“Whenever this Court is satisfied that in dealing with a second appeal, the High Court has, either unwittingly and in a casual manner, or deliberately as in this case, contravened the limits prescribed by S.100, it becomes the duty of this Court to intervene and give effect to the said provisions. It may be that in some cases, the High Court dealing with the second appeal is inclined to take the view that what it regards to be justice or equity of the case has not been served by the findings of fact recorded by Courts of fact; but on such occasions it is necessary to remember that what is administered in Courts is justice according to law and considerations of fair play and equity however important they may be, must yield to clear and express provisions of the law. If in reaching its decisions in second appeals, the High Court contravenes the express provisions of S.100, it would inevitably introduce in such decisions an element of disconcerting unpredictability which 20 is usually associated with gambling; and that is a reproach which judicial process must constantly and scrupulously endeavour to avoid.” 16. Therefore, we are of the opinion that this is a fit case to interfere with the impugned judgment and order passed by the High Court, as, as observed hereinabove, the High Court has exceeded in its jurisdiction, while allowing the second appeal under Section 100 of the CPC.

REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.6567 OF 2014
GURNAM SINGH (D) BY LRS. & ORS. …APPELLANT(S)
   
                                            VERSUS
LEHNA SINGH (D) BY LRS.                      …RESPONDENT(S)
J U D G M E N T
M.R. SHAH, J.
Feeling   aggrieved   and   dissatisfied   with   the   impugned
judgment and order dated 27.11.2007 passed by the High Court
of Punjab and Haryana at Chandigarh in Civil Regular Second
Appeal No.2191 of 1985 by which the High Court has allowed the
said appeal preferred by the respondent herein­original plaintiff
1
(now dead and represented by LRs) and has quashed and set
aside the judgment and decree passed by the First Appellate
Court   and   consequently   restored   the   judgment   and   decree
passed by the learned Trial Court, the original defendants have
preferred the present appeal.
2. The facts leading to present appeal in nutshell are as under:
That the respondent–original plaintiff (hereinafter referred to as
‘original plaintiff’) filed a suit in the Court of Sub Judge, First
Class, Sangrur for perpetual injunction restraining the original
defendants from dispossessing him from the suit land.  It was the
case on behalf of the original plaintiff that he and his brother
Bhagwan Singh alias Nikka Singh were owners and in possession
of   the   suit   land.     Bhagwan   Singh   alias   Nikka   Singh   expired
leaving behind the plaintiff to be his only successor.   Bhagwan
Singh   had   no   wife   or   children.   The   defendants   who   had   no
concern with the suit land were out to dispossess him from the
same forcibly. Hence, therefore, he filed the aforesaid suit against
the defendants for perpetual injunction.
2.1 That the defendants appeared before the Trial Court and
resisted the suit by filling the written statement. It was denied by
2
the defendants that the plaintiff was the successor of Bhagwan
Singh, deceased. According to the defendants, Bhagwan Singh,
before his death, executed a Will in favour of Defendant Nos.2 to
6   on   17.01.1980.   According   to   the   defendants,   as   all   the
defendants served Bhagwan Singh in his lifetime and therefore he
executed the Will in favour of Defendant nos.2 to 6 because of the
services rendered.   It was the case on behalf of the defendants
that prior to it also, Bhagwan Singh alias Nikka Singh had got
executed   a   Will   on   17.08.1979,   but   the   same   remained   as
unregistered one. It was admitted that in the lifetime of Bhagwan
Singh, both the plaintiff and the Bhagwan Singh, cultivated the
suit land jointly. According to the defendants, after the death of
Bhagwan Singh, Defendant Nos.2 to 6 came into possession of
half share of Bhagwan Singh.  In the alternative, the defendants
pleaded that even if it was proved that the original plaintiff was in
possession of the suit land, Defendant Nos. 2 to 6 were entitled to
joint possession of half share of the suit land which belonged to
Bhagwan Singh, deceased.
2.2 That the original plaintiff, in the replication filed, denied
having Bhagwan Singh ­ deceased, executed the Will in favour of
3
the   Defendant   Nos.2   to   6   on   17.01.1980.   He   pleaded   that
Bhagwan Singh was not in a position to make any Will. Bhagwan
Singh   was   actually   murdered   by   the   defendants   by
administrating   poison   to   him   and   that   the   defendants   were
prosecuted for the murder of Bhagwan Singh deceased.  That the
defendants forged the Will on behalf of the Bhagwan Singh and
under the umbrella of that forged document they were out to
dispossess him forcibly.  It was also denied that the defendants
were in possession of the suit land with regard to the share of
Bhagwan Singh.
3. That   on   the   basis   of   pleadings,   the   learned   Trial   Court
framed the following issues :
“1. Whether the plaintiff is the sole heir of Bhagwan
Singh, deceased?
2.   Whether   the   plaintiff   is   in   possession   of   the
property in dispute?
3. Whether the plaintiff is entitled to the relief prayed
for?
4. Whether Bhagwan Singh deceased made a valid
will   as   alleged   in   written   statement   in   favour   of
defendants Nos.2 to 6?
5. If issue No.2 is proved in favour of the plaintiff
whether defendant Nos.2 to 6 are entitled to joint
possession of the land in suit?
4
6 Whether the defendants are governed in matters of
marriage by the Punjab Pepsu Customary Law? If so,
its effect?
7. Relief.”
4. That pursuant to the order passed by the High Court,
the learned Trial Court framed the following additional issue:
 “4. A. Whether the defendants have committed the
murder of Bhagwan Singh? If so, its effect?”
5. Both the parties led evidence on the issues framed.
That   on   appreciation   of   evidence   and   on   considering   the
submissions made by the learned advocates on behalf of the
respective parties, the Trial Court held Issue Nos.1,4,2,5,6 and
3 in favour of the plaintiff and against the defendants. The
Trial Court held the Issue No.4A in favour of the defendants
and against the plaintiff. Consequently, the learned Trial Court
held Issue No. 3 in favour of the plaintiff and against the
defendants   and   held   that   the   plaintiff   is   entitled   to   the
perpetual injunction as prayed for. Consequently, the learned
Trial Court decreed the suit.
6. That   in   an   appeal   before   the   First   Appellate   Court
preferred by the defendants, the First Appellate Court reversed
5
the judgment and decree passed by the Trial court, by giving
cogent reasons which were on re­appreciation of evidence. The
First   Appellate   Court   allowed   the   appeal   preferred   by   the
defendants and consequently dismissed the suit by quashing
and set aside the judgment and decree passed by the learned
Trial Court.
7. Feeling aggrieved and dissatisfied with the judgment
and decree passed by the First Appellate Court, the plaintiff
preferred Regular Second Appeal before the High Court.   By
impugned judgment and order, the High Court allowed the
same   Second   Appeal   and   has   quashed   and   set   aside   the
judgment and decree passed by the learned First Appellate
Court dismissing the suit and consequently has restored the
judgment and decree passed by the Trial Court decreeing the
suit.
8. Feeling aggrieved and dissatisfied with the impugned
judgment and order passed by the High Court, the original
defendants have preferred the present appeal.
9. Ms.  Mansi  Jain,  learned  advocate  has  appeared  on
behalf   of   the   appellants­original   defendants   and   Mr.   Amit
6
Sharma,   learned   advocate   has   appeared   on   behalf   of   the
respondent– original plaintiff.
10. Ms. Jain, learned Advocate appearing on behalf of the
original   defendants   has   vehemently   submitted   that,   in   the
facts   and   circumstances   of   the   case,   the   High   Court   has
committed a grave error in allowing the second appeal and
quashing and set aside the well­reasoned judgment and order
passed by the First Appellate Court.
10.1 It   is   vehemently   submitted   by   Ms.   Jain,   learned
Advocate appearing on behalf of the original defendants that
the impugned judgment and order passed by the High Court is
beyond the scope and ambit of Section 100 of the Code of Civil
Procedure (CPC). It is vehemently submitted by Ms. Jain that
while allowing the Second Appeal and quashing and set aside
the judgment and decree passed by the First Appellate Court,
the   High   Court   has   re­appreciated   the   entire   evidence   on
record as if the  High Court was deciding the  First  Appeal
under Section 96 of the CPC.
10.2 It   is   vehemently   submitted   by   Ms.   Jain,   learned
Advocate appearing on behalf of the original defendants that
7
High Court, while deciding the second appeal, has not properly
appreciated the fact that  the High  Court  was  deciding the
second appeal under Section 100 of the CPC and therefore was
bound   by   the   limitations   in   exercise   of   the   powers   under
Section 100 of the CPC. It is submitted that in the second
appeal under Section 100 of the CPC, the High Court was not
required   to   appreciate/re­appreciate   the   evidence   and   the
appellate jurisdiction of the High Court was restricted to the
substantial question of law.   It is submitted that therefore
while quashing the impugned judgment and order, the High
court has exceeded in its jurisdiction under Section 100 of the
CPC and therefore the impugned judgment and order passed
by the High Court deserves to be quashed and set aside on
these grounds alone. In support of her above submissions, Ms.
Jain, learned Advocate has relied upon the decisions of this
Court in the case of  Panchugopal Barua  v.  Umesh Chandra
Goswami,  (1997)   4   SCC   713;  Kondiba   Dagadu   Kadam  v.
Savitribai Sopan Gujar, (1999) 3 SCC 722; Ishwar Dass Jain v.
Sohan Lal, (2000) 1 SCC 434.
8
10.3 It is further submitted by Ms. Jain, learned advocate
appearing on behalf of the original defendants that even on
merits also, the impugned judgment and order passed by the
High Court is not sustainable. It is submitted by Ms. Jain that
the learned Trial Court while holding and not accepting the
Will executed in favour of the defendant Nos.2 to 6 framed
following suspicious circumstances:
  “(i)   There   is   no   mention   about   the   Plaintiff
being disinherited by the  testator in the Will
though it was proved on record that the Plaintiff
was the real brother of the testator and was
serving him and also cultivating his land. The
factum   of   Plaintiff   cultivating   the   land   stood
proved from the revenue record and, therefore,
covenant in the Will that the land was being
cultivated   by   the   Defendants   was   factually
incorrect.
(ii) In the Will it is mentioned that it was first
and last Will, whereas stand of the Defendants
was that earlier also there was a Will executed
by the testator.
(iii) The name of father of Gurnam Singh was
also wrongly mentioned.
(iv) As observed by the learned Trial Court, in
the Will, it has been stated that the testator had
headed   and   understood   the   Will   and   thumb
marked the same in the presence of witnesses
and   the   witnesses   also   attested   it   in   his
presence.   This   statement   is   not   required   for
proving the Will and, therefore, the learned Trial
Court   formed   an   opinion   that   such   type   of
convenient in the Will creates a doubt about its
9
authenticity. Thus the learned Trial Court was
pleased to hold that the Will was stage­managed
by hatching a conspiracy and that is why DW­3
alone   took   Nikka   Singh   stealthily   from   the
village in a car and DW­4 Joginder Singh was
already   present   at   Bhawanigarh   hobnobbed
with   the   petitioner­writer   and   got   the
transaction sealed.
(v) All the witnesses stated that Nikka Singh
was in good health at that time which is not
acceptable   as   admittedly   Nikka   Singh   was
suffering from cancerous disease and was also a
patient of T.B.
(vi) It was also observed by the learned Trial
Court that DW­1 in his deposition has stated
that   before   the   death   of   Nikka   Singh   he
obtained his thumb impression on 4­5 blank
papers.
(vii) The way in which the Will was executed was
itself a suspicious circumstance taken note of
by the trial court to reject the said Will.”
10.4 It is submitted by Ms. Jain, learned Counsel appearing
for the original defendants that all the aforesaid circumstances
which   were   found   to   be   suspicious   circumstances   by   the
learned   Trial   Court,   came   to   be   dealt   with   by   the   First
Appellate Court which gave its own reasons on appreciation of
evidence.   It   is   submitted   that   the   First   Appellate   Court
observed and held as under :
“1. Just because Lehna Singh, natural heir of
10
Bhagwan Singh, hereinafter referred as Testator,
not   mentioned   in   the   will,   does   not   make   it
suspicious.
2.   Declaring   the   will   to   be   surrounded   by
suspicious   circumstances,   mainly   based   on
recitals in the body of the will Ex.D2, is  not well
founded, as such, will is a registered document
and has been duly proved by attesting witnesses,
DW3 and DW4.
3.   Testator   would   cancel   Schedule   will   by   a
registered document are not recitals in the will
which would mean as suspicious circumstances
surrounding the will.
4. Father’s name of Gurnam Singh described as
Dewa   Singh,   instead   of   Mehar   Singh,   are   not
such recitals in the will which would means as
suspicious circumstances surrounding the will.
5. The perusal of the will reveals that the will
when it was scribed, it was thumb marked at two
places, when the will as a whole was scribed and
when   it   was   read   over   to   Testator,   in   the
presence of attesting witnesses.
6. Just because Testator was suffering from an
illness does not mean his testamentary capacity
can be questioned.
7.   Nothing   has   been   brought   on   file   by   the
Respondent to show that DW3 and DW4 were in
any   way   inimical   towards   him,   the   sworn
