Constitutional validity of certain Amendments1 made to the Salaries, Allowances and Pensions of Members of Parliament Act, 1954 (hereinafter referred to as “the Act”). - LOK PRAHARI, THROUGH ITS GENERAL SECRETARY S.N. SHUKLA & ANOTHER - Versus - UNION OF INDIA THROUGH ITS SECRETARY & OTHERS

Reportable
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.  3798 OF 2018
(Arising out of Special Leave Petition (Civil) No.9584 of 2017)
LOK PRAHARI, THROUGH ITS
GENERAL SECRETARY S.N. SHUKLA & ANOTHER ... Appellants
             Versus
UNION OF INDIA
THROUGH ITS SECRETARY & OTHERS     ... Respondents
J U D G M E N T
Chelameswar, J.
1. Leave granted.
2. This appeal arises out of a Writ Petition that challenged the
Constitutional   validity   of   certain   Amendments1
  made   to   the
Salaries, Allowances and Pensions of Members of Parliament Act,
1954   (hereinafter   referred   to   as   “the   Act”).     The   provisions
challenged relate to the payment of pension and other facilities to
1 By the Amendment Act 2003, Act 9 of 2004, Amending Act No. 40 of 2006 and Amending Act 37 of 2010.
1
members of Parliament (hereinafter referred to as “MPs”) and exmembers
of Parliament (hereinafter referred to as “ex­MPs”), and
their   spouses/companions/dependents   (collectively   hereafter
referred   to   as   “ASSOCIATES”).     The   1st  Appellant   sought   the
following   prayers,  inter   alia,   in   the   Writ   Petition   before   the
Allahabad High Court:
1. “Declare that the provisions of various amending Acts to Act
30 of 1954, and particularly those of the Amending Act 9 of
2004, and Amending Act No. 40 of 2006 and Amending Act
37   of   2010,   providing   for   pension/family   pension   to   exMPs/dependents,
travel facilities to spouse and other nonmembers,
(in addition to the companion) and ex­MPs, as well
as continuation of facilities, regarding unutilized quotas of
telephone calls electricity and water units are ultra vires of
the Constitution and the original Act.
2. Issue a mandamus to the opposite parties 1 to 4 to stop
forthwith   payment   of   pension/family   pension   to   exMPs/dependents,
and provision of other facilities in 1 above.
3. Order recovery of illegal pension/family pension from the
recipients thereof.”
3. The   High   Court   dismissed   the   writ   petition   negating   all
contentions raised by the 1st  Appellant herein, holding that the
issue is no longer res integra in view of the Judgment in Common
Cause, A Registered Society v. Union of India2
(hereafter referred
to as “Common Cause”) wherein this Court held that Parliament is
2
(2002) 1 SCC 88
2
competent to legislate on pensions for ex­MPs and as a corollary it
has   the  power to  prescribe  any  condition  subject  to  which   the
pension may be paid. We are in total agreement with the conclusion
of the High Court on the question of legislative competence.
4. The question which remains to be answered is whether any of
the impugned amendments which create various rights in favour of
ex­MPs & their ASSOCIATES and certain other facilities to MPs are
violative of Article 14 of the Constitution of India, 1950 as being
discriminatory. It was the case of the Appellant that the Common
Cause case is silent in this respect. However, the High Court took
the view that the attack on Article 14 is foreclosed by  Common
Cause.
5. It is argued before us that  Common Cause  took note of the
Petitioner’s argument therein3
 that the Act is violative of Article 14,
however, there was neither any discussion on the issue nor any
binding decision on the question.4
   Therefore, it is submitted that
3
 “5. Reference was made by the Petitioner in WP (C) No. 246 of 1993, appearing in person, to the provisions of
Article 14 and it was submitted that there was discrimination in favor of Members of Parliament by giving them
pension when, unlike Judges, they were not subject to the process of impeachment.”
4
“7. The issue before us is squarely one of competence, namely, the competence of Parliament to enact the said
Section 8-A. We need not go into Entry 73 of List I for we are in no doubt that such competence is conferred upon
Parliament by the residuary Entry 97 of List I, and there is no provision in Article 106 or elsewhere that bars the
3
the   High   Court   erred   in   concluding   that   the   challenge   to   the
impugned provisions is impermissible.   We propose to limit our
examination   in   the   present   case   to   the   question   of   the
constitutionality   of   various   Amendments   brought   after   the
Common Cause case on grounds other than legislative competence.
6. To answer the same, we may start with the analysis of the
various   provisions   of   the   Constitution   creating   various
constitutional offices because some of these provisions contemplate
the   possibility   of   the   payment   of   pension   in   respect   to   certain
Constitutional   offices,   while   no   express   reference   is   made   with
regard to various other offices created by the Constitution.
7. Article 59(3)5
  specifies that the President shall be entitled to
such   ‘emoluments,   allowances   and   privileges   as   may   be   determined   by
Parliament   by   law’ while Article 158(3)  specifies the  same for  the
Governor. Neither of the Articles make any reference to the payment
of pension. However, Section 2 of the President’s Emoluments and
payment of pension to Members of Parliament.”
5Article 59(3). Conditions of President’s office.- The President shall be entitled without payment of rent to the use
of his official residence and shall be also entitled to such emoluments, allowances, and privileges as may be
determined by Parliament by law and, until provision in that behalf is so made, such emoluments, allowances and
privileges as are specified in the Second Schedule.
4
Pension Act, 1951 provides for the payment of pension and other
facilities to the retiring President.6
8. Article   75(6)7
  and   Article   164(5)   respectively   speak   of   the
salaries and allowances of Ministers, which Parliament and the
State Legislature may determine by law.
9. Articles 978
 and 1869
 provide for the payment of ‘salaries and
allowances’   of   the   Chairman   and   Deputy   Chairman   and   the
Speaker   and   the   Deputy   Speaker   of   Parliament   and   State
Legislatures.   The   Vice­President's   Pension   Act,   1997   has   an
6 Section 2. (1) Pension to retiring Presidents. There shall be paid to every person who ceases to hold office as
President, either by the expiration of his term of office or by resignation of his office, a pension of 6 one lakh twenty
thousand rupees per annum for the remainder of his life. [ (2) Subject to any rules that may be made in this behalf,
every such person shall, for the remainder of his life, be entitled(a)
to the use of a furnished residence (including its maintenance), without payment of rent, a telephone and
a motor- car, free of charge or to such car allowance as may be specified in the rules-,
(b) to secretarial staff consisting of a Private Secretary, a Personal Assistant and a Peon, and office expenses
the total expenditure on which shall not exceed twelve thousand rupees per annum;
(c) to medical attendance and treatment free of charge.
(d) to travel anywhere in India, accompanied by one person, by 9 highest class by air, rail or steamer.
Explanation.-- For the purposes of this sub- section" residence" shall have the meaning assigned to it in the Salaries
and allowances of Ministers Act, 1952 ]
7Article 75. Other Provisions as to Ministers- (6) The salaries and allowances of Ministers shall be such as
Parliament may from time to time by law determine and, until Parliament so determines, shall be as specified in the
Second Schedule.
8Article 97. Salaries and allowances of the Chairman and Deputy Chairman and the Speaker and Deputy
Speaker.- There shall be paid to the Chairman and the Deputy Chairman of the Council of States, and to the Speaker
and the Deputy Speaker of the House of the People, such salaries and allowances as may be respectively fixed by
Parliament by law and, until provision in that behalf is so made, such salaries and allowances as are specified in the
Second Schedule.
9Article 186. Salaries and Allowances of the Speaker and Deputy Speaker and the Chairman and Deputy
Chairman.- There shall be paid to the Speaker and the Deputy Speaker of the Legislative Assembly, and to the
Chairman and the Deputy Chairman of the Legislative Council, such salaries and allowances as may be respectively
fixed by the Legislature of the State by law and, until provision in that behalf is so made, such salaries and
allowances as are specified in the Second Schedule.
5
identical provision with respect to the payment of pension and post
retirement facilities as are provided to the President.10
10. Article 106 of the Constitution stipulates that MPs shall be
entitled to receive ‘salaries and allowances’ to be determined by
Parliament through legislation.11  There is no express reference to
the payment of pension.
11. On the other hand, the provisos to Article 125(2)12 and Article
221(2)13 respectively make an express reference to the payment of
pension to judges of the Supreme Court and the High Courts.
10 Section 2. Pension to retiring Vice-Presidents.—(1) There shall be paid to every person who ceases to hold
office as Vice-President, either by the expiration of his term of office or by resignation of his office, a Pension 1 [at
the rate of fifty per cent of the salary of the Vice-President] per month, for the remainder of his life
Provided that such person shall not be entitled to receive any pension during the period he holds the office
of the Prime Minister, a Minister or any other office or becomes a Member of Parliament and is in receipt of salary
and allowances which are defrayed out of the Consolidated Fund of India or the Consolidated Fund of a State.
(1A) The spouse of a person who dies —
(a) while holding the office of Vice-President, or
(b) after ceasing to hold office as Vice-President either by the expiration of
his term of office or by resignation of his office, shall be paid a family pension at the rate of fifty per cent
of pension as is admissible to a retiring Vice-President, for the remainder of her life.
11Article 106.Salaries and Allowances of Members.-Members of either House of Parliament shall be entitled to
receive such salaries and allowances as may from time to time be determined by Parliament by law and, until
provision in that respect is so made, allowances at such rates and upon such conditions as were immediately before
the commencement of this Constitution applicable in the case of members of the Constituent Assembly of the
Dominion of India
12Article 125. Salaries, etc., of Judges.- (2) Every Judge shall be entitled to such privileges and allowances and to
such rights in respect of leave of absence and pension as may from time to time be determined by or under law made
by Parliament and, until so determined, to such privileges, allowances and rights as are specified in the Second
Schedule:
Provided that neither the privileges or the allowances of a Judge nor his rights in respect of leave of
absence or pension shall be varied to his disadvantage after his appointment.
13Article 221. Salaries, etc., of Judges.- (2) Every Judge shall be entitled to such allowances and to such rights in
respect of leave of absence and pension as may from time to time be determined by or under law made by
Parliament and, until so determined, to such allowances and rights as are specified in the Second Schedule:
Provided that neither the allowances of a Judge nor his rights in respect of leave of absence or pension shall
be varied to his disadvantage after his appointment.
