Order VI rule 16 and Order VII rule 11 of the Code of Civil Procedure, 1908 for dismissal of the election petition contending that on account of deficiencies in the pleadings no triable issue(s) is disclosed to justify a regular trial of the allegations made. According to the appellant the election petition, in its entirety, had failed to disclose any cause of action whatsoever. Though some relief (details of which need not be noticed) was granted to the appellant by the High Court, three broad categories of allegations contained in the election petition were held to disclose triable issues. Hence a regular trial of the same was ordered by the High Court by the order under challenge. Aggrieved, this appeal has been filed. = Section 123(7) of the R.P. Act, Corrupt practice = The allegation in the Election Petition is that the post to which Jagjit Singh Suchu was transferred from the Punjab State Electricity Board was under the State Government and the assistance received by the returned candidate from the said person is while he was rendering service as Additional Superintending Engineer, namely, while he was performing the duties in the State Government. If that be so, the aforesaid issue also will have to go for a full trial as ordered by the High Court. ; efflux of time=The election took place in the year 2009. The life of the House for which the election took place has long expired. The third allegation is not one with regard to commission of any corrupt practice. Hence by efflux of time the said issue has become academic rendering it unnecessary for us to enter into any discussion on the said question.

                                                                  REPORTABLE

                        IN THE SUPREME COURT OF INDIA
                        CIVIL APPELLATE JURISDICTION

                        CIVIL APPEAL NO.10353 OF 2016
                  (Arising out of SLP (C) No.14912 of 2011)


NAVJOT SINGH SIDHU                      ...APPELLANT

                                   VERSUS

OM PARKASH SONI & ORS.            ...RESPONDENTS


                               J U D G M E N T

RANJAN GOGOI,J


1.    Leave granted.
2.    The appellant before this Court  is  the  returned  candidate  in  the
election  held  on  13th  May,  2009  for  the   02-Amritsar   Parliamentary
Constituency.   The election was challenged in E.P. No.3 of 2009 before  the
High Court of Punjab and  Haryana  at  Chandigarh.  The  appellant,  as  the
respondent in the Election Petition, had filed an  application  under  Order
VI rule 16 and Order VII rule 11 of the Code of Civil  Procedure,  1908  for
dismissal  of  the  election  petition  contending  that   on   account   of
deficiencies in the pleadings no triable issue(s) is disclosed to justify  a
regular trial of the  allegations  made.  According  to  the  appellant  the
election petition, in its entirety, had failed  to  disclose  any  cause  of
action whatsoever.  Though  some  relief  (details  of  which  need  not  be
noticed) was granted to  the  appellant  by  the  High  Court,  three  broad
categories of allegations contained in the election petition  were  held  to
disclose triable issues. Hence a regular trial of the same  was  ordered  by
the High Court by the order under  challenge.  Aggrieved,  this  appeal  has
been filed.
3.    We have heard the learned counsels for the parties.
4.    The three broad categories of  allegations  which,  according  to  the
High Court, gave rise to the  triable  issues  may  now  be  dealt  with  in
seriatim.
5.    The first is with regard to incurring of expenditure in  contravention
of the limit prescribed under Section 77(3) of  the  Representation  of  the
People Act, 1951 (hereinafter referred to as “R.P. Act”).  The  gravamen  of
the allegation on the aforesaid score is as follows:
      According to the  election  petitioner,  the  appellant  had,  in  his
return of election expenses, shown a total  expenditure  of  Rs.17,03,665/-.
He had shown expenditure of Rs.3,31,054/- on  account  of  campaign  through
electronic/print media (including cable network).  The  election  petitioner
has contended that the said return of expenditure is not correct.
6.    In paragraph 9 of the Election Petition the rates of advertisement  in
different  newspapers  like  ‘The  Daily  Ajit’,  ‘Punjab  Kesari’,  ‘Dainik
Bhaskar’, ‘Jag Bani’ have been shown along  with  a  statement  that  during
election time the said charges  are  25%  more.   In  paragraph  10  of  the
election petition, the details of  the  advertisements  published/issued  by
the appellant in different newspapers during the period between 22nd  April,
2009 to 13th May, 2009 are mentioned along with the details  of  expenditure
incurred. On the basis of the figures  mentioned  in  paragraph  10  of  the
Election Petition, it is contended that the actual expenses incurred by  the
returned candidate on advertisements alone is  Rs.32,88,845/-  which  is  in
excess of the total prescribed limit of Rs.25,00,000/- (Rupees  Twenty  Five
lakh).  In paragraph 11  of  the  Election  Petition,  the  details  of  the
expenditure incurred by the returned candidate/appellant  on  advertisements
on local T.V. channels, etc. are also mentioned.  The specific pleadings  in
this regard as contained in paragraph 10 and 11 may  set  out  herein  below
for clarity:

“10.  That the details of advertisements by Respondent  No.1,  the  returned
candidate, in different newspapers and their  expenses,  during  the  period
from the date of his nomination i.e. 22.4.2009 to 13.5.2009  i.e.  the  date
of polling are as under:

