service matter - even the regularisation of services of part-time employees vide G.O.(Rt.) No.505 Finance (AA-2) Department dated 14.10.2009 and G.O.(2D) No.32 Finance (T.A. 2)Department dated 26.03.2010 was effectedby extending the benefit of G.O. dated 28.02.2006 only from the date of Government Orders and not from the date of completion of their ten years of service. The Division Bench also failed to take note that G.O.Ms.No. 22 P &AR Dept. dated 28.02.2006 is applicable only to full-time daily wage employees and who had completed ten years of continuous service as on 01.01.2006 and not to part-time employees.As per G.O.(Rt.) No.84 dated 18.06.2012, the respondent is entitled to the monetary benefits only from the date of issuance of Government Order regularizing his service that is 18.06.2012. The impugned order of the Division Bench affirming the order of the Single Judge granting benefits to the respondent from the date of completion of ten years of service is erroneous and the same is liable to be set aside. 19. In the result, the impugned order is set aside and this appeal is allowed. No costs.

|REPORTABLE       |

                          IN THE SUPREME COURT OF INDIA
                        CIVIL APPELLATE JURISDICTION

                       CIVIL APPEAL NO. 3770  OF 2017
                 [Arising out of SLP (C) No. 17702 of 2014]

SECRETARY TO GOVT. COMMERCIAL
TAXES AND REGISTRATION
DEPARTMENT, SECRETARIAT AND ANR.        ….   Appellants
                                              Versus

SINGAMUTHU                                   ….     Respondent

                               J U D G M E N T

R. BANUMATHI J.

Leave granted.

2.    This Civil Appeal arises out of the judgment  of  the  High  Court  of
Judicature at Madras dated 04.07.2012 dismissing the Writ Appeal No.1209  of
2012  thereby  affirming  the  order  of  the  learnedSingleJudge  directing
togrant regularization to the respondent from the date of completion of  ten
years of service with salary and other benefits.

3.    The respondent herein was appointed  as  a  part-time  Masalchithrough
Employment Exchange on 01.04.1989 and continued to work there and  as  part-
time Masalchi attended  the  menial  work  in  the  appellant-department  at
District Registrar Office, Trichy in the State of Tamil Nadu.The  respondent
completed ten years of service as  part-time  Masalchi  on  31.03.1999.   In
G.O. Ms. No.22 Personnel and Administrative Reforms  (F)  Department,  dated
28.02.2006, the State Government of Tamil Nadu directed  that  the  services
of  the  fulltime  daily  wages  employees   working   in   all   Government
Departments, who have rendered ten years of  service  as  on  01.01.2006  be
regularized by appointing them in the time scale pay of the  post  concerned
subject to their being otherwise qualified for the  post.In  furtherance  to
the  above  Government  Order,  G.O.  (D)  No.659   Commercial   Taxes   and
Registration (M2) Dept. dated 28.12.2006 was issued whereby  the  Government
directed to  fill  vacancies  in  various  categories  in  the  Registration
Department existing  against  the  Direct  Recruitment  through  Tamil  Nadu
Public Service Commission, Employment  Exchange, Commissioner  of  Technical
Education  and  on  Compassionate  Grounds,  etc.  various  categories  were
considered and,interalia, among them 308 posts of watchman were required  to
be filled.

4.    The respondent  herein  approached  the  High  Court  by  filing  W.P.
No.26702 of 2010 praying for regularization of his service on completion  of
ten years of service from the date of his appointment and to appoint him  as
Watchman in the  regular  time  scale.  Vide  order  dated  26.11.2010,  the
learned Single Judge directed  the  Inspector  General  of  Registration  to
extend  the  benefits  of  G.O.  Ms.  No.  22  dated  28.02.2006  and  grant
regularization to the respondent from the date of completion  of  ten  years
of service with salary and other benefits.

5.     Being  aggrieved,  the   appellant-department   filed   writ   appeal
contending that G.O.Ms. No.22 dated 28.02.2006 is  applicable  only  to  the
daily wage full-time employees and not applicable to the respondent  as  the
respondent was only a part-time Masalchi. During the pendency  of  the  Writ
Appeal vide proceedings  No.10425/A1/2012  dated  02.07.2012,  the  District
Registrar appointed the respondent and four others as a full-time  employees
in the post of Watchman by regularisingthem and the services  of  respondent
has been placed at Sub-Registrar, Uraiyur, Trichy.  The  Writ  Appeal  filed
by the Department was dismissed by the High Court  affirming  the  order  of
the  Single  Judge.Aggrieved,  the  appellants  have   filed   this   appeal
contending that the High Court has erred in directing regularization of  the
service of the respondent herein from the date of completion  of  ten  years
of his service with salary and other benefits.

6.    Mr. Subramanium Prasad, learned senior counsel for the appellants  has
assailed the impugned order by contending that there is no provision in  the
relevant  Rules  and  Government  Orders  to  regularise  the   service   of
temporarily appointed part-time Masalchis on  completion  of  ten  years  of
service or otherwise. With regard to G.O. Ms. No.22  dated  28.02.2006,  the
learned senior counsel Mr. Subramonium Prasad argued that  respondent  being
a part-time Masalchi who works only for two-three hours  per  day  does  not
qualify for the benefit, as the Government Order directed regularisation  of
services  of  full-time  daily  wage  employees  only.   The  counsel   also
contended that the High Court failed to note that many  full-time  Masalchis
serving in various departments of  the  State  Government  were  regularised
only as a one-time scheme to bring them under the time scale of  pay  andthe
regularisation scheme was operative  only  from  the  date  of  issuance  of
order.  The counsel further contended that the  High  Court  ought  to  have
taken  note  of  the  fact   that   if   the   regularisation   is   granted
retrospectively to the respondent, in the absence of any law, it  will  have
serious consequences in the administration of the  various  departments  and
huge financial loss will be caused to the State. The counsel brought to  our
notice that 72 persons out of 172 persons of the  appellant-department  have
already filed writ petitions before the High Court which are  still  pending
and if the impugned order is not set-aside,  they  will  also  approach  the
Court for  regularization  with  retrospective  effect  in  which  case  the
financial burden cast upon the appellant would run to crores of  rupees  per
annum and the same would adversely affect the State as well  as  the  public
exchequer. The counsel lastly contended that if the impugned  order  is  not
set aside, it would open flood gate of unwarranted litigations.

7.    Per contra, the learned counsel  for  the  respondent  contended  that
following G.O. Ms. No. 22 dated  28.02.2006,  the  High  Court  had  earlier
allowed claims of many similarly situated employees and  the  order  of  the
High Court was also confirmed by this Court.   The  counsel  thus  contended
that the High Court rightly directed the appellants to  extend  the  benefit
of G.O. Ms. No. 22 dated 28.02.2006 issued by Personnel  and  Administrative
Reforms Department, to the respondent,  retrospectively  from  the  date  of
completion of ten years  of  respondent’s  service  with  salary  and  other
benefits.  The counsel also contended that the  respondent  should  get  the
benefit of G.O. Ms. No. 505,  Finance  (AA-2)  Department  dated  14.10.2009
andthe respondent sought parity with those 57 part-time  employees,  working
as Masalchi in Treasury  Department,  whose  services  were  regularisedvide
G.O. Ms. No. 32, Finance (Ka. Ka 2) Department dated 26.03.2010.

8.    We have considered the submissions of the  learned  counsel  for  both
the parties and  also  perused  the  impugned  judgment  and  the  documents
available on record.

9.    Part-time or casual employment is meant to  serve  the  exigencies  of
administration.  It is a  settled  principle  of  law  that  continuance  in
service for long period on part-time or temporary basis confers no right  to
seek regularisation in service.  The person who is engaged on  temporary  or
casual basis  is  well  aware  of  the  nature  of  his  employment  and  he
consciouslyaccepted the same at the time of seeking employment.   Generally,
while directing that temporary or part-time appointments be  regularised  or
made permanent, the  courts  are  swayed  by  the  long  period  of  service
rendered by the employees.  However,  this  may  not  be  always  a  correct
approach to adopt especially when the scheme of  regularisation  is  missing
from the rule book and regularisation casts huge financial  implications  on
public exchequer.

10.   In the present  case,  it  is  available  on  record  that  the  State
Government vide G.O. Ms. No.22 dated 28.02.2006,  issued  by  the  Personnel
and Administrative Reforms Department, directed the services of  daily  wage
employees working in all Departments of Government, who  have  rendered  ten
years of service as on 01.01.2006 to be regularised by  appointing  them  in
the time scale of pay of the post concerned subject to they being  otherwise
qualified for the post. G.O.Ms.No.22 Personnel  and  Administrative  Reforms
dated 28.02.2006 reads as under:-

                                  “ABSTRACT
Public Services Employees  working  on  daily  wages-Bringing  into  regular
establishment on completion of ten years of service as on  01.01.2006-Orders
issued.

             PERSONNEL AND ADMINISTRATIVE REFORMS (F) DEPARTMENT

G.O. Ms. No.22                     Dated 28.02.2006

ORDER:

The Hon’ble Chief Minister had announced during the  Tamil  Nadu  Government
Officials Union and Government Servants and  Teachers  Associations  General
Conference held on 08.02.2006, that the services  of  employees  working  in
various Government Departments on daily wages basis who have completed  more
than 10 years of service as on 01.01.2006 will be regularized.

2.    Based on the announcement  made  by  the  Hon’ble  Chief  Minister  on
08.02.2006, the Government direct that  the  services  of  the  daily  wages
employees working in all Government Departments who have rendered  10  years
of service as on 01.01.2006 be regularized by appointing them  in  the  time
scale of  pay  of  the  post  in  accordance  with  the  service  conditions
prescribed  for  the  post  concerned,  subject  to  their  being  otherwise
qualified for the post.

3.    The Departments of Secretariat may therefore, be  directed  to  pursue
action to regularize the services of the daily wages  employees  working  in
all Government Departments, who have rendered 10  years  of  service  as  on
01.01.2006 as ordered in para 2 above in consultation  with  the  respective
Heads  of  Departments  wherever  necessary.   In  special   cases   wherein
relaxation of rules is required proposal shall be sent to Government.