6
12. Article 148(3)14  provides that salary and other conditions of
service of the Comptroller and Auditor­General shall be as may be
determined by Parliament by law. The proviso thereto contains a
reference   to   the   payment   of   pension.   The   Comptroller   and
Auditor­General’s (Duties, Powers and Conditions of Service) Act,
1971 contains various provisions for the payment of pension on
his/her demission of office.15
13. Article   32216  declares   that   the   expenses   of   Public   Service
Commissions shall be charged on the Consolidated Fund of India
and   such   expenses   include   “salaries,   allowances   and   pensions”
payable to or in respect of the members or staff of the Commission.
14Article 148. Comptroller and Auditor-General of India.- (3). The salary and other conditions of service of the
Comptroller and Auditor-General shall be such as may be determined by Parliament by law and, until they are so
determined, shall be as specified in the Second Schedule:
Provided that neither the salary of a Comptroller and Auditor-General nor his rights in respect of leave of
absence, pension or age of retirement shall be varied to his disadvantage after his appointment.
15Section 6. Pension.- A person who demits office as the Comptroller and Auditor-General by resignation shall, on
such demission, be eligible to a pension at the rate of two thousand rupees per annum for each completed year of his
service as the Comptroller and Auditor-General:
Provided that in the case of a person referred to in sub-section (1) or sub-section (3), the aggregate amount
of pension admissible under this sub-section together with the amount of pension including the commuted portion, if
any, of his pension, and the pension equivalent of the retirement gratuity if any which may have been admissible to
him under the rules for the time being applicable to the Service to which he belonged immediately before he
assumed office as the Comptroller and Auditor-General, shall not exceed fifteen thousand rupees per annum or the
higher pension referred to in proviso to sub-section (2) or sub-section (3), as the case may be.
16Article 322. Expenses of Public Service Commissions
The expenses of the Union or a State Public Service Commission, including any salaries, allowances and
pensions payable to or in respect of the members or staff of the Commission, shall be charged on the Consolidated
Fund of India or, as the case may be, the Consolidated Fund of the State.
7
14. Article 324(5)17 stipulates that “conditions of service and tenure of
office of the Election Commissioners shall be such as the President may by rule
determine.” Though the Constitution is silent in regard to payment of
pension to the Election Commissioners, Section 6 in the Election
Commission (Conditions of Service of Election Commissioners and
Transaction of Business) Act, 1991 makes provision for payment of
pension to Election Commissioners which is equal to the pension
payable to a Supreme Court Judge.18
15. From the Constitutional scheme it can be seen that no express
mandate exists for the payment of pension with respect to any one
of   the   Constitutional   offices.   However,   Articles   dealing   with   the
Judges   of   the   Supreme   Court   and   the   High   Courts   and   the
Comptroller and Auditor­General stipulate that pensions payable
17Article 324. Superintendence, direction and control of elections to be vested in an Election Commission
(5) Subject to the provisions of any law made by Parliament, the conditions of service and tenure of office
of the Election Commissioners and the Regional Commissioners shall be such as the President may by rule
determine:
Provided that the Chief Election Commissioner shall not be removed from his office except in like manner
and on the like grounds as a Judge of the Supreme Court and the conditions of service of the Chief Election
Commissioner shall not be varied to his disadvantage after his appointment:
Provided further that any other Election Commissioner or a Regional Commissioner shall not be removed
from office except on the recommendation of the Chief Election Commissioner.
18Section 6. Pension payable to Election Commissioners.-
(2) Where the Chief Election Commissioner [or an Election Commissioner] demits office [whether in any
manner specified in [sub-section (3)] or by resignation], he shall, on such demission be entitled to
(a) a pension which is equal to the pension payable to a Judge of the Supreme Court in accordance with the
provisions of Part III of the Schedule to the Supreme Court Judges (Conditions of Service) Act, 1958, as amended
from time to time; and
(b) such pension (including commutation of pension), family pension and gratuity as are admissible to a
Judge of the Supreme Court under the said Act and the Rules made thereunder, as amended from time to time…”
8
may not be varied during their tenure. The implication being that if
the law dealing with the service conditions of any of the incumbents
of any one of the said offices at the time of their appointment
provides for the payment of pension, such a provision of law cannot
be varied to the detriment of the incumbent.
16. The provisions under challenge fall under two categories (i)
provisions which confer the right of free travel etc. to the MPs and
their ASSOCIATES; and (ii) provisions which confer the benefit of
pension and the right of free travel etc. to the ex­MPs and their
ASSOCIATES.
THE PROVISIONS UNDER CHALLENGE:
17.  Section 8A19 of the Act grants pensions to (i) ex­MPs, and (ii)
upon their death, the pension is given to their respective spouses.
Section 8AC20 provides family pension to the spouse of such MPs on
the death of the MP.  It is pertinent to mention here that Section 8A
19 Section 8A. (1) With effect from the 18th day of May, 2009, there shall be paid a pension of twenty thousand
rupees per mensem to every person who has served for any period as a Member of the Provisional Parliament or
either House of Parliament
Provided that where a person has served as a member of the Provisional Parliament or either House of
Parliament for a period exceeding five years, there shall be paid to him an additional pension of thousand five
hundred rupees per mensem for every year served in excess of five years
Explanation. – For the purpose of this sub-section “Provisional Parliament” shall include the body which
functioned as the Constituent Assembly of the Dominion of Indian immediately before the commencement of the
Constitution
20 Inserted by Act 40 of 2006 – effective from 15-9-2006
9
as originally enacted provided that an MP, to be eligible for Pension
must have completed four years of tenure in Parliament. But this
was done away with retrospective effect by the Amendment Act No.9
of 2004.
Section 6B(1)21  of the Act confers a right to all the MPs for
unlimited travel by train along with spouse/companion from any
place in India to any other place in India. Section 6B(2)22 provides
up to 8 air journeys in a year from the MP’s usual place of residence
to Delhi and back when Parliament is in Session and also provides
the spouse of the MP unlimited train travel by First Class AC at any
time   during   the   year.     Section   8AA23  confers   a   right   of   travel
facilities to the ex­MPs and their ASSOCIATES. It provides for free
AC­II Tier pass for one person to accompany an ex­MP in all train
journeys   and   unlimited   free   travel   by   train   along   with
spouse/companion from any place in India to any other place in
India.
18. The provisions are impugned on the following grounds:
21 Substituted by Act 16 of 1999
22 Inserted by Act 37 of 2010 – effective from 1-10-2010
23 Substituted by Act 9 of 2004 – effective from 15-9-2006
10
(i) the contrast in the language displayed in the various Articles
of   the   Constitution   dealing   with   the   salaries   and   other
allowances   payable   to   the   various   Constitutional   office
holders should necessarily lead to the conclusion that the
Constitution does not permit the payment of pension and
other benefits to MPs and ex­MPs;
(ii) the   framers   of   the   Constitution   specifically   denied
pensionary benefits to the MPs and therefore giving of any
POST   RETIREMENT   BENEFITS   to   ex­MPs   and   their
ASSOCIATES   would   amount   to   treating   those   who   were
denied this constitutional right to pension at par with those
constitutional offices whose pension was expressly protected.
And to treat them on the same footing would result in a
violation of the right to equality;
(iii) the   impugned   provisions   are   irrational24  and   arbitrary
because the grant of pension to all ex­MPs without taking
into   consideration   their   respective   tenure   and   economic
conditions goes against public interest25; and
(iv) looked at from the point of view of the taxpayers and crores
of   poor   and   needy   people   of   the   country,   the   impugned
provisions are an unfair and unjust exercise of the legislative
authority of the Parliament.26
19. We  shall   now  examine   the  core  submission  ­  whether  the
silence  in   Article  106  operates  as  a   prohibition   for  payment   of
pension to the former MPs?
20. The   submissions   of   the   Appellants   proceed   on   the   wrong
assumption that certain provisions of the Constitution mandate the
payment of pension to persons who hold constitutional offices like
the Judges of this Court.  We have already examined the language
24 Written Submissions of Petitioner in WP before the Allahabad HC
25 Id.
26 Ground D of the Writ Petition
11
of the relevant provisions of the Constitution. We are of the opinion
that,   on   a   true   and   proper   construction   of   the   text   of   those
provisions, they do not mandate the payment of pension.  They only
protect the pension if payable under the relevant law applicable on
the date of appointment of a person to any one of those offices by
declaring   that   such   a   condition   could   not   be   altered   to   the
detriment of a person subsequent to his appointment. 
However,   the   constitutional   obligation   to   pay   pension   to
persons who hold such offices may arise by implication having
regard to the overall scheme of the Constitution relevant to those
offices.  The need to secure the independence of the holders of those
offices by assuring them that either the legislature or the executive
will not be able to deprive them of the financial resources necessary
to keep them away from impecuniousness, irrespective of the fact
that a decision taken by the incumbents of each of those offices in
discharge of the official responsibilities is acceptable or not either to
the legislature or the executive.   We must hasten to add that we
must not be understood to be making any final declaration of law in
this regard. 
12
The purpose of this analysis is limited only to demonstrate
that the Appellants starts on a wrong premise in assuming that the
text of the Constitution contains express provisions mandating the
payment   of   pension   in   connection   with   certain   constitutional
offices. 
21. The fact that there are express references to the payment of
pension in the Constitution for certain Constitutional functionaries
and not for others, in our opinion does not lead to the conclusion
that   the   Constitution   by   its   silence   prohibits   the   payment   of
pension to those constitutional functionaries. Each Constitutional
office holder functions in accordance with the powers and duties
entrusted to it either by the Constitution or the laws relevant to
their powers and duties. The framers of the Constitution believed
that certain offices required a higher degree of protection, having
regard to the greater degree of independence expected of the holders
of their offices. The framers knew history and the attempts of the
men in power to subjugate the holders of such offices. Safeguards,
therefore, were provided in respect of the various aspects of the
tenure and other conditions of service relevant for their offices.
13
When   it   comes   to   MPs,   however,   such   a   higher   degree   of
constitutional protection is not obviously required as the authority
to make laws rests only with them.
22.  The terms and conditions subject to which a person is either
appointed or elected to occupy the constitutional office is a matter
of   policy   choice.   The   appropriate   legislature   would   be   the
constitutionally designated authority to determine those conditions.
