whether the minimum period of six months stipulated under Section 13B(2) of the Hindu Marriage Act, 1955 (the Act) for a motion for passing decree of divorce on the basis of mutual consent is mandatory or can be relaxed in any exceptional situations.= not mandatory - a land mark judgment

REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 11158 OF 2017
(Arising out of Special Leave Petition (Civil)No. 20184 of 2017)
Amardeep Singh …Appellant
Versus
Harveen Kaur …Respondent
J U D G M E N T
ADARSH KUMAR GOEL, J.
1. The question which arises for consideration in this appeal is
whether the minimum period of six months stipulated under
Section 13B(2) of the Hindu Marriage Act, 1955 (the Act) for a
motion for passing decree of divorce on the basis of mutual
consent is mandatory or can be relaxed in any exceptional
situations.
1
2. Factual matrix giving rise to this appeal is that marriage
between the parties took place on 16th January, 1994 at Delhi.
Two children were born in 1995 and 2003 respectively. Since
2008 the parties are living separately. Disputes between the
parties gave rise to civil and criminal proceedings. Finally, on 28th
April, 2017 a settlement was arrived at to resolve all the disputes
and seeks divorce by mutual consent. The respondent wife is to
be given permanent alimony of Rs.2.75 crores. Accordingly, HMA
No. 1059 of 2017 was filed before the Family Court (West), Tis
Hazari Court, New Delhi and on 8th May, 2017 statements of the
parties were recorded. The appellant husband has also handed
over two cheques of Rs.50,00,000/-, which have been duly
honoured, towards part payment of permanent alimony. Custody
of the children is to be with the appellant. They have sought
waiver of the period of six months for the second motion on the
ground that they have been living separately for the last more
than eight years and there is no possibility of their re union. Any
delay will affect the chances of their resettlement. The parties
have moved this Court on the ground that only this Court can
relax the six months period as per decisions of this Court.
2
3. Reliance has been placed inter alia on decision of this Court
in Nikhil Kumar vs. Rupali Kumar1 wherein the statutory
period of six months was waived by this Court under Article 142
of the Constitution and the marriage was dissolved.
The text of Section 13B is as follows:
“13-B. Divorce by mutual consent.— (1) Subject to the
provisions of this Act a petition for dissolution of marriage by
a decree of divorce may be presented to the district court by
both the parties to a marriage together, whether such
marriage was solemnized before or after the
commencement of the Marriage Laws (Amendment) Act,
1976, on the ground that they have been living separately
for a period of one year or more, that they have not been
able to live together and that they have mutually agreed
that the marriage should be dissolved.
(2) On the motion of both the parties made not earlier than
six months after the date of the presentation of the petition
referred to in sub-section (1) and not later than eighteen
months after the said date, if the petition is not withdrawn in
the meantime, the court shall, on being satisfied, after
hearing the parties and after making such inquiry as it
thinks fit, that a marriage has been solemnized and that the
averments in the petition are true, pass a decree of divorce
declaring the marriage to be dissolved with effect from the
date of the decree.”
4. There is conflict of decisions of this Court on the question
whether exercise of power under Article 142 to waive the
statutory period under Section 13B of the Act was appropriate. In
1 (2016) 13 SCC 383
3
Manish Goel versus Rohini Goel2
, a Bench of two-Judges of
this Court held that jurisdiction of this Court under Article 142
could not be used to waive the statutory period of six months for
filing the second motion under Section 13B, as doing so will be
passing an order in contravention of a statutory provision. It was
observed :
“14. Generally, no court has competence to issue a
direction contrary to law nor can the court direct an
authority to act in contravention of the statutory provisions.
The courts are meant to enforce the rule of law and not to
pass the orders or directions which are contrary to what has
been injected by law. (Vide State of Punjab v. Renuka
Singla[(1994) 1 SCC 175], State of U.P. v. Harish Chandra
[(1996) 9 SCC 309], Union of India v. Kirloskar Pneumatic Co.
Ltd. [(1996) 4 SCC 453], University of Allahabad v. Dr. Anand
Prakash Mishra [(1997) 10 SCC 264] and Karnataka SRTC v.
Ashrafulla Khan [(2002) 2 SC 560]
15. A Constitution Bench of this Court in Prem Chand Garg
v. Excise Commr.[AIR 1963 SCC 996] held as under: (AIR p.
1002, para 12)
“12. … An order which this Court can make in order to do
complete justice between the parties, must not only be
consistent with the fundamental rights guaranteed by the
Constitution, but it cannot even be inconsistent with the
substantive provisions of the relevant statutory laws.”
(emphasis supplied)
The Constitution Benches of this Court in Supreme Court Bar
Assn. v. Union of India [(1998) 4 SCC 409] and E.S.P.
Rajaram v. Union of India [(2001) 2 SCC 186] held that under
Article 142 of the Constitution, this Court cannot altogether
ignore the substantive provisions of a statute and pass
orders concerning an issue which can be settled only
2 (2010) 4 SCC 393
4
through a mechanism prescribed in another statute. It is not
to be exercised in a case where there is no basis in law
which can form an edifice for building up a superstructure.”
5. This Court noted that power under Article 142 had been
exercised in cases where the Court found the marriage to be
totally unworkable, emotionally dead, beyond salvage and broken
down irretrievably. This power was also exercised to put quietus
to all litigations and to save the parties from further agony3
. This
view was reiterated in Poonam versus Sumit Tanwar4
.
6. In Neeti Malviya versus Rakesh Malviya5
, this Court
observed that there was conflict of decisions in Manish Goel
(supra) and Anjana Kishore versus Puneet Kishore6
. The
matter was referred to bench of three-Judges. However, since the
matter became infructuous on account of grant of divorce in the
meanwhile7
.
3 Para 11 ibid, noting earlier decisions in Romesh Chander v. Savitri (1995)
2 SCC 7; Kanchan Devi v. Promod Kumar Mittal (1996) 8 SCC 90; Anita Sabharwal
v. Anil Sabharwal (1997) 11 SCC 490; Ashok Hurra v. Rupa Bipin Zaveri (1997) 4
SCC 226; Kiran v. Sharad Dutt (2000)10 SCC 243; Swati Verma v. Rajan Verma
(2004) 1 SCC 123; Harpit Singh Anand v. State of W.B. (2004) 10 SCC 505; Jimmy
Sudarshan Purohit v. Sudarshan Sharad Purohit (2005) 13 SCC 410; Durga
Prasanna Tripathy v. Arundhati Tripathy (2005) 7 SCC 353; Naveen Kohli v. Neelu
Kohli (2006) 4 SCC 558; Sanghamitra Ghosh v. Kajal Kumar Ghosh (2007) 2 SCC 220;
Rishikesh Sharma v. Saroj Sharma (2007) 2 SCC 263; Samar Ghosh v. Jaya Ghosh
(2007) 4 SCC 511 and Satish Sitole v. Ganga (2008) 7 SCC 734
4 (2010) 4 SCC 460
5 (2010) 6 SCC 413
6 (2002) 10 SCC 194
7 Order dated 23rd August, 2011 in Transfer Petition (Civil)No. 899 of 2007
5
7. Without any reference to the judgment in Manish Goel
(supra), power under Article 142 of the Constitution has been
exercised by this Court in number of cases8
even after the said
judgment.
8. We find that in Anjana Kishore (supra), this Court was
dealing with a transfer petition and the parties reached a
settlement. This Court waived the six months period under Article
142 in the facts and circumstances of the case. In Anil Kumar
Jain versus Maya Jain9
, one of the parties withdrew the consent.
This Court held that marriage had irretrievably broken down and
though the civil courts and the High Court could not exercise
power contrary to the statutory provisions, this Court under
Article 142 could exercise such power in the interests of justice.
Accordingly the decree for divorce was granted.
8 Priyanka Singh v. Jayant Singh(2010) 15 SCC 390; Sarita Singh v.
Rajeshwar Singh (2010) 15 SCC 374; Harpreet Singh Popli v. Manmeet Kaur Pople
(2010) 15 SCC 316; Hitesh Bhatnagar v. Deepa Bhatnagar (2011) 5 SCC 234; Veena v.
State (Govt of NCT of Delhi) (2011) 14 SCC 614; Priyanka Khanna v. Amit Khanna
(2011) 15 SCC 612; Devinder Singh Narula v. Meenakshi Nangia (2012) 8 SCC 580;
Vimi Vinod Chopra v. Vinod Gulshan Chpra (2013) 15 SCC 547; Priyanka Chawla v.
Amit Chawla (2016) 3 SCC 126; Nikhil Kumar v. Rupali Kumar (2016) 13 SCC 383
9 (2009) 10 SCC 415
6
9. After considering the above decisions, we are of the view
that since Manish Goel (supra) holds the field, in absence of
contrary decisions by a larger Bench, power under Article 142 of
the Constitution cannot be exercised contrary to the statutory
provisions, especially when no proceedings are pending before
this Court and this Court is approached only for the purpose of
waiver of the statute.
10. However, we find that the question whether Section 13B(2)
is to be read as mandatory or discretionary needs to be gone into.
In Manish Goel (supra), this question was not gone into as it
was not raised. This Court observed :
“23. The learned counsel for the petitioner is not able to
advance arguments on the issue as to whether, statutory
period prescribed under Section 13-B(1) of the Act is
mandatory or directory and if directory, whether could be
