent Nos. 2 and 3 to allow him to present his case and  give  him
an  opportunity  of  hearing.   However,   nothing   was   heard   on   this
representation and instead consequential orders  dated  May  18,  2011  were
passed giving effect  to  earlier  orders  dated  April  20,  2011,  thereby
confiscating the Certificates of Award in favour of the appellant.

5.    The aforesaid actions of  the  respondents  forced  the  appellant  to
challenge the said orders dated April 10, 2011 and May 18, 2011  before  the
High Court of Judicature at  Allahabad  by  filing  a  writ  petition  under
Article 226 of the Constitution.  The  learned  Single  Judge  of  the  High
Court, however, dismissed the writ  petition  vide  orders  dated  July  08,
2013.  Intra-court  appeal  filed  against  the  said  judgment  before  the
Division Bench also met the same fate inasmuch  as  vide  impugned  judgment
dated January 22, 2014, the appeal of the appellant has  been  dismissed  by
the Division Bench of the High Court, thereby affirming the  orders  of  the
Single Judge.  A perusal of the orders of the Single Judge as  well  as  the
Division Bench would reflect that the courts below have  gone  primarily  by
the fact that since the appellant admitted that he appeared in  two  streams
in two different Boards in the year 2000, this action on  the  part  of  the
appellant was  contrary  to  the  Regulations  and,  therefore,  the  orders
canceling the exam were rightly passed by the respondents.

6.    Before us, Mr. Pradeep Kant, learned senior counsel for the  appellant
has made a neat  legal  argument.   He  submits  that  though  the  impugned
judgment  proceeds  on  the  basis  that  appearing  in   two   examinations
simultaneously for the same year is violation  of  the  Regulations  of  the
Board, this  reason  given  by  the  High  Court  is  clearly  unsustainable
inasmuch as no such Regulation is shown by the Board  which  prohibited  any
such candidate to appear in two examinations in the same year.  The  learned
senior counsel  further  argued  that  the  impugned  order  passed  by  the
respondents for confiscating  his  Certificate  of  Intermediate  exam  was,
otherwise also, contrary to the principles of natural  justice  inasmuch  as
no show cause notice and opportunity of hearing was given to  the  appellant
before passing such an order, which was passed belatedly after a  period  of
nine years from the passing of the said examination by the appellant.

7.    We are of the opinion that both the submissions of the learned  senior
counsel are valid in law and have to  prevail.   The  High  Court  has  been
influenced by the argument of the respondents that  simultaneous  appearance
in two examinations by the appellant in the same year was 'contrary  to  the
Regulations'. However, no such Regulation has been mentioned either  by  the
learned Single Judge or the Division Bench.  Curiously, no  such  Regulation
has been pointed out even by the respondents.  On our specific query to  the
learned counsel for  the  respondents  to  this  effect,  he  expressed  his
inability to show any  such  Regulation  or  any  other  rule  or  provision
contained in the U.P. Intermediate  Education  Act,  1921  or  Supplementary
Regulations of  1976  framed  under  the  aforesaid  Act  or  in  any  other
governing Regulations.  Therefore, the entire  foundation  of  the  impugned
judgment of the High Court is erroneous.

8.    It is  also  pertinent  to  note  that  the  appellant's  intermediate
examination and result thereof was not in question before  the  U.P.  Board.
No illegality in the admission in that class has been  pointed  out  by  the
respondents.  The  alleged  charge  of  simultaneously  appearing   in   two
examinations, one of the U.P. Board and other of  the  Sanskrit  Board,  was
with respect to Class X and equivalent examination which did not  relate  to
admission in intermediate course.  The  only  provision  for  canceling  the
said admission is contained in Regulation (1) of Chapter VI-B.   It  details
the procedure for passing the order  of  punishment  canceling  intermediate
results and, inter alia, prescribes that a  committee  consisting  of  three
different  members  is  to   be   constituted   and   entrusted   with   the
responsibility of looking into and disposing of  cases  relating  to  unfair
means and award appropriate penalty as specified in the Regulations  itself.
However, there  is  no  allegation  of  any  unfair  means  adopted  by  the
appellant in the  instant  case  and,  therefore,  that  Regulation  has  no
applicability.   Even  otherwise,  no  such   committee   was   constituted.
Therefore, having taken admission in  Intermediate  on  the  basis  of  past
certificate issued by a separate Board, which was  recognised,  and  not  on
the basis of the result of Class X of the U.P. Board, the appellant  derived
no advantage from his examination of the U.P. Board while seeking  admission
in Intermediate course.  Thus, from any angle the matter  is  to  be  looked
into, the impugned orders dated April 20, 2011 and May 10,  2011  passed  by
the respondents are null and void, apart from the  fact  that  they  are  in
violation of the principles of natural justice.

9.    The appeal  is,  accordingly,  allowed  with  costs  by  quashing  the
aforesaid impugned orders and reversing the impugned judgment  of  the  High
Court.  The appellant shall, accordingly, be entitled to  all  consequential
benefits.


                             .............................................J.
                                                                (A.K. SIKRI)



                             .............................................J.
                                                     (ROHINTON FALI NARIMAN)


NEW DELHI;
JANUARY  05 , 2016.

Thursday, January 21, 2016

Eviction suit on the ground of structural alteration against the terms of lease with out consent of owner - non examination of plaintiff is not fatal = whether there is a structural alteration in a tenanted premises is not a fact limited to the personal knowledge of the owner. It can be proved by any admissible and reliable evidence. That burden has been successfully discharged by the plaintiff by examining PWs-1 and 2. The defendants could not shake that evidence. In fact, that fact is proved partially from the evidence of the defendants themselves, as an admitted fact. Hence, only the trial court came to the definite finding on structural alteration. That finding has been endorsed by the first appellate court on re-appreciation of the evidence, and therefore, the High Court in second appeal was not justified in upsetting the finding which is a pure question of fact=We do not propose to discuss other judgments, though there is plethora of settled case law on this issue. Suffice to say that the approach made by the High Court has been wholly wrong, if not, perverse. It should not have interfered with concurrent findings of the trial court and first appellate court on a pure question of fact. Their inference on facts is certainly reasonable. The strained effort made by the High Court in second appeal to arrive at a different finding is wholly unwarranted apart from being impermissible under law. Therefore, we have no hesitation to allow the appeal and set aside the impugned judgment of the High Court and restore that of the trial court as confirmed by the appellate court.

                        IN THE SUPREME COURT OF INDIA



                        CIVIL APPELLATE JURISDICTION



                        CIVIL APPEAL NO. 231 OF 2015



DAMODAR LAL                                  ...  APPELLANT (S)

                                   VERSUS

SOHAN DEVI AND OTHERS                  ... RESPONDENT (S)



                           J  U  D  G  M  E  N  T



KURIAN, J.:



The facts unfold the plight of a poor landlord  languishing  in  courts  for
over fourty years. The case gets sadder when  we  note  that  appellant  had
been successful both in the trial court and the first  appellate  court  and
the saddest part is that the High Court in second appeal, went  against  him
on a pure question of fact!

Issue number-3 framed in Civil Regular Suit No. 191 of 1974 for eviction  on
the ground of  unauthorised  construction/material  alteration,  decided  on
21.12.1989 in the Court of Munsiff, Bhilwara, Rajasthan, reads as follows:

“Whether the tenant has carried  out  permanent  construction  on  the  plot
thereby causing a permanent change in the identity of the plot  against  the
terms of the rent agreement?”



Having analysed and appreciated the evidence of PWs-1 and 2 and also DWs-  1
to 4, the trial court came to the following finding on the issue:

“Thus all the witnesses of both sides have stated that  when  the  plot  was
taken on rent, at that time, the plot  was  empty.  The  disputed  plot  was
taken on rent. Later walls were constructed; sheets were put and were  taken
into use as shop and godown. Even today the plot is being used as  shop  and
godown.”



Dissatisfied, the tenants took up the matter in appeal before the  Court  of
the Additional District Judge-I, Bhilwara, Rajasthan in Civil Appeal No.  20
of  1999  (originally  presented  before  the  District   Judge,   Bhilwara,
Rajasthan on 19.01.1990 and since transferred  to  the  Additional  District
Judge). In the judgment dated 22.09.2000, the first appellate  court,  after
re-appreciating the whole evidence, came to the conclusion that:

“... In  my  opinion  the  evidence  that  had  been  presented  before  the
subordinate court, the subordinate court has not made any mistake in  coming
to the conclusion that the tenant has made structural changes in the  rented
accommodation. The appellant  tenant  has  not  been  able  to  present  any
evidence to show that the consent of the land lord  had  been  taken  before
making structural changes. ...”

On such findings, the appeal was dismissed. Thus, there are two findings  of
fact against the tenants/respondents.