|S.  |Date of   |Name of the|Page |Size of   |Rate |Amount (In|
|No. |Publica-ti|Newspapers |No.  |Advertise-|     |Rupees)   |
|    |on        |           |     |ment      |     |          |
|1.  |22.04.2009|Ajit       |7    |22 x 12 = |180  |47,520    |
|    |          |           |     |204       |     |          |
|2.  |22.04.2009|Dainik     |2    |16.5 x    |664  |2,02,686  |
|    |          |Bhaskar    |     |18.5 =    |     |          |
|    |          |           |     |305.25    |     |          |
|3.  |22.04.2009|Dainik     |1    |24 x 12 = |166  |47,808    |
|    |          |Jagran     |     |288       |     |          |
|4.  |22.04.2009|Tribune    |3    |10 x 12 = |852  |1,02,240  |
|    |          |           |     |120       |     |          |
|5.  |23.04.2009|Ajit       |7    |a) 33 x 10|     |          |
|    |          |           |     |= 330     |90   |29,700    |
|    |          |           |     |(B/w)     |     |          |
|    |          |           |     |          |     |          |
|    |          |           |     |b) 20 x 14|180  |50,400    |
|    |          |           |     |= 280     |     |          |
|    |          |           |     |          |     |          |
|6.  |23.04.2009|Dainik     |3    |25 x 32 = |747  |5,97,600  |
|    |          |Bhaskar    |     |800       |     |          |
|7.  |23.04.2009|Punjab     |1    |16 x 24.5 |225  |88,200    |
|    |          |Kesari –   |     |= 302     |     |          |
|    |          |Amr.       |     |          |     |          |
|8.  |24.04.2009|Jag Bani   |2    |10 X 16   |87.5 |14,000    |
|    |          |           |     |(B/w) =   |     |          |
|    |          |           |     |160       |     |          |
|9.  |25.04.2009|Ajit       |7    |12 x 9 =  |180  |19,440    |
|    |          |           |     |108       |     |          |
|10. |25.04.2009|Punjab     |2    |12 x 5    |     |          |
|    |          |Kesari     |     |(B/w) = 60|125  |7,500     |
|11. |26.04.2009|Ajit       |7    |16.5 x 20 |180  |59,400    |
|    |          |           |     |= 330     |     |          |
|12. |26.04.2009|Jag Bani   |1    |17 x 16 = |150  |40,800    |
|    |          |           |     |272       |     |          |
|13. |27.04.2009|Jag Bani   |2    |8 x 3 (B) |87.5 |2,100     |
|    |          |           |     |= 24      |     |          |
|14. |28.04.2009|Ajit       |7    |29 x 10 = |180  |52,200    |
|    |          |           |     |290       |     |          |
|    |          |           |     |          |     |          |
|15. |28.04.2009|Dainik     |2    |20 x 10 = |664  |1,32,800  |
|    |          |Bhaskar    |     |200       |     |          |
|16. |30.04.2009|Ajit       | 7   |15 x 8 (B)|180  |21,600    |
|    |          |           |     |= 120     |     |          |
|17. |30.04.2009|Jag Bani   |1    |10 x 12 = |150  |18,000    |
|    |          |(Local)    |     |120       |     |          |
|    |          |           |     |          |     |          |
|    |          |           |2    |a) 8 x 5 =|125  |5,000     |
|    |          |           |     |40        |     |          |
|    |          |           |     |b) 16 x 6 |125  |12,000    |
|    |          |           |     |= 96      |     |          |
|    |          |           |     |c) 16 x 6 |125  |12,000    |
|    |          |           |     |= 96      |     |          |
|18. |01.05.2009|Jag Bani   |1    |20.5 x 9 =|     |          |
|    |          |           |     |184.5     |150  |27,675    |
|    |          |           |     |          |     |          |
|    |          |           |2    |a) 8 x 5  |     |          |
|    |          |           |     |(B) = 40  |87.5 |3,500     |
|    |          |           |     |          |     |          |
|    |          |           |     |b) 16 x   |     |          |
|    |          |           |     |6.5 (B) = |87.5 |9,100     |
|    |          |           |     |104       |     |          |
|19. |01.05.2009|Punjab     |1    |20 x 9 =  |225  |40,500    |
|    |          |Kesari     |     |180       |     |          |
|20. |02.05.2009|Ajit       |7    |4 x 4     |     |          |
|    |          |           |     |(B/w) = 16|90   |1,440     |
|    |          |           |     |          |     |          |
|    |          |           |8    |16.5. x 12|     |          |
|    |          |           |     |= 198     |90   |17,820    |
|21. |02.05.2009|Jag Bani   |2    |a) 8 x 5  |     |          |
|    |          |           |     |(B) = 40  |87.5.|3,500     |
|    |          |           |     |          |     |          |
|    |          |           |     |b) 8 x 5  |87.5 |          |
|    |          |           |     |(B) = 40  |     |3,500     |
|    |          |           |     |          |     |          |
|22. |03.05.2009|Jag Bani   |2    |8 x 5 (B) |87.5 |3,500     |
|    |          |           |     |= 40      |     |          |
|    |          |           |     |          |     |          |
|23. |04.05.2009|Ajit       |11   |a) 8 x 6  |     |          |
|    |          |           |     |(B) = 48  |90   |4,320     |
|    |          |           |     |          |     |          |
|    |          |           |     |b) 8 x 6.5|     |          |
|    |          |           |     |(B) = 52  |90   |4,680     |
|    |          |           |     |          |     |          |
|    |          |           |     |c) 8 x 6.5|     |          |
|    |          |           |     |(B) = 52  |90   |4,680     |
|    |          |           |     |          |     |          |
|    |          |           |     |d) 8 x 7  |     |          |
|    |          |           |     |(B) = 56  |90   |5,040     |
|    |          |           |     |          |     |          |
|    |          |           |     |e) 8 x 9  |     |          |
|    |          |           |     |(B) = 72  |90   |6,480     |
|    |          |           |     |          |     |          |
|    |          |           |     |f) 8 x 6  |     |          |
|    |          |           |     |(B) = 48  |90   |4,320     |
|    |          |           |     |          |     |          |
|    |          |           |     |g) 8 x 7  |     |          |
|    |          |           |     |(B) = 56  |90   |5,040     |
|24. |04.05.2009|Jag Bani   |1    |33 x 5 =  |     |          |
|    |          |           |     |165       |150  |24,750    |
|    |          |           |     |          |     |          |
|    |          |           |2    |12 x 8.5  |     |          |
|    |          |           |     |(B) = 102 |87.5 |8,925     |
|25. |04.05.2009|Amr. Kesari|1    |33 x 5 =  |     |          |
|    |          |           |     |165       |225  |37,125    |
|    |          |           |     |Party     |     |          |
|    |          |           |     |          |     |          |
|    |          |           |2    |8 x 5 = 40|162.5|6,500     |
|26. |05.05.2009|Ajit       |7    |33 x 8 (B)|     |          |
|    |          |           |     |= 264     |90   |23,760    |
|27. |05.05.2009|Jag Bani   |2    |a) 8 x    |     |          |
|    |          |           |     |5(B) = 40 |87.5 |3,500     |
|    |          |           |     |          |     |          |
|    |          |           |     |b) 12 x   |     |          |
|    |          |           |     |6.5 (B) = |87.5 |6,825     |
|    |          |           |     |78        |     |          |
|28. |06.05.2009|Ajit       |7    |a) 33 x 13|     |          |
|    |          |           |     |(B) = 429 |90   |38,610    |
|29. |06.05.2009|Jag Bani   |2    |a) 8 x 5  |     |          |
|    |          |           |     |(B) = 40  |87.5 |3,500     |
|    |          |           |     |          |     |          |
|    |          |           |     |b) 8 x 6  |     |          |
|    |          |           |     |(B) = 48  |87.5 |4,200     |
|30. |07.05.2009|Ajit       |7    |a) 12 x 7 |     |          |
|    |          |           |     |(B) = 84  |90   |7,560     |
|    |          |           |     |          |     |          |
|    |          |           |     |b) 12 x 9 |     |          |
|    |          |           |     |(B) = 108 |90   |9,720     |
|    |          |           |     |          |     |          |
|    |          |           |     |          |     |          |
|31. |08.05.2009|Ajit       |7    |33 x 13   |     |          |
|    |          |           |     |(B) = 429 |90   |38,610    |
|    |          |           |     |          |     |          |
|    |          |           |8    |8 x 10 (B)|     |7,200     |
|    |          |           |     |= 80      |90   |          |
|    |          |           |     |          |     |          |
|    |          |           |     |          |     |          |
|    |          |           |     |          |     |          |
|32. |08.05.2009|Jag Bani   |1    |33 x 9 (P)|     |          |
|    |          |           |     |= 297     |150  |44,550    |
|    |          |           |     |          |     |          |
|    |          |           |2    |a) 8 x 7  |     |          |
|    |          |           |     |(B) = 56  |125  |7,000     |
|    |          |           |     |          |     |          |
|    |          |           |     |b) 8 x 10 |     |          |
|    |          |           |     |(B) = 80  |87.5 |7,000     |
|    |          |           |     |          |     |          |
|    |          |           |     |c) 8 x 5  |     |          |
|    |          |           |     |(B) = 40  |87.5 |3,500     |
|    |          |           |     |          |     |          |
|    |          |           |     |d) 8 x 5.5|     |          |
|    |          |           |     |(B) = 44  |87.5 |3,850     |
|    |          |           |     |          |     |          |
|    |          |           |     |          |     |          |
|33. |09.05.2009|Ajit       |7    |a) 8 x 9  |     |          |
|    |          |           |     |(B) = 72  |90   |6,480     |
|    |          |           |     |          |     |          |
|    |          |           |     |b) 8 x 5  |     |          |
|    |          |           |     |(B) = 40  |90   |3,600     |
|    |          |           |     |          |     |          |
|    |          |           |     |c) 8 x 10 |     |          |
|    |          |           |     |(B) = 80  |90   |7,200     |
|    |          |           |     |          |     |          |
|    |          |           |     |d) 33 x 8 |     |          |
|    |          |           |     |(P) = 264 |90   |23,760    |
|34. |09.05.2009|Jag Bani   |3    |12 x 10(B)|100  |12,000    |
|    |          |           |     |= 120     |     |          |
|35. |10.05.2009|Ajit       |1    |a) 12 x 9 |     |          |
|    |          |           |     |(B) = 108 |90   |9,720     |
|    |          |           |     |          |     |          |
|    |          |           |     |b) 8 x 10 |     |          |
|    |          |           |     |(B) = 80  |90   |7,200     |
|    |          |           |     |          |     |          |
|    |          |           |7    |c) 16 x 12|     |          |
|    |          |           |     |(B) = 192 |90   |17,280    |
|36. |10.05.2009|Jag Bani   |3    |12 x 10   |     |          |
|    |          |           |     |(B) = 120 |100  |12,000    |
|37. |11.05.2009|Ajit       |8    |a) 12 x 8 |     |          |
|    |          |           |     |= 96      |180  |17,280    |
|    |          |           |     |          |     |          |
|    |          |           |     |b) 20 x 10|     |          |
|    |          |           |     |= 200     |180  |36,000    |
|    |          |           |     |          |     |          |
|38. |11.05.2009|Jag Bani   |2    |a) 16 x 6 |     |          |
|    |          |           |     |(B) = 96  |87.5 |8,400     |
|    |          |           |     |          |     |          |
|    |          |           |     |b) 24.5 x |     |          |
|    |          |           |     |8(B) = 196|87.5 |17,150    |
|    |          |           |     |          |     |          |
|39. |12.05.2009|Ajit       |7    |a) 16 x 19|     |          |
|    |          |           |     |= 304     |180  |54,720    |
|    |          |           |     |          |     |          |
|40. |12.05.2009|Jag Bani   |1    |33 x 9 =  |150  |44,550    |
|    |          |           |     |297       |     |          |
|    |          |           |     |          |     |          |
|    |          |           |2    |a) 8 x 4  |     |          |
|    |          |           |     |(B) = 32  |125  |4,000     |
|    |          |           |     |          |     |          |
|    |          |           |     |b) 8 x 4.5|     |          |
|    |          |           |     |(B) = 36  |87.5 |3,150     |
|    |          |           |     |          |     |          |
|    |          |           |     |c) 12 x 9 |     |          |
|    |          |           |     |(B) = 108 |87.5 |9,450     |
|41. |13.05.2009|Ajit       |7    |a) 8 x 5  |     |          |
|    |          |           |     |(B) = 40  |90   |3,600     |
|    |          |           |     |          |     |          |
|    |          |           |     |b) 20.5 x |     |          |
|    |          |           |     |16 (B) =  |     |          |
|    |          |           |     |328       |90   |29,520    |
|42. |13.05.2009|Jag Bani – |1    |a) 16 x 25|     |          |
|    |          |Local      |     |= 400     |150  |60,000    |
|    |          |           |     |          |     |          |
|    |          |           |     |b) 12 x 12|     |          |
|    |          |           |     |= 144     |300  |          |
|    |          |           |     |(Hang)    |(H)  |43,200    |
|    |          |           |     |          |     |          |
|    |          |           |     |c) 4 x 5 =|     |          |
|    |          |           |     |20        |150  |3,000     |
|    |          |           |     |          |     |          |
|    |          |           |     |d) 16 x 13|     |          |
|    |          |           |     |= 208     |150  |31,200    |
|    |          |           |     |          |     |          |
|    |          |           |2    |8 x 6 (B) |     |          |
|    |          |           |     |= 48      |87.5 |4,200     |
|    |          |           |     |TOTAL     |     |19,16,234 |