4.    This order issues with the concurrence of Finance Department vide  its
U.O. No.985/FS/P/2006 dated 28.02.2006.”



11.   In G.O. Ms.No.22 P & AR Dept. dated 28.02.2006, only  full-time  daily
wage employees were directed to be regularized on completion  of  ten  years
of  continuous  service  as  on  01.01.2006.   This  was  clarified  by  the
Government in the Government Order passed subsequently  G.O.Ms.No.74  P  &AR
Dept. dated 27.06.2013 clarifying that  G.O.Ms.No.22  P  &  AR  Dept.  dated
28.02.2006 is applicable only to the full-time  daily  wage  employees,  who
had completed  ten  years  of  continuous  service  as  on  01.01.2006.   In
G.O.Ms.No.74  dated  27.06.2013,  it  was  made  clear  that  the  part-time
employees are not entitled for regularization and that full-time daily  wage
employees, who had completed 10 years of service after 01.01.2006  are  also
not entitled for regularization of  services.        G.O.No.  74,  Personnel
and Administrative Reforms Department, dated 27.06.2013, reads as follows:
“6) In supersession of the  orders  issued  in  the  Government  Order  read
above,  the  Government  now  issue  revised  orders  on  regularization  of
services of full  time  daily  wage  employees  working  in  all  Government
departments as detailed below:

This Order shall be deemed to have been come into force  with  retrospective
effect from 01.01.2006.



The services of the full  time  daily  wage  employees  who  were  initially
appointed on full time basis in consultation with  the  Employment  Exchange
to discharge the function of the post in the Tamil Nadu  Basic  Service  and
complete 10 (ten) years of service as on  01.01.2006  shall  be  regularized
against regular vacancies in the sanctioned cadre strength.



In cases of relaxation of service rules, the service rule  relating  to  the
educational qualification and mode of recruitment shall not be relaxed.



In cases, where relaxation of rules are involved, monetary benefit shall  be
allowed with effect from the date of issue of orders as per Rule 23  (a)(ii)
of the General Rules for Tamil Nadu State and Subordinate Services;



In cases where relaxation of rules are not involved, monetary benefit  shall
be allowed with effect from the date of regularisation;



(vi) The part-time and casual employees are not entitled to  the  concession
referred to at para (ii) above;



(vii) The services of the full time daily wage employees who have  completed
10 years of service after 01.01.2006 shall not be regularized;



(viii)  All  the  appointing  authorities  should  adhere   to   the   above
instructions scrupulously in  future.  Failing  which,  it  will  be  viewed
seriously and necessary disciplinary action will be initiated as  per  rules
against the person who is responsible for the said lapses.   All  the  Heads
of Departments are directed to ensure that all the above  said  instructions
are followed without fail and lapses if any found,  responsibility  will  be
fixed against them;



(ix) All the proposals for regularization  of  the  services  of  full  time
daily wage employees should be sent to the Government even  in  cases  where
relaxation of rules are not involved.”

In G.O. Ms. No.74, it was thus, made clear that the part-time employees  are
not entitled for regularization and that  full-time  daily  wage  employees,
who  had  completed  ten  years  of  service  as  on  01.01.2006  shall   be
regularized against regular vacancies in the sanctioned post.  It  was  also
made clear that the services of daily wage employees who have completed  ten
years of service after 01.01.2006 are not entitled for regularization.

12.   In the present case,  the  respondent  herein  was  engaged  to  fetch
water, to sweep and other connected menial works for one or two hours  in  a
day as part-time Masalchi.  The post of part-time Masalchi is  not  included
in ClassIV or V of the  Tamil  Nadu  Basic  Service.   Further  a  part-time
Masalchi cannot be treated as equivalent to  the  post  of  Masalchi  (full-
time) basis because the post of part-time Masalchi does not come  under  the
purview of service rules.   The  respondent  herein  was  only  a  part-time
Masalchi and hence the question of applying G.O.Ms.No. 22 P &AR Dept.  dated
28.02.2006,  which  is  applicable  only  to  the   daily   wage   full-time
employees,does not arise.

13.   G.O.(Rt.)No.84  Commercial  Taxes  and  Registration  (M2)  Department
dated 18.06.2012 was issued,by  which  172  part-time  Masalchis,  who  were
working for more than ten  years  as  part-time  Masalchis  in  Registration
Department were regularized from the date of issuance of G.O. providing  the
grant of monetary benefits from the  date  of  issuance  of  the  Government
Order. In G.O.(Rt) No.84  dated  18.06.2012,  it  was  clearly  stated  that
G.O.Ms.No.22 P &A R Dept. dated 28.02.2006 was applicable only to  full-time
daily wage employees and that the  same  was  not  applicable  to  part-time
Masalchis.  In the said G.O.(Rt.)No.84 dated 18.06.2012, it was  made  clear
that monetary benefits are only from the date of issuance of  the  order  of
regularization.   The  relevant  portion  of  the   said   G.O.(Rt.)   No.84
Commercial Taxes and Registration (M2) Department, reads as under:-

“Registration Department  –  Tamil  Nadu  Basic  Service  –  172  Part  time
Masalchis – Relaxation of Rules and Appointing them as full  time  Employees
in the post of watchmen in  Time  Scale  Pay  and  Regularisation  of  their
services – Orders issued.

              Commercial Taxes and Registration (M2) Department
G.O. (Rt) No.84                         Dated: 18.06.2012

Based on the Directions of the Hon’ble  High  Court,  the  School  Education
Department and the Treasuries and Accounts Department under the  control  of
the Finance Department have appointed two Full-time Masalchis and  57  Full-
time Masalchis, respectively, in regular time scale of pay  and  regularized
their services from the date of issue of the orders. In  compliance  to  the
orders of the Hon’ble High Court, the services  of  6  Part  time  Masalchis
were appointed in this Department and regularized their  services  from  the
date  of  issue  of  the  orders  in  the  reference  3rd  and  5th   cited.
Considering the Part-time Masalchis  working  for  a  long  period  in  this
Department and most of  them  had  completed  the  age  of  40  and  certain
employees have completed 50 years of age, it is not possible  to  seek  jobs
from outside and the employees were repeatedly  sending  representations  to
regularize their services, on a  sympathetic  consideration,  the  Inspector
General of Registration sent a proposal to the  Government  to  appoint  the
Part-time Masalchis in the  post  of  Watchman  by  relaxing  the  necessary
provisions in the Special Rules for the Tamil Nadu Basic  Service  from  the
date  of  issue  of  the  orders….…The  Government  has  decided  that,  the
remaining 172 Part  time  Masalchis,  mentioned  in  the  Annexure,  may  be
appointed in Time  Scale  Pay,  in  the  existing  vacancy  of  watchmen  by
relaxing  the  Rule  3  (A)  (Community  Rotation)  and  Rule  5  (1)   (Age
Qualification) and the services of  the  Part-masalchi  be  regularized  and
they may be awarded monetary benefit from the date of issue of the order…”


In pursuance of the above said Government Order and vide proceedings of  the
District Registrar, the respondent herein appointed  as  full-time  employee
in the post of Watchman on 02.07.2012 and has been placed at  Sub-Registrar,
Uraiyur, Trichy.  As per G.O. Ms.No.84, the respondent  can  claim  monetary
benefits only from the date of issuance  of  Government  Order  regularising
his services and not earlier.

14.   In a similar issue, concerning part-time sweepers, the State of  Tamil
Naduhas filed an appeal before this Court, and those  appeals  were  allowed
by this Court byjudgment dated 21.02.2014 inSecretaryto  Government,  School
Education Department, Chennai vs. Thiru. R. Govindasamy and Others (2014)  4
SCC 769. After referring to various judgments on this issue,  in  paras  (5)
to (7), this Court held as under:-

“5. The issue involved here remains restricted as to  whether  the  services
of the part-time sweepers could have been directed by the High Court  to  be
regularised. The issue is no more res integra.

6. In State of Karnataka v. Umadevi (3) (2006) 4 SCC 1 this  Court  held  as
under: (SCC p. 40, para 48)
“48. … There is no fundamental right in those  who  have  been  employed  on
daily wages or temporarily or on contractual basis, to claim that they  have
a right to be absorbed in service. As has been  held  by  this  Court,  they
cannot be said to be holders of a post, since, a regular  appointment  could
be made only by making appointments  consistent  with  the  requirements  of
Articles 14 and 16 of the Constitution. The  right  to  be  treated  equally
with the other employees employed on daily wages, cannot be  extended  to  a
claim for equal treatment with  those  who  were  regularly  employed.  That
would be treating unequals as equals. It cannot also be relied on  to  claim
a right to be absorbed in service even though they have never been  selected
in terms of the relevant recruitment rules.”

7. In Union of India v. A.S. Pillai (2010) 13 SCC 448 this Court dealt  with
the issue of regularisation of part-time employees  and  the  Court  refused
the relief on the  ground  that  part-timers  are  free  to  get  themselves
engaged elsewhere and they are not restrained from  working  elsewhere  when
they are  not  working  for  the  authority/employer.  Being  the  part-time
employees, they are not subject to service rules or other regulations  which
govern  and  control  the  regularly  appointed  staff  of  the  department.
Therefore, the  question  of  giving  them  equal  pay  for  equal  work  or
considering their case for regularisation would not arise.”


15.   In State of Rajasthan and Others Vs. Daya Lal and Others(2011)  2  SCC
429, this Court has considered the scope of regularisation of  irregular  or
part-time appointments in all possible eventualities and  thisCourt  clearly
laid down that part-time employees are not entitled to  seek  regularisation
as they do not work against any sanctioned posts.  It  was  also  held  that
part-time employees in government-run institutions  can  in  no  case  claim
parity in salary with regular employees of the government on  the  principle
of equal pay for equal work. Relevant excerpt from the said judgment  is  as
under:

“12. We may at the outset refer to the  following  well  settled  principles
relating to regularization and parity in pay, relevant  in  the  context  of
these appeals:

(i) High Courts, in exercising power under Article 226 of  the  Constitution
will not  issue  directions  for  regularization,  absorption  or  permanent
continuance,  unless  the  employees  claiming   regularization   had   been
appointed in pursuance of a regular recruitment in accordance with  relevant
rules in an open competitive process, against sanctioned vacant  posts.  The
equality  clause  contained  in  Articles 14 and 16 should  be  scrupulously
followed and courts should not  issue  a  direction  for  regularization  of
services of an employee which would be violative of  constitutional  scheme.
While something that is irregular for want of compliance  with  one  of  the
elements in the process of selection which does not go to the  root  of  the
process, can be regularized, back door  entries,  appointments  contrary  to
the  constitutional  scheme  and/or  appointment  of  ineligible  candidates
cannot be regularized.

(ii) Mere continuation of service by a temporary or  ad  hoc  or  daily-wage
employee, under cover of some interim orders of the court, would not  confer
upon him any right to be absorbed into service, as  such  service  would  be
'litigious employment'. Even temporary, ad hoc or daily- wage service for  a
long number of years, let alone service for  one  or  two  years,  will  not
entitle such employee to claim regularization, if he is not working  against
a sanctioned post. Sympathy and sentiment cannot be grounds for passing  any
order of regularization in the absence of a legal right.

