Then the question is of TRUST. Therefore, in such a 24 situation, where the employer feels that an employee who at the initial stage itself has made a false statement and/or not disclosed the material facts and/or suppressed the material facts and therefore he cannot be continued in service because such an employee cannot be relied upon even in future, the employer cannot be forced to continue such an employee. The choice/option whether to continue or not to continue such an employee always must be given to the employer. At the cost of repetition, it is observed and as observed hereinabove in catena of decision such an employee cannot claim the appointment and/or continue to be in service as a matter of right.

 REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NOS. 5743-5744 OF 2021

 (Arising out of SLP(Civil) Nos.7386-7387/2020)

Rajasthan Rajya Vidyut Prasaran Nigam

Limited and another … Appellants

Versus

Anil Kanwariya … Respondent

J U D G M E N T

M.R. SHAH, J.

1. Leave granted.

2. Feeling aggrieved and dissatisfied with the impugned judgment

and order dated 05.09.2019 passed by the High Court of Judicature for

Rajasthan, Bench at Jaipur in D.B. Special Appeal Writ No. 560/2019, as

well as the order dated 05.12.2019 passed in D.B. Review Petition (Writ)

No. 250/2019, by which the Division Bench of the High Court has

dismissed the said appeal and has confirmed the judgment and order

passed by the learned Single Judge dated 23.01.2019 by which the

learned Single Judge allowed the said writ petition preferred by the

1

respondent herein and quashed and set aside the order of termination

terminating the services of the respondent – employee herein – original

writ petitioner on the ground of suppression of material facts of

conviction and penalty at the time of applying for the post in 2013 and

also submitting a false declaration at the time of documents verification

on 14.04.2015, the employer – Rajasthan Rajya Vidyut Prasaran Nigam

Limited and another have preferred the present appeal.

3. That the appellants herein invited applications for the post of

Technical Helper by issuing advertisement in the month of October,

2013. Pursuant to the said advertisement, respondent herein –

employee applied for the said post. The written test was held on

02.02.2014 and result of which was declared on 31.03.2015. The date

fixed for the documents’ verification was 14.04.2015. The respondent

herein having qualified for the said post was appointed as a Technical

Helper as probationer trainee for a period of two years on 06.05.2015

and was placed under Superintending Engineer, RVPN, Jodhpur. As per

condition No. 16 of the terms and conditions of the appointment order,

the appointment of the respondent was subject to production of a

character certification/verification report issued by the Superintendent of

Police of the concerned District where he belongs. The Superintendent

of Police, Sawai Madhopur vide police verification/antecedents report

dated 5.6.2015 informed the appellants that a Case bearing No. 13/2011

2

against the respondent-employee for the offences under Sections 143,

341, 323 IPC in which a chargesheet was filed against the respondentemployee on 17.01.2011 and the learned trial Court convicted the

respondent-employee vide judgment and order dated 5.8.2013,

convicting him for the offences under Sections 341 and 323 IPC,

however, given the benefit under the Probation of Offenders Act, 1958

(hereinafter referred to as “Act 1958”). While giving the benefit of Act

1958, the respondent-employee was ordered to be released on

probation for good conduct.

It is to be noted that even subsequently such conviction of the

respondent-employee came to be confirmed, however, the learned

Sessions Judge vide judgment dated 09.09.2015 granted the benefit of

Section 12 of the Act 1958 to the respondent-employee which provides

that a person shall not suffer disqualification attaching to the conviction.

3.1 Having found that the respondent-employee deliberately

suppressed the fact of conviction and penalty, not only at the time of

applying for the post, but also on 14.04.2015 whereby he submitted a

declaration during documents verification that neither criminal case is

pending against him nor he has suffered any conviction by any court of

law in any criminal case and finding concealment of facts of criminal

case, the appellants issued a show cause notice dated 31.08.2015 to

the respondent-employee and granted him an opportunity of being heard

3

on 15.03.2016 and having found that in view of suppression of material

fact of not disclosing his conviction by the competent court, respondentemployee shall not be continued in service and therefore vide order

dated 6.5.2016, the appellants terminated the services of the

respondent-employee.

3.2 Aggrieved by the order of termination, the respondent-employee

preferred Writ Petition No. 6969 of 2016 before the learned Single Judge

of the High Court. The learned Single Judge of the High Court solely

relying on the judgment of this Court in the case of Avtar Singh v. Union

of India, reported in (2016) 8 SCC 471, and also on order dated

9.9.2015 passed by the learned Sessions Judge in appeal granting

benefit of Section 12 of the Act 1958, allowed the writ petition and

quashed and set aside the order of termination and directed the

appellants to reinstate the respondent-employee with all consequential

benefits.

