refusal to refer the dispute to arbitration would amount to failure of justice as also causing irreparable injury to the defendant.= the prerequisites for an application under Section 8 are fulfilled, viz., there is an arbitration agreement; the party to the agreement brings an action in the court against the other party; the subject matter of the action is the same as the subject-matter of the arbitration agreement; and the other party moves the court for referring the parties to arbitration before it submits his first statement on the substance of the dispute. We have come to the conclusion that the civil court had no jurisdiction to entertain a suit after an application under Section 8 of the Act is made for arbitration. In such a situation, refusal to refer the dispute to arbitration would amount to failure of justice as also causing irreparable injury to the defendant. 28) As we have already held that the oral agreement as evidenced by the transcript of conversation between the appellant No. 2 and the respondent on 06/07.04.2011 substituting the alleged written agreement dated 06.06.2009 and which contained a clause for arbitration, the same clause for arbitration would also be applicable to the oral agreement. The Division Bench has also erred in law in affirming the order passed by learned single Judge. Both the orders, therefore, cannot be sustained and are set aside and, therefore, in view of the decision in P.R. Shah (supra), there can only be one arbitrator and there can only be a single arbitration. 29) In view of the foregoing discussion, the appeal succeeds and is allowed. However, instead of remitting the matter back to the learned single Judge for deciding the suit itself on merits, we refer the disputes raised by the appellants in CS(OS) 1532 of 2012 to the sole arbitrator already appointed, viz., Hon’ble Mr. Justice V.K. Gupta (Retd.) and request the arbitrator to decide the disputes expeditiously in accordance with law.

                                     REPORTABLE
                        IN THE SUPREME COURT OF INDIA
                        CIVIL APPELLATE JURISDICTION

                    CIVIL APPEAL NO. 8837 OF 2016



Mrs. Hema Khattar & Anr.                      .... Appellant(s)

            Versus

Shiv Khera                                               .... Respondent(s)






                               J U D G M E N T


R.K. Agrawal, J.

1)    Challenge in this appeal is to the legality of the judgment and  order
dated 28.09.2012 rendered by a Division Bench of the High Court of Delhi  at
New Delhi in FAO (OS) No. 470 of 2012 whereby the High Court  dismissed  the
appeal filed by the appellants herein.
2)    Factual position in a nutshell is as follows:-
   a) An agreement to reconstruct  a  building  situated  at  C-6/4,  Vasant
      Vihar, New Delhi was executed between Hema Khattar-the appellant No. 1
      herein, wife of Ashwani Khattar – the appellant No. 2 herein, carrying
      on business in construction under the name and style of  M/s  Dessignz
      and Shiv Khera-the respondent herein on 06.06.2009.
   b) Pursuant to the said agreement, the building site was handed  over  to
      the appellant No. 1 herein on 09.11.2010 and thereafter the  execution
      of the work had started.  In March 2011,  as  per  Clause  16  of  the
      Agreement  dated  06.06.2009,  a  spot  inspection  was  conducted  by
      renowned structural engineers which  pointed  out  several  structural
      lacunae.  On coming to know about the  same,  the  respondent  further
      arranged inspection by various specialized  agencies  which  confirmed
      the same in their reports.
   c) Being aggrieved by the quality of construction, the respondent  served
      a legal notice  dated  19.09.2011  to  the  appellant  No.  1  seeking
      damages.  The respondent,  vide  Clause  33  of  the  said  agreement,
      appointed a sole arbitrator claiming that the appellant No. 1 has  not
      complied with the terms of the agreement whereby  disputes,  requiring
      adjudication, have  arisen  between  the  parties.   In  statement  of
      claims, the respondent, besides other claims, also sought for a sum of
      Rs. 39.85 lakhs paid to the appellant No. 1 along with a  sum  of  Rs.
      35,000/- for the TDS deposited to her credit.
   d) The appellants filed a suit for declarations, permanent injunction and
      recovery before the High Court being CS(OS) No. 1532 of 2012 seeking a
      decree that the agreement dated 06.06.2009 entered  into  between  the
      appellant  No.  1  and  the  respondent  was  vitiated  and  had  been
      terminated by mutual consent by both the parties  and  any  proceeding
      initiated pursuant to the agreement is null, non-est and void and also
      for recovery of an amount of Rs. 45,50,000/-.
   e) It is also pertinent to mention here that it was alleged in the plaint
      that a formal meeting was held between the parties  in  which  it  was
      decided that appellant No.1 will no longer be the contractor  and  the
      agreement dated 06.06.2009 would stand terminated  by  mutual  consent
      and the construction would be carried out by the sub-contractors to be
      appointed as per the advice of appellant No. 2 who would supervise the
      same without remuneration/profit.
   f) The respondent filed I.A. No. 12124 of 2012 in CS(OS) No. 1532 of 2012
      under Section 8 of the Arbitration  and  Conciliation  Act,  1996  (in
      short ‘the Act’) claiming that the subject-matter of  dispute  in  the
      present suit is  already  pending  adjudication  before  the  Arbitral
      Tribunal, hence, the suit cannot be proceeded with which was denied by
      the appellants in their reply to the above said application.
   g) Vide order dated 17.09.2012, learned single Judge of the  High  Court,
      found that the suit is bad for misjoinder of parties as  well  as  for
      causes of action and gave an option to the appellants therein to elect
      whether they want the suit to be treated as a  suit  for  recovery  of
      money by appellant No. 2 herein against the respondent or a  suit  for
      declarations and injunction by appellant No. 1.
   h) Being aggrieved by the order dated 17.09.2012, the appellants went  in
      appeal and filed FAO (OS) being No. 470 of 2012 before the High Court.
       A division bench of the High  Court,  vide  order  dated  28.09.2012,
      dismissed the appeal.
   i) Aggrieved by the order dated 28.09.2012,  the  appellants  have  filed
      this appeal by way of special leave before this Court.
3)    Heard Mr. Jayant Bhushan, learned senior counsel  for  the  appellants
and Mr. Sakal Bhushan, learned counsel for the respondent  and  perused  the
records.
Point for consideration:-
4)    The only point for consideration before this Court is whether  in  the
present facts and circumstances of the case the suit is bad  for  misjoinder
of parties as well as for causes of action?
Rival submissions:-
5)    Learned senior counsel for the appellants contended before this  Court
that the agreement dated 06.06.2009 was executed  with  dishonest  intention
containing the arbitration clause  and  in  any  event  the  same  has  been
superseded by a subsequent oral agreement between  appellant  No.  2  herein
and the respondent.
6)    Learned senior counsel further contended that the High Court erred  in
upholding that the cause of action with respect to relief  of  money  is  an
independent cause of action from that of  the  relief  of  declarations  and
injunction.  The High Court failed to appreciate that common trial of  joint
causes of   action is necessary, if at all, as they raise  common  questions
of law and facts and the course adopted by the  High  Court  would  lead  to
multiplicity of proceedings causing delay.  Learned senior  counsel  finally
contended that in view of the patent illegality in the orders passed by  the
High Court, the same are liable to be set aside.
7)    Without prejudice to the aforesaid, learned  senior  counsel  for  the
appellants, in the alternative submitted that the entire matter be  referred
to another  sole  arbitrator  which  may  be  appointed  by  this  Court  as
according  to  him,  in  the  written  contract,  there  was  a  clause  for
arbitration and, subsequently, in the oral contract also, the terms  of  the
earlier contract continued to remain in operation except  those  which  were
modified in the oral contract.
8)    In support of the above submission, learned  senior  counsel  for  the
appellants placed reliance upon a judgment  of  this  Court  in  P.R.  Shah,
Shares and Stock Brokers  Private  Limited  vs.  B.H.H.  Securities  Private
Limited and Others (2012) 1 SCC 594.  He has referred  to  paragraph  19  of
the judgment which reads as under:-

        “19. If A had a claim against B and C, and there was an arbitration
      agreement between A and B  but  there  was  no  arbitration  agreement
      between A and C, it might not be possible to have a joint  arbitration
      against B and C. A cannot make a claim against  C  in  an  arbitration
      against B, on the ground that the claim was being made jointly against
      B and C, as C was not a party to the arbitration agreement. But  if  A
      had a claim against B and C and if A had an arbitration agreement with
      B and A also had a separate arbitration agreement with C, there is  no
      reason why A  cannot  have  a  joint  arbitration  against  B  and  C.
      Obviously,  having  an  arbitration  between  A  and  B  and   another
      arbitration between A and C in regard to the same claim would lead  to
      conflicting decisions. In such a case, to deny the benefit of a single
      arbitration against B  and  C  on  the  ground  that  the  arbitration
      agreements against B and C are different, would lead  to  multiplicity
      of proceedings, conflicting decisions and cause injustice. It would be
      proper and just to say that when A has a claim jointly against  B  and
      C, and when there are provisions for arbitration in respect of both  B
      and C, there can be a single arbitration.”