It is too well settled in constitutional law that the authority of
legislature to make a policy choice is only circumscribed by the
limitations   imposed   by   the   Constitution,   either   by   an   express
provision or by a necessary implication arising out of the scheme of
the Constitution.   It is a well established principle commencing
from  McCulloch’s  case27  and followed by a long line of judicial
pronouncements28  that   whatever   is   not   prohibited   by   the
Constitution is permissible for the legislature.
27 McCulloch v. Maryland, 4 Wheat. 316, 425-437, 4 L.Ed. 579 (1819):
 “But we think the sound construction of the Constitution must allow to the national legislature that
discretion with respect to the means by which the powers it confers are to be carried into execution which will
enable that body to perform the high duties assigned to it in the manner most beneficial to the people. Let the
end be legitimate, let it be within the scope of the Constitution, and all means which are appropriate, which are
plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the Constitution, are
Constitutional.”
28 See State of Kerala v. N.M. Thomas, (1976) 2 SCC 310, para 107; see also State of Karnataka v. Union of India,
(1977) 4 SCC 608, para 69
14
23.   Further   if   we   were   to   accept   the   argument   that   those
Constitutional functionaries who are entitled to pension by the text
of the Constitution form a distinct class exclusively entitled to the
payment   of   pension   the   result   would   be   that   the   CAG,   the
Chairman   and   Deputy   Chairman   of   the   Parliament   or   State
Legislature,   and   Ministers   of   the   Centre   and   State   would   be
disentitled to pension.
24. Another argument advanced by the Appellants is that pension
is payable to an employee of State after his superannuation.  Since
MPs are not employees of State, they are not entitled for pension
nor the Parliament is competent to provide payment of pension to
the   ex­MPs.   In   our   opinion,   there   is   a   fallacy   in   the   above
submission, insofar as it assures that pension is only payable to
former employees of State and nobody else.   Such a submission
emanates from the fact that certain payments made to the former
employees of State are called pensions and the misconception of the
Appellants   that   the   expression   ‘pension’   can   only   have   one
meaning. There are various other categories of payments made by
15
State which are called ‘pensions’, such as, Old Age Pension, Widow
Pension, and Disability Pension etc.
25. The appellants have relied upon the decision in Alagaapuram
R. Mohanraj & Others v. Tamil Nadu Legislative Assembly,29 to
argue that the activity of MPs is not an “occupation” contemplated
by Article 19(1)(g) of the Constitution of India and, therefore, no
pension can be paid to ex­MPs or their ASSOCIATES.
26. In our opinion, this argument is only to be rejected, because it
once again is premised on the belief that the expression ‘pension’
has only one connotation in law. The question before this Court in
Alagaapuram   R.   Mohanraj  was   whether   a   Member   of   the
Legislative   Assembly   is   carrying   on   any   occupation   within   the
meaning of Article 19(1)(g) of the Constitution of India.   The fact
that this Court held that this is not an occupation under Article
19(1)(g) need not necessarily mean that the Parliament is prohibited
from making payment of such allowances to MPs if it considers it
appropriate having regard to various relevant factors.
29 (2016) 6 SCC 82.
16
27. The expression “allowances” of MPs occurring under Entry 73
of List­I of the Seventh Schedule,30 in our opinion, is wide enough to
cover the payment of “pension” and the other benefits covered by
the impugned provisions to MPs or ex­MPs.   Even otherwise the
authority of Parliament under Entry 97 of List­I31 is wide enough to
cover the impugned legislation as held by Common Cause.
28.  In   this   context,   we   may   recall   the   remarks   made   by   two
eminent members of the Constituent Assembly, namely Dr. B.R.
Ambedkar   and   Shri   K.T.   Shah   to   illustrate   the   fallacy   of   the
Appellants’ understanding.
29. Dr. Ambedkar, while debating the need to provide pensionary
benefit to the President of India, threw some light on the question:
whether   the   Constituent   Assembly   sought   to   exclude   post
retirement benefits to Members of Parliament:
“Therefore, in the form in which the amendment is moved, I do not
think that it is a practical proposition for anyone to accept. But
there is no doubt about the general view that he has expressed,
that  after a certain period of service in Parliament, Members,
30 Entry 73 of List-I of the Constitution of India
“Salaries and allowances of members of Parliament, the Chairman and Deputy Chairman of the
Council of States and the Speaker and Deputy Speaker of the House of the People.”
31 Entry 97 of List-I of the Constitution of India
“Any other matter not enumerated in List II or List III including any tax not mentioned in either of
those Lists.”
17
including   the   President,   ought   to   be   entitled   to   some   sort   of
pension, and I think it is a laudable idea which has been given
effect to in the British Parliament, and I have no doubt that our
future Parliament will bear this fact in mind.”32
[emphasis supplied]
30. In  debating  whether  it was  necessary  to  make an express
provision for the payment of pension to Governors after they demit
office, Shri Shah observed:
“The object of providing such security for the persons who have
risen to this high level is the same as that which now secures to
every workman in civilized nations an old­age pension, a pension
or   super­annuation   allowance,   which   would   be   calculated   to
suffice to maintain him in the standard of life to which he was
accustomed while at work. A pension is deferred pay, not paid to
the worker while at work; and the analogy will hold here also.
This   also   is   a   type  of  work­perhaps   the  highest  of   its  kindwhich
should not go unprovided for altogether by the State for
the rest of the period on earth of the Parties who have served so
eminently the State.”33
 
[emphasis supplied]
31. We are of the view that these questions are in the orbit of the
wisdom   of   the   Parliament   in   choosing/changing   the   legislative
policy whether the various benefits created under the impugned
provisions are rational having regard to the affluent financial status
of some of the MPs or the poverty of the millions of the population
etc. These are not justiciable issues. In this context, we may refer to
32 Constituent Assembly of India Debates, Vol. VII - Debate on Draft Article 48, 27th December 1948
33 Constituent Assembly of India Debates, Vol. VIII - Debate on Draft Article 135A, 31st May, 1949
18
the principle laid down by this Court in  Dr.   P.   Nalla   Thampy
Terah v. Union of India & Others34:
“If the provisions of the law violate the Constitution, they have to
be struck down. We cannot, however, negate a law on the ground
that we do not approve of the policy which underlies it. Can the
Court, for example, strike down Rule 90 on the ground that the
limit of rupees one lakh is too high in the Indian context? We may
have our own preferences and perceptions but, they cannot be
used for invalidating laws.”
32. An   I.A.   was   filed   in   this   appeal,   which   is   required   to   be
disposed   of.   It   was   from   Respondent   No.   5,   the   Election
Commission of India, which has sought to be deleted from the array
of parties.   It is stated that neither is any relief sought from them
nor is any directive prayed for from Respondent No.5 in this appeal,
as this is a purely constitutional challenge.
I.A. is allowed.   Respondent No. 5 stands deleted from the
array of parties.
34 (1985) Supp SCC 189.
19
33. In view of the foregoing, the appeal stands dismissed, with no
order as to costs.
….....................................J.
                                            (J. CHELAMESWAR)
…......................................J.
                       (SANJAY KISHAN KAUL)
New Delhi;
April 16, 2018.
20

No conviction solely on the basis of evidence of last seen together with the deceased = Navaneethakrishnan -vs- The State by Inspector of Police

1
 REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 1134 OF 2013
Navaneethakrishnan .... Appellant(s)

Versus
The State by Inspector of Police .... Respondent(s)
WITH
CRIMINAL APPEAL NOs. 1135-1136 OF 2013
CRIMINAL APPEAL NO. 1137 OF 2013
J U D G M E N T
R.K. Agrawal, J.
1) The above appeals are directed against the common
judgment and order dated 23.11.2009 passed by the High
Court of Judicature at Madras in Criminal Appeal Nos. 639
and 688 of 2009 whereby the Division Bench of the High Court
dismissed the appeals filed by the appellants herein against
the order dated 18.09.2009 passed by the Fast Track Court
No. II, Salem, in Sessions Case No. 21 of 2009 wherein learned
2
Additional District & Sessions Judge convicted the appellants
herein under Sections 302 read with Section 34, Section 364
and Section 379 of the Indian Penal Code, 1860 (in short ‘the
IPC’) and sentenced to undergo imprisonment for life with
substantive sentences under the IPC.
2) Brief facts:
(a) A First Information Report (FIR) bearing No. 41 of 2008 at
PS Yercaud, District Salem dated 16.02.2008 got registered by
Mahimaidoss (PW-8) stating that on 14.02.2008, John Bosco
(since deceased), who was employed as the driver in his travel
agency, along with one Madhan (since deceased), took a
Maruti Van from him but did not return for two days.
(b) On the very next date, i.e., on 17.02.2008, one more FIR
got registered by one Asokan bearing No. 88 of 2008 stating
that when he went to irrigate his fields, he found a white
colour sack floating in the well. He immediately informed the
same to the local police and when the sack was opened, a
male body with hands tied at the back was found.
(c) On the basis of FIR dated 16.02.2008, Crime No. 41 of
2008 was registered at Yercaud Police Station and during the
3
pendency of investigation, FIR No. 88 of 2008 got registered
and a body was found which was identified as of John Bosco.
(d) During investigation, Sivashankar (A-1 therein) was
apprehended and he confessed about committing the crime
along with (A-2 and A-3) appellants herein stating that they
abducted John Bosco and his friend Madhan and taken them
in the Maruti Van being driven by John Bosco to one of the
relatives of Accused No. 2 therein where they caused death of
John Bosco and Madhan by strangulating them one by one
using a rope and drowned their bodies in water streams using
gunny bags. A-1 also took the investigation officer to the place
where the body of Madhan was found in a gunny bag.
(e) After following the due procedure, a charge sheet was
filed in the Court of Judicial Magistrate No. 5, Salem and the
case was committed to the Court of Additional District &
Sessions Judge, Fast Track Court No. II, Salem and numbered
as Sessions Case No. 21 of 2009. The Court framed charges
under Sections 364, 302 read with Section 34, 201 read with
Section 302 and 379 of the IPC.
4
(f) Learned Additional District & Sessions Judge, vide
judgment and order dated 18.09.2009, convicted all the
accused for the commission of crime under the charging
Sections and sentenced them to undergo imprisonment for life.
(g) Being aggrieved by the judgment and order dated
18.09.2009, the appellants-accused preferred Criminal Appeal
Nos. 639 and 688 of 2009 before the High Court. The Division
Bench of the High Court, vide judgment and order dated
23.11.2009, dismissed the appeals preferred by the appellants
herein.
