NO LIMITATION FOR REMOVING ENCROACHMENT INTO PUBLIC/PRIVATE ROAD. NO REPRESENTATIVE SUIT IS REQUIRED TO REMOVE.

                                        1
                                                          REPORTABLE


                       IN THE SUPREME COURT OF INDIA

                        CIVIL APPELLATE JURISDICTION

                      CIVIL APPEAL NO. 1042     OF 2011

                 [Arising out of SLP (C) No. 35813 of 2009]



HARI RAM                                      ....Appellant


Versus



JYOTI

PRASAD       &

ANR.

       ...




Respondents

                             JUDGMENT



Dr. MUKUNDAKAM SHARMA, J.

1.     Leave granted.

2.     By this judgment and order, we propose to dispose of the

aforesaid appeal which is filed by the appellant herein after

being aggrieved by the judgment and order passed by the High Court
                                 2
in RSA No. 2698 of 2008 affirming the judgment and decree passed

by   the    trial    Court   in   Civil   Suit      No.   160   of   2003    which   was

affirmed by the First Appellate Court in Civil Appeal No. 92 of

2007.      These    facts,   therefore,      make   it    crystal    clear    that   the

present appeal is directed against the concurrent findings of fact

of the High Court, the first Appellate Court i.e. the judgment of

the Additional District Judge and the trial court which was the

Court of Civil Judge (Junior Division).



3.    In

order       to




appreciate the contentions raised before us by the learned counsel

appearing for the appellant, it would be necessary to set out

certain basic facts leading to filing of the present appeal.



4.    The suit was filed by the respondent herein contending inter

alia that all the six persons including respondent No. 1 have

their      common    interest     in   the    disputed      street    alongwith      co-

inhabitants of the same area.             It was stated that the residential
                               3
houses of the respondents are falling in the site plan which

indicates that there is a common street for ingress and egress of

the general public.        It was alleged in the plaint that earlier Bal

Kishan Dass who was examined as PW-4 was the original owner of the

entire area out of which he curved out a colony selling plots in

favour of various parties.         It was also stated in the plaint that

at that time itself a 10 feet wide public street was left on the

ground as detailed in the site plan for the common use of all the

plot

holders

of     the

colony,

but

further




allegation   was    that    the   appellant/defendant   from    the   time    of

possession of his plot had evil eye on the aforesaid disputed

street and the defendant No. 1 and he namely defendant No. 2

encroached upon substantial part of the same making the street

narrowed   down    causing   inconvenience   to   the   users   of    the   said

street. Incidentally the suit was filed invoking Order I Rule 8 of

Code of Civil Procedure [called in short `C.P.C.'].
                                           4
5.    In   the   plaint      it   was   further   stated     that    earlier    the

respondent No. 1 as complainant filed a complaint under Section

133   of   the   Code   of   Criminal    Procedure,   1973    (for    short    "the

Cr.P.C.") which was decided in favour of the plaintiff/respondent

No. 1 and the said judgment was passed by the SDM.



6.    When the matter was challenged before the Punjab and Haryana

High Court, the High Court held that the matter which is agitated

relates

to

disputed

facts   and

therefore

requires

evidence

and     that

the

dispute

between the parties could only be effectively decided if a civil

suit is filed.          As the High Court had held that the dispute

between the parties would be decided by filing a civil suit,

consequently the aforesaid plaint was filed in the Court of Civil

Judge (Junior Division) which was registered as Civil Suit No. 160

of 2003.
                                  5
7.   Defendant Nos. 1 and the present appellant as defendant No. 2

filed a combined written statement raising objections regarding

the maintainability of the suit and also with regard to the merit

of the contentions raised in the plaint.            On the basis of the

pleadings of the parties, four issues were framed by the trial

court to the following effect:

      1. Whether the defendants have made illegal / unauthorized
      construction over the public street by way of illegal
      encroachment as shown in red colour in the attached site




      plan shown by letters ABCD situated at village Matlauda,
      Distt. Panipat ? OPP.

      2.In case issue No. 1 is decided in favour of plaintiff,
      then whether plaintiff is also entitled to injunction, as
      prayed for? OPP.

      3.Whether suit filed by the plaintiff is not maintainable
      in the present form? OPD.

      4.Relief.



8.   To   substantiate   his   case,   the   plaintiff/respondent   No.   1
                                        6
examined    8   witnesses   and   produced     some   documents   whereas     the

present appellant as defendant No. 2 examined himself as DW-1 as a

sole witness. After recording the evidence adduced by the parties

the learned Civil Judge (Junior Division) heard the parties and

thereafter by a judgment and decree dated 6.12.2007 decreed the

suit and a permanent injunction was issued directing the removal

of unauthorized construction from the ground as shown in the site

plan.     Since, the defendant No. 1 had already removed his portion

of

illegal




construction, the present appellant was given one month's time to

remove all such constructions failing which respondent No. 1 was

given their legal right to get the said construction removed on

his   own   expenses   which   was   allowed    to    be   recovered   from   the

defendants.       The defendants were further restrained from raising

any further construction in future on the aforesaid 10 feet Rasta

as detailed in PW - 7A.
                                   7
9.    Being aggrieved by the aforesaid judgment and order passed by

the   trial    court,   an   appeal    was     filed    before   the   Additional

District Judge, Panipat whereas the appeal was registered as Civil

Appeal No. 92 of 2007.             The aforesaid appeal was heard by the

Additional District Judge who by his judgment and decree dated

25.7.2008      dismissed     the     appeal     filed     by     the   appellant.

Thereafter, the appellant filed a second appeal before the Punjab

and Haryana High Court which was registered as RSA No. 2698 of

2008.



10.   By   a

judgment

and

decree

dated




31.7.2009, the aforesaid appeal was also dismissed by the High

Court holding that there is no specific question of law involved

in the aforesaid appeal.



11.   Being still aggrieved, the present appeal was filed by the

appellant      herein   in   which    notice    was    issued    and   on   service

thereof, we heard the learned counsel appearing for the parties.
                                   8
12.    Mr. Anoop G. Choudhary, learned Senior Counsel appearing for

the appellant very forcefully argued that none of the judgments

and    decrees   passed     by   the   courts   below   is    justified.       He

submitted      that   the   suit   itself   was   barred     by   limitation   but

despite the said fact and despite the fact that a specific stand

was taken in the written statement contending that the suit is

barred by limitation, no such issue was framed by the trial Court

and no decision was rendered by the trial court as also by the

appellate

Court     on

the     said

issue   and

that     the

High

Court   was

not

justified

in

dismissing the plea raised by the appellant on the ground that the

cause of action is a continuing cause of action and, therefore, it

cannot be said that the suit is barred by limitation.                 His second

contention was that there could and should have been no finding

regarding the encroachment made by the appellant in absence of

production of any official document to indicate that there was in

fact a public street used by the residents of the area.                        He
                                9
submitted that no evidence has been led to prove and establish

that it was a public street on which encroachment was made by the

appellant. His last submission was that the suit was said to be in

representative capacity as shown in the plaint but the formalities

for instituting a case i.e. representative suit was not followed

and therefore the suit should have been dismissed at the very

threshold itself.



13.   The

aforesaid




submissions   of    the    learned   senior      counsel    appearing   for    the

appellant were refuted by the learned counsel appearing for the

respondents who placed before us the findings recorded by the

three courts below and relying on the same, it was submitted that

the present appeal has no merit at all.



14.   In the light of the aforesaid submissions of the counsel

appearing   for    the    parties,   we   also    perused    the   records    very
                                  10
carefully.     We would first deal with the plea of limitation as

raised before us by the appellant.



15.    The records placed before us do disclose that the appellant

in his written statement took up a plea that the suit is barred by

limitation. However, despite the said fact no issue was framed nor

any grievance was made by the appellant for non-framing of an

issue of limitation.



16.    On

going

through

the

records,

we do not

find    that

the

appellant

has made any submission before the trial court as also before the

first appellate court regarding the plea of limitation.     Such a

plea is seen to have been made before the High Court.     The said

plea which was made before the High Court was considered at length

by the High Court and the High Court held that although such a

plea was not raised either before the trial court or before the

appellate court, the same could be raised before the High Court in
                                11
view of the provisions of Section 3 of the Limitation Act which

places an obligation upon the Court to discuss and consider such a

plea despite the fact that no such plea was raised and argued

before the Trial Court as also before the First Appellate Court.



17.   The High Court after considering the aforesaid plea held that

the   suit     cannot    be    said    to   be    barred       by    limitation       as    an

encroachment      on    a     public   street     is     a     continuing         wrong    and




therefore,     there     exists    a   continuing        cause      of    action.          The

records disclose that initially a complaint under Section 133 of

Cr.PC was filed which was pursued with all sincerity upto the High

Court.   But    the     High   Court   held      that    the     dispute      between      the

parties could be better resolved if a proper civil suit is filed

and when evidence is led with regard to the disputed questions of

fact.    We find from the records that immediately thereafter the

aforesaid      suit     was    filed    seeking         issuance         of   a    mandatory
                                 12
injunction. In view of the aforesaid facts and also in view of the

fact that encroachment on a public street by any person is a

continuing     cause    of    action,     we    find       no   merit       in   the   said

contention.