9)    Per contra, learned counsel for  the  respondent  submitted  that  the
suit has been filed by the two appellants jointly with respect  to  the  two
separate alleged causes of action. He further  submitted  that  the  alleged
cause of action of the appellant No. 1 is based  upon  the  agreement  dated
06.06.2009  between  the  appellant  No.  1  and  the  respondent  in  which
appellant No. 2 cannot be said to have any joint interest  and  the  alleged
cause of action of appellant No. 2  is  based  upon  an  oral  understanding
arrived at between appellant No.2 and the respondent in which appellant  No.
1 cannot be said to have  any  joint  interest.   Learned  counsel  for  the
respondent further submitted that in such circumstances,  the  instant  suit
in the present form is not maintainable in terms of Order II Rule 3  of  the
Code of Civil Procedure, 1908 (in short ‘the Code’)  and  the  suit  of  the
appellant No. 1 is required to be separated under Order II  Rule  6  of  the
Code.
10)   Learned counsel further submitted that in view  of  the  existence  of
the arbitration clause in the agreement dated  06.06.2009  and  the  subject
matter of dispute between  the  parties  in  the  present  suit  is  already
pending adjudication before the Arbitral Tribunal, the  instant  suit  filed
by the appellant No. 1 cannot be proceeded with and the matter  is  required
to be referred to arbitration.  Learned counsel finally submitted  that  the
judgment rendered by the division bench of  the  High  Court  upholding  the
decision of the learned single Judge  is  correct  and  no  interference  is
called for in the appeal.
11)   Learned counsel further submitted  that  the  oral  contract  did  not
contain any clause for arbitration and the dispute raised by  the  appellant
No. 2 cannot be referred to arbitration.   In  support  whereof,  he  relied
upon a decision of this Court in  Kvaerner  Cementation  India  Limited  vs.
Bajranglal Agarwal and Another (2012) 5 SCC 214 wherein this Court has  held
that there cannot be any dispute that in the absence of  arbitration  clause
in the agreement, no  dispute  could  be  referred  for  arbitration  to  an
Arbitral Tribunal.
12)   Learned counsel, however, submitted that if this Court  comes  to  the
conclusion that the matter should be resolved by  way  of  arbitration,  the
entire matter be referred to the sole arbitrator already  appointed  by  the
respondent.
Discussion:
13)   From the materials on record, it is evident that  an  agreement  dated
06.06.2009 was executed between the parties wherein appellant No. 1 was  the
contractor and the respondent as a client.  The agreement  impugned  clearly
states that there is an arbitration clause therein.  Owing  to  the  dispute
among parties, the respondent, in exercise  of  his  right  under  the  said
clause, appointed a sole arbitrator.  Subsequently, notices were  issued  to
the appellant No. 1 and  the  matter  remained  pending  despite  appearance
before the Arbitral Tribunal.   In  the  meantime,  the  appellants  jointly
filed a suit before the High Court for  declarations,  permanent  injunction
and recovery claiming a formal meeting  was  held  between  the  parties  in
which it was decided that appellant No.1 will no longer  be  the  contractor
and the agreement dated 06.06.2009 would stand terminated by mutual  consent
and the construction would be carried  out  by  the  sub-contractors  to  be
appointed as per the advice of appellant No. 2 who would supervise the  same
without remuneration/profit.  The respondent filed I.A. No.  12124  of  2012
in CS(OS) No. 1532 of 2012 under Section 8 of  the  Act  claiming  that  the
subject-matter  of  dispute  in  the  present  suit   is   already   pending
adjudication before  the  Arbitral  Tribunal,  hence,  the  suit  cannot  be
proceeded with.  Vide order dated 17.09.2012, learned single  Judge  of  the
High Court, found that the suit is bad for mis-joinder of  parties  as  well
as for causes of action and gave  an  option  to  the  appellants  to  elect
whether they want the suit to be treated as a suit for recovery of money  by
appellant No. 2 herein against the respondent or  a  suit  for  declarations
and injunction by appellant No. 1.  The appellants  went  in  appeal  before
the division bench of the High Court.   Vide  order  dated  28.09.2012,  the
division bench also dismissed the same.
14)   From the facts of this case,  we  find  that  a  suit  was  filed  for
declarations, permanent injunction and recovery of money by  the  appellants
stating that a meeting was held in between  the  parties  in  which  it  was
decided that appellant No. 1 would no  longer  be  the  contractor  and  the
agreement dated 06.06.2009 would stand terminated by mutual consent and  the
construction would be carried out by the sub-contractors to be appointed  as
per the suggestions of appellant No.2, who  would  supervise  the  same  but
without any profit/remuneration as per the oral agreement.   The  respondent
agreed to make all payments towards purchase of material, construction,  fee
of architect etc.  Appellant No. 2 incurred an amount of Rs.  45  lakhs  for
and on behalf of the respondent which is sought to be recovered  under  this
suit.  The appellants also claimed a declaration  to  the  effect  that  the
agreement dated 06.06.2009 between appellant No. 1 and  the  respondent  was
obtained by fraud and  mis-representation,  hence,  it  is  null  and  void.
Another declaration sought for in the suit  was  that  the  agreement  dated
06.06.2009 stood terminated by mutual consent.  A decree for  injunction  is
also sought for restraining the respondent from initiating and  carrying  on
any  proceeding  arising  out  of  and  on  the  basis  of  agreement  dated
06.06.2009 between appellant No. 1 and the respondent.  On the  other  hand,
the respondent took the preliminary objection  that  the  suit  is  bad  for
misjoinder of parties and causes of action and further that the  arbitration
proceedings initiated  by  the  respondent,  in  terms  of  the  arbitration
clause, is pending adjudication before the Arbitral Tribunal.
15)   Admittedly, the cause of action for recovery of Rs. 45  lakhs  claimed
in the present suit is the expenditure alleged  to  have  been  incurred  by
appellant No. 2 pursuant to the oral agreement he claims  he  had  with  the
respondent sometime in April, 2011.  On the other hand, the cause of  action
with respect to reliefs of declarations  and  injunction  is  the  agreement
dated 06.06.2009.   The alleged agreement dated 06.06.2009 was,  admittedly,
between the appellant No. 1 and the respondent to which appellant No. 2  was
only a witness, which as per the terms of the plaint terminated later on  by
mutual agreement between the appellant No. 1 and the  respondent.   At  this
stage, it was agreed orally that appellant No. 2,  who  is  the  husband  of
appellant No. 1, would  take  over  the  execution  of  the  pending  works.
Admittedly, Appellant No. 1 is not a party to  the  alleged  oral  agreement
between  Appellant  No.  2  and  the  respondent  for  supervision  of   the
construction by him.
16)   From the materials available on record, particularly,  the  transcript
of conversation between the appellant No. 2 and the respondent  on  6th  and
7th April, 2011, we find that the oral agreement was  substituted  in  place
of the alleged written agreement dated  06.06.2009.   There  is  a  complete
accord and discharge of the responsibilities and  liabilities  of  appellant
No. 1 vis-à-vis the defendant and vice-versa.  The plaint  also  avers  that
after  the  accord  between  appellant  No.  1  and   the   respondent   and
simultaneous discharge of the obligations, a  distinct  oral  agreement  was
entered into between appellant No. 2 and the respondent. It is  quite  clear
from what has been stated above that the cause of action: the right  to  get
declarations with regard to the said contract as null and void  or  a  right
to seek an injunction restraining the respondent from taking any  action  on
the basis of the said contract, if any, with regard  to  the  prior  written
agreement arises in favour of appellant No. 1 against respondent and not  in
favour of appellant No. 2 as he was not  a  party  to  the  agreement  dated
06.06.2009.  On the similar lines, the right to seek  money  decree,  as  is
claimed by the appellants, would be a distinct cause of  action  founded  on
subsequent oral agreement between the appellant No. 2 and the respondent.
17)   Learned single Judge of the High Court, vide order  dated  17.09.2012,
directed the parties to elect as  to  whether  they  want  the  suit  to  be
treated as a suit for recovery of money  by  appellant  No.  2  against  the
respondent or a suit for declarations and  injunction  by  appellant  No.  1
against the respondent and to amend the plaint accordingly.  Learned  single
Judge, after taking a considered view that the suit is  bad  for  misjoinder
of parties and/or misjoinder of causes of action, held that the  application
filed by the defendant under Section 8 of the Act would be disposed of  only
after the  appellants  make  an  election  in  terms  of  this  order.   The
appellants herein, instead of amending the plaint,  went  in  appeal  before
the division bench, which got dismissed vide order dated 28.09.2012.
18)   Since the suit was dismissed for misjoinder of parties  and/or  causes
of action, it is pertinent to mention here the law on the point which is  as
under:-
Order II Rule 3
      “Joinder of causes of action –  (1)  Save  as  otherwise  provided,  a
      plaintiff may unite in the same suit several causes of action  against
      the same defendant, or the same defendants jointly; and any plaintiffs
      having causes of action in which they are jointly  interested  against
      the same defendant or the  same  defendants  jointly  may  unite  such
      causes of action in the same suit.


      (2)   Where causes of action are united, the jurisdiction of the Court
      as regards the suit shall  depend  on  the  amount  or  value  of  the
      aggregate subject matters at the date of instituting the suit.”


Order II Rule 6

      “Power of Court to order separate trials – Where  it  appears  to  the
      court that the joinder of causes of action in one suit  may  embarrass
      or delay the trial or is otherwise inconvenient, the Court  may  order
      separate trials or make such other order as may be  expedient  in  the
      interests of justice.”

In Black's Law Dictionary it has been stated that the expression  ‘cause  of
action’ is the fact or facts  which  give  a  person  a  right  to  judicial
relief.  A cause of action, thus, means every fact, which, if traversed,  it
would be necessary for the plaintiff to prove in order to support his  right
to a judgment of the court. In other words, it is a bundle  of  facts  which
taken with the law applicable to them gives the plaintiff a right to  relief
against the defendant. It must include some act done by the defendant  since
in the absence of such an act no cause of action can possibly accrue. It  is
not limited to the actual infringement of the right  sued  on  but  includes
all the material facts on which it is founded.
19)   Order II, Rule 3, provides  for  the  joinder  of  several  causes  of
action and states that a plaintiff  may  unite  in  the  same  suit  several
causes of action against the same defendant, or the same defendants  jointly
or several plaintiffs having causes of action  in  which  they  are  jointly
interested against the same defendant or defendants jointly may  unite  them
in one suit.  The remedy for any possible inconvenience with regard to  said
rule is supplied by the provisions of Order II,  Rule  6,  which  authorizes
the Court to order separate trials of causes of action which  though  joined
in one suit cannot be conveniently tried or disposed of together.
20)   Similarly, Order I Rule 1 of the Code permits  joinder  of  more  than
one persons any right to relief in respect of, or arising out of,  the  same
act or transaction or series of acts or transactions is alleged to exist  in
such persons, whether jointly, severally or in the alternative; and if  such
persons brought separate suits, any common question of  law  or  fact  would
arise.  Order I Rule 2 provides that where it appears to the court that  any
joinder of plaintiffs may embarrass or delay the  trial  of  the  suit,  the
court may put the plaintiffs to their election or order separate  trials  or
make such other order as may be expedient.
21)   In this connection, it is pertinent to refer to  a  judgment  of  this
Court in Ramesh Hirachand Kundanmal vs.  Municipal  Corporation  of  Greater
Bombay and Others 1992 (2) SCC 524 wherein it was held as under:-
      “14. It cannot be said that the main object of the rule is to  prevent
      multiplicity of actions though it may incidentally have  that  effect.
      But that appears to be a desirable consequence of the rule rather than
      its main objectives. The  person  to  be  joined  must  be  one  whose
      presence is necessary as a party. What  makes  a  person  a  necessary
      party is not merely that he has relevant evidence to give on  some  of
      the questions involved; that would only make him a necessary witness .
      It is not merely that he has an interest in the  correct  solution  of
      some questions involved and  has  thought  or  relevant  arguments  to
      advance. The only reason which makes it necessary to make a  person  a
      party to an action is that he should be bound by  the  result  of  the
      action and the question to be settled, therefore, must be  a  question
      in the action which  cannot  be  effectually  and  completely  settled
      unless he is a party.”