(h) Being aggrieved by the judgment and order dated
23.11.2009, the appellants herein have preferred these
appeals by way of special leave before this Court.
3) Heard Mr. K.K. Mani, learned counsel for the
appellants-accused and Mr. M. Yogesh Kanna, learned counsel
for the respondent-State and perused the records.
Point(s) for consideration:-
4) The only point for consideration before this Court in the
present facts and circumstances of the case is whether the
5
High Court was right in dismissing the appeals preferred by
the appellants-accused?
Rival contentions:-
5) Learned counsel appearing for the appellants contended
that the courts below failed to appreciate that the conviction
cannot be based upon a retracted confession and it can be
used only in support of other evidence. He further contended
that the courts below erred in convicting the appellants where
the cause of death is not known.
6) Learned counsel further contended that there are several
lacunas in the prosecution version. In support of the same, he
contended that the lower courts failed to appreciate that the
owner of the phone recovered from Accused No. 1 therein is
not PW-8 and some other person and the said person was
never examined by the prosecution. Further, on 14.02.2008,
at about 10.30 a.m., PW-11 has seen the accused along with
the deceased whereas the dead bodies have been found after a
gap of several days and the possibility of intervention of some
other person cannot be ignored.
6
7) Learned counsel appearing for the appellants finally
contended that the High Court ought to have appreciated the
fact that there was no complete chain of circumstantial
evidence in the prosecution case and there are various
discrepancies inherent in it, hence, the benefit of doubt should
be given in favour of the appellants while setting aside the
judgment and order passed by the High Court.
8) Per contra, learned counsel appearing on the behalf of
Respondent-State submitted that the judgment and order
passed by the Division Bench of the High Court upholding the
decision of the Sessions Court is as per the terms and dictates
of law and should not be inferred with and the evidence
against the appellants-accused are sufficient enough to bring
home the guilt.
Discussion:-
9) It is the case of the prosecution that the
appellants-accused planned to earn quick money by robbing a
car and selling the same and for that purpose on 14.2.2008
they went to Yercaud and engaged the taxi of the John Bosco
(since deceased) under the guise of sightseeing. John Bosco
7
(since deceased) also took one Madhan (since deceased) on the
way. The appellants-accused asked the driver-John Bosco to
drop them at Periyar Nagar, Salem at the house of the
grandfather of one of the accused. After reaching there, the
appellant-accused found that the grandfather was not
available. The appellants-accused invited John Bosco into the
house for taking liquor and they killed both of them by
strangulating their necks with a rope. Accused No. 1 therein
took the mobile phone and the Accused No. 3 therein took the
Yashika Camera of one John Bosco. Accused No. 2 therein
concealed the said van in the house of his grandfather. The
number plate of van was changed with a sticker. Thereafter,
they wrapped the dead bodies into separate gunny bags and
threw the gunny bag containing the dead body of John Bosco
into the well of PW-1 and threw away the dead body of
Madhan to some other place.
10) The appellants-accused were charged and prosecuted
under Sections 302 read with 34, 364, 201 read with Section
379 of the IPC. As in the given case no direct evidence of the
incident is available, the prosecution heavily relied upon the
8
circumstantial evidences. To prove the case, the prosecution
has examined as much as 27 witnesses and produced different
relevant documents.
11) In the FIR, bearing No. 41 of 2008, lodged by PW-8, at
Yercaud Police Station, he had specifically mentioned that he
bought a mobile phone in the name of some other person and
handed over the same to John Bosco. PW-8 is the owner of the
vehicle which was being driven by John Bosco at the time of
the incident, and also happens to be his maternal uncle. He
further deposed that John Bosco was working as a driver on
the said vehicle at that time and on the fateful day i.e., on
14.02.2008, he told him that he is going to drop one of his
friends at Salem and left the place at about 11:30 and when
he did not return for two days he filed a missing complaint on
16.02.2008. PW-8 also tried to contact John Bosco over the
mobile phone but it was switched off. Mr. Asaithambi
(PW-26), the investigation officer, stated in his deposition that
on 25.02.2008, PW-8 handed over the bill of the said mobile
phone to him. During investigation and while tracing the IMEI
number of the mobile phone, it was revealed that the said
9
phone was being used by Accused No. 1-Sivasankaran. On
01.03.2008, Accused No. 1 was apprehended by PW-26 and he
voluntarily gave a confessional statement which was witnessed
by PW-13. Based on his confessional statement, PW-26 found
the dead body of Madhan as well as the mobile phone of John
Bosco and a rope was also recovered with which they alleged
to have murdered the deceased. The dead body was identified
by his mother and the same was further proved by skull
imposition test. He further informed the whereabouts of other
accused persons on the basis of which they were arrested from
Yercaud junction. However, he retracted from the given
statement in the court.
12) Accused No. 2-Suresh was apprehended by PW-20 at
Salem Railway Station based on the information given by
Accused No. 1 and on the basis of his information, the
recovery of the alleged Omni Van was affected by PW-26.
Further, Anbalagan (PW-11), who was a Taxi driver at Yercaud
Taxi stand had deposed that the appellants-accused had
spoken to John Bosco on 14.02.2008 for hiring a taxi for
sightseeing. Thereafter, he noticed that the
10
appellants-accused boarded the vehicle of John Bosco and
Madhan also boarded the same vehicle from a short distance.
In fact, PW-11 had identified the appellants-accused in the
court as the persons who had accompanied John Bosco and
Madhan on 14.02.2008.
13) Accused No.-3-Navaneethakrishnan was apprehended by
PW-20 from Salem Railway Station based on the information
given by Accused No. 1. PW-26 deposed that on the basis of
the confession of Accused No. 3, Yashika Camera was
recovered. The dead body of John Bosco was recovered from
the farm of PW-1 on 17.02.2008 on his information and the
same was identified by the mother and father of the deceased
and was further proved by skull imposition test. But it is also
relevant to mention here that in the present case, the
prosecution has no direct evidence to offer. The entire case
rests upon the circumstantial evidence as there is no witness
directly to speak about the occurrence.
14) In the present case, there is no witness of the occurrence
and it is only based on circumstantial evidence. Before
moving further, it would be apposite to refer the law regarding
11
reliability of circumstantial evidence to acquit or convict an
accused. The law regarding circumstantial evidence was aptly
dealt with by this Court in Padala Veera Reddy vs. State of
Andhra Pradesh and Others 1989 Supp. 2 SCC 706 wherein
this Court has observed as under:-
“10. x x x x
(1) The circumstances from which an inference of guilt is sought
to be drawn, must be cogently and firmly established;
(2) those circumstances should be of a definite tendency
unerringly pointing towards guilt of the accused;
(3) the circumstances, taken cumulatively, should form a chain
so complete that there is no escape from the conclusion that
within all human probability the crime was committed by the
accused and none else; and
(4) the circumstantial evidence in order to sustain conviction
must be complete and incapable of explanation of any other
hypothesis than that of guilt of the accused and such evidence
should not only be consistent with the guilt of the accused but
should be inconsistent with his innocence.”
15) The prosecution placed reliance before the Court mainly
on three circumstances, firstly, the last seen theory, secondly,
the recovery of material objects which belonged to both the
deceased from the appellants-accused and thirdly, the
identification of the dead body of Madhan from the river bed as
pointed out by the first accused, however, the appellant herein
has raised certain doubts regarding the same.
12
16) The pivotal evidence in the given case is the testimony of
PW-11 who is believed to have lastly seen the
appellants-accused with the deceased. Learned counsel
appearing for the appellants-accused has contended that all
the accused were unknown to PW-11 but no identification
parade was conducted and the said witness has identified the
said accused directly in court after a lapse of about 50 days’
and hence his evidence should not be relied upon.
17) It is a settled proposition of law that the identification
parade of the accused before the court of law is not the only
main and substantive piece of evidence, but it is only a
corroborative piece of evidence. Regarding this, reliance can
be safely placed on Rafikul Alam & Others vs. The State of
West Bengal 2008 Crl. L.J. 2005 wherein it was held as
under:-
“32…..It is accordingly considered a safe rule of prudence to
generally look for corroboration of the sworn testimony of
witnesses in Court as to the identity of the accused who are
strangers to them, in the form of earlier identification proceedings.
This rule of prudence, however, is subject to exceptions when, for
example, the Court is impressed by a particular witness on whose
testimony it can safely rely, without such or other corroboration.
The identification parades do not constitute substantive evidence.
Failure to hold a test identification parade would not make
inadmissible the evidence of identification in Court. The weight to
13
be attached to such identification should be a matter for the
Courts of fact. In appropriate cases it may accept the evidence of
identification even without insisting upon corroboration”
18) PW-11 was able to identify all the three accused in the
Court itself by recapitulating his memory as those persons
who came at the time when he was washing his car along with
John Bosco and further that he had last seen all of them
sitting in the Omni van on that day and his testimony to that
effect remains intact even during the cross examination in the
light of the fact that the said witness has no enmity
whatsoever against the appellants herein and he is an
independent witness. Once the testimony of PW-11 is
established and inspires full confidence, it is well established
that it is the accused who were last seen with the deceased
specially in the circumstances when there is nothing on record
to show that they parted from the accused and since then no
activity of the deceased can be traced and their dead bodies
were recovered later on. It is a settled legal position that the
law presumes that it is the person, who was last seen with the
deceased, would have killed the deceased and the burden to
14
rebut the same lies on the accused to prove that they had
departed. Undoubtedly, the last seen theory is an important
event in the chain of circumstances that would completely
establish and/or could point to the guilt of the accused with
some certainty. However, this evidence alone can’t discharge
the burden of establishing the guilt of accused beyond
reasonable doubt and requires corroboration.