18.    Any act of encroachment is a wrong committed by the doer.

Such     an   encroachment     when     made    to     a    public         property    like

encroachment to public road would be a graver wrong, as such wrong




prejudicially affects a number of people and therefore is a public

wrong.    So long any obstruction or obstacle is created to free and

unhindered     access   and    movement    in    the       road,     the    wrongful    act

continues thereby preventing the persons to use the public road

freely and unhindered. Therefore, that being a continuing source

of wrong and injury, cause of action is created as long as such

injury    continues     and   as   long   as    the    doer     is    responsible       for

causing such injury.
                                          13


19.    At this stage it would be apposite to refer to and rely upon

Section 22 of the Limitation Act, 1963, which reads as follows:

        "In case of a continuing breach of contract or in
        case of a continuing tort, a fresh period of
        limitation begins to run at every moment of the time
        during which the breach or the tort, as the case may
        be, continues."


This   court   had   the   occasion   to   deal   with   Section   22   of   the




Limitation Act, 1963, in the case of Sankar Dastidar v. Shrimati

Banjula Dastidar and Anr reported in AIR 2007 SC 514, in which the

Supreme Court held that when a right of way is claimed whether

public or private over a certain land over which the tort-feaser

has no right of possession, the breaches would be continuing, to

which the provisions of Section 22 of the Limitation Act, 1963,

would apply. Therefore, in our considered opinion the plea that

the suit is barred by limitation has no merit at all.
                                            14


20.    The next plea which was raised and argued vehemently by the

learned senior counsel appearing for the appellant was that the

suit was bad for non-compliance of the provisions of Order I Rule

8 of the CPC. The said submission is also found to be without any

merit as apart from being a representative suit, the suit was

filed by an aggrieved person whose right to use public street of

10 feet width was prejudicially affected.              Since affected person

himself

has    filed

a      suit,




therefore, the suit cannot be dismissed on the ground of alleged

non-compliance of the provisions of Order I Rule 8 of the CPC.



21.    In this connection, we may appropriately refer to a judgment

of    the   Supreme   in   Kalyan   Singh,    London   Trained   Cutter,   Johri

Bazar, Jaipur Vs. Smt. Chhoti and Ors. reported in AIR 1990 SC

396.    In paragraph 13 of the said judgment, this Court has held

that suit could be instituted by representative of a particular
                                 15
community but that by itself was not sufficient to constitute the

suit as representative suit inasmuch as for a representative suit,

the   permission   of    Court   under   Order   I    Rule      8   of   the   CPC   is

mandatory.



22.   In paragraph 14 of the said judgment, it was also held that

any member of a community may successfully bring a suit to assert

his   right   in   the   community   property        or   for       protecting   such

property

by

seeking

removal

of




encroachment therefrom and that in such a suit he need not comply

with the requirements of Order I Rule 8 CPC.                 It was further held

in the said case that the suit against alleged trespass even if it

was not a representative suit on behalf of the community could be

a suit of this category.
                                   16
23.    In that view of the matter and in the light of the aforesaid

legal position laid down by this Court, we hold that the suit

filed by the plaintiff/respondent No. 1 was maintainable.



24.    According to the appellant no official document was placed

and no official witness was examined to prove and establish that

the suit land was a public street in which encroachment is made by

the appellant.      At this stage it would be appropriate to mention

that    the

suit    was

initially




instituted    against    two    defendants   namely   defendant    No.    1   and

defendant No. 2.        The appellant herein was defendant No. 2 in the

said suit.     So far as defendant No. 1 is concerned, the records

disclose that the Panchayat of the area took a decision that both

of them have encroached upon a public property and the street and

therefore they should remove the encroachment.               It is disclosed

from the records that pursuant to the aforesaid decision of the

Panchayat,    the   defendant    No.   1   removed   his   encroachment   after
                                17
admitting that he had also encroached upon some area of the 10

feet wide street which fact he admitted before the panchayat and

later on he removed the said encroachment. The aforesaid fact is

established from the statements of PW-1. Jyoti Parshad, PW-5 -

Sadhu Ram and PW-6 - Ram Pal who were present and participated in

the said Panchayat also corroborated the said admission before the

Panchayat.




25.

Besides,

in    all   8

witnesses

were

examined

by      the

plaintiff


respondent No. 1.            PW-3, Dharam Singh Patwari who was examined in

the suit proved the report of the BDO who had visited the disputed

property    on       18.1.1995    after   which   he    also   submitted   a   report

certifying that an encroachment has been made by the appellant

over the disputed street.             Bal Kishan Dass who was also examined

as PW-4 had specifically stated in his evidence that he had carved

out a colony in the year 1981-82 and he had sold the plots to the

plaintiff       as    well   as   defendants   and     other   inhabitants     of   the
                                               18
village       and      towards      eastern     side   of     the    plot    of      the

defendant/appellant he had left a street of 10 feet width.



26.    As against the aforesaid evidence adduced on behalf of the

plaintiff/respondent No. 1, the appellant examined himself as DW-1

wherein he only took a stand that disputed property is not a part

of     the    street     and     that   after    purchasing    the    plot    he     had

constructed the house and despite the said fact no objection was

taken    and

therefore

it    cannot

be      said

that         he

had




constructed a house also on a part of the said disputed suit

property.



27.    On    appreciation      of   the   aforesaid    evidence,     all    the    three

courts namely the High Court, the First Appellate Court as also

the trial court held that the aforesaid disputed suit land is a

part of the public street where the appellant has encroached upon

by constructing a part of the house. The aforesaid findings are
                                       19
therefore findings of fact.          Public Officer namely Patwari was

examined who had proved the report submitted by the BDO stating

that part of the suit property is a public street.



28.    Ext. PW-7A filed by the plaintiff/respondent is a site plan

which proves and establishes that there is a public street of 10

feet width.    In all the sale deeds of the area as disclosed from

the statement of PW-4 Bal Kishan Dass, the aforesaid street of 10

feet

width    is

shown   and

the

aforesaid

evidence

go




unrebutted. Thus there exists a street of 10 feet width.                It is

also proved from the evidence on record that the appellant has

encroached    upon   the   suit   property   consisting   of   the   aforesaid

street of 10 feet width.           That being the position, we find no

infirmity in the judgment and decree passed by the Trial Court and

affirmed by the First Appellate Court and by the High Court in the

Second Appeal.
                                            20
29.   We,    therefore,    find      no    merit     in   this      appeal   which   is

dismissed with costs, which is assessed by us at Rs. 10,000/-.

The   decree   passed     by   the    trial     court       is    confirmed.   If    the

appellant fails to vacate and remove the unauthorized encroachment

within a period of 60 days from today, it will be open for the

plaintiff/respondent       No.    1       to   get    the        decree   executed    in

accordance with law.




30.     In

terms   of

the

aforesaid




observations and directions, the appeal is dismissed.



                                      ........................J
                                      [Dr. Mukundakam Sharma]



                                      ........................J
                                      [Anil R. Dave]
New Delhi
January 27, 2011