22)   In view of the foregoing discussion, we are of the  opinion  that  the
appellants  even  though  had  different  causes  of  action   against   the
respondent but it was a continuity of the  agreement  dated  06.06.2009  and
oral agreement is evidenced by the transcript of  conversation  between  the
appellant No. 2 and the respondent  on  6/07.04.2011,  therefore,  both  the
appellants could have joined as plaintiffs in a suit and  the  suit  is  not
bad for misjoinder of parties or causes of action.   Hence,  learned  single
Judge as also the division bench, was not right in giving an option  to  the
appellants to pursue reliefs qua appellant No. 1  or  qua  appellant  No.  2
only.
23)   In the present facts  and  circumstances  of  the  case,  it  is  also
imperative to find out whether the High Court was justified in deciding  the
maintainability of the suit when an application under Section 8 of  the  Act
is pending adjudication before the  Arbitral  Tribunal.   Before  proceeding
further, it is appropriate to quote here Section 8 of the  Act  which  reads
as under:-
      “8.   Power  to  refer  parties  to  arbitration  where  there  is  an
      arbitration agreement. – [(1) A judicial authority,  before  which  an
      action is brought in a matter which is the subject of  an  arbitration
      agreement shall, if a party to the arbitration agreement or any person
      claiming through or under him, so applies not later than the  date  of
      submitting his first statement on the substance of the dispute,  then,
      notwithstanding any judgment, decree or order of the Supreme Court  or
      any Court, refer the parties to arbitration unless it finds that prima
      facie no valid arbitration agreement exists.]
      (2)  The application referred to  in  sub-section  (1)  shall  not  be
      entertained unless it  is  accompanied  by  the  original  arbitration
      agreement or a duly certified copy thereof:
           [Provided that where the original  arbitration  agreement  or  a
           certified copy thereof is not available with the party  applying
           for reference to arbitration under sub-section (1), and the said
           agreement or certified copy is retained by the  other  party  to
           that agreement, then, the party  so  applying  shall  file  such
           application along with a copy of the arbitration agreement and a
           petition praying the Court to  call  upon  the  other  party  to
           produce the original arbitration agreement or its duly certified
           copy before the Court.]
      (3)   Notwithstanding that an application has  been  made  under  sub-
      section (1)  and  that  the  issue  is  pending  before  the  judicial
      authority, an  arbitration  may  be  commenced  or  continued  and  an
      arbitral award made.”


24)   It is also worthwhile to note Clause   33(d) of  the  agreement  dated
06.06.2009 which refers the parties to Arbitration:-
         “Governing Law & Dispute  Resolution:  All  or  any  disputes  and
      differences  whatsoever  between  the  parties  arising  out  of  this
      Agreement or relating to or touching the mutual rights and obligations
      of  the  parties  shall  be  subject  to  the  jurisdiction   of   the
      Courts/Forums in Delhi only and shall be referred for adjudication  to
      the sole arbitrator, to be appointed solely  and  exclusively  by  the
      FIRST PARTY, whose decision  shall  be  final  and  binding  upon  the
      parties.  The arbitration proceedings shall  be  held  at  New  Delhi,
      India and only the  Courts  at  New  Delhi,  India  alone  shall  have
      jurisdiction over the subject matter of this AGREEMENT.”

25)   In Sundaram Finance Limited and Another vs. T. Thankam (2015)  14  SCC
444, this Court has held as under:-

        “8. Once there is an agreement between the  parties  to  refer  the
      disputes or differences arising out of the agreement  to  arbitration,
      and in case  either  party,  ignoring  the  terms  of  the  agreement,
      approaches the civil court and the other party, in terms of Section  8
      of the Arbitration Act, moves the court for referring the  parties  to
      arbitration before the first statement on the substance of the dispute
      is filed, in view of the peremptory  language  of  Section  8  of  the
      Arbitration Act, it is obligatory for the court to refer  the  parties
      to arbitration in terms of the agreement, as held by this Court in  P.
      Anand Gajapathi Raju v. P.V.G. Raju.”



26)   In P. Anand Gajapathi Raju & Others vs. P.V.G. Raju (Dead) and  Others
(2000) 4 SCC 539, it was held as under:-

      “5. The conditions which are  required  to  be  satisfied  under  sub-
   sections (1) and (2) of Section 8  before  the  court  can  exercise  its
   powers are:
        (1) there is an arbitration agreement;
        (2) a party to the agreement brings an action in the court  against
      the other party;
        (3) subject-matter of the action is the same as the  subject-matter
      of the arbitration agreement;
        (4) the other party moves the court for referring  the  parties  to
      arbitration before it submits his first statement on the substance  of
      the dispute.”




In view of the above, where an agreement  is  terminated  by  one  party  on
account of the breach committed by the other, particularly, in a case  where
the clause is framed in wide and general  terms,  merely  because  agreement
has come to an end by its termination by  mutual  consent,  the  arbitration
clause does not get perished nor is rendered inoperative.   This  Court,  in
the case of P. Anand Gajapathi Raju (supra), has held that the  language  of
Section 8 is peremptory in nature.  Therefore, in cases where  there  is  an
arbitration clause in the agreement, it  is  obligatory  for  the  court  to
refer the parties to arbitration in terms  of  their  arbitration  agreement
and nothing remains to be decided in  the  original  action  after  such  an
application  is  made  except  to  refer  the  dispute  to  an   arbitrator.
Therefore, it is clear that in an agreement between the parties  before  the
civil court, if there is a clause for arbitration, it is mandatory  for  the
civil court to refer the dispute to an arbitrator.
27)   In view of the above, we are of the considered  opinion  that  in  the
present case, the prerequisites for  an  application  under  Section  8  are
fulfilled, viz., there  is  an  arbitration  agreement;  the  party  to  the
agreement brings an action  in  the  court  against  the  other  party;  the
subject matter of the action is  the  same  as  the  subject-matter  of  the
arbitration agreement; and the other party moves  the  court  for  referring
the parties to arbitration before it submits  his  first  statement  on  the
substance of the dispute.  We have come to the  conclusion  that  the  civil
court had no jurisdiction to entertain a suit  after  an  application  under
Section 8 of the Act is made for arbitration. In such a  situation,  refusal
to refer the dispute to arbitration would amount to failure  of  justice  as
also causing irreparable injury to the defendant.
28)   As we have already held that the oral agreement as  evidenced  by  the
transcript of conversation between the appellant No. 2  and  the  respondent
on  06/07.04.2011  substituting  the   alleged   written   agreement   dated
06.06.2009 and which contained a clause for  arbitration,  the  same  clause
for arbitration would  also  be  applicable  to  the  oral  agreement.   The
Division Bench has also erred in  law  in  affirming  the  order  passed  by
learned single Judge.  Both the orders, therefore, cannot be  sustained  and
are set aside and, therefore, in view of the decision in P.R. Shah  (supra),
there  can  only  be  one  arbitrator  and  there  can  only  be  a   single
arbitration.
29)   In view of the  foregoing  discussion,  the  appeal  succeeds  and  is
allowed.  However, instead of remitting  the  matter  back  to  the  learned
single Judge for deciding the suit itself on merits, we refer  the  disputes
raised by the appellants in CS(OS) 1532  of  2012  to  the  sole  arbitrator
already appointed, viz., Hon’ble Mr. Justice V.K. Gupta (Retd.) and  request
the arbitrator to decide the disputes expeditiously in accordance with law.


                            ...…………….………………………J.


                                 (MADAN B. LOKUR)


















































                            .…....…………………………………J.


                               (R.K. AGRAWAL)



NEW DELHI;
APRIL 10, 2017.

“Beaulieu” Estate is the property of princess = The Division Bench of the High Court held that, in terms of Section 67, the aggrieved parties can file either a civil suit or an appeal against the order before the Karnataka Appellate Tribunal under Section 49 of the KLR Act. It did not decide the claim on merits. In the peculiar facts and circumstances of the present case, where the dispute regarding title has been raised after more than 100 years and when there is evidence to show that the land was bought for the benefit of First Princess, the allegation of fraud cannot be believed, especially in view of the contemporaneous evidence and the subsequent acquisitions out of this very estate, both by the Maharaja of Mysore before independence and by the State of Mysore after independence. The notice being without jurisdiction could be quashed in proceedings under Article 227 of the Constitution of India.= It is held that the “Beaulieu” estate was purchased by the Dewan of Mysore on behalf of the First Princess and the consideration was paid from the personal funds of First Princess. Therefore, the State of Karnataka has no right over the property. Consequently, the appeals are allowed and the judgment of the Division Bench of the High Court is set aside and that of the learned Single Judge is restored and the appeal filed by the appellant M. Sankaranarayanan which was transferred to the High Court is decided in terms of the judgments passed by the learned Single Judge and this Court.

                                                                ‘REPORTABLE’

                        IN THE SUPREME COURT OF INDIA
                        CIVIL APPELLATE JURISDICTION

                        CIVIL APPEAL NO. 4937 OF 2017
                 [Arising out of SLP (C) No. 20459 of 2014]


Sri M. Sankaranarayanan                            ... Appellant

                                   Versus

The Deputy Commissioner, Bangalore & Ors.    ... Respondents

                                    WITH

                        CIVIL APPEAL NO. 4939 OF 2017
                 [Arising out of SLP (C) No. 12595 of 2014]


Asha Chakko & Ors.                                 ... Appellants

                                   Versus

State of Karnataka & Anr.                          ... Respondents


                               J U D G M E N T


Deepak Gupta, J.


      Leave granted.
1.    As common questions of law and  facts  are  involved  in  these  civil
appeals, they are being disposed of by this common Judgment.

2.    The relevant facts are that, by a Conveyance  Deed  dated  25.08.1900,
one Lancelot Ricketts sold his property known  as  “Beaulieu”  measuring  24
acres and 12 gunthas situated  in  Bengaluru.    This  conveyance  deed  was
executed in favour of  the  Dewan  of  Mysore.   It  is  not  disputed  that
thereafter, on various occasions, portions of this Estate were  acquired  by
the erstwhile State of Mysore, both before and after independence.

3.     This  “Beaulieu”  Estate  is  apparently  located  in  the  heart  of
Bengaluru city.   It  appears  that  the  Office  of  the  Karnataka  Public
Service Commission had a boundary adjoining “Beaulieu”  estate  in  which  a
hotel under the name of Atria was being run.  There were a number  of  other
commercial buildings and residences, including the  residence  of  appellant
M. Shankaranarayanan in this estate.