testimony   of   these   witnesses   remains
unimpeached and unshattered.
DW3 and DW4, who are respectable independent
witnesses and not inimical toward Respondent.”
10.5 It   is   submitted   by   Ms.   Jain,   learned   Advocate
appearing for the original defendants that therefore when the
11
First Appellate Court recorded its own findings and reasoning
on appreciation of evidence, which was permissible as the First
Appellate Court being an appeal under Section 96 of the CPC,
the same was not required to be set aside by the High Court in
a second appeal under Section 100 of the CPC. It is submitted
that re­appreciation of the evidence while deciding the second
appeal   is   wholly   impermissible.     Making   the   above
submissions,   it   is   prayed   to   allow   the   present   appeal   and
quash and set aside the impugned judgment and order passed
by the High Court and restore the judgment and decree passed
by the learned First Appellate Court and consequently dismiss
the suit.
11. Mr.   Amit   Sharma,   learned   advocate   appearing   on
behalf of the respondent–original plaintiff while opposing the
present appeal has vehemently submitted that in the facts and
circumstances of the case and on appreciation of evidence and
having found that the findings recorded by the First Appellate
Court are perverse, the High Court has rightly interfered with
the judgment and decree passed by the First Appellate Court
12
and has rightly restored the judgment and decree passed by
the learned Trial Court.
11.1 It is further submitted by Mr. Amit Sharma, learned
Advocate that cogent reasons were given by the Trial Court
holding the Will dated 17.01.1980 as suspicious and finding
recorded by the learned Trial Court were on appreciation of the
evidence,   as   rightly   observed   by   the   High   Court,   the   First
Appellate   Court   was   not   justified   in   interfering   with   such
findings which were recorded on appreciation of evidence.
11.2 It is further submitted by Mr. Sharma, learned Advocate
appearing on behalf of the original plaintiff that the testator, at
the time of execution of the alleged Will, was not in a position
to execute the Will as he was suffering from cancerous disease
and was also a patient of TB.
11.3 It   is   further   submitted   by   Mr.   Sharma,   learned
Advocate appearing on behalf of the original plaintiff that even
the DW1, in his deposition, admitted that before the death of
Nikka Singh, he obtained his thumb impression on 4­5 blank
papers. It is submitted that there are  number of discrepancies
in the alleged Will, viz., though in the Will it was stated that
13
land   was   being   cultivated   by   the   defendants,   actually   the
plaintiff   was   cultivating   the   land;   that   in   the   Will   it   was
mentioned that it was the first and last Will, whereas, even
according   to   the   defendants,   earlier   also   there   was   a   Will
executed by the testator and the name of the father of Gurnam
Singh   was   also   wrongly   mentioned.   It   is   submitted   that
therefore, as rightly observed by the learned Trial Court, the
Will was executed in suspicious circumstances and therefore
the learned Trial Court rightly rejected the same Will. It is
submitted   that   despite   the   above   glaring   suspicious
circumstances, the First Appellate Court held the Will genuine
and therefore the High Court has rightly interfered with the
judgment and decree passed by the First Appellate Court.
11.4 It   is   further   submitted   by   Mr.   Sharma,   learned
Advocate appearing on behalf of the original plaintiff that the
learned Trial Court  was  justified in holding the Will to  be
surrounded by suspicious circumstances due to ill­health of
the testator. It is submitted that the testator was admittedly
suffering from cancerous disease and T.B. and therefore, the
14
evidence of the attesting witnesses that he was in good state of
mind, was rightly ignored by the Trial Court.
11.5 Making the above submissions, it is prayed to dismiss
the present appeal.
12. Heard the learned advocates appearing on behalf of the
original plaintiff and defendants at length. We have considered
in detail the judgment and decree passed by the Trial Court,
Judgment and order passed by the First Appellate Court and
impugned judgment and order passed by the High Court.
13. At   the   outset,   it   is   required   to   be   noted   that   the
learned Trial Court held the Will dated 17.01.1980, which was
executed   in   favour   of   original   defendant   Nos.   2   to   6,
surrounded by suspicious circumstances and therefore did not
believe the said Will.
13.1. The suspicious circumstances which were considered
by the learned Trial Court are narrated/stated hereinabove.
On re­appreciation of evidence on record and after dealing with
each alleged suspicious circumstances, which were dealt with
by the learned Trial Court, the First Appellate Court by giving
cogent reasons held the Will genuine and consequently did not
15
agree with the findings recorded by the learned Trial Court.
However, in Second Appeal under Section 100 of the CPC, the
High Court, by impugned judgment and order has interfered
with the Judgment and Decree passed by the First Appellate
Court. While interfering with the judgment and order passed
by the first Appellate Court, it appears that while upsetting the
judgment and decree passed by the First Appellate Court, the
High   Court   has   again   appreciated   the   entire   evidence   on
record, which in exercise of powers under Section 100 CPC is
not permissible. While passing the impugned judgment and
order, it appears that High Court has not at all appreciated the
fact   that   the   High   Court   was   deciding   the   Second   Appeal
under  Section  100  of   the   CPC  and   not   first   appeal   under
Section 96 of the CPC. As per the law laid down by this Court
in  a catena  of  decisions,  the jurisdiction  of  High  Court to
entertain second appeal under Section 100 CPC after the 1976
Amendment, is confined only when the second appeal involves
a substantial question of law. The existence of ‘a substantial
question   of   law’   is   a  sine   qua   non  for   the   exercise   of   the
jurisdiction under Section 100 of the CPC. As observed and
held by this Court in the case of Kondiba Dagadu Kadam
16
(Supra), in a second appeal under Section 100 of the CPC, the
High Court cannot substitute its own opinion for that of the
First   Appellate   Court,   unless   it   finds   that   the   conclusions
drawn by the lower Court were erroneous being:
(i) Contrary to the mandatory provisions of the applicable
law;                             
OR
(ii) Contrary to the law as pronounced by the Apex Court;
OR
(iii)  Based on in­admissible evidence or no evidence.
It is further observed by this Court in the aforesaid decision that
if First Appellate Court has exercised its discretion in a  judicial
manner, its decision cannot be recorded as suffering from an
error   either   of   law   or   of   procedure   requiring   interference   in
second appeal. It is further observed that the Trial Court could
have   decided   differently   is   not   a   question   of   law   justifying
interference in second appeal.
14. When a substantial question of law can be said to have
arisen, has been dealt with and considered by this Court in the
case of Ishwar Dass Jain (Supra). In the aforesaid decision, this
Court has specifically observed and held :
17
 “Under Section 100 CPC, after the 1976 amendment,
it  is  essential  for  the  High   Court  to   formulate  a
substantial question of law and it is not permissible
to reverse the judgment of the first appellate court
without doing so. There are two situations in which
interference with findings of fact is permissible. The
first one is when material or relevant evidence is not
considered which, if considered, would have led to
an   opposite   conclusion.   The   second   situation   in
which   interference   with   findings   of   fact   is
permissible is where a finding has been arrived at
by   the   appellate   court   by   placing   reliance   on
inadmissible evidence which if it was omitted, an
opposite conclusion was possible. In either of the
above situations, a substantial question of law can
arise.”
15. Applying   the   law   laid   down   by   this   Court   in   the
aforesaid decisions to the facts of the case on hand, we are of the
opinion that the High Court has erred in re­appreciating the
evidence on record in the second appeal under Section 100 of the
CPC. The High Court has materially erred in interfering with the
findings recorded by the First Appellate Court, which were on reappreciation   of   evidence,   which   was   permissible   by   the   First
Appellate Court in exercise of powers under Section 96 of the
CPC. Cogent reasons, on appreciation of the evidence, were given
by the First Appellate Court. First Appellate Court dealt with, in
detail, the so­called suspicious circumstance which weighed with
the learned Trial Court and thereafter it came to the conclusion
18
that the Will, which as such was a registered Will, was genuine
and   do   not   suffer   from   any   suspicious   circumstances.   The
findings recorded by the First Appellate Court are reproduced
hereinabove. Therefore, while passing the impugned judgment
and order, the High Court has exceeded in its jurisdiction while
deciding the second appeal under Section 100 CPC.
15.1 As observed hereinabove and as held by this Court in a
catena   of   decisions   and   even   as   per   Section   100   CPC,   the
jurisdiction of the High Court to entertain the second appeal
under Section 100 CPC is confined only to such appeals which
involve   a   substantial   question   of   law.   On   going   through   the
substantial questions of law framed by the High Court, we are of
the opinion that the question of law framed by the High Court
while   deciding   the   second   appeal,   cannot   be   said   to   be
substantial questions of law at all. The substantial questions of
law framed by the High Court are as under :
“(i) Whether the Appellate Court can reverse
the   findings   recorded   by   the   learned   trial
court   without   adverting   to   the   specific
finding of the trial Court?
(ii)   Whether   the   judgment   passed   by   the
learned lower Appellate Court is perverse and
outcome of misreading of evidence?”
19
The aforesaid cannot be said to be substantial questions of law at
all.   In   the   circumstances,   the   impugned   judgment   and   order
passed by the High Court cannot be sustained and the same
deserves to be quashed and set aside. At this stage, decision of
this Court in the case of  Madamanchi Ramappa  v.  Muthaluru
Bojappa, AIR 1963 SC 1633, is required to be referred to.
In the aforesaid decision, this Court has observed and held as
under:
“Whenever this Court is satisfied that in dealing
with a second appeal, the High Court has, either
unwittingly   and   in   a   casual   manner,   or
deliberately   as   in   this   case,   contravened   the
limits prescribed by S.100, it becomes the duty
of this Court to intervene and give effect to the
said provisions. It  may be that in some cases,
the High Court dealing with the second appeal
is inclined to take the view that what it regards
to be justice or equity of the case has not been
served by the findings of fact recorded by Courts
of fact; but on such occasions it is necessary to
remember that what is administered in Courts
is justice according to law and considerations of
fair   play   and   equity   however   important   they
may   be,   must   yield   to   clear   and   express
provisions of the law. If in reaching its decisions
in second appeals, the High Court contravenes
the   express   provisions   of   S.100,   it   would
inevitably   introduce   in   such   decisions   an
element of disconcerting unpredictability which
20
is usually associated with gambling; and that is
a   reproach   which   judicial   process   must
constantly   and   scrupulously   endeavour   to
avoid.”
16. Therefore, we are of the opinion that this is a fit case to
interfere with the impugned judgment and order passed by the
High Court, as, as observed hereinabove, the High Court has
exceeded in its jurisdiction, while allowing the second appeal
under Section 100 of the CPC.
17. In view of the above and for the reasons stated above, we
allow this appeal, set aside the impugned Judgment and Order
passed   by   the   High   Court   dated   27.11.2007   passed   in   Civil
Regular   Second   Appeal   No.2191   of   1985   and   restore   the
Judgment   and   Order   passed   by   the   learned   District   Judge,
Sangrur   dated   06.06.1985     passed   in   Civil   Appeal   No.27   of
29.02.1983 and consequently dismiss the suit preferred by the
respondent herein–original plaintiff. No costs.
18. Before parting with the present judgment, we remind the
High Courts that the jurisdiction of the High Court, in an appeal
under Section 100 of the CPC, is strictly confined to the case
involving   substantial   question   of   law   and   while   deciding   the
21
second appeal under Section 100 of the CPC, it is not permissible
for the High Court to re­appreciate the evidence on record and
interfere with the findings recorded by the Courts below and/or
the First Appellate Court and if the First Appellate Court has
exercised its discretion in a judicial manner, its decision cannot
be   recorded   as   suffering   from   an   error   either   of   law   or   of
procedure   requiring   interference   in   Second   Appeal.   We   have
noticed and even as repeatedly observed by this Court and even
in the case of Narayanan Rajendran v. Lekshmy Sarojini,  (2009)
5 SCC 264, despite the catena of decisions of this Court and even
the mandate under Section 100 of the CPC, the High Courts
under Section 100 CPC are disturbing the concurrent findings of
facts and/or even the findings recorded by the First Appellate
Court, either without formulating the substantial question of law
or on framing erroneous substantial question of law.
Therefore,   we   are   constrained   to   observe   as   above   and
remind the High Courts the limitations under Section 100 of the
CPC and again hope that High Courts would keep in mind the
legal position before interfering in Second Appeal under Section
100 of the Code of Civil Procedure.
22
……………………………………J.
(L. NAGESWARA RAO)
……………………………………J.
(M. R SHAH)
New Delhi;
March 13, 2019.
23