The tenants pursued the matter in Second Appeal No. 109 of 2000  before  the
High Court of Rajasthan which was allowed by  the  impugned  judgment  dated
27.09.2012. The following were the substantial questions of  law  framed  in
the second appeal:

“ (1) Whether on the facts and  in  the  circumstances  of  this  case,  the
learned courts below have erred in granting a decree  for  eviction  on  the
ground of material alteration while  ignoring  the  relevant  considerations
and proceeding on irrelevant considerations.

(2)   Whether on the facts of this  case,  the  learned  courts  below  have
erred in not drawing adverse inference for non-appearance of  the  plaintiff
Damodar Lal in the witness box?”



The High Court, in the second  appeal,  came  to  the  conclusion  that  the
concurrent finding on structural change, in the absence of the statement  of
the plaintiff before the court, cannot be treated  to  be  trustworthy.  The
High Court went further and held that adverse  inference  should  have  been
drawn for the non-appearance of the plaintiff in the  witness  box,  and  in
such circumstances, the finding on material alteration is totally  perverse.
We feel it necessary  to  quote  the  relevant  portion  from  the  impugned
judgment:

“... In the considered opinion of this Court, such finding in the  statement
of the plaintiff cannot be treated to be trustworthy or in  consonance  with
law. The trial court was under obligation to draw adverse inference for  the
non-appearance of the plaintiff in the witness-box. On the contrary, it  has
relied upon the statement of P.W.-1  Rameshwar  Lal  who  was  the  previous
owner of the property from whom the plaintiff purchased the said property.

      Therefore, the finding arrived at by the trial court on the  issue  of
material alteration is  totally  perverse  and  not  based  upon  sound  and
trustworthy evidence. The trial court has committed gross  error  while  not
drawing adverse inference for non-appearance of the  plaintiff  Damodar  Lal
because he was the only witness to prove the fact of material alteration  by
way of producing documentary evidence  which  is  the  registered  sale-deed
executed by Rameswhwar Lal in favour, so also, his oral statement.”



And thus, the High  Court  allowed  the  second  appeal  and  the  suit  for
eviction was dismissed. Aggrieved, the landlord is before us  in  the  civil
appeal.

‘Perversity’ has been the subject matter of umpteen number of  decisions  of
this Court. It has also been settled by  several  decisions  of  this  Court
that the first appellate court, under Section  96  of  The  Civil  Procedure
Code, 1908, is the last court of facts unless  the  findings  are  based  on
evidence or are perverse.

In Krishnan v. Backiam and another[1], it  has  been  held  at  paragraph-11
that:

“11.  It may be mentioned that the first appellate court  under  Section  96
CPC is the last court of facts.  The  High  Court  in  second  appeal  under
Section 100 CPC cannot interfere with the findings of fact recorded  by  the
first appellate court under Section 96 CPC. No doubt the  findings  of  fact
of the first appellate court can be  challenged  in  second  appeal  on  the
ground that the said findings are based on no evidence or are perverse,  but
even in that case a question of law has to be formulated and framed  by  the
High Court to that effect. …”



In Gurvachan  Kaur  and  others  v.  Salikram  (Dead)  Through  Lrs.[2],  at
paragraph-10, this principle has been reiterated:

“10.  It is settled law that in exercise of power under Section 100  of  the
Code of Civil Procedure, the High Court cannot interfere  with  the  finding
of fact recorded by the first appellate court which is the  final  court  of
fact, unless the same is found to be perverse. This being the  position,  it
must be held that the High Court was not justified in reversing the  finding
of fact recorded by the first appellate court on the issues of existence  of
landlord-tenant relationship between the plaintiff  and  the  defendant  and
default committed by the latter in payment of rent.”



In the case before us, there is clear and cogent evidence  on  the  side  of
the plaintiff/appellant that there has been  structural  alteration  in  the
premises rented out to the respondents without his consent. Attempt  by  the
defendants/respondents to establish otherwise has been found to  be  totally
non-acceptable to the trial court as well  as  the  first  appellate  court.
Material  alteration  of  a  property  is  not  a  fact  confined   to   the
exclusive/and personal knowledge of the owner. It is a matter  of  evidence,
be it from the owner himself or any other witness speaking on behalf of  the
plaintiff who is conversant with the facts and the situation.  PW-1  is  the
vendor of the plaintiff, who is also his power of attorney.  He  has  stated
in unmistakable terms that there was structural alteration in  violation  of
the rent agreement. PW-2 has also supported the case of the plaintiff.  Even
the witnesses on behalf  of  the  defendant,  partially  admitted  that  the
defendants had effected some structural changes.

Be that as it may, the question whether there is a structural alteration  in
a tenanted premises is not a fact limited to the personal knowledge  of  the
owner. It can be proved  by  any  admissible  and  reliable  evidence.  That
burden has been successfully discharged by the plaintiff by examining  PWs-1
and 2. The defendants could not shake that evidence. In fact, that  fact  is
proved partially from the evidence  of  the  defendants  themselves,  as  an
admitted fact. Hence, only the trial court came to the definite  finding  on
structural  alteration.  That  finding  has  been  endorsed  by  the   first
appellate  court  on                              re-appreciation   of   the
evidence, and therefore, the High Court in second appeal was  not  justified
in upsetting the finding which is a  pure  question  of  fact.  We  have  no
hesitation to note that both the questions of law framed by the  High  Court
are not substantial questions of law. Even if the finding of fact is  wrong,
that by itself will not constitute a question  of  law.  The  wrong  finding
should stem out on a complete misreading of evidence or it should  be  based
only on conjectures and surmises.  Safest  approach  on  perversity  is  the
classic approach on the reasonable man’s inference on the facts. To him,  if
the conclusion on  the  facts  in  evidence  made  by  the  court  below  is
possible,  there  is  no  perversity.  If  not,  the  finding  is  perverse.
Inadequacy  of  evidence  or  a  different  reading  of  evidence   is   not
perversity.

In Kulwant Kaur and others v. Gurdial Singh Mann  (Dead)  by  Lrs.[3],  this
Court has dealt with the limited leeway  available  to  the  High  Court  in
second appeal. To quote paragraph-34:



“34. Admittedly, Section 100 has introduced a  definite  restriction  on  to
the exercise of jurisdiction in a second appeal so far as the High Court  is
concerned. Needless to record that the Code of Civil  Procedure  (Amendment)
Act, 1976 introduced such an embargo for such definite objectives and  since
we are not required to further probe on that score,  we  are  not  detailing
out, but the fact remains that while it is true that in a  second  appeal  a
finding of fact, even if erroneous, will  generally  not  be  disturbed  but
where it is found that the findings stand vitiated on wrong test and on  the
basis of assumptions and conjectures and resultantly there is an element  of
perversity involved therein, the High Court in our view will be  within  its
jurisdiction to deal with the issue. This is, however,  only  in  the  event
such a fact is brought to  light  by  the  High  Court  explicitly  and  the
judgment should also be categorical as to the issue of perversity  vis-à-vis
the concept of justice. Needless to say however, that perversity  itself  is
a  substantial  question  worth  adjudication  —  what  is  required  is   a
categorical finding on the part of the High Court as to perversity. In  this
context reference be had to Section 103 of the Code which reads as below:

“103. In any second appeal, the High Court  may,  if  the  evidence  on  the
record is sufficient, determine any issue necessary for the disposal of  the
appeal,—

(a) which has not been determined by the lower appellate court  or  by  both
the court of first instance and the lower appellate court, or

(b) which has been wrongly determined by such court or courts by  reason  of
a decision on such question of law as is referred to in Section 100.”

The requirements stand specified in Section 103  and  nothing  short  of  it
will bring it within the ambit of Section 100 since the issue of  perversity
will also come within the ambit of substantial question of  law  as  noticed
above. The legality of finding  of  fact  cannot  but  be  termed  to  be  a
question of law.

We reiterate however, that there must be a definite finding to  that  effect
in the judgment of the High Court so as to make it evident that Section  100
of the Code stands complied with.”