19) Learned counsel for the appellants-accused contended
that the statements given by the appellants-accused are
previous statements made before the police and cannot be
therefore relied upon by both the appellant-accused as well as
the prosecution. In this view of the matter, it is pertinent to
mention here the following decision of this Court in Selvi and
Others vs. State of Karnataka (2010) 7 SCC 263 wherein it
was held as under:-
“133. We have already referred to the language of Section
161 CrPC which protects the accused as well as suspects
and witnesses who are examined during the course of
investigation in a criminal case. It would also be useful to
refer to Sections 162, 163 and 164 CrPC which lay down
procedural safeguards in respect of statements made by
persons during the course of investigation. However, Section
27 of the Evidence Act incorporates the “theory of
confirmation by subsequent facts” i.e. statements made in
custody are admissible to the extent that they can be proved
15
by the subsequent discovery of facts. It is quite possible that
the content of the custodial statements could directly lead to
the subsequent discovery of relevant facts rather than their
discovery through independent means. Hence such
statements could also be described as those which “furnish a
link in the chain of evidence” needed for a successful
prosecution. This provision reads as follows:
“27. How much of information received from accused may
be proved.—Provided that, when any fact is deposed to as
discovered in consequence of information received from a
person accused of any offence, in the custody of a police
officer, so much of such information, whether it amounts
to a confession or not, as relates distinctly to the fact
thereby discovered, may be proved.
134. This provision permits the derivative use of custodial
statements in the ordinary course of events. In Indian law, there
is no automatic presumption that the custodial statements have
been extracted through compulsion. In short, there is no
requirement of additional diligence akin to the administration of
Miranda warnings. However, in circumstances where it is shown
that a person was indeed compelled to make statements while
in custody, relying on such testimony as well as its derivative
use will offend Article 20(3).”
20) In this view, the information given by an accused person
to a police officer leading to the discovery of a fact which may
or may not prove incriminatory has been made admissible
under Section 27 of the Evidence Act, 1872. Further, in Selvi
(supra), this Court held as under:-
“264. In light of these conclusions, we hold that no
individual should be forcibly subjected to any of the
techniques in question, whether in the context of
investigation in criminal cases or otherwise. Doing so would
amount to an unwarranted intrusion into personal liberty.
However, we do leave room for the voluntary administration
of the impugned techniques in the context of criminal justice
16
provided that certain safeguards are in place. Even when the
subject has given consent to undergo any of these tests, the
test results by themselves cannot be admitted as evidence
because the subject does not exercise conscious control over
the responses during the administration of the test.
However, any information or material that is subsequently
discovered with the help of voluntary administered test
results can be admitted in accordance with Section 27 of the
Evidence Act, 1872.”
21) In Madhu vs. State of Kerala (2012) 2 SCC 399, this
Court while discussing the mandate of Section 27 of the
Evidence Act held as under:-
“49. As an exception, Section 27 of the Evidence Act provides
that a confessional statement made to a police officer or
while an accused is in police custody, can be proved against
him, if the same leads to the discovery of an unknown fact.
The rationale of Sections 25 and 26 of the Evidence Act is,
that police may procure a confession by coercion or threat.
The exception postulated under Section 27 of the Evidence
Act is applicable only if the confessional statement leads to
the discovery of some new fact. The relevance under the
exception postulated by Section 27 aforesaid, is limited “…
as relates distinctly to the fact thereby discovered….”. The
rationale behind Section 27 of the Evidence Act is, that the
facts in question would have remained unknown but for the
disclosure of the same by the accused. The discovery of facts
itself, therefore, substantiates the truth of the confessional
statement. And since it is truth that a court must endeavour
to search, Section 27 aforesaid has been incorporated as an
exception to the mandate contained in Sections 25 and 26 of
the Evidence Act.”
22) Section 27 of the Evidence Act is applicable only if the
confessional statement leads to the discovery of some new
fact. The relevance is limited as relates distinctly to the fact
thereby discovered. In the case at hand, the Yashika Camera
17
which was recovered at the instance of Accused No. 3 was not
identified by the father as well as the mother of the deceased.
In fact, the prosecution is unable to prove that the said
camera actually belongs to the deceased-John Bosco. Though
the mobile phone is recovered from A-1, but there is no
evidence on record establishing the fact that the cell phone
belongs to the deceased-John Bosco or to PW-8 as the same
was not purchased in their name. Further, the prosecution
failed to examine the person on whose name the cell phone
was purchased to show that it originally belongs to PW-8 to
prove the theory of PW-8 that he had purchased and given it
to the deceased John-Bosco. Further, the material objects,
viz., Nokia phone and Motor Bike do not have any bearing on
the case itself. The Nokia phone was recovered from Accused
No. 1 and it is not the case that it was used for the
commission of crime and similarly the motor cycle so
recovered was of the father of Accused No. 3 and no evidence
has been adduced or produced by the prosecution as to how
these objects have a bearing on the case. In fact, none of the
witnesses have identified the camera or stated the belongings
18
of John Bosco. The said statements are inadmissible in spite
of the mandate contained in Section 27 for the simple reason
that it cannot be stated to have resulted in the discovery of
some new fact. The material objects which the police is
claimed to have recovered from the accused may well have
been planted by the police. Hence, in the absence of any
connecting link between the crime and the things recovered,
there recovery on the behest of accused will not have any
material bearing on the facts of the case.
23) The law is well settled that each and every incriminating
circumstance must be clearly established by reliable and
clinching evidence and the circumstances so proved must
form a chain of events from which the only irresistible
conclusion about the guilt of the accused can be safely drawn
and no other hypothesis against the guilt is possible. In a
case depending largely upon circumstantial evidence, there is
always a danger that conjecture or suspicion may take the
place of legal proof. The court must satisfy itself that various
circumstances in the chain of events must be such as to rule
out a reasonable likelihood of the innocence of the accused.
19
When the important link goes, the chain of circumstances gets
snapped and the other circumstances cannot, in any manner,
establish the guilt of the accused beyond all reasonable doubt.
The court has to be watchful and avoid the danger of allowing
the suspicion to take the place of legal proof for sometimes,
unconsciously it may happen to be a short step between moral
certainty and legal proof. There is a long mental distance
between “may be true” and “must be true” and the same
divides conjectures from sure conclusions. The Court in
mindful of caution by the settled principles of law and the
decisions rendered by this Court that in a given case like this,
where the prosecution rests on the circumstantial evidence,
the prosecution must place and prove all the necessary
circumstances, which would constitute a complete chain
without a snap and pointing to the hypothesis that except the
accused, no one had committed the offence, which in the
present case, the prosecution has failed to prove.
Conclusion:-
24) In view of the foregoing discussion, we are of the
considered opinion that both the courts below have erred in
20
relying that part of the statement which can be termed as
confession which were given to the police officer while they
were in custody and it will be hit by Section 26 of the Indian
Evidence Act,1872 and only that part of the statement which
led to the discovery of various materials would be permissible.
Hence, in the absence of any other material evidence against
the appellants-accused, they cannot be convicted solely on the
basis of evidence of last seen together with the deceased.
25) In the light of the above discussion, the judgment and
order dated 23.11.2009 passed by the High Court is set aside.
The appeals are allowed. The appellants who are in custody
shall be set at liberty forthwith, if they are not required in any
other criminal case.
...…………….………………………J.
 (A.K. SIKRI)
.…....…………………………………J.
 (R.K. AGRAWAL)
NEW DELHI;
APRIL 16, 2018. 

whether any case under Section 20(4) read with its proviso was made out by the parties or not? = we concur with the reasoning and the conclusion arrived at by the Courts below and accordingly hold that the tenant, having rightly suffered a decree for eviction on the ground contained under Section 20(2)(a), is not entitled to take the benefit of sub-section(4) of Section 20 because his case falls under the proviso to sub-section(4) by virtue of the fact that his son, who is member of family being a male lineal descendants as specified under Section 3(g)(ii) of the Act, has built his residential house in the same city and he is in its possession. The tenant can, therefore, shift in the said house once he is asked to vacate pursuant to eviction decree passed against him.

 REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL No.5903 OF 2012
Smt. Sudama Devi & Ors. ….Appellant(s)
VERSUS
Vijay Nath Gupta & Anr. …Respondent(s)
J U D G M E N T
Abhay Manohar Sapre, J.
1. This appeal is filed by the legal representatives
of the defendant(tenant) against the final judgment
and order dated 14.03.2011 passed by the High
Court of Judicature at Allahabad in Civil Misc.Writ
Petition No.17758 of 1998 whereby the High Court
dismissed the petition filed by the defendant and
upheld the order dated 22.04.1998 passed by the
Additional District Judge-XI, Gorakhpur in Civil
Revision No.15 of 1997 by which he dismissed the
1
revision filed by the defendant and confirmed the
order dated 02.08.1997 passed by the Small Causes
Court in Small Cause Case No.42 of 1986.
2. In order to appreciate the issue involved in the
appeal, few relevant facts need to be mentioned
infra.
3. The appellants are the legal representatives of
original defendant - Chandrabhan Singh - who died
during the pendency of the civil suit whereas the
respondents are legal representatives of Parasnath
Gupta, Manager of the plaintiff-Shri Ramchander Ji,
owner of the suit house.
4. The plaintiff claiming to be the landlord of the
suit house filed a civil suit through his Manager
against the defendant-Chandrabhan Singh for his
eviction from the suit house. The plaintiff, inter alia,
alleged that Chandrabhan Singh was his monthly
tenant living in the suit house. It was alleged that
the defendant has all along been in arrears of rent
2
inasmuch as he failed to pay the monthly rent from
January 1977 onwards to the plaintiff.
5. It was further alleged that the defendant paid
a sum of Rs.656.25 to the plaintiff, which the
plaintiff adjusted against part of the arrears up to
May 1980. It was alleged that despite the
adjustment being made, the arrears still remained
unpaid and default in payment of monthly rent
continued to persist and hence notice for eviction
and demand of arrears of rent was given by the
plaintiff to the defendant followed by filing of the
civil suit claiming a decree for eviction of the
defendant from the suit house and arrears of rent
against the defendant. The plaintiff sought a decree
for the defendant's eviction from the suit house on
the ground of non-payment of arrears of rent as
specified under Section 20(2)(a) of the Uttar Pradesh
Urban Buildings (Regulation of Letting, Rent and
Eviction) Act, 1972 (hereinafter referred to as “the
Act”).
3
6. The defendant denied the averments made in
the plaint and joined issues. One of the grounds
raised by the defendant was that the provisions of
the Act do not apply to the suit house because the
suit house is the property of the Charitable Trust.
7. Issues were framed. Parties adduced their
evidence. The Trial Court by its judgment/order
dated 02.08.1997 passed the decree for eviction and
arrears of rent. It was held that the suit is
maintainable, that the provisions of the Act are
applicable, that the defendant was a defaulter in
payment of monthly rent and its arrears, and that a
ground under Section 20(2)(a) of the Act is made out
against the defendant for his eviction from the suit
house. Accordingly, the decree for defendant’s
eviction from the suit house was passed.