Order 7 Rule 11 of the CPC. = Declaration of registered gift deed as void after 22 years of execution is barred by limitation and suit is liable to be rejected eventhough the plaintiff not asked for cancelaltion of deed to cover limitation =It is the case of the plaintiff that the gift deed was a showy deed of gift and therefore the same is not binding on him. However, it is required to be noted that for approximately 22 years, neither the plaintiff nor his brother (who died on 15.12.2002) claimed at any point of time that the gift deed was showy deed of gift. One of the executants of the gift deed – brother of the plaintiff during his lifetime never claimed that the gift deed was a showy deed of gift. It was the appellant hereinoriginal defendant who filed the suit in the year 2001 for partition and the said suit was filed against his brothers to which the plaintiff was joined as defendant No. 10. It appears that the summon of the suit filed by the defendant being T.S. (Partition) Suit No. 203 of 2001 was served upon the defendant No.10­ plaintiff herein in the year 2001 itself. Despite the same, he instituted the present suit in the year 2003. Even from the averments in the plaint, it appears that during these 22 years i.e. the period from 1981 till 2001/2003, the suit property was mortgaged by the appellant herein­original defendant and the mortgage deed was executed by the defendant. Therefore, considering the averments in the plaint and the bundle of facts stated in the plaint, we are of the opinion that by clever drafting 18 the plaintiff has tried to bring the suit within the period of limitation which, otherwise, is barred by law of limitation. Therefore, considering the decisions of this Court in the case of T. Arivandandam (supra) and others, as stated above, and as the suit is clearly barred by law of limitation, the plaint is required to be rejected in exercise of powers under Order 7 Rule 11 of the CPC. 7.1 At this stage, it is required to be noted that, as such, the plaintiff has never prayed for any declaration to set aside the gift deed. We are of the opinion that such a prayer is not asked cleverly. If such a prayer would have been asked, in that case, the suit can be said to be clearly barred by limitation considering Article 59 of the Limitation Act and, therefore, only a declaration is sought to get out of the provisions of the Limitation Act, more particularly, Article 59 of the Limitation Act. The aforesaid aspect has also not been considered by the High Court as well as the learned trial Court. Now, so far as the application on behalf of the original plaintiff and even the observations made by the learned trial Court as well as the High Court that the question with respect to the limitation is a mixed question of law and facts, which can be decided only after the parties lead the evidence is concerned, as observed and held by this Court in the cases of Sham Lal alias Kuldip (supra); N.V. Srinivas Murthy (supra) as well as in the case of Ram Prakash Gupta (supra), considering the averments in the plaint if it is found that the suit is clearly barred by law of limitation, the same can be rejected in exercise of powers under Order 7 Rule 11(d) of the CPC.