4.    A complaint was sent by the Secretary of the Karnataka Public  Service
Commission on 14.05.2004 that, in the  year  1900,  the  property  had  been
transferred by the original owner Lancelot Ricketts in favour of  the  Dewan
of Mysore.  However,  it  was  fraudulently  shown  that  the  property  had
actually been purchased  for  the  First  Princess  of  Mysore  out  of  her
personal funds.   It was alleged that the  original  conveyance  deed  dated
25.08.1900 had been  executed  only  in  favour  of  the  Dewan  of  Mysore.
Furthermore, no stamp duty was paid on the sale deed and, therefore, it  was
complained that the sale was either totally illegal or that the sale was  in
favour of the State of Mysore and “Beaulieu” estate  was  not  the  personal
property of the  First  Princess.   In  the  same  complaint,  it  was  also
mentioned that, in the year 1956, the Government of Mysore acquired 6  acres
of “Beaulieu” estate and, in those proceedings,  Rajkumari  Leelavathi  Devi
was notified as the owner of the estate.   In  the  year  1959,  some  other
portions of the estate were acquired and this  time  K.  Basavaraj  Urs  was
shown as the owner.  It was complained that the acquisition of 20 acres  and
9 gunthas of land, out of the 24 acres and  12  gunthas,  was  a  fraudulent
acquisition and would not confer any rights upon the owners.

5.    As a result of this complaint, summary proceedings  under  Section  67
of the Karnataka Land Revenue Act, 1964  (for  short  ‘the  KLR  Act’)  were
initiated against the occupants of the land.     Aggrieved by  this  action,
one of the parties - Smt. Asha Chakko, who is appellant in Civil Appeal  No.
4939 of 2017 [arising out of SLP  (C)  No.  12595  of  2014]  filed  a  writ
petition before the Karnataka High Court, whereas the  other  parties  filed
appeals before the Appellate Tribunal.   The learned  Single  Judge  quashed
the order passed by the State of Karnataka on the ground that the State  had
no jurisdiction to pass the same.

6.    The State of Karnataka preferred an appeal  against  the  judgment  of
the learned Single Judge before the Division Bench of the High  Court.   The
appellant M. Sankaranarayanan applied for transfer of his appeal, which  had
been filed before the Appellate Tribunal, to the High Court.    This  prayer
was rejected  by  the  Karnataka  High  Court.   Thereafter,  the  appellant
approached this Court in SLP (C) No. 25034  of  2011  for  transfer  of  his
case.  This petition was allowed and the  operative  portion  of  the  order
reads as follows:
“3.   The appellant applied to the High Court for  transfer  of  Appeal  No.
690 of 2005, titled as  M.  Sankaranarayanan  vs.  Deputy  Commissioner  and
others: filed by him before the Karnataka Appellate Tribunal  (KAT)  to  the
High Court for hearing the same along with Writ  Appeal  No.  643  of  2009.
The High Court dismissed the application. While dismissing the  application,
the High Court observed that the appeal pending before the  KAT  has  to  be
heard and decided by the Tribunal itself and it cannot be clubbed  with  the
writ appeal.
4.    Having regard to the fact that the controversy in Writ Appeal No.  643
of 2009, which is pending before the High Court,  is  broadly  identical  to
the appeal which has been preferred by the appellant before KAT, we  are  of
the view that the High Court failed to exercise the jurisdiction  vested  in
it by transferring the appeal pending before the  KAT  to  itself  to  avoid
multiplicity of arguments as well as the conflict of judgments.
5.    We, accordingly, allow the appeal and direct that the Appeal  No.  690
of 2005, titled as “M. Sankaranarayanan vs. Dy. Commissioner, Bangalore  and
others” pending before the KAT be transferred to  the  High  Court  for  its
hearing and disposal along with Writ Appeal  No.  643  of  2009,  titled  as
“State  of  Karnataka  and  another  vs.  Asha  Chakko  and  others”.    The
Registrar, KAT shall transfer the record and proceedings of Appeal  No.  690
of 2005 to the High Court as expeditiously as may be possible and not  later
than four weeks from the date  of  receipt  of  copy  of  this  order.    No
costs.”


The writ appeal filed by the State of Karnataka in the  case  of  Smt.  Asha
Chakko was allowed mainly on the ground  that  the  writ  petition  was  not
maintainable, since the petitioner had an efficacious alternative remedy  of
approaching the Tribunal.  As far as  transferred  appeal  of  appellant  M.
Sankaranarayanan is concerned, the High Court held  that  since  the  appeal
had been filed before the Tribunal, it would be proper to remit it  back  to
the Tribunal for  decision.   Aggrieved  by  the  judgment  of  the  learned
Division Bench, these two appeals have been filed.

7.    We have heard Shri K. K. Venugopal, learned  Senior  Counsel  for  the
appellants and Shri J. N. Raghupathy,  learned  Counsel  for  the  State  of
Karnataka, at length.   The main contention of Shri Venugopal is  that  this
is a case where the action of  the  State  Government  is  hopelessly  time-
barred.  The acquisition took place in 1900 and the State  Government  could
not have issued  notices  after  more  than  100  years  claiming  that  the
property belonged to the State of Karnataka.  It is further  submitted  that
the very basis of the complaint is false because a careful consideration  of
the sale deed of 1900 clearly shows that this  was  a  sale  deed  which  is
executed in favour of the First Princess.  The  second  contention  is  that
the State had no jurisdiction to initiate proceeding  under  Section  67  of
the KLR Act.

8.    At this stage, it would  be  appropriate  to  refer  to  the  original
conveyance deed itself.   No doubt, the conveyance deed shows  that  it  had
been executed to the Dewan of Mysore by Lancelot Ricketts, however,  at  the
bottom of the conveyance deed, there is  a  note  that  the  same  has  been
registered and a fee of Rs.128.50 had been paid.  There is a memo on  record
which has been produced from the Archives of the State and this  shows  that
the Dewan of Mysore put up a memo before the Maharaja of  Mysore.   In  this
memo, it is stated that, as desired by His Highness,  the  Dewan  of  Mysore
had arranged to  purchase  Mr.  Lancelot  Ricketts’s  house  for  the  First
Princess Jayalakshammanni Avaru.  There are details of the  account  of  the
First Princess, cash balance and pension due to her and how  the  money  for
purchase of this house was to be appropriated out of the funds of the  First
Princess.  This memo was put up on 03.08.1990 and  approved  on  04.08.1990.
It would be apposite to mention that, on the side of this memo, there  is  a
note that His Highness before conveying approval may explain the  matter  to
and secure the  clearance  of  the  First  Princess.    This  was  done  and
approval given on 04.08.1990, where-after the conveyance deed  was  executed
on 25.08.1900.

9.    The matter does not end here.  As  mentioned  hereinabove,  the  total
area was 24 acres and 12 gunthas.  In the year 1918-19,  correspondence  was
exchanged between the Government of Mysore and the Controller of  Palace  of
Mysore with  regard  to  some  encroachment  upon  the  land  of  the  First
Princess.  Finally, the Government agreed to pay compensation of  Rs.2,300/-
for the same to the First Princess.  Again  in  1948  it  appears  that  the
State wanted to acquire some  portion  of  the  estate.   On  11.12.1948,  a
letter was written by the Huzur Secretary to the Government of  Mysore  that
since the land was part of “Beaulieu” estate which  belonged  to  the  First
Princess, all correspondence for acquisition of the  same  be  addressed  to
her.   On 06.08.1949, 12680 square yards,  out  of  ‘Beaulieu’  estate  were
acquired for a sum of Rs.1,95,000/- and the compensation  was  paid  to  the
First Princess.

10.   It would be pertinent to mention that the First Princess  married  one
Sri Kantharaje Urs in the year 1918 and they had a daughter Smt.  Leelavathi
Devi.  Smt. Leelavathi Devi became the owner of “Beaulieu” estate after  the
death of her parents and, after her death,  her  husband  K.  Basavaraj  Urs
succeeded to the property.

11.   On 02.08.1956, the Government of  Mysore  acquired  another  piece  of
land and, again, the compensation was paid  to  Rajkumari  Leelavathi  Devi,
the daughter of the First Princess.  Another portion  of  “Beaulieu”  estate
was acquired in the year 1959 and compensation  was  paid  to  K.  Basavaraj
Urs.

12.   As Rajkumari Leelavathi Devi and K. Basavaraj Urs had no  children  of
their own, they had adopted one K.B.  Ramachandraraj  Urs,  who  became  the
owner of the property after the death of his parents.  He  executed  a  sale
deed in favour of the appellant  M.  Sankaranarayanan  on  12.12.1973.   The
entry in the Revenue Record was also made in 1973.

13.    As  far  as  the  case  of  Smt.  Asha  Chakko  is  concerned,   K.B.
Ramachandraraj Urs sold a portion of the property  to               Smt.  M.
Meenakshi Amma vide sale deed dated 15.04.1971.               M.   Meenakshi
Amma, thereafter, executed a will in  favour  of  Dr.  Ammu  Nair,  who  was
recorded as owner of that portion of the property.   Dr.  Ammu  Nair  willed
the property in favour of Asha Chakko, Nikhilanand  Nair  and  Nityanand  N.
Nair.

14.   After the complaint dated  14.05.2004,  the  Government  of  Karnataka
issued  a  notice  under  Section  67(2)  of  the  KLR  Act.   Asha  Chakko,
Nikhilanand Nair and Nityanand N. Nair filed  a  writ  petition  before  the
High Court challenging the notice and the learned Single Judge of  the  High
Court vide order dated 05.02.2009 passed in W.P. No. 16974 of  2005  allowed
the writ petition in the following terms:
“24.   Having regard to the admitted  circumstances  in  the  present  case,
where the properties originally sold in the  year  1900  by  Shri.  Lancelot
Ricketts has been divided and sub divided and sold to several  parties  over
the years by various individual and a portion of which has been acquired  by
the  petitioners,  under  registered  documents,   apart   from   compulsory
acquisition proceedings  in  respect  of  other  portions  of  the  property
whereby the government itself has consistently  acknowledged  the  ownership
of individual, they cannot be ousted by recourse to section 67.  This  would
be so even on the principal, that fraud would vitiate all.
25.       Reliance sought to be placed  on  the  judgment  of  the  Division
Bench of this court in  respect  of  land  granted  by  the  Government  for
temporary cultivation and subsequent alienation by the  grantees  in  favour
of the appellants, in that case, had only resulted in enquiries having  been
conducted and  entries  made  in  the  revenue  records  in  favour  of  the
appellants having been rounded off and the name  of  the  Government  having
been substituted. The dispute as regards title, was not adjudicated and  any
observations as regards title were held  to  be  inconsequential.  The  said
judgment would not be relevant to the facts of the present case.
26.       Further, Section 67(2) does not provide for an order  of  eviction
being passed. In the light  of  section  67(3)  providing  for  time,  to  a
claimant in respect of any Government property, of one  year,  the  impugned
order directing that the respondents be evicted and that they hand over  the
property in their possession to the Government within 21 days of service  of
the order is also without jurisdiction.”