(iii) Even where a scheme is formulated for regularization  with  a  cut-off
date (that is a scheme providing that persons who had  put  in  a  specified
number of years of service and continuing in employment as  on  the  cut-off
date), it is not possible to others who were  appointed  subsequent  to  the
cut-off date, to claim or contend that the scheme should be applied to  them
by extending the cut-off date or seek  a  direction  for  framing  of  fresh
schemes providing for successive cut off dates.

(iv) Part-time employees are not entitled to  seek  regularization  as  they
are not working against any sanctioned posts. There cannot  be  a  direction
for  absorption,  regularization  or  permanent  continuance  of  part  time
temporary employees.

(v) Part time temporary employees  in  government  run  institutions  cannot
claim parity in salary with regular  employees  of  the  government  on  the
principle of equal  pay  for  equal  work.  Nor  can  employees  in  private
employment,  even  if  serving  full  time,  seek  parity  in  salary   with
government employees. The right to claim a  particular  salary  against  the
State must arise under a contract or under a statute.

See: Secretary, State of Karnataka v. Uma Devi 2006 (4) SCC  1, M.  Raja  v.
CEERI Educational Society, Pilani 2006 (12) SCC 636, S.C. Chandra  v.  State
of Jharkhand  2007 (8) SCC 279, Kurukshetra Central  Co-operative  Bank  Ltd
v. Mehar Chand 2007 (15) SCC 680, and Official Liquidator v. Dayanand   2008
10 SCC 1.”              (emphasis added)


16.   The learned Single Judge of the High Court, while  allowing  the  writ
filed by the respondent extended the benefit of  the  said  G.O.  Ms.  No.22
dated 28.02.2006 and directed the  appellants  to  grant  regularisation  of
respondent’s service from the date of completion of  ten  years  of  service
with salary and other benefits. The learned Judge failed  to  take  note  of
the fact that as per G.O.  Ms.No.  22  dated  28.02.2006,  the  services  of
employees working in various government departments on full-time daily  wage
basis, who have completed more than ten years of continuous  service  as  on
01.01.2006  will  be  regularised  and  not  part-time  Masalchis  like  the
respondent herein. In G.O.Ms. No. 84 dated 18.06.2012, the  Government  made
it clear that G.O.Ms. No. 22 dated 28.02.2006 is applicable  only  to  full-
time daily  wagers  and  not  to  part-time  daily  wagers.  Respondent  was
temporarily appointed part-time  worker  as  per  Tamil  Nadu  Finance  Code
Volume (2) Appendix (5) and his appointment was completely  temporary.   The
respondent being appointed as part-time Masalchi, cannot compare himself  to
full-time daily wagers and seek benefit of  G.O.Ms.No.22  dated  28.02.2006.
The Single Judge also failed to consider that the Government did  not  grant
regularisation of services of any part-time employee on  completion  of  ten
years of his service as envisaged under the G.O.Ms. No.22 dated 28.02.2006.

17.    The  learned  Single  Judge  erred  in  extending  the   benefit   of
G.O.Ms.No.22 dated 28.02.2006 to the  respondent  that  too  retrospectively
from the date of completion of ten years of service of the  respondent.  The
respondent was appointed on 01.04.1989 and completed ten  years  of  service
on 31.03.1999.  As rightly contended by the learned senior counsel  for  the
appellants, if the respondent is to be  given  monetary  benefits  from  the
date of completion of ten years of service, that  is  from  01.04.1999  till
the date of his regularization that is 18.06.2012, the financial  commitment
to the State would  be  around  Rs.10,85,113/-  (approximately)towards  back
wages apart from pension  which  will  have  a  huge  impact  on  the  State
exchequer.  That  apart,  the  learned  senior  counsel  for  the  appellant
submitted that in respect of  Registration  Department,  about  172  persons
were  regularized  under  various  G.Os.  and  if  the  impugned  order   is
sustained, the Government will have to pay  the  back  wages  to  all  those
persons from the date of completion of ten years in service  and  this  will
have a huge  impact  on  the  State  exchequer.  Since  the  impugned  order
directing regularization of the respondent from the date  of  completion  of
their ten years would  adversely  affect  the  State  exchequer  in  a  huge
manner, the impugned order cannot be sustained on this score also.

18.   It is pertinent to note that even the  regularisation  of  services  of
part-time employees vide G.O.(Rt.) No.505 Finance  (AA-2)  Department  dated
14.10.2009 and G.O.(2D) No.32 Finance (T.A.  2)Department  dated  26.03.2010
was effectedby extending the benefit of  G.O.  dated  28.02.2006  only  from
the date of Government Orders and not from the date of completion  of  their
ten years of service. The Division Bench  also  failed  to  take  note  that
G.O.Ms.No. 22 P &AR Dept. dated 28.02.2006 is applicable only  to  full-time
daily wage employees and who had completed ten years of  continuous  service
as on 01.01.2006 and not  to  part-time  employees.As  per  G.O.(Rt.)  No.84
dated 18.06.2012, the respondent is entitled to the monetary  benefits  only
from the date of issuance of Government Order regularizing his service  that
is 18.06.2012. The impugned order of the Division Bench affirming the  order
of the Single Judge granting benefits to the respondent  from  the  date  of
completion of ten years of service is erroneous and the same  is  liable  to
be set aside.

19.   In the result, the impugned order is set  aside  and  this  appeal  is
allowed. No costs.

                                                             …….…………...………J.
                                             [KURIAN JOSEPH]


                                                               …………….……………J.
                                             [R. BANUMATHI]
      New Delhi;
      March 07, 2017

remanded to the High Court for deciding the appeal on merits = whether the suit seeking a declaration that the demand of House Tax raised under the Act is maintainable, whether such suit is barred and, if so, by virtue of which provision of the Act, whether plaintiff has any alternative statutory remedy available under the Act for adjudication of his grievance and, if so, which is that remedy, and lastly, whether the plaintiff has properly valued the suit and, if so, whether they have paid the proper Court fees on the reliefs claimed in the suit were legal questions arising in the appeal and involved jurisdictional issues requiring adjudication on merits in accordance with law. The High Court unfortunately did not examine any of these issues much less in its proper perspective in the light of relevant provisions of the Act governing the controversy. 15) The High Court thus, in our view, committed jurisdictional error when it dismissed the second appeal in limine. We cannot countenance the approach of the High Court. 16) In view of foregoing discussion, the appeal succeeds and is allowed. The impugned order is set aside. The case is now remanded to the High Court for deciding the appeal on merits in accordance with law.

           REPORTABLE
                        IN THE SUPREME COURT OF INDIA

                        CIVIL APPELLATE JURISDICTION

                        CIVIL APPEAL No.1182 OF 2007


      Faridabad Complex
      Administration                         ….Appellant(s)

                                   VERSUS

      M/s Iron Master India (P) Ltd.     …Respondent(s)



                               J U D G M E N T
     Abhay Manohar Sapre, J.
      1)    This appeal is filed by  the  appellant(defendant)  against  the
      final judgment and order dated 16.02.2004 passed by the High Court  of
      Punjab and Haryana at Chandigarh in R.S.A. No. 530 of  2004  by  which
      the High Court dismissed  the  regular  second  appeal  filed  by  the
      appellant herein in limine  against  the  judgment  and  decree  dated
      22.10.2003 passed by the Additional District Judge, Faridabad in  C.A.
      No. 166 of 2002 whereby the appeal filed by the  respondent(plaintiff)
      was allowed, the judgment and decree passed by the Trial Court was set
      aside and the suit of the respondent was decreed.
      2)    We herein set out the facts, in brief, to appreciate the  issued
      involved in this appeal.
      3)    The respondent is  a  Limited  Company  having  their  place  of
      business in Faridabad.  The  appellant  is  a  Municipal  Corporation,
      Faridabad  as  defined  under  the   Haryana   Municipal   Act,   1973
      (hereinafter referred to as “the Act”).
      4)     The  respondent  is  subjected  to  payment  of  various  taxes
      including House Tax under the Act on the properties owned by  them  at
      Faridabad.  The  respondent  filed  a  civil  suit  seeking  permanent
      injunction against the appellant restraining them from recovering  the
      House Tax  for  the  years  1991-92,  1992-93  and  1993-94  from  the
      respondent  on  their  properties.  The  appellant   also   sought   a
      declaration that a  demand  notice  dated  20.11.1993  raised  by  the
      appellant calling upon the respondent to pay Rs.48,599.40  towards the
      House Tax on their properties is illegal.
      5)     The  appellant  filed  written  statement  and   defended   the
      aforementioned demands on various grounds. The appellant  also  raised
      an objection about the maintainability of the Suit.
      6)    The Trial Court framed issues. Parties  adduced  evidence.  Vide
      judgment and decree dated 20.09.2002 in Case No.  1483  of  1995,  the
      Trial Court dismissed the Suit. Felt aggrieved, the  respondent  filed
      appeal being Civil Appeal  No.  166  of  2002  before  the  Additional
      District Judge, Faridabad. By order dated 22.10.2003,  the  Additional
      District Judge allowed the appeal, set aside the judgment  and  decree
      of the Trial Court and  decreed  the  respondent's  suit  against  the
      appellant.
      7)    Felt aggrieved, the  appellant(defendant)  filed  second  appeal
      before the High Court  wherein  the  appellant  had  proposed  several
      substantial questions of law arising in the  case.   The  High  Court,
      however,  dismissed  the  second  appeal   in   limine   by   impugned
      judgment/order holding that the second appeal  does  not  involve  any
      substantial question  of  law.   It  is  against  this  judgment,  the
      appellant(defendant) has filed this appeal by  way  of  special  leave
      petition before this Court.
      8)    It is unfortunate that no one  appeared  for  the  appellant  to
      argue the appeal before this Court when the case  was  called  on  for
      hearing twice. We, however, refrained ourselves  from  dismissing  the
      appeal in default and instead perused the record with  the  assistance
      of Mr. A.K. Singla, learned senior counsel for the respondent  with  a
      view to decide the appeal on merits.
      9)    Having heard learned senior counsel for the  respondent  and  on
      perusal of the record of the case, we are inclined to allow the appeal
      and remand the case to the High Court for deciding the  second  appeal
      afresh on merits in accordance with law.
      10)   The question, which arises for consideration in this appeal,  is
      whether the High Court was justified in dismissing the  second  appeal
      of the appellant(defendant) in limine holding that it does not involve
      any substantial question of law?
      11)   The learned Single Judge while dismissing the appeal passed  the
      following order:
                 “This Regular Second Appeal has been filed by the defendant
           against the judgment and decree dated 22.10.2003, passed by  the
           Additional District Judge,  whereby  the  appeal  filed  by  the
           plaintiff was accepted, the judgment and decree  passed  by  the
           trial Court were set aside and the suit  of  the  plaintiff  was
           decreed.