In S.R. Tiwari v. Union of India[4], after referring  to  the  decisions  of
this Court, starting with Rajinder Kumar Kindra  v.   Delhi  Administration,
Through Secretary (Labour) and others[5], it was held at paragraph-30:

“30. The findings of fact recorded by a court can be held to be perverse  if
the findings  have  been  arrived  at  by  ignoring  or  excluding  relevant
material or by taking into consideration  irrelevant/inadmissible  material.
The finding may also be said to be perverse if it is “against the weight  of
evidence”, or if the finding so outrageously defies logic as to suffer  from
the vice of irrationality. If a decision is arrived at on the  basis  of  no
evidence or thoroughly unreliable evidence and no  reasonable  person  would
act upon it, the order would be perverse. But if there is some  evidence  on
record which is acceptable and which could be relied upon,  the  conclusions
would not be treated as perverse and the findings would  not  be  interfered
with. (Vide Rajinder Kumar Kindra v. Delhi Admn. [(1984) 4 SCC  635  :  1985
SCC  (L&S)  131  :  AIR  1984  SC   1805]   , Kuldeep   Singh v. Commr.   of
Police [(1999) 2 SCC 10 : 1999 SCC (L&S) 429 : AIR  1999  SC  677]  , Gamini
Bala Koteswara Rao v. State of A.P. [(2009) 10 SCC 636 : (2010) 1 SCC  (Cri)
372 : AIR 2010 SC 589]  and Babu v. State  of  Kerala[(2010)  9  SCC  189  :
(2010) 3 SCC (Cri) 1179] .)”



      This Court has also dealt with other aspects of perversity.





We do not propose to discuss other judgments, though there  is  plethora  of
settled case law on this issue. Suffice to say that  the  approach  made  by
the High Court has been wholly wrong, if not, perverse. It should  not  have
interfered with concurrent findings of the trial court and  first  appellate
court on a pure question of fact. Their  inference  on  facts  is  certainly
reasonable. The strained effort made by the High Court in second  appeal  to
arrive at a  different  finding  is  wholly  unwarranted  apart  from  being
impermissible under law. Therefore, we  have  no  hesitation  to  allow  the
appeal and set aside the impugned judgment of the  High  Court  and  restore
that of the trial court as confirmed by the appellate court.

At this juncture, learned Counsel appearing  for  the  respondents,  praying
for some reasonable time to vacate, submitted that  in  the  nature  of  the
timber and furniture business carried on at the premises, they require  some
time to find out alternate  location/accommodation.  Having  regard  to  the
entire facts and circumstances of the case, we are  of  the  view  that  the
respondents be given time up to 31st March, 2017 which is agreeable  to  the
appellant as well, though reluctantly. The respondents are directed to  file
the usual undertaking in this Court and also continue to  pay  the  use  and
occupation charges at the rate of Rs.10,000/- per month.  In  the  event  of
any default or violation of the terms of undertaking, the  decree  shall  be
executable forthwith, in addition to the liability for contempt of court.

The appeal is allowed as above with costs quantified at Rs.25,000/-.



                                                     ...................CJI.
          (T. S. Thakur)






                                                    ......................J.
       (Kurian Joseph)

New Delhi;
January 5, 2016
-----------------------
[1]

       (2007) 12 SCC 190
[2]    (2010) 15 SCC 530
[3]    (2001) 4 SCC 262
[4]    (2013) 6 SCC 602
[5]    (1984) 4 SCC 635


-----------------------
                                                                  REPORTABLE





-----------------------
12




Wednesday, January 20, 2016

“The Lives of Sri Aurobindo”, a sacrilegious book =The sum and substance of the grievance of the respondents is really two-fold: firstly, the appellants failed to take any positive action to prohibit the availability of the objectionable book or dissociate themselves from the objectionable book; secondly, instead of taking some coercive action against Peter Heehs (such as removing him from the Ashram) the appellants assisted him in getting a visa for his continued stay in India by standing guarantee for him. 30. In our opinion, the second grievance would arise only if there is substance in the first grievance, namely, that the appellants failed to take proactive measures to have the objectionable book proscribed and that they failed to dissociate themselves from the contents of the book. This really begs the question whether the objectionable book ought at all to be proscribed or its sale prohibited. As we have seen above, the matter is very much alive before the Orissa High Court and it is for that Court to take a final call on the legality or otherwise of the action taken by the concerned authorities in the State in prohibiting the availability of the objectionable book. Until that decision is taken by the High Court, it would be premature to hold that the book is objectionable enough as not to be made available to readers. 31. In Swami Paramatmanand Saraswati it was held by this Court (relying upon several earlier decisions) that it is only the allegations made in the plaint that ought to be looked into in the first instance to determine whether the suit filed lies within the ambit of Section 92 of the CPC. It was also held that if the allegations in the plaint indicate that the suit has been filed to remedy the infringement of a private right or to vindicate a private right, then the suit would not fall within the ambit of Section 92 of the CPC. Finally, it was also held that in deciding whether the suit falls within the ambit of Section 92 of the CPC, the Court must consider the purpose for which the suit was filed. This view was reiterated in Vidyodaya Trust. 32. Considering the purpose of the suit filed by the respondents, it is quite clear that it was to highlight the failure of the appellants to take action against the availability of the objectionable book and against the author. As we have noted above, the issue whether the book is objectionable or not, whether it deserves to be proscribed or not, whether it violates the provisions of Section 153-A or Section 295-A of the Indian Penal Code has yet to be determined by the Orissa High Court. Until that determination is made, it would be premature to expect the appellants to take any precipitate action in the matter against the author. 33. The best that the appellants could have done under the circumstances was to make it clear whether they have anything to do with the objectionable book or not. The High Court has noted quite explicitly that the appellants have not sponsored the book nor was it published under the aegis of the Aurobindo Ashram. The appellants have also, it may be recalled, expressed displeasure with the contents of the objectionable book through the communication of 11th November, 2008. This being the position, we are of the opinion that the appellants have done what could reasonably be expected of them in relation to the objectionable book, pending a determination by the Orissa High Court. 34. The High Court has effectively faulted the appellants for not making the first strike to secure a ban on the objectionable book. This is really a question of the degree of reaction to the objectionable book on which we would not like to comment. The appellants could have expressed their displeasure over the contents of the objectionable book, or dissociated themselves from the objectionable book or even taken proactive steps to have the objectionable book banned or proscribed. That the appellants chose only to express their displeasure may be construed as a mild reaction (as compared to outright condemnation of the objectionable book), particularly since the appellants had nothing to do with its publication. But the question is whether the mild reaction is perverse or could in any way be held to be a breach of trust or an absence of effective administration of the Trust warranting the removal of the trustees. We do not think so. Failure to take steps to ban a book that is critical of the philosophical and spiritual guru of a Trust would not fall within the compass of administration of the Trust. It might be an omission of the exercise of proper discretion on the part of the trustees, but certainly not an omission touching upon the administration of the Trust. We are not in agreement with the High Court that the failure of the appellants to take the initiative in banning the objectionable book gives rise to a cause of action for the removal of the trustees of the Trust and settling a scheme for its administration. The trustees of a trust are entitled to a wide discretion in the administration of a trust. A disagreement with the exercise of the discretion (however passionate the disagreement might be) does not necessarily lead to a conclusion of maladministration, unless the exercise of discretion is perverse. In our opinion, the High Court ought to have allowed the application filed by the appellants for the revocation of leave granted to the respondents to initiate proceedings under Section 92 of the CPC, in the facts of this case. 35. We were invited to express a view on the constitutional freedom of speech and expression guaranteed by Article 19 (1) (a) of the Constitution. It is not at all necessary for us to do so. The Orissa High Court might be called upon to do so, depending on the views of the contesting parties, one of whom we were told, is the author of the objectionable book. We express no opinion on the issue and leave the matter at that. 36. This being our conclusion with regard to the first grievance of the respondents, their second grievance is rather premature. It would arise only if and when appropriate directions are issued by the Orissa High Court in the pending litigation. Conclusion 37. We find merit in the appeal and accordingly set aside the impugned judgment and order of the High Court and allow the application filed by the appellants for revocation of leave. The parties are left to bear their own costs and once again consider an amicable settlement of their dispute.


                                                                  REPORTABLE


                        IN THE SUPREME COURT OF INDIA

                         CIVIL APPELLATE JURISDCITON

                    CIVIL APPEAL NO.    12       OF 2016
              (Arising out of S.L.P. (Civil) No. 25788 of 2013)

Sri Aurobindo Ashram Trust and Ors.
 …Appellants
                                   Versus
R. Ramanathan and Ors.
...Respondents


                               J U D G M E N T

Madan B. Lokur, J.