BENAMI TRANSACTION ACT IS NOT RETROSPECTIVE. UNLESS CHALLANGED, CERTIFICATE OF POSTING WAS DEEMED TO BE SERVED

REPORTABLE
 IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.   846    OF 2011
ARISING OUT OF SPECIAL LEAVE PETITION (C) NO. 1305 OF 2010
Samittri Devi and another.                …Appellants
             Versus
Sampuran Singh and another                                      …Respondents
J U D G M E N T
Gokhale J.
Leave Granted.
2. This Appeal by Special Leave raises the question as to whether the
suit of the first appellant for the recovery of her house property filed prior to the
Benami Transactions (Prohibition) Act, 1988 coming into force could be
considered to be prohibited by Section 4 of that Act.
3. This appeal seeks to challenge the judgment and order passed by a
Learned Judge of the Punjab and Haryana High Court dated 10.9.2009 in Regular
Second Appeal (R.S.A) No. 1367 of 1996 (O & M), whereby the Judge hasallowed the Second Appeal filed by Respondent No. 1 herein, and set aside the
judgment and order dated 22.2.1996 passed by the Additional District Judge,
Gurdaspur in Civil Appeal No. 203 of 1991 filed by appellant No.1 herein. The
Learned Additional District Judge had allowed the Civil Appeal filed by appellant
No. 1 herein whereby he decreed Civil Suit No. 138 of 1987 filed by appellant
No.1, which suit had been dismissed by the Sub-Judge at Pathankot by his
judgment and order dated 3.10.1991.
4.  Short facts leading to this appeal are as follows:-
The appellant No.1 herein purchased a house property situated at
Pathankot from Sarvashri Romesh Chand and Chatar Chand sons of Shri Kartar
Singh, vide registered sale deed dated 26.2.1985 for a consideration of
Rs. 40,000/-. This sale deed was, however, executed in the name of her son
namely Shri Kamal Chand (the appellant No.2 herein) and his brother-in-law
Shri Jiwan Kumar (respondent No.2 herein). The appellant no.1 paid the money
by two bank drafts for purchasing the house property which was actually in the
possession of a tenant of the previous owner i.e. Home Guard Department and it
continues to be in their possession.
5. It is the case of the appellant No.1 that taking advantage of her old
age (presently 93 years), the above referred Kamal Chand and Jiwan Kumar
stealthily removed the sale deed from her possession, and this Jiwan Kumar sold
half share of the suit house to one Sampuran Singh (Respondent No. 1 herein)
2and that too without her knowledge and consent. The sale was executed by a
registered sale deed dated 13.4.1987 despite the fact that appellant No.1 had
sent, in the meanwhile, a letter dated 8.4.1987 to Respondent No. 1 herein
informing him that she was the real owner of the Suit House.
6. The appellant No. 1 therefore, filed Suit No. 138 of 1987 on
30.9.1987 for a declaration that she was the real owner in possession of the Suit
House shown in red in the site plan attached by letters A B C D part of No.
Khasra 574/1, No. Khawat 262, No. Khatauni 401, as entered in the Jamabandi
for the year 1976-77 situated in village Daulatpur HB No. 331, Pathankot. She
prayed for a permanent injunction also restraining the defendants from
alienating any part of the suit house and forcibly interfering with the possession
of the plaintiff of the suit house. By moving an amendment, she claimed an
alternative relief for a decree of Rs. 40,000/- with interest. Her son Kamal
Chand was joined as defendant No. 1, his brother-in-law the above referred
Jiwan Kumar as defendant No. 2, and the purchaser Sampuran Singh as
defendant No. 3. They are appellant No.2, respondent No.2 and respondent No.
1 respectively to this appeal.
7. Defendant No. 1 admitted the entire claim of the appellant, but the
defendant No. 2 disputed it, and contended that half of the consideration of Rs.
40,000/- had been paid by him. He denied that it was a Benami Transaction.
Defendant No. 3 filed his written statement and contended in para 5 thereof that
even if it is proved to be a Benami Transaction, due to the recent legislation of
3Benami Transactions (Prohibition) Act 1988, the defendants Nos. 1 & 2 were the
owners of the Suit property, and that the alienation of his share in the property
by defendant No. 2 in his favour had been effected legally. He contended that
he had purchased the share of the defendant No. 2 by sale deed dated
13.4.1987 for a consideration of Rs. 30,000/-, and that he was a bonafide
purchaser for value, and that the Suit should be dismissed.
8. The trial court framed the necessary issues including whether the
sale deed dated 26.2.1985 was Benami, and whether the sale deed dated
13.4.1987 was illegal, and also whether defendant No. 3 was a bonafide
purchaser without notice.
9. The appellant No. 1 laid the evidence amongst others of a clerk
from a branch of State Bank of Patiala at Chaki, Pathankot, who deposed to the
fact that the appellant had made the payment for the sale consideration from her
account. Defendant No. 2 had contended that he had arranged Rs. 20,000/-
from friendly loans to purchase half the share of the Suit House, but he did not
lead any evidence for proving the availability of such funds with him. The Trial
Court therefore, held that it was obvious that the payment was not made by
defendant nos. 1 & 2, but by the plaintiff i.e. the appellant No.1 herein.
10. The appellant No.1 had produced before the trial court a copy of
the notice dated 8.4.1987 which she had sent to defendant no. 3, to point out to
him that she was the real owner of the suit house. She produced the same
4alongwith the certificate of posting. The sale deed between defendant Nos. 2 &
3 was executed on 13.4.1987. The trial court held that the delivery of the notice
was not proved, and therefore, defendant No. 3 was a bonafide purchaser for
valuable consideration without notice. That apart, at the time when the Suit was
decided on 3.10.1991, the law laid down by this Court in Mithilesh Kumari and
Anr. Vs. Prem Behari Khare [AIR 1987 SC 1247] : [1989 (2) SCC 95]
was governing the field viz. that the provisions of Benami Transactions
(Prohibition) Act 1988 were retroactive. It had been held that the prohibition
under Section 4 of the Act to recover the Benami property was applicable to
suits, claims or action pending on the date of commencement of the Act. The
appellant No.1 had filed her suit on 30.9.1987. The Benami Transactions
(Prohibition) Act 1988 came into force on 5.9.1988. Thus, this Suit was pending
on the date on which the Act came into force. The Trial Court, therefore,
followed the judgment in Mithilesh Kumari (supra), and held that the appellant
no longer retained the right to recover the property from the Benami holder.
The suit was, therefore, dismissed for being barred by virtue of the provisions of
the said Act, though without any order as to costs.
11. The appellant No.1 carried the matter in first appeal to the
Additional District Judge, Gurdaspur. As we have noted, the trial court had
already held that appellant No. 1 had purchased the suit house by making the
payment from her account. It had, however, declined to decree her suit on two
grounds, firstly due to the prohibition under Section 4 of the Benami
5Transactions (Prohibition) Act 1988 as interpreted in Mithilesh Kumari judgment
(supra), and secondly on the ground that the appellant did not prove the service
of her notice dated 8.4.1987 on respondent No. 1 herein. By the time the first
appeal was being heard, the judgment of the two Judges bench in Mithilesh
Kumari (supra) had been over-ruled by a bench of three Judges of this Court in
R.Rajagopal Reddy Vs. Padmini Chandrasekharan decided on 31.1.1995
and reported in [AIR 1996 SC 238] : [1995 (2) SCC 630]. This Court had
held that Section 4 or for that matter the Act as a whole was not a piece of
declaratory or curative legislation. It creates substantive rights in favour of
benamidars and destroys substantive rights in favour of the real owners. It
creates a new offence of entering into such benami transactions. It had
therefore, been held that when a statutory provision creates a new liability and a
new offence, it would naturally have a prospective operation, and Section 4 will
not apply to pending suits which were already filed and entertained prior to the
Act coming into force. The first appellate Court therefore, held that the suit filed
by appellant No.1 was not prohibited by the said Act. As far as the notice dated
8.4.1987 is concerned, the Court held that there was a presumption under the
law that the letter which was proved to have been posted well in advance must
have reached the addressee. The first appellate court therefore, held that the
notice will have to be presumed to have been served, and yet respondent No. 1
herein got the sale deed executed on 13.4.1987. It was therefore, held that
respondent No. 1 could not be held to be a bonafide purchaser without any
notice of the rights of appellant No.1 in the suit property. The first appellate
6court therefore, decreed the suit filed by appellant No.1 to the effect that she
was the real owner in possession of the house and the sale deed dated
13.4.1987 was null and void. It also granted an injunction against the
defendants that they shall not alienate any part of the suit house and will not
interfere in her possession of the suit house. The Court awarded cost of
Rupees 1,000/-.
12. Feeling aggrieved by this decision, the first respondent herein filed
a Regular Second Appeal bearing RSA No. 1367 of 1996. The Learned single
Judge of the High Court, who heard the matter, framed the following substantial
question of law - “Whether the Learned Additional District Judge has misread the
evidence on record while coming to the conclusion that the suit property was
benami property of the plaintiff.” The Learned Judge did not dispute the fact
that appellant No. 1 had purchased the suit house out of her money, but he
noted that the office of the Home Guard continued in that property. The
Learned Judge did not give any importance to the notice dated 8.4.1987 being
sent under postal certificate, but held that there was nothing on record to prove
that defendant No.3 had been served with that notice. The Learned Single
Judge therefore, found fault with the finding of the Additional District Judge to
the effect that defendant No. 3 (Respondent No. 1 herein) was not a bonafide
purchaser, and further held that, it amounted to misreading of evidence. The
Regular Second Appeal was therefore, allowed and the judgment and decree of
the Addl. District Judge was set aside.
713. Being aggrieved by the judgment and order passed by the High
Court this Appeal has been filed by the appellant.  This time, the son of appellant
No.1, the original defendant No.1 has joined her as appellant No. 2.
Mr. Saikrishna Rajagopal, learned counsel appearing for the appellants pointed
out that the order passed by the High Court does not deal with the law laid down
in the judgment of this Court in R. Rajagopal Reddy case (Supra). The
Judgment was binding on the Learned Judge, and in view thereof the suit filed
by the appellant No.1 was not hit by the prohibition under Section 4 of the Act.
He also pointed out that the appellants as well as the respondent No. 1 were
staying in the same area i.e. College Road, Pathankot, and therefore, the
Learned Additional District Judge was right in his inference that the notice dated
8.4.1987 must be presumed to have been duly served on respondent No. 1 prior
to 13.4.1987 when respondent No. 3 purchased half share of the suit house. He
submitted that the appellants were ready to return the amount of Rs.30,000/-
with interest to respondent No. 1 which amount he claims to have paid to
respondent No. 2 to purchase his half share in the property.
14. As against this submission of the appellant, Mr. V.K. Monga,
learned counsel appearing for respondent No. 1 repeated the same submissions
made in the courts below, namely, that he was a bonafide purchaser without
notice, and that the original defendant No. 2 had purchased half the share of the
suit house from his money, and from him the respondent No.1 had purchased
that share, and therefore, the present appeal should be dismissed.
815. We have noted the submission of the rival parties. As far as the
purchase of the suit house by the appellant No. 1 from her own money is
concerned that finding of the trial court has remained undisturbed all throughout
and cannot be re-opened in this appeal. The appellant No.1 led cogent evidence
before the trial court, and it had been held in her favour that it is out of her
funds that she had purchased the suit house. The submission of the original
defendant no. 2 that he had arranged the amount of Rs. 20,000/- through
friendly loans was negated by the trial court since there was no supporting
evidence at all. There is no reason for us to disturb that finding. Once the High
Court held that the appellant had purchased the suit house out of her funds, it
ought to have held that it follows that the defendant No. 2 had no right to deal
with it or to sell his half share merely because his name was shown as a
purchaser alongwith the appellant No. 2. Consequently the purchase of the
share of the defendant No. 2 by the respondent No. 1 herein without the consent
of the appellant No. 1 gave him no rights whatsoever. Therefore, the High Court
ought to have held that the suit of appellant No. 1 for declaration of her
ownership to be valid and maintainable.
16. The High Court has clearly erred in ignoring the binding judgment of a
Bench of three Judges of this Court in R. Rajagopal Reddy (supra). By this
decision, this Court had reversed its earlier judgment in Mithilesh Kumari (supra)
and had held in terms that suits filed prior to the application of the act would not
9be hit by the prohibition under Section 4 of that act. Section 4(1) of the Benami
Transactions (Prohibition) Act 1988 reads as follows:
“Prohibition of the right to recover property held benami.-
(1) No suit, claim or action to enforce any right in respect of any
property held benami against the person in whose name the