Hon'ble Mr. Justice Mukeshkumar Rasikbhai Shah 
1
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 2960  OF 2019
[Arising out of SLP (C) No. 20068 of 2013]
Raghwendra Sharan Singh .. Appellant
Versus
Ram Prasanna Singh (Dead) by LRs .. Respondent
J U D G M E N T
M. R. Shah, J.
1. Application for substitution is allowed in terms of the prayer
made.
1.1 Leave granted.
2. Feeling   aggrieved   and   dissatisfied   with   the   impugned
judgment and order dated 12.03.2013 passed in Civil Revision
No. 1829 of 2006 by the High Court of Judicature at Patna by
which the High Court has dismissed the said revision petition and
has confirmed the order passed by the learned Munsif, Danapur
dated 28.08.2006 passed in Title Suit No. 19 of 2003 by which
the learned trial Court rejected the application submitted by the
original defendant to reject the plaint in exercise of powers under
Order 7 Rule 11(d) of the Code of Civil Procedure (hereinafter
2
referred to as the ‘CPC’), the original defendant has preferred the
present appeal.
3. The facts leading to the present appeal in nutshell are as
under:
That the original plaintiff and his brother Sheo Prasanna Singh
jointly purchased the suit land in question in the year 1965.
That   the   original   plaintiff,   who   is   the   father   of   the   appellant
herein­original defendant, and his late brother Sheo Prasanna
Singh executed a registered deed of gift in favour of the appellant
herein   on   06.03.1981   gifting   the   suit   land   and   put   him   in
possession thereof.  That the appellant herein­original defendant
instituted one T.S. (Partition) Suit No. 203 of 2001 against his
brothers   and   others   for   partition   of   the   joint   Hindu   family
properties.   That the respondent herein­original plaintiff in the
present suit was also joined as defendant No. 10 in the same suit.
It appears that the summon along with a copy of the plaint of the
aforesaid   partition   suit   was   allegedly   served   on   the   plaintiffrespondent herein on 21.12.2001.     That Sheo Prasanna Singh
died   on   15.12.2002.     That   thereafter,   the   respondent   hereinoriginal   plaintiff   alone   filed   T.S.   No.   19   of   2003   against   the
appellant   herein­original   defendant   in   the   Court   of   Munsif,
3
Danapur for a declaration that the deed of gift dated 06.03.1981
executed in favour of the appellant herein is showy and sham
transaction and no title and possession with respect to the gifted
property   ever   passed   to   the   appellant­original   defendant   and
hence the same is not binding on him.  A prayer was also made
for confirming his possession over the suit property and in case
he   is   found   out   of   possession,   then   a   decree   for   recovery   of
possession be passed. 
3.1 That the appellant herein­original defendant after filing his
written statement, filed an application under Order 7 Rule 11 r/w
Order XIV, Rule 2 CPC for rejection of the plaint on the ground
that the suit is clearly barred by law of limitation, as the deed of
gift having been executed on 06.03.1981, the suit under Article
59 of the Limitation Act ought to have been filed within three
years of the deed of execution of the gift deed, whereas the same
has been filed after more than 22 years of the execution of the
deed.  It was also further averred that the suit is not maintainable
in view of Sections 91 and 92 of the Evidence Act as well as
Section 47 of the Registration Act. 
3.2 That the Munsif, Danapur rejected the said application vide
order dated 28.08.2006 on the ground that from the perusal of
4
records and other documents, for determining the question of
Limitation, oral evidence are required to be taken into account.
Therefore,   the   question   is   to   be   adjudicated   only   after   the
evidence are led by both the parties.
3.3 Feeling aggrieved and dissatisfied with the order passed by
the Munsif, Danapur rejecting the Order 7 Rule 11 application,
the appellant herein­original defendant filed a revision application
before the High Court.  By the impugned judgment and order, the
High   Court   has   dismissed   the   revision   application   and   has
confirmed the order passed by the Munsif, Danapur rejecting the
Order 7 Rule 11 application.   Hence, the present appeal at the
instance of the original defendant.
4. Learned   counsel   on   behalf   of   the   appellant­original
defendant   has   vehemently   submitted   that,   in   the   facts   and
circumstances of the case, both the High Court as well as the trial
Court have materially erred in rejecting the Order 7 Rule 11
application and have materially erred in not rejecting the plaint in
exercise of powers under Order 7 Rule 11(d) of the CPC. 
4.1 It is further submitted by the learned counsel appearing on
behalf of the appellant­original defendant that the registered gift
5
deed was executed by the original plaintiff in the year 1981.  At
no point of time, till the year 2003, the original plaintiff as well as
his brother Late Sheo Prasanna Singh challenged the registered
gift deed dated 06.03.1981.   It is submitted that therefore the
present suit filed by the plaintiff challenging the registered gift
deed was after a period of approximately 22 years from the date of
the execution of the registered gift deed and, therefore, the same
was   clearly   barred   by   law   of   limitation,   more   particularly,
considering Article 59 of the Limitation Act.
4.2 It is further submitted by the learned counsel appearing on
behalf of the appellant­original defendant that the High Court as
well as the trial Court ought to have appreciated the fact that by
mere clever drafting, the plaintiff cannot bring the suit within the
period of limitation, if otherwise the same is barred by law of
limitation.  It is submitted that, in the present case, as such, the
original plaintiff deliberately did not specifically pray to set aside
the registered gift deed dated 06.03.1981.   It is submitted that if
the plaintiff would have asked for such a relief, in that case, the
plaintiff   was   aware   that   the   suit   would   be   dismissed   at   the
threshold being barred by law of limitation.  It is submitted that,
6
therefore, deliberately the plaintiff specifically did not ask for the
relief of quashing and setting aside the registered gift deed.
4.3 Relying upon the decisions of this Court in the cases of T.
Arivandandam v. T.V. Satyapal (1977) 4 SCC 467; Ram Singh
v.   Gram   Panchayat   Mehal   Kalan  (1986)   4   SCC   364   and
Madanuri Sri Rama Chandra Murthy v. Syed Jalal (2017) 13
SCC 174, it is requested to allow the present appeal and quash
and set aside the impugned orders rejecting the Order 7 Rule 11
application submitted by the defendant. 
4.4 It is further submitted by the learned counsel appearing on
behalf of the appellant­original defendant that as held by this
Court in catena of decisions while considering the application
under Order 7 Rule 11 of the CPC, only the averments in the
plaint are required to be considered.
4.5 It is further submitted by the learned counsel appearing on
behalf of the appellant­original defendant that if clever drafting
has created the illusion of a cause of action, as observed by this
Court in a catena of decisions, the Court must nip it in the bud at
the first hearing by examining the party searchingly under Order
10 of the CPC.  It is further submitted that, therefore, as observed
7
by this Court in the case of T. Arivandandam (supra), an activist
judge is the answer to irresponsible law suits.   It is submitted
that, in the present case, if the bundle of facts narrated in the
plaint   and   the   averments   in   the   plaint,   as   a   whole,   are
considered, in that case, the suit is not only barred by law of
limitation, but it is a vexatious and meritless suit and, therefore,
the plaint is required to be rejected in exercise of powers under
Rule 7 Order 11 of the CPC.  In support of his submissions, the
learned   counsel   appearing   on   behalf   of   the   appellant­original
defendant   has   relied   upon   the   decisions   of   this   Court   in  T.
Arivandandam (supra); Church of Christ Charitable Trust &
Educational Charitable Society v. Ponniamman Educational
Trust  (2012) 8 SCC 706;  A.B.C.   Laminart   Pvt.   Ltd.   v.   A.P.
Agencies  (1989) 2 SCC 163; Bloom Dekor Limited v. Subhash
Himatlal  Desai  (1994) 6 SCC 322;  Sopan  Sukhdeo  Sable  v.
Assistant Charity Commissioner (2004) 3 SCC 137; Sham Lal
alias   Kuldip   v.   Sanjeev   Kumar  (2009)   12   SCC   454;  N.   V.
Srinivas  Murthy   v  Mariyamma  (dead)  by  proposed  LRs  AIR
2005 SC 2897 and Ram Prakash Gupta v. Rajiv Kumar Gupta
(2007) 10 SCC 59. Making the above submissions, it is prayed to
8
allow the present appeal and quash and set aside the impugned
order passed by the High Court as well as the trial Court rejecting
Order 7 Rule 11 application and consequently to allow the said
application and to reject the plaint in exercise of powers under
Order 7 Rule 11 of the CPC.
5. Learned counsel appearing on behalf of the original plaintiffrespondent has vehemently opposed the present appeal.
5.1 It is vehemently submitted by the learned counsel appearing
on behalf of the original plaintiff that the question of limitation is
a mixed question of law and facts and for which the evidence is
required to be led by the parties and therefore both, the High
Court as well as the learned trial Court, rightly refused to reject
the plaint at the threshold and in exercise of powers under Order
7 Rule 11 of the CPC. 
5.2 It is further submitted by the learned counsel appearing on
behalf   of   the   original   plaintiff   that,   while   considering   the
application under Order 7 Rule 11 of the CPC, the averments in
the plaint alone are required to be considered and not the defence
and/or   the   written   statement   filed   by   the   defendant.       It   is
submitted that, in the present case, it is specifically averred in
9
the plaint that the plaintiff came to know about the gift deed in
the year 2001, when the plaintiff instituted T.S. No. 203 of 2001
and asserted his right on the basis of the registered gift deed
dated 06.03.1981.   It is submitted that, as so averred in the
plaint, till 2001, the defendant did not assert his right on the
basis of the registered gift deed dated 06.03.1981 and, therefore,
as averred in the plaint, the plaintiff came to know about the
registered gift deed in the year 2001, and when the suit was filed
in the year 2003, the suit cannot be said to be barred by law of
limitation.   It is submitted that, in any case, the question with
respect to the limitation can be said to be a mixed question of law
and facts, as rightly observed by the learned trial Court as well as
the High Court, the evidence is required to be led by both the
parties and only thereafter, the issue with respect to limitation is
required to be considered.   It is submitted that, therefore, the
High Court has rightly refused to reject the plaint under Order 7
Rule 11 of the CPC.
5.3 Making the above submissions, it is prayed to dismiss the
present appeal.
10
6. Heard   the   learned   counsel   appearing   on   behalf   of   the
respective parties at length.     We have perused the impugned
judgment and order of the High Court as well as the order of the
trial Court, dismissing the application under Order 7 Rule 11 of
the CPC and refusing to reject the plaint in exercise of powers
under Order 7 Rule 11 of the CPC.   We have also considered the
averments in the plaint. 
6.1 At the outset, it is required to be noted that the plaintiff has
instituted the suit against the defendant for a declaration that the
defendant has acquired no title and possession on the basis of
the deed of gift dated 06.03.1981 and that the plaintiff has got
title and possession in the said property.  In the suit, the plaintiff
has prayed for the following reliefs:
“A. That on adjudication of the facts stated above, it be declared
that the defendant acquired no title and possession on the
basis of the said showy deed of gift dated 06.03.1981 and the
plaintiff has got title and possession in the said property.
B. That it be declared that the said showy Deed of Gift dated
06.03.1981 is not binding upon the plaintiff.
C. That the possession of the plaintiff be continued over the
suit­property and in case if he is found out of possession, a
11
decree for recovery of possession be passed in favour of the
plaintiff.
D. That the defendant be restrained by an order of ad­interim
injunction from transferring or encumbering or interfering
with the possession of the plaintiff over the suit land, during
the pendency of the suit.
E. That the cost of the suit be awarded to the plaintiff and
against the defendant.
F. Any other relief or reliefs which deems fit and proper, be
awarded to the plaintiff and against the defendant.”
Considering the averments in the plaint, it can be seen that, as
such, the plaintiff has specifically admitted that the plaintiff and
his brother executed the gift deed on 06.03.1981.  It is admitted
that the gift deed is a registered gift deed.   It also emerges from
the plaint that till 2003, neither the plaintiff nor his brother
(during his lifetime) challenged the gift deed dated 06.03.1981
nor,   at   any   point   of   time,   claimed   that   the   gift   deed   dated
06.03.1981 was a showy deed of gift.  In fact, it is the defendantappellant herein who instituted the suit in the year 2001 against
his brothers to which even the plaintiff was a party as defendant
No. 10 and that was a partition suit filed by the appellant herein­
12
original defendant.  It appears that the summon and the copy of
the plaint – T.S. (Partition) Suit No. 203 of 2001 – was served
upon   the   plaintiff   in   the   year   2001   itself.     Still,   the   plaintiff
averred in the plaint that it came to the knowledge of the plaintiff
with respect to the gift deed on 10.04.2003.   Thus, it is born out
from the averments in the plaint that, till 2003, the plaintiff never
disputed the gift deed and/or never claimed that the gift deed
dated 06.03.1981 was a showy deed of gift.  With the aforesaid
facts   and   circumstances,   the   application   submitted   by   the
appellant­original  defendant to  reject  the  plaint  in exercise  of
powers under Order 7 Rule 11 of the CPC is required to be
considered.
6.2 While considering the scope and ambit of the application
under Order 7 Rule 11 of the CPC, few decisions of this Court on
Order 7 Rule 11 of the CPC are required to be referred to and
considered.
6.3 In the case of T. Arivandandam (supra), while considering
the very same provision i.e. Order 7 Rule 11 of the CPC and the
decree of the trial Court in considering such application, this
Court in para 5 has observed and held as under:
13
“5. We   have   not   the   slightest   hesitation   in
condemning the petitioner for the gross abuse of the
process of the court repeatedly and unrepentently
resorted to. From the statement of the facts found in
the judgment of the High Court, it is perfectly plain
that the suit now pending before the First Munsif's
Court, Bangalore, is a flagrant misuse of the mercies
of the law in receiving plaints. The learned Munsif
must remember that if on a meaningful — not formal
— reading of the plaint it is manifestly vexatious, and
meritless, in the sense of not disclosing a clear right
to sue, he should exercise his power under Order 7,
Rule   11   CPC   taking   care   to   see   that   the   ground
mentioned therein is fulfilled. And, if clever drafting
has created the illusion of a cause of action, nip it in
the bud at the first hearing by examining the party
searchingly under Order 10, CPC. An activist Judge
is the answer to irresponsible law suits.....”
6.4 In the case of  Church   of   Christ   Charitable   Trust   and
Educational Charitable Society (supra), this Court in paras 13
has observed and held as under:
“13. While scrutinizing the plaint averments, it is
the bounden duty of the trial Court to ascertain the
materials for cause of action. The cause of action is a
bundle of facts which taken with the law applicable
to them gives the Plaintiff the right to relief against
the Defendant. Every fact which is necessary for the
Plaintiff to prove to enable him to get a decree should
be set out in clear terms. It is worthwhile to find out
the meaning of the words "cause of action". A cause
of   action   must   include   some   act   done   by   the
Defendant since in the absence of such an act no
cause of action can possibly accrue.”
14
6.5 In  A.B.C.   Laminart   Pvt.   Ltd.   v.   A.P.   Agencies,   Salem
(supra), this Court explained the meaning of “cause of action” as
follows:
“12. A cause of action means every fact, which if
traversed, it would be necessary for the plaintiff to
prove in order to support his right to a judgment of
the  court. In other words, it is  a bundle  of facts
which taken with the law applicable to them gives the
plaintiff   a   right   to   relief   against   the   defendant.   It
must include some act done by the defendant since
in the absence of such an act no cause of action can
possibly   accrue.   It   is   not   limited   to   the   actual
infringement of the right sued on but includes all the
material facts on which it is founded. It does not
comprise evidence necessary to prove such facts, but
every   fact   necessary   for   the   plaintiff   to   prove   to
enable him to obtain a decree. Everything which if
not   proved   would   give   the   defendant   a   right   to
immediate judgment must be part of the cause of
action. But it has no relation whatever to the defence
which may be set up by the defendant nor does it
depend upon the character of the relief prayed for by
the plaintiff.”
6.6 In the case of  Sopan Sukhdeo  Sable  (supra) in paras 11
and 12, this Court has observed as under:
“11. In I.T.C.   Ltd. v. Debts   Recovery   Appellate
Tribunal [(1998) 2 SCC 70] it was held that the basic
question   to   be   decided   while   dealing   with   an
application filed under Order 7 Rule 11 of the Code is
whether a real cause of action has been set out in the
plaint or something purely illusory has been stated
with a view to get out of Order 7 Rule 11 of the Code.
12. The trial court must remember that if on a
meaningful and not formal reading of the plaint it is
15
manifestly vexatious and meritless in the sense of not
disclosing a clear right to sue, it should exercise the
power under Order 7 Rule 11 of the Code taking care
to see that the ground mentioned therein is fulfilled.
If clever drafting has created the illusion of a cause of
action, it has to be nipped in the bud at the first
hearing by examining the party searchingly under
Order 10 of the Code. (See T. Arivandandam v. T.V.
Satyapal (supra).”
6.7 In   the   case   of  Madanuri   Sri   Rama   Chandra   Murthy
(supra), this Court has observed and held as under:
“7. The plaint can be rejected under Order 7 Rule
11 if conditions enumerated in the said provision are
fulfilled.   It   is   needless   to   observe   that   the   power
under Order 7 Rule 11 CPC can be exercised by the
Court at any stage of the suit. The relevant facts
which   need   to   be   looked   into   for   deciding   the
application are the averments of the plaint only. If on
an entire and meaningful reading of the plaint, it is
found   that   the   suit   is   manifestly   vexatious   and
meritless in the sense of not disclosing any right to
sue, the court should exercise power under Order 7
Rule 11 CPC. Since the power conferred on the Court
to terminate civil action at the threshold is drastic,
the conditions enumerated under Order 7 Rule 11
CPC to the exercise of power of rejection of plaint
have to be strictly adhered to. The averments of the
plaint have to be read as a whole to find out whether
the averments disclose a cause of action or whether
the suit is barred by any law. It is needless to observe
that the question as to whether the suit is barred by
any law, would always depend upon the facts and
circumstances of each case. The averments in the
written statement as well as the contentions of the
defendant   are   wholly   immaterial   while   considering
the prayer of the defendant for rejection of the plaint.
Even when the allegations made in the plaint are
16
taken to be correct as a whole on their face value, if
they show that the suit is barred by any law, or do
not   disclose   cause   of   action,   the   application   for
rejection of plaint can be entertained and the power
under   Order   7   Rule   11   CPC   can   be   exercised.   If
clever drafting of the plaint has created the illusion of
a cause of action, the court will nip it in the bud at
the earliest so that bogus litigation will end at the
earlier stage.”
6.8 In the case of Ram Singh  (supra), this Court has observed
and held that when the suit is barred by any law, the plaintiff
cannot be allowed to circumvent that provision by means of clever
drafting so as to avoid mention of those circumstances, by which
the suit is barred by law of limitation.
7. Applying the law laid down by this Court in the aforesaid
decisions on exercise of powers under Order 7 Rule 11 of the CPC
to the facts of the case in hand and the averments in the plaint,
we are of the opinion that both the Courts below have materially
erred in not rejecting the plaint in exercise of powers under Order
7 Rule 11 of the CPC.  It is required to be noted that it is not in
dispute that the gift deed was executed by the original plaintiff
himself along with his brother.  The deed of gift was a registered
gift deed.  The execution of the gift deed is not disputed by the
17
plaintiff.   It is the case of the plaintiff that the gift deed was a
showy deed of gift and therefore the same is not binding on him.
However, it is required to be noted that for approximately 22
years,   neither   the   plaintiff   nor   his   brother   (who   died   on
15.12.2002) claimed at any point of time that the gift deed was
showy deed of gift.   One of the executants of the gift deed –
brother of the plaintiff during his lifetime never claimed that the
gift deed was a showy deed of gift.  It was the appellant hereinoriginal defendant who filed the suit in the year 2001 for partition
and the said suit was filed against his brothers to which the
plaintiff was joined as defendant No. 10.   It appears that the
summon of the suit filed by the defendant being T.S. (Partition)
Suit No. 203 of 2001 was served upon the defendant No.10­
plaintiff herein in the year 2001 itself.   Despite the same, he
instituted the present suit in the year 2003.   Even from the
averments in the plaint, it appears that during these 22 years i.e.
the   period   from   1981   till   2001/2003,   the   suit   property   was
mortgaged  by   the  appellant   herein­original   defendant  and   the
mortgage   deed   was   executed   by   the   defendant.       Therefore,
considering the averments in the plaint and the bundle of facts
stated in the plaint, we are of the opinion that by clever drafting
18
the   plaintiff   has   tried   to   bring   the   suit   within   the   period   of
limitation   which,   otherwise,   is   barred   by   law   of   limitation.
Therefore, considering the decisions of this Court in the case of T.
Arivandandam (supra) and others, as stated above, and as the
suit is clearly barred by law of limitation, the plaint is required to
be rejected in exercise of powers under Order 7 Rule 11 of the
CPC. 
7.1 At this stage, it is required to be noted that, as such, the
plaintiff has never prayed for any declaration to set aside the gift
deed.   We are of the opinion that such a prayer is not asked
cleverly.  If such a prayer would have been asked, in that case,
the suit can be said to be clearly barred by limitation considering
Article 59 of the Limitation Act and, therefore, only a declaration
is sought to get out of the provisions of the Limitation Act, more
particularly, Article 59 of the Limitation Act.  The aforesaid aspect
has also not been considered by the High Court as well as the
learned trial Court.
8. Now,   so   far   as   the   application   on   behalf   of   the   original
plaintiff  and  even  the  observations  made  by  the  learned  trial
Court as well as the High Court that the question with respect to
19
the limitation is a mixed question of law and facts, which can be
decided only after the parties lead the evidence is concerned, as
observed and held by this Court in the cases of Sham Lal alias
Kuldip (supra); N.V. Srinivas Murthy (supra) as well as in the
case of Ram Prakash Gupta (supra), considering the averments
in the plaint if it is found that the suit is clearly barred by law of
limitation, the same can be rejected in exercise of powers under
Order 7 Rule 11(d) of the CPC.
9. In view of he above and for the reasons stated above, we are
of the opinion that both the High Court as well as the learned
trial Court have erred in not exercising the powers under Order 7
Rule 11 of the CPC and in not rejecting the plaint in exercise of
powers under Order 7 Rule 11 of the CPC.  For the reasons stated
above, the impugned judgment and order passed by the High
Court as well as the trial Court cannot be sustained and the same
deserve   to   be   quashed   and   set   aside.     Consequently,   the
impugned judgment and order passed by the High Court dated
12.03.2013 as well as the order passed by the Munsif, Danapur
rejecting the Order 7 Rule 11 application filed by the original
defendant are hereby set aside.   Consequently, the application
20
submitted by the appellant herein­original defendant to reject the
plaint under Order 7 Rule 11 of the CPC is hereby allowed and
the plaint, being Title Suit No. 19 of 2003 is hereby rejected.  The
present appeal is allowed accordingly in terms of the above.  No
costs.
   ........................................
J.
[L. NAGESWARA RAO]
........................................J.
[M. R. SHAH]
New Delhi,
March 13, 2019.