1.    Leave granted.
2.    The dispute that has arisen in this appeal is one that could have  and
ought to have been settled  in  the  first  instance  in  the  Trial  Court.
Unfortunately, the feelings (if not the animosity) between the parties  have
run so high that any meaningful discussion between  them  to  sort  out  the
pending issues has been  ruled  out.  When  feelings  are  strong  (and  get
further hardened over time) and  tempers  are  high,  there  is  a  loss  of
balance and equilibrium. It is unfortunate  that  this  state  of  mind  has
persisted with both parties  who  are  well  educated  and  perhaps  have  a
philosophical and spiritual bent of mind, being trustees  and  residents  of
the Sri Aurobindo Ashram in Pondicherry and followers of Sri Aurobindo.
3.    On our part, we attempted to amicably sort  out  the  problem  between
the  parties,  but  one  of  them  refused  to  appreciate  the  meaning  of
‘dissociation’ while the other expressed the  view  that  mere  dissociation
was not enough and there must be condemnation! At the end  of  the  day,  we
felt that each party wanted to score a brownie point over the other,  little
realizing that while they would be left with some ephemeral brownie  points,
the brownies (and the cream) would be shared by somebody  else.  In  another
decision altogether, this Court had occasion to remark  that  public  trusts
for charitable and religious purpose are run for the benefit of the  public.
No individual should take benefit from them. If the  persons  in  management
of the trusts are subjected to  multiplicity  of  legal  proceedings,  funds
which are to be used for charitable or religious purposes  would  be  wasted
on litigation.[1] How true.
4.    It is time for all of us, litigants, lawyers and judges to  introspect
and decide whether a litigation being pursued is really worth the while  and
alternatively whether an amicable  dispute  resolution  mechanism  could  be
availed of to settle the dispute to the satisfaction of the litigants.  Most
problems have a positive solution and a concerted effort  must  be  made  by
all concerned to find that solution of  least  resistance  to  the  problem.
This is not only in the interest of the parties involved  but  also  in  the
larger interest of the justice delivery system.
The facts

5.    The respondents are residents of or are otherwise concerned  with  the
Sri Aurobindo Ashram in Pondicherry. They filed a civil suit being O.S.  No.
15/2010[2] before the District Judge, Pondicherry under  the  provisions  of
Section 92 of the Code of Civil Procedure (hereinafter referred  to  as  the
‘CPC’).[3]  It was prayed therein  that  appellants  2  to  6  who  are  the
trustees in the Sri Aurobindo Ashram Trust (appellant No. 1 and  hereinafter
referred to as ‘the Trust’) be removed and new trustees be  appointed  since
these appellants have  failed  the  philosophy  of  Sri  Aurobindo  and  the
Mother.   A  prayer  was  also  made  for  settling   a   scheme   for   the
administration of the Trust.
Plaint filed by the respondents
6.    The averments made in the plaint principally pertain to a book  titled
“The Lives of Sri Aurobindo” written by one Peter Heehs  and  the  fall  out
thereafter.  The book purports to be a biography of Sri  Aurobindo  and  was
published in May 2008 by Columbia University Press  in  the  United  States.
For convenience, and for no other reason, this book  is  hereafter  referred
to as the book or the objectionable book.
7.    The respondents summarized their grievances  in  paragraph  2  of  the
plaint and the relevant portion thereof reads as follows:-
“The plaintiffs who represent the interest of the  community  of  followers,
devotees and disciples of Sri Aurobindo (for whose  benefit  the  Trust  was
created) are constrained to file the present suit, inter  alia  seeking  the
removal of the present Trustees when the Trustees acted in bad faith and  in
breach  of  their  obligations  as  trustees.   Instead  of  promoting   Sri
Aurobindo’s tenets  and  philosophy,  the  Trustees  have  and  continue  to
harbor, defend and  openly  extend  support  to  one  Mr.  Peter  Heehs  who
authored “The Lives of Sri Aurobindo”, a  sacrilegious  book  which  falsely
portrays Sri Aurobindo as a liar  and  a  mentally  imbalanced  person,  and
ridiculing his spiritual encounters and experiences as  an  outcome  of  Sri
Aurobindo’s tantric sexual indulgence and schizophrenic state of mind.   The
fact that such an offensive and venomous book was  authored  by  none  other
than one of the Ashram’s  own  members,  sent  shock  waves  throughout  the
community of thousands of devotees and disciples’ of Sri Aurobindo.   Masses
of devotees appealed to the Trustees to publicly condemn the content of  the
book and to clarify that the  book  was  not  an  official  publication/work
supported by the Trust, and further to seek the  expulsion  of  Peter  Heehs
from the Ashram.  Instead of publicly dissociating itself from  Peter  Heehs
and his book, the Trustees in absolute breach of trust, have  for  over  two
years harbored Peter Heehs within the Ashram itself and gone to  the  extent
of standing as a financial guarantor for Peter Heehs’ conduct for  his  visa
renewals.  Despite mass public outcries to the Trustees to
expel Peter Heehs.

condemn and dissociate the Trust from the sacrilegious work

stop the circulation of the book so as to protect  the  future  interest  of
the trust

The Trustees, in pursuit of some hidden agenda, chose to protect and  render
support to that very individual who has maliciously disparaged, debased  and
brought disrepute to Sri Aurobindo’s philosophy and the ashram community  at
large.  The Trustees have repeatedly disobeyed and  declined  to  carry  out
the directions of the Settler of the Trust, failed to execute the  trust  in
accordance  with  its  object  of  Trust  and  have  thus  acted  in   gross
dereliction of their duty as trustees.  The repeated conduct and failure  of
the Trustees has proven  that  the  Trustees  are  unfit  and  incapable  of
administrating the trust in conformity with the  ideals  of  Sri  Aurobindo.
Thus it is in the interest of the trust and its beneficiaries to remove  the
existing trustees and consequently appoint new trustees having faith in  Sri
Aurobindo’s philosophy and ideals and who are capable of  administering  the
trust and protecting its interest in accordance with its objects.”


8.    More specifically, it was stated that  the  book  contains  deliberate
and baseless distortions relating to the life of Sri Aurobindo, inter  alia,
to the effect that he had romantic affairs with the Mother involving  veiled
tantric sexual practices; that he was a frequent liar  and  lied  about  his
spiritual experiences; that his spiritual experiences were based  on  sexual
and schizophrenic stimuli and that he was the initiator of the  Hindu-Muslim
divide and was responsible for the partition of the country.
9.    It was stated that Peter Heehs claimed to be one of  the  founders  of
the archives of the Sri Aurobindo Ashram whereas the sole  founder  was  one
Jayanthilal Parekh and that this impersonation was mala fide  and  malicious
to lend credibility to his book.
10.    In  sum  and  substance,  according  to  the  respondents  what   was
outrageous and intolerable, as far as they and other  devotees  and  inmates
of Sri Aurobindo Ashram are concerned, was:
“a)   That the author of the deeply offensive  book  against  Sri  Aurobindo
was none other than one of the ashramites;
b)    That an individual who had been allowed to  reside,  use  and  benefit
from the  facilities  and  resources  of  the  Ashram  to  pursue  spiritual
enlightenment through Sri  Aurobindo’s  philosophy  had  instead  flagrantly
misused the Ashram’s name and its resources to launch a  disparaging  attack
on the soul and foundations of the Ashram, its faith, tenets and beliefs;



c)    That Peter Heehs, the author has intentionally tried  to  mislead  the
public  to  believe  that  the  sacrilegious  work  has  been  published  in
consultation/affiliation with the Ashram by audaciously claiming that he  is
one of the “founders of the Ashram Archives” in  a  clear  attempt  to  give
credibility to the source and foundation of a book.



d)    That the book was made possible by extensively misusing  the  Ashram’s
own research database and resources to  which  Peter  Heehs  had  privileged
access, and which has been gathered and  developed  over  40  years  by  the
Ashram’s inmates, devotees and researchers, and includes rare  materials  of
great historical value.  This database which is  intended  to  document  the
greatness of Sri Aurobindo’s life and work was misused  by  Peter  Heehs  to
misrepresent Sri Aurobindo in bad light.



e)    Work done by large teams of dedicated inmates of the  Ashram  over  40
years was claimed by Peter Heehs to be his  own  personal  research  in  the
book.



f)    Some of the rare materials published by Peter Heehs in his  book  were
without proper permission of the Sri Aurobindo Ashram Trust.”