dispensed with even by the High Court in exercise of its
writ/appellate jurisdiction.”
11. Accordingly, vide order dated 18th August, 2017, we passed
the following order :
“List the matter on 23rd August, 2017 to consider the question
whether provision of Section 13B of the Hindu Marriage, Act,
1955 laying down cooling off period of six months is a
mandatory requirement or it is open to the Family Court to
7
waive the same having regard to the interest of justice in an
individual case.
Mr. K.V. Vishwanathan, senior counsel is appointed as Amicus
to assist the Court. Registry to furnish copy of necessary
papers to learned Amicus”.
12. Accordingly, learned amicus curiae has assisted the Court.
We record our gratitude for the valuable assistance rendered by
learned amicus who has been ably assisted by S/Shri Abhishek
Kaushik, Vrinda Bhandari and Mukunda Rao Angara, Advocates.
13. Learned amicus submitted that waiting period enshrined
under Section 13(B)2 of the Act is directory and can be waived by
the court where proceedings are pending, in exceptional
situations. This view is supported by judgments of the Andhra
Pradesh High Court in K. Omprakash vs. K. Nalini10
,
Karnataka High Court in Roopa Reddy vs. Prabhakar
Reddy11
, Delhi High Court in Dhanjit Vadra vs. Smt. Beena
Vadra12 and Madhya Pradesh High Court in Dinesh Kumar
Shukla vs. Smt. Neeta13
. Contrary view has been taken by
Kerala High Court in M. Krishna Preetha vs. Dr. Jayan
10 AIR 1986 AP 167 (DB)
11 AIR 1994 Kar 12 (DB)
12 AIR 1990 Del 146
13 AIR 2005 MP 106 (DB)
8
Moorkkanatt14
. It was submitted that Section 13B(1) relates to
jurisdiction of the Court and the petition is maintainable only if
the parties are living separately for a period of one year or more
and if they have not been able to live together and have agreed
that the marriage be dissolved. Section 13B(2) is procedural. He
submitted that the discretion to waive the period is a guided
discretion by consideration of interest of justice where there is no
chance of reconciliation and parties were already separated for a
longer period or contesting proceedings for a period longer than
the period mentioned in Section 13B(2). Thus, the Court should
consider the questions:
i) How long parties have been married?
ii) How long litigation is pending?
iii) How long they have been staying apart?
iv) Are there any other proceedings between the
parties?
v) Have the parties attended mediation/conciliation?
vi) Have the parties arrived at genuine settlement
which takes care of alimony, custody of child or
any other pending issues between the parties?
14 AIR 2010 Ker 157
9
14. The Court must be satisfied that the parties were living
separately for more than the statutory period and all efforts at
mediation and reconciliation have been tried and have failed and
there is no chance of reconciliation and further waiting period will
only prolong their agony.
15. We have given due consideration to the issue involved.
Under the traditional Hindu Law, as it stood prior to the statutory
law on the point, marriage is a sacrament and cannot be
dissolved by consent. The Act enabled the court to dissolve
marriage on statutory grounds. By way of amendment in the year
1976, the concept of divorce by mutual consent was introduced.
However, Section 13B(2) contains a bar to divorce being granted
before six months of time elapsing after filing of the divorce
petition by mutual consent. The said period was laid down to
enable the parties to have a rethink so that the court grants
divorce by mutual consent only if there is no chance for
reconciliation.
16. The object of the provision is to enable the parties to
dissolve a marriage by consent if the marriage has irretrievably
10
broken down and to enable them to rehabilitate them as per
available options. The amendment was inspired by the thought
that forcible perpetuation of status of matrimony between
unwilling partners did not serve any purpose. The object of the
cooling off the period was to safeguard against a hurried decision
if there was otherwise possibility of differences being reconciled.
The object was not to perpetuate a purposeless marriage or to
prolong the agony of the parties when there was no chance of
reconciliation. Though every effort has to be made to save a
marriage, if there are no chances of reunion and there are
chances of fresh rehabilitation, the Court should not be powerless
in enabling the parties to have a better option.
17. In determining the question whether provision is mandatory
or directory, language alone is not always decisive. The Court has
to have the regard to the context, the subject matter and the
object of the provision. This principle, as formulated in Justice G.P.
Singh’s “Principles of Statutory Interpretation” (9
th Edn., 2004),
has been cited with approval in Kailash versus Nanhku and
ors.15as follows:
15 (2005) 4 SCC 480
11
“The study of numerous cases on this topic does not
lead to formulation of any universal rule except this
that language alone most often is not decisive, and
regard must be had to the context, subject-matter and
object of the statutory provision in question, in
determining whether the same is mandatory or
directory. In an oft-quoted passage Lord Campbell
said: ‘No universal rule can be laid down as to whether
mandatory enactments shall be considered directory
only or obligatory with an implied nullification for
disobedience. It is the duty of courts of justice to try to
get at the real intention of the legislature by carefully
attending to the whole scope of the statute to be
considered.’
“ ‘For ascertaining the real intention of the
legislature’, points out Subbarao, J. ‘the court may
consider inter alia, the nature and design of the
statute, and the consequences which would follow
from construing it the one way or the other; the
impact of other provisions whereby the necessity of
complying with the provisions in question is avoided;
the circumstances, namely, that the statute provides
for a contingency of the non-compliance with the
provisions; the fact that the non-compliance with the
provisions is or is not visited by some penalty; the
serious or the trivial consequences, that flow
therefrom; and above all, whether the object of the
legislation will be defeated or furthered’. If object of
the enactment will be defeated by holding the same
directory, it will be construed as mandatory, whereas if
by holding it mandatory serious general
inconvenience will be created to innocent persons
without very much furthering the object of enactment,
the same will be construed as directory.”
18. Applying the above to the present situation, we are of
the view that where the Court dealing with a matter is
12
satisfied that a case is made out to waive the statutory
period under Section 13B(2), it can do so after considering
the following :
i) the statutory period of six months specified in
Section 13B(2), in addition to the statutory period of
one year under Section 13B(1) of separation of
parties is already over before the first motion itself;
ii) all efforts for mediation/conciliation including efforts
in terms of Order XXXIIA Rule 3 CPC/Section 23(2) of
the Act/Section 9 of the Family Courts Act to reunite
the parties have failed and there is no likelihood of
success in that direction by any further efforts;
iii) the parties have genuinely settled their differences
including alimony, custody of child or any other
pending issues between the parties;
iv) the waiting period will only prolong their agony.
19. The waiver application can be filed one week after the
first motion giving reasons for the prayer for waiver.
13
20. If the above conditions are satisfied, the waiver of the
waiting period for the second motion will be in the discretion
of the concerned Court.
21. Since we are of the view that the period mentioned in
Section 13B(2) is not mandatory but directory, it will be
open to the Court to exercise its discretion in the facts and
circumstances of each case where there is no possibility of
parties resuming cohabitation and there are chances of
alternative rehabilitation.
22. Needless to say that in conducting such proceedings
the Court can also use the medium of video conferencing
and also permit genuine representation of the parties
through close relations such as parents or siblings where the
parties are unable to appear in person for any just and valid
reason as may satisfy the Court, to advance the interest of
justice.
14
23. The parties are now at liberty to move the concerned
court for fresh consideration in the light of this order.
The appeal is disposed of accordingly.
…………………………………..J.
(ADARSH KUMAR GOEL)
…………………………………..J.
(UDAY UMESH LALIT)
NEW DELHI;
SEPTEMBER 12, 2017.
15
ITEM NO.1502 COURT NO.11 SECTION XIV
(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). 11158/2017
AMARDEEP SINGH Appellant(s)
VERSUS
HARVEEN KAUR Respondent(s)
Date : 12-09-2017 This appeal was called on for pronouncement of
judgment today.
For Appellant(s) Mr. T. R. B. Sivakumar, AOR
For Respondent(s)
Hon'ble Mr. Justice Adarsh Kumar Goel pronounced the judgment
of the Bench comprising His Lordship and Hon'ble Mr. Justice Uday
Umesh Lalit.
The appeal is disposed of in terms of the signed reportable
judgment.
(SWETA DHYANI) (PARVEEN KUMARI PASRICHA)
SENIOR PERSONAL ASSISTANT BRANCH OFFICER
(Signed reportable judgment is placed on the file)
16