inadvertent mistake cannot be refused to be corrected when the mistake is apparent from the reading of the plaint.= Procedure should never be made a tool to deny justice or perpetuate injustice by any oppressive or punitive use. The Court held as under:- “17. Non-compliance with any procedural requirement relating to a pleading, memorandum of appeal or application or petition for relief should not entail automatic dismissal or rejection, unless the relevant statute or rule so mandates. Procedural defects and irregularities which are curable should not be allowed to defeat substantive rights or to cause injustice. Procedure, a handmaiden to justice, should never be made a tool to deny justice or perpetuate injustice, by any oppressive or punitive use. The well-recognised exceptions to this principle are: (i) where the statute prescribing the procedure, also prescribes specifically the consequence of noncompliance; (ii) where the procedural defect is not rectified, even after it is pointed out and due opportunity is given for rectifying it; (iii) where the non-compliance or violation is proved to be deliberate or mischievous; (iv) where the rectification of defect would affect the case on merits or will affect the jurisdiction of the court; (v) in case of memorandum of appeal, there is complete absence of authority and the appeal is presented without the knowledge, consent and authority of the appellant.” 5 (2006) 1 SCC 75 6 11. Thus, we find that it was an inadvertent mistake in the plaint which trial court should have allowed to be corrected so as to permit the Private Limited Company to sue as Plaintiff as the original Plaintiff has filed suit as Director of the said Private Limited Company. Therefore, the order declining to correct the memo of parties cannot be said to be justified in law. 12. Consequently, the orders passed by the High Court dated 20.08.2018 and by the trial court on 23.01.2018 are set-aside and the application filed by the Plaintiff to amend the plaint is allowed with no order as to costs.