11.   In view  of  the  above,  the  respondents  and  others  made  several
petitions to the appellants  including  on  20th  September,  2008  and  2nd
October, 2008 but the appellants did not take any remedial action either  in
respect of the objectionable book or in  respect  of  Peter  Heehs.  It  was
stated that one Pranab Bhattacharya, the  Head  of  the  Physical  Education
Department had expelled Peter Heehs from the Physical  Education  Department
of the Ashram on 30th October, 2008.  The  expulsion  notice  was  displayed
prominently on the notice board but in spite of such and other actions,  the
appellants failed to take any appropriate corrective measures.
12.   It was stated in the plaint that through a communication made on  11th
November, 2008 the Trust expressed and admitted  its  displeasure  with  the
contents of the book written by Peter Heehs and  claimed  that  disciplinary
action had been initiated against him.  It was clarified  that  Peter  Heehs
was not the founder of the archives of the  Ashram  but  Jayanthilal  Parekh
was its founder.  However, this  does  not  appear  to  have  satisfied  the
respondents.
13.   Quite independent  of  the  actions  taken  within  the  Ashram,  some
devotees of  Sri  Aurobindo  took  other  proactive  measures  to  stop  the
circulation of the objectionable book. This eventually  led  the  Government
of Orissa to order forfeiture of the book under Section 95 of  the  Criminal
Procedure Code[4] for being a work punishable  under Section  295-A  of  the
Indian Penal Code.[5]
14.   The forfeiture process was initiated by one of  the  devotees  of  Sri
Aurobindo who filed a writ petition in the Orissa High Court being W.P.  No.
15939 of 2008 to prohibit the printing, publication and distribution of  the
objectionable book.  This led the Orissa High Court to pass an order on  4th
November, 2008 requiring the petitioner therein to make a representation  to
the Government of India which in turn was required to pass an order  on  the
representation. The petitioner did make a representation and the  Government
of India passed an order in December, 2008 directing  the  State  Government
of Delhi and the Union  Government  in  Pondicherry  to  ensure  that  there
should be no publication of the objectionable book without  obtaining  a  no
objection from the Government of India.
15.   The Government of Orissa also independently examined  the  matter  and
on 9th April, 2009 a Gazette Notification was issued in which  grounds  were
given to conclude that the objectionable book contained matters  which  were
deliberately and maliciously intended to insult  the  religious  beliefs  of
the  devotees  of  Sri  Aurobindo  thereby  affecting   public   peace   and
tranquility making the publication of  the  objectionable  book  an  offence
punishable under Sections 295-A and  153-A  of  the  Indian  Penal  Code.[6]
Therefore, every copy of  the  objectionable  book,  its  copies,  reprints,
translations or other documents  containing  extracts  taken  therefrom  was
forfeited to the Government.
16.   The relevant extract of the  Gazette  Notification  dated  9th  April,
2009 reads as follows:
S.R.O.NO.127/2009 – Where as on a careful consideration of materials  placed
on record, it appears to the State Government that the book titled  as  ‘The
Lives of Sri Aurobindo” written by Peter Heehs  and  published  by  Columbia
University Press, New York, U.S.A. contain objectionable  matters  depicting
distorted facts about  the   life  and  character  of  Sri  Aurobindo.   And
whereas the State Government, on the following grounds, is  of  the  opinion
that the said book contains matters which are deliberately  and  maliciously
intended to insult religious beliefs of millions of Indians who idolize  Sri
Aurobindo as a  National  Hero  and  incarnation  of  “Almighty”  and  which
promotes communal disaffection affecting public peace  and  tranquility  the
publication of which is punishable under  sections  295A  and  153A  of  the
Indian Penal Code,1860  (45 of 1860), namely –
(a) the book depicts wrong and distorted facts on the life and character  of
Sri Aurobindo, which is clearly blasphemous
(b)  the book contains absurd, irrelevant and self-made  stories,  which  do
not have any  scriptural  support  and  has  caused  widespread  indignation
amongst the devotees
(c) the writings portrayed in the book have seriously  hurt  the  sentiments
of the apostles of Sri Aurobindo and the  said  book,  with  deliberate  and
malicious intention has insulted the religious beliefs of millions;
(d)  the said book, inter  alia,  narrates  at  page  245  that  “but  those
familiar with the literature of psychiatry and clinical  psychiatry  may  be
struck by the similarity between Aurobindo’s powers and experiences and  the
symptoms of schizophrenia”;
(e)  it is mentioned at page 399 that “Early in  the  afternoon  the  Mother
rejoined him, and they walked together to the small outer  room  where  they
sat together on a sofa, the Mother on Sri  Aurobindo’s   right.   Here  they
remained for the next few hours as  ashramites  and  visitors  –  more  than
three thousand by the end of the 1940s -  passed before  them  one  by  one,
“There  is  no  suggestion  of  a  vulgar  jostle  anywhere  in  the  moving
procession,” a visitor noted.  “The mystic sits  bare-bodied  except  for  a
part of his dhoti thrown around his shoulders, A kindly light plays  in  his
eyes,” Sri Aurobindo looked directly  at  each  person  for  a  moment  “the
moving   visitor is conscious of a particular contact with these  [eyes]  as
he bends down to do his obeisance.  They leave upon him a mysterious  ‘feel’
that baffles description.  The contact, almost physical,  instills  a  faint
sense of a fragrance into his heart and he has a perception of a  glow  akin
to that  spreading  in  every  fibre  of  his  being.”   Most  visitors  had
similarly positive experiences. But some, particularly those from the  West,
were distracted by the theatricality of the setting and the  religiosity  of
the pageantry.”
Now, therefore, in exercise of the powers conferred by  Sub-section  (l)  of
section 95 of the Code of Criminal Procedure, 1973 (2 of  1974),  the  State
Government do hereby declare that every copy of the book titled  “The  Lives
of Sri  Aurobindo”   written  by  Peter  Heehs  and  published  by  Columbia
University Press New York, U.S.A.  its  copies,  reprints,  translations  or
other documents containing extracts taken  therefrom  be  forfeited  to  the
Government.


17.   Notwithstanding the above coercive action taken by the  Government  of
Orissa and the Government of India, the appellants did not  take  any  steps
to expel Peter Heehs from the Ashram or to sever all ties of the Trust  with
him; no restatement was made by the Trust  disassociating  itself  from  the
objectionable book and no steps were taken by the  appellants  to  stop  the
publication of the book by  contacting  Columbia  University  Press  in  the
United States, while independent organizations such as Google, Flipkart  and
A1 Books made  the  objectionable  book  permanently  unavailable  on  their
websites and through sales channels in India.
18.   On the contrary, the appellants stood financial guarantee for  renewal
of Peter Heehs’ visa to stay in India. Notwithstanding  this,  the  devotees
of Sri Aurobindo and the residents of the Ashram continued to  persuade  the
appellants and addressed to them further letters dated 28th  May,  2010  and
2nd July, 2010 and several other letters.  The only  replies  received  from
the appellants were on 21st June, 2010 and 22nd  July,  2010  but  no  clear
stand was taken therein to redress the grievances  of  the  respondents.  It
was alleged in the plaint that these acts  of  omission  and  commission  by
appellants Nos. 2 to 6 was a clear indication  that  they  were  mismanaging
the affairs of the Trust and needed to be removed.
19.   Leave to sue was granted by the Trial Judge  to  the  respondents  and
summons was then issued in the civil suit to the  appellants  who  preferred
I.A. No. 494 of 2011 to revoke the  leave  granted.   This  application  was
dismissed by the Trial Judge by an order dated 6th October, 2012.
Order of the Trial Court
20.   The Trial Court was of the view that  where  leave  is  granted  under
Section 92 of the CPC without notice to the defendants in  the  suit,  those
defendants would have a right to apply for revocation  of  leave.   However,
since leave was granted to the respondents in the present case after  giving
full opportunity to the appellants to put forth their case, the question  of
revocation would arise only after evidence is  led  in  the  matter  and  on
final determination of the suit.
21.   The Trial Court rejected the contention of  the  appellants  that  the
documents referred to and relied upon by the respondents were fabricated  on
the ground that this could be adjudicated only after  oral  and  documentary
evidence was led on both sides in a full-fledged trial.  It was  also  noted
that several impleadment applications were  filed  in  the  suit  for  being
heard in the matter.  Therefore if leave is revoked, those applicants  would
lose their right and the real truth would not come out.
22.   Based on the above reasoning the Trial Judge rejected the  application
to revoke the leave granted to the respondents.
23.   Feeling aggrieved, the appellants preferred a civil revision  petition
being C.R.P. (P.D.) No. 4357 of 2012 which  came  to  be  dismissed  by  the
impugned judgment and order  dated  2nd  April,  2013  by  the  Madras  High
Court.[7]
Decision of the High Court
24.   The High Court took the view that the main allegation  in  the  plaint
is with regard to the objectionable book written  by  Peter  Heehs  who  was
allowed to reside in the Ashram and allowed access to the  archives  of  the
Ashram.
25.   The High Court took into consideration  the  law  laid  down  by  this
Court in Swami Parmatmanand Saraswati v.  Ramji  Tripathi[8]  to  hold  that
only the allegations in the plaint  should  be  looked  into  in  the  first
instance to determine whether  the  suit  filed  by  the  respondents  falls
within the scope and ambit of Section 92 of the CPC.  However, reliance  was
also placed on Vidyodaya Trust v. Mohan Prasad R & Ors.[9] to hold that  the
Court should go beyond the relief prayed for  and  focus  on  the  basis  on
which the suit was filed and whether it was for vindicating  public  rights.
Taking the law into consideration as well  as  the  averments  made  in  the
plaint, the High Court held as follows:
“According to me, for the purpose of deciding the  issue  involved  in  this
revision, there is no necessity to go into the veracity of the  contents  of
the book.  Admittedly, the plaintiffs have not filed the copy  of  the  book
and it is their allegation that the book has not  been  published  in  India
and it will be available for  access  only  through  the  Internet.   In  my
opinion, in the absence of producing the book before this court, it  is  not
possible to comment on the statements made in the book about Sri  Aurobindo.
 Even assuming that in the said book, derogatory remarks  are  made  against
Sri Aurobindo and his relationship with  the  Mother,  in  my  opinion,  the
revision petitioners cannot be held responsible for the same as  admittedly,
the revision petitioners have not sponsored the book nor published the  book
under the aegis of Aurobindo Ashram.  The only allegation made  against  the
revision petitioners is that they have not taken any steps to remove such  a
person from the Ashram.  According to me, such inaction on the part  of  the
revision petitioners cannot be brought into the caption of breach of  trust.
Nevertheless, having regard to the scope of section 92 of the Code of  Civil
Procedure and as per the law laid down by the Honourable  Supreme  Court  in
Vidyodaya Trust case, the court has to go beyond the  relief  and  focus  on
the basis for which the suit was filed to find out whether  a  suit  can  be
entertained under section 92 of the Code of Civil Procedure.”