property is held or against any other person shall lie by or on
behalf of a person claiming to be the real owner of such property.”
While reversing the earlier decision of this Court in Mithilesh Kumari
(supra), a bench of three Judges observed in para 11 of
R. Rajagopal Reddy (supra) as follows:-
“Before we deal with these six considerations which weighed
with the Division Bench for taking the view that Section 4 will apply
retrospectively in the sense that it will get telescoped into all
pending proceedings, howsoever earlier they might have been
filed, if they were pending at different stages in the hierarchy of
the proceedings even up to this Court, when Section 4 came into
operation, it would be apposite to recapitulate the salient feature of
the Act. As seen earlier, the preamble of the Act itself states that it
is an Act to prohibit benami transactions and the right to recover
property held benami, for matters connected therewith or
incidental thereto. Thus it was enacted to efface the then existing
right of the real owners of properties held by others benami. Such
an Act was not given any retrospective effect by the legislature.
Even when we come to Section 4, it is easy to visualise that subsection (1) of Section 4 states that no suit, claim or action to
enforce any right in respect of any property held benami against
the person in whose name the property is held or against any other
shall lie by or on behalf of a person claiming to be the real owner
of such property. As per Section 4(1) no such suit shall thenceforth
lie to recover the possession of the property held benami by the
defendant. Plaintiff’s right to that effect is sought to be taken away
and any suit to enforce such a right after coming into operation of
Section 4(1) that is 19-5-1988, shall not lie. The legislature in its
wisdom has nowhere provided in Section 4(1) that no such suit,
claim or action pending on the date when Section 4 came into
force shall not be proceeded with and shall stand abated. On the
contrary, clear legislative intention is seen from the words “no such
10claim, suit or action shall lie”, meaning thereby no such suit, claim
or action shall be permitted to be filed or entertained or admitted
to the portals of any court for seeking such a relief after coming
into force of Section 4(1).” (Emphasis supplied)
17. In the impugned judgment, the High Court nowhere refers to the
judgment in R. Rajagopal Reddy’s case (supra) although the same was very
much referred to and relied upon by the appellant to counter the contrary
submission of the respondent No. 1. The High Court has therefore, committed a
serious error of law in holding that the Additional District Judge has misread the
evidence on record while coming to the conclusion that the suit property was the
Benami Property of the plaintiff-appellant No.1 herein and that her suit to
enforce the right concerning the same shall not lie. In fact there was no such
misreading of evidence on the part of the first appellate court, and hence there
was no occasion for the High Court to frame such a question of law in view of
the prevailing judgment in R. Rajagopal Reddy which had been rightly followed
by the first appellate court.
18.  The High Court has held that there is nothing on record to suggest that
respondent No.1 herein had, in fact, been served with the notice dated 8.4.1987
and thereby reversed the finding rendered by the first appellate court. It is
material to note in this behalf that it was canvassed by respondent No.1 before
the first appellate court that a certificate of posting is very easy to procure and it
does not inspire confidence. The Additional District Judge observed that there
was no dispute with this proposition of law, but there was no such averment or
even allegation against appellant No.1 herein, that she had procured the
11certificate of posting nor was there any such pleading  to that effect. It is on this
background that the first appellate court has drawn the inference that the notice
must be deemed to have been served within the period of five days thereafter
i.e. before 13.4.1987, the date on which the respondent No.1 herein entered into
an agreement to purchase the suit property. It is also material to note that the
appellant’s premises are situated on College Road, Pathankot and so also the
residence of the first respondent where the notice was sent. Therefore, there
was nothing wrong in drawing the inference which was permissible under Section
114 of the Evidence Act that such notice must have been duly served in the
normal course of business before 13.4.1987.
19. We may fruitfully refer to a few judgments laying down the
propositions relating to service of notice. To begin with, we may note two
judgments in the context of the notice to quit, sent to the tenants under Section
106 of the Transfer of Property Act 1882, though both the judgments are
concerning the notices sent by registered post. Firstly, the judgment in the case
of Harihar Banerji Vs. Ramshashi Roy [AIR 1918 PC 102], wherein the
Privy Council quoted with approval the following observations in Gresham
House Estate Co. Vs. Rossa Grande Gold Mining Co. [1870 Weekly
Notes 119] to the following effect:
“……….if a letter properly directed, containing a notice to quit, is
proved to have been put into the post office, it is presumed that
the letter reached its destination at the proper time according to
the regular course of business of the post office, and was received
by the person to whom it was addressed. That presumption would
12appear to their Lordships to apply with still greater force to letters
which the sender has taken the precaution to register, and is not
rebutted but strengthened by the fact that a receipt for the letter is
produced signed on behalf of the addressee by some person other
than the addressee himself.”
20. Secondly, we may refer to the judgment of a Full Bench of the Allahabad
High Court in the case of Ganga Ram Vs. Smt. Phulwati [AIR 1970
Allahabad 446], wherein the Court observed in paragraphs 12 and 13 as
follows:
“12. When a registered article or a registered letter is handed
over to an accepting or receiving post office, it is the official duty of
the postal authorities to make delivery of it to the addressee.
Human experience shows that except in a few exceptional cases
letters or articles received by the post office are duly, regularly and
properly taken to the addressee. Consequently as a proposition it
cannot be disputed that when a letter is delivered to an accepting
or receiving post office it is reasonably expected that in the normal
course it would be delivered to the addressee. That is the official
and the normal function of the post office.
13. Help can also be taken from Section 16 of the Indian
Evidence Act which reads as follows:-
“When there is a question whether a particular act was done, the
existence of any course of business, according to which it naturally
would have been done, is a relevant fact.
Illustrations:
(a) The question is, whether a particular letter was dispatched.
The facts that it was the ordinary course of business for all letters
put in a certain place to be carried to the post, and that that
particular letter was put in that place, are relevant.
(b) The question is, whether a particular letter reached A. The
facts that it was posted in due course, and was not returned
through the Dead Letter Office, are relevant.”
1321. As far as a notice sent under postal certificate is concerned, in Mst.
L.M.S. Ummu Saleema Vs. B.B. Gujaral & Anr. [1981 (3) SCC 317], a
bench of three judges of this Court on the facts of that case, refused to accept
that the notice sent under a postal certificate by a detenue under the
Conservation of Foreign Exchange and Smuggling Activities Act, 1974, to the
Assistant Collector of Customs, retracting his original statement had been duly
served on the concerned office. This was because the respondent rebutted the
submission by producing their file to show that such a letter had not been
received in their office in the normal course of business. However, the
proposition laid down in that case is relevant for our purpose. This Court
observed in paragraph 6 of that judgment as follows:
“6. …………The certificate of posting might lead to a presumption
that a letter addressed to the Assistant Collector of Customs was
posted on August 14, 1980 and in due course reached the
addressee. But, that is only a permissible and not an inevitable
presumption. Neither Section 16 nor Section 114 of the Evidence
Act compels the court to draw a presumption. The presumption
may or may not be drawn. On the facts and circumstances of a
case, the court may refuse to draw the presumption. On the other
hand the presumption may be drawn initially but on a
consideration of the evidence the court may hold the presumption
rebutted and may arrive at the conclusion that no letter was
received by the addressee or that no letter was ever despatched as
claimed. After all, there have been cases in the past, though rare,
where postal certificates and even postal seals have been
manufactured. In the circumstances of the present case,
circumstances to which we have already referred, we are satisfied
that no such letter of retraction was posted as claimed by the
detenu.”
22. The proposition laid down in this judgment has been followed in two
subsequent cases coming before this Court in the context of Section 53(2) of the
Companies Act 1956 providing for presumption of service of notice of the board
meeting, sent by post. In M.S. Madhusoodhanan vs. Kerala Kaumudi (P)
Ltd. and others [2004 (9) SCC 204], a bench of two Judges of this Court
14referred to the proposition in Mst. L.M.S. Ummu Saleema (supra) in para 117 of
its judgment, and held in the facts of that case, that the notice by postal
certificate could not be presumed to have been effected, since the relations
between the parties were embittered, and the certificate of posting was suspect.
As against that, in a subsequent matter under the same section, in the case of
VS Krishnan Vs. Westfort Hi-Tech Hospital Ltd. [2008 (3) SCC 363],
another bench of two Judges referred to the judgment in M.S. Madhusoodhanan
(supra), and drew the presumption in the facts of that case that the notice sent
under postal certificate had been duly served for the purposes of Section 53(2)
of the Companies Act, 1956, since the postal receipt with post office seal had
been produced to prove the service. Thus, it will all depend on the facts of each
case whether the presumption of service of a notice sent under postal certificate
should be drawn. It is true that as observed by the Privy Council in its above
referred judgment, the presumption would apply with greater force to letters
which are sent by registered post, yet, when facts so justify, such a presumption
is expected to be drawn even in the case of a letter sent under postal certificate.
23.   Having seen the factual and the legal position, we may note that in the
present case it has already been established that the appellant had purchased
the property out of her own funds. Therefore, it could certainly be expected that
when she came to know about the clandestine sale of her property to
respondent No.1, she would send him a notice, which she sent on 8.4.1987. As
noted earlier, the notice is sent from one house on the College Road to another
15house on the same road in the city of Pathankot. The agreement of purchase is
signed by the defendant No.3 five days thereafter i.e. 13.4.1987. The appellant
had produced a copy of the notice along with postal certificate in evidence.
There was no allegation that the postal certificate was procured. In the
circumstances, it could certainly be presumed that the notice was duly served on
respondent No.1 before 13.4.1987. The High Court, therefore, erred in
interfering in the finding rendered by the Additional District Judge that
respondent No.1 did receive the notice and, therefore, was not a bona fide
purchaser for value without a notice.
24. The judgment of the High Court, therefore, deserves to be set
aside. The appellants through their counsel have, however, in all fairness
offered to compensate the first respondent herein by paying him the amount of
Rs. 30,000/- with appropriate interest. The first respondent did not evince any
interest in this suggestion. Yet, the end of justice will be met, if this amount of
Rs. 30,000/- is returned by the appellants to him as offered by them with simple
interest at the rate of 10%.
25. In the circumstances this appeal is allowed. The Judgment and
order dated 10.2.2009 passed by the High court in R.S.A No. 1367 of 1996 and
that of the Sub-Judge, Pathankot in Civil Suit No. 138 of 1987 dated 3.10.1991
are set aside.  The judgment and order dated 22.2.1996 passed by Addl. District.
Judge, Gurdaspur in Civil Appeal No. 203 of 1991 is confirmed. The suit filed by
the appellant No.1 bearing Civil Suit No. 138 of 1987 is decreed and it is declared
16that the appellant No. 1 is the owner of the suit house. There shall be a
permanent injunction restraining the defendants from alienating any part of the
suit house and forcibly interfering into the possession of the plaintiff of the house
in dispute. In view of the offer given by the appellants to compensate the first
respondent, the appellants shall pay him the amount of Rs. 30,000/-(Rupees
thirty thousand only), with simple interest at the rate of 10% for the period from
13.4.1987 till the decision of the first appellate court i.e. 22.2.1996, within twelve
weeks from today, though it is up to the respondent No. 1 to receive the
amount.  The interest is restricted upto 22.2.1996 for the reason that respondent
No.1 ought to have accepted the decision of the First Appellate Court,
particularly in view of the judgment of this Court in R. Rajagopal Reddy (supra),
and should not have dragged the appellants to the High Court in Second appeal.
26. The first respondent will pay a cost of Rs. 10,000/- to the 1
st
appellant
for this appeal.
…………..……………………..J.
( Dalveer Bhandari )
…………………………………..J.
( H.L. Gokhale  )
New Delhi
Dated: January 21, 2011
17