3.3 Feeling aggrieved and dissatisfied with the judgment and order

passed by the learned Single Judge, quashing and setting aside the

order of termination and directing the appellants to reinstate the

respondent-employee, the appellants-employer preferred appeal before

the Division Bench being D.B. Special Appeal Writ No. 560 of 2019. The

Division Bench also solely relying upon para 38.4.1 of the decision of

this Court in the case of Avtar Singh (supra) and observing that the

4

employee was held guilty in a dispute of trivial nature with his father,

uncle, brother and cousin and as it was a trivial nature dispute and such

a dispute which even if disclosed could have been ignored by the

employer because of the benefit of Section 12 of the Act 1958, the

Division Bench by the impugned judgment and order has dismissed the

said appeal and has confirmed the judgment and order passed by the

learned Single Judge, directing reinstatement of the employee with all

consequential benefits. The review petition preferred by the appellants

herein has also been dismissed.

4. Dr. Manish Singhvi, learned Senior Advocate has appeared on

behalf of the appellants and Mr. Navin Prakash, Advocate has appeared

on behalf of the respondent-employee.

4.1 Dr. Manish Singhvi, learned Senior Advocate appearing on behalf

of the appellants-employer has vehemently submitted that in the facts

and circumstances of the case, both, the learned Single Judge as well

as the Division Bench have materially erred in quashing and setting

aside the order of termination mainly relying upon the decision of this

Court in the case of Avtar Singh (supra) and considering the subsequent

order passed by the learned Sessions Court granting the benefit of

Section 12 of the Act 1958.

4.2 It is further submitted that, as such, in the facts and circumstances

of the case, the decision of this Court in the case of Avtar Singh (supra)

5

shall not be applicable at all. It is submitted that on the contrary it

supports the case of the appellants.

4.3 It is further submitted that in the present case at the time when the

respondent-employee applied for the advertised post, he was already

convicted for the offences under Sections 341 and 323 IPC by the

competent criminal court which he did not disclose. It is submitted that

even thereafter also when he submitted the declaration at the time of

documents verification on 14.04.2015, the respondent-employee though

already suffered a conviction for the offences under Sections 341 and

323 IPC and at that time, i.e., on 14.04.2015, only the benefit under

Sections 3 & 4 of the Act 1958 was given, he filed a false declaration. It

is submitted that the learned trial Court did not grant the benefit of

Section 12 of the Act 1958, which benefit of Section 12 of the Act 1958

was given only vide judgment and order dated 9.9.2015 by the learned

Sessions Judge. It is submitted that as the respondent-employee

suppressed the material fact of criminal case firstly in the year 2013

when he submitted the application and thereafter subsequently on

14.04.2015 when he submitted the declaration at the time of documents

verification and thereafter when the services of the respondent were

terminated after giving him an opportunity of being heard, the same

ought not to have interfered with by the learned Single Judge and

thereafter by the Division Bench.

6

4.4 It is further submitted that the High Court has materially erred in

even considering the subsequent decision of the learned Sessions Court

in appeal granting the benefit of Section 12 of the Act 1958. It is

submitted that the date on which the respondent applied for the said

post and even submitted the declaration, there was no order passed by

the learned Sessions Court granting the benefit of Section 12 of the Act

1958 and at that time the order passed by the learned trial Court

granting the benefit of Sections 3 & 4 of the Act 1958 was subsisting.

Therefore, the High Court ought not to have relied upon and/or taken

into consideration the subsequent decision of the learned Sessions

Judge dated 9.9.2015 granting the benefit of Section 12 of the Act 1958.

4.5 It is further submitted by the learned senior counsel appearing on

behalf of the appellants that the matter may be looked at from another

angle. It is submitted that when the employee initially suppressed the

material fact and obtained the appointment fraudulently, thereafter it is a

case of trustworthiness, reliability and credibility of such an employee. It

is submitted that if the employee would have disclosed at the relevant

time that he is facing the criminal trial and/or he has been convicted, in

that case from the very inception, the employer would not have

employed him. It is submitted that therefore the employer is justified in

not continuing such an employee who has suppressed the material fact

7

at the relevant time, on the premise that such a person cannot be trusted

thereafter and cannot be continued in service.

4.6 It is further submitted that even the observations made by the

Division Bench in the impugned judgment that the dispute for which the

employee was convicted was a trivial nature dispute and such a dispute

which even if disclosed could have been ignored by the employer

because of the benefit of Section 12 of the Act 1958 given to him is

absolutely irrelevant, it is submitted that such a reasoning is not

germane. It is submitted that such an observation is on the basis of

surmises and conjectures that what could have been done by the

employer.