26.   Thereafter, the High Court held that since the Ashram had  nothing  to
do with the publication of the objectionable book by one of its  inmates  it
could not be held that there is a breach of  trust.  However  (and  this  is
important) the High Court concluded that since the appellants had not  taken
any action to secure the ban of  the  objectionable  book  or  to  take  any
action against Peter Heehs, the respondents had made out  a  case  to  bring
the suit within the ambit of Section 92 of the CPC and therefore  the  Trial
Court was right in rejecting the application to revoke leave.  It  was  also
held that  under  these  circumstances,  the  respondents  had  no  personal
interest in the matter and the suit was not filed by them to  vindicate  any
personal interest.  Consequently, they had the necessary  locus  to  file  a
suit under Section 92 of the CPC.
27.   The High Court also held, reversing the Trial Court  in  this  regard,
that merely because leave had been granted after hearing the appellants,  it
would not be a ground to deny to them the right to file an  application  for
revocation of leave.
28.   On the above basis, the High Court rejected the revision petition  and
it is under these  circumstances  that  the  rejection  is  under  challenge
before us.
Discussion and findings
29.   The sum and substance of the grievance of the  respondents  is  really
two-fold: firstly, the appellants failed to  take  any  positive  action  to
prohibit  the  availability  of  the  objectionable   book   or   dissociate
themselves from the objectionable book; secondly,  instead  of  taking  some
coercive action against Peter Heehs (such as removing him from  the  Ashram)
the appellants assisted him in getting a visa  for  his  continued  stay  in
India by standing guarantee for him.
30.   In our opinion, the second grievance would  arise  only  if  there  is
substance in the first grievance, namely,  that  the  appellants  failed  to
take proactive measures to have the objectionable book proscribed  and  that
they failed to dissociate themselves from the contents  of  the  book.  This
really begs the question whether the objectionable book ought at all  to  be
proscribed or its sale prohibited. As we have  seen  above,  the  matter  is
very much alive before the Orissa High Court and it is  for  that  Court  to
take a final call on the legality or otherwise of the action  taken  by  the
concerned authorities in the State in prohibiting the  availability  of  the
objectionable book. Until that decision is  taken  by  the  High  Court,  it
would be premature to hold that the book is objectionable enough as  not  to
be made available to readers.
31.   In Swami Paramatmanand Saraswati it was held by  this  Court  (relying
upon several earlier decisions) that it is only the allegations made in  the
plaint that ought to be looked into  in  the  first  instance  to  determine
whether the suit filed lies within the ambit of Section 92 of  the  CPC.  It
was also held that if the allegations in the plaint indicate that  the  suit
has been filed  to  remedy  the  infringement  of  a  private  right  or  to
vindicate a private right, then the suit would not fall within the ambit  of
Section 92 of the CPC. Finally, it was also held that  in  deciding  whether
the suit falls within the ambit of Section 92 of the  CPC,  the  Court  must
consider the purpose for which the suit was filed. This view was  reiterated
in Vidyodaya Trust.
32.   Considering the purpose of the suit filed by the  respondents,  it  is
quite clear that it was to highlight the failure of the appellants  to  take
action against the availability of the objectionable book  and  against  the
author. As we have noted above, the issue whether the book is  objectionable
or not, whether it deserves to be proscribed or  not,  whether  it  violates
the provisions of Section 153-A or Section 295-A of the  Indian  Penal  Code
has yet to be determined by the Orissa High Court. Until that  determination
is made, it would  be  premature  to  expect  the  appellants  to  take  any
precipitate action in the matter against the author.
33.   The best that the appellants could have done under  the  circumstances
was  to  make  it  clear  whether  they  have  anything  to  do   with   the
objectionable book or not. The High Court has noted  quite  explicitly  that
the appellants have not sponsored the book nor was it  published  under  the
aegis of  the  Aurobindo  Ashram.  The  appellants  have  also,  it  may  be
recalled, expressed displeasure with the contents of the objectionable  book
through the communication of 11th November, 2008. This being  the  position,
we are of the opinion that the appellants have done  what  could  reasonably
be expected of them  in  relation  to  the  objectionable  book,  pending  a
determination by the Orissa High Court.
34.   The High Court has effectively faulted the appellants for  not  making
the first strike to secure a ban on the objectionable book. This  is  really
a question of the degree of reaction to the objectionable book on  which  we
would not like  to  comment.  The  appellants  could  have  expressed  their
displeasure over the contents of  the  objectionable  book,  or  dissociated
themselves from the objectionable book or  even  taken  proactive  steps  to
have the objectionable book banned or proscribed. That the appellants  chose
only to express their displeasure may be construed as a  mild  reaction  (as
compared to outright condemnation of the objectionable  book),  particularly
since the appellants had  nothing  to  do  with  its  publication.  But  the
question is whether the mild reaction is perverse or could  in  any  way  be
held to be a breach of trust or an absence of  effective  administration  of
the Trust warranting the removal of  the  trustees.  We  do  not  think  so.
Failure to take steps to ban a book that is critical  of  the  philosophical
and spiritual guru  of  a  Trust  would  not  fall  within  the  compass  of
administration of the Trust. It might be an  omission  of  the  exercise  of
proper discretion on  the  part  of  the  trustees,  but  certainly  not  an
omission touching upon the administration of  the  Trust.   We  are  not  in
agreement with the High Court that the failure of  the  appellants  to  take
the initiative in banning the objectionable book gives rise to  a  cause  of
action for the removal of the trustees of the Trust and  settling  a  scheme
for its administration. The trustees of a  trust  are  entitled  to  a  wide
discretion in the  administration  of  a  trust.  A  disagreement  with  the
exercise of the discretion (however passionate the  disagreement  might  be)
does not necessarily lead to a conclusion of maladministration,  unless  the
exercise of discretion is perverse.   In our opinion, the High  Court  ought
to have allowed the application filed by the appellants for  the  revocation
of leave granted to the respondents to initiate  proceedings  under  Section
92 of the CPC, in the facts of this case.
35.   We were invited to express a view on  the  constitutional  freedom  of
speech and expression guaranteed by Article 19 (1) (a) of the  Constitution.
It is not at all necessary for us to do so. The Orissa High Court  might  be
called upon to do so, depending on the views of the contesting parties,  one
of whom we were told, is the author of the objectionable  book.  We  express
no opinion on the issue and leave the matter at that.
36.   This being our conclusion with regard to the first  grievance  of  the
respondents, their second grievance is  rather  premature.  It  would  arise
only if and when appropriate directions are issued by the Orissa High  Court
in the pending litigation.
Conclusion
37.   We find merit in the appeal and accordingly  set  aside  the  impugned
judgment and order of the High Court and allow the application filed by  the
appellants for revocation of leave. The parties are left to bear  their  own
costs and once again consider an amicable settlement of their dispute.
                                                                 ……………………….J
                                                                (Madan    B.
Lokur)


                                                                 ……………………….J
                                                                    (S.   A.
Bobde)
New Delhi;
January  5, 2016