Hon'ble Mr. Justice Hemant Gupta
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 2431 OF 2019
 (Arising out of S.L.P (C) No. 2792 of 2019)
Varun Pahwa ........Appellant
 Versus
Mrs. Renu Chaudhary ........Respondent
J U D G M E N T
Hemant Gupta, J.
Leave granted.
2. The Order dated 20.08.2018 passed by the High Court of Delhi is
subject matter of challenge in the present appeal. By the aforesaid
order, a petition against an order passed by the learned trial court on
23.01.2018 seeking permission to amend the plaint was dismissed.
1
3. The appellant as Director of Siddharth Garments Pvt. Ltd. filed a
suit for recovery of Rs. 25,00,000/- along with pendente lite and future
interest on or about 28.05.2016. The Plaintiff has claimed the said
amount advanced as loan of Rs. 25,00,000/- remitted to the defendant
through RTGS on 16.06.2013 on HDFC Bank, Delhi. It is also averred that
Plaintiff has given Special Power of Attorney to Shri Navneet Gupta and
that a copy of the Power of Attorney is enclosed.
4. The defendant raised one of the preliminary objections in the
written statement that suit has not been filed by the Plaintiff and even
the alleged authorised representative has not filed any document
showing that he has been authorised by the above-named Plaintiff. The
Special Power of Attorney is neither valid nor admissible.
5. It was on 29.11.2016, Navneet Gupta appeared in Court as power
of attorney of the Plaintiff to examine himself as PW1. It was at that
stage; an order was passed by the learned trial court to furnish address
of the Plaintiff and why the Plaintiff should be examined through an
attorney when the Plaintiff is a resident of Delhi. It is thereafter, the
appellant filed an application for amendment of the plaint on the ground
that the counsel had inadvertently made the title of the suit wrongly as
the loan was advanced through the Company, therefore, the suit was to
be in the name of the Company. Therefore, the Plaintiff sought to
substitute para 1 and para 2 of the plaint with the following paras which
read as under:-
2
“1. That the Plaintiff is a Private Limited
Company having its registered office at: I-VA
(property bearing No. XII), Jawahar Nagar, Delhi
2. That the present plaint is filed through the
authorised representative of the Plaintiff namely
Sh. Navneet Gupta, R/o. 322, Kohat Enclave, Pitam
Pura, Delhi who has been authorised vide board
resolution dated 12.05.2016 to sign, verify and
execute all documents, papers, complaints,
applications, plaint, written statement, Counter
claim, affidavits, replies revisions, etc. and to
institute, pursue and depose in all legal
proceedings and court cases on behalf of Siddharth
Garments Pvt. Ltd against Mrs. Renu Chaudhary
who was given the loan of Rs. 25 Lakhs.”
6. The trial court declined the amendment on the ground that the
application is an attempt to convert the suit filed by a private individual
into a suit filed by a Private Limited Company which is not permissible
as it completely changes the nature of the suit. It is the said order
which was not interfered with by the High Court.
7. We have heard learned counsel for the appellant as none had
appeared on behalf of the respondent.
8. The plaint is not properly drafted in as much as in the memo of
parties, the Plaintiff is described as Varun Pahwa through Director of
Siddharth Garments Pvt. Ltd. though it should have been Siddharth
Garments Pvt. Ltd. through its Director Varun Pahwa. Thus, it is a case of
mistake of the counsel, may be on account of lack of understanding as
to how a Private Limited Company is to sue in a suit for recovery of the
amount advanced.
3
9. The memo of parties is thus clearly inadvertent mistake on the
part of the counsel who drafted the plaint. Such inadvertent mistake
cannot be refused to be corrected when the mistake is apparent from
the reading of the plaint. The Rules of Procedure are handmaid of justice
and cannot defeat the substantive rights of the parties. It is well settled
that amendment in the pleadings cannot be refused merely
because of some mistake, negligence, inadvertence or even
infraction of the Rules of Procedure. The Court always gives leave to
amend the pleadings even if a party is negligent or careless as the
power to grant amendment of the pleadings is intended to serve the
ends of justice and is not governed by any such narrow or technical
limitations. In State of Maharashtra vs. Hindustan Construction
Company Limited
1
, this Court held as under:-
“17. Insofar as the Code of Civil Procedure, 1908 (for
short “CPC”) is concerned, Order 6 Rule 17 provides
for amendment of pleadings. It says that the court may
at any stage of the proceedings allow either party to
alter or amend his pleadings in such manner and on
such terms as may be just, and all such amendments
shall be made as may be necessary for the purpose of
determining the real questions in controversy between
the parties.
18. The matters relating to amendment of pleadings
have come up for consideration before the courts from
time to time. As far back as in 1884 in Clarapede &
Co. v. Commercial Union Assn.
2
- an appeal that came
up before the Court of Appeal, Brett M.R. stated:
“... The rule of conduct of the court in such
a case is that, however negligent or
careless may have been the first
omission, and, however late the
proposed amendment, the amendment
1 (2010) 4 SCC 518
2 (1883) 32 WR 262 (CA)
4
should be allowed if it can be made
without injustice to the other side. There is
no injustice if the other side can be
compensated by costs; but, if
the amendment will put them into such a
position that they must be injured, it ought
not to be made….”
19. In Charan Das v. Amir Khan
3
 the Privy Council
exposited the legal position that although power of a
Court to amend the plaint in a suit should not as a rule
be exercised where the effect is to take away from the
defendant a legal right which has accrued to him by
lapse of time, yet there are cases in which that
consideration is outweighed by the special
circumstances of the case.
*** *** ***
22. In Jai Jai Ram Manohar Lal
4
 this Court was
concerned with a matter wherein amendment in the
plaint was refused on the ground that the amendment
could not take effect retrospectively and on the date of
the amendment the action was barred by the law of
limitation. It was held: (SCC p.871, para 5)
“5. …. Rules of procedure are intended to
be a handmaid to the administration of
justice. A party cannot be refused just
relief merely because of some mistake,
negligence, inadvertence or even
infraction of the Rules of procedure. The
court always gives leave to amend
the pleading of a party, unless it is
satisfied that the party applying was acting
mala fide, or that by his blunder, he had
caused injury to his opponent which may
not be compensated for by an order of
costs. However negligent or careless may
have been the first omission, and, however
late the proposed amendment,
the amendment may be allowed if it can be
made without injustice to the other side.”
This Court further stated (Jai Jai Ram Manohar Lal case,
SCC p.873, para 7):
3 (1919-20) 47 IA 255
4 (1969) 1 SCC 869
5
“7. ...The power to grant amendment of
the pleadings is intended to serve the
ends of justice and is not governed by any
such narrow or technical limitations.”
10. In Uday Shankar Triyar v. Ram Kalewar Prasad Singh and
Another
5
, this Court held that procedural defects and irregularities
which are curable should not be allowed to defeat substantive rights or
to cause injustice. Procedure should never be made a tool to deny
justice or perpetuate injustice by any oppressive or punitive use. The
Court held as under:-
“17. Non-compliance with any procedural requirement
relating to a pleading, memorandum of appeal or
application or petition for relief should not entail
automatic dismissal or rejection, unless the relevant
statute or rule so mandates. Procedural defects and
irregularities which are curable should not be allowed to
defeat substantive rights or to cause injustice.
Procedure, a handmaiden to justice, should never be
made a tool to deny justice or perpetuate injustice, by
any oppressive or punitive use. The well-recognised
exceptions to this principle are:
(i) where the statute prescribing the procedure, also
prescribes specifically the consequence of noncompliance;
(ii) where the procedural defect is not rectified, even
after it is pointed out and due opportunity is given for
rectifying it;
(iii) where the non-compliance or violation is proved to
be deliberate or mischievous;
(iv) where the rectification of defect would affect the
case on merits or will affect the jurisdiction of the court;
(v) in case of memorandum of appeal, there is complete
absence of authority and the appeal is presented
without the knowledge, consent and authority of the
appellant.”
5 (2006) 1 SCC 75
6
11. Thus, we find that it was an inadvertent mistake in the plaint
which trial court should have allowed to be corrected so as to permit the
Private Limited Company to sue as Plaintiff as the original Plaintiff has
filed suit as Director of the said Private Limited Company. Therefore, the
order declining to correct the memo of parties cannot be said to be
justified in law.
12. Consequently, the orders passed by the High Court dated
20.08.2018 and by the trial court on 23.01.2018 are set-aside and the
application filed by the Plaintiff to amend the plaint is allowed with no
order as to costs.
The appeal is allowed.
 ……………………………………
………J.
 (Dr. D. Y. Chandrachud)
 ………………………………………
…….J.
 (Hemant Gupta)
New Delhi,
March 1, 2019
7

nomination of a Director = the appellants also sought a declaration that clause 3 (2) (iii) of the Scheme, 1970 be struck down as being ultra vires the Constitution. = Learned counsel for the appellants then submitted that once the employee is nominated to the Board of Directors­may be from different categories specified under Section 9, then no distinction should be made between them while prescribing the qualification and disqualification. 14 31) This submission has also no merit. A mere reading of Section 9(3) clause (a) to (i) would go to show that the Board of Directors consists of persons coming from different fields. There cannot, therefore, be a uniform qualification or/and disqualification for such persons. Indeed, the qualifications and disqualifications are bound to vary from category to category and would depend on the post, experience and the stream from where a person is being nominated as a Director. Moreover, the qualification and disqualification has to be seen prior to his/her becoming a Director and not after his/her appointment as a Director. In view of the foregoing discussion, we find no good ground to interfere with the reasoning and the conclusion arrived at by the High Court, which rightly dismissed the appellants’ writ petition, and upheld Clause 3(2)(iii) of the Scheme as being legal.