“11.  The  Respondent  No.1,  the  returned  candidate,  also  displayed  an
advertisement of 70 seconds on Metro/Filmy channel  and  Movies  channel  of
Siti Cable/Digi Cable in Amritsar.  The charges are Rs.825  for  30  seconds
on Metro/Filmy channel and Rs.900/- per 30 seconds on Movie  Channel  during
the  period  22.4.2009  to  13.5.2009  between  8  AM  to   10   P.M.    The
Advertisement was displaced for 18 times on each channel.   The  details  of
the same are as under:


|S.  |Name of   |Duration of|Rate/|Total|No. of    |Amount    |
|No. |Channel   |clip (Sec.)|sec. |No.  |times of  |          |
|    |          |           |of   |of   |broadcast |          |
|    |          |           |Broad|days |per day   |          |
|    |          |           |cast |     |          |          |
|    |          |           |(Rs.)|     |          |          |
|1.  |Metro/Film|70         |27.5 |22   |18        |762300    |
|    |y         |           |     |     |          |          |
|2.  |Movie     |70         |30   |22   |18        |831600    |
|    |TOTAL     |           |     |     |          |15,93900” |



7.    Shri Vikas Singh, learned Senior Counsel appearing for  the  appellant
has submitted that under the provisions of Rules of Procedure  and  Guidance
in the  matter  of  Trial  of  Election  Petitions  Under  Part  VI  of  the
Representation  of  the  People  Act,  1951,  as  amended  (Clause  12)  and
specifically Form ‘B’ and Form ‘BB’ prescribed thereunder, it  is  necessary
for the election petitioner to enclose along with the Election Petition  all
relied upon documents in the form(s) prescribed. In the  present  case,  the
required information as per the forms prescribed had not been  furnished  by
the election petitioner. Shri Vikas Singh  has  further  argued  that  under
Section 83 of the R.P. Act an Election Petition founded  on  allegations  of
corrupt practice has to contain a concise statement of  the  material  facts
and is also required to set forth full particulars of any  corrupt  practice
that the election petitioner alleges.  In  addition,  an  affidavit  in  the
prescribed form in support of the allegations of corrupt  practice  and  the
particulars thereof is also  required  to  be  furnished.   Relying  on  two
decisions of this Court i.e. Azhar Hussain vs. Rajiv Gandhi[1] and  Ramakant
Mayekar vs. Celine D’Silva[2]  it is argued that in the present case it  was
incumbent  upon  the  election  petitioner  to  enclose  with  the  Election
Petition   photocopies   of   the   relevant   newspapers   containing   the
advertisements mentioned in paragraph 10  of  the  Election  Petition.   The
foundation of the Election Petition being the  advertisements  contained  in
the said newspapers in the absence thereof the necessary cause of action  to
justify a full-fledged trial would be absent and,  therefore,  the  Election
Petition is liable to be dismissed at the threshold.
8.    We have considered the aforesaid submission  made  on  behalf  of  the
appellant.  What is the meaning  of  the  expression  ‘material  facts’  and
‘material particulars’ need not engage any further attention  of  the  Court
in view of the long line of decisions/precedents available on the point  out
of which illustratively reference can be made to the decision of this  Court
in  the  case  of  Virender  Nath  Gautam  vs.  Satpal  Singh  and  Ors.[3].
Paragraph 50 of the  said  decision  in  Virender  Nath  (supra),  which  is
extracted  below,  would  highlight  the   distinction   between   the   two
expressions.
“50.  There is distinction between facta probanda (the facts required to  be
proved i.e. material facts) and facta  probantia  (the  facts  by  means  of
which they are proved i.e. particulars or  evidence).   It  is  settled  law
that pleadings must contain only facta probanda  and  not  facta  probantia.
The material facts on which the party relies for his claim are called  facta
probanda and they must be stated in the pleadings.  But the facts  or  facts
by means of which facta probanda (material facts) are proved and  which  are
in the nature of facta probantia (particulars or evidence) need not  be  set
out in the pleadings.  They are not facts in issue, but only relevant  facts
required to be proved at the  trial  in  order  to  establish  the  fact  in
issue.”

9.    Virender Nath Gautam (supra) dealt with an Election Petition that  did
not have any allegation of  corrupt  practice  and  therefore  the  contents
thereof were examined in the context of the  requirement  under  Section  83
(1) (a) and not Section 83 (1) (b) of the  Act  of  1951.   In  case  of  an
Election Petition founded on allegations of corrupt practice  not  only  the
‘material facts’ have to be pleaded but even the  full  particulars  thereof
have to be furnished at  the  stage  of  filing  of  the  Election  Petition
itself.  This is specifically provided for in Section 83(1)(b) of  the  R.P.
Act.

10.   Reading the averments made by the election  petitioner  in  paragraphs
10 and 11 of the Election  Petition,  extracted  above,  in  our  considered
view, it cannot be said that full particulars of the allegation  of  corrupt
practice have not been set out by the election  petitioner.   The  dates  on
which the advertisements had appeared; the particulars of the newspapers  in
which such advertisements were published; the cost incurred  for  each  type
of advertisement in each newspaper, have all been mentioned.   When  details
to the above extent have been mentioned in the Election Petition, it  cannot
be said that full particulars as required  under  Section  83(1)(b)  of  the
R.P. Act have not been furnished by the election petitioner.

11.   The insistence on furnishing photocopies of the  newspapers  alongwith
the Election Petition on the strength of the  decisions  of  this  Court  in
Azhar Hussain(supra) and Ramakant Mayekar(supra) will now have to  be  dealt
with.
      In Azhar Hussain(supra),  the  posters  in  question  which  were  not
furnished  along  with  the  Election  Petition,   itself,   contained   the
ingredients of the corrupt practice  alleged.   Hence  the  failure  of  the
election petitioner to include the said posters as a part  of  the  Election
Petition was held to be fatal. Similarly,  in  Ramakant  Mayekar(supra)  the
pleaded case of the election petitioner was that the returned candidate  had
used posters, banners and wall-paintings canvassing for votes  in  the  name
of Hindu religion. The election petitioner specifically averred that he  had
taken photographs of the wall-paintings which, however,  were  not  enclosed
to the Election Petition. The Election  petitioner  in  the  said  case  had
prayed for leave to produce the same at a later stage of the case. It is  in
the above situation, namely, where the wall-paintings itself  contained  the
ingredients of the commission of corrupt  practice  alleged  that  the  non-
furnishing of the same along with the  Election  Petition  was  held  to  be
fatal.  The above is not the situation in the present case.  We,  therefore,
hold that the averments made with regard to election expenses  in  paragraph
10 and 11 of the Election Petition require to go for  a  full-fledged  trial
and the appeal insofar as the aforesaid part of the  decision  of  the  High
Court has to fail.

12.   In paragraphs 12 to 15  of  the  Election  Petition,  the  respondent-
election petitioner, by  giving  details  of  expenditure  incurred  by  the
appellant in connection with public meetings held on different dates and  in
different venues, has contended that the expenses incurred on  these  public
meetings is much more than what has been shown in  the  return  of  election
expenses under the said head  (Rs.1,83,466/-).  While  the  details  of  the
meetings i.e. the time, date and venue are mentioned and so  is  the  number
of persons who are claimed to have attended the meetings,  we  do  not  find
any basis as to how the election petitioner had arrived at  the  quantum  of
expenses which he alleges to have been incurred by  the  returned  candidate
in holding each of the said meetings. What are the source(s) of  information
of the election petitioner with regard to the details furnished; whether  he
has personal knowledge of any of the said meetings; who are the persons  who
informed him of the details of such meetings;  what  is  the  basis  of  the
estimate of the number of persons present and the facilities  (chairs  etc.)
that were hired and the particulars of the refreshments served  are  nowhere
pleaded.  All such particulars that are an integral part of  the  allegation
of corrupt practice alleged are absent.
In the absence of the aforesaid particulars, there  can  be  no  doubt  that
insofar as the allegations made in paragraphs  12  to  15  of  the  Election
Petition is concerned, the same do not disclose any triable issue so  as  to
justify a regular trial of the said allegations. The  allegations  mentioned
in paragraphs 12 to  15,  so  far  as  commission  of  corrupt  practice  of
submission of false/incorrect return  of  election  expenses  is  concerned,
are, therefore, struck off.

13.   This will take the Court to the  second  category  of  allegations  on
which the Election Petition is founded. The  same  is  with  regard  to  the
assistance allegedly received by the appellant, as the  returned  candidate,
from one Jagjit Singh Suchu. The specific case  of  the  respondent-election
petitioner in the Election Petition filed is that  Jagjit  Singh  Suchu  was
posted as the Grid  Executive  Engineer,  Amritsar  and  he  is  a  gazetted
officer in the Punjab State Electricity Board. Shri Suchu  was  transferred,
at the instance of the appellant,  as  Additional  Superintending  Engineer,
East Division, Verka Circle, Amritsar which is a gazetted post in the  State
of Punjab.  It  is  also  alleged  that  the  returned  candidate  i.e.  the
appellant had taken the help of Shri Suchu while he was working in the  said
capacity so as to further the appellant’s election prospects.  The  detailed
pleadings in this regard are contained in paragraphs 17, 18, 19  and  20  of
the Election Petition.  We have perused the said pleadings.