-----------------------
[1]
      [2] Vidyodaya Trust v. Mohan Prasad R, (2008) 4 SCC 115
[3]
      [4] Subsequently renumbered as O.S. No.15/2011
[5]
      [6]  92. Public charities.—(1) In the case of any  alleged  breach  of
any  express  or  constructive  trust  created  for  public  purposes  of  a
charitable or religious nature, or where  the  direction  of  the  Court  is
deemed necessary for the administration of any  such  trust,  the  Advocate-
General, or two or more persons having an interest in the trust  and  having
obtained the leave of the Court, may institute a suit,  whether  contentious
or not, in the principal Civil Court of  original  jurisdiction  or  in  any
other Court empowered in that behalf by  the  State  Government  within  the
local limits of whose jurisdiction the whole or any  part  of  the  subject-
matter of the trust is situate to obtain a decree—
      (a) removing any trustee;
      (b) appointing a new trustee;
      (c) vesting any property in a trustee;
      (cc) directing a trustee who has been removed or a person who has
ceased to be a trustee, to deliver possession of any trust property in his
possession to the person entitled to the possession of such property;
      (d) directing accounts and inquiries;
      (e) declaring what proportion of the trust property or of the
interest therein shall be allocated to any particular object of the trust;
      (f) authorising the whole or any part of the trust property to be
let, sold, mortgaged or exchanged;
      (g) settling a scheme; or
      (h) granting such further or other relief as the nature of the case
may require.
      (2)   xxx             xxx              xxx
xxx

      (3)   xxx             xxx              xxx
xxx


[7]
      [8]  95. Power to declare certain publications forfeited and to issue
search warrants for the same.— (1) Where—
      (a) any newspaper, or book, or
      (b) any document,
      wherever printed, appears to  the  State  Government  to  contain  any
matter the publication  of  which  is  punishable  under  Section  124-A  or
Section 153-A or Section 153-B or Section 292 or Section 293 or Section 295-
A of the Indian Penal Code (45  of  1860),  the  State  Government  may,  by
notification, stating the grounds of its opinion, declare every copy of  the
issue of the newspaper containing such matter, and every copy of  such  book
or other document to be forfeited to Government, and  thereupon  any  police
officer may seize the same wherever found in India and  any  Magistrate  may
by warrant authorise any police officer not below the rank of  sub-inspector
to enter upon and search for the same in any  premises  where  any  copy  of
such issue or any such book or other document may be or  may  be  reasonably
suspected to be.
      (2) In this section and in Section 96,—
      (a) “newspaper” and “book” have the same meaning as in the Press and
Registration of Books Act, 1867 (25 of 1867);
      (b) “document” includes any painting, drawing or photograph, or other
visible representation.
      (3) No order passed or  action  taken  under  this  section  shall  be
called in question in any  Court  otherwise  than  in  accordance  with  the
provisions of Section 96.

[9]
      [10]  295-A. Deliberate and malicious acts intended to outrage
religious feelings of any class by insulting its religion or religious
beliefs.—Whoever, with deliberate and malicious intention of outraging the
religious feelings of any class of citizens of India, by words, either
spoken or written, or by signs or by visible representations or otherwise,
insults or attempts to insult the religion or the religious beliefs of that
class, shall be punished with imprisonment of either description for a term
which may extend to three years, or with fine, or with both.
[11]
      [12]  153-A. Promoting enmity between different groups on grounds of
religion, race, place of birth, residence, language, etc., and doing acts
prejudicial to maintenance of harmony.—(1) Whoever—
      (a) by words, either spoken or written, or  by  signs  or  by  visible
representations or otherwise, promotes or attempts to  promote,  on  grounds
of religion, race, place of birth, residence, language, caste  or  community
or any other ground whatsoever, disharmony or feelings of enmity, hatred  or
ill-will between different religious, racial, language  or  regional  groups
or castes or communities, or
      (b)  commits any act  which  is  prejudicial  to  the  maintenance  of
harmony between different religious, racial, language or regional groups  or
castes or communities, and which  disturbs  or  is  likely  to  disturb  the
public tranquillity, or
      (c) organizes any exercise, movement, drill or other similar  activity
intending that the participants in such activity shall use or be trained  to
use criminal force  or  violence  or  knowing  it  to  be  likely  that  the
participants in such activity will use or be trained to use  criminal  force
or violence, or participates  in  such  activity  intending  to  use  or  be
trained to use criminal force or violence or knowing it to  be  likely  that
the participants in such activity will use or be  trained  to  use  criminal
force or violence, against  any  religious,  racial,  language  or  regional
group or caste or community and such activity,  for  any  reason  whatsoever
causes or is likely to cause fear  or  alarm  or  a  feeling  of  insecurity
amongst members of such religious, racial, language  or  regional  group  or
caste or community,
      shall be punished with imprisonment which may extend to three years,
or with fine, or with both.
      Offence committed in place of worship, etc.—(2) Whoever commits an
offence specified in sub-section (1) in any place of worship or in any
assembly engaged in the performance of religious worship or religious
ceremonies, shall be punished with imprisonment which may extend to five
years and shall also be liable to fine.
[13]
      [14] Sri Aurobindo Ashram Trust & Ors. v. S. Ramanathan & Ors,
MANU/TN/0541/2013
[15]
      [16] (1974) 2 SCC 695
[17]
      [18] (2008) 4 SCC 115

whether the High Court was justified in setting aside the award of the Motor Accidents Claims Tribunal, Kolkata only on the ground that the Tribunal did not have the territorial jurisdiction.?=“166. Application for compensation.— * * * (2) Every application under sub-section (1) shall be made, at the option of the claimant, either to the Claims Tribunal having jurisdiction over the area in which the accident occurred, or to the Claims Tribunal within the local limits of whose jurisdiction the claimant resides or carries on business or within the local limits of whose jurisdiction the defendant resides, and shall be in such form and contain such particulars as may be prescribed:- The provision in question, in the present case, is a benevolent provision for the victims of accidents of negligent driving. The provision for territorial jurisdiction has to be interpreted consistent with the object of facilitating remedies for the victims of accidents. Hyper technical approach in such matters can hardly be appreciated. There is no bar to a claim petition being filed at a place where the insurance company, which is the main contesting parties in such cases, has its business. In such cases, there is no prejudice to any party. There is no failure of justice. Moreover, in view of categorical decision of this Court in Mantoo Sarkar (supra), contrary view taken by the High Court cannot be sustained. The High Court failed to notice the provision of Section 21 CPC. 15. Accordingly, we allow this appeal, set aside the impugned judgment of the High Court and restore the award of the Tribunal.

                                 REPORTABLE

                        IN THE SUPREME COURT OF INDIA
                        CIVIL APPELLATE JURISDICTION

                        CIVIL APPEAL NO. 10  OF 2016
                (ARISING OUT OF SLP (CIVIL) NO.27243 OF 2015)

MALATI SARDAR                                       …PETITIONER

VERSUS

NATIONAL INSURANCE COMPANY LIMITED
& ORS.                                                   ...RESPONDENTS

                               J U D G M E N T


ADARSH KUMAR GOEL, J.

1.    Leave granted.  The question raised in  this  appeal  is  whether  the
High Court was justified in setting aside the award of the  Motor  Accidents
Claims Tribunal, Kolkata only on the ground that the Tribunal did  not  have
the territorial jurisdiction.
2.    On 7th May, 2008, the  deceased  Diganta  Sardar,  aged  26  years,  a
school teacher, unmarried son of the appellant was hit  by  Bus  No.WB/15-A-
4959 insured with the respondent company at Hoogly, in  the  State  of  West
Bengal and died.  He was travelling on motor cycle of his  colleague,  Uttam
Samui as a pillion rider.  The appellant filed an application under  Section
166 of the Motor Vehicles Act, 1988 (“the Act”) for compensation before  the
Tribunal at Kolkata.
3.    Rash and negligent driving by  the  driver  of  the  bus  having  been
established, the Tribunal, applying the multiplier of 13 on account  of  age
of the appellant being 47 years, and taking into account the income  of  the
deceased and other relevant factors, fixed  compensation  of  Rs.16,12,200/-
with interest at the rate of 6% p.a.  from  the  date  of  filing  of  claim
petition vide its Award dated 7th February, 2012.
4.    The respondent company preferred an appeal before the  High  Court  on
the only ground of lack of territorial jurisdiction of  the  Tribunal.   The
objection of the respondent was that the accident took place at  Hoogly  and
the claimant resided at Hoogly.  Office of the respondent being  at  Kolkata
did not attract jurisdiction of the Kolkata Tribunal.  Reliance  was  placed
on the decisions of this Court in Union of  India  vs.  G.S.  Grewal[1]  and
Jagmittar Sain Bhagat vs. Director, Health Services, Haryana[2]  apart  from
the High Court judgments.  The appellant  supported  the  award  by  placing
reliance on judgment of this Court in Mantoo Sarkar vs.  Oriental  Insurance
Company Limited[3]  apart from other judgments.
5.    The High Court upheld the objection of the respondent and allowed  the
appeal  of  the  respondent  company  and  directed  refund  of  the  amount
deposited/paid, if any, to the respondent company.  It was observed :
“In the instant case admittedly the accident took  place  in  Hooghly.   The
claimant, as evident from the cause title, resides at  Hoogly.   The  owner,
the respondent, too resides at Hooghly.   Hooghly, no doubt, is  beyond  the
territorial jurisdiction of the Tribunal at Kolkata.  The  argument  of  the
respondent-claimant that the Kolkata Tribunal exercises  jurisdiction  since
the regional  office  of  the  insurance  company  is  situated  within  its
territorial limits cannot be accepted  as  the  last  option  under  section
166(2) cannot be construed to mean the residential address  of  the  company
as a company can have a business or an office address and not a  residential
address.   Therefore,  the  Tribunal  at  Kolkata  had  no  jurisdiction  to
entertain the claim petition.  In this regard we follow  the  principles  of
law laid down in New India Assurance Company Limited vs. Kustiswar  Pramanik
(supra) [2010(1) T.A.C. 405 (Cal), in Nirmala  Devi  Agarwal  (supra)  [2013
(3) CLJ (Cal)] and in the unreported judgment delivered on 18th  July,  2012
in FMA 724 of 2008 with C.O.T. 22 of 2008 (The  New  Indian  Assurance  Col.
Ltd. vs. Silpi Dutta & Ors.) and we respectfully disagree with the  judgment
in FMA 1454 of 2013 (National Insurance  Company  Ltd.  vs.  Alpana  Jana  &
Ors.)”.