4.7 Making the above submissions and relying upon the decisions of

this Court in the cases of Kendriya Vidyalaya Sangathan v. Ram Ratan

Yadav, (2003) 3 SCC 437; Secretary, Department of Home Secretary,

A.P. v. B. Chinnam Naidu, (2005) 2 SCC 746; Daya Shankar Yadav v.

Union of India, (2010) 14 SCC 103; Jainendra Singh v. State of U.P.,

(2012) 8 SCC 748; Devendra Kumar v. State of Uttaranchal, (2013) 9

SCC 363; and State of M.P. v. Abhijit Singh Pawar, (2018) 18 SCC 733,

it is prayed to allow the present appeals and quash and set aside the

impugned judgment and order passed by the Division Bench and

consequently quash and set aside the judgment and order passed by

8

the learned Single Judge and consequently dismiss the writ petition filed

by the respondent-employee before the High Court.

5. The present appeals are vehemently opposed by Shri Navin

Prakash, learned Advocate appearing for the respondent-employee. It is

submitted that in the facts and circumstances of the case and more

particularly the order passed by the learned Sessions Court granting the

benefit under Section 12 of the Act 1958 and considering the fact that

the dispute was of a trivial nature with the family members, the learned

Single Judge rightly set aside the order of termination which has been

rightly confirmed by the Division Bench.

5.1 It is further submitted that the order passed by the learned Single

Judge, confirmed by the Division Bench, is absolutely in consonance

with the decision of this Court in the case of Avtar Singh (supra), more

particularly para 38.4.1 of the said decision.

5.2 It is further submitted by the learned counsel that even otherwise

the omission or the lapse committed on the part of the respondent was

neither intentional nor deliberate, rather it was under bonafide belief that

in view of the benefit granted to the respondent under the provisions of

section 3 of the Act 1958 by the learned trial Court, the respondent has

not incurred disqualification. It is submitted therefore the said omission

or the lapse deserves to be condoned by taking a lenient view. Heavy

reliance is placed on the decisions of this Court in the cases of T.S.

9

Vasudavan Nair v. Director of Vikram Sarabhai Space Centre, 1988

Supp. SCC 795; Commissioner of Police v. Sandeep Kumar, (2011) 4

SCC 644; and Avtar Singh (supra).

5.3 It is further submitted that in the instant case, as has been held by

the learned Single Judge in judgment and order dated 23.01.2019, the

employer – appellants herein did not at all consider the case of the

respondent as regard to the extenuating circumstances and the benefit

granted to him under sections 3 & 12 of the Act 1958 by the learned trial

Court and the learned sessions Court.

5.4 Making the above submissions and relying upon the aforesaid

decisions, it is prayed to dismiss the present appeals.

6. We have heard the learned counsel for the respective parties at

length.

At the outset, it is required to be noted that the appellants herein –

employer terminated the services of the respondent on non-disclosure of

the pending criminal case against him at the time when he submitted the

application for appointment, submitted in the month of

October/November, 2013 and thereafter in the declaration dated

14.04.2015. As observed hereinabove, the respondent was

chargesheeted for the offences under Sections 143, 341 and 323 IPC

vide chargesheet dated 17.01.2011. The learned trial Court convicted

the respondent for the offences under Sections 341 & 323 IPC, vide

10

judgment and order dated 5.8.2013. However, granted the benefit under

Section 3 of the Act 1958 only. In the month of October, 2013, the

appellants issued an advertisement for the post of Technical Helper and

the last date for submission of the application was 14.11.2013. Pursuant

to the said advertisement, the respondent applied for the said post and

the written test was held on 02.02.2014 and the result of which was

declared on 31.03.2015. The respondent submitted declaration on

14.04.2015 declaring that neither any criminal case is pending against

him nor he has been convicted by any court of law. The date fixed for

documents verification was 14.04.2015 and along with the documents

verification he was required to file a declaration which he submitted

stating that neither any criminal case is pending against him nor he has

been convicted by any court of law. Therefore, on the date of submitting

an application and even at the time when declaration was filed on

14.04.2015, there was already an order of conviction against him. Even

at the relevant time, the benefit of Section 12 of the Act 1958 was not

granted to the respondent, which was given subsequently vide judgment

of the learned Sessions Court dated 09.09.2015.

6.1 At this stage, it is required to be noted that the show cause notice

dated 31.08.2015 was followed after the employer received the police

verification/antecedents report dated 5.6.2015 of the Superintendent of

Police, Sawai Madhopur disclosing that the respondent was already

11

convicted by the learned trial Court vide judgment and order dated

5.8.2013 and was granted the benefit of Section 3 of the Act 1958 only.

That thereafter it appears that having realised that in view of the

conviction imposed by the learned trial Court and granted the benefit of

Section 3 of the Act 1958 only, the same shall come in his way, belatedly

the respondent preferred an appeal before the learned Sessions Court

on 11.08.2015, challenging the judgment and order of conviction passed

by the learned trial Court dated 5.8.2013, i.e., after a period of two years.