14.   The contention advanced  on  behalf  of  the  appellant  is  that  the
aforesaid Jagjit Singh Suchu, on the pleadings of  the  election  petitioner
himself, is admittedly a gazetted officer of the  Punjab  State  Electricity
Board and, therefore, under the provisions of Section  123(7)  of  the  R.P.
Act, prior to its  amendment  by  Act  41  of  2009  with  effect  from  1st
February, 2010, the assistance of Jagjit Singh Suchu, even if obtained,  did
not amount to corrupt practice inasmuch  as  the  said  person  was  not  in
service of the Government.

15.   The pleadings contained  in  paragraphs  17  to  20  of  the  Election
Petition makes it clear that it is alleged that  while  Jagjit  Singh  Suchu
was an officer of the Punjab State Electricity Board the appellant  had  got
him transferred to the post  of  Additional  Superintending  Engineer,  East
Division, Verka Circle, Amritsar under the State  of  Punjab  and  that  the
appellant had received assistance from him so as  to  further  his  election
prospects. The allegation in the Election  Petition  is  that  the  post  to
which Jagjit Singh Suchu was transferred from the Punjab  State  Electricity
Board was under the State Government and  the  assistance  received  by  the
returned candidate from the said person is while he  was  rendering  service
as Additional Superintending Engineer, namely, while he was  performing  the
duties in the State Government. If that be  so,  the  aforesaid  issue  also
will have to go for a full trial as ordered by the High  Court.  The  appeal
to the aforesaid extent will, therefore, have to be dismissed.

16.   Insofar  as  the  third  allegation  of  the  election  petitioner  is
concerned, we are of the view that it would not be necessary for us to  deal
with the said question.  The said allegation pertains to  the  action  taken
by the Returning Officer on the complaint filed by the  election  petitioner
with regard to counting of votes.  The  election  took  place  in  the  year
2009. The life of the House for which  the  election  took  place  has  long
expired. The third allegation is not one with regard to  commission  of  any
corrupt practice. Hence  by  efflux  of  time  the  said  issue  has  become
academic rendering it unnecessary for us to enter  into  any  discussion  on
the said question.

17.   Consequently and in the light of  the  above,  the  appeal  is  partly
allowed to the extent indicated above. The trial of  the  election  petition
on the issues/allegations that survive in terms of the  present  order  will
have to recommence. We order accordingly.


                                                          .......………………………J.
                                          [RANJAN GOGOI]


                                                             …………..…………………J.
                                     [ABHAY MANOHAR SAPRE]


NEW DELHI,

OCTOBER 26, 2016.



-----------------------
[1]     1986 (Supp) SCC 315
[2]     (1996) 1 SCC 399

[3]     (2007) 3 SCC 617

“caveatable interest”.= a person establishing prima facie interest in the estate of the testator should be permitted to maintain a caveat and contest a claim for probate. -Caveat. Any person intending to oppose the issuing of a grant of probate or letters of administration must either personally or by his attorney file a caveat in the Registry in Form No.12.= whether the caveator has a caveatable interest - The preliminary issue does not relate to the validity or legality of the Will sought to be probated but only to the issue whether the caveator has an interest for which he can maintain the caveat.- “the Court of Probate is only concerned with the question as to whether the document put forward as the last will and testament of a deceased person was duly executed and attested in accordance with law and whether at the time of such execution the testator had sound disposing mind. The question whether a particular bequest is good or bad is not within the purview of the Probate Court.”- although the caveator Yasheel Jain did not file the original Will, the Division Bench has noted that he has filed a photocopy of the prior Will allegedly executed by the testator and has also produced the registered envelope through which such copy was sent to him by the testator along with the forwarding letter written by him. Upon such materials, the Division Bench recorded its prima facie satisfaction that the caveat should not be discharged. - whether Malati is really a lawful widow of the testator or not cannot be conclusively adjudicated in the probate proceedings and therefore, only a prima facie view was possible to decide whether her caveat should be discharged or not. We find ourselves in agreement with the views taken by the High Court in the impugned judgments. The appeals are, therefore, dismissed but with no order as to costs. 2016 Oct. http://judis.nic.in/supremecourt/imgst.aspx?filename=44263

                                                                  REPORTABLE

                        IN THE SUPREME COURT OF INDIA

                        CIVIL APPELLATE JURISDICTION

                         CIVIL APPEAL NO.473 of 2009


Saroj Agarwalla (Dead) Thr. LR
Abhishek Agrawalla                                 …..Appellant

      Versus

Yasheel Jain                                       …..Respondent

                                   W I T H

                         CIVIL APPEAL NO.474 OF 2009


                               J U D G M E N T


SHIVA KIRTI SINGH, J.

Both the appeals arise out of same proceedings initiated  by  the  appellant
for grant of probate on the basis of a Will claimed to be the last Will  and
testament  of  appellant’s  brother  Jagdish  Prasad  Tulshan.   Appellant’s
prayer to reject the caveats of respondents in  the  above  proceedings  was
turned down by a Division Bench  of  High  Court  at  Calcutta  by  impugned
orders, both dated 04.05.2007.   Both  the  appeals,  therefore,  have  been
heard together and shall be governed by this common judgment.

The appellant Saroj Agarwalla is the propounder of a Will, alleged  to  have
been executed by one Jagdish Prasad Tulshan.  She  claims  to  be  the  only
surviving sister of the testator at the time of his death.  She  prayed  for
grant of the Probate  of  the  Will  allegedly  executed  by  Jagdish.   The
respondent in the first appeal, i.e., C.A.No.473  of  2009  -  Yasheel  Jain
lodged a caveat claiming to be the son  of  a  pre-deceased  sister  of  the
testator and thus having interest in the estate of the deceased.  His  claim
is founded on two grounds, firstly as a nephew of the testator and  secondly
as the sole beneficiary under an alleged  prior  Will  of  the  testator  in
respect of the same estate.
A learned Single Judge considered the objection raised by the propounder  to
the caveat filed by Yasheel Jain and rejected  the  objection.   The  Single
Judge was of the view that the  provision  creating  the  right  to  file  a
caveat could be availed by a person who is not a  rank  outsider  and  could
claim to be an heir after the propounder was no longer alive.  In that  view
of the matter it was held that the caveat filed  by  Yasheel  could  not  be
discharged.  Since the Single Judge did not discuss  the  claim  of  Yasheel
based on an  earlier  Will,  Yasheel  filed  a  cross-objection  before  the
Division Bench.  The appeal and the cross  objection  were  heard  together.
The Division Bench dismissed the appeal of the  appellant  and  allowed  the
cross-objection by recording its prima facie  satisfaction  about  existence
of an earlier Will creating caveatable interest in favour of  Yasheel.   The
Division Bench did not approve the view of the  learned  Single  Judge  that
Yasheel had a caveatable interest  as  an  heir  of  the  testator  but  the
conclusion of the learned Single Judge was approved,  albeit  for  different
reasons as noted above.
In the connected civil appeal the prayer  of  the  appellant  for  grant  of
probate of the afore-discussed Will of Jagdish Prasad  Tulshan  was  opposed
by the respondent Malati Tulshan.  She claimed to be the second wife of  the
testator married on 28.02.1986 and lodged a separate caveat on  that  basis.
The propounder later filed an application for discharge of the  said  caveat
on the ground that Malati was never married to the testator and,  therefore,
had no caveatable interest in the matter.
The learned Single Judge rejected  the  application  for  discharge  of  the
caveat on the ground that  the  Will  propounded  by  the  appellant  itself
conferred  some  benefits  upon  Malati  and  therefore  she  had   acquired
caveatable interest.  Single Judge also relied upon Rule 9 of  Chapter  XXXV
of the Original Side Rules (hereinafter  referred  to  as  ‘the  Rules’)  of
Calcutta High Court to hold that in case any benefit  is  conferred  upon  a
person by virtue of the alleged Will, the said rule  provided  for  citation
and was attracted.  The Division Bench did not  agree  with  the  reasonings
given by the learned Single  Judge  and  held  that  mere  receipt  of  some
benefits under the Will cannot confer  a  caveatable  interest  in  a  third
party unless he claims interest in the  estate  of  the  deceased  otherwise
than by way of Will sought to be  probated.   But  the  conclusions  of  the
Single Judge were upheld on the basis of claim of Malati that she was  widow
of the testator.  The Division Bench came to hold  that  the  issue  whether
Malati  is  really  a  lawful  widow  of  the  testator  or  not  cannot  be
conclusively decided  in  the  probate  proceedings  but  once  prima  facie
materials support her claim, the application  filed  for  discharge  of  her
caveat deserves dismissal.  This view is founded on the reason furnished  by
Division Bench by pointing out that a judgment in  the  probate  proceedings
is a judgment in rem and,  therefore,  a  person  establishing  prima  facie
interest in the estate of the testator should be  permitted  to  maintain  a
caveat and contest a claim for probate.  At this stage, it is not  necessary
to establish caveatable interest by conclusive proof.   The  Division  Bench
finally made it clear that all its  observations  were  tentative  and  such
observations will not be binding upon the parties or upon  any  other  court
if the status of Malati is questioned in any proceedings.
On behalf of appellant, claim of Yasheel that he has a  caveatable  interest
on the basis of a  prior  Will  was  seriously  disputed  and  contested  by
learned senior advocate  Mr.  Jaideep  Gupta.   He  submitted  that  Yasheel
admittedly does not have  the  original  Will  with  him  as  noted  by  the
Division Bench itself and, therefore, once it has been held that he  has  no
caveatable interest as a nephew of the testator being son of a  pre-deceased
sister, the Division Bench erred in holding  that  he  has  an  interest  to
maintain his caveat on the basis of an alleged prior  Will  in  his  favour.
So far as interest of Malati is  concerned,  the  submission  on  behalf  of
appellant is that she has made conflicting claims, one, as a  widow  of  the
testator and the other based upon benefits  under  the  Will  sought  to  be
probated.  Since the recitals in the Will described Malati only  as  a  maid
servant, according to appellant she could not have claimed to be a widow  of
the testator.
The preliminary issue that has arisen in the probate  case  which  is  still
pending, relates to  “caveatable  interest”.   Chapter  XXXV  of  the  Rules
incorporate provisions relating to testamentary and intestate  jurisdiction.
Rule 1 defines  ‘non-contentious  business’  to  include  the   business  of
obtaining probate and letters of administration (with or  without  the  will
annexed, and  whether  general,  special  or  limited)  where  there  is  no
contention as to the right thereto, as also in contentious cases  where  the
contest is terminated and also includes  the  business  of  lodging  caveats
against the grant of probate or letters of  administration.   Rules  24,  28
and 30  are  relevant  to  the  issues  at  hand  and  are  hence  extracted
hereinbelow :