ELECTION CASE- WITHOUT PLEADINGS NO EVIDENCE CAN BE ADDUCED

                                                    REPORTABLE

             IN THE SUPREME COURT OF INDIA
              CIVIL APPELLATE JURISDICTION

            CIVIL APPEAL NO. 870 OF 2011
        (Arising out of SLP (C) NO. 16944 OF 2010)


Kalyan Singh Chouhan                                 ...Appellant

                               Versus

C.P. Joshi                                           ...Respondent




                        JUDGMENT


Dr. B. S. CHAUHAN, J.


1.    Leave granted.


2.    This appeal has been preferred against the judgment and order

dated 24.5.2010 in S.B. Election Petition No. 1 of 2009 and I.A. No.

6839 of 2010 of the High Court of Judicature for Rajasthan at

Jodhpur.     By the impugned judgment and order the High Court

rejected the application dated 11.5.2010 praying for the summoning of

certain documents on the ground that it was not permissible to

summon the said documents, i.e., those tendered votes in respect of


                                                                    1
which none of the parties had taken the pleadings nor an issue had

been framed in respect of those tendered votes and, thus, it was not

permissible to lead any evidence on the fact which is not in issue.

More so, on the ground of delay, the application had been filed after

framing of the issues.


3.    FACTS :

(A)   A Notification under Section 30 of the Representation of People

Act, 1951 (hereinafter called as the `Act 1951') dated 10.11.2008 was

issued by Election Commission for holding elections to constitute 13th

Legislative Assembly for the State of Rajasthan including the election

scheduled for Nathdwara Legislative Assembly No. 176 (hereinafter

called as `the constituency'). The appellant as well as the respondent

filed their nominations and were candidates of recognised National

Parties. The poll was held on 4.12.2008.


(B)   During the process of polling, there had been allegations/

challenges at various booths that at least 10 votes alleged to have been

cast by imposters and thus, 10 tendered votes were cast under Rule 42

of the Conduct of Election Rules, 1961 (hereinafter called as the

`Rules 1961'). The counting of votes took place on 8.12.2008 and the



                                                                     2
appellant contesting on the BJP ticket secured 62216 votes, while Shri

C.P. Joshi (INC) secured 62215 votes. At the request of the election

agent, a recounting took place under Rule 63 of the Rules 1961.

However, the result remained the same and, thus, the appellant was

declared duly elected by a margin of one vote.


(C)   The respondent filed an election petition on 15.1.2009 being

S.B. Election Petition No. 1 of 2009 before the High Court of

Rajasthan under Sections 80, 81, 100(1)(d)(iii) and Section

100(1)(d)(iv) of 1951 Act, inter-alia, alleging that:

      (i) Smt. Kalpana Kunwar and Smt. Kalpana Singh (wife
      of Petitioner) were one and the same person, but her
      name was registered at two places in the electoral rolls of
      the constituency and hence she had cast two votes in the
      election;
      (ii)   Six (6) tendered votes cast in the election must be
      counted and the six (6) votes originally polled against the
      tendered votes must be rejected.

(D)   The appellant filed the written statement contesting the said

election petition and the trial is in progress in the High Court.


      Both the parties have filed several applications before the High

Court during the trial of the election petition and the appellant has


                                                                    3
approached this Court time and again as is evident from the orders

dated 16.12.2009 passed in S.L.P(C) No. 33725 of 2009; 1.4.2010 in

S.L.P.(C) No. 8212 of 2010; and 23.4.2010 in S.L.P(C) No. 10633 of

2010. Appellant filed an application under Order VI Rule 16 read

with Section 151 of the Code of Civil Procedure 1908 (hereinafter

called as the `CPC') and Section 87 of the Act 1951 for the deletion of

paragraph Nos. 13 to 19 of the election petition. The said application

was dismissed by the High Court vide order dated 19.11.2009. The

appellant preferred S.L.P (C) No. 34688 of 2009 which was dismissed

by this Court vide order dated 16.12.2009.