6.    We have heard learned counsel for the parties.
7.    Learned counsel for the appellant submitted that the  High  Court  was
in grave error in holding that  the  Kolkata  Tribunal  could  not  exercise
jurisdiction on the ground that registered office of the  insurance  company
was within its territorial limits. Jurisdiction was available under  Section
166(2) if the defendant/respondent in a claim petition was  residing  within
the jurisdiction of the Tribunal.  The residence in  the  case  of  juristic
person included its Principal office.  In any case, the view  taken  by  the
High Court is directly in conflict with the law laid down by this  Court  in
Mantoo Sarkar (supra) under which the High Court  could  interfere  in  such
cases only if there was failure of justice.  The decisions of this Court  in
G.S. Grewal and Jagmittar Sain  Bhagat  have  no  application  to  the  fact
situation
at hand.
8.    Learned  counsel  for  the  respondent  company  on  the  other  hand,
supported the view taken by the High Court and submitted that the  place  of
residence within the jurisdiction of the Tribunal under  Section  166(2)  of
the Act could not mean the place of business.  He sought to distinguish  the
view taken by this Court in Mantoo Sarkar (supra).
9.    The question  for  consideration  thus  is  whether  the  Tribunal  at
Kolkata had the jurisdiction to decide the claim application  under  Section
166 of the Act when the accident took  place  outside  Kolkata  jurisdiction
and  the  claimant  also  resided  outside  Kolkata  jurisdiction,  but  the
respondent being a juristic person carried on business at Kolkata.   Further
question is whether in absence of failure of justice, the High  Court  could
set aside the award of the Tribunal on the ground  of  lack  of  territorial
jurisdiction.
10.   In our view, the matter is fully covered by decisions  of  this  Court
in Mantoo Sarkar (supra).  It will be  worthwhile  to  quote  the  statutory
provision of Section 166(2) of the Act :

“166. Application for compensation.—    *    *     *

(2) Every application under sub-section (1) shall be made, at the option  of
the claimant, either to the Claims Tribunal  having  jurisdiction  over  the
area in which the accident occurred, or to the Claims  Tribunal  within  the
local limits of whose  jurisdiction  the  claimant  resides  or  carries  on
business or within the local limits  of  whose  jurisdiction  the  defendant
resides, and shall be in such form and contain such particulars  as  may  be
prescribed:

Provided that where no claim for compensation under Section 140 is  made  in
such application, the application shall  contain  a  separate  statement  to
that effect immediately before the signature of the applicant.”

11.   In Mantoo Sarkar (supra),  the  insurance  company  had  a  branch  at
Nainital.   Accident  took  place  outside  the  jurisdiction  of   Nainital
Tribunal. The claimant remained in the hospital at Bareilly  and  thereafter
shifted to Pilibhit where he was living for a long time.   However,  at  the
time of filing of the claim  petition  he  was  working  as  a  labourer  in
Nainital District.  The High Court took the view that Nainital Tribunal  had
no jurisdiction and reversed the view taken by the Tribunal  to  the  effect
that since the  office  of  the  insurance  company  was  at  Nainital,  the
Tribunal had the jurisdiction.  This Court reversed the  view  of  the  High
Court.  It was held that the jurisdiction of the  Tribunal  was  wider  than
the civil court.  The Tribunal could follow the provisions of Code of  Civil
Procedure (CPC).   Having regard to Section 21 CPC,  objection  of  lack  of
territorial  jurisdiction  could  not  be  entertained  in  absence  of  any
prejudice.  Distinction was required to  be  drawn  between  a  jurisdiction
with regard to subject matter on the one hand and that  of  territorial  and
pecuniary jurisdiction on the other.  A  judgment  may  be  nullity  in  the
former category, but not in the later.   Reference was also made to  earlier
decision of  this  Court  in  Kiran  Singh  vs.  Chaman  Paswan[4]   to  the
following effect :
“With reference to objections relating to territorial jurisdiction,  Section
21 of the Civil Procedure Code enacts that no  objection  to  the  place  of
suing should be allowed by an appellate or revisional  court,  unless  there
was a consequent failure of justice. It is the same principle that has  been
adopted in  Section  11  of  the  Suits  Valuation  Act  with  reference  to
pecuniary jurisdiction. The policy underlying Sections 21  and  99  CPC  and
Section 11 of the Suits Valuation Act is the same, namely, that when a  case
had been tried by a court on the merits and  judgment  rendered,  it  should
not be liable to be reversed purely on  technical  grounds,  unless  it  had
resulted in failure of justice, and the policy of the legislature  has  been
to treat objections  to  jurisdiction  both  territorial  and  pecuniary  as
technical and not open to consideration by an appellate court, unless  there
has been a prejudice on  the  merits.  The  contention  of  the  appellants,
therefore, that the decree and judgment  of  the  District  Court,  Monghyr,
should be treated as a nullity cannot be sustained under Section 11  of  the
Suits Valuation Act.’ ”

12.   We are thus of the view that in the face of judgment of this Court  in
Mantoo Sarkar (supra),  the High Court was not justified  in  setting  aside
the award of the Tribunal in absence of  any  failure  of  justice  even  if
there was merit in the plea of lack of territorial jurisdiction.   Moreover,
the fact remained that the insurance company which was the  main  contesting
respondent had its business at Kolkata.
13.   Reliance placed  on  decisions  of  this  Court  in  G.S.  Grewal  and
Jagmittar Sain Bhagat is misplaced.  In G.S. Grewal, the subject  matter  of
dispute was not  covered  by  the  definition  of  “service  matters”  under
Section 3(o) of the Armed Forces Tribunal Act, 2007 and on that  ground,  it
was held that the Armed Forces Tribunal had no jurisdiction in  the  matter.
Thus, it was a case of  inherent  lack  of  jurisdiction  over  the  subject
matter.  Similarly  in  Jagmittar  Sain  Bhagat,  the  claimant  before  the
Consumer Protection Forum was  found  not  be  a  “consumer”  under  Section
2(1)(d) of the Consumer Protection Act, 1986 and on that  ground  the  order
of the consumer forum was held to be without jurisdiction.  The  said  cases
did not deal with the issue of territorial jurisdiction.
 14.  The provision in question,  in  the  present  case,  is  a  benevolent
provision for the victims of accidents of negligent driving.  The  provision
for territorial jurisdiction has  to  be  interpreted  consistent  with  the
object of  facilitating  remedies  for  the  victims  of  accidents.   Hyper
technical approach in such matters can hardly be appreciated.  There  is  no
bar to a claim petition being filed at a place where the insurance  company,
which is the main contesting parties in such cases, has  its  business.   In
such cases, there is no prejudice to any party.   There  is  no  failure  of
justice.  Moreover, in view of categorical decision of this Court in  Mantoo
Sarkar (supra), contrary view taken by the High Court cannot  be  sustained.
 The High Court failed to notice the provision of Section 21 CPC.
15.   Accordingly, we allow this appeal, set aside the impugned judgment  of
the High Court and restore the award of the Tribunal.


                                                    …………..……..…………………………….J.
                                                                  [ ANIL R.
                                   DAVE ]



                                                    …………..….………………………………..J.
         [ ADARSH KUMAR GOEL ]
NEW DELHI
JANUARY 5, 2016

-----------------------
[1]    (2014) 7 SCC 303
[2]    (2013) 10 SCC 136
[3]    (2009) 2 SCC 244
[4]    AIR 1954 SC 340