“24. Caveat. Any person intending to  oppose  the  issuing  of  a  grant  of
probate or letters of  administration  must  either  personally  or  by  his
attorney file a caveat in the Registry in Form No.12.  Notice of the  filing
of the caveat shall be given by the  Registrar  to  the  petitioner  or  his
attorney. (Form No.13).

… … … … …

28. Procedure on affidavit being filed.  Upon the affidavit  in  support  of
the caveat being filed (notice whereof shall immediately  be  given  by  the
caveator to the petitioner), the proceedings shall,  by  order  of  a  Judge
upon application by summons be numbered as a suit in  which  the  petitioner
for probate or letters of administration shall be  the  plaintiff,  and  the
caveator shall be the defendant, the petition  for  probate  or  letters  of
administration being registered as and deemed a  plaint  filed  against  the
caveator, and the affidavit filed by  the  caveator  being  treated  as  his
written statement in the suit.  The procedure in such suit shall, as  nearly
as may be, be according to the provisions of  the  Code  (Forms  Nos.14  and
15).

… … … … …

30. Trial of Preliminary issue. The Court may, on  the  application  of  the
petitioner by summons to the caveator before making the order  mentioned  in
rule 28, direct the trial  of  an  issue  as  to  the  caveator’s  interest.
Where, upon the trial of such issue, it appears that  the  caveator  has  no
interest, the Court shall order the caveat to be discharged, and  may  order
the issue of probate or letters of administration, as the case may be.”

A careful reading of Rules 28 and 30 makes it abundantly clear  that  before
the proceedings are numbered as a suit by orders of a Judge for being  tried
as a suit as per provisions of the Code of Civil Procedure (for short,  ‘the
Code’), the Court may take up as a preliminary issue, whether  the  caveator
has a caveatable interest, if such an application is filed before the  Court
by the petitioner.  Clearly the preliminary issues are  triable  before  the
proceedings are treated as a full-fledged suit  under  order  of  the  Judge
concerned.  Whereas suit is required to be tried as per  provisions  of  the
Code, the procedure for trial of preliminary issue  has  been  left  to  the
discretion of the court.  Rule 30 does not require the  court  to  come  out
with specific findings in respect of preliminary issue because the  language
used in Rule 30 requires the court  to  discharge  the  caveat  where,  upon
trial of  such  issue,  “it  appears  that  the  caveator  has  no  interest
........” (Emphasis supplied).  The preliminary issue  does  not  relate  to
the validity or legality of the Will sought to be probated but only  to  the
issue whether the caveator has an interest for which  he  can  maintain  the
caveat.
Learned counsel for both the parties have addressed us at some length as  to
the meaning of the words “caveatable interest”.  The  matter  is  no  longer
res integra in view of a detailed discussion of this term  in  the  case  of
Krishna Kumar Birla v. Rajendra Singh Lodha[1].   Paragraphs  59  to  86  of
this judgment refer to large number of authorities of this Court as well  as
various High Courts.  The conclusions flowing from that  judgment  including
the proposition of law in paragraph 86  clearly  support  the  case  of  the
respondents in both the appeals that they have a caveatable  interest.   The
test which may be applied in the present case is : Does the claim  of  grant
of probate prejudice the respondent’s right because it  defeats  some  other
line of succession in terms whereof the respondent as  a  caveator  asserted
his/her right?  Since the answer, in the facts of the case would be  in  the
affirmative, we are in agreement with the view taken by the  Division  Bench
that respondents have a caveatable interest.
A query arises as to why the  Division  Bench  has  recorded  its  views  as
“prima facie”.  The answer has been provided  by  learned  counsel  for  the
respondents by placing reliance upon paragraph 2 of  the  judgment  of  this
Court in the case of Ishwardeo Narain Singh v. Kamta  Devi[2].   This  Court
pointed out that “the Court of Probate is only concerned with  the  question
as to whether the document put forward as the last will and testament  of  a
deceased person was duly executed and attested in accordance  with  law  and
whether at the time of such  execution  the  testator  had  sound  disposing
mind.  The question whether a particular bequest  is  good  or  bad  is  not
within the purview of the Probate Court.”
Since we have noted the main submission on behalf of the appellant  earlier,
it is deemed proper to point out that although  the  caveator  Yasheel  Jain
did not file the original Will, the Division Bench has  noted  that  he  has
filed a photocopy of the prior Will allegedly executed by the  testator  and
has also produced the registered envelope through which such copy  was  sent
to him by the testator along with the  forwarding  letter  written  by  him.
Upon  such  materials,  the  Division  Bench  recorded   its   prima   facie
satisfaction that the caveat should not  be  discharged.   In  the  case  of
caveat by respondent Malati, the Division Bench noted the citations  in  the
Will propounded by the appellant showing Malati to be only  a  maid  servant
but on the basis of totality of facts and circumstances it rightly  came  to
the conclusion that a person by merely making a contrary  statement  in  the
Will cannot change a real relationship if it actually existed and  hence  at
least arguable case in favour of claim of Malati  as  regards  her  relation
with the testator  has  been  established  and  hence  she  deserves  to  be
permitted to contest the probate proceeding.  The Court, at  the  same  time
made it clear that whether Malati is really a lawful widow of  the  testator
or not cannot be conclusively adjudicated in  the  probate  proceedings  and
therefore, only a prima facie  view  was  possible  to  decide  whether  her
caveat should be discharged or not.

We find ourselves in agreement with the views taken by  the  High  Court  in
the impugned judgments.  The appeals are, therefore, dismissed but  with  no
order as to costs.

                       ……………………………………..J.
                       [DIPAK MISRA]


.…………………………………….J.
                             [SHIVA KIRTI SINGH]


New Delhi.
October 24, 2016

-----------------------
[1]
      [2]               (2008) 4 SCC 300
[3]
      [4]               AIR 1954 SC 280

-----------------------
10

whether Rent Act would apply even to the pending suits or it will be enforced only from the date when notification covering the area in-question is issued and, therefore, will have no effect on the suits which are already pending before the civil courts? = 2016 Oct. http://courtnic.nic.in/supremecourt/qrydisp.asp