   
Hon'ble Mr. Justice Abhay Manohar Sapre

       REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL No.5570 OF 2014
Fed. of Bank of India Staff Unions
& Anr.              ….Appellant(s)
VERSUS
Union of India & Anr.            …Respondent(s)
J U D G M E N T
Abhay Manohar Sapre, J.
1) This   appeal   is   directed   against   the   final
judgment and order dated 08.04.2011 passed by
the High Court of Bombay  at Goa in  Writ Petition
(c)   No.618   of   2010   whereby   the   High   Court
dismissed the writ petition filed by the appellants
herein.
2) The appeal involves a short point as would be
clear from the facts stated infra.
1
3) The appellants herein are the writ petitioners
and the respondents herein are the respondents in
the writ petition filed in the High Court of Bombay
at Goa, out of which this appeal arises.
4) Appellant   No.1   is   an   Association   of   various
Staff Unions of the employees working in the Bank
of India ­ respondent No.2 herein. Appellant No.1 is
a   registered   Association   under   the   Trade   Unions
Act,   1926.     Appellant   No.2   is   an   employee   of
Respondent No.2 ­ Bank and at the relevant time
was   working   as   Deputy   General   Secretary   of
appellant No.1­ Association.
5) The   Banking   Companies   (Acquisition   and
Transfer   of   Undertakings)   Act,   1970/1980
(hereinafter   referred   to   as   “the   Act”)   deals   with
Banking   Companies   and   their   internal   affairs.
Section   9   of   the   Act   empowers   the   Central
Government to make scheme after consultation with
2
the   Reserve   Bank   of   India   for   carrying   out   the
provisions of the Act.
6) Section   9   (3)   of   the   Act   provides   for
composition of Board of Directors and also provides
as to who can be nominated as Directors in the
Board of Directors. Clauses (a) to (i) of sub­section
(3) of Section 9 of the Act sets out various categories
from   which   one   Director   from   each   of   such
categories is nominated in the Board of Directors.
Clause(e)   deals   with   a   category   of
workman/employee Director whereas clause(f) deals
with a category of officer/employee Director for their
nomination in the Board of Directors. 
7) In exercise of powers conferred under Section
9(1) of the Act, the Central Government has framed
a   Scheme   called­The   Nationalized   Banks
(Management   and   Miscellaneous   provisions)
Scheme, 1970.
8) Chapter II of the Scheme deals with Board of
Directors.   Clause 3 of the Scheme deals with the
3
constitution of the Board whereas Clause 3(2)(iii)
deals with disqualification of a workman/employee
for being nominated as a Director.
9) So   far   as   the   procedure   relating   to   the
nomination of a Director out of the officer/employee
category falling in clause(f) of Section 9(3) of the Act
is concerned, it is provided in the third schedule to
the Scheme.
10) So far as the case at hand is concerned, it
relates  to  the  nomination  of  a  Director  from  the
workman/employee category falling in clause (e) of
Section   9(3)   of   the   Act   and   also   relates   to   his
disqualification for being nominated as a Director in
that category.
11) On 28.05.2009, the Management of the Bank
(respondent   No.2)   called   upon   the   appellants   to
furnish   a   panel   of   three   workers/employees   for
being nominated as a Director in order of preference
in the category of “Workman Director” in the Board
of Directors.
4
12) The appellants, in compliance with the request
made by  respondent  No.2, sent  a panel  of three
names   of   the   workers/employees   in   order   of
preference to the Central Government by their letter
dated 08.06.2009.  These names were ­ Mr. Dinesh
Jha   “Lallan”,   Mr.   Ram   Gopal   Sharma   and   Mr.
Pranab Kumar Roy Chowdhary.
13) The Secretary, Government of India, by letter
dated 10.10.2009, however, informed the appellants
that since all the three workers/employees, whose
names   were   sent,   have   less   than   three   years   of
residual   service   before   their   superannuation,
therefore it is not possible to nominate any of the
workers/employees   as   Director   in   the   Board   of
Directors.   The   appellants   were   accordingly
requested to send a fresh panel of names to enable
the Central Government to nominate one, out of the
three   new   names,   as   Director   in   the   Board   of
Directors.
5
14) The   appellants   instead   of   sending   the   fresh
three   names   submitted   their   representation   on
21.10.2009 and requested the Central Government
to re­consider the matter afresh and nominate any
one out of the three names already sent by them
vide their letter dated 08.06.2009.  The parties then
went on exchanging the letters on this subject, but
the   Central   Government   did   not   accede   to   the
request   made   by   the   appellants   and   insisted   on
them   to   send   fresh   names   of   the
workers/employees.
15) It   is   with   these   background   facts,   the
appellants felt aggrieved and filed a writ petition in
the   High   Court   of   Bombay   at   Goa.   In   that   writ
petition,   the   appellants   (writ   petitioners)   sought
quashing of the communication of respondent No.1
dated 10.10.2009 by which respondent No.1 had
rejected the panel of three names sent by them vide
their letter dated 08.06.2009.  A writ of mandamus
was also prayed commending the respondents to
6
consider   the   nomination   penal   sent   by   the
appellants vide their letter dated 08.06.2009 and
nominate one worker/employee as Director out of
the   three   names   sent   by   them   in   the   Board   of
Directors.
16) In the alternative, the appellants  also sought a
declaration   that   clause   3   (2)   (iii)   of   the   Scheme,
1970   be   struck   down   as   being  ultra   vires  the
Constitution.
17) The respondents opposed the writ petition by
filing   their   counter   affidavit.     The   respondents
placed reliance on the provisions of the Act and the
Scheme framed thereunder and contended inter alia
that the challenge made in the writ petition has no
factual or/and legal basis.
18) By   the   impugned   order,   the   High   Court
dismissed the writ petition finding no merit therein,
which has given rise to filing of this appeal by way
of special leave by the unsuccessful writ petitioners
­ Union of workers/employees in this Court.
7
19) Heard Mr. Sidharth Bhatnagar, leaned counsel
for the appellants and Mr.Pranab Kumar Mullick &
Ms.   Bhakti   Pasrija,   learned   counsel   for   the
respondents.
20) Having   heard   the   learned   counsel   for   the
parties at length and on perusal of the record of the
case, we find no merit in this appeal.
21) At   the   outset,   we   find   that   so   far   as   the
challenge   to   the   impugned   communication   dated
10.10.2009   and   enforcement   of   the   appellants’
letter dated 08.06.2009, i.e. (Relief Nos.(a) and (b) in
the writ petition) is concerned, both the reliefs have
been rendered infructuous.
22) It is for the reason that the employees/workers
whose names were recommended by appellant No.1
in their letter dated 08.06.2009 have retired long
back. Not only that, on their retirement, many other
persons   were   nominated   as   Director   out   of   the
category   of   worker/employee   in   the   Board   of
8
Directors  of  the  Bank.     This  relief,  therefore,  no
longer survives for consideration.
23) Now   the   only   question,   which   survives   for
consideration in this appeal, is regarding the legality
of Clause 3(2)(iii) of the Scheme, 1970 ­ whether
Clause 3(2)(iii) of the Scheme is legal or ultra vires
the Constitution. The High Court, in the impugned
order,   has   held   that   the   Clause   3(2)(iii)   of   the
Scheme is legal and valid. 
24) The   challenge   to   the   Clause   3(2)(iii)   of   the
Scheme   is   essentially   based   on   one   argument.
According to the appellants, there does not appear
to be any rational or basis in providing two different
types   of   disqualifications­one   for
workers/employees   and   the   other   for   the
officers/employees while considering their cases for
nomination   as   Director   from   their   respective
categories.
25) In   other   words,   the   submission   is   that   the
disqualification provided in Clause 3(2)(iii)(b) of the
9
Scheme for the worker/employee category is only
confined   to   their   category.   No   such   similar
disqualification   is   made   applicable   to   the
officer/employee category.
26) This, according to the appellants, has created
discrimination   between   the   two   categories   of   the
Directors   without   any   reasonable   basis   and,
therefore,     Clause   3(2)(iii)   of   the   Scheme   and
especially clause (b) thereof violates the principle
underlined in Article 14 of the Constitution of India.
27) We find no merit in this submission for more
than one reason.
28) Section 9(3)(e) and (f) of the Act and Clauses
3(2)(i),(ii) and (iii) of the Scheme are relevant for the
disposal of this appeal which read as under:
“Section 9(3)(e) and (f) of the Act
9.  Power   of   Central   Government   to   make
scheme­(1)   The   Central   Government   may,
after   consultation   with   the   Reserve   Bank,
make   a   scheme   for   carrying   out   the
provisions of this Act.
(2) ……….
10
(3) Every   Board   of   Directors   of   a
corresponding   new   bank,   constituted   under
any scheme made under sub­section (1), shall
include­
(a)  ………
(b)  ………
(c)  ……….
(e)  one  director,   from   among   such   of   the
employees   of   the   corresponding   new
bank who are workmen under clause (s)
of  section  2  of  the  Industrial  Disputes
Act, 1947 (14 of 1947), to be nominated
by   the   Central   Government   in   such
manner   as   may   be   specified   in   a
scheme made under this section;
(f)  one   director,   from   among   the
employees   of   the   corresponding   new
bank   who   are   not   workmen   under
clause (s) of section 2 of the Industrial
Disputes  Act, 1947   (14  of  1947), to  be
nominated  by  the  Central  Government
after   consultation   with   the   Reserve
Bank;
Clause 3(2)(i),(ii) and (iii) of the Scheme
3. Constitution   of   the   Board­(1)   The
Central  Government   shall  by  notification   in
the Official Gazette, constitute the Board of a
Nationalised Bank.
(2) (i) The director referred to in clause (e)
of   sub­section   (3)   of   section   9   of   the   Act,
shall   be   nominated   by   the   Central
Government from out of a panel of three such
employees   furnished   to   it   by   the
representative   union,   within   a   date   to   be
specified  by  the  Central  Government,  which
date  shall  not  be  more  than  six  weeks   from
the   date   of   communication   made   by   the
Central   Government,   requiring   the
11
representative  union  to  furnish  the  panel  of
names:
Provided   that   where   the   Central
Government   is  of  the  opinion  that  owing  to
the   delay   which   is   likely   to   occur   in   the
verification and certification of any union or
federation   as   a   representative   union   it   is
necessary in the interest of the Nationalised
Bank so to do, it may nominate any employee
of the Nationalised Bannk, who is a workman,
to be a director of that Bank.
(ii) (a)Where   there   is   no   representative
union,   to   represent   the  workman   of   a
Nationalised Bank, or
(b) where such representative union being
in   existence   omits   or   fails   to   furnish
any panel of names within the specified
date, or
(c)  where  all  the  persons  specified   in  the
panel   furnished   by   the   representative
union   are   disqualified   whether   under
item   (iii)   of   this   sub­clause   or   under
clause   10,   the   Central   Government
may,   at   its   discretion   appoint   such
workman of the Nationalised Bank, as it
may think fit, to be  a director of  such
bank.
(iii)  A  workman  of  a  Nationalised  Bank  shall
be   disqualified   for   being   nominated   as   a
director unless­
(a) he   is   and   has   been,   serving   for   a
continuous   period   of   not   less   than
five   years   in   the   Nationalised   Bank,
and
(b) he   is   of   such   age   that   there   is   no
likelihood of  his attaining  the  age  of
superannuation   during   his   terms   of
office as director.”
12
29) It would be clear from a perusal of clauses (e)
and   (f)   of   Section   9(3)   of   the   Act   that   both   the
categories   of   employees   are   different   ­   one   is
worker/employee category as defined under Section
9(3)(e) and the other is officer/employee category as
defined under Section 9(3)(f) of the Act. Second, it is
for the legislature to decide as to what qualifications
and   disqualifications   should   be   prescribed   for
various   categories   of   the   employees   for   their
nomination on the post of Director.  Third, there lies
a distinction between the worker and the officer.
The former, i.e., worker is defined under Section 2(s)
of the Industrial Disputes Act, 1947 and is governed
by that Act whereas the latter, i.e., officer is not
governed   by   the   Industrial   Disputes   Act   but   is
governed   by   separate   service   rules.     Both   these
categories   of   employees,   therefore,   cannot   be
equated with each other and nor can be placed at
par   for   providing   equal   qualification   or/and
disqualification for their nomination as a Director in
13
the Board of Directors. Fourth, Article 14 of the
Constitution   applies  inter   se  two   equals   and   not
inter se unequals. The case at hand falls under the
latter category and, therefore, reliance placed on the
principle   enshrined   under   Article   14   of   the
Constitution by the appellants is wholly misplaced.
Fifth,   the   nominee   worker/employee   has   only   a
right under the Act to be appointed as Director from
the category of worker/employee in terms of Section
9 (3)(e) of the Act provided the concerned nominee
whose name is recommended by the Union fulfills
the qualifications laid down in Clause 3(2)(iii) of the
Scheme but not beyond it.
30) Learned   counsel   for   the   appellants   then
submitted that once the employee is nominated to
the   Board   of   Directors­may   be   from   different
categories   specified   under   Section   9,   then   no
distinction   should   be   made   between   them   while
prescribing the qualification and disqualification.
14
31) This submission has also no merit.   A mere
reading of Section 9(3) clause (a) to (i) would go to
show that the Board of Directors consists of persons
coming   from   different   fields.   There   cannot,
therefore,   be   a   uniform   qualification   or/and
disqualification   for   such   persons.     Indeed,   the
qualifications   and   disqualifications   are   bound   to
vary from category to category and would depend on
the post, experience and the stream from where a
person is being nominated as a Director.  Moreover,
the qualification and disqualification has to be seen
prior to his/her becoming a Director and not after
his/her appointment as a Director.
32) In view of the foregoing discussion, we find no
good ground to interfere with the reasoning and the
conclusion   arrived   at   by   the   High   Court,   which
rightly dismissed the appellants’ writ petition, and
upheld Clause 3(2)(iii) of the Scheme as being legal.
15
33) The appeal is thus found to be devoid of any
merit.  It fails and is accordingly dismissed.
   