(E)   The appellant preferred an application being I.A. No.6839 of

2010 dated 11.5.2010 to summon the marked copies of the electoral

rolls; register of voters in Form No.17-A; and list of tendered votes in

Form No.17-B relating to the polling station nos.68, 124 and 192 of

the constituency.   However, the said application has been dismissed

by the High Court vide impugned judgment and order dated

24.5.2010. Hence, this appeal.


4.    Shri Ram Jethmalani, learned senior advocate appearing for the

appellant, has submitted that in order to do complete justice, all 10



                                                                     4
tendered votes have to be recounted. In view of the fact that there was

margin of only one vote, the law requires that all the tendered votes

be counted. In order to fortify his submission, Shri Jethmalani placed

reliance on the judgment of this Court in Dr. Wilfred D'Souza v.

Francis Menino Jesus Ferrao, AIR 1977 SC 286, wherein it had

been directed that all the tendered votes would be summoned and

taken into consideration, i.e., that all the tendered votes have to be

counted. The material issue in all the cases falling under Clause (d) of

Section 100 of the Act 1951 remains whether the result of the election

has been materially affected and, therefore, once the appellant raised

his statutory right to lead evidence, in order to prevent the miscarriage

of justice, it is necessary that all the tendered votes be counted. Thus,

the impugned order is liable to be set aside.


5.    On the other hand, Shri M.R. Calla, learned senior advocate

appearing for the respondent, has vehemently opposed the appeal

contending that the principles of equity and concept of substantial

justice cannot be pressed into service in the present case. The election

petition is to be adjudicated giving strict adherence to the statutory

provisions without being influenced by any other concepts. The Court

cannot permit a party to lead evidence unless an issue has been framed


                                                                      5
on the controversy and an issue cannot be framed unless there are

actual pleadings in respect thereof. The pleadings in the instant case

related only to the 6 tendered votes and an issue has been framed only

to that extent.     Therefore, it is not permissible to take into

consideration all 10 tendered votes. The judgment so heavily relied

upon by Shri Ram Jethmalani, learned senior counsel, in Wilfred

D'Souza's case (Supra) is quite distinguishable as Recrimination

Petition under Section 97 of Act 1951 had been filed in that case.

Thus, the ratio of the said judgment has no bearing in the case at hand.

The appeal lacks merit and is liable to be dismissed.


6.    We have considered the rival submissions made by learned

counsel for the parties and perused the record.

      The relevant pleadings, taken in the election petition, in this

regard, are in paragraph Nos. 13 to 19 of the election petition which

cumulatively specifically provide:

      The names of Smt. Kamla W/o Shri Champa Lal R/o Near

Charbhuja Temple, Village Gudla, Tehsil Nathdwara, District

Rajasmand appeared at serial number 311 in Part 27; Shri Mana S/o

Shri Roda R/o Guda, Village Sema, Tehsil Nathdwara, District

Rajsamand, appeared at serial number 1122 in Part 61; Ms. Bargat


                                                                     6
Banu D/o Shri Gani R/o Talesara Bhawan, Ward No. 19, Nathdwara,

District Rajsamand appeared at serial number 146 in Part 73; Shri

Dalu S/o Shri Navla R/o Village Soi Ki Bhagai, Post Khamnor, Tehsil

Nathdwara, District Rajsamand appeared at serial no. 714 in Part 117;

Smt. Nanu W/o Shri Peer Mohammed R/o Neelgar Basti, Village

Railmagra, Tehsil Railmagra, District Rajsamand appeared at serial

number 866 in Part No. 180; and Shri Shamboo Lal S/o Shri Tulsi

Ram R/o Kalbelia Basti, Village Banerdia, Tehsil Railmagra, District

Rajsamand appeared at serial number 502 in Part 199 of the electoral

roll of the constituency. When the aforesaid six voters reached the

concerned polling station to cast their respective votes, they found that

some imposters had already cast their votes by electronic voting

machine. They completed the legal formalities by filling up Form 17-

B and were allowed to have tendered ballot papers and, thereafter,

they cast their votes.


7.    It was further pleaded in paragraph 19 of the election petition

that the aforesaid 6 tendered votes have been cast by genuine voters

and must be counted. In paragraph 20, it has been submitted that

because of the non-counting of the 6 tendered votes, the result of the

election stood materially affected on account of improper reception of


                                                                     7
those votes. Thus, the same was liable to be rejected being not cast by

genuine voters but by imposters.


8.    In the written statement, the appellant has raised his doubts in

respect of the aforesaid 6 tendered votes but has not taken any specific

pleadings in respect of remaining 4 tendered votes. In paragraph 20

of the written statement, it has been denied that the result of the

election stood materially affected on account of improper reception of

those 6 tendered votes.

      In fact, the pleadings by both the parties in the election petition

as well as in the written statement make reference only to 6 tendered

votes and not to 10 tendered votes.


9.    In view of the pleadings taken by the parties, the High Court

framed only two issues:

      (i)          Whether Smt. Kalpana Kunwar, wife of the
                   respondent, is also known as Kalpana Singh and
                   whether she cast her vote at two Polling Stations
                   Viz. Polling Station No. 39 and Polling Station No.
                   40 of the Nathdwara Legislative Assembly
                   Constituency No. 176 and if so, what is the effect
                   on the election of the respondent?




                                                                     8
      (ii)          Whether the six votes mentioned in Para Nos. 13
                     to 18 of the election petition were initially
                     improperly received and should be removed from
                     the valid votes and in their place tendered votes
                     should be taken into account?


       Therefore, it is evident from the pleadings that the case has

been limited only to 6 tendered votes and there had been no pleading

in respect of the remaining 4 tendered votes either in the election

petition or the written statement filed by the appellant.



10.    In Kailash v. Nanhku & Ors., AIR 2005 SC 2441, this Court

held that the trial of an election petition is entirely different from the

trial of a civil suit, as in a civil suit trial commences on framing the

issues while trial of an election petition encompasses all proceedings

commencing from the filing of the election petition up to the date of

decision. Therefore, the procedure provided for the trial of civil suits

under CPC is not applicable in its entirety to the trial of the election

petition.     For the purpose of the election petition, the word `trial'

includes the entire proceedings commencing from the time of filing

the election petition till the pronouncement of the judgment. The

applicability of the procedure in Election Tribunal is circumscribed


                                                                       9
by two riders : firstly, the procedure prescribed in CPC is applicable

only "as nearly as may be", and secondly, the CPC would give way to

any provisions of the Act or any rules made thereunder. Therefore,

the procedure prescribed in CPC applies to election trial with

flexibility and only as guidelines.


11.                 In Harcharan Singh v. S. Mohinder Singh &

Ors., AIR 1968 SC 1500, this Court considered the application of

doctrine of equity and substantial justice etc. in election law and came

to the conclusion as under :-

      "The statutory requirements of election law must
      be strictly observed. An election dispute is a
      statutory proceeding unknown to the common law;
      it is not an action at law or in equity. ...... The
      primary purpose of the diverse provisions of the
      election law which may appear to be technical is
      to safeguard the purity of the election process, and
      the Courts will not ordinarily minimise their
      operation." (Emphasis added)



12.                 Similarly in Jyoti Basu & Ors. v. Debi Ghosal &

Ors., AIR 1982 SC 983; this Court held as under :-

      "A right to elect, fundamental though it is to
      democracy, is, anomalously enough, neither a
      fundamental right nor a Common Law Right. It is
      pure and simple, a statutory right. So is the right
      to be elected. So is the right to dispute an election.


                                                                     1
     Outside of statute, there is no right to elect, no
      right to be elected and no right to dispute an
      election. Statutory creations they are, and
      therefore, subject to statutory limitation. An
      election petition is not an action at Common Law,
      nor in equity. It is a statutory proceeding to which
      neither the common law nor the principles of
      equity apply but only those rules which the statute
      makes and applies. It is a special jurisdiction and
      a special jurisdiction has always to be exercised in
      accordance with the statute creating it. Concepts
      familiar to Common Law and Equity must
      remain strangers to Election Law unless
      statutorily embodied. A Court has no right to
      resort to them on considerations of alleged policy
      because policy in such matters, as those, relating
      to the trial of election disputes, is what the statute
      lays down. In the trial of election disputes, Court
      is put in a straight jacket. ......We have noticed
      the necessity to rid ourselves of notions based on
      Common Law or Equity. We see that we must
      seek an answer to the question within the four
      corners of the statute."
                                          (Emphasis added)


13.                In Chanda Singh v. Ch. Shiv Ram Varma &

Ors., AIR 1975 SC 403, this Court held as under:-

        "A democracy runs smooth on the wheels of
      periodic and pure elections. The verdict at the
      polls announced by the Returning Officers lead to
      the formation of governments. A certain amount of
      stability in the electoral process is essential. If the
      counting of the ballots are interfered with by too
      frequent and flippant re-counts by courts a new
      threat to the certainty of the poll system is
      introduced through the judicial instrument.
      Moreover, the secrecy of the ballot which is


                                                                1
     sacrosanct becomes exposed to deleterious prying,
      if re-count of votes is made easy. The general
      reaction, if there is judicial relaxation on this
      issue, may well be a fresh pressure on luckless
      candidates, particularly when the winning margin
      is only of a few hundred votes as here, to ask for a
      re-count Micawberishly looking for numerical
      good fortune or windfall of chance discovery of
      illegal rejection or reception of ballots. This may
      tend to a dangerous disorientation which invades
      the democratic order by injecting widespread
      scope for reopening of declared returns, unless the
      court restricts recourse to re-count to cases of
      genuine apprehension of miscount or illegality or
      other compulsions of justice necessitating such a
      drastic step."