CONCEPT OF JOINT FAMILY - LEGAL PRESUMPTIONS = It is a settled principle of Hindu law that there lies a legal presumption that every Hindu family is 8 joint in food, worship and estate and in the absence of any proof of division, such legal presumption continues to operate in the family. The burden, therefore, lies upon the member who after admitting the existence of jointness in the family properties asserts his claim that some properties out of entire lot of ancestral properties are his self-acquired property. In our considered opinion, the legal presumption of the suit properties comprising in Schedule ‘B’ and ‘C’ to be also the part and parcel of the ancestral one (Schedule ‘D’) could easily be drawn for want of any evidence of such properties being self-acquired properties of the plaintiffs.

REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL No. 11220 OF 2017
(ARISING OUT OF SLP (C) No.5664/2012)
Adiveppa & Ors. ...Appellant(s)
VERSUS
Bhimappa & Anr. ….Respondent(s)
J U D G M E N T
Abhay Manohar Sapre, J.
1) Leave granted.
2) This appeal is filed by the plaintiffs against the
final judgment and order dated 22.08.2011 passed
by the High Court of Karnataka Circuit Bench at
Dharwad, in RFA No. 1793 of 2006 whereby the
High Court dismissed the appeal and affirmed the
judgment and decree passed by the Court of
Principal Civil Judge (Senior Division), Bagalkot in
O.S. No.85 of 2001.
1
3) In order to appreciate the short controversy
involved in this appeal, it is necessary to state the
relevant facts.
4) The appellants are the plaintiffs whereas the
respondents are the defendants in a civil suit out of
which this appeal arises.
5) The dispute is between the members of one
family, i.e., uncle, aunt and nephews. It pertains to
ownership and partition of agricultural lands.
6) In order to understand the dispute between
the parties, family tree of the parties needs to be
mentioned hereinbelow:
GENEALOGICAL TREE
Adiveppa (Died about 3—35 years back)
Yamanavva (Died about 10 years back)
Adiveppa
Yamanavva
(Wife)

Hanamappa Bhimappa
Gundavva
(Son – Died 6 years ago) (Son – Defendant No.1)
(Daughter-Defendant No.2)
2
Mangalavva
(Wife – Plaintiff No.3)
Adiveppa Yamanappa
( Son - Plaintiff No.1) (Son - Plaintiff No.2)
7) As would be clear from the family tree,
Adiveppa was the head of the family. He married to
Yamanavva. Out of the wedlock, two sons and one
daughter were born, namely, Hanamappa,
Bhimappa and Gundavva. Hanamappa had two
sons, namely, Adiveppa and Yamanappa.
8) Adiveppa - the head of family owned several
acres of agricultural land. He died intestate. The
dispute started between the two sons of Hanamappa
and their uncle-Bhimappa and Aunt-Gundavva
after the death of Adiveppa and Hanamappa. The
disputes were regarding ownership and extent of the
shares held by each of them in the agricultural
lands.
9) Adiveppa and Yamanappa (appellants herein)
filed a suit (O. S. No.85 of 2001) against - Bhimappa
3
and Gundavva (respondents herein) and sought
declaration and partition in relation to the suit
properties described in Schedule ‘B’, ‘C’, and ‘D’.
10) The declaration was sought in relation to the
suit properties in Schedule ‘B’ and ‘C’ that these
properties be declared as plaintiffs’ self-acquired
properties.
11) So far as the properties specified in Schedule
‘D’ were concerned, it was alleged that these
properties were ancestral and hence the plaintiffs
have 4/9th share in them as members of the family.
It was alleged that since so far partition has not
taken place by meets and bound amongst the family
members, the suit to seek for partition.
12) The respondents (defendants) denied the
plaintiffs’ claim and averred inter alia that the entire
suit properties comprising in Schedule ‘B’, ‘C’ and
‘D’ were ancestral properties. It was alleged that
during the lifetime of Hanamappa, oral partition
had taken place amongst the family members on
4
28.10.1993 in relation to the entire suit properties
(Schedule ‘B’, ‘C’ and ‘D’), pursuant to which all
family members were placed in possession of their
respective shares. It was alleged that the partition
was acted upon by all the family members including
the plaintiffs’ father (Hanamappa) without any
objection from any member. It is on these
averments, the respondents contended that the
plaintiffs’ claim was misconceived.
13) The Trial Court framed the issues and parties
adduced their evidence. By judgment/decree dated
15.07.2006, the Trial Court dismissed the suit. It
was held that the plaintiffs failed to prove the suit
properties specified in Schedule ‘B’ and ‘C’ to be
their self-acquired properties. It was also held that
so far as the properties specified in schedule ‘D’ are
concerned, though they were ancestral but were
partitioned long back pursuant to which, the
plaintiffs through their father-Hanamappa got their
respective shares including other members.
5
14) The plaintiffs felt aggrieved and filed first
appeal before the High Court. By impugned
judgment, the High Court dismissed the appeal and
affirmed the judgment/decree of the Trial Court
giving rise to filing of this appeal by way of special
leave before this Court by the plaintiffs.
15) Heard Ms. Kiran Suri, learned senior counsel,
for the appellants and Mr. Anand Sanjay M. Nuli
and Mr. R.S. Jena, learned counsel for the
respondents.
16) Having heard the learned counsel for the
parties and on perusal of the record of the case
including the written submissions filed by the
learned counsel for the appellants, we find no merit
in this appeal.
17) Here is a case where two Courts below, on
appreciating the entire evidence, have come to a
conclusion that the plaintiffs failed to prove their
case in relation to both the suit properties. The
concurrent findings of facts recorded by the two
6
Courts, which do not involve any question of law
much less substantial question of law, are binding
on this Court.
18) It is more so when these findings are neither
against the pleadings nor against the evidence and
nor contrary to any provision of law. They are also
not perverse to the extent that no such findings
could ever be recorded by any judicial person. In
other words, unless the findings of facts, though
concurrent, are found to be extremely perverse so as
to affect the judicial conscious of a judge, they
would be binding on the Appellate Court.
19) It is a settled principle of law that the initial
burden is always on the plaintiff to prove his case
by proper pleading and adequate evidence (oral and
documentary) in support thereof. The plaintiffs in
this case could not prove with any documentary
evidence that the suit properties described in
Schedule ‘B’ and ‘C’ were their self-acquired
properties and that the partition did not take place
7
in respect of Schedule ‘D’ properties and it
continued to remain ancestral in the hands of
family members. On the other hand, the
defendants were able to prove that the partition
took place and was acted upon.
20) In order to prove that the suit properties
described in Schedule ‘B’ and ‘C’ were their
self-acquired properties, the plaintiffs could have
adduced the best evidence in the form of a sale-deed
showing their names as purchasers of the said
properties and also could have adduced evidence of
payment of sale consideration made by them to the
vendee. It was, however, not done.
21) Not only that, the plaintiffs also failed to
adduce any other kind of documentary evidence to
prove their self-acquisition of the Schedule ‘B’ and
‘C’ properties nor they were able to prove the source
of its acquisition.
22) It is a settled principle of Hindu law that there
lies a legal presumption that every Hindu family is
8
joint in food, worship and estate and in the absence
of any proof of division, such legal presumption
continues to operate in the family. The burden,
therefore, lies upon the member who after admitting
the existence of jointness in the family properties
asserts his claim that some properties out of entire
lot of ancestral properties are his self-acquired
property. (See-Mulla - Hindu Law, 22nd Edition
Article 23 "Presumption as to co-parcenary and
self acquired property"- pages 346 and 347).
23) In our considered opinion, the legal
presumption of the suit properties comprising in
Schedule ‘B’ and ‘C’ to be also the part and parcel of
the ancestral one (Schedule ‘D’) could easily be
drawn for want of any evidence of such properties
being self-acquired properties of the plaintiffs. It
was also for the reason that the plaintiffs
themselves had based their case by admitting the
existence of joint family nucleolus in respect of
9
schedule ‘D’ properties and had sought partition by
demanding 4/9th share.
24) In our considered opinion, it was, therefore,
obligatory upon the plaintiffs to have proved that
despite existence of jointness in the family,
properties described in Schedule ‘B’ and ‘C’ was not
part of ancestral properties but were their
self-acquired properties. As held above, the
plaintiffs failed to prove this material fact for want of
any evidence.
25) We have, therefore, no hesitation in upholding
the concurrent findings of the two Courts, which in
our opinion, are based on proper appreciation of
oral evidence.
26) Learned counsel for the appellants took us
through the evidence. We are afraid we can
appreciate the evidence at this state in the light of
what we have held above. It is not permissible.
27) It was also her submission that the Trial Court
has recorded some findings against the defendants
10
in relation to their rights in the suit properties and
the same having been upheld by the High Court, the
appellants are entitled to get its benefit in the
context of these findings.
28) We have considered this submission but find
no merit in the light of what we have held above. At
the cost of repetition, we may observe that if the
plaintiffs failed to prove their main case set up in
the plaint and thereby failed to discharge the
burden, we cannot accept their any alternative
submission which also has no substance.
29) In the result, we find no merit in the appeal. It
fails and is accordingly dismissed.
……...................................J.
[R.K. AGRAWAL]

…...……..................................J.
[ABHAY MANOHAR SAPRE]
New Delhi;
September 06, 2017
11

Order 7 Rule 11 (d) of the Code - Suit for Declaration that Lokadalat award was obtained by playing fraud - not maintainable and as such liable the suit is liable to rejected - Writ is the only remedy