                 While decreeing the suit of the plaintiff, it was found by
           the learned Additional District Judge  that  before  fixing  the
           annual value and imposing  the  house  tax,  the  defendant  had
           failed to decide the objections filed by the  plaintiff  against
           the proposed amendment of the assessment list. It was found that
           in fact the case of the defendant was that  no  objections  were
           filed. However, when a copy of the objections and the notice for
           personal hearing were shown to DW1 (produced by the  defendant),
           he had  to  admit  that  those  documents  were  issued  by  the
           defendant. It was found that from those documents, it was  clear
           that the plaintiff had filed  objections  against  the  proposed
           amendment of the assessment list and there  is  nothing  on  the
           record to show that  the  objections  were  decided  before  the
           annual value was fixed and  the  house  tax  was  imposed.  This
           finding of the learned Additional District Judge, in my opinion,
           is a finding of fact based on the evidence led by  the  parties,
           especially when there is nothing on  the  record  to  show  that
           there is  any  misreading  of  evidence  or  that  any  material
           evidence had been ignored by  the  learned  Additional  District
           Judge while giving this finding.  Once  it  is  found  that  the
           defendant had failed to follow the procedure laid down under the
           Act while imposing the house tax, in my opinion, the civil Court
           certainly had the jurisdiction to entertain the present suit and
           the finding of the learned Additional  District  Judge  in  this
           regard also has to be affirmed.


                 In this view of the matter, in my  opinion,  there  is  no
           scope for interference in the present appeal, especially when no
           question of law much less substantial question of law arises for
           determination in this appeal.


                 Hence, the present appeal is dismissed.”


      12)   As observed supra, we do not agree with the  reasoning  and  the
      conclusion arrived at by the High Court in the impugned order.  In our
      considered view, the appeal did involve the  substantial  question  of
      law and, therefore, the High Court should have admitted the appeal  by
      first framing proper substantial questions of law arising in the case,
      issued notice to the respondent for  its  final  hearing  as  provided
      under Section 100 of the Code of Civil  Procedure,  1908  (hereinafter
      referred to as “the Code”) and disposed it of on merits.
      13)   As a matter of fact, having regard to the nature of  controversy
      involved in the suit and the issues arising in the case, the questions
      raised in the second appeal did constitute  substantial  questions  of
      law within the meaning of Section 100 of the Code.
      14)   Indeed, in our considered view, the questions, viz., whether the
      suit seeking a declaration that the demand of House Tax  raised  under
      the Act is maintainable, whether such suit is barred and,  if  so,  by
      virtue of which provision  of  the  Act,  whether  plaintiff  has  any
      alternative statutory remedy available under the Act for  adjudication
      of his grievance and, if so, which is that remedy, and lastly, whether
      the plaintiff has properly valued the suit and, if  so,  whether  they
      have paid the proper Court fees on the reliefs  claimed  in  the  suit
      were  legal  questions   arising   in   the   appeal   and    involved
      jurisdictional issues requiring adjudication on merits  in  accordance
      with law. The High Court unfortunately did not examine  any  of  these
      issues much less in its proper perspective in the  light  of  relevant
      provisions of the Act governing the controversy.
      15)   The High Court thus, in our view, committed jurisdictional error
      when it dismissed the second appeal in limine. We  cannot  countenance
      the approach of the High Court.
      16)   In view of foregoing discussion,  the  appeal  succeeds  and  is
      allowed. The impugned order is set aside. The case is now remanded  to
      the High Court for deciding the appeal on merits  in  accordance  with
      law.
      17)   We, however, request the High Court to admit the second  appeal,
      frame appropriate substantial  questions  of  law  as  required  under
      Section 100 of the Code keeping in view the pleadings and  findings of
      the two courts below. Needless to say,  the  questions  to  be  framed
      should be specific.
      18)   Before parting, we consider it proper to mention  here  that  we
      have not expressed any  opinion  on  merits  of  the  controversy  and
      confined our  inquiry  only  to  examine  whether  the  second  appeal
      involved any substantial question of law within the meaning of Section
      100 of the Code?
      19)   Since none appeared for the appellant(defendant) in this  Court,
      the High Court would issue  notice  to  the  appellant  before  it  is
      finally heard.  We  request  the  High  Court  to  decide  the  appeal
      expeditiously.
      20)   Record of the case, if requisitioned, be sent back to  the  High
      Court forthwith by the Registry.

                           ………...................................J.
                                  [R.K. AGRAWAL]



                           …...……..................................J.
                                [ABHAY MANOHAR SAPRE]
      New Delhi;
      March 07, 2017

Remand to fresh trial = we are inclined to allow the appeal and while setting aside of the impugned order restore the suit to its file and remand the case to the Trial Court for deciding the suit afresh on merits. 19) The need to remand the case is called for because we find that the High Court while dismissing the appellant's first appeal recorded a finding that since the appellant (plaintiff) failed to prove his ownership over the suit land inasmuch as the plaintiff did not examine his vendor to prove his sale deed, the Trial Court was not justified in decreeing the appellant’s suit and granting declaration of ownership in his favour in relation to the suit land. In other words, the High Court was of the view that it was obligatory upon the appellant (plaintiff) to prove his title by examining his vendor and since it was not done, the decree passed by the Trial Court in plaintiff's favour was not legally sustainable. This finding of the High Court, as mentioned above, resulted in dismissal of the appeal and the suit as well. 20) In our considered opinion, assuming that the High Court was right in its view, it should have given an opportunity to the appellant to prove his title by allowing him to adduce proper evidence in support of his case and for that, the High Court should have remanded the case to the Trial Court for retrial of the suit. It was more so because we find that the appellant suffered more damage to his case in prosecuting his own appeal. In the absence of any challenge laid by the defendants to the part of the decree passed in plaintiff’s favour by the Trial Court, the appellate Court virtually passed the order in respondents’ (defendants) favour in appellant’s appeal. 21) In other words, the High Court having held that the plaintiff was not able to prove his title to the land in the suit due to non-examination of his vendor, all that the High Court, in such circumstances, should have done was to remand the case to the Trial Court by affording an opportunity to the appellant to prove his case (title to the land) and adduce proper evidence in addition to what he had already adduced. This, the High Court could do by taking recourse to powers under Order 41 Rule 23A of the CPC. 22) Since we are inclined to remand the case by taking recourse to the powers available under Order 41 Rule 23A CPC, it is not considered necessary to examine any other question arising in the case. 23) We are, therefore, of the considered opinion that instead of now remanding the case to the first Appellate Court, it would be just and proper to remand the case to the Trial Court to retry the suit on merits by affording an opportunity to the parties to adduce additional evidence in support of their case. 24) The parties (plaintiff and defendants) are accordingly granted liberty to amend their pleadings and adduce additional evidence. The Trial Court shall then pass a judgment in accordance with law uninfluenced by any of our observations and of the High Court. 25) Parties to appear before the concerned Trial Court on 27.03.2017 to enable the Court to conclude the proceedings preferably within six months from the date of party’s appearance. 26) Before parting with the case, we consider it apposite to bring to the notice of Trial Court the provisions of Order 27 Rule 5B of the Code of Civil Procedure which reads as under. | | | |“5B. Duty of court in suits against the government or a public| | |officer to assist in arriving at a settlement.- (1) In every | | |suit or proceeding to which the government, or a public | | |officer acting in his official capacity, is a party, it shall| | |be the duty of the court to make, in the first instance, every| | |endeavour, where it is possible to do so consistently with the| | |nature and circumstances of the case, to assist the parties in| | |arriving at a settlement in respect of the subject matter of | | |the suit. | | | | | |(2) If, in any such suit or proceedings, at any stage, it | | |appears to the court that there is a reasonable possibility of| | |a settlement between the parties, the court may adjourn the | | |proceeding for such period as it thinks fit, to enable | | |attempts to be made to effect such a settlement. | | |(3) The power conferred under sub-rule (2) is in addition to | | |any other power of the court to adjourn proceedings.” | | 27) Since we find that the case at hand is against the State Government and local bodies, it is the duty of the Court to make, in the first instance, every endeavor to assist the parties to settle in respect of subject matter of the suit and, if for any reason, settlement is not arrived at then proceed to decide the suit on merits in accordance with law. 28) The appeal thus succeeds and is allowed. Impugned judgment as also the judgment and decree of the Trial Court are set aside. The Trial Court is directed to decide the suit keeping in view the observations made above.

                                                                  Reportable

                        IN THE SUPREME COURT OF INDIA

                        CIVIL APPELLATE JURISDICTION

                        CIVIL APPEAL No.1412 OF 2008


Mohan Kumar                        ….Appellant(s)

                                   VERSUS

State of Madhya Pradesh & Ors.   …Respondent(s)