1
REPORTABLE IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 8194 OF 2016
RAJENDER BANSAL & ORS. .....APPELLANT(S)
VERSUS
BHURU (D) THR. LRS. & ORS. .....RESPONDENT(S)
J U D G M E N T A.K. SIKRI, J.
The appellants in this appeal are the landlords who had filed suit for eviction of the respondents herein, their tenants. Suit was filed in the Civil Court. The premises in-question were outside the ambit of rent legislation. It is because of this reason that civil suit for possession/ejectment was filed. However, during the pendency of the suit and before it could be finally decided, the area in question was brought within the sweep of rent legislations by requisite notifications.
2
The effect of such coverage was to give protective umbrella to the tenants. As a fortiorari, the landlord can now evict the tenant only by taking recourse to the rent legislation, that too, by filing the petition for eviction under the Rent Act before the Rent Controller/Tribunal constituted under the said Acts. Civil Court ceases to have jurisdiction over the matter insofar as eviction/ejectment of tenant is concerned. In this backdrop, the question that has arisen for consideration is as to whether the Civil Court would cease to have jurisdiction to try the suit of eviction if the suit property came under notified area during pendency of the suit? To put it differently, the question is : whether Rent Act would apply even to the pending suits or it will be enforced only from the date when notification covering the area in-question is issued and, therefore, will have no effect on the suits which are already pending before the civil courts? 2) In the instant case, the premises in-question were in rural area in respect of which suit was filed by the appellants on February 11, 2002. These premises consist of a shop (suit property) which is situate at Barkali Hodal Road, Punhana, Tehsil Punhana, District Gurgaon, Haryana. In the State of Haryana, Rent Act, known as Haryana Rent Urban (Control of Rent and Eviction) Act, 1973 (for short, 'Rent Act, 1973') is promulgated. Its sweep, however, is over the urban areas of Haryana, as defined in the Act. As pointed out above, at the relevant time suit 3 property was in rural area and, therefore, not covered by the said Rent Act, 1973. This suit was filed, after terminating the tenancy, by the landlord, namely, father of the appellants (predecessor of the appellants) under Section 106 of the Transfer of Property Act, 1882. The ground taken was that shop was let out to one Rehmat who inducted his son (respondent/defendant herein) as a sub-tenant without the consent of the landlords. Rehmat passed away in the year 1997 and had not even paid rent for 10 years. Therefore, possession of the respondent as sub-tenant was unauthorised and illegal. Notice of vacating the premises and handing over the possession was given on October 22, 2001 and as the respondent failed to vacate the premises, suit was filed on February 11, 2002. In the suit, brother of the respondent, Yasin, was also impleaded as a defendant, who did not appear and was proceeded ex-parte. Insofar as, Respondent No. 1 is concerned, though he had appeared but did not pay any rent for more than 14 years and, therefore, his defence was struck off by the civil court vide order dated May 26, 2008. 3) Five months thereafter, i.e., on October 29, 2008, notification was issued whereby the area where the suit premises situate was declared as urbanised area and, thus, was brought within the fold of Rent Act, 1973. The Trial Court, however, after striking off defence of Respondent No. 1 continued with the suit, recorded the evidence of the plaintiff and 4 ultimately decreed the suit vide judgment and decree dated December 12, 2008. Against this decree, respondent no. 1 filed Civil Appeal No. 11/9 in the Court of Additional District Judge, Nuh taking the plea that the Civil Judge ceases to have jurisdiction over the matter from October 29, 2008 when Municipal Committee, Punhana came into existence vide notification dated October 29, 2008 and the area in-question was included in municipal limits because of which Rent Act, 1973 became applicable to the suit premises. This contention found favour with the learned Additional District Judge who allowed the appeal vide judgment dated March 16, 2009. Aggrieved by that judgment, the appellants herein preferred second appeal under Section 100 CPC, being RSA No. 3963 of 2009 in the High Court of Punjab and Haryana, but unsuccessfully inasmuch as the High Court has dismissed the appeal vide judgment dated February 10, 2014. It is this judgment which is impugned in the present proceedings giving rise to the question of law that has been noticed in the earlier portion of this judgment. 4) Learned counsel for the appellants has argued that law applicable on the date of institution of the suit would govern the suit. On that basis, it is submitted that since on the date when the suits were filed by the appellants in these appeals, the suit properties were not covered by the Rent Act which legislation came into effect on a subsequent date, when the law applicable on the date of institution is to be applied, Civil Court 5 would have the jurisdiction in the matter in the vein and taking this line of argument further, it was submitted that the Notification which is issued in respect of an area in-question, notifying the same to be municipality, is to take effect only from the date of such a Notification and such an Order/Notification cannot be given retrospective operation. In support of the aforesaid submission, counsel for the appellants relied upon the following judgments: (i) Ramesh Chandra Vs. III Addl. Distt. Judge & Ors.1 (ii) Mansoor Khan Vs. Moti Ram & Anr.2 (iii) Nand Kishore Marwah & Ors. Vs. Samundri Devi3 ; AND (iv) Harijeet Kaur Vs. Sarabjit Kaur4 [P&H High Court] 5) The argument canvassed by the learned counsel for the respondents, on the other hand, was that having regard to the nature and scheme of the two legislations in-question, viz., Rent Act, 1973 and Haryana Municipality Act, one has to keep in mind that the scheme contemplates two types of cases: (i) where the premises are covered by the Rent Act, 1973 but exemption in terms of Section 1(3) of the Rent Act is provided for a period of 10 years to certain kinds of premises. It was argued that in respect of such premises which are enjoying protection and during that period suit is filed in the Civil Court, the rights of the parties to the 1 (1992) 1 SCC 751 2 (2002) 5 SCC 462 3 (1987) 4 SCC 382 4 2013 (1) RCR (Rent) 74 6 suit would be seen on the date on which the suit was filed and even if the period of exemption expires during the pendency of the suit, Civil Court would continue to have the jurisdiction to try the said suit, and (ii) Other cases were those where the particular premises are notified as coming within the municipal area under the provisions of Haryana Municipal Act, which had the effect of covering these premises under the Rent Act as well. It was argued that in such cases the moment such an Order/Notification is passed and the premises get covered by the Rent Act, from the date of such a Notification, Civil Court will cease to have jurisdiction and it will apply even to the pending suits by relegating the parties to the Court of Rent Controller/Tribunal created under the Rent Act. The learned counsel further argued that the aforesaid distinction was discerned by the learned High Court in the impugned judgment after scanning through the various judgments of the High Court as well as this Court. It was argued that such a distinction can be found after reading those judgments and the attention of this Court was drawn to the following judgments, in particular: (i) Mani Subrat Jain Vs. Raja Ram Vohra5 (ii) Lakshmi Narayan Guin and Others Vs. Niranjan Modak6 6) In order to find out the veracity of the aforesaid arguments and position 5 (1980) 1 SCC 1 6 (1985) 1 SCC 270 7 taken by the learned counsel on either side and to give answer to the question that has arisen for determination, it becomes necessary to traverse through the judgments cited inasmuch as reading thereof would help in deciding as to on which side the scales are tilted. We would be going through these judgments in chronological order. In that order, first case that needs our attention is Mani Subrat Jain5 . In this case, the landlord had filed a suit for ejectment in Civil Court in the absence of any rent legislation at the relevant time when the suit was filed. The compromise decree was passed against the tenant. After the said decree was passed, East Punjab Rent Restriction Act, 1949 was extended to Chandigarh vide Notification issued on November 04, 1972. House in dispute was situate in Chandigarh. By that time, the Act was extended to Chandigarh, the tenant had already suffered a decree but he was still in possession of the tenanted premises when the execution petition was filed by the landlord seeking execution of the said decree. The tenant resisted the same claiming the protection of Section 13(1) of East Punjab Rent Restriction Act, 1949 which provided that a tenant could not be evicted in execution of a decree passed before or after the commencement of the said Act or otherwise and whether before or after the termination of the tenancy, except in accordance with the said or in pursuance of an Order under Section 13 of the Rent Restriction Act. This Court held that even an ex-tenant will continue to be a tenant. A 8 reading of the judgment, however, would show that the Court went by the definition of “tenant” contained in Section 2(i) of the Rent Restriction Act which included an ex-tenant also and more importantly the provisions of Section 13 of the Rent Restriction Act which specifically provided that a tenant will not be evicted even in execution of a decree passed either before or after the commencement of the Rent Restriction Act, except in accordance with the provisions of Section 13 or in pursuance of the order passed under Section 13 of the Rent Restriction Act. 7) In Lakshmi Narayan Guin6 , ejectment decree was passed by the Civil Court against which appeal was pending. During the pendency of the appeal, Rent Act was made applicable to the area where the premises in-question situate. This Court took the view that since appeal was in continuation of the suit having regard to the fact that premises were now covered by the West Bengal Premises Tenancy Act, protection of the said Act would become available to the tenant having regard to the provisions of Section 13(1) of that Act which was of the same nature, as noticed in Mani Subrat Jain5 case. 8) Judgment in Atma Ram Mittal Vs. Ishwar Singh Punia7 , related to the situation where the premises in-question though covered by the Rent Control Act, were exempted from the provisions of the said Act for a particular period. That case arose under the same Haryana Act of 1973 7 (1988) 4 SCC 284 9 which we are dealing with. It may be pointed out, at this stage, that Section 1(3) of the Act, 1973 provides the exemption in the following manner: “Nothing in this Act shall apply to any building the construction of which is completed on or after the commencement of this Act, for a period of ten years from the date of its completion”. 9) Though, the area where the building is situate comes under the protected umbrella of the Act, 1973, still for a period of 10 years the said protection is not available to the tenant in respect of a newly constructed building, which is completed on or after the commencement of the Act. In such a case the tenancy in respect of that particular building shall be governed by contractual terms and under the provisions of the Transfer of Property Act. On the termination of tenancy in any of the manners stipulated in the Transfer of Property Act, the landlord is entitled to file suit for possession in the Civil Court. In this backdrop, in Atma Ram Mittal8 , this Court was concerned with a situation where such a suit was filed by the landlord in respect of newly constructed premises during the period of exemption by virtue of Section 1(3) of the Rent Act of 1973. However, when the suit was still pending period of 10 years expired. The Court held that on this basis, the tenant argued that since the exemption period had expired, the effect thereof was that the Rent Act had also become applicable to the building in-question and, therefore, Civil Court ceased to have jurisdiction to try even the pending suit. This 10 contention was repelled by the Court holding that the Civil Court will continue to have the jurisdiction. For coming to this conclusion, the Court relied upon its earlier judgments in Vineet Kumar Vs. Mangal Sain Wadhera8 and Ram Saroop Rai Vs. Smt. Lilawati9 . 