1
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL No.11345 OF 2017
(Arising out of S.L.P.(C) No.23605 of 2015)
Bharvagi Constructions & Anr. ….Appellant(s)
VERSUS
Kothakapu Muthyam
Reddy & Ors. …Respondent(s)
J U D G M E N T
Abhay Manohar Sapre, J.
1) Leave granted.
2) This appeal is filed by the defendants against
the final judgment and order dated 25.06.2015
passed by the High Court of Judicature at
Hyderabad for the State of Telangana and the State
of Andhra Pradesh in Appeal Suit No. 968 of 2013
whereby the High Court allowed the appeal filed by
2
the respondents herein with costs and set aside the
order dated 24.07.2013 passed by the second
Additional District Judge, Ranga Reddy District in
I.A. No.894 of 2010 in O.S. No.107 of 2010.
3) In order to appreciate the short legal
controversy involved in the appeal, it may not be
necessary to set out the factual controversy involved
in the case in detail and only narration of few facts
to appreciate the legal question arising in the case
would suffice for the disposal of this appeal.
4) On 07.05.2007, T. Jagat Singh (respondent
No. 5 herein) filed a civil suit being O.S. No. 481 of
2007 against respondent Nos. 1 to 34 herein
(defendant Nos. 1 to 33) in the Court of District
Judge, Ranga Reddy District Court.
5) The suit was for specific performance of
agreement of sale dated 28.12.1995 said to have
been entered into between the parties in respect of
agricultural land totally admeasuring AC. 51.29
guntas in (Sy.Nos. 262-274) situated at Pappalguda
3
village of Rajendranagar Mandal, Ranga Reddy
District (hereinafter referred to as the "suit land").
6) Originally, the plaintiff had filed suit only
against defendant Nos. 1 to 9 but later on defendant
Nos. 10 to 33 made an application for being joined
as defendant Nos. 10 to 33 in the civil suit as
according to them, they had an interest in the
subject matter of the civil suit and also in its
decision and, therefore, they were necessary parties
to the suit. Their prayer was allowed. The
defendants then contested the suit.
7) During the pendency of civil suit, on
22.08.2007, the parties (plaintiff and defendants)
settled the matter in relation to the suit land and
accordingly entered into written compromise.
8) A joint compromise petition signed by all the
parties to the suit was accordingly filed before the
Lok Adalat, which held its Lok Adalat sitting in the
Court on 22.08.2007.
4
9) The members of the Lok Adalat before whom
the suit was posted for its disposal in terms of the
compromise petition filed by the parties perused the
compromise petition and accepted the compromise
petition finding it to be in order. An Award was
accordingly passed on 22.08.2007 under Section 21
of the Legal Services Authorities Act, 1987
(hereinafter referred to as “the Act”) in terms of the
compromise petition, which, in turn, disposed of the
suit as having been compromised. (Annexure P-2).
10) On 14.11.2009, respondent Nos. 1 to 4 herein
(who were original defendant Nos. 22 to 25 in Suit
No. 481 of 2007) filed Civil Suit No. 107 of 2010
against the plaintiff and the remaining defendants
of Civil Suit No. 481 of 2007. This suit was filed in
the Court of II Additional District Judge, Ranga
Reddy District at L.B.Nagar.
11) This suit was for a declaration that the award
dated 22.08.2007 passed by the Lok Adalat in Civil
Suit No. 481 of 2007 was obtained by the
5
defendants of this suit by playing fraud/misrepresentation
on the plaintiffs and hence the
Award dated 22.08.2007 be declared illegal, null
and void and not binding on the plaintiffs.
12) According to the plaintiffs, though they were
parties to the award along with defendants in Civil
Suit No. 481/2007 but since the award dated
22.08.2007 was obtained by the parties by
misrepresenting the facts to the plaintiffs which was
nothing short of fraud played by the defendants on
them to grab their more land without their
knowledge and taking advantage of their illiteracy,
the same is not a legal award and hence not binding
on the plaintiffs. On these averments, the plaintiffs
prayed that the award dated 22.08.2007 be declared
illegal, void, in-operative and not binding on the
plaintiffs.
13) The defendants, on being served with the
notice of the suit, filed an application under Order 7
Rule 11 (d) of the Code of Civil Procedure, 1908
6
(hereinafter referred to as "the Code") and prayed for
rejection of the plaint. According to the defendants,
since the suit seeks to challenge the Award of Lok
Adalat, it is not maintainable being barred by virtue
of rigour contained in Order 7 Rule 11(d) of Code. It
was contended that the remedy of the plaintiff was
in filing writ petition under Article 226 or/and 227
of the Constitution of India to challenge the award
dated 22.08.2007 as held by this Court in State of
Punjab & Anr. Vs. Jalour Singh & Ors., (2008) 2
SCC 660 .
14) The Trial Court, by order dated 24.07.2013
allowed the application filed by the defendants and
rejected the plaint by invoking powers under clause
(d) of Rule 11. It was held that the filing of the civil
suit to challenge the award of Lok Adalat is
impliedly barred and the remedy of the plaintiffs is
to challenge the award by filing writ petition under
Article 226 or/and 227 of the Constitution in the
7
High Court as held by this Court in the case of
State of Punjab (supra).
15) The plaintiffs, felt aggrieved, filed an appeal
before the High Court. The High Court, by
impugned order, allowed the appeal, set aside the
order of the Trial Court and restored the suit on its
file for its disposal on merits in accordance with
law. The High Court held that since the suit is
founded on the allegations of misrepresentation and
fraud, it is capable of being tried on its merits by
the Civil Court.
16) Against this order, the defendants have felt
aggrieved and filed this appeal by way of special
leave before this Court.
17) Heard Mr. Dushyant Dave and Mr. Jayant
Bhushan, learned senior counsel for the appellants
and Mr. B. Adinarayana, learned senior counsel,
Mr. D. Mahesh Babu, Mr. Pranab Mullick, Mr. Ejaz
Maqbool for the respondents.
8
18) Mr. Dushyant Dave, learned senior counsel,
appearing for the appellants (defendants) while
assailing the legality and correctness of the
impugned order argued only one legal point. He
urged that the reasoning and the conclusion arrived
at by the Trial Court was right whereas the
reasoning and the conclusion arrived at by the High
Court was not so and hence the Trial Court's order
deserves to be restored.
19) Elaborating his submission, Mr. Dushyant
Dave placed reliance on the law laid down by this
Court in State of Punjab (supra) and contended
that the issue urged by him no longer remains res
integra and stands answered by this Court in
appellant's favour.
20) It was his submission that the expression
"barred by any law" occurring in clause (d) of Rule
11 of Order 7 not only includes any Act enacted by
the legislature creating a “bar” but the expression
“law” includes therein “judicial decision of the
9
Supreme Court" also, which are binding on all the
Courts in the Country by virtue of Article 141 of the
Constitution of India.
21) In other words, his submission was that the
expression “law” occurring in clause(d) of Rule 11 of
Order 7 should be construed liberally so as to
include therein not only any “Act" which is
admittedly a “law” made by the legislature but also
include therein a "a decision of Supreme Court ".
22) Learned counsel urged that the appellants
(defendants) were, therefore, fully justified in
invoking the powers under Order 7 Rule 11(d) of the
Code praying for rejection of the plaint as being
barred on the strength of law laid down by this
Court in State of Punjab (supra).
23) In reply, learned counsel for the respondents
while supporting the impugned order contended
that the reasoning and the conclusion arrived at by
the High Court is just and proper and hence does
not call for any interference.
10
24) Having heard the learned counsel for the
parties and on perusal of the record of the case, we
find force in the submissions of the learned counsel
for the appellants.
25) The question arose before this Court (Three
Judge Bench) in the case of State of Punjab (supra)
as to what is the remedy available to the person
aggrieved of the award passed by the Lok Adalat
under Section 20 of the Act. In that case, the award
was passed by the Lok Adalat which had resulted in
disposal of the appeal pending before the High
Court relating to a claim case arising out of Motor
Vehicle Act. One party to the appeal felt aggrieved of
the Award and, therefore, questioned its legality and
correctness by filing a writ petition under Article
226/227 of the Constitution of India. The High
Court dismissed the writ petition holding it to be not
maintainable. The aggrieved party, therefore, filed
an appeal by way of special leave before this Court.
This Court, after examining the scheme of the Act
11
allowed the appeal and set aside the order of the
High Court. This Court held that the High Court
was not right in dismissing the writ petition as not
maintainable. It was held that the only remedy
available with the aggrieved person was to challenge
the award of the Lok Adalat by filing a writ petition
under Article 226 or/and 227 of the Constitution of
India in the High Court and that too on very limited
grounds. The case was accordingly remanded to the
High Court for deciding the writ petition filed by the
aggrieved person on its merits in accordance with
law.
26) This is what Their Lordships held in Para 12:
“12. It is true that where an award is made by
the Lok Adalat in terms of a settlement
arrived at between the parties (which is duly
signed by parties and annexed to the award of
the Lok Adalat), it becomes final and binding
on the parties to the settlement and becomes
executable as if it is a decree of a civil court,
and no appeal lies against it to any court. If
any party wants to challenge such an award