14.                 During the trial of an election petition, it is not

permissible for the court to permit a party to seek a roving enquiry.

The party must plead the material fact and adduce evidence to

substantiate the same so that the court may proceed to adjudicate

upon that issue. Before the court permits the recounting, the following

conditions must be satisfied:

      (i)     The Court must be satisfied that a prima facie case
              is established;

      (ii)    The material facts and full particulars have been
              pleaded stating the irregularities in counting of
              votes;

      (iii)   A roving and fishing inquiry should not be
              directed by way of an order to recount the votes;



                                                                    1
     (iv)   An opportunity should be given to file objection;
             and

      (v)    Secrecy of the ballot requires to be guarded.

(Vide : Dr. Jagjit Singh v. Giani Kartar Singh & Ors., AIR 1966

SC 773; Suresh Prasad Yadav v. Jai Prakash Mishra & Ors., AIR

1975 SC 376; M. Chinnasamy v. K.C. Palanisamy & Ors., AIR

2004 SC 541; Chandrika Prasad Yadav v. State of Bihar & Ors.,

AIR 2004 SC 2036;          Tanaji Ramchandra Nimhan v. Swati

Vinayak Nimhan, AIR 2006 SC 1218; Gursewak Singh v. Avtar

Singh & Ors., AIR 2006 SC 1791; and Baldev Singh v. Shinder Pal

Singh & Anr., (2007) 1 SCC 341).


15.                 In Gajanan Krishnaji Bapat & Anr. v. Dattaji

Raghobaji Meghe & Ors., AIR 1995 SC 2284; this Court held that

the court cannot consider any fact which is beyond the pleadings of

the parties. The parties have to take proper pleadings and establish by

adducing evidence that by a particular irregularity/illegality the result

of the election has been materially affected.


16.   Pleadings and particulars are required to enable the court to

decide the rights of the parties in the trial. Thus, the pleadings are



                                                                      1
more to help the court in narrowing the controversy involved and to

inform the parties concerned to the question in issue, so that the

parties may adduce appropriate evidence on the said issue.     It is

settled legal proposition that "as a rule relief not founded on the

pleadings should not be granted." Therefore, a decision of a case

cannot be based on grounds outside the pleadings of the parties. The

pleadings and issues are to ascertain the real dispute between the

parties to narrow the area of conflict and to see just where the two

sides differ. (Vide : Sri Mahant Govind Rao v. Sita Ram Kesho,

(1898) 25 Ind. App. 195; M/s. Trojan & Co. v. RM. N.N. Nagappa

Chettiar, AIR 1953 SC 235; Raruha Singh v. Achal Singh & Ors.;

AIR 1961 SC 1097; Om Prakash Gupta v. Ranbir B. Goyal, AIR

2002 SC 665; Ishwar Dutt v. Land Acquisition Collector & Anr.,

AIR 2005 SC 3165; and State of Maharashtra v. Hindustan

Construction Company Ltd., (2010) 4 SCC 518.)


17.   This Court in Ram Sarup Gupta (dead) by L.Rs. v. Bishun

Narain Inter College & Ors., AIR 1987 SC 1242 held as under:

      "It is well settled that in the absence of pleading,
      evidence, if any, produced by the parties cannot be
      considered. It is also equally settled that no party
      should be permitted to travel beyond its pleading
      and that all necessary and material facts should be


                                                                 1
     pleaded by the party in support of the case set up
      by it. The object and purpose of pleading is to
      enable the adversary party to know the case it has
      to meet........ In such a case it is the duty of the
      court to ascertain the substance of the pleadings to
      determine the question."


18.   This Court in Bachhaj Nahar v. Nilima Mandal & Ors. , AIR

2009 SC 1103, held as under:

              "The object and purpose of pleadings and
      issues is to ensure that the litigants come to trial
      with all issues clearly defined and to prevent cases
      being expanded or grounds being shifted during
      trial. Its object is also to ensure that each side is
      fully alive to the questions that are likely to be
      raised or considered so that they may have an
      opportunity of placing the relevant evidence
      appropriate to the issues before the court for its
      consideration.

            The object of issues is to identify from the
      pleadings the questions or points required to be
      decided by the courts so as to enable parties to let
      in evidence thereon. When the facts necessary to
      make out a particular claim, or to seek a
      particular relief, are not found in the plaint, the
      court cannot focus the attention of the parties, or
      its own attention on that claim or relief, by
      framing an appropriate issue........ Thus it is said
      that no amount of evidence, on a plea that is not
      put forward in the pleadings, can be looked into to
      grant any relief.
           The jurisdiction to grant relief in a civil suit
      necessarily depends on the pleadings, prayer,
      court fee paid, evidence let in, etc."




                                                              1
19.     In J.K. Iron & Steel Co. Ltd, Kanpur v. The Iron and Steel

Mazdoor Union, Kanpur, AIR 1956 SC 231, this Court observed:

            "It is not open to the Tribunals to fly off at a
        tangent and, disregarding the pleadings, to reach
        any conclusions that they think are just and
        proper."



20. Order XIV Rule 1 CPC reads:

        "Issues arise when a material proposition of fact
        or law is affirmed by the party and denied by the
        other."

        Therefore, it is neither desirable nor required for the court to

frame an issue not arising on the pleadings. The Court should not

decide a suit on a matter/point on which no issue has been framed.

(Vide: Raja Bommadevara Venkata Narasimha Naidu & Anr. v.

Raja Bommadevara Bhashya Karlu Naidu & Ors., (1902) 29 Ind.

App. 76 (PC); Sita Ram v. Radha Bai & Ors., AIR 1968 SC 535;

Gappulal v. Thakurji Shriji Dwarkadheeshji & Anr., AIR 1969

SC 1291; and Biswanath Agarwalla v. Sabitri Bera, (2009) 15 SCC

693).


21.     The object of framing issues is to ascertain/shorten the area of

dispute and pinpoint the points required to be determined by the



                                                                     1
court. The issues are framed so that no party at the trial is taken by

surprise. It is the issues fixed and not the pleadings that guide the

parties in the matter of adducing evidence. [Vide : Sayad

Muhammad. v. Fatteh Muhammad (1894-95) 22 Ind. App.                      4

(PC).]


22.      In Kashi Nath (Dead) through L.Rs. v. Jaganath, (2003) 8

SCC 740, this Court held that where the evidence is not in line with

the pleadings and is at variance with it, the said evidence cannot be

looked into or relied upon. While deciding the said case, this Court

placed a very heavy reliance on the judgment of the Privy Council in

Siddik Mohd. Shah v. Saran, AIR 1930 PC 57.


23.      There may be an exceptional case wherein the parties proceed

to trial fully knowing the rival case and lead all the evidence not only

in support of their contentions but in refutation thereof by the other

side. In such an eventuality, absence of an issue would not be fatal

and it would not be permissible for a party to submit that there has

been a mis-trial and the proceedings stood vitiated. (vide: Nagubai

Ammal & Ors. v. B. Shama Rao & Ors., AIR 1956 SC 593;

Nedunuri Kameswaramma v. Sampati Subba Rao, AIR 1963 SC


                                                                     1
884; Kunju Kesavan v. M.M. Philip & Ors., AIR 1964 SC 164;

Kali Prasad Agarwalla (dead) by L.Rs. & Ors. v. M/s. Bharat

Coking Coal Ltd. & Ors., AIR 1989 SC 1530; Sayed Akhtar v.

Abdul Ahad, (2003) (7) SCC 52; and Bhuwan Singh v. Oriental

Insurance Co. Ltd., AIR 2009 SC 2177).


24.   Therefore, in view of the above, it is evident that the party to

the election petition must plead the material fact and substantiate its

averment by adducing sufficient evidence. The court cannot travel

beyond the pleadings and the issue cannot be framed unless there are

pleadings to raise the controversy on a particular fact or law. It is,

therefore, not permissible for the court to allow the party to lead

evidence which is not in the line of the pleadings. Even if the evidence

is led that is just to be ignored as the same cannot be taken into

consideration.