10) After referring to the aforesaid two judgments, the Court gave the following reasons in support of its conclusion: “It is well-settled that no man should suffer because of the fault of the court or delay in the procedure. Broom has stated the maxim “actus curiae neminem gravabit”—an act of court shallprejudice no man. Therefore, having regard to the time normally consumed for adjudication, the ten years’ exemption or holiday from the application of the Rent Act would become illusory, if the suit has to be filed within that time and be disposed of finally. It is common knowledge that unless a suit is instituted soon after the date of letting it would never be disposed of within ten years and even then within that time it may not be disposed of. That will make the ten years holiday from the Rent Act illusory and provide no incentive to the landlords to build new houses to solve problem of shortages of houses. The purpose of legislation would thus be defeated. Purposive interpretation in a social amelioration legislation is an imperative irrespective of anything else. 9. Judicial time and energy is more often than not consumed in finding what is the intention of Parliament or in other words, the will of the people. Blackstone tells us that the fairest and most rational method to interpret the will of the legislator is by exploring his intentions at the time when the law was made, by signs most natural and probable. And these signs are either the words, the context, the subject-matter, the effects and consequence, or the spirit and reason of the law (emphasis by the court) See Commentaries on the Laws of England (facsimile of 1st Edn. of 1765, University of Chicago Press, 1979, Vol. 1, p. 59). Mukherjea, J. as the learned Chief Justice then was, in Poppatlal Shah v. State of Madras (1953 SCR 677) said that each word, phrase or sentence was to be 8 (1984) 3 SCC 352 9 (1980) 3 SCC 452 11 construed in the light of purpose of the Act itself. But words must be construed with imagination of purpose behind them said Judge Learned Hand, a long time ago. It appears, therefore, that though we are concerned with seeking of intention, we are rather looking to the meaning of the words that the legislature has used and the true meaning of what words as was said by Lord Reid in Black- Clawson International Ltd. v. Papierwerke Waldhof -Aschaffenburg A.G. We are clearly of the opinion that having regard to the language we must find the reason and the spirit of the law. If the immunity from the operation of the Rent Act is made and depended upon that ultimate disposal of the case within the period of exemption of ten years which is in reality an impossibility, then there would be empty reasons. In our opinion, bearing in mind the well-settled principle that the rights of the parties crystallise to ( sic) on the date of the institution of the suit as enunciated by this Court in Om Prakash Gupta v. Digvijendrapal Gupta, the meaningful construction must be that the exemption would apply for a period of ten years and will continue to be available until suit is disposed of or adjudicated. Such suit or proceeding must be instituted within the stipulated period of ten years. Once rights crystallise the adjudication must be in accordance with law.” (Emphasis added) 11) Judgment in Ramesh Chandra1 , falls in the category of Atma Ram Mittal8 case. In that case also Court was dealing with the case of newly constructed property exempted from operation of U.P. Rent Act and the decision was on the same lines as noted in Atma Ram Mittal8 . 12) At this juncture, we would like to discuss another judgment of this Court rendered by a three Judge Bench in the case of Shri Kishan alias Krishna Kumar & Ors. v. Manoj Kumar & Ors.10 At the outset, it needs to be emphasised that it was also a case under the same very enactment of Haryana, i.e. Rent Act, 1973, and this case also dealt with 10 (1998) 2 SCC 710 12 a newly constructed property which was exempted from operation of the said Act for a period of 10 years and the suit was filed by the landlord during the exempted period. In this case also, the Court held that the law applicable on the date of the institution of the suit would govern and as at that time the protection of the Rent Control Act was not available and thus Civil Court had the jurisdiction, the Civil Court will continue to have the jurisdiction even after the expiry of the said period of 10 years. While coming to this conclusion, the Court had relied upon Ramesh Chandra1 , Atma Ram Mittal8 and other such cases. The learned counsel appearing for the appellants heavily relied upon the reasons given by the Court in taking the aforesaid view and on that basis it was argued that the principle laid down should be made applicable even in those cases where the protection of the Rent Control Act is extended in respect of the area in question after the filing of the suit, in an attempt to impress upon this Court to take the view that even in such cases the Civil Court should not be deprived of its jurisdiction in respect of pending cases, when on the date of institution of the suit the Civil Court had the requisite jurisdiction to entertain the same. For this purpose, the learned counsel referred to the arguments of the tenant in that case recorded in paragraph 5 thereof with the submission that this very argument was specifically rejected. Paragraph 5 thereof reads as under: “5. It is argued that the Act is intended to be beneficial to the tenants and special protection is afforded to them. According to the learned counsel for the purpose of the Act 13 the expression “tenant” includes a tenant continuing in possession after the termination of his tenancy and at the expiry of period of ten years as set out in Section 1(3) of the Act, the “building” comes within the fold of the Act and the tenant in occupation will automatically have the protection afforded by the Act. Emphasis is laid on the wordings of Section 13(1) which prevents eviction of a tenant in possession except in accordance with the provisions of the section. According to the learned counsel the moment the Act becomes applicable to the building in question, the suit in relation thereto has to abate and the remedy of the landlord is to approach the Controller with an application for eviction on any of the grounds set out in the section. According to him even if a decree is passed by the civil court it will not be enforceable and the tenant cannot be evicted from the building pursuant to the decree as the bar in Section 13(1) is absolute. In support of this contention, learned counsel has placed reliance on some of the rulings of this Court which will be adverted to a little later.” 13) In order to appreciate this argument, we will have to notice the contention which was advanced by the counsel for the landlord in the said case as the judgment is ultimately passed on the acceptance of those submissions. These are contained in paragraph 6 and we reproduce below that paragraph as well: “6. On the other hand, learned counsel for the respondents has placed before us the following proposition: (a) On the date when the suit was instituted it was to enforce a legal right which had already accrued to the plaintiff and stood crystallized under the law applicable to the building at that time. In the absence of any specific provision in the Act to deprive the Court of its jurisdiction to determine the issue pertaining to that right, it cannot be contended that by efflux of ten-year period mentioned in Section 1(3) the Court would lose its jurisdiction. (b) The maxim ubi jus, ibi remedium can be excluded only by a substantive legislation expressly extinguishing the 14 said right. The Act does not contain any such provision to bring to an end the right of the plaintiff which had already accrued and put in issue in the suit. A judicial vacuum cannot be created by preventing the Court from deciding an issue which has arisen before it unless the right which had accrued in favour of one party is taken away by the legislation. (c) The principle of the maxim actus curiae neminem gravabit would apply and because the Court had taken a long time to dispose of the matter before it, the party which had approached it cannot be made to suffer. (d) The provisions of Section 1(3) and Section 13(1) should be so construed as to advance the legislative intention and if the contention of the appellants is accepted it would defeat the purpose of the moratorium and make it futile. In support of the above contentions learned counsel has referred to several rulings of this Court and submitted that the consistent view taken by this Court is in his favour.” 14) Arguments of both sides have been dealt with by the Court, thereafter, in the following manner: “7. Before referring to the decisions cited before us it is necessary to advert to the provisions of the Act. We have already quoted Sections 1(3) and 13(1). Apart from the legislative exemption contained in Section 1(3) there is a provision in Section 3 of the Act enabling the State Government to exclude any building or any class of buildings from the purview of the Act. Sections 4 to 8 deal with fair rent, deposit of rent etc. Sections 9 and 10 refer to the amenities to be provided to the tenant. Section 11 prevents conversion of a residential building into a non-residential building except with the permission in writing of the Controller. Section 12 deals with the situation where a landlord fails to make the necessary repairs. Section 13 sets out the grounds on which eviction can be sought by a landlord. Section 13-A prescribes special procedure for disposal of the application by a landlord in certain cases such as members of the Armed Forces, government employees etc. Section 14 prevents reopening of decisions which have become final. Section 15 prescribes appellate and revisional authorities. Section 15 16 provides that an authority exercising powers under the Act shall have the same powers of summoning and enforcing the attendance of witnesses and compelling the production of evidence as are vested in a court under the Civil Procedure Code. Sections 17 to 23 deal with order as to costs, execution, power to transfer proceedings, penalties etc. Section 24 repeals the East Punjab Urban Rent Restriction Act, 1949 (East Punjab Act 3 of 1949). 