based on settlement, it can be done only by
filing a petition under Article 226 and/or
Article 227 of the Constitution, that too on
very limited grounds. But where no
compromise or settlement is signed by the
12
parties and the order of the Lok Adalat does
not refer to any settlement, but directs the
respondent to either make payment if it
agrees to the order, or approach the High
Court for disposal of appeal on merits, if it
does not agree, is not an award of the Lok
Adalat. The question of challenging such an
order in a petition under Article 227 does not
arise. As already noticed, in such a situation,
the High Court ought to have heard and
disposed of the appeal on merits.”
27) In our considered view, the aforesaid law laid
down by this Court is binding on all the Courts in
the country by virtue of mandate of Article 141 of
the Constitution. This Court, in no uncertain terms,
has laid down that challenge to the award of Lok
Adalat can be done only by filing a writ petition
under Article 226 and/or Article 227 of the
Constitution of India in the High Court and that too
on very limited grounds.
28) In the light of clear pronouncement of the law
by this Court, we are of the opinion that the only
remedy available to the aggrieved
person(respondents herein/plaintiffs) was to file a
writ petition under Article 226 and/or 227 of the
13
Constitution of India in the High Court for
challenging the award dated 22.08.2007 passed by
the Lok Adalat. It was then for the writ Court to
decide as to whether any ground was made out by
the writ petitioners for quashing the award and, if
so, whether those grounds are sufficient for its
quashing.
29) The High Court was, therefore, not right in by
passing the law laid down by this Court on the
ground that the suit can be filed to challenge the
award, if the challenge is founded on the allegations
of fraud. In our opinion, it was not correct approach
of the High Court to deal with the issue in question
to which we do not concur.
30) We also do not agree with the submissions of
Mr. Adinarayana Rao, learned senior counsel for the
respondents when he urged that firstly, the
expression "law" occurring in clause(d) of Rule 11
Order 7 does not include the "judicial decisions"
and clause (d) applies only to bar which is contained
14
in “the Act” enacted by the Legislature; and
Secondly, even if it is held to include the “judicial
decisions”, yet the law laid down in the case of
State of Punjab (supra) cannot be read to hold that
the suit is barred. Both these submissions, in our
view, have no merit.
31) Black's Law Dictionary (Ninth Edition) defines
the expression "law". It says that “Law" includes the
“judicial precedents" (see at page 962). Similarly,
the expression "law” defined in Jowett’s Dictionary
of English Law (Third Edition Volume-2, (pages
1304/1305) says that "law is derived from judicial
precedents, legislation or from custom. When
derived from judicial precedents, it is called
common law, equity, or admiralty, probate or
ecclesiastical law according to the nature of the
Courts by which it was originally enforced".
32) The question as to whether the expression
"law" occurring in clause(d) of Rule 11 of Order 7 of
the Code includes "judicial decisions of the Apex
15
Court" came up for consideration before the Division
Bench of the Allahabad High Court in Virender
Kumar Dixit vs. State of U.P., 2014(9) ADJ 1506.
The Division Bench dealt with the issue in detail in
the context of several decisions on the subject and
held in para 15 as under:
“15. Law includes not only legislative
enactments but also judicial precedents. An
authoritative judgment of the Courts
including higher judiciary is also law.”
33) This very issue was again considered by the
Gujarat High Court (Single Bench) in the case of
Hermes Marines Limited vs. Capeshore Maritime
Partners F.Z.C. & Anr. (unreported decision in Civil
Application (OJ) No.144 of 2016 in Admiralty Suit
No.10 of 2016 decided on 22.04.2016). The learned
Single Judge examined the issue and relying upon
the decision of the Allahabad High Court quoted
supra held in Para 53 as under:
“53. In the light of the above discussion, in
the considered view of this Court, it cannot
be said that the term “barred by any law”
occurring in clause(d) of Rule 11 of Order 7 of
16
the Code, ought to be read to mean only the
law codified in a legislative enactment and
not the law laid down by the Courts in
judicial precedents. The judicial precedent of
the Supreme Court in Liverpool & London
Steamship Protection and Indemnity
Association vs. M.V. Sea Success, 2004(9)
SCC 512 has been followed by the decision of
the Division Bench in Croft Sales &
Distribution Ltd. vs. M.V. Basil, 2011(2) GLR
1027. It is, therefore, the law as of today,
which is that the Geneva Convention of 1999
cannot be made applicable to a contract that
does not involve public law character. Such a
contract would not give rise to a maritime
claim. As discussed earlier, the word ‘law’ as
occurring in Order 7 Rule 11(d) would also
mean judicial precedent. If the judicial
precedent bars any action that would be the
law.”
34) Similarly, this very issue was again examined
by the Bombay High Court (Single Judge) in Shahid
s. Sarkar & Ors. Vs. Usha Ramrao Bhojane, 2017
SCC OnLine Bom 3440. The learned Judge placed
reliance on the decisions of the Allahabad High
Court in Virender Kumar Dixit vs. State of U.P.
(Supra) and the Gujarat High Court in Hermes
Marines Limited (supra) and held as under:
“18…………….The law laid down by the
highest court of a State as well as the
Supreme Court, is the law. In fact, Article
141 of the Constitution of India categorically
17
states that the law declared by the Supreme
Court shall be binding on all Courts within
the territories of India. There is nothing
even in the C.P.C. to restrict the meaning of
the words “barred by any law” to mean only
codified law or statute law as sought to be
contended by Mr. Patil. In the view that I
have taken, I am supported by a decision of
the Gujarat High Court in the case of Hermes
Marines Ltd..………..........................”
“19. One must also not lose sight of
the purpose and intention behind Order VII
Rule 11(d). The intention appears to be that
when the suit appears from the statement in
the plaint to be barred by any law, the Courts
will not unnecessarily protract the litigation
and proceed with the hearing of the suit. The
purpose clearly appears to be to ensure that
where a Defendant is able to establish that
the Plaint ought to be rejected on any of the
grounds set out in the said Rule, the Court
would be duty bound to do so, so as to save
expenses, achieve expedition and avoid the
court’s resources being used up on cases
which will serve no useful purpose. A
litigation, which in the opinion of the court,
is doomed to fail would not further be allowed
to be used as a device to harass a
Defendant…………………..”
35) Similarly, issue was again examined by the
High Court of Jharkhand(Single Judge) in Mira
Sinha & Ors. Vs. State of Jharkhand & Ors., 2015
SCC OnLine Jhar.4377. The learned Judge, in
paragraph 7 held as under:
18
“7. In the background of the law laid down by
the Hon’ble Supreme Court, it is apparent
that Order VII Rule 11(d) C.P.C. application is
maintainable only when the suit is barred by
any law. The expression “law” included in
Rule 11(d) includes Law of Limitation and, it
would also include the law declared by the
Hon’ble Supreme Court………”
36) We are in agreement with the view taken by
Allahabad, Gujarat, Bombay and Jharkhand High
Courts in the aforementioned four decisions which,
in our opinion, is the proper interpretation of the
expression "law" occurring in clause (d) of Rule 11 of
Order 7 of the Code. This answers the first
submission of the learned counsel for the
respondents against the respondents.
37) So far as the second submission of learned
counsel for the respondents is concerned, it also
has no merit. In our view, the decision rendered in
the case of State of Punjab (supra) is by the larger
Bench (Three Judge) and is, therefore, binding on
us. No efforts were made and rightly to contend that
the said decision needs reconsideration on the issue
in question. That apart, when this Court has laid
19
down a particular remedy to follow for challenging
the award of Lok Adalat then in our view, the same
is required to be followed by the litigant in letter and
spirit as provided therein for adjudication of his
grievance in the first instance. The reason being
that it is a law of the land under Article 141 of the
Constitution of India (see - M. Nagaraj & Ors. Vs.
U.O.I. & Ors. 2006 ( 8 ) SCC 212). It is then for
the writ court to decide as to what orders need to be
passed on the facts arising in the case.
38) In the light of foregoing discussion, we cannot
concur with the reasoning and the conclusion
arrived at by the High Court.
39) As a result, the appeal succeeds and is
allowed. Impugned order is set aside and that of the
order passed by the Trial Court is restored. As a
consequence, the application filed by the appellants
(defendants) under Order 7 Rule 11 (d) of the Code
is allowed resulting in rejection of the plaint.
20
40) We, however, make it clear that the
respondents (plaintiffs) would be at liberty to
challenge the legality and correctness of the award
dated 22.08.2007 passed by the Lok Adalat by filing
the writ petition under Article 226 or/and 227 of
the Constitution in the High Court in accordance
with law.
41) We also make it clear that we have not
examined the merits of case of either parties which
is the subject matter of the suit and hence the writ
court, in the event of writ petition being filed, would
decide the writ petition strictly in accordance with
law without being influenced by any of our
observations.
………...................................J.
[R.K. AGRAWAL]
…...
……..................................J.
[ABHAY MANOHAR SAPRE]
New Delhi;
September 07, 2017