It was held that the authority could not have come to  the  conclusion  that
the deed of conveyance executed on 25.08.1900 was  fraudulently  claimed  by
Lancelot Ricketts in favour of the First Princess.  It was  also  held  that
no presumption could be raised that the erstwhile royal  family  had  sought
to play fraud and, therefore, the learned Single Judge  quashed  the  entire
proceedings.  As we have already mentioned above,  the  State  of  Karnataka
filed an appeal and that appeal has been allowed only  on  the  ground  that
the proper remedy for the writ petitioner(s) was to approach  the  Appellate
Tribunal.

15.   Section 67 of the KLR Act reads as follows:
“67. Public roads, etc., and all lands which are not the property of  others
belong to the Government.—
All public roads, streets, lanes and  paths,  bridges,  ditches,  dikes  and
fences, on or beside the same, the bed  of  the  sea  and  of  harbours  and
creeks below high water mark and  of  rivers,  streams,  nallas,  lakes  and
tanks and all canals and water-courses and all standing and flowing  waters,
and all lands wherever situated which are not the  property  of  individuals
or of aggregate of persons legally capable of holding property,  and  except
in so far as any rights of such persons may be established, in or  over  the
same, and except as may be otherwise provided in any law for the time  being
in force, are and are hereby declared to be with all rights in or  over  the
same or appertaining thereto, the property of the State Government.
Explanation.— In this section, “high water mark”  means  the  highest  point
reached by ordinary spring tides at any season of the year.
(2) Where any property or any right in or over any property  is  claimed  by
or on behalf of the State Government or by any person as against  the  State
Government, it shall be lawful for  the  Deputy  Commissioner  or  a  Survey
Officer not lower in rank than a Deputy Commissioner, after  formal  inquiry
to pass an order deciding the claim.
(3) Any person aggrieved by an  order  made  under  sub-section  (2)  or  in
appeal or revision therefrom may  institute  a  civil  suit  contesting  the
order within a period of one year from the date of such order and the  final
decision in the civil suit shall be binding on the parties.”

A bare reading of the section shows that public roads, streets, lanes  etc.,
and all lands which  are  not  the  properties  of  others,  belong  to  the
Government. Where the property is recorded in the  ownership  of  any  other
person  or  persons  who  are  legally  capable  of  holding  property,  the
provisions of Section 67 will not apply.   Section  67  cannot  be  used  to
dispute the title of persons who have been holding property  for  more  than
100 years.  Prior to the conveyance deed being executed on  25.08.1900,  the
Dewan of Mysore had put up a note to His Highness  the  Maharaja  of  Mysore
that the estate property is being bought for  the  First  Princess  and  the
payment was to be made out of her personal funds.   He  had  also  requested
the Maharaja to apprise the First Princess about the facts and  then  obtain
her approval.  It is not believable that, in the year 1900, the Maharaja  of
Mysore and his Dewan colluded to commit fraud on the State of Mysore with  a
view to favour the First Princess.

16.   As is clear from the facts narrated above, various  acquisitions  took
place out of “Beaulieu” estate.  More than 20 acres of the  total  24  acres
and 12 gunthas were acquired by the Government of Mysore both prior  to  and
after the independence of the country.   Nobody raised any  objection.    If
the land belonged to  the  State,  why  would  the  State  acquire  its  own
property?  This question has not been answered.  Various  transactions  have
taken place after the year 1971  and  portions  of  this  estate  have  been
sold/transferred from one person to another.  Entries in the Revenue  Record
were made, but the State never raised any objection.  The  sale  deeds  were
registered without demur.  It was only in the year 2004 that  some  official
of the Karnataka  Public  Service  Commission  filed  a  complaint  in  this
regard.  In the meantime, hotels, commercial buildings  and  residences  had
come up on various portions of the estate.

17.   After 104 years of the execution of the original conveyance deed,  and
after acquiring various lands out of this very estate, we cannot permit  the
State to urge that the original conveyance deed is fraudulent  or  that  the
subsequent transfers are all collusive and, as such, void.   There are  many
bona fide purchasers and, even otherwise, we are not inclined to  hold  that
the original transaction was invalid.

18.   Furthermore, a bare perusal of Section 67 clearly  indicates  that  it
only applies to public roads, streets, lanes etc. or  to  such  lands  which
are not the property of individuals, or  an  aggregate  of  persons  legally
capable of holding property.  A dispute of title  of  property  between  the
State and individuals cannot be decided in terms  of  Section  67.    Merely
because the Secretary of the Karnataka Public  Service  Commission  had,  in
his complaint, opined that the deed of conveyance  executed  more  than  100
years back was fraudulently claimed to be in favour of the  First  Princess,
was not sufficient ground to proceed under Section  67.   It  could  not  be
held that all subsequent transactions relating to the estate  property  were
fraudulent.   Fraud must be pleaded  and  proved;  it  cannot  be  presumed.
Therefore, we are of the view that the learned Single  Judge  was  justified
in holding that the proceedings under Section 67 were without  jurisdiction.
 We are also of the view that the  proceedings  are  beyond  the  period  of
limitation.

19.   The Division Bench of the High Court held that, in  terms  of  Section
67, the aggrieved parties can file either a civil suit or an appeal  against
the order before the Karnataka Appellate Tribunal under Section  49  of  the
KLR Act.  It did not decide the claim on merits.    In  the  peculiar  facts
and circumstances of the present case, where  the  dispute  regarding  title
has been raised after more than 100 years and  when  there  is  evidence  to
show that the land was  bought  for  the  benefit  of  First  Princess,  the
allegation  of  fraud  cannot  be  believed,  especially  in  view  of   the
contemporaneous evidence and the subsequent acquisitions out  of  this  very
estate, both by the Maharaja of Mysore before independence and by the  State
of Mysore after independence.  The notice being without  jurisdiction  could
be quashed in proceedings under Article 227 of the Constitution of India.

20.   In view of the above discussion, we are clearly of the view  that  the
Division Bench of the High Court erred in setting aside the judgment of  the
learned Single Judge.  It is held that the “Beaulieu” estate  was  purchased
by  the  Dewan  of  Mysore  on  behalf  of  the  First  Princess   and   the
consideration  was  paid  from  the  personal  funds  of   First   Princess.
Therefore,  the  State  of  Karnataka  has  no  right  over  the   property.
Consequently, the appeals are allowed  and  the  judgment  of  the  Division
Bench of the High Court is set aside and that of the  learned  Single  Judge
is restored and the appeal filed by the appellant M. Sankaranarayanan  which
was transferred to the High Court is  decided  in  terms  of  the  judgments
passed by the learned Single Judge and this Court.


................................J.
(MADAN. B. LOKUR)




................................J.
(DEEPAK GUPTA)

New Delhi,
April 10, 2017.

whether the loss or damage to the insured machine was caused by an explosion or by a short circuit. According to National Insurance, a short circuit in the machine disentitled the insured from making a claim. The National Commission held, on a consideration of the evidence that an explosion had occurred in the machine and that resulted in a short circuit and consequent loss or damage to the machine. 24. Having gone through the evidence on record, we find that the view taken by the National Commission is not only based on the evidence on record, but is in any event a possible view. In the absence of any material error in appreciation of the evidence, we do not think it proper to substitute the view taken by the National Commission with our view. 25. Therefore even in this appeal, National Insurance has not been able to make out a case for interference with the order passed by the National Commission. Result 26. Both the appeals are without any merit and are accordingly dismissed.

                                                                  REPORTABLE

                         IN THE SUPREME COURT OF INDIA

                        CIVIL APPELLATE JURISDICTION

                        CIVIL APPEAL NO. 3883 OF 2007



NATIONAL INSURANCE CO. LTD.                      ...APPELLANT

                                     VS.

HINDUSTAN SAFETY GLASS WORKS LTD.                 ..RESPONDENT

                                    WITH

                        CIVIL APPEAL NO. 1156 OF 2008



NATIONAL INSURANCE CO. LTD.                  ...APPELLANT

                                     VS.

KANORIA CHEMICALS & INDUSTRIES LTD.               ..RESPONDENT



                               J U D G M EN T



Madan B. Lokur, J.



The question arising in the first appeal directed against the  judgment  and
order dated 23rd April,  2007  passed  by  the  National  Consumer  Disputes
Redressal Commission (for  short  ‘the  National  Commission’)  in  Original
Petition No. 161 of 1996 is whether the claim of the  respondent  for  goods
insured, was rightly accepted (though in part) by the National Commission  .
Our answer to this question is in the affirmative and we find no  reason  to
interfere with the decision of the National Commission.
2.    The respondent Hindustan Safety  Glass  Works  Ltd.  (for  short  ‘the
insured’) had taken out two policies with the appellant  National  Insurance
Company, both dated 29th August, 1990 for a period of one  year  which  were
subsequently renewed for another year.  The first policy was for  an  amount
of Rs. 4.9  lakhs  to  cover  the  risks  on  office  building,  residential
quarters and canteen etc. in Calcutta. The second policy was for  an  amount
of about Rs. 5.7 crores to cover the risks on building, machinery,  finished
and semi finished stocks, store, furniture, wiring and fittings etc. in  its
factory/works in Calcutta.  The policies included  damage  or  loss  due  to
flood and inundation.

3.    There is  no  dispute  that  on  6th  August,  1992  there  was  heavy
incessant rain in Calcutta resulting in heavy  accumulation  of  rain  water
inside and around  the  factory/works  of  the  insured.  According  to  the
insured, there was considerable damage to raw materials, stocks  and  goods,
furniture etc.  As a result of the damage suffered by  the  insured  and  in
terms of the two policies taken out with  National  Insurance,  claims  were
filed by the insured on 7th and 8th August, 1992 claiming a total amount  of
about Rs. 52 lakhs.

4.    Pursuant to the claims having been made, National Insurance  appointed
N.T. Kothari & Co. as its surveyor on 24th September,  1992.  The  requisite
survey was carried out and N.T. Kothari & Co. submitted its report  on  11th
November, 1993 indicating a loss of about Rs. 24 lakhs having been  suffered
by the insured.
5.    For reasons that are  not  very  clear,  National  Insurance  did  not
accept the report and instead appointed Seascan Services (WB) Pvt.  Ltd.  as
a surveyor to report on the loss or damage suffered  by  the  insured.   The
second surveyor gave its report on 23rd November, 1994  assessing  the  loss
or damage suffered by the insured at about Rs. 26  lakhs.   By  an  addendum
issued on 10th February, 1995 the damage or loss  incurred  by  the  insured
was reduced to about Rs. 24 lakhs.