8. The defendant felt aggrieved and filed a civil
revision before the Additional District Judge,
Gorakhpur. By order dated 22.04.1998, the
Additional District Judge dismissed the revision and
4
confirmed the judgment and decree of the Trial
Court.
9. It may be mentioned here that one question
was also raised by the parties in the case, namely,
whether any case under Section 20(4) read with its
proviso was made out by the parties or not?
10. It was the case of the plaintiff (landlord) that
the defendant is not entitled to take any benefit of
Section 20(4) of the Act to avoid the decree of
eviction passed against him under Section 20(2)(a)
of the Act because his son, who is a member of the
tenant’s family, as defined under Section 3(g) of the
Act, has built his own house in the same city and
hence the defendant’s case would fall under proviso
to Section 20(4) of the Act which would make
Section 20(4) inapplicable to the tenant. The
defendant opposed this contention on facts stating
that his son lives separately from him and hence
proviso will not apply. The contention of the
plaintiff was upheld by the Revisional Court (ADJ)
5
and accordingly the eviction decree passed under
Section 20(2)(a) of the Act against the defendant was
confirmed by denying the defendant the benefit of
Section 20(4) of the Act.
11. The defendant felt aggrieved and filed writ
petition under Article 227 of the Constitution of
India before the High Court. By impugned order,
the Single Judge of the High Court dismissed the
writ petition and upheld the order of the Revisional
Court (ADJ) and also affirmed all the findings of fact
recorded by the Trial Court, giving rise to filing of
this appeal by the defendant (tenant) by way of
special leave in this Court.
12. Heard Mr. Nagendra Rai, learned senior
counsel for the appellants and Mr. Bhuvan Mishra,
learned counsel for the respondents.
13. Learned senior counsel for the appellants while
assailing the legality and correctness of the
impugned order argued only one point.
6
14. Learned counsel, by referring to Sections 20(2)
(a) and 20(4) of the Act, submitted that eviction
decree passed under Section 20(2)(a) of the Act is
always subject to ensuring compliance of Section
20(4) of the Act. Learned counsel contended that the
defendant/tenant was able to prove that he is
entitled to claim benefit of Section 20(4) of the Act
whereas the plaintiff has failed to prove that the
defendant’s case fell under proviso to Section 20(4)
so as to deprive the defendant from taking benefit of
sub-Section (4) of Section 20 and avoid the decree
for eviction passed against him under Section 20(2)
(a) of the Act.
15. Learned counsel further urged that since the
defendant/tenant did not construct his own house
though his son constructed the house in the same
city but since his son was living separately from
him, the proviso to Section 20(4) of the Act had no
application to the case. It was his submission that
the defendant was, therefore, entitled to claim the
7
benefit of Section 20(4) of the Act and the eviction
decree passed against him under Section 20(2)(a)of
the Act is liable to be set aside.
16. In reply, learned counsel for the respondents
supported the impugned order and contended that
it does not call for any interference.
17. Having heard the learned counsel for the
parties and on perusal of the record of the case, we
find no merit in the appeal.
18. Section 3(g), Section 20(2)(a) and Section 20(4)
of the Act which are relevant for this case read as
under :
“ Section 3(g)
 “family” in relation to a landlord or tenant of
a building, means, his or her(i)
spouse;
(ii) male lineal descendants
(iii) such parents, grandparents and
any unmarried or widowed or
divorced or judicially separated
daughter or daughter of a male
lineal descendant, as may have
been normally residing with him
or her, and includes, in relation to
a landlord, any female having a
8
legal right of residence in that
building
Section 20(2)(a)
(a) That the tenant is in arrears of rent for
not less than four months, and has failed to
pay the same to the landlord within one
month from the date of service upon him of a
notice of demand:
Provided that in relation to a tenant
who is a member of the armed forces of the
Union and in whose favour the Prescribed
Authority under the Indian Soldiers
(Litigation) Act, 1925 (Act No. IV of 1925),
has issued a certificate that he is serving
under special conditions within the meaning
of Section 3 of that Act or where he has died
by enemy action while so serving, then in
relation to his heirs, the words “four months”
in this clause shall be deemed to have been
substituted by the words “one year”.
Section 20(4)
In any suit for eviction on the ground
mentioned in clause (a) of sub-section (2), if
at the first hearing of the suit the tenant
unconditionally pays or tenders to the
landlord or deposits in court the entire
amount of rent and damages for use and
occupation of the building due from him
(such damages for use and occupation being
calculated at the same rate as rent) together
with interest thereon at the rate of nine per
cent per annum and the landlord’s costs of
the suit in respect thereof, after deducting
therefrom any amount already deposited by
the tenant under sub-section (1) of Section
30, the Court may, in lieu of passing a decree
for eviction on that ground, pass an order
relieving the tenant against his liability for
eviction on that ground:
9
Provided that nothing in this
sub-section, shall apply in relation to a
tenant who or any member of whose family
has built or has otherwise acquired in a
vacant state, or has got vacated after
acquisition, any residential building in the
same city, municipality, notified area or town
area.”
19. Reading of Section 20(4) of the Act would go to
show that when a landlord files a suit against his
tenant seeking his eviction from the tenanted
premises on the ground of arrears of rent as
specified under Section 20(2)(a) of the Act, the Court
has a discretion to pass a decree for eviction against
the tenant, in case the Court finds that the tenant
has ensured compliance of the requirements of
Section 20(4) of the Act by depositing the rent, its
arrears and damages together with interest as
specified therein.
20. In other words, if the Court finds that the
tenant has ensured compliance of conditions
specified in sub-section (4) of Section 20 of the Act
at the first hearing of the suit filed by his landlord
10
for his eviction on the ground of arrears of rent
under Section 20(2) of the Act, it is the discretion of
the Court to either pass a decree for eviction against
the tenant or relieve him from the rigor of the
eviction decree.
21. The proviso, however, provides that
sub-section(4) of Section 20 of the Act will not
apply, if it is proved that a tenant or any member of
his family, has either built or otherwise acquired the
house in a vacant state, or has got vacated after
acquisition, any residential building in the same
city, municipality, notified area or town area.
22. In our opinion, in order to attract the proviso,
three facts need to be proved. First, the tenant or
any member of his family, as specified under
Section 3(g), has either built or otherwise acquired
any residential building; Second, such residential
building is in a vacant state; and third, such vacant
residential building is situated in the same city,
11
municipality, notified area or town area where the
suit tenanted premises is situated.
23. Once these three facts are proved, the proviso
would apply against the tenant disentitling him to
claim the benefit of sub-section (4) of Section 20 to
avoid decree for his eviction passed against him
under Section 20(2)(a) of the Act.
24. The main reason behind enacting such proviso
is that the tenant, in such circumstances, would
not suffer any hardship, if he is asked to vacate the
tenanted premises pursuant to eviction decree
passed against him on the ground of arrears of rent
under Section 20(2)(a) of the Act because he or any
member of his family has built house or acquired it
and got its vacant possession situated in the same
city. Such tenant can, therefore, shift in the house
of member of the family.
25. The submission of learned counsel for the
defendant (tenant) was that in cases where the
tenant's son is living separately from his
12
father(tenant) in his own house then such tenant
cannot be made to suffer the eviction decree once he
complies with the requirements of sub-section(4) of
Section 20.
26. In other words, the submission was that it is
only when any member of tenant's family is living
with the tenant in the tenanted premises and if he
owns any vacant residential building in the same
city, the tenant can be deprived of the benefit of
sub-section(4) of Section 20 but not otherwise. We
find no merit in this submission.
27. In our view, the language of proviso being plain
and simple leaving no ambiguity therein, we cannot
read the words of the proviso, the way learned
counsel for the appellant wants us to read therein to
accept his submission. In our view, if such was the
intention of the legislature, then the proviso would
have been worded accordingly. Such is, however,
not the case here.
13
28. In the light of the foregoing discussion, we
concur with the reasoning and the conclusion
arrived at by the Courts below and accordingly hold
that the tenant, having rightly suffered a decree for
eviction on the ground contained under Section
20(2)(a), is not entitled to take the benefit of
sub-section(4) of Section 20 because his case falls
under the proviso to sub-section(4) by virtue of the
fact that his son, who is member of family being a
male lineal descendants as specified under Section
3(g)(ii) of the Act, has built his residential house in
the same city and he is in its possession. The
tenant can, therefore, shift in the said house once
he is asked to vacate pursuant to eviction decree
passed against him.
29. The appeal thus fails and is accordingly
dismissed. The appellants are, however, granted
three months’ time to vacate the suit house
provided they deposit the entire arrears of rent till
date, if they have not so far deposited or paid to the
14
respondents and also to deposit three months’ rent
by way of damages for use and occupation within
two weeks from the date of order in the Court below.
Failure to make deposit and submit an undertaking
by the appellants to this Court within two weeks to
vacate the suit premises within three months will
entitle the respondents to execute the decree
forthwith on the expiry of two weeks.

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

…...……..................................J.
 [ABHAY MANOHAR SAPRE]
New Delhi;
April 17, 2018
15

mere perusal of the order of the Family Court and the High Court quoted supra, would go to show that both the Courts failed to apply their judicial mind to the factual and legal controversy insofar as award of permanent alimony to the respondent(wife) is concerned. Both the Courts did 6 not even mention the factual narration of the case set up by the parties on the question of award of permanent alimony and without there being any discussion, appreciation, reasoning and categorical findings on the material issues such as, financial earning capacity of husband to pay the alimony and also the financial earning capacity of wife, a direction to pay Rs.15,00,000/- by way of permanent alimony to the wife was given. In our opinion, such direction is wholly unsustainable in law.

 REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.3876 OF 2018
[Arising out of SLP (C) No.9691 of 2015]
Jalendra Padhiary .. Appellant(s)
Versus
Pragati Chhotray .. Respondent(s)
J U D G M E N T
Abhay Manohar Sapre, J.
1) Leave granted.