25.   In Jabar Singh v. Genda Lal, AIR 1964 SC 1200, a

Constitution Bench of this court while dealing with a similar issue

observed as under:

      "It would be convenient if we take a simple case
      of an election petition whether the petitioner
      makes only one claim and that is that the election


                                                                     1
of the returned candidate is void. This claim can
be made under Section 100. Section 100(1)(a),(b)
and (c) refer to three distinct grounds on which the
election of the returned candidate can be
challenged. We are not concerned with any of
these grounds. In dealing with the challenge to the
validity of the election of the returned candidate
under Section 100(1)(d), it would be noticed that
what the election petitioner has to prove is not
only the existence of one or the other of the
grounds specified in clauses (i) to (iv) of Section
100(1)(d), but it has also to establish that as a
result of the existence of the said ground the result
of the election insofar as it concerns a returned
candidate has been materially affected. It is thus
obvious that what the Tribunal has to find is
whether or not the election insofar as it concerns
the returned candidate has been materially
affected, and that means that the only point
which the Tribunal has to decide is has the
election of the returned candidate been
materially affected? And no other enquiry is
legitimate or permissible in such a case. This
requirement of Section 100(1)(d) necessarily
imports limitations on the scope of the enquiry.
Confining ourselves to clause (iii) of Section
100(1)(d), what the Tribunal has to consider is
whether there has been an improper reception of
votes in favour of the returned candidate. It may
also enquire whether there has been a refusal or
rejection of any vote in regard to any other
candidate or whether there has been a reception of
any vote which is void and this can only be the
reception of a void vote in favour of the returned
candidate. In other words, the scope of the
enquiry in a case falling under Section
l00(1)(d)(iii) is to determine whether any votes
have been improperly cast in favour of the
returned candidate, or any votes have been
improperly refused or rejected in regard to any


                                                        1
     other candidate. These are the only two matters
      which would be relevant in deciding whether the
      election of the returned candidate has been
      materially affected or not. At this enquiry, the onus
      is on the petitioner to show that by reason of the
      infirmities specified in Section 100(1)(d)(iii), the
      result of the returned candidate's election has
      been materially affected, and that, incidentally,
      helps to determine the scope of the enquiry.
      Therefore, it seems to us that in the case of a
      petition where the only claim made is that the
      election of the returned candidate is void, the
      scope of the enquiry is clearly limited by the
      requirement of Section 100(l)(d) itself. The enquiry
      is limited not because the returned candidate has
      not recriminated under Section 97(1); in fact,
      Section 97(1) has no application to the case falling
      under Section 100(1)(d)(iii); the scope of the
      enquiry is limited for the simple reason that what
      the clause requires to be considered is whether the
      election of the returned candidate has been
      materially affected and nothing else. If the result
      of the enquiry is in favour of the petitioner who
      challenges the election of the returned candidate,
      the Tribunal has to make a declaration to that
      effect, and that declaration brings to an end the
      proceedings in the election petition."
                                       (Emphasis added)


26.   In T.A. Ahammed Kabeer v. A.A. Azeez & Ors., AIR 2003

SC 2271, this Court dealt with the judgment of the Constitution Bench

observing:

      "We have already stated that the rigorous rule
      propounded by the Constitution Bench in Jabar
      Singh v. Genda Lal, AIR 1964 SC 1200, has met


                                                                  2
with criticism in some of the subsequent decisions
of this Court though by Benches of lesser coram
and an attempt at seeking reconsideration of the
majority opinion in Jabar Singh case (supra) has
so far proved to be abortive. The view of the law
taken by the Constitution Bench in Jabar Singh
(supra) is binding on us. Analysing the majority
opinion in Jabar Singh case (supra) and the view
taken in several decisions of this Court, referred to
hereinabove, we sum up the law as under:
    (1) In an election petition wherein the limited
relief sought for is the declaration that the election
of the returned candidate is void on the ground
under Section 100(1)(d)(iii) of the Act, the scope of
enquiry shall remain confined to two questions:
(a) finding out any votes having been improperly
cast in favour of the returned candidate, and (b)
any votes having been improperly refused or
rejected in regard to any other candidate. In such
a case an enquiry cannot be held into and the
election petition decided on the finding (a) that
any votes have been improperly cast in favour of a
candidate other than the returned candidate, or
(b) any votes were improperly refused or rejected
in regard to the returned candidate.
   (2) A recrimination by the returned candidate
or any other party can be filed under Section 97(1)
in a case where in an election petition an
additional declaration is claimed that any
candidate other than the returned candidate has
been duly elected.
   (3) For the purpose of enabling an enquiry that
any votes have been improperly cast in favour of
any candidate other than the returned candidate
or any votes have been improperly refused or
rejected in regard to the returned candidate the
Election Court shall acquire jurisdiction to do so
only on two conditions being satisfied: (i) the
election petition seeks a declaration that any

                                                         2
candidate other than the returned candidate has
been duly elected over and above the declaration
that the election of the returned candidate is void;
and (ii) a recrimination petition under Section
97(1) is filed.
    (4) A recrimination petition must satisfy the
same requirements as that of an election petition
in the matter of pleadings, signing and verification
as an election petition is required to fulfil within
the meaning of Section 83 of the Act and must be
accompanied by the security or the further security
referred to in Sections 117 and 118 of the Act.
    (5) The bar on enquiry enacted by Section 97
read with Section 100(1)(d)(iii) of the Act is
attracted when the validity of the votes is to be
gone into and adjudged or in other words the
question of improper reception, refusal or
rejection of any vote or reception of any vote
which is void is to be gone into. The bar is not
attracted to a case where it is merely a question of
correct counting of the votes without entering into
adjudication as to propriety, impropriety or
validity of acceptance, rejection or reception of
any vote. In other words, where on a re-count the
Election Judge finds the result of re-count to be
different from the one arrived at by the Returning
Officer or when the Election Judge finds that there
was an error of counting the bar is not attracted
because the court in a pure and simple counting
carried out by it or under its directions is not
adjudicating upon any issue as to improper
reception, refusal or rejection of any vote or the
reception of any vote which is void but is
performing mechanical process of counting or re-
counting by placing the vote at the place where it
ought to have been placed. A case of error in
counting would fall within the purview of sub-
clause (iv), and not sub-clause (iii) of clause (d) of
sub-section (1) of Section 100 of the Act."


                                                         2
27.   Therefore,     in   the    case    at   hand,    the    election

petitioner/respondent has claimed only that there has been

irregularity/illegality in counting of 6 tendered votes and the case

squarely falls within the ambit of Section 100(1)(d)(iii) of the Act,

1951. Election petitioner has further pleaded that the result of the

election stood materially affected because of improper receiving the

six tendered votes and in absence of any Recrimination Petition in the

case the appellant cannot be permitted to lead evidence on the fact

which is not in issue.


28.   The judgment in Wilfred D'Souza's case (Supra) has

distinguishable features. In that case, the appellant had asserted that

the result of the election of the respondent had been materially

affected by the improper reception, refusal and rejection of votes and

a specific prayer had been made by the appellant in the election

petition that the election of the respondent be declared void and the

appellant be declared to be duly elected. The respondent had denied

that the tendered votes were cast by genuine voters. The issue had

been framed in that case as under:

       "Whether the petitioner proves that the vote or
      votes were initially improperly received and


                                                                    2
     should be removed and in their place tendered
      vote or votes should be taken into account."

      The Election Tribunal therein did not record any evidence on

behalf of the respondents and proceeded to decide the case after the

evidence of the witnesses of the appellant had been recorded and after

the box containing the relevant papers had been opened and those

papers were examined. In view of the fact that the appellant had

adduced prima facie proof in respect of two of the tendered ballot

papers, the Election Tribunal was to call upon the respondent to

adduce his evidence and the evidence should not be constrained only

to the two tendered ballot papers in respect of which the appellant had

not adduced any evidence, but would relate to some or all the other 8

tendered ballot papers in respect of which the appellant had not

adduced any evidence.


      That was, admittedly, a case wherein a Recrimination Petition

under Section 97 of the Act 1951 had been filed. In the instant case,

there is no such claim made by the parties. In the instant case, an

application had been filed to summon the other 4 tendered votes, also

making a submission that those documents were required by the

parties to resolve the controversy without giving any reason or



                                                                    2
justification for the same. Admittedly, there is no reference to these 4

tendered votes either in the election petition or in the written

statement. The said 4 tendered votes neither had been relied upon in

the reply by the appellant nor had been entered in the list of

documents. Thus, the judgment in this case is quite distinguishable

from the case at hand.


29.   In view of the above, we do not find any cogent reason to

interfere with the well reasoned judgment and order of the High Court

impugned herein. The facts and circumstances of the case do not

warrant review of the order passed by the High Court. The appeal

lacks merit and is accordingly dismissed.


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


                                       ................................J.
                                       (Dr. B.S. CHAUHAN)

New Delhi,
January 24, 2011




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2

suit filed by a daughter against her father , claiming Rs.2,00,000/- two lakhs, for her marriage purpose. pending the suit , the marriage of the plaintiff was taken place., The plaintiff filed amendment petition under or.6, rule 17 c.p.c., seeking to amend the plaint for adding Rs. 2,50,000/- the actual expenses of her marriage.The lower court dismissed the application on two grounds.                                  1.