Co- Sharer has no right of Pre emption - Effect of amendment of Pre- Emption Rights in Punjab - where the defendant was proceeded against ex parte and that order has been set aside on the ground that she has not been served and, therefore, she has been relegated to the position existing on the date she was proceeded against ex-parte, i.e., 6th April, 1990. After the amendment was introduced on 17th May, 1995, there was no right existing in the plaintiff to file a suit for pre-emption. Since the decree on contest was passed on 27th November, 1999 the plaintiff had no existing right of pre-emption on that date and the suit was rightly dismissed. This decree is the only subsisting decree of the first court.

1
‘REPORTABLE’
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.2062 OF 2009
Vijay Singh … Appellant(s)
Versus
Shanti Devi and Anr. …Respondent(s)
J U D G M E N T
Deepak Gupta, J.
1. “Whether, in a suit for pre-emption, an ex parte decree
which is later set aside, can be termed to be the decree
of the court of first instance” is the question which
arises for decision in this appeal.
2. The undisputed facts are that one Roop Chand sold the
suit land in favour of Shanti Devi, respondent No. 1
2
herein. Vijay Singh, appellant who was a co-sharer
with Roop Chand, filed a suit for possession on the
basis of right of pre-emption granted to a co-sharer
under the Punjab Pre-emption Act, 1913 (for short ‘the
1913 Act’) on 6th November, 1989. The defendant
Shanti Devi was proceeded against ex parte on 6th
April, 1990. Thereafter, an ex parte decree was passed
against her on 10th April, 1990. Pursuant to the
decree, execution petition was filed and the appellant
Vijay Kumar took possession of the suit land on 7th
June, 1990.
3. On the same day, i.e., 7th June, 1990, Shanti Devi filed
an application under Order IX Rule 13 of the Code of
Civil Procedure (for short ‘CPC’) for setting aside the
decree dated 10th April, 1990 claiming that she had
not received the summons and had no knowledge of the
proceedings. It was alleged that only when possession
was taken on 7th June, 1990 did she become aware
that the appellant Vijay Kumar had initiated some legal
proceedings against her. The trial court dismissed the
application filed by Shanti Devi for setting aside the ex
3
parte decree on 4th October, 1993. Thereafter, Shanti
Devi filed an appeal before the appellate court.
4. In the meantime, on 17th May, 1995 the State of
Haryana amended Section 15 of the 1913 Act. The net
effect of this amendment was that the amendment took
away the right of pre-emption of a co-sharer and the
right of pre-emption was only retained with a tenant.
5. The appellate court allowed the application filed by
Shanti Devi and set aside ex parte decree on 28th
August, 1998. The appellant herein challenged the
order of the appellate court by filing civil revision
petition in the Punjab and Haryana High Court, which
was dismissed on 5th November, 1999. It would be
pertinent to mention that the learned Judge, while
dismissing the revision petition, also observed that in
view of the amendment to the 1913 Act the appellant
herein had no right to pre-empt the sale of the suit
land. The appellant then filed Petition for Special Leave
to Appeal (Civil) No. 3488 of 2000 before this Court,
which was disposed of on 10th March, 2000. This Court
not only dismissed the petition but also ordered that
4
the trial court would decide the suit afresh without
being influenced by the observations on merit, made by
the learned Judge of the High Court.
6. Thereafter, the suit was tried afresh and the main
ground raised by Shanti Devi was that in view of the
amendment made to the 1913 Act, the right of
pre-emption was no longer available to the appellant.
On the other hand, the appellant contended that the
date of decree of the first court was 10th April,
1990 when the ex parte decree was passed and,
therefore, the rights of the parties are governed by the
law as it stood on that date.
7. After remand, the learned trial court dismissed the suit
of the appellant on 27th November, 1999 on the ground
that by virtue of amendment to the 1913 Act, the right
of pre-emption stood extinguished. The appellant,
thereafter, filed first appeal before the trial court, which
was also dismissed. The regular second appeal also
met the same fate.
8. The issue to be decided is a legal issue which stands in
a narrow compass. Before dealing with the issue itself,
5
it would be pertinent to refer to the Constitution Bench
judgment of this Court in the case of Shyam Sunder
& Ors. v. Ram Kumar & Anr., 1
wherein this Court
considered the effect of the amendment made to the
1913 Act. This Court held that if Section 15 of the
1913 Act was amended during the pendency of the
appeal before the Supreme Court, the decree of
pre-emption would not be affected by such amendment.
After discussing the entire law, the Constitution Bench
culled out the following legal principles:
“10. On an analysis of the aforesaid decisions
referred to in the first category of decisions, the
legal principles that emerge are these:
1. The pre-emptor must have the right to
pre-empt on the date of sale, on the date of
filing of the suit and on the date of passing of
the decree by the court of the first instance
only.
2. The pre-emptor who claims the right to
pre-empt the sale on the date of the sale must
prove that such right continued to subsist till
the passing of the decree of the first court. If
the claimant loses that right or a vendee
improves his right equal or above the right of
the claimant before the adjudication of suit, the
suit for pre-emption must fail.
3. A pre-emptor who has a right to pre-empt a
sale on the date of institution of the suit and
on the date of passing of decree, the loss of
such right subsequent to the decree of the first
1 (2001) 8 SCC 24,
6
court would not affect his right or
maintainability of the suit for pre-emption.
4. A pre-emptor who after proving his right on
the date of sale, on the date of filing the suit
and on the date of passing of the decree by the
first court, has obtained a decree for
pre-emption by the court of first instance, such
right cannot be taken away by subsequent
legislation during pendency of the appeal filed
against the decree unless such legislation has
retrospective operation.”
9. In view of the decision of the Constitution Bench, it is
not necessary to refer to various other judgments cited
before us. A perusal of the principles laid down by the
Constitution Bench clearly indicates that the
pre-emptor should possess the right to pre-empt on
three dates:
(i) the date of sale;
(ii) the date of filing of the suit; and
(iii) the date of passing of the decree by the court of first
instance only.
As far as the first two conditions are concerned, there
is no dispute that the appellant possessed the right of
pre-emption on the date of sale as also on the date of filing of
the suit since he was a co-sharer in the land in question. It
is also not disputed that on 10th April, 1990 when the ex
7
parte decree was passed in favour of the appellant he had a
valid legal right of pre-emption in his favour.
10.The question to be decided is what is the effect of
setting aside of the ex parte decree and the passing of
fresh decree by the court of first instance on 27th
November, 1999 on which date, admittedly, the
appellant did not have a valid right to pre-empt the
sale in view of the amendment to the 1913 Act.
11.Order IX Rule 6 of CPC, reads as follows:
“ORDER IX- APPEARANCE OF PARTIES AND
CONSEQUENCE OF NON-APPEARANCE
xxx xxx xxx
6. Procedure when only plaintiff appears.- (1)
Where the plaintiff appears and the defendant
does not appear when the suit is called on for
hearing, then
(a) When summons duly served—lf it is
proved that the summons was duly
served, the court may make an order that
the suit be heard ex parte;
(b) When summons not duly served—If
it is not proved that the summons was
duly served, the court shall direct a
second summons to be issued and served
on the defendant;
(c) When summons served but not in
due time—If it is proved that the
summons was served on the defendant,
8
but not in sufficient time to enable him to
appear and answer on the day fixed in the
summons, the court shall postpone the
hearing of the suit to a future day to be
fixed by the court, and shall direct notice
of such day to be given to the defendant.
(2) Where it is owing to the plaintiff’s default
that the summons was not duly served or was
not served in sufficient time, the court shall
order the plaintiff to pay the costs occasioned
by the postponement.”
12.We are only concerned with clause (a), which provides
that if summons are duly served and the defendant
does not put in appearance, the court may make an
order that the suit would be heard ex parte. In this
case, this was the procedure followed and an ex parte
decree was passed. There is no manner of doubt that
an ex parte decree is also a valid decree. It has the
same force as a decree which is passed on contest. As
long as the ex parte decree is not recalled or set aside,
it is legal and binding upon the parties.
13.Order IX Rule 13, CPC reads as follows:
“ORDER IX- APPEARANCE OF PARTIES AND
CONSEQUENCE OF NON-APPEARANCE
xxx xxx xxx
9
13. Setting aside decree ex parte against
defendants— In any case in which a decree is
passed ex parte against a defendant, he may
apply to the Court by which the decree was
passed for an order to set it aside; and if he
satisfies the Court that the summons was not
duly served, or that he was prevented by any
sufficient cause from appearing when the suit
was called on for hearing, the Court shall make
an order setting aside the decree as against
him upon such terms as to costs, payment into
Court or otherwise as it thinks fit, and shall
appoint a day for proceeding with the suit;
Provided that where the decree is of such a
nature that it cannot be set aside as against
such defendant only it may be set aside as
against all or any of the other defendants also:
Provided further that no Court shall set aside a
decree passed ex parte merely on the ground
that there has been an irregularity in the
service of summons, if it is satisfied that the
defendant had notice of the date of hearing and
had sufficient time to appear and answer the
plaintiff's claim.
Explanation.—Where there has been an appeal
against a decree passed ex parte under this
rule, and the appeal has been disposed of on
any ground other than the ground that the
appellant has withdrawn the appeal, no
application shall lie under this rule for setting
aside the ex parte decree.”
14.The aforesaid provision lays down the procedure for
setting aside a decree passed ex parte. The court can
set aside an ex parte decree only on two grounds –
firstly, that the summons was not duly served; and
secondly, that the defendant was prevented by
sufficient cause from appearing when the suit was
10
called out. Once an ex parte decree is set aside, it
basically means that the parties are relegated to the
same position on which they stood before the passing of
the ex-parte decree.
15.In the present case, the stand of the respondent No. 1
is that she was never served in the suit and she came
to know about the proceedings only on the date when
the decree was executed and the possession of the land
was taken from her. On the same day itself she filed an
application for setting aside the ex parte decree. This
application was dismissed by the trial court. The lower
appellate court allowed the appeal filed by the
respondent No. 1 herein and set aside the ex parte
decree on the ground that she had not been served
properly in the suit and, therefore, she had a
reasonable cause for not appearing on the date on
which the suit was called up.
16.In the present case, the result would be that the
respondent No.1, Shanti Devi would be relegated to the
position at which she was when she was proceeded
against ex parte which would be the date on which the
11
written statement was to be filed. There is no manner
of doubt that the effect of setting aside an ex parte
decree is to restore the parties to the position at which
they were prior to the passing of the decree and relegate
them to the position on which they were when the
defendant was proceeded against ex parte. The parties
are restored to the position existing prior to the date
the order proceeding against the defendant ex parte
was passed. No authoritative pronouncement of this
Court has been placed before us in this regard.
However, we may refer to the judgments passed by
various High Courts in the case of Kumararu
Narayanaru v. Padmanabha Kurup Gopala Kurup2
,
Beerankoya Haji v. P.P. Mohammedkutty 3
, Shah
Bharat Kumar v. M/s. Motilal and Bharulal 4
, Aziz
Ahmed Patel v. I.A. Patel 5
, Mst. Lakshmi Devi v.
Roongta & Co.
6
, Venkatasubbiah v.
Lakshminarasimhan 7
, which have taken this view.
2 AIR 1953 (TC) 426
3 AIR 1986 Ker 10
4 AIR 1980 Guj 50
5 AIR 1974 (A.P.) 1
6 AIR 1962 (All.) 381
7 49 Mad.L.J.273
12
17.It would be pertinent to mention that the mere fact that
the ex parte decree has been executed does not
disentitle the defendant from applying under Order IX
Rule 13, CPC to get the same set aside. Reference may
be made to Sm. Sankaribala Dutta v. Sm. Asita
Barani Dasi and others8
and Mst. Fatima Khatoon
v. Swarup Singh9
. Once the decree is set aside,
restitution or restoration can be ordered.
18.On behalf of the appellant it has been urged that in
Shyam Sunder’s case (supra), this Court made no
exception for ex-parte decrees while setting out the
principles which have been quoted hereinabove and the
ex parte decree should be treated to be the decree of
the court of first instance. That was not an issue
raised before the Constitution Bench. This Court was
only concerned with the issue whether the amendment
to the 1913 Act taking away the right of pre-emption
vested in the co-sharer introduced after the decree was
passed by the court of first instance and the effect
8 AIR 1977 Calcutta 289
9 AIR 1984 Calcutta 257
13
thereof. The issue which is raised in this case was
neither directly nor impliedly the subject matter of
decision in Shyam Sundar’s case (supra).
19.An ex parte decree is passed when the court believes
that the defendant has been served but is not
appearing in court despite service of summons. In the
present case, the appellate court while setting aside the
ex parte decree, has come to the conclusion that the
defendant Shanti Devi (respondent no. 1 herein) was
not served and, therefore, the court had wrongly
proceeded against her ex parte. That finding has been
upheld till this Court. In our view, the effect of this
would be that the ex parte decree, on its being set
aside, would cease to exist and become non-est. After
the ex parte decree is set aside, it is no decree in the
eyes of law. The decree passed by the trial court on
merits should be treated as the decree of the first court.
We may make it clear that we are not dealing with
those cases where a case has been decided on merits
and the decree is set aside by the appellate court on
14
any other ground and the matter remanded to the trial
court for decision afresh. We leave that question open.
20.Here, we are dealing with a case where the defendant
was proceeded against ex parte and that order has been
set aside on the ground that she has not been served
and, therefore, she has been relegated to the position
existing on the date she was proceeded against
ex-parte, i.e., 6th April, 1990. After the amendment was
introduced on 17th May, 1995, there was no right
existing in the plaintiff to file a suit for pre-emption.
Since the decree on contest was passed on 27th
November, 1999 the plaintiff had no existing right of
pre-emption on that date and the suit was rightly
dismissed. This decree is the only subsisting decree of
the first court.
21.Shri Amarendra Sharan, learned senior counsel
appearing for the appellant urged that since possession
of the property was taken as far back as 7th June, 1990,
no restitution can be ordered at this belated stage and,
therefore, there is no point in upholding the decree. On
the other hand, Shri Shantwanu Singh, learned
15
counsel appearing for the respondent No. 1 has urged
that this Court should exercise its power under Article
142 of the Constitution of India and direct that the
property be restored to the respondent No. 1, who has
been litigating for many years.
22.We cannot accept either of the two submissions. The
limitation for restitution under the Limitation Act is 12
years. The ex parte decree was set aside on 28th
August, 1998 and thereafter, the appellant has been
litigating at various levels. If the appellant had
obtained stay order(s) during this period, obviously the
period for which the stay was granted, would have to be
excluded while calculating the period of limitation.
This is not the job of this Court. It is for the executing
court to decide whether the restitution petition, if any
filed, is within the limitation or not. It is only the court
which passed the original decree, which can order
restitution. Restitution cannot be granted by the
Supreme Court, as held in the case of State Bank of
Saurashtra v. Chitranjan Rangnath10
.
10 (1980) 4 SCC 516.
16
23.In view of the above, we find no merit in the appeal,
which is accordingly dismissed. Status quo granted
vide order dated 27.11.2006, which was directed to be
continued by order dated 30.03.2009, stands vacated.
....................................J.
(MADAN B. LOKUR)
....................................J.
(DEEPAK GUPTA)
New Delhi
September 08, 2017