6.    In spite  of  two  survey  reports  quantifying  the  loss  or  damage
suffered at about Rs. 24 lakhs, nothing was paid to the insured by  National
Insurance. Consequently, on 22nd April, 1996 the insured sent in  notice  to
National Insurance to the effect that its claim had  not  been  settled  and
that the loss or damage claimed was to the extent of about Rs. 52 lakhs  and
that this should be paid.

7.    National Insurance did not reply to this notice and consequently,  the
insured filed a complaint with the National Commission under the  provisions
of the Consumer Protection Act, 1986  (for  short  ‘the  Act’)  claiming  an
amount of   Rs. 52.32 lakhs along with an  amount  of  about  Rs.1.81  lakhs
being the expenses incurred for the purpose of loss minimisation.   Interest
at 18% per annum was also claimed  by  the  insured  with  effect  from  6th
December, 1992 that is four months after the  occurrence  of  the  flood  or
inundation.
8.    At this stage, it may be noted that the claims made by the insured  in
terms of its letters dated 7th and 8th August, 1992 as well  as  the  notice
dated 22nd April, 1996 were repudiated by National Insurance much  later  on
22nd May, 2001 which is about five years after the complaint was filed  with
the National Commission.

9.    Be that as it may, in response to the complaint and during the  course
of submissions, National Insurance raised four objections.  These have  been
summarised by the National Commission as follows:

Complaint was barred by condition No. 6(ii) of the policies;

Complaint was barred by limitation as it was filed on 13.08.1996  while  the
loss/damage to the insured properties had taken place in August, 1992.



Alleged loss had been caused due to accumulation of  dust  and  moisture  on
the stocks lying  unattended  because  of  lock  out  in  the  factory  from
03.05.1991 and not as a result inundation/flood.



None of the two survey reports can form the basis for payment of the  amount
claimed.



10.    The  National  Commission  rejected  all  the  contentions  urged  by
National Insurance and by the impugned judgment and order  the  insured  was
awarded an amount of Rs. 21,05,803.89 with interest at  9%  per  annum  from
11th May, 1995  that is three months after the addendum  issued  by  Seascan
Services (WB) Pvt. Ltd. (the second surveyor).  Costs of Rs.  20,000/-  were
also awarded to the insured.  In our  opinion  there  is  no  error  in  the
decision appealed against.
11.    In so far as the first objection is concerned,  namely,  reliance  on
condition number 6(ii) of the insurance policies it is  necessary  to  first
understand the scope of this condition which reads as follows:
“In no case whatsoever shall the company be liable for any  loss  or  damage
after the expiration of 12 months from the happening of the loss  or  damage
unless the claim is the subject of pending action or arbitration:  it  being
expressly agreed and declared that if the company shall  disclaim  liability
for any claim hereunder and such claim shall not within 12  calendar  months
from the date of the disclaimer have been made the subject matter of a  suit
in a court of law and the claim shall for all purposes  be  deemed  to  have
been abandoned and shall not thereafter be recoverable hereunder.”



12.   A plain reading of the aforesaid condition  leads  to  the  conclusion
that National Insurance would not be  liable  for  any  loss  or  damage  12
months after the event that caused the loss or damage to the insured  unless
the claim is the subject matter of a pending action or arbitration.  It  was
submitted by learned counsel for  National  Insurance  that  the  expression
‘pending action’ must relate to action instituted in a court of law.

13.   We are not at all impressed by this submission.  When a claim is  made
by the insured that itself is actionable. There is no question of  requiring
the insured to approach a court of law for adjudication of the claim.   This
would amount to the encouraging avoidable litigation which certainly  cannot
be the intention of the insurance policies and is in any case not in  public
interest. Moreover, the disclaimer by National Insurance  was  only  in  May
2001 and the period of  ‘limitation’  under  the  policies  could  not  have
started before that time.  We leave the matter at  that,  more  particularly
since the learned counsel for National  Insurance  strictly  did  not  press
this submission.
14.   However, learned counsel vehemently argued that in  terms  of  Section
24-A of the Act, the claim made by the  insured  was  barred  by  limitation
since the complaint was filed with the National Commission on  13th  August,
1996 while the loss or damage had occured on 6th August,  1992.   Therefore,
the National Commission could not have admitted the complaint since  it  was
filed beyond the stipulated period of two years from the date on  which  the
cause of action had arisen.

15.   Learned counsel placed  reliance  on  State  Bank  of  India  v.  B.S.
Agriculture Industries (I)[1] but we  do  not  see  the  relevance  of  this
decision. On facts, it was found in this case that the cause of  action  had
accrued to the appellant therein on 7th  June,  1994  but  a  complaint  was
filed with the National Commission on 5th May, 1997. Clearly  the  complaint
was barred by limitation.

16.   Similarly,  reliance  on  Kandimalla  Raghavaiah  &  Co.  v.  National
Insurance Co.[2] is misplaced. In  this  case,  a  fire  broke  out  in  the
premises of the insured on  23rd  March,  1988  and  the  appellant  therein
sought a claim from the insurance company on 6th November,  1992  while  the
complaint was filed with the National  Commission  on  24th  October,  1997.
Under these circumstances, it was held that  the  complaint  was  barred  by
limitation.

17.   Strictly speaking, the event that caused the loss  or  damage  to  the
insured occurred on 6th August, 1992 when due to  heavy  incessant  rain  in
Calcutta, the raw  materials,  stocks  and  goods,  furniture  etc.  of  the
insured were damaged.  On the very next day,  the  insured  lodged  a  claim
with National Insurance. In response,  National  Insurance  first  appointed
N.T. Kothari & Co. to assess the loss suffered by the insured and  a  report
was given by this  surveyor  after  more  than  one  year.  Thereafter,  for
reasons that are not at all clear, National  Insurance  appointed  a  second
surveyor which also took about one year to submit its report and  eventually
gave an addendum to that report thereby crossing one year in  completion  of
its report along with the addendum.   In  other  words,  National  Insurance
itself took more than two years in surveying or  causing  a  survey  of  the
loss or damage suffered  by  the  insured.  Surely,  this  entire  delay  is
attributable to National Insurance and cannot prejudice  the  claim  of  the
insured, more particularly when the insured had lodged a claim  well  within
time. To make matters worse,  National  Insurance  actually  repudiated  the
claim of the insured only  on  22nd  May,  2001  which  is  well  after  the
complaint was filed with the National Commission.
18.   In our opinion, in a dispute concerning a consumer,  it  is  necessary
for the courts to take a pragmatic  view  of  the  rights  of  the  consumer
principally since it is the consumer who is placed at a disadvantage  vis-à-
vis the supplier of services or goods. It is to overcome  this  disadvantage
that a beneficent legislation in the form of the  Consumer  Protection  Act,
1986 was enacted by Parliament. The  provision  of  limitation  in  the  Act
cannot be strictly construed to disadvantage a consumer in a  case  where  a
supplier of goods or services itself is instrumental in causing a  delay  in
the settlement  of  the  consumer’s  claim.   That  being  so,  we  have  no
hesitation in coming to the conclusion  that  the  National  Commission  was
quite right in rejecting  the  contention  of  National  Insurance  in  this
regard.

19.   In so far as the third  contention  urged  by  National  Insurance  is
concerned this is itself contradicted by the reports of  the  two  surveyors
appointed by it.  It is possibly to get over this difficulty  that  National
Insurance advanced the fourth contention namely that none of the two  survey
reports could form the basis for payment of the amount claimed.

20.   In this context, the  contention  urged  was  that  the  first  survey
report given by N.T. Kothari & Co. was not a bona fide  report  inasmuch  as
the  Central  Glass  and  Ceramic  Research  Institute,  Calcutta  had   not
authorised that specific officer to give  any  report  with  regard  to  the
damage or loss suffered by the insured. Without going into  this  aspect  of
the matter since the National Commission itself did not rely upon the  first
survey report, we may notice that the second survey report was  prepared  in
consultation with that very institute namely the Central Glass  and  Ceramic
Research Institute, Calcutta but on this occasion, another officer had  been
consulted. The Insurance Company failed to provide  any  reason  before  the
National Commission or even before us to remotely suggest  that  the  second
report was also  tainted  either  because  the  officer  consulted  was  not
authorised to give a  report  or  for  any  other  justifiable  reason.  The
National Commission accepted the second survey report which was provided  by
Seascan Services (WB) Pvt. Ltd. as well as the addendum to it and we do  not
see any reason to disagree with the findings arrived at in  the  absence  of
any material to discredit the surveyor or the report of the surveyor.

21.   Accordingly, in our opinion no case is made out by National  Insurance
to interfere with the order passed by the National Commission.





CIVIL APPEAL NO. 1156 OF 2008

22.   This appeal also  concerns  the  interpretation,  in  the  context  of
limitation, of condition number 6(ii) of the insurance policy taken  out  by
the insured. In this appeal, the insured suffered a loss or  damage  to  its
goods in an incident that occurred on  6th  September,  1993.  A  claim  was
lodged by the insured on the next day. The claim was repudiated by  National
Insurance on 27th December, 1999 while a compliant filed by the  insured  in
the National Commission was pending since 6th March, 1998. In view of  these
facts and in view of the discussion in the connected  appeal,  there  is  no
merit in the objection raised by learned  counsel  that  the  complaint  was
barred by limitation in view of condition  number  6(ii)  of  the  insurance
policy or Section 24-A of the Act. In any event,  this  contention  was  not
strictly pressed by learned counsel on the facts of this appeal.

23.   On the merits of the case, the only  issue  is  whether  the  loss  or
damage to the insured machine was caused by  an  explosion  or  by  a  short
circuit. According to National Insurance, a short  circuit  in  the  machine
disentitled the insured from making a claim. The National  Commission  held,
on a consideration of the evidence that an explosion  had  occurred  in  the
machine and that resulted in a short circuit and consequent loss  or  damage
to the machine.

24.   Having gone through the evidence on record,  we  find  that  the  view
taken by the National Commission is  not  only  based  on  the  evidence  on
record, but is in any event a possible view. In the absence of any  material
error in appreciation of  the  evidence,  we  do  not  think  it  proper  to
substitute the view taken by the National Commission with our view.

25.   Therefore even in this appeal, National Insurance has  not  been  able
to make out a case for interference with the order passed  by  the  National
Commission.