2) This appeal arises from the final judgment and
order dated 03.11.2014 passed by the High Court of
Orissa at Cuttack in M.A.T.A. No.113 of 2014
whereby the Division Bench of the High Court
1
dismissed the appeal filed by the appellant herein in
limine at the stage of admission, in consequence,
upheld the order dated 17.09.2014 passed by the
Family Court, Bhubaneswar in Civil Proceeding
No.24 of 2011.
3. The facts of the case lie in a narrow compass
and it would be clear from the facts stated
hereinbelow.
4. The appellant is the plaintiff whereas the
respondent is the defendant in the civil suit out of
which this appeal arises. The dispute is between the
husband and wife and it relates to award of
permanent alimony payable to wife.
5. The appellant-husband filed a petition against
the respondent-wife under Section 13 of the Hindu
Marriage Act, 1954 (hereinafter referred to as “the
Act”) before the Judge, Family Court, Bhubaneswar
seeking decree for dissolution of marriage on the
2
grounds of desertion and cruelty. The respondent
filed her written statement and denied the material
averments of the appellant’s claim. On the basis of
the pleadings and the evidence adduced by the
parties, the Family Judge, by order dated
17.09.2014, allowed the petition and passed a decree
of divorce by dissolving the marriage. The Family
Judge also directed the appellant(husband) to pay
permanent alimony of Rs.15,00,000/- and litigation
expenses of Rs.10,000/- to the respondent(wife).
6. The appellant(husband), felt aggrieved by that
part of the order of the Family Court by which the
appellant was directed to pay permanent alimony of
Rs.15,00,000/- to the respondent(wife), filed appeal
before the Division Bench of the High Court. By
judgment/decree dated 03.11.2014, the Division
Bench of the High Court dismissed the appellant’s
appeal and affirmed the order of the Family Court.
3
7. Against the order of the Division Bench of the
High Court, the appellant(husband) has filed this
appeal by way of special leave in this Court.
8. The short question, which arises for
consideration in this appeal, is whether the Division
Bench of the High Court was justified in dismissing
the appellant’s appeal in limine and thereby
upholding the order of the Family Judge insofar as it
related to awarding permanent alimony of
Rs.15,00,000/- to the wife(respondent).
9. Heard Mr. Kumar Gaurav, learned counsel for
the appellant and Mr. Radha Shyam Jena, learned
counsel for the respondent.
10. Having heard the learned counsel for the parties
and on perusal of the record of the case, we are
constrained to allow the appeal, set aside the
impugned order as also the order of the Family Court
to the extent it fixes the award of permanent alimony
4
and remand the case to the Family Court for deciding
the question of grant of permanent alimony payable to
wife afresh on merits in accordance with law.
11. The operative portion of the order of the Family
Court reads as under:
“The petition of the petitioner is allowed on
contest in favour of the petitioner. A decree
of divorce is passed and the marriage
between the petitioner and the respondent is
hereby declared dissolved with effect from
the date of decree. The petitioner is directed
to pay permanent alimony of Rs.15,00,000/-
and litigation expenses of Rs.10,000/- to the
respondent.”
(emphasis supplied)
12. The order of the Division Bench of the High Court
reads as under:
“After looking into the allegations made and
pleadings taken by the parties, as recorded in
the impugned judgment, which during the
course of argument could not be snipped, we
do not find any reason to interfere with the
amount of Rs.15,00,000/- awarded as
permanent alimony to the wife by the learned
Judge, Family Court. In the present time,
the said amount is wholly insufficient for the
wife to maintain her entire life.
5
Since we do not find any merit in the
appeal, we dismiss the same in limine at the
very stage of admission.”
13. The only question involved in the appeal before
the High Court, which was carried to this Court in this
appeal by the appellant (husband), was whether the
award of permanent alimony of Rs.15,00,000/- by the
Family Court to the respondent(wife) was legally and
factually sustainable.
14. Insofar as the grant of decree of divorce in favour
of the husband is concerned, it was not challenged by
the respondent (wife) in appeal before the High Court
and hence it attained finality.
16. In our view, mere perusal of the order of the
Family Court and the High Court quoted supra, would
go to show that both the Courts failed to apply their
judicial mind to the factual and legal controversy
insofar as award of permanent alimony to the
respondent(wife) is concerned. Both the Courts did
6
not even mention the factual narration of the case set
up by the parties on the question of award of
permanent alimony and without there being any
discussion, appreciation, reasoning and categorical
findings on the material issues such as, financial
earning capacity of husband to pay the alimony and
also the financial earning capacity of wife, a direction
to pay Rs.15,00,000/- by way of permanent alimony to
the wife was given. In our opinion, such direction is
wholly unsustainable in law.
16. Time and again, this Court has emphasized on
the Courts the need to pass reasoned order in every
case, which must contain the narration of the bare
facts of the case of the parties to the lis, the issues
arising in the case, the submissions urged by the
parties, the legal principles applicable to the issues
involved and the reasons in support of the findings
7
recorded based on appreciation of evidence on all the
material issues arising in the case.
17. It is really unfortunate that neither the Family
Court nor the High Court kept in mind these legal
principles and passed cryptic and unreasoned orders.
Such orders undoubtedly cause prejudice to the
parties and in this case, it caused prejudice to the
appellant(husband) because the orders of the High
Court and Family Court deprived him to know the
reasons for fixing the permanent alimony amount of
Rs.15,00,000/- payable to his wife.
18. We cannot countenance the manner in which
both the Courts passed the order which has compelled
us to remand the matter to the Family Court for
deciding the issue afresh on merits.
19. In the light of the foregoing discussion, we allow
the appeal, set aside the impugned order of the High
Court and the order of the Family Court insofar as it
8
relates to fixing of Rs.15,00,000/- towards payment of
permanent alimony to the respondent(wife) by the
appellant(husband) and remand the case to the Family
Court to decide the quantum of payment of permanent
alimony afresh in accordance with law keeping in view
our observations made supra.
20. We, however, make it clear that we have
refrained ourselves from making any observation on
merits of the controversy while forming an opinion to
remand the case to the Family Court for the reasons
mentioned above. The Family Court would, therefore,
decide the issue, uninfluenced by any of our
observations, strictly in accordance with law. If
necessary, the Family Court would also grant liberty to
the parties to amend the pleadings and adduce
evidence on the question of quantum of payment of
permanent alimony.
9
21. The appeal is accordingly allowed. Impugned
order of the High Court and the order of the Family
Court insofar as it relates to fixation of permanent
alimony of Rs.15,00,000/- are set aside with the
aforesaid directions for compliance.
22. We direct the Family Court to decide the case
within six months as an outer limit.
23. Till the disposal of the case, the
appellant(husband) will continue to pay monthly
maintenance amount, which was fixed by the Family
Court, to the respondent regularly. Needless to say,
the payment of monthly maintenance will be subject
to the final determination made by the Family Court.
………………………………..J
(R.K. AGRAWAL)
 …..………………………………J.
 (ABHAY MANOHAR SAPRE)
New Delhi,
April 17, 2018
10

Anti-Suit Injunctions are meant to restrain a party to a suit/proceeding from instituting or prosecuting a case in another court, including a foreign court. Simply put, an anti-suit injunction is a judicial order restraining one party from prosecuting a case in another court outside its jurisdiction. The principles governing grant of injunction are common to that of granting anti-suit injunction. The cases of injunction are basically governed by the doctrine of equity.

REPORTABLE
 IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 3878 2018
( Arising out of Special Leave Petition (Civil) No. 10078 of 2018)
@ CC No.22197/2016
Dinesh Singh Thakur ...…...Appellant(s)
Versus
Sonal Thakur ….…Respondent(s)
J U D G M E N T
R.K.Agrawal, J.
1) Leave granted.
2) The present appeal has been filed against the impugned
judgment and order dated 03.11.2016 passed by the High Court
of Punjab & Haryana at Chandigarh in CR No. 7190 of 2016
whereby learned single Judge of the High Court dismissed the
revision filed by the appellant-husband against the order dated
18.10.2016 passed by the District Judge, Family Court, Gurgaon
in Civil Suit No. 15 of 2016 whereby ad-interim injunction
granted against the respondent-wife, vide order dated 26.09.2016
has been vacated.
1
Brief facts:-
3) Having regard to the nature and circumstances of the case,
we do not intend to discuss all the facts in detail at this stage.
Hence, the facts are stated in a summarized way only to
appreciate the issue involved in this instant appeal.
(a) The marriage between Dinesh Singh Thakur-the
appellant-husband and Sonal Thakur - respondent-wife was
solemnized on 20.02.1995 as per Hindu rites and two children
were born out of the said wedlock. The appellant-husband was
working in United States of America (USA) at the time of marriage
and he took the respondent-wife to USA on Dependent Visa.
Both the parties got the citizenship of USA in May, 2003. They
obtained “PIO” status (Person of India Origin) in June 2003 and
“OCI” status (Overseas Citizens of India) in July 2006.
(b) The appellant-husband filed a petition being H.M.A. No. 601
of 2016 under Sections 13 and 26 of the Hindu Marriage Act,
1955 (in short ‘the Act’) against the respondent-wife at the Family
Court, Gurgaon which is pending adjudication before the Court.
Subsequently, the respondent-wife filed a petition being Case No.
2016-008918-FD in the Circuit Court of the Sixth Judicial
2
Circuit in and for Pinellas County, Florida, USA for divorce on the
ground of irretrievable breakdown of marriage and other reliefs.
Thereafter, the appellant-husband filed Civil Suit No. 15 of 2016
before the District Judge, Family Court, Gurgaon, under Section
7 of the Act for permanent injunction and declaration inter alia to
restrain the respondent-wife from pursuing the petition for
divorce before the Court in USA.
(c) Learned District Judge, vide order dated 26.09.2016,
granted ex parte ad interim injunction to the appellant-husband.
Being aggrieved, the respondent-wife filed an application for
vacation and modification of the order dated 26.09.2016. Learned
District Judge, vide order dated 18.10.2016, vacated the
injunction granted vide order dated 26.09.2016.
(d) Aggrieved by the order vacating injunction, the
appellant-husband preferred CR No. 7190 of 2016 before the
High Court. Learned single Judge of the High Court, vide order
dated 03.11.2016 dismissed the petition filed by the
appellant-husband.
3
(e) Aggrieved by the judgment and order dated 03.11.2016, the
appellant-husband has filed this appeal by way of special leave
before this Court.