where the charge in both the proceedings is the same and Delinquent Officer is exonerated therefrom in the departmental proceeding which concludes earlier in point of time, that the criminal prosecution on the same set of facts and circumstances ought not to be allowed to continue more particularly in view of the prescription of higher standard of proof in criminal cases. However, exoneration in the departmental proceeding on a technical ground would not be a bar for the criminal prosecution to continue.

1
ITEM NO.34                 COURT NO.12               SECTION II
                S U P R E M E  C O U R T  O F  I N D I A
                        RECORD OF PROCEEDINGS
Petition(s) for Special Leave to Appeal (Crl.) No(s).  6241/2012
(Arising out of impugned final judgment and order dated  13/03/2012
in SBCRM No. 332/2009 passed by the High Court Of Rajasthan At
Jodhpur)
MANA RAM                                           Petitioner(s)
                                 VERSUS
SOHAN LAL AND ANR.                                 Respondent(s)
Date : 04/05/2017 This petition was called on for hearing today.
CORAM :
          HON'BLE MR. JUSTICE ARUN MISHRA
          HON'BLE MR. JUSTICE AMITAVA ROY
For Petitioner(s)  Mr. Manoj Prasad, Sr. Adv.
 Mr. Ashutosh Dubey, Adv.
 Mr. Sadashiv Gupta, Adv.
                      Mr. Rohit Singh,Adv.                    
For Respondent(s)  Mr. Rishabh Sancheti, Adv.
                      Mr. T. Mahipal,Adv.
   Mr. Rahul Verma, Adv.
                      Ms. Ruchi Kohli,Adv.
                   
           UPON hearing the counsel the Court made the following
                              O R D E R

Leave granted.
Appeal is allowed in terms of the signed order.
    (NEELAM GULATI)  
    COURT MASTER         (TAPAN KR. CHAKRABORTY)
             COURT MASTER
(Signed order is placed on the file)

1
IN THE SUPREME COURT OF INDIA
  CRIMINAL  APPELLATE JURISDICTION
CRIMINAL APPEAL NO.    893      OF 2017
[ARISING OUT OF S.L.P.(CRL.) NO.6241 OF 2012]
MANA RAM      …APPELLANT
VERSUS
SOHAN LAL AND ANOTHER             …RESPONDENTS
O R D E R
Leave granted
2. The impugnment is of the decision of the High Court contained in
the   judgment   and   order   dated   13.03.2012   rendered   in   S.B.   Criminal
Miscellaneous   Petition   No.332/2009   thereby   discharging   the
respondent   No.1   from   the   charge   of   offence   under   Section   167   India
Penal Code (for short hereinafter referred to as the “IPC”). Thereby, the
order   of   the   learned   Trial   Court   framing   charge   under   the
aforementioned   section   of   law   and   the   dismissal   of   the   revision
petition   questioning   the   same   by   the   jurisdictional   Sessions   Court,
have been set aside.

2
3. We have heard Mr. Manoj Prasad, learned senior counsel for the
appellant,   M/s.   Rishabh   Sancheti   &   Mr.   Rahul   Verma,   learned
counsel for the respondents No.1 & 2 respectively.
4. The essential facts need be outlined at the outset. The appellant
had   filed   a   complaint   in   the   Court   of   the   Chief   Judicial   Magistrate,
Sriganganagar, Rajasthan against the respondent No.1 and one Shera
Ram   under   Sections   166,   167,   420,   466,   120B   IPC   to   the   effect   that
following   an   agreement   for   sale   of   an   agricultural   land   admeasuring
12 bigha, 5 biswa of Murrabba No.37, Kila No.13 to 25 with the owner
Shera   Ram   (respondent   No.2   therein)   and   on   payment   of
Rs.2,52,000/-   had   taken   over   possession   thereof.   According   to   the
appellant/complainant   since   thereafter,   he   had   been   cultivating   the
land and in continuation of the process of sale, he on 21.07.1990 paid
a   further   amount   of   Rs.10,000/-   to   Shera   Ram   against   which   the
latter executed a receipt. Thereafter, the appellant instituted a suit for
specific   performance   of   the   contract   in   the   Court   of   the   District   and
Sessions Judge, Sriganganagar wherein the Trial Court, as prayed for,
also passed an order of injunction directing maintenance of status quo
of   the   land   involved.   The   appellant/complainant   has   stated   that   the
factum of the order of injunction granted by the Trial Court was duly
communicated   to   the   respondent   No.1   who   at   the   relevant   time   was

3
the   Patwari   of   the   region   concerned.   Reiterating   that   the   appellant
thus was in possession of the land since 15.04.1987 and his name on
the   basis   of   such   possession   and   cultivation   thereof   was   entered   in
Canal   Girdavari   he   asserted   that   irrigation   slips   were   also   issued   by
the   concerned   Patwari   from   time   to   time.   He   also   annexed   to   the
complaint,   the   said   documents.   The   appellant/complainant   averred
that   the   respondent   No.1   (in   the   complaint)   was   in   the   capacity   of
Patwari, fully aware of his possession and cultivation of the land since
15.04.1987 so much so that he issued receipts in endorsement of this
fact   after   collecting   the   land   revenue.   This   was   as   late   as   on
12.08.2005.
5. The  appellant/complainant  alleged  that  in  spite  of  the  above,  as
Shera Ram, his vendor nursed a malicious intention of selling the land
again   for   pecuniary   gains,   be   colluded   with   the   respondent   No.1   and
in furtherance of the conspiracy between the two, got prepared a false
report  by   the respondent  No.1  that  the land  was  in possession  of  the
Shera Ram. According to the appellant/complainant this was effected
by making false entries in the revenue records.