                               J U D G M E N T

Abhay Manohar Sapre, J.
1)    This appeal is filed by plaintiff No.1 against the judgment and  final
order dated 24.01.2005 passed by the High  Court  of  Judicature  at  Madhya
Pradesh, Jabalpur Bench at Gwalior in First Appeal No.  3  of  1998  whereby
the High Court dismissed the  appeal  and,  in  consequence,  dismissed  the
plaintiff’s suit which was partly decreed by the Trial Court.
2)    We herein set out the  facts,  in  brief,  to  appreciate  the  issues
involved in this appeal.
3)    The appellant is  plaintiff  No.1  whereas  the  respondents  are  the
defendants in a suit out of which this appeal arises.
4)    The case of the appellant is that the  land  bearing  Survey  No.  899
measuring 18 Biswas situated at Apaganj Mama Ka Bazar Lashker Gawlior,  M.P.
was purchased by him along with his mother from its previous  owner  Jaswant
Kumar  through  registered  sale  deed  dated  15.09.1941.    The   physical
possession thereof was delivered to the appellant and his  mother  by  their
vendor and their names were also  mutated  in  the  revenue  record  as  the
“owners of the land”.
5)    Three temples and two Darghas were alleged to  have  been  constructed
on the land in dispute while latrines and bathrooms as well as septic  tanks
were also alleged to have been constructed by the Municipal  Corporation  of
Gwalior (respondent No.2) for the public  user  and  sewer  lines  and  pipe
lines  were  also  laid  by  the  Public   Health   Engineering   Department
(respondent No.3) on a part of the said land.
6)    The appellant, accordingly,  approached  the  Collector,  Gwalior  for
removing the trespass committed on their land.    The  Collector  passed  an
order to remove the said trespass  by  dispossessing  them  therefrom  under
Section  4(2)  of  the  Madhya  Pradesh  Public  Premises  and   Devasthanam
(Regulation) Act.
7)    The Collector then reconsidered the appellant’s request and  suggested
respondent No.2-Municipal Corporation of Gawlior to  allot  352.65  sq.meter
of land near Surya Narain Temple situated in Daulatganj to the appellant  in
lieu of the appellant’s land in question.
8)    The Municipal Corporation of Gwalior expressed their agreement to  the
proposal made by the  Collector  and  accordingly  deputed  an  Engineer  to
evaluate the cost of the land owned by the appellant and his mother  and  of
the  proposed  land  situated  near  Surya  Narain  Temple.  A  report  was,
accordingly, received assessing the value of the land of  the  appellant  at
the rate of Rs.150/- per sq. meter.   So  far  as  the  land  situated  near
Surya Narain temple was concerned, it  was  assessed  as  Rs.800/-  per  sq.
meter.  Letters were also addressed by the Collector and Legal Aid  in  this
regard.
9)    Dissatisfied with the action of the  respondents,  the  appellant  and
her mother filed  a petition being W.P.(MP  No.  290/1989  before  the  High
Court. It was disposed of by the High  Court  on  22.06.1989  directing  the
Municipal  Corporation  to  remove  latrines,  sewer  lines,   septic   tank
constructed on the land shown in Appendix ‘A’.  As no action was taken,  the
second Misc. Pet. No. 859 of 1989 was filed by the appellant which was  also
disposed of by the High  Court  by  order  dated  16.03.1992  directing  the
appellant to institute a civil suit for  getting  the  dispute  adjudicated.
Aggrieved by the said order  of  the  High  Court,  the  appellant  filed  a
petition being S.L.P.(c) No. 11815 of 1992 before this  Court.   This  Court
affirmed the order of the High Court vide its order dated 08.04.1994.
10)    The  respondents,  in  the  meantime,  started  construction  of  the
temple/mosque on the land area being 40x6 sq.ft. owned by the appellant  and
his mother.  One Pump House was also being constructed by digging  bored  in
the land by  respondent  No.3  on  the  land  shown  in  Appendix  ‘A’.  The
appellant,  therefore,  served  notice  on  the  Municipal  Corporation   on
04.08.1994 raising objections to  the  authorities  but  no  action  towards
exchange of the land shown in  Appendix  ‘B’  in  respect  of  the  land  in
dispute was taken and nor the activities were discontinued.
11)   The appellant and his mother, therefore, filed a  civil  suit  bearing
Civil Suit No. 78A of 1994 before the VIII  Addl.  District  Judge,  Gwalior
against  the  respondents  for  a  declaration  of  the   title,   permanent
injunction and for  the  recovery  of  the  possession  in  respect  of  the
disputed land Survey No. 899, area being 18  Biswas  situated  in  Appaganj,
Mama Ka Baazar, Lashkar, Gwalior, out  of  which  this  appeal  arises.  The
respondents, i.e.,  State  of  Madhya  Pradesh  and  Municipal  Corporation,
Gwalior contested the suit and filed written statements.
12)   The Trial Court framed nine issues. Parties adduced  evidence.
13)   Vide judgment dated 29.11.1997, the Trial  Court  partly  decreed  the
suit filed by the appellant.  It was held that the appellant-plaintiffs  are
the owners of the land in  dispute,  on  which  trespass  was  committed  by
constructing temple, Dargah, latrines and others by the respondents. It  was
held that the appellant is entitled to get the  encroachments  removed  from
the land in suit. It was also held that the Government  should  acquire  the
land and pay the market value of the land to the appellant because the  land
was being used for public purpose.
14)   Against that part of the judgment of the Trial  Court  which  resulted
in rejection of the claim of the appellant to allot him any  alternate  land
in lieu of his land on which the encroachment was made, the  appellant  felt
aggrieved and filed an appeal being  F.A.  No.3  of  1998  before  the  High
Court. So far as the defendants are concerned, they were satisfied with  the
part of the decree passed by the Trial Court against them.
15)   By impugned  judgment  dated  24.01.2005,  the  High  Court  not  only
dismissed the appeal of the plaintiff but proceeded to  dismiss  the  entire
suit including the finding of the Trial Court  regarding  ownership  of  the
appellant over the suit land.
16)   Against the said judgment, the appellant has filed this appeal by  way
of special leave petition before this Court.
17)   Heard Mr. C.L.  Sahu,  learned  counsel  for  the  appellant  and  Mr.
Harshvardhan Jha, learned counsel for the State.
18)   Having heard learned counsel for the parties and  on  perusal  of  the
record of the case, we are inclined to allow the appeal  and  while  setting
aside of the impugned order restore the suit to  its  file  and  remand  the
case to the Trial Court for deciding the suit afresh on merits.
19)   The need to remand the case is called for because  we  find  that  the
High Court while dismissing the appellant's first appeal recorded a  finding
that since the appellant (plaintiff) failed to prove his ownership over  the
suit land inasmuch as the plaintiff did not examine his vendor to prove  his
sale deed, the Trial Court was not justified in  decreeing  the  appellant’s
suit and granting declaration of ownership in his favour in relation to  the
suit land. In other words, the High Court  was  of  the  view  that  it  was
obligatory upon the appellant (plaintiff) to prove his  title  by  examining
his vendor and since it was not done, the decree passed by the  Trial  Court
in plaintiff's favour was not legally sustainable. This finding of the  High
Court, as mentioned above, resulted in dismissal of the appeal and the  suit
as well.
20)   In our considered opinion, assuming that the High Court was  right  in
its view, it should have given an opportunity to the appellant to prove  his
title by allowing him to adduce proper evidence in support of his  case  and
for that, the High Court should have remanded the case to  the  Trial  Court
for retrial of the suit. It was more so because we find that  the  appellant
suffered more damage to his case in prosecuting  his  own  appeal.   In  the
absence of any challenge laid by the defendants to the part  of  the  decree
passed in plaintiff’s  favour  by  the  Trial  Court,  the  appellate  Court
virtually  passed  the  order  in  respondents’   (defendants)   favour   in
appellant’s appeal.
21)   In other words, the High Court having held that the plaintiff was  not
able to prove his title to the land in the suit due  to  non-examination  of
his vendor, all that the High Court,  in  such  circumstances,  should  have
done was to remand the case to the Trial Court by affording  an  opportunity
to the appellant to prove his case (title to the  land)  and  adduce  proper
evidence in addition to what he had already adduced.  This, the  High  Court
could do by taking recourse to powers under Order 41 Rule 23A of the CPC.
22)   Since we are inclined to remand the case by  taking  recourse  to  the
powers available  under  Order  41  Rule  23A  CPC,  it  is  not  considered
necessary to examine any other question arising in the case.
23)   We are, therefore, of the  considered  opinion  that  instead  of  now
remanding the case to the first  Appellate  Court,  it  would  be  just  and
proper to remand the case to the Trial Court to retry the suit on merits  by
affording an opportunity to the parties to  adduce  additional  evidence  in
support of their case.
24)    The  parties  (plaintiff  and  defendants)  are  accordingly  granted
liberty to amend their pleadings and adduce additional evidence.  The  Trial
Court shall then pass a judgment in accordance with law uninfluenced by  any
of our observations and of the High Court.
25)   Parties to appear before the concerned Trial Court  on  27.03.2017  to
enable the Court to conclude the proceedings preferably  within  six  months
from the date of party’s appearance.
26)   Before parting with the case, we consider it apposite to bring to  the
notice of Trial Court the provisions of Order 27 Rule  5B  of  the  Code  of
Civil Procedure which reads as under.
|                                                              | |
|“5B. Duty of court in suits against the government or a public| |
|officer to assist in arriving at a settlement.- (1) In every  | |
|suit or proceeding to which the government, or a public       | |
|officer acting in his  official capacity, is a party, it shall| |
|be the duty of the court to make, in the first instance, every| |
|endeavour, where it is possible to do so consistently with the| |
|nature and circumstances of the case, to assist the parties in| |
|arriving at a settlement in respect of the subject matter of  | |
|the suit.                                                     | |
|                                                              | |
|(2) If, in any such suit or proceedings, at any stage, it     | |
|appears to the court that there is a reasonable possibility of| |
|a settlement between the parties, the court may adjourn the   | |
|proceeding for such period as it thinks fit, to enable        | |
|attempts to be made to effect such a settlement.              | |
|(3) The power conferred under sub-rule (2) is in addition to  | |
|any other power of the court to adjourn proceedings.”         | |

27)   Since we find that the case at hand is against  the  State  Government
and local bodies, it is the  duty  of  the  Court  to  make,  in  the  first
instance, every endeavor to assist the  parties  to  settle  in  respect  of
subject matter of the suit  and,  if  for  any  reason,  settlement  is  not
arrived at then proceed to decide the suit  on  merits  in  accordance  with
law.
28)   The appeal thus succeeds and is allowed.  Impugned  judgment  as  also
the judgment and decree of the Trial Court are set aside.  The  Trial  Court
is directed to decide the suit keeping in view the observations made  above.



………...................................J.
                                  [R.K. AGRAWAL]


…...……..................................J.
                                [ABHAY MANOHAR SAPRE]
      New Delhi;
March 07, 2017
-----------------------
13

suit for specific performance of the agreement against the appellant.= Coming first to the submission of the learned counsel for the appellant about the maintainability of suit, in our considered view, it has no merit for more than one reason. 35) First, as rightly argued by learned counsel for the respondent, the objection regarding the maintainability of the Suit was neither raised by the defendant in the written statement nor in first appeal before the High Court and nor in grounds of appeal in this Court. 36) Second, since no plea was raised in the written statement, a fortiori, no issue was framed and, in consequence, neither the Trial Court nor the High Court could render any finding on the plea. 37) Third, it is a well-settled principle of law that the plea regarding the maintainability of suit is required to be raised in the first instance in the pleading (written statement) then only such plea can be adjudicated by the Trial Court on its merits as a preliminary issue under Order 14 Rule 2 of the CPC. Once a finding is rendered on the plea, the same can then be examined by the first or/and second appellate Court. 38) It is only in appropriate cases, where the Court prima facie finds by mere perusal of plaint allegations that the suit is barred by any express provision of law or is not legally maintainable due to any legal provision; a judicial notice can be taken to avoid abuse of judicial process in prosecuting such suit. Such is, however, not the case here. 39) Fourth, the decision relied on by the learned counsel for the appellant in the case of I.S. Sikander (supra) turns on the facts involved therein and is thus distinguishable. 40) Lastly, the suit filed by the respondent seeking specific performance of the agreement dated 05.03.1989 was maintainable for the reason that the cause of action to file the suit arose on the expiry of period mentioned in the agreement (31.12.1989) for its performance as provided in Article 54 of the Limitation Act and it was rightly filed immediately within 10 days on 10.01.1990. 41) For the aforementioned reasons, we find no merit in the first submission of learned counsel for the appellant, which is rejected. 42) Coming now to the second and third submission of learned counsel for the appellant, we are of the considered opinion that it has also no merit and hence deserve to be rejected for more than one reason. 43) First, the plaintiff had pleaded the necessary requirements of Section 16 (c) of the Specific Relief Act, 1963 read with the requirement of Forms 47, 48 and Article 54 of the Limitation Act in the plaint; Second, the defendant did not dispute the execution of agreement with the plaintiff and, in fact, entered in correspondence with the plaintiff for incorporation of some clauses therein; Third, the plaintiff proved her readiness and willingness to perform her part of agreement and also proved her financial capacity to purchase the suit property by adducing adequate evidence; Fourth, the plaintiff had paid more than Rs.2 lacs to the defendant prior to execution of sale deed in terms of agreement dated 05.03.1989 and was, therefore, required to pay balance sum of Rs.1,47,200/- to the defendant; Fifth, on admitted facts, therefore, the plaintiff had paid more than 50% of the sale consideration to the defendant before the due date of execution of sale deed; Sixth, the plaintiff had also proved that she had the requisite financial capacity to pay the balance sale consideration to the defendant inasmuch as she had arranged the funds by obtaining loan from the LIC; Seventh, the plaintiff filed the suit immediately on expiry of the period within 10 days to show her readiness and willingness to purchase the property; and Eighth, once it was held that the defendant committed breach in avoiding to execute the agreement, whereas the plaintiff performed her part of agreement and was ready and willing to perform her part, the Trial Court was justified in exercising its discretion in favour of the plaintiff by passing a decree for specific performance of agreement against the defendant. 44) In our view, none of these findings could be assailed as being either perverse or de hors the evidence or against any provision of law and nor these findings could be assailed on the ground that no judicial man could ever reach to such conclusion. 45) We also do not find any merit in the submission of the learned counsel for the appellant when he contended that the plaintiff did not come to the Court with clean hands and hence the suit is liable to be dismissed. 46) In our view, both the Courts below rightly rejected this submission. There is no evidence to sustain the submission. On the other hand, we find that it is the defendant, who despite accepting the substantial money (more than 50%) towards sale consideration from the plaintiff, avoided executing the sale deed on one or other false pretext.