8. There is no provision in the Act taking away the jurisdiction of a civil court to dispose of a suit validly instituted. There is also no provision preventing the execution of a decree passed in such a suit. Section 13(1) does not expressly refer to execution of a decree for possession. On a reading of all the provisions of the Act, it is evident that it has not prevented a civil court from adjudicating the rights accrued and the liabilities incurred prior to the date on which the Act became applicable to the building in question. If the legislature had intended to take away the jurisdiction of the civil court to decide a suit which had been validly instituted, it would have been worded differently. The purpose for which the exemption is granted statutorily under Section 1(3) is to encourage construction of new buildings. That purpose would be defeated if the owner of the building is deprived of his right to get possession of the building unless he gets a decree within a period of ten years from the date of its completion. In fact the logical consequence of the argument of the appellants if accepted would be that even if a decree is obtained by the landlord within ten years from its completion it cannot be executed after the expiry of the said period of ten years as such execution would not be in accordance with the provisions of the Act. It is common knowledge that a proceeding in a civil court for recovery of immovable property could be dragged on by the defendant easily for a period of ten years or more and thereby any tenant whose tenancy had been terminated validly before the suit would successfully make the proceeding infructuous by prolonging the litigation. The argument of the appellants cannot be accepted as otherwise the purpose of exemption would get defeated.” (emphasis supplied) 15) Thereafter, the Court has referred to various earlier judgments and all these judgments are concerned with the provision of exemption 16 contained in such Rent Acts. Therefore, all these judgments are authority on the issue that in those cases where exemption from operation of Rent Control Acts is provided for a particular period and suit for eviction is filed during the said period of exemption, the Civil Court shall continue to have the jurisdiction to adjudicate the rights of the parties under the said suit even where the period of exemption has expired during the pendency of the suit. The reason was that as on the date of the institution of the suit legal right in favour of the landlord had already accrued and it stood crystallised under the law applicable to the building at that time. The Court was also influenced by the consideration that the maxim ubi jus, ibi remedium can be excluded only by substantial legislation expressing extinguishing the said right. If the delay in disposal of the said suit had occurred, that was because of the Court where the suit kept pending and the principle of the maxim actus curiae neminem gravabit shall apply. In this context, the Court interpreted the provisions of Section 1(3) and Section 13(1) of the Act pointing out the purpose for which the Legislature had exempted the newly constructed buildings from the operation of the Rent Act. For this, the object of such an exemption from the applicability of the Act was specifically taken note of by extracting a passage from Ram Saroop Rai v. Lilavati11, as can be seen from paragraph 10 of the judgment: “10. In Ram Saroop Rai v. Lilavati while dealing with a 11 (1980) 3 SCC 452 17 case under the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972, Justice Krishna Iyer referred to the object of exemption from the applicability of the Act in the following words: (SCC p. 453, para 1) “… Chronic scarcity of accommodation in almost every part of the country has made ‘eviction’ litigation explosively considerable, and the strict protection against ejectment, save upon restricted grounds, has become the policy of the State. Rent control legislation to give effect to this policy exists everywhere, and we are concerned with one such in the State of U.P. (U.P. Act 13 of 1972). The legislature found that rent control law has a chilling effect on new building construction, and so, to encourage more building operations, amended the statute to release, from the shackles of legislative restriction, ‘new constructions’ for a period of ten years. So much so, a landlord who has let out his new building could recover possession without impediment if he instituted such proceeding within ten years of completion.” The aforesaid observations would apply in the present case too.” 16) From the aforesaid discussion in Atma Ram Mittal, Vineet Kumar, Ram Saroop Rai, Ramesh Chandra and Shri Kishan alias Krishna Kumar cases, the apparent principles which can be culled out, forming the ratio decidendi of those cases, are as under: i) Rights of the parties stand crystallised on the date of the institution of the suit and, therefore, the law applicable on the date of filing of the suit will continue to apply until suit is disposed of or adjudicated. ii) If during the pendency of the suit, Rent Act becomes applicable to the premises in question, that would be of no consequence and it would not take away the jurisdiction of civil court to dispose of a suit validly 18 instituted. iii) In order to oust the jurisdiction of civil court, there must be a specific provision in the Act taking away the jurisdiction of the civil court in respect of those cases also which were validly instituted before the date when protection of Rent Act became available in respect of the said area/premises/tenancy. iv) In case aforesaid position is not accepted and the protection of the Rent Act is extended even in respect of suit validly instituted prior in point of time when there was no such protection under the Act, it will have the consequence of making the decree, that is obtained prior to the Rent Act becoming applicable to the said area/premises, inexecutable after the application of these Rent Act in respect of such premises. This would not be in consonance with the legislative intent. 17) In laying down the aforesaid dicta, the Court also took support of two well known maxims viz. (i) ubi jus ibi remedium which lays down the principle that where there is a right there is a remedy and it can be excluded only by substantial legislation expressly extinguishing the said right AND (ii) actus curiae neminem gravabit, which means that nobody should be allowed to suffer because of the act of the Court. Here the act attributed is delay in disposal of the case. Additionally, the Court took aid of purposive interpretation i.e. legislative intent in not making Rent Act 19 applicable to new constructions for a period of ten years. 18) What we notice is that in the impugned judgment, the High Court has divided the cases into two categories and restricted the law laid down in the aforesaid judgments only in respect of those category of cases where Rent Act exempts from its applicability newly constructed properties for a period of ten years. Second category of cases carved out covers those cases where the Rent Act was not applicable when the suit was filed but extended to the area/premises in question during the pendency of the suit. In respect of later category the High Court held that the dicta in the aforesaid judgments would not be applicable and the moment Rent Act is extended to such areas where the premises are situate, civil court shall cease to have jurisdiction to continue with the suits though instituted even at a point of time when Rent Act was not applicable. This distinction, according to us, is illusory. The principles of law laid down in the aforesaid judgment as culled out above would apply in equal force to second category of cases as well inasmuch as the basic principle which is laid down in the aforesaid judgments is that rights of the parties get crystallised on the date of the institution of the suit and the law applicable on the date of filing the suit would continue to govern such suit. 19) At the juncture, we take note of the law laid down in Mansoor Khan2 which is in tune with what we have stated above. That was a case which 20 arose out of Central Provinces and Berar Letting of Houses and Rent Control Order, 1949. Clause 13 thereof provided protection to the tenants against eviction and stipulated grounds which would entitle a landlord to seek eviction of the tenant by filing a petition before the Controller appointed under the said Act. This Order was applicable to certain areas but did not include city of Risod. The said area of Risod in the erstwhile province of C.P. and Berar was covered under the Order, 1949 by Notification dated October 09, 2010. However, much before this Notification, the landlord in that case had filed the suit for possession in the Civil Court after the lease had been determined. This Court held that Civil Court shall continue to have jurisdiction as Order, 1949 was not retrospective in operation and where the eviction suit had already been initiated and was pending on the date when order became applicable to the area in which the suit premises was situate, provisions of the order would not affect validity of previously instituted proceedings and the Court was competent to pass eviction decree under the Transfer of Property Act. 20) A significant question would be as to how we need to read judgments in Mani Subrat Jain and Laxmi Narayan Guin cases, the outcome whereof went in other direction. However, when we understand the ratio of the aforesaid two cases appropriately, we find no contradiction between these two cases and other line of cases like Atma Ram Mittal 21 etc. discussed above. Insofar as judgments in Mani Subrat Jain and Laxmi Narayan Guin are concerned, these were rendered keeping in view the definition of “tenant” appearing in the rent legislations therein, namely, East Punjab Rent Restriction Act and West Bengal Premises Tenancy Act. What was found that definition of tenant in those enactments included even an ex-tenant. This coupled with the fact that there was specific provision laying down that a tenant will not be evicted even in execution of a decree passed either before or after the commencement of the enactment, except in accordance with the provisions contained in the Rent Act, impelled the Court to take the view that the moment Rent Act became applicable to the area in question, the tenant or even ex-tenant stood protected and could be evicted only under the said Rent Acts. Therefore, the principles which we have culled out above in para 16 would be subject to one exception. In case definition of 'tenant' and provisions pertaining to eviction of tenants contained in Rent Acts cover even those cases where the tenancy has been terminated (or depending upon the provisions of the Rent Act, even when Civil Court has passed the decree) the protection provided under such provision would come to the rescue of the tenant even in respect of pending cases. It is because of the reason that such a Rent Act specifically provides for protection of this nature and bars the jurisdiction of civil court even in respect of pending cases. On the other hand, 22 where there is no such specific protection given under the provisions of the said Rent Act, the principle as laid down in Mansoor Khan2 will be applicable. 21) When we apply the principles laid down above to the instant case, we find that this case would fall in the category of Atma Ram Mittal and Mansoor Khan etc. as under the scheme of the Rent Act, no protection to the ex-tenants is provided and no provision is made excluding the jurisdiction of civil courts in respect of pending cases, expressly or impliedly. On the other hand, in the facts of the present case, it needs to be highlighted again that the respondents had not only sublet the premises but had not paid rent for a period of 14 years. His defence was struck off by the civil court and ultimately suit was even decreed. It is only during the pendency of the appeal that the notification was issued covering the area where suit premises are situate under the Rent Act. It will be travesty of justice if the appellants/landlords are deprived of the fruits of the said decree. 22) We are, thus, unable to accept the view taken by the High Court. Accordingly, this appeal is allowed and the judgment of the First Appellate Court as well as High Court is set aside. As the only contention which was taken by the respondents before the First Appellate Court, challenging the decree of the trial court, was that civil 23 court ceased to have jurisdiction, the said first appeal preferred by the respondents stands dismissed thereby restoring the decree passed by the trial court. There shall, however, be no order as to cost. .............................................J. (A.K. SIKRI) .............................................J. (N.V. RAMANA) NEW DELHI; OCTOBER 18, 2016. 24 ITEM NO.1A COURT NO.9 SECTION IV (FOR JUDGMENT) S U P R E M E C O U R T O F I N D I A RECORD OF PROCEEDINGS Civil Appeal No(s). 8194/2016 RAJENDER BANSAL & ORS. Appellant(s) VERSUS BHURU (D) THR. LRS. & ORS. Respondent(s) Date : 18/10/2016 This appeal was called on for pronouncment of judgment today. For Appellant(s) Mr. S.K. Katriar, Sr. Adv. Mr. J.S. Marashatta, Adv. Mrs. Santosh Singh,Adv. Mr. Praveen Swarup,Adv. For Respondent(s) Dr. Kailash Chand,Adv. Mr. Gagan Gupta,Adv. Hon'ble Mr. Justice A.K. Sikri pronounced the judgment of the Bench comprising His Lordship and Hon'ble Mr. Justice N.V. Ramana. The appeal is allowed in terms of the signed judgment. (Ashwani Thakur) (Mala Kumari Sharma) COURT MASTER COURT MASTER (Signed reportable judgment is placed on the file)