Result

26.   Both the appeals are without any merit and are accordingly  dismissed.




................................................J
                                              ( MADAN B. LOKUR )



New Delhi;
.................................................J

April 7, 2017
(PRAFULLA C. PANT)





ITEM NO.1A               COURT NO.5               SECTION XVII
(For Judgment)
               S U P R E M E  C O U R T  O F  I N D I A
                       RECORD OF PROCEEDINGS

Civil Appeal  No(s).  3883/2007

NATIONAL INSURANCE CO.LTD.                       Appellant(s)

                                VERSUS

HINDUSTAN SAFETY GLASS WORKS LTD.                Respondent(s)
WITH
C.A. No. 1156/2008

Date   :   07/04/2017        These    appeals    were    called    on    for
      pronouncement of judgment today.

For Appellant(s) Mr. Pramod Dayal, AOR

For Respondent(s)      Ms. Manjeet Chawla, AOR

                       Mr. Ramesh Singh, Adv.
                       Ms. Anne Mathew, Adv.
                       Mr. Suman Jyoti Khaitan, AOR

     Hon'ble Mr. Justice Madan B. Lokur pronounced the  reportable  judgment
of the Bench comprising His Lordship and Hon'ble  Mr.  Justice  Prafulla  C.
Pant.
      The appeals are dismissed in terms of the signed reportable judgment.


(Meenakshi Kohli)                            (Sharda Kapoor)
Court Master (SH)                            Court Master (NS)
             [Signed reportable judgment is placed on the file]
                           -----------------------
[1]





      [2] (2009) 5 SCC 121
[3]

      [4] (2009) 7 SCC 768

“It is a settled law that the statement under Section 313 CrPC is to serve a dual purpose, firstly, to afford to the accused an opportunity to explain his conduct and secondly to use denials of established facts as incriminating evidence against him...” = whether in a case of this nature death sentence should be awarded. A life is at stake subject to human error and discrepancies and therefore the doctrine of ‘rarest of rare cases’, which is not res-integra in awarding the death penalty, shall be applied while considering quantum of sentence in the present case. Not so far but too recently, the Law Commission of India has submitted its Report No.262 titled “The Death Penalty” after the reference was made from this Court to study the issue of Death Penalty in India to “allow for an up-to-date and informed discussion and debate on this subject”. We have noticed that the Law Commission of India has recommended the abolition of death penalty for all the crimes other than terrorism related offences and waging war (offences affecting National Security). Today when capital punishment has become a distinctive feature of death penalty apparatus in India which somehow breaches the reformative theory of punishment under criminal law, we are not inclined to award the same in the peculiar facts and circumstances of the present case. Therefore, confinement till natural life of the accused respondent shall fulfill the requisite criteria of punishment in peculiar facts and circumstances of the present case.

                                                                  REPORTABLE
                        IN THE SUPREME COURT OF INDIA
                       CRIMINAL APPELLATE JURISDICTION


                     CRIMINAL APPEAL NOS.865-866 OF 2013
      STATE OF MAHARASHTRA                              ...Appellant(s)
                                  :Versus:
      NISAR RAMZAN SAYYED                               ...Respondent(s)






                                  JUDGMENT
      Pinaki Chandra Ghose, J.
   1. These appeals have been directed against the judgment and order  dated
      19th March, 2012 passed by the High Court  of  Judicature  at  Bombay,
      Bench at Aurangabad, in Confirmation Case No.1 of 2011  with  Criminal
      Appeal No.584  of  2011,  whereby  the  conviction  order  dated  22nd
      September, 2011 passed by  learned  District  Judge-3  and  Additional
      Sessions Judge, Shrirampur, against the respondent herein was  quashed
      and set-aside. The Confirmation Case No.1 of 2011  was  filed  by  the
      State for confirmation of the death sentence awarded  to  the  accused
      respondent. The High Court, however, rejected the death  sentence  and
      acquitted the accused respondent.


   2. The brief facts leading to present criminal appeals may be  summarized
      as follows:
           Respondent Nisar Ramzan Sayyed got  married  with  one  Summayya
      (deceased herein) on 30.03.2007. After the marriage they were  jointly
      living with the respondent’s family  and  were  blessed  with  a  male
      child, namely Sayej who was three years old  on  the  fateful  day  of
      incident. The deceased was seven months pregnant at the  time  of  the
      incident. The respondent and his family members treated Summayya  well
      for  a  period  of  one  year  after  the  marriage.  Thereafter,  the
      respondent started ill-treating  her  on  the  pretext  of  demand  of
      Rs.50,000/-  for  purchasing  an  auto  rickshaw.  As  the   financial
      condition of the father of Summayya was poor, the  said  demand  could
      not be met. The respondent continued the act of ill-treatment with the
      deceased. On 29th October, 2010 at 5:00  a.m.  the  respondent  herein
      allegedly set the deceased on fire by pouring kerosene  oil  and  also
      threw the son (Sayej) on the burning body of  the  deceased.  Summayya
      and her son sustained burn injuries. Thereafter the deceased was taken
      to the hospital by the respondent but her son died on the spot due  to
      burn injuries. The deceased succumbed to her injuries on 3rd November,
      2010 after giving birth to a dead baby fetus.


   3. Law was set into motion against the respondent and his family  members
      when FIR No.I-227 of 2010 was lodged at Police Station Newasa  at  the
      instance of one Nisar Ashraf Pathan after registration  of  report  AD
      No.91 of 2010 under Section 174 of Code of Criminal Procedure. Learned
      Additional Sessions Judge while taking  cognizance  on  the  basis  of
      charge-sheet No.12 of  2011 received on 27.01.2011 initiated  Sessions
      Case No.18 of  2011  and  vide  his  judgment  and  order  dated  22nd
      September, 2011  convicted  the  respondent  herein  for  the  offence
      punishable under Sections 302 and 498-A of the Indian Penal Code, 1860
      and sentenced him to suffer death sentence and pay a fine of Rs.2000/-
      . Five other accused who were family members of the  respondent  were,
      however, acquitted from all the charges.


   4. The respondent herein preferred Criminal Appeal No.584 of 2011  before
      the High Court against the above-noted conviction order and the  State
      of Maharashtra filed Confirmation Case No.1 of 2011  for  confirmation
      of the death sentence awarded to the respondent by  the  Trial  Court.
      The High Court  vide  impugned  judgment  quashed  and  set-aside  the
      conviction  order   passed   against   the   respondent   herein   and
      consequently, the death  sentence  confirmation  case  was  dismissed.
      Hence, the present appeals before us by the State of Maharashtra.

   5. We have heard the learned counsel on both sides. On a perusal  of  the
      judgments passed by the High Court and the Trial Court, we  find  that
      in the present case there is no eye-witness of the  incident  and  the
      prosecution has been totally depending upon the dying declarations  of
      the deceased, namely, Summayya. There are three written and three oral
      dying declarations. Since there is no direct evidence but  only  dying
      declarations of the deceased and proof proffered by  the  prosecution,
      tested by  the  conventional  process  of  cross-examination  and  the
      standard yardsticks  of  credibility,  we  confine  ourselves  to  the
      contentious issue of acquittal order and its legality.

   6. From a perusal of the records of the Courts  below,  we  have  noticed
      that there are three written dying declarations  viz,  Exhibit  No.61,
      Exhibit No.67 and Exhibit No.73, recorded before PW8–Dr.Prabhakar, PW7-
      ASI Argade  and  Circle  Inspector,  respectively.  Three  oral  dying
      declarations were given before PW-1, PW-2 and PW-3, respectively.  The
      role attributed to accused No.1 (respondent herein) is  consistent  in
      all the dying declarations whereby  it  has  been  proved  beyond  all
      reasonable doubt that the respondent herein had poured kerosene on his
      wife and set her on fire in their house itself during early  hours  of
      29th October, 2010. The demand of an amount of Rs.50,000/- by  accused
      No.1 was also reiterated by the deceased in  her  dying  declarations.
      The Medical Officer gave his opinion in the letter issued  by  PW7-ASI
      Argade, inquiring about the conscious mental  state  of  the  deceased
      while stating the cause of the burn injuries on the victim  wife.  The
      Trial Court has rightly relied on the judgment passed by this Court in
      Satish Ambanna Bansode Vs. State of Maharashtra, (2009)  11  SCC  217,
      wherein  this  court  reiterated  the   principles   governing   dying
      declaration  which  had  been  elaborately  discussed  in  an  earlier
      decision of Paniben Vs. State of Gujarat, (1992) 2 SCC 474 in para 18.
      Relevant part of the relied judgment is reproduced herein below:
           “14…. (i) There is neither rule of  law  nor  of  prudence  that
           dying declaration cannot be acted  upon  without  corroboration.
           [See: Munnu Raja v. State of M.P. (1976) 3 SCC 104]
           (ii) If the court is satisfied that  the  dying  declaration  is
           true and  voluntary  it  can  base  conviction  on  it,  without
           corroboration. [See: State of U.P. v. Ram Sagar Yadav  (1985)  1
           SCC 552, and Ramawati Devi v. State of Bihar (1983) 1 SCC 211].
           (iii)  The  court  has  to  scrutinise  the  dying   declaration
           carefully and must ensure that the declaration is not the result
           of tutoring, prompting  or  imagination.  The  deceased  had  an
           opportunity to observe and identify the assailants and was in  a
           fit state to make the declaration. [See: K. Ramachandra Reddy v.
           Public Prosecutor (1976) 3 SCC 618].
           (iv) Where a dying declaration is suspicious, it should  not  be
           acted upon without corroborative evidence. [See: Rasheed Beg  v.
           State of M.P., (1974) 4 SCC 264.]
           (v) Where the deceased was unconscious and could never make  any
           dying declaration the evidence  with  regard  to  it  is  to  be
           rejected. [See: Kake Singh v. State of M.P.,  (1981)  Supp.  SCC
           25.]
           (vi) A dying declaration which  suffers  from  infirmity  cannot
           form the basis of conviction. [See: Ram  Manorath  v.  State  of
           U.P., (1981) 2 SCC 654.]
           (vii) Merely because a dying declaration does  not  contain  the
           details as to the occurrence, it is not  to  be  rejected.  [See
           State of Maharashtra v.  Krishnamurti  Laxmipati  Naidu,  (1980)
           Supp. SCC 455.]
           (viii) Equally, merely because it is a brief  statement,  it  is
           not to be discarded. On  the  contrary,  the  shortness  of  the
           statement itself guarantees truth. [See: Surajdeo Ojha v.  State
           of Bihar, (1980) Supp. SCC 769]
           (ix) Normally,  the  court  in  order  to  satisfy  whether  the
           deceased was in  a  fit  mental  condition  to  make  the  dying
           declaration looks up to  the  medical  opinion.  But  where  the
           eyewitness said that the deceased was in  a  fit  and  conscious
           state to make the dying declaration, the medical opinion  cannot
           prevail. [See: Nanhau Ram v. State of  M.P.,  (1988)  Supp.  SCC
           152.]
           (x) Where the prosecution version differs from  the  version  as
           given in the dying declaration, the said declaration  cannot  be
           acted upon. [See: State of U.P. v.  Madan  Mohan  (1989)  3  SCC
           390.]
           (xi) Where there are more than one statements in the  nature  of
           dying declaration, the one  first  in  point  of  time  must  be
           preferred. Of course, if the plurality of the dying  declaration
           could be held to be trustworthy  and  reliable,  it  has  to  be
           accepted.  [See:  Mohanlal   Gangaram   Gehani   v.   State   of
           Maharashtra, (1982) 1 SCC 700.]”