           REPORTABLE
                        IN THE SUPREME COURT OF INDIA

                        CIVIL APPELLATE JURISDICTION

                        CIVIL APPEAL No.2714 OF 2008


Mrs. A. Kanthamani                       ….Appellant(s)

                                   VERSUS

Mrs.  Nasreen Ahmed              …Respondent(s)


                               J U D G M E N T

Abhay Manohar Sapre, J.
1)    This appeal is filed by the defendant against the judgment  and  final
order dated 27.10.2006 passed by the High Court of Judicature at  Madras  in
A.S. No. 127 of 2000 by which the High Court dismissed the appeal  filed  by
the appellant herein with costs confirming the  decree  and  judgment  dated
30.10.1998 passed in O.S. No. 6420 of 1996 by  the  VIII  Additional  Judge,
City Civil Court, Chennai, which decreed the respondent’s suit for  specific
performance of the agreement against the appellant.
2)    We herein set out  the  facts,  in  brief,  to  appreciate  the  issue
involved in this appeal.
3)    The appellant-defendant is the  owner  of  the  property  situated  at
No.191, Lloyds Road, Chennai-86.  She entered into  an  agreement  for  sale
with the respondent-plaintiff on 05.03.1989 in respect of a part  of  ground
floor of the said property described in Schedule ‘B’ to the plaint  together
with 1/3rd undivided share in the property described in Schedule ‘A’  for  a
total sale consideration of Rs.3,43,200/-.   On  the  same  day,  a  sum  of
Rs.1,30,000/- was paid by the respondent as advance money to the  appellant.
Thereafter, the respondent paid Rs. 20,000/- towards sale  consideration  to
the appellant on 03.04.1989, Rs.  10,000/-  on  04.05.1989,  Rs.  15,000  on
03.07.1989, Rs. 15,000/- on 06.07.1989 and Rs. 16,000/-  on  16.08.1989.  So
far as the balance  amount was concerned, the respondent agreed to  pay  the
same on or before 31.12.1989 to the  appellant.  It  was  alleged  that  the
appellant also orally agreed to sell to the respondent  an  additional  area
of 132.25 sq.ft. at the ground floor and 4 of undivided share and  for  that
additional property, the respondent paid a sum of Rs.46,000/- as an  advance
money.
4)    On 10.11.1989, the respondent sent a draft sale deed to the  appellant
for an area measuring 847.25  sq.ft.  and  one  1/2  undivided  share.   The
appellant though agreed to sell the additional extent of  land  orally,  she
refused to do so  and  returned  the  draft  sale  deed  on  04.12.1989  for
approval of the respondent by treating the sum of Rs.46,000/-  paid  by  her
for additional extent as further advance for the earlier written  agreement.

5)    Thereafter on 15.12.1989, the appellant sent another draft  sale  deed
for approval of the respondent by removing clauses 18 and 27 and with  minor
changes.  Since these deleted clauses referred to clauses 17 and 24  of  the
agreement of sale, the respondent approved the first draft  which  contained
these clauses.
6)    On  27.12.1989,  the  appellant  wrote  a  letter  to  the  respondent
insisting upon her to approve her second draft on or before 31.12.1989.
7)    The respondent approved the second draft sale deed and sent it to  the
appellant on 28.12.1989 by speed post and also enclosed a  letter  from  the
LIC sanctioning loan of Rs.1 lakh in her  favour.   The  respondent  further
informed that she is willing to bring the balance of sale  consideration  at
the time of registration of the sale deed.
8)    On  30.12.1989,  the  respondent  sent  a  legal  notice  through  her
advocate calling upon the appellant to execute and register  the  sale  deed
on or before 10.01.1990 in her favour.
9)    By  letter  dated  03.01.1990  through  her  advocate,  the  appellant
refused to sell the property to the respondent and cancelled the agreement.
10)   The respondent then filed a suit against the appellant  on  10.01.1990
seeking  specific  performance  of  the  agreement.  The  plaint   contained
aforementioned pleadings. It was alleged that  the  respondent  was  and  is
ready and willing to perform her part of the agreement and has, in fact,  so
performed. It was alleged that it was the appellant who  failed  to  perform
her part without  any  justification  and  hence  committed  breach  of  the
agreement thereby entitling the respondent to claim specific performance  of
the agreement in  relation  to  suit  house.  The  appellant  filed  written
statement.
11)   Considering the plaint and written statement, the trial  Court  framed
five issues and one additional issue which are as under:
Whether it is true that the defendant agreed to sell the  schedule  property
and an extent  of  132.25  sq.ft.  along  with  ½  undivided  share  to  the
plaintiff?

Whether it is true that the time is the essence of the contract?

Whether it is true that the plaintiff was  ready  to  perform  her  part  of
contract in the agreement?

Whether  the  plaintiff  is  entitled  for       the  relief   of   specific
performance?

What is the relief, the plaintiff entitled for?


Additional issue framed on 31.07.1998:
Whether the plaintiff acted in a manner contradictory and  in  violation  of
agreement?

12)   After  considering  the  documentary  evidence  led  in  by  both  the
parties, the Trial Court, vide judgment and decree dated 30.10.1998 in  O.S.
No.6420 of 1996, decreed the respondent’s suit and  passed  the  decree  for
specific performance of the agreement against the  appellant.  It  was  held
that the time was not the essence of the  contract.   It  was  further  held
that the Plaintiff (Respondent) was always ready and willing to perform  the
agreement and, in fact, performed  her  part  while  it  was  the  defendant
(appellant) who tried to scuttle away from the agreement.   It  was  further
held that the respondent is entitled to a decree  for  specific  performance
of contract on the basis of sale agreement dated 05.03.1989  in  respect  of
the plaint schedule property and accordingly the  appellant  was  given  two
months’ time to execute the sale deed  and  the  respondent  was  given  one
month’s time to deposit the balance sale consideration of Rs.1,47,200/-.
13)   Aggrieved by the aforesaid judgment, the defendant filed an appeal  to
the High Court.  By impugned  judgment  dated  27.10.2006,  the  High  Court
dismissed the appeal and confirmed the decree and judgment dated  30.10.1998
passed by the trial Court in O.S. No. 6420 of 1996.
14)   Against the said judgment, the  appellant(defendant)  has  filed  this
appeal by way of special leave petition before this Court.
15)   Heard Mr. Mohan Parasaran, learned senior counsel  for  the  appellant
and Mr. R. Balasubramanian, learned senior counsel for the respondent.
16)   Mr. Mohan Parasaran, learned senior counsel for  the  appellant  while
assailing the legality and correctness of the impugned judgment  essentially
argued three points.
17)   In  the  first  place,  learned  counsel  submitted   that  since  the
respondent (plaintiff)  did not seek a declaration that the  termination  of
agreement is  bad  in  law,  mere  suit  for  specific  performance  of  the
agreement was not maintainable in law and  was,  therefore,   liable  to  be
dismissed on this short ground. In other words, the submission was  that  it
was obligatory upon the respondent (plaintiff) to have sought a  declaration
in the suit that the termination of the  agreement  made  by  the  appellant
(defendant) vide his notice dated 03.01.1989 is  bad  and  along  with  such
relief, the respondent(plaintiff) should  also  have  claimed  a  relief  of
specific performance of the agreement to make  the  suit  maintainable.   It
was urged that since such relief was not claimed by the plaintiff, the  suit
for specific performance of the agreement simpliciter was not  maintainable.
In support of this  submission,  learned  counsel  placed  reliance  on  the
decision of this Court in I.S. Sikander (Dead) by LRs. Vs.  K.  Subramani  &
Ors., (2013) 15 SCC 27.
18)   In the second place, learned counsel attacked the findings on  merits.
He took us to the evidence of the parties and made an attempt to  point  out
that both the Courts below committed error in  holding  that  the  plaintiff
was ready and willing to perform her part of the agreement. Learned  counsel
contended that from the  evidence,  it  is  clear  that  the  plaintiff  was
neither ready nor willing to perform her part of the agreement and  nor  she
had money with her to pay towards balance consideration to the defendant  to
get the sale deed executed in her favour in terms of the agreement.  It  was
urged that the plaintiff  did  not  come  to  the  Court  with  clean  hands
inasmuch as she insisted upon the terms, which were neither agreed upon  and
nor they were part of the agreement.
19)   In the third place, learned counsel contended that  since  two  Courts
below did not properly appreciate the evidence and that too in a case  where
the plaintiff had come to the Court with unclean  hands,  the  discretionary
relief of grant of specific performance of agreement ought not to have  been
granted to such plaintiff and instead the suit merited dismissal.
20)   In  reply,  learned  counsel  for  the  respondent  (plaintiff)  while
opposing the appeal contended that no  case  for  any  interference  in  the
impugned judgment is made out. It was his submission that  both  the  Courts
below rightly held that the plaintiff was able to make out a case of  breach
of agreement committed by the defendant; and  secondly,  she  had  performed
her part of the agreement thereby rightly held to have  fulfilled  the  twin
requirement of "readiness and willingness" as provided under Section 16  (c)
of the Specific Relief Act, 1963.  Learned  counsel  urged  that  since  the
issue relating to the maintainability of suit  was  neither  raised  in  the
written statement nor in the appeal before the High Court and  nor  even  in
this appeal but was raised for the first time in submission, hence the  same
could not be allowed to be raised for the first time in this Court.  Lastly,
learned counsel submitted that since the two Courts below answered  all  the
issues on facts in favour of the  plaintiff  by  properly  appreciating  the
evidence, such findings being concurrent in  nature,  are  binding  on  this
Court. It was more so when the findings did not suffer from any  perversity,
much less extreme perversity or illegality or arbitrariness,  requiring  any
interference by this Court.
21)   Having heard learned counsel for the parties and  on  perusal  of  the
record of the case, we find no force  in  any  of  the  submissions  of  the
learned counsel for the appellant (defendant).
22)   Before we proceed to examine the issues involved in the appeal, it  is
necessary to take note of some of the relevant provisions of  the  Acts  and
the decisions rendered by the Courts, which govern the controversy.
23)    The  filing  of   the   suit   for   specific   performance   of   an
agreement/contract is governed by Section 16(c) of the Specific Relief  Act,
1963 read with Article 54 of the Schedule to the Limitation Act, 1963.  Form
Nos. 47 and 48 of Appendix‘A’ to Code of  Civil  Procedure,  1908  prescribe
the format of the plaint for such suit.
24)   The Specific Relief Act, 1877 which stood repealed by the Act of  1963
did not contain provision analogues to Section 16(c). Yet in the absence  of
any such provision, its requirements used to be considered mandatory in  the
suits for specific performance by virtue of  law  laid  down  by  the  Privy
Counsel in a celebrated case of Ardeshir H. Mama vs Flora Sasoon,  AIR  1928
PC 208. It is in this Case which went to Privy Council from  Indian  Courts,
Their Lordships laid down the following principle:
 “In a suit for specific performance on the other hand, he treated  and  was
required by the Court to treat the contract as still subsisting. He  had  in
that suit to allege, and if the fact  was  traversed,  he  was  required  to
prove a continuous readiness and willingness, from the date of the  contract
to the time of the hearing, to perform the contract on his part. Failure  to
make good that averment brought with it  the  inevitable  dismissal  of  his
suit. Thus it was that the commencement of an action for damages  being,  on
the principle of such cases as Clough v. London and  North  Western  Railway
Co. (1871) L.R. 7  Ex.  26 and  Law  v.  Law (1905)  1  Ch.  140 a  definite
election to treat  the  contract  as  at  an  end,  no  suit  for  specific,
performance,  whatever  happened  to  the  action,   could   thereafter   be
maintained by the aggrieved plaintiff. He  had  by  his  election  precluded
himself even from making the averment just referred to proof  of  which  was
essential to the success of his suit. The effect upon an action for  damages
for breach of a previous suit for  specific  performance  will  be  apparent
after the question of the competence of the Court itself  to  award  damages
in such a suit has been touched upon.”