               
    ………...................................J.
     [ABHAY MANOHAR SAPRE]
                                 
   …...……..................................J.
             [INDU MALHOTRA]
New Delhi;
March 01, 2019
16

application for enrolment as an advocate = suppression that was alleged against the Appellant at the time of seeking enrolment in the Bar Council of Himachal Pradesh pertains to his being in Government service in the State of Himachal Pradesh and his involvement in a criminal case. Subsequent acquittal cannot come to the rescue of the Appellant. Section 26 of the Advocates Act, 1961 confers power on the Bar Council of India to remove the name of a person who entered on the Roll of Advocates by misrepresentation. It is in exercise of this power that the enrollment of the Appellant was cancelled. The first order that was passed by the Bar Council cancelling his enrolment as an advocate was confirmed by this Court. The repeated attempts made by the Appellant later amount to an abuse of process. The Appellant would be better advised not to indulge in pursuing the matter pertaining to 5 his enrollment as Advocate

 

Hon'ble Mr. Justice L. Nageswara Rao 

Non -Reportable
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
 CIVIL APPEAL No .294 of2007
ANAND KUMAR SHARMA .... Appellant

Versus
BAR COUNCIL OF INDIA
THROUGH SECRETARY & ANOTHER ….Respondents
W I T H
CIVIL APPEAL No._2426-2427 of 2019
[ Arising out of S.L.P. (Civil)…6383-6384/2019
CC Nos. 10531 - 10532 of 2013]
ANAND KUMAR SHARMA .... Appellant

Versus
BAR COUNCIL OF RAJASTHAN ETC. ….Respondents
J U D G M E N T
L. NAGESWARA RAO, J.
Leave granted in S.L.P. (C)..CC Nos. 10531 - 10532 of
2013.
1. The Appellant was enrolled as an advocate in the Bar
Council of Himachal Pradesh in July, 1988. He applied for
transfer of his enrolment to the State of Rajasthan which
1
was permitted by the Bar Council of India on 27th May, 1989.
The Bar Council of Rajasthan received a complaint
that the Appellant’s enrolment in the State of Himachal
Pradesh was obtained by suppression of facts and relevant
material. The enrolment of the Appellant was cancelled on
6
th November, 1995 by the Bar Council of India. The
said order was affirmed by this Court as the Special Leave
Petition filed by the Appellant was dismissed on 5th August,
1996.
2. Thereafter, the Appellant applied for enrolment as an
advocate seeking exemption from training of one year in
view of his experience as an advocate earlier. He
approached the High Court of Rajasthan seeking a direction
to the Bar Council of Rajasthan to decide his application for
exemption from training. The said Writ Petition was
dismissed by a learned Single Judge by holding that the
Appellant was not entitled for enrolment. In the Appeal filed
against the said judgment of the learned Single Judge, a
Division Bench directed the Bar Council of Rajasthan to
consider the application filed by the Appellant without being
influenced by the observations made by the learned Single
Judge.
2
3. The Bar Council of Rajasthan dismissed the application
of the Appellant for enrolment on 16th January, 2000 and
referred the matter for confirmation of the Bar Council of
India. The Bar Council of India confirmed the
order passed by the Bar Council of Rajasthan on 16th
January, 2000.
4. The Appellant filed yet another application for
enrolment as an advocate before the Bar Council of
Rajasthan which was rejected on 29th June, 2003. The Bar
Council of India confirmed the order of 29th June, 2003 by its
resolution dated 3rd January, 2004.
5. The Appellant made another attempt for enrolment by
filing an application before the Bar Council of Rajasthan.
Initially, the said application was rejected on the ground that
the Appellant cannot be admitted as an advocate since he
has crossed the age of 45 years in view of Rule 1-A of the
Enrollment Rules, Bar Council of Rajasthan framed under
Section 28 (1) (d) read with Section 24 (1) (e) of the
Advocates Act, 1961. The said Rule was struck down by the
High Court of Rajasthan by judgment dated 19th August,
2008. Taking into account the earlier order dated 16th
January, 2000 by which the application for enrolment filed
3
by Appellant was rejected, the Bar Council of Rajasthan
refused to enroll the Appellant as an advocate by the order
dated 14th July, 2012. The order dated 14th July,
2012 of the Bar Council of Rajasthan was affirmed by the
Bar Council of India on 15th September, 2012.
6. C.A. 294 of 2007 is filed by the Appellant challenging
the order dated 29.06.2003 of the Bar Council of Rajasthan
and the consequential orders dated 02.01.2004 of the Bar
Council of India and the order dated 18.03.2004 of the Bar
Council of Rajasthan. The legality of the orders dated 14th
July, 2012 of the Bar Council of Rajasthan affirmed by the
Bar Council of India on 15th September,
2012 is subject matter of Special Leave Petitions (Civil)… CC
Nos. 10531-10532 of 2013.
7. The Appellant is a qualified medical doctor who was
appointed as a Medical Officer on contract basis by the
Government of Himachal Pradesh. In the affidavit filed in
Special Leave Petitions (Civil)..CC Nos. 10531-10532 of
2013, the Appellant stated that a FIR
registered against him at Police Station Dhambola on 15th
April, 1988. He was arrested and sent to judicial custody.
He further stated that he was absent from service without
obtaining leave for which reason his services were
4
terminated by the Director. The Appellant has also referred
to his conviction under Section 419 of the Indian Penal
Code, 1860 by the Judicial Magistrate on 7th January, 1988.
He has also filed the judgment of the Sessions Judge,
Dungarpur, Rajasthan by which his appeal against the
conviction under Section 419 IPC was allowed. The
suppression that was alleged against the Appellant at the
time of seeking enrolment in the Bar Council of Himachal
Pradesh pertains to his being in Government service in the
State of Himachal Pradesh and his involvement in a criminal
case. Subsequent acquittal cannot come to the rescue of
the Appellant. Section 26 of the Advocates Act, 1961
confers power on the Bar Council of India to remove the
name of a person who entered on the Roll of Advocates by
misrepresentation. It is in exercise of this power that the
enrollment of the Appellant was cancelled. The first
order that was passed by the Bar Council cancelling his
enrolment as an advocate was confirmed by this Court.
The repeated attempts made by the Appellant later amount
to an abuse of process. The Appellant would be better
advised not to indulge in pursuing the matter pertaining to
5
his enrollment as Advocate. The orders impugned in the
Appeals do not suffer from any infirmity and are upheld.
8. The Appeals are dismissed accordingly.
 ..................................J.
 [ L. NAGESWARA RAO ]
 ..................................J.
 [ M.R. SHAH]
New Delhi,
March 01, 2019.
6