4) Heard Ms. Indu Malhotra, learned senior counsel for the
appellant-husband and Mr. V. Giri, learned senior counsel for the
respondent-wife and perused the record.
Point(s) for consideration:-
5) The only point for consideration before this Court is whether
in the present facts and circumstances of the case, the
appellant-husband is entitled to the decree of anti-suit injunction
against the respondent-wife?
Rival submissions:-
6) Learned senior counsel for the appellant-husband
contended that as the appellant herein had already filed a
petition seeking dissolution of marriage of the parties in which
the respondent-wife was served on 04.08.2016 and she had
caused appearance on 16.09.2016, the proceedings initiated by
the respondent-wife seeking a decree of divorce in a Foreign
Court on the ground of irretrievable breakdown of marriage
which is not a ground for divorce under the Act are liable to be
4
stayed. Further, the respondent-wife, along with her minor
children is residing in India since 2003 and filing of petition for
divorce in the Court at USA, after receipt of notice in the divorce
petition filed by the appellant-husband in India, is an abuse of
process of law and amounts to multiplicity of proceedings.
7) Learned senior counsel further contended that the
respondent-wife is admittedly residing at Gurgaon, therefore, the
court at Gurgaon would be the forum convenient to both the
parties. She further contended that the trial Court has only
considered the provisions of Section 41(b) of the Specific Relief
Act, 1963 (in short ‘the SR Act’) and the decision in the case of
Rakesh Kumar vs. Ms. Ashima Kumar – AIR 2007 P&H 63 but
did not take into consideration the provisions of Section 41(a) of
the SR Act, relevant in the present context. Learned senior
counsel for the appellant-husband finally contended that the
High Court was not right in upholding the order of the court
below on vacating the ad-interim injunction and interference in
this regard is sought for by this Court.
8) Learned senior counsel for the respondent-wife while
refuting the claims made by learned senior counsel for the
appellant-husband submitted that the petition that has been
5
filed before the Court at Florida is not only for dissolution of
marriage of the parties but also for claiming various other reliefs
such as equitable distribution of marital assets, child support,
alimony, partition and other reliefs that are not available under
the Indian Law. Learned senior counsel further submitted that
the irreparable loss or injury shall be caused to the
respondent-wife and to the children in case the petition pending
in the Court at Florida is stayed.
Discussion
9) Anti-Suit Injunctions are meant to restrain a party to a
suit/proceeding from instituting or prosecuting a case in another
court, including a foreign court. Simply put, an anti-suit
injunction is a judicial order restraining one party from
prosecuting a case in another court outside its jurisdiction. The
principles governing grant of injunction are common to that of
granting anti-suit injunction. The cases of injunction are
basically governed by the doctrine of equity.
10) It is a well-settled law that the courts in India have power
to issue anti-suit injunction to a party over whom it has personal
jurisdiction, in an appropriate case. However, before passing the
6
order of anti-suit injunction, courts should be very cautious and
careful, and it should be granted sparingly and not as a matter of
routine as such orders involve a court impinging on the
jurisdiction of another court, which is not entertained very easily
specially when the it restrains the parties from instituting or
continuing a case in a foreign court.
11) In this backdrop, it is worthwhile to quote Section 41 of the
SR Act which provides for various instances and circumstances
under which injunction cannot be granted.
“41. Injunction when refused.—An injunction cannot be
granted—
(a) to restrain any person from prosecuting a judicial proceeding
pending at the institution of the suit in which the injunction is
sought, unless such restraint is necessary to prevent a
multiplicity of proceedings;
(b) to restrain any person from instituting or prosecuting any
proceeding in a court not subordinate to that from which the
injunction is sought;
(c) to restrain any person from applying to any legislative body;
(d) to restrain any person from instituting or prosecuting any
proceeding in a criminal matter;
(e) to prevent the breach of a contract the performance of which
would not be specifically enforced;
(f) to prevent, on the ground of nuisance, an act of which it is
not reasonably clear that it will be a nuisance;
(g) to prevent a continuing breach in which the plaintiff has
acquiesced;
(h) when equally efficacious relief can certainly be obtained by
any other usual mode of proceeding except in case of breach of
trust;
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(i) when the conduct of the plaintiff or his agents has been such
as to disentitle him to the assistance of the court;
(j) when the plaintiff has no personal interest in the matter.”
12) The appellant – husband argued that Section 41(b) is not
applicable to the instant case rather it is applicable only to those
cases where question is regarding the injunction for proceedings
in the Indian court. In support of this argument, learned senior
counsel placed reliance on Oil and Natural Gas Commission
vs. Western Company of North America (1987) 1 SCC 496,
wherein this Court, while interpreting the provision of Section
41(b) of the Specific Relief Act, 1963 has held as follows:-
“18….This provision, in our opinion, will be attracted only in a
fact-situation where an injunction is sought to restrain a party from
instituting or prosecuting any action in a court in India which is
either of coordinate jurisdiction or is higher to the court from which
the injunction is sought in the hierarchy of Courts in India…..”
13) Learned senior counsel for the appellant-husband further
placed reliance on Modi Entertainment Network and Another
vs. WSG Cricket PTE Ltd. 2003 (4) SCC 341, wherein this Court
while dealing with the matter laid down certain principles
required to be taken into consideration by any court while
granting an anti-suit injunction. These principles are as under:-
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 The defendant, against whom injunction is sought, is
amenable to the personal jurisdiction of the court.
 If the injunction is declined, the ends of justice will be
defeated and injustice will be perpetuated and;
 The principle of comity-respect for the court in which the
commencement or continuation of action/proceeding is
sought to be restrained-must be borne in mind.
14) In Modi Entertainment Networks (supra), this Court has
reiterated this position by holding that the courts in India like
Court in England are courts of law and equity. The principles
governing the grant of anti-suit injunction being essentially an
equitable relief; the courts in India have the powers to issue
anti-suit injunction to a party over whom it has personal
jurisdiction in an appropriate case; this is because the courts of
equity exercise jurisdiction in personam; this power has to be
exercised sparingly where such an injunction is sought and if not
granted, it would amount to the defeat of ends of justice and
injustice would be perpetuated.
15) In Vivek Rai Gupta vs. Niyati Gupta, Civil Appeal No.
1123 of 2006, decided on February 10, 2016, this Court has held
as under:-
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“If the execution proceedings are filed by the respondent-wife
for executing the aforesaid decree dated 18.09.2012 passed
by the Court of Common Pleas, Cuyahoga Country, Ohio,
USA against any other movable/immovable property in India
it would be open to the appellant-husband to resist the said
execution petition on any grounds available to him in law
taking the position that such a decree is not executable.”
16) Further, in Harmeeta Singh vs. Rajat Taneja 2003 (67)
DRJ 58, the Delhi High Court considering the fact that the
parties have lived together for a very short time in the United
States of America had granted anti suit injunction.
17) Y. Narasimha Rao & Others vs. Y. Venkata Lakshmi
and Another (1991) 3 SCC 451, this Court has held as under:-
“20. From the aforesaid discussion the following rule can be
deduced for recognising a foreign matrimonial judgment in
this country. The jurisdiction assumed by the foreign court
as well as the grounds on which the relief is granted must be
in accordance with the matrimonial law under which the
parties are married. The exceptions to this rule may be as
follows: (i) where the matrimonial action is filed in the forum
where the respondent is domiciled or habitually and
permanently resides and the relief is granted on a ground
available in the matrimonial law under which the parties are
married; (ii) where the respondent voluntarily and effectively
submits to the jurisdiction of the forum as discussed above
and contests the claim which is based on a ground available
under the matrimonial law under which the parties are
married; (iii) where the respondent consents to the grant of
the relief although the jurisdiction of the forum is not in
accordance with the provisions of the matrimonial law of the
parties.”
18) Further, during the course of hearing, various documents
such as pan card, Aadhar card of the respondent-wife, lease
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deed which was executed by her in 2015 etc., which are also
placed on record, are sufficient to show that respondent-wife is
ordinarily living in India. Further, as it appears from the
proceedings recorded before the US court that the respondent
herself has admitted that the Family Court Gurgaon has
jurisdiction in the given case. The evidence placed on record is
sufficient enough to show that the respondent is amenable to
the personal jurisdiction of Gurugram Family Court. Though
the respondent-wife is amenable to the jurisdiction of Family
Court, Gurgaon, there is nothing on record to hold that the other
party will suffer grave injustice if the injunction is not granted.
There is no dispute to the fact that both the parties are
permanent citizens of U.S. Undisputedly, the Circuit Court,
Florida, USA is also having the concurrent jurisdiction in the
given case. The contention that the appellant-husband will
suffer grave injustice if the proceedings are allowed to be
continued in the Circuit Court, Florida USA doesn’t stand to the
ground as the appellant himself has been residing there after
2007 and the proceedings for grant of anti-suit injunction were
initiated by him in India through another person by empowering
him through a power of attorney to file and pursue the disputed
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litigation on his behalf. Further, there is nothing brought on
record to show how the appellant-husband would suffer grave
injustice if the injunction restraining the respondent-wife from
pursuing the divorce petition in Florida, is not granted. Still
further, even if the injunction is declined, it cannot be said that
the ends of justice will be defeated and injustice will be
perpetuated.
19) The contention that the respondent-wife has filed the
petition for divorce in the court at USA on the ground of
irretrievable breakdown of marriage which is not the ground
provided for divorce under the Act requires consideration. The
mere fact that the respondent-wife has filed the case on the
ground which is not available to her under the Act, doesn’t
means that there are likelihood of her being succeeding in
getting a decree for divorce. Specifically, in view of the fact that
the appellant has raised this contention before the Circuit Court,
Florida and both the parties will produce evidence with regard to
the question whether their marriage is governed by the Act or
any other law.
20) Foreign court cannot be presumed to be exercising its
jurisdiction wrongly even after the appellant being able to prove
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that the parties in the present case are continued to be
governed by the law governing Hindus in India in the matter of
dispute between them.
21) In view of above discussion and after having regard to the
nature of case and other peculiar facts, we do not deem it
appropriate to interfere with the decision rendered by the High
Court. We are of the opinion that the proceedings in the Foreign
Court cannot be said to be oppressive or vexatious. The appeal
is accordingly dismissed with no order as to costs.
……………………………………J.
 (R.K. AGRAWAL)
…………………………………….J.
 (R. BANUMATHI)
NEW DELHI
APRIL 17, 2018
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