25)   The Act of 1963 then made the aforesaid requirement  a  statutory  one
by enacting Section 16 (c), which reads as under: -
“16. Personal bars to relief- Specific performance of a contract  cannot  be
enforced in favour of a person-
(a)…………………..
(b)…………………..
(c) who fails to aver and prove that he has performed  or  has  always  been
ready and willing to perform the essential terms of the contract  which  are
to be performed by him, other than terms the performance of which  has  been
prevented or waived by the defendant.

Explanation – For the purposes of clause(c)-
a)    where a contract involves the payment of money, it  is  not  essential
for the plaintiff to actually tender to  the  defendant  or  to  deposit  in
court any money except when so directed by the court;

b)    the plaintiff must aver performance of, or readiness  and  willingness
to perform, the contract according to its true construction.”

26)   Therefore, the plaint which seeks the relief of  specific  performance
of the agreement/contract must contain all requirements of  Section  16  (c)
read with requirements contained in Form Nos. 47 and 48 of Appendix  ‘A’  of
C.P.C.
27)   Article 54 of the Limitation Act provides  a  period  of  3  year  for
filing a suit for specific performance of contract/agreement. A period of  3
years is required to be counted from the date fixed by the parties  for  the
performance, or if no such date is fixed, when  the  plaintiff  has  noticed
that the performance is refused. The plaint  should,  therefore,  also  have
necessary pleading satisfying the requirement of Article 54.
28)   The expression  "readiness  and  willingness"  has  been  the  subject
matter of interpretation in many  cases  even  prior  to  its  insertion  in
Section 16 (c) of  the  Specific  Relief  Act,  1963.  While  examining  the
question as to how and in what manner, the plaintiff is  required  to  prove
his financial readiness so as to enable him to  claim  specific  performance
of the contract/agreement, the Privy Council in a leading case  which  arose
from the Indian Courts  (Bombay)  in  Bank  of  India  Limited  &  Ors.  Vs.
Jamsetji A.H. Chinoy and Chinoy and Company, AIR 1950 PC  90,  approved  the
view taken by Chagla  A.C.J.,  and  held  inter  alia  that   "  it  is  not
necessary for the plaintiff to  produce  the  money  or  vouch  a  concluded
scheme  for  financing  the  transaction  to   prove   his   readiness   and
willingness.”
29)   The following observations of the Privy Council are apposite:
“21…………..Their Lordships agree with  this  conclusion  and  the  grounds  on
which it was based. It is true that the  plaintiff  1  stated  that  he  was
buying for himself, that he had not  sufficient  ready  money  to  meet  the
price and that no definite arrangements had been made for finding it at  the
time of repudiation. But in order to  prove  himself  ready  and  willing  a
purchaser has not necessarily to produce the money or to vouch  a  concluded
scheme for financing the transaction. The question is one of  fact,  and  in
the present case the Appellate Court had ample material on  which  to  found
the view it reached. Their Lordships would only add in this connection  that
they fully concur with Chagla A.C.J. when he says:

"In my opinion, on the evidence already on record it was sufficient for  the
court to come to the conclusion ' that plaintiff 1 was ready and willing  to
perform his part of the contract. It was not necessary for  him  to  '  work
out actual figures and satisfy the court what specific  amount a bank  would
have advanced on the mortgage of  his  property  and  the  pledge  of  these
shares. I do not think that any jury--if the matter was left to the jury  in
England--would have come to the conclusion that a man, " in the position  in
which the plaintiff was, was not ready  and  willing  to  pay  the  purchase
price of the shares which he had bought from defendants 1 and 2."

For the  foregoing  reasons,  their  Lordships  answer  question(4)  in  the
affirmative.”
(Emphasis supplied)

30)   This Court in Sukhbir Singh & Ors. Vs. Brij  Pal  Singh  &  Ors.,  AIR
1996 SC 2510=(1997) 2 SCC 200 followed the aforesaid  principle  with  these
words:
“5. Law is not in doubt and it is  not  a  condition  that  the  respondents
should have ready cash with them. The  fact  that  they  attended  the  Sub-
Registrar’s office to have  the  sale  deed  executed  and  waited  for  the
petitioners to attend the office of the Sub-Registrar is a positive fact  to
prove that they had necessary funds to pass on consideration  and  had  with
them the needed money with them for payment at the time of registration.  It
is sufficient for the respondents to establish that they  had  the  capacity
to pay the sale consideration. It is not necessary that they  should  always
carry the money with them from the date of the suit till  the  date  of  the
decree.  It  would,  therefore,  be  clear  that  the  courts   below   have
appropriately  exercised  their  discretion  for  granting  the  relief   of
specific performance to the respondents on sound principles of law.”

31)   Keeping these broad principles of law in mind, which  are  now  fairly
well settled, let us examine the facts of this case.