      In our considered opinion the  High  Court  erred  in  acquitting  the
      respondent herein as the spot Panchnama, being  Exhibit-86,  was  duly
      proved by PW11-Investigating Officer of the case whereby  recovery  of
      kerosene mixed soil, burnt pieces of Saree and Blouse  etc.  etc.  was
      proved.


   7. We have also noticed that factum of pregnancy before death of deceased
      was also proved by PW9-Dr. Nitin Sudhakar Samudra. The typical conduct
      of the accused respondent  also  describes  his  guilty  intention  of
      neglecting his wife when she was on death bed as there is no  evidence
      on record to prove that the respondent got the  deceased  admitted  in
      Wadala Mission Hospital.  From  the  testimony  of  the  Investigating
      Officer during the cross-examination, it  has  been  proved  that  the
      height between floor and the roof of spot of incident is 13 to 14 feet
      and the roof is covered by dried sugarcane leaves which  were  put  on
      the plastic gunny bags. The Trial Court has rightly  appreciated  that
      it is not possible to cause any damage to the said  roof  due  to  the
      incident.


   8. Mr. Kunal A. Cheema,  learned  counsel  appearing  for  the  State  of
      Maharashtra contended that under these  circumstances  the  respondent
      and other accused had caused triple murder in one shot and taken lives
      of innocent and helpless persons, including a human being who had  not
      even seen the light of the  day.  It  was  further  submitted  by  the
      learned counsel that the officers of Executive Magistrate’s office are
      independent persons and as a matter of safety, the statements are kept
      in sealed condition to prevent tampering  or  manipulating  the  same.
      Therefore, there is no reason to doubt Ext.-61. Furthermore, once  the
      dying declarations are  duly  proved  and  it  is  admitted  that  the
      deceased and the minor child  were  in  the  custody  of  the  accused
      persons, it is for the accused to  show  that  facts  were  otherwise.
      Learned counsel further argued that the delay in registering  the  FIR
      was due to the fact that the incident happened in the jurisdiction  of
      different police stations and the  hospital  in  which  treatment  was
      given was in different jurisdiction, as could be seen  from  the  FIR,
      Ext.67 and Ext.61.


   9. Per Contra, Mr. Atul Babasaheb Dakh, learned counsel appearing for the
      respondent argued that albeit admittedly, the roof of  the  house  was
      made of sugarcane leaves, there were domestic  articles  and  utensils
      kept in the room of the accused. As per the arguments advanced by  the
      learned counsel for the respondent, the prosecution  failed  to  prove
      that the alleged incident took place in the house as there was no sign
      of burning on the roof (chhappar) of the house. The same was stated by
      PW10 – Police Head Constable who was the first  person  to  visit  the
      place of occurrence and this was corroborated  by  the  I.O.  who  had
      conducted spot  Panchnama.  It  was  further  argued  that  the  dying
      declaration Ext.-67 cannot be made admissible with regard to the place
      of occurrence because PW-10 in his statement has averred that the dead
      body of 3-year old son was found at a distance  of  200-250  ft.  away
      from the house of the accused. The learned counsel for the  respondent
      concluded his arguments by  submitting that  the  dying  declarations,
      which suffered from infirmity, cannot form the basis of conviction and
      in support of this he relied upon judgment of this Court  in  Surinder
      Kumar Vs. State of Haryana, (2011) 10 SCC  173,   wherein  this  Court
      observed:
           “28. Though there is neither rule of law nor  of  prudence  that
           dying declaration cannot be acted upon without corroboration but
           the court must be satisfied that the dying declaration  is  true
           and voluntary and in that  event,  there  is  no  impediment  in
           basing conviction on it, without corroboration. It is  the  duty
           of the court to scrutinise the dying declaration  carefully  and
           must ensure that the declaration is not the result of  tutoring,
           prompting  or  imagination.  Where  a   dying   declaration   is
           suspicious, it should not be acted  upon  without  corroborative
           evidence. Likewise, where the deceased was unconscious and could
           never make any declaration the evidence with  regard  to  it  is
           rejected. The dying declaration  which  suffers  from  infirmity
           cannot form the basis of conviction. All these  principles  have
           been fully adhered to by the trial court and  rightly  acquitted
           the accused and on wrong assumption the  High  Court  interfered
           with the order of acquittal.”




  10. Respondent herein in his statement under Section 313 of  the  Code  of
      Criminal Procedure, 1973 has stated about the threat by  his  wife  of
      committing suicide. He has further stated that he had made a complaint
      to Newasa  Police  Station.  However,  the  Trial  Court  has  rightly
      appreciated the evidence on record whereby it was proved from the N.C.
      Register of Newasa Police Station that no such complaint was lodged by
      the respondent herein during the relevant days. On  the  date  of  the
      incident the respondent and his deceased wife were in their house  and
      that the deceased met an unnatural death has been  proved  by  medical
      evidence. Under these circumstances  where  there  is  no  other  eye-
      witness to the incident, the  failure  on  the  part  of  the  accused
      respondent to explain how his pregnant wife and their minor child  met
      with unnatural death due to burn injuries  sustained  at  their  house
      leads to an inference which goes against the accused respondent.  This
      relevant proposition of law was discussed by this Court in the case of
      Swamy Shraddananda Vs. State of Karnataka,  (2007)  12  SCC  288.  The
      relevant part of the judgment is reproduced hereunder:
           “If it  is  proved  that  the  deceased  died  in  an  unnatural
           circumstance in her bed room, which was occupied only by her and
           her husband, law requires the husband to offer an explanation in
           this behalf. We, however, do not intend to lay  down  a  general
           law in this behalf as much  would  depend  upon  the  facts  and
           circumstances of each case. Absence of any  explanation  by  the
           husband would lead  to  an  inference  which  would  lead  to  a
           circumstance against the accused.”




  11. It is also discussed by this Court in the case of Munna Kumar Upadhyay
      Vs. State of Andhra Pradesh, (2012) 6 SCC 174 at para 73 as follows:
           “It is a settled law that the statement  under Section  313 CrPC
           is to serve a dual purpose, firstly, to afford to the accused an
           opportunity to explain his conduct and secondly to  use  denials
           of established facts as incriminating evidence against him...”




  12. Astonishingly we have found the dying  declarations  of  the  deceased
      with consistent allegations about demand of dowry and  modus  operandi
      of the offence which resulted into the death of the declarant and  her
      minor child. Before coming to the conclusion in the present  case,  we
      would like to emphasize on the  principle  enumerated  in  the  famous
      legal maxim of the Law of Evidence i.e.,  Nemo  Moriturus  Praesumitur
      mentire which means a man will not meet his maker with a  lie  in  his
      mouth. Our Indian Law also recognizes this  fact  that  “a  dying  man
      seldom lies” or in other words “truth sits upon the lips  of  a  dying
      man”. The relevance of this very fact, though  exception  to  rule  of
      hearsay evidence, has been discussed in  numerous  judgments  of  this
      Court including Uka Ram Vs. State of  Rajasthan,  (2001)  5  SCC  254;
      Babulal & Ors. Vs. State of M.P., (2003) 12 SCC 490;   Muthu  Kutty  &
      Anr. Vs. State, (2005) 9 SCC 113; Dharam Pal & Ors. Vs. State of Uttar
      Pradesh, (2008) 17 SCC 337; Lakhan Vs. State of Madhya Pradesh, (2010)
      8 SCC 514.


  13. The various circumstances pointing out to the guilt of the  respondent
      and respondent alone have been enumerated by us hereinbefore. From our
      discussions, it is evident that each of  the  circumstances  had  been
      established, the cumulative effect whereof would  show  that  all  the
      links in the chain are complete and the conclusion  of  the  guilt  is
      fully established. Therefore, in our considered opinion the respondent
      herein is guilty of the offence causing death of his pregnant wife and
      minor child.

  14. The next question, however, is as to whether in a case of this  nature
      death sentence should be awarded. A life is at stake subject to  human
      error and discrepancies and therefore the doctrine of ‘rarest of  rare
      cases’, which is not res-integra in awarding the death penalty,  shall
      be applied while considering quantum of sentence in the present  case.
      Not so far but too recently, the Law Commission of India has submitted
      its Report No.262 titled “The Death Penalty” after the  reference  was
      made from this Court to study the issue of Death Penalty in  India  to
      “allow for an up-to-date and informed discussion and  debate  on  this
      subject”. We have  noticed  that  the  Law  Commission  of  India  has
      recommended the abolition of death penalty for all  the  crimes  other
      than terrorism related offences and  waging  war  (offences  affecting
      National  Security).  Today  when  capital  punishment  has  become  a
      distinctive feature of death penalty apparatus in India which  somehow
      breaches the reformative theory of punishment under criminal  law,  we
      are not  inclined  to  award  the  same  in  the  peculiar  facts  and
      circumstances of the present case. Therefore, confinement till natural
      life of the accused respondent shall fulfill the requisite criteria of
      punishment in peculiar facts and circumstances of the present case.


  15. Hence, the judgment and order passed by High Court is hereby set aside
      and that of the Trial Court is restored with regard to  conviction  of
      the accused respondent. However, in  the  light  of  the  above  noted
      discussions, the death sentence awarded by the Trial Court  is  hereby
      modified to ‘life imprisonment’ which will mean imprisonment  for  the
      natural life of  the  respondent  herein.  The  criminal  appeals  are
      allowed accordingly in the afore-stated terms.
                       . . . . . . . . . . . . . . . .
                                 . . . . .J
                                                  (Pinaki Chandra Ghose)






                        . . . . . . . . . . . . . . .
                                . . . . . .J
                                                  (Rohinton Fali Nariman)
      New Delhi;
      April 07, 2017.