6. Having   come   to   learn   of   this   fraud,   the   appellant/complainant
lodged a complaint with the District Collector, Sriganganagar following

4
which   the   S.D.M.   (Revenue)   did   visit   the   spot   along   with   the   Patwari
on 28.10.2005  and  submitted a  report affirming   that  the  land was  in
his   (appellant/complainant)   cultivating   possession.   A   copy   of   the
report was also annexed to the complaint. The appellant/complainant
thus   alleged   that   the   respondent   No.1   in   making   the   false   entry   and
issuing   a   report   on   the   basis   thereof   grossly   misused   his   official
position as a public servant and thus sought for the prosecution of the
respondents under the above-mentioned sections of law.
7. As  the  records  reveal,  following  an  investigation by  the  police  as
ordered   by   the   Court,   charge-sheet   was   submitted   against   the
respondent   No.1   and   the   Trial   Court   took   cognizance   of   the   offences
alleged   and   fixed   the   case   for   framing   of   charge.   At   that   stage   the
respondent   No.1   filed   an   application   under   Section   197   Cr.P.C.,
questioning his prosecution sans necessary sanction thereunder.
8. The   learned   Trial   Court   after   hearing   the   parties   and   on   a
thorough   consideration   of   the   allegations   made   in   the   complaint   and
the   statements   of   the   appellant/complainant   and   the   witnesses
rejected the objection and framed charge against the respondent No.1
under   Section   167   IPC   by   order   dated   10.12.2008.   Significantly,   the
learned   Trial   Court   while   rejecting   the   respondent   No.1's   objection
based on 197 Cr.P.C. did take note of the documents furnished by the

5
appellant/complainant   in   support   of   the   accusations   and   concluded
that   having   regard   to   the   allegations   made,   the   respondent   No.1   was
not entitled to the protection under Section 197 Cr.P.C.
9. The charge as framed by the Trial Court is extracted hereunder:
“ That on or around dated 22.09.2005 while working at the
post   of   Patwari   Halqa   11,   L.N.P.   as   public   service,   you
prepared a false report about possession and cultivation of
accused Bheraram on the land comprising Murabba No.37,
Kile No.13 to 25 area 12 Bigha 5 Biswa as a public service
while   you   had   got   the   knowledge   that   complainant
Manaram   has   been   enjoying   possession   on   the   said   land.
You indulged in such act with the intentions or knowingly
well   that   it   would   cause   loss   to   complainant   Manaram.
Thus,   your   act   amounts   to   offence   punishable   under
section 167 Cr.P.C. and is under my cognizance .”
10. The   revision   petition   filed   by   the   respondent   No.1   against   the
above   decision   of   the   Trial   Court   was   dismissed   by   the   Sessions
Judge,   Sriganganagar   by   his   order   dated   10.02.2009.   The   challenge
before the High Court was laid thereafter.
11. Parallelly   however,   acting   on   the   complaint   lodged   with   the
District   Collector,   Land   Revenue,   Sriganganagar   a   departmental
enquiry   was   conducted   against   the   respondent   No.1   on   the   following
charge:
“ That   while   working   at   Patwari   Division   11,   L.N.P.   sale
certificate   of   land   comprising   Kila   No.13   to   25   total   area
12.05   Bigha   of   Murabba   no.37   of   Chuk   11   L.N.P.   on
22.09.05.  Instead of submitting report of Point No.1, 3 & 7
on   the   basis   of   the   factuality,   one   of   the   parties   was
unlawfully benefitted and from which unnecessary dispute

6
arose.   Thus,   you   kept   the   higher   officers   misconceived   by
acting   contrary   to   your   responsibility   which   was   contrary
to the responsibility entrusted to you .”
12. The   record   attest   that   such   enquiry   under   Rule   16(4)   of   the
Rajasthan   Civil   Services   (Classification,   Control   &   Appeals)   Rules,
1958 was attended to by the respondent No.1 and the Enquiry Officer
after   hearing   the   parties   and   on   a   detailed   consideration   of   the
evidence   adduced,   held   that   the   charge   levelled   against   him   stood
proved. Qua the testimony of the Tahsildar, Ganganagar who deposed
that   as   and   when   proposals   are   sought   from   Patwari   for   issuing   a
Sanad, the relevant Rules required that statement of the neighbours at
the   site   be   recorded   and   a   true   report   be   submitted,   the   Enquiry
Officer observed that no such record had been maintained with regard
to   the   report   of   possession   and   cultivation   and   that   the   Delinquent
Officer   ought   to   have   inspected   the   site   and   thereafter   should   have
submitted   the   report   instead   of   doing   so   only   on   the   basis   of   the
jamabandi. The Enquiry Officer was thus unmistakably clear that the
respondent   No.1   had   issued   the   report   in   question   without   either
visiting   the   site   or   making   any   enquiry   with   regard   to   the   actual
possession of the land and the cultivation thereon.
13. The   Disciplinary   Authority   i.e.   the   District   Collector   (LA),
Sriganganagar   by   its   order   dated   21.04.2009,   on   a   consideration   of

7
this   report   and   other   materials   available   on   record   accepted   the
finding in support of the charge and awarded the penalty of stoppage
of   two   annual   increments   of   the   respondent   No.1   with   cumulative
effect.
14. In   the   appeal   filed   by   the   Delinquent   Officer,   the   Divisional
Commissioner,   Bikarner   Division,   Bikaner,   by   his   order   dated
19.05.2010  however  exonerated  him  of   the  charge.   A  plain  perusal  of
this   order   would   reveal   that   the   Appellate   Authority   was   of   the   view
that   the   report   having   been   issued   by   the   respondent   No.1   on   the
basis   of   the   available   records,   the   charge   had   remained   unproved.
Noticeably   in   arriving   at   this   conclusion,   the   Appellate   Authority
disregarded   the   requirement   of   the   Rules,   as   noted   by   the   Enquiry
Officer of the visit to the site and an enquiry at the spot, by recording
the statements of the neighbours as the indispensable essentials to be
complied with before issuance of a report as was submitted.
15. In the above backdrop Mr. Manoj Prasad, learned senior counsel
for   the   appellant   has   emphatically   urged   that   as   the   charge   framed
against   the   respondent   No.1   on   the   basis   of   the   allegations   in   the
complaint   and   the   evidence   in   support   thereof   is   distinctly   different
from the one enquired into in the departmental proceedings, the High
Court   was   in   error   in   contemplating   otherwise   and   in   quashing   the

8
criminal   prosecution.   The   charges   in   the   two   proceedings   being
patently   different   and   the   scope   of   scrutiny   relatable   thereto,
apparently   distinguishable,   the   impugned   order   if   allowed   to   stand
would be a travesty of justice, he urged.
16. Per   contra,   Mr.   Rishabh   Sancheti   &   Mr.   Rahul   Verma,   learned
counsel for the respondents has insistently argued that a bare perusal
of   the   two   charges   would   demonstrate   the   absolute   identicalness
thereof   and   thus   as   rightly   held   by   the   High   Court,   continuance       of
the   criminal   prosecution   against   the   respondent   No.1   would   be   an
abuse of the process of Court.
17. We   have   devoted   our   focused   consideration   to   the   rival
contentions.   In   our   estimate,   a   bare   perusal   of   the   charge   in   the
departmental enquiry does not permit a deduction that it is absolutely
identical to the one framed by the Trial Court in the case registered on
the complaint filed by the appellant. Whereas the imputation enquired
into   in   the   departmental   enquiry   was   limited   to   the   submission   of
incorrect   report   on   point   1,   3   and   7   thereby   acting   contrary   to   the
responsibility   entrusted   to   the   respondent   No.1,   the   charge   for   the
criminal   trial   encompasses   the   additional   dimension   of   his   sustained
knowledge   of   the   appellant’s   possession   of   the   land   involved   while
submitting  a  false  report to the  contrary  with  the  dishonest  intention

9
of  causing loss to him. Thus allegations of guilty mind and dishonest
intention   are   the   additional   facets   engrafted   in   the   charge   framed   by
the  Trial  Court  for   the  prosecution   of   the  respondent   No.1  which   can
by   no   means   be   even   inferred   to   be   same   or   similar   to   the   allegation
enquired   into   in   the   departmental   proceeding.   Most   significantly   as
well,   the   finding   of   the   Enquiry   Officer   and   affirmed   by   the
Disciplinary   Authority   that   as   per   the   prevalent   Rules,   the   report   in
question ought to have been submitted following a visit to the site and
an enquiry thereat by recording the statements of the neighbours, has
not   been   reversed   by   the   Appellate   Authority   in   the   departmental
appeal.   There   is   neither   any   finding   to   the   effect   that   the   respondent
No.1 did visit the site and conduct the procedure as prescribed by the
Rules   prior   to   the   submission   of   the   report.   In   this  premise,   the   very
foundation   of   the   challenge   to   the   order   of   framing   of   charge   by   the
Trial Court against the respondent No.1 and the affirmation thereof by
the Revisional Court is rendered non est.
18. We   do   not   wish  to   heap   the   narration   with   the   pronouncements
of   this   Court   qua   the   permissibility   of   simultaneous   departmental
proceedings   and   criminal   prosecution   on   the   same   charge   or
accusation.   Suffice   it   to   refer   to   the   decision   rendered   in   Radhey
Shyam   Kejriwal   Vs.   State   of   West   Bengal   and   another   –   (2011)   3
SCC 581 wherein this Court, following a survey of the decisions on the

10
issue  has  underlined  that   the  two  are  independent  of   each  other   and
can   be   launched   and   proceeded   with   simultaneously.   It   is   only   when
and   in   a   case   where   the   charge   in   both   the   proceedings   is   the   same
and   Delinquent   Officer   is   exonerated   therefrom   in   the   departmental
proceeding which concludes earlier in point of  time, that the criminal
prosecution   on   the   same  set  of   facts  and   circumstances  ought  not   to
be allowed to continue more particularly in view of the prescription of
higher   standard   of   proof   in   criminal   cases.   However,   exoneration   in
the departmental proceeding on a technical ground would not be a bar
for the criminal prosecution to continue.
19. In   the   attendant   facts   and   circumstances,   having   regard   to   the
dissimilarity  in the charges as is  apparent on the face  of  the  records,
we   are   of   the   unhesitant   opinion   that   the   High   Court   had   erred   in
holding   otherwise   and   in   essence,   quashing   the   criminal   prosecution
against the respondent No.1. The impugned judgment and order of the
High  Court  is thus  set  aside  and  the  matter   is  remanded  to  the  Trial
Court  to be proceeded with in  accordance with law.   We make  it clear
that   the   observations   made   hereinabove   are   strictly   limited   to   the
adjudication on the issue raised before this Court and do not have any
bearing on the merit of the charge and the learned  Trial Court  would

11
decide   the   case   as   per   law   without   being   in   any   way   influenced
thereby.  
…........................................J.
[ARUN MISHRA]
…........................................J.
[AMITAVA ROY]
NEW DELHI;
MAY 04, 2017.