32)   At the outset, we may observe that this Court is  loath  to  undertake
the task of appreciating the evidence in an appeal filed under  Article  136
of the Constitution of India. It is more so when such appeal arises  out  of
the judgment, which has recorded concurrent findings of fact.
33)   However, since in this case, leave was granted  and  at  the  time  of
hearing, learned counsel for the parties took us  through  the  evidence  in
support of  their  submissions,  we  considered  it  proper  to  peruse  the
evidence with a view to find out as to  whether  impugned  judgment  suffers
from any error on facts or/and law?
34)   Coming first  to  the  submission  of  the  learned  counsel  for  the
appellant about the maintainability of suit, in our considered view, it  has
no merit for more than one reason.
35)   First, as rightly argued by learned counsel for  the  respondent,  the
objection regarding the  maintainability of the Suit was neither  raised  by
the defendant in the written statement nor in first appeal before  the  High
Court and nor in grounds of appeal in this Court.
36)   Second,  since  no  plea  was  raised  in  the  written  statement,  a
fortiori, no issue was framed and, in consequence, neither the  Trial  Court
nor the High Court could render any finding on the plea.
37)   Third, it is a well-settled principle of law that the  plea  regarding
the maintainability of suit is required to be raised in the  first  instance
in the pleading (written statement) then only such plea can  be  adjudicated
by the Trial Court on its merits as a preliminary issue under Order 14  Rule
2 of  the CPC. Once a finding is rendered on the plea, the same can then  be
examined by the first or/and second appellate Court.
38)   It is only in appropriate cases, where the Court prima facie finds  by
mere perusal of plaint allegations that the suit is barred  by  any  express
provision of law or is not legally maintainable due to any legal  provision;
a judicial notice can be  taken  to  avoid  abuse  of  judicial  process  in
prosecuting such suit. Such is, however, not the case here.
39)   Fourth, the  decision  relied  on  by  the  learned  counsel  for  the
appellant in the case of I.S. Sikander (supra) turns on the  facts  involved
therein and is thus distinguishable.
40)   Lastly, the suit filed by the respondent seeking specific  performance
of the agreement dated 05.03.1989 was maintainable for the reason  that  the
cause of action to file the suit arose on the expiry of period mentioned  in
the agreement (31.12.1989) for its performance as provided in Article 54  of
the Limitation Act and it was rightly filed immediately within  10  days  on
10.01.1990.
41)   For the  aforementioned  reasons,  we  find  no  merit  in  the  first
submission of learned counsel for the appellant, which is rejected.
42)   Coming now to the second and third submission of  learned counsel  for
the appellant, we are of the considered opinion that it has  also  no  merit
and hence deserve to be rejected for more than one reason.
43)   First,  the  plaintiff  had  pleaded  the  necessary  requirements  of
Section 16 (c) of the Specific Relief Act, 1963 read  with  the  requirement
of Forms 47, 48 and Article 54 of the Limitation Act in the plaint;  Second,
the defendant did not dispute the execution of agreement with the  plaintiff
and,  in  fact,  entered  in   correspondence   with   the   plaintiff   for
incorporation of some clauses  therein;  Third,  the  plaintiff  proved  her
readiness and willingness to perform her part of agreement and  also  proved
her financial capacity to purchase the suit property  by  adducing  adequate
evidence; Fourth, the  plaintiff  had  paid  more  than  Rs.2  lacs  to  the
defendant prior to execution of  sale  deed  in  terms  of  agreement  dated
05.03.1989 and was, therefore, required to pay balance sum of  Rs.1,47,200/-
to the defendant; Fifth, on admitted facts,  therefore,  the  plaintiff  had
paid more than 50% of the sale consideration to  the  defendant  before  the
due date of execution of sale deed;  Sixth, the plaintiff  had  also  proved
that she had the requisite  financial  capacity  to  pay  the  balance  sale
consideration to the defendant inasmuch as she  had arranged  the  funds  by
obtaining loan  from  the  LIC;   Seventh,  the  plaintiff  filed  the  suit
immediately on expiry of the period within 10 days  to  show  her  readiness
and willingness to purchase the property; and Eighth, once it was held  that
the defendant  committed  breach  in  avoiding  to  execute  the  agreement,
whereas the plaintiff performed her part of  agreement  and  was  ready  and
willing to perform her part, the Trial Court  was  justified  in  exercising
its discretion in favour of the plaintiff by passing a decree  for  specific
performance of agreement against the defendant.
44)   In our view, none of these findings could be assailed as being  either
perverse or de hors the evidence or against any provision  of  law  and  nor
these findings could be assailed on the ground that no  judicial  man  could
ever reach to such conclusion.
45)   We also do not find  any  merit  in  the  submission  of  the  learned
counsel for the appellant when he contended that the plaintiff did not  come
to the Court with clean hands and hence the suit is liable to be dismissed.
46)   In our view, both the Courts below rightly rejected  this  submission.
There is no evidence to sustain the submission.  On the other hand, we  find
that it is the defendant, who despite accepting the substantial money  (more
than 50%) towards sale consideration from the plaintiff,  avoided  executing
the sale deed on one or other false pretext.
47)   We also do not find  any  merit  in  the  submission  of  the  learned
counsel for the appellant when he contended that  since  the  plaintiff  was
insisting for execution of sale deed in  relation  to  some  more  portions,
which did not form part of the agreement and hence it should have been  held
that the plaintiff committed  the  breach  of  the  agreement  and  not  the
defendant.
48)   In our view, the two Courts below rightly repelled this submission  by
holding that the plaintiff did not claim  any  relief  in  relation  to  the
property which was not the subject matter  of  agreement  and  confined  his
relief only in relation to the property which formed the subject  matter  of
agreement dated 05.03.1989. We thus find no good ground to differ with  this
finding of the two Courts below. It was rightly recorded.
49)   In our considered view,  the  two  Courts  below,  therefore,  rightly
rendered the aforementioned findings in favour of the plaintiff and we  find
no difficulty in concurring with the findings, which  in  our  view  do  not
call for any interference by this Court.
50)   In the light of foregoing discussion, we find no merit in the  appeal.
It is accordingly dismissed with cost quantified at Rs.10,000/-  payable  by
the appellant to the respondent.

………...................................J.
                                  [R.K. AGRAWAL]


….……..................................J.
                                [ABHAY MANOHAR SAPRE]
      New Delhi;
March 6, 2017
-----------------------
25

M.V.Act - It was also held in Rajesh (supra) that in case, the deceased is above the age of 50 years, the enhancement of 15 per cent was to be given towards loss of future prospects. Close to Rajesh (supra), there was another decision of this Court, again of the strength of three Judges, in Reshma Kumari and others v. Madan Mohan and another[3], rendered on 02.04.2013. While Rajesh (supra) went a step ahead of Sarla Verma (supra) in awarding 15 per cent enhancement towards loss of future prospects, the decision in Reshma Kumari (supra) reaffirmed the principles laid down in Sarla Verma (supra) which declined any addition towards future prospects after the age of 50 years. It may be noted that there was no reference of Reshma Kumari (supra) in Rajesh (supra), apparently, since the said judgment had not been reported by the time Rajesh (supra) was rendered. On 02.07.2014, a two-Judge Bench of this Court in National Insurance Company Limited v. Pushpa and others[4], taking note of the conflicting positions as far as addition of future prospects after the age of 50 years, in Reshma Kumari (supra) and Rajesh (supra), has made a Reference of this aspect to a larger Bench. We are informed that the Reference is still pending. Under the above circumstances, we are inclined to pass an interim Order on compensation as far as the undisputed areas are concerned and then post this petition after the Reference is answered by the larger Bench. Therefore, by way of an interim measure, it is ordered that the petitioners shall be entitled to enhancement of compensation by fixing the multiplier as “11”. The widow shall be entitled for loss of consortium to the tune of Rs.1,00,000/- and the children together are entitled to compensation of Rs.1,00,000/- towards loss of love, care, guidance and protection. The compensation shall carry interest at the rate of 9 per cent from the date of filing of the claim petition. The Insurance Company shall re-work the compensation as above and deposit the amount with the Tribunal within three weeks. On such deposit, it will be open to the claimants to withdraw the same. As far as enhancement under the head “future prospects”, post this petition after the Reference is answered by the larger Bench.

                        IN THE SUPREME COURT OF INDIA



                        CIVIL APPELLATE JURISDICTION



               SPECIAL LEAVE PETITION (CIVIL) NO. 1636 OF 2016


BHOGIREDDI VARALAKSHMI AND OTHERS  ...  PETITIONERS (S)


                                   VERSUS

MANI MUTHUPANDI AND OTHERS                 ... RESPONDENT (S)


                                O  R  D  E  R



Aggrieved by the inadequacy of compensation awarded by  the  Motor  Accident
Claims  Tribunal  (for  short  ‘the  Tribunal’)  and  the  High  Court,  the
petitioners have filed this Special Leave Petition. Taking note of the  fact
that the deceased was aged  52  years,  the  Tribunal  in  the  award  dated
22.10.2008, declined to grant any  addition  for  future  prospects  in  the
salary and adopted the multiplier as “6.31”. An amount  of  Rs.15,000/-  was
granted towards loss of  consortium  to  the  wife  and  Rs.2,500/-  towards
funeral expenses. The compensation amount was to carry interest at the  rate
of 7.5 per cent per annum.
The claimants/petitioners, not satisfied with the  compensation,  approached
the High Court.
As per the impugned Judgment dated 24.03.2015, the appeal was  disposed  of.
The learned Judge took note of the decision of this  Court  in  Sarla  Verma
(Smt.) and others v. Delhi Transport Corporation and another[1] in  adopting
the multiplier and observed that going by the said decision, the  multiplier
to be applied is “11”. However, taking note of the fact  that  the  deceased
would have retired at the age of 60 years, fixed the multiplier as  “8”.  In
the matter of consortium, it was observed that “...  deceased  died  not  in
the prime of his youth but at his middle  age”,  and  hence  the  widow  was
granted consortium of Rs.25,000/-.  No  addition  was  made  towards  future
prospects.
It is shocking and disturbing that the learned Judge declined to follow  the
principles laid down by this Court in unmistakeable  terms  in  Sarla  Verma
(supra) as far as multiplier is concerned. We do not want  to  say  anything
more. Therefore, in this case, the multiplier is taken as “11”.
As far as consortium is concerned,  this  Court  in  Rajesh  and  others  v.
Rajbir Singh and others[2] has held that consortium  is  the  right  of  the
spouse to the company,  care,  help,  comfort,  guidance,  society,  solace,
affection and sexual relations with his or her mate. It  was  also  held  in
the  above  case  that  the  children  are  also  entitled  for   award   of
compensation for loss of love, care and  guidance.  This  emotional  element
has nothing to do with the expected life span. Having observed that  it  was
time to revisit compensation granted under the conventional  heads,  it  was
held that the widow was entitled to  loss  of  consortium  to  the  tune  of
Rs.1,00,000/-. Towards loss of love, care and guidance for  minor  children,
an amount of Rs.1,00,000/- was also awarded.
It was also held in Rajesh (supra) that in case, the deceased is  above  the
age of 50 years, the enhancement of 15 per cent  was  to  be  given  towards
loss of future prospects.
Close to Rajesh (supra), there was another decision of this Court, again  of
the strength of three Judges, in Reshma Kumari and  others  v.  Madan  Mohan
and another[3], rendered on 02.04.2013.
While Rajesh (supra) went a step ahead of Sarla Verma  (supra)  in  awarding
15 per cent enhancement towards loss of future prospects,  the  decision  in
Reshma Kumari (supra) reaffirmed the principles laid  down  in  Sarla  Verma
(supra) which declined any addition towards future prospects after  the  age
of 50 years.
It may be noted that there was no reference  of  Reshma  Kumari  (supra)  in
Rajesh (supra), apparently, since the said judgment had  not  been  reported
by the time Rajesh (supra) was rendered.
On 02.07.2014, a  two-Judge  Bench  of  this  Court  in  National  Insurance
Company Limited v. Pushpa and others[4],  taking  note  of  the  conflicting
positions as far as addition of future prospects after the age of 50  years,
in Reshma Kumari (supra) and Rajesh (supra),   has made a Reference of  this
aspect to a larger Bench. We  are  informed  that  the  Reference  is  still
pending.
Under the above circumstances, we are inclined to pass an interim  Order  on
compensation as far as the undisputed areas  are  concerned  and  then  post
this petition after the Reference is answered by the larger Bench.
Therefore, by way of an interim measure, it is ordered that the  petitioners
shall be entitled to enhancement of compensation by  fixing  the  multiplier
as “11”. The widow shall be entitled for loss of consortium to the  tune  of
Rs.1,00,000/- and the children together  are  entitled  to  compensation  of
Rs.1,00,000/- towards loss of  love,  care,  guidance  and  protection.  The
compensation shall carry interest at the rate of 9 per cent  from  the  date
of filing of the claim petition. The Insurance  Company  shall  re-work  the
compensation as above and deposit the amount with the Tribunal within  three
weeks. On such deposit, it will be open to the  claimants  to  withdraw  the
same.
As far as enhancement under the head “future prospects”, post this  petition
after the Reference is answered by the larger Bench.



                                                  ........................J.
                                                             (KURIAN JOSEPH)




                                                                 .……………………J.
                         (R. BANUMATHI)

New Delhi;
March 3, 2017.


-----------------------
[1]    (2009) 6 SCC 121
[2]    (2013) 9 SCC 54
[3]    (2013) 9 SCC 65
[4]    S.L.P. (Civil) No. 16735 of 2014


-----------------------
       NON-REPORTABLE