That by judgment and order dated 9.9.2015, the learned Sessions Court

allowed the said appeal partly, however granted the benefit of Section 12

of the Act 1958, as prayed.

6.2 From the judgment and order passed by the learned Sessions

Court, it appears that only submission on behalf of the respondent was

with respect to granting the benefit of Section 12 of the Act 1958 and the

appeal came to be disposed of by the learned Sessions Court within a

period of one month from the date of filing of the appeal, though the

judgment and order of conviction by the learned trial Court was passed

in the year 2013. Therefore, it appears that only with a view to get out of

the disqualification of conviction, belatedly he preferred an appeal and

obtained the order of granting the benefit of Section 12 of the Act 1958.

Even otherwise, it is required to be noted that on getting the benefit of

Section 12 of the Act 1958 subsequently by that itself the respondent

12

cannot get away of the allegations of suppression of material fact and

filing a false declaration that neither any criminal case is pending against

him nor he has been convicted by any court of law, which was filed on

14.04.2015.

6.3 Thus, at the time when he submitted the application for

appointment in the month of October/November 2013, the respondent

already suffered a conviction by the competent court which not only he

did not disclose, but in fact, a false declaration was filed that neither any

criminal case is pending against him nor he has been convicted by any

court of law. That thereafter after receipt of the police

verification/antecedents report dated 5.6.2015 from the Superintendent

of Police, Sawai Madhopur and after giving a show cause notice and an

opportunity of being heard to the respondent, the employer terminated

the services of the respondent on the ground of non-disclosure

/suppression of material fact and filing a false declaration.

7. In light of the aforesaid facts, the orders passed by the learned

Division Bench as well as the learned Single Judge of the High Court

and the reliance placed upon the decision of this Court in the case of

Avtar Singh (supra), relied upon on behalf of the respondent-employee,

are required to be considered.

8. While considering the aforesaid issues, few decisions of this Court

on appointment obtained by fraud/misrepresentation and/or appointment

13

obtained by suppression of material facts are required to be referred to

and considered.

8.1 In the case of B. Chinnam Naidu (supra), this Court has observed

that the object of requiring information in the attestation form and the

declaration thereafter by the candidate is to ascertain and verify the

character and antecedents to judge his suitability to enter into or

continue in service. It is further observed that when a candidate

suppresses material information and/or gives false information, he

cannot claim any right for appointment or continuance in service.

8.2 In the case of Devendra Kumar (supra), while joining the training,

the employee was asked to submit an affidavit giving certain information,

particularly, whether he had ever been involved in any criminal case.

The employee submitted an affidavit stating that he had never been

involved in any criminal case. The employee completed his training

satisfactorily and it was at this time that the employer in pursuance of the

process of character verification came to know that the employee was in

fact involved in a criminal case. It was found that the final report in that

case had been submitted by the prosecution and accepted by the

Judicial Magistrate concerned. On the basis of the same, the employee

was discharged abruptly on the ground that since he was a temporary

government servant, he could be removed from service without holding

an enquiry. The said order was challenged by the employee by filing a

14

writ petition before a Single Judge of the High Court which was

dismissed. The Division Bench upheld that order, which was the subject

matter of appeal before this Court. Dismissing the appeal, this Court

observed and held that the question is not whether the employee is

suitable for the post. The pendency of a criminal case/proceeding is

different from suppressing the information of such pendency. The case

pending against a person might not involve moral turpitude but

suppressing of this information itself amounts to moral turpitude. It is

further observed that the information sought by the employer if not

disclosed as required, would definitely amount to suppression of material

information and in that eventuality, the service becomes liable to be

terminated, even if there had been no further trial or the person

concerned stood acquitted/discharged. It is further observed by this

Court in the said decision that where an applicant/employee gets an

order by misrepresenting the facts or by playing fraud upon the

competent authority, such an order cannot be sustained in the eye of the

law. “Fraud avoids all judicial acts, ecclesiastical or temporal”. It is

further observed and held that dishonesty should not be permitted to

bear the fruit and benefit those persons who have defrauded or

misrepresented themselves and in such circumstances the court should

not perpetuate the fraud by entertaining petitions on their behalf. The

15

relevant observations in the said decision are in paras 12, 13, 18 & 25,

which are as under:

12. So far as the issue of obtaining the appointment by misrepresentation

is concerned, it is no more res integra. The question is not whether the

applicant is suitable for the post. The pendency of a criminal

case/proceeding is different from suppressing the information of such

pendency. The case pending against a person might not involve moral

turpitude but suppressing of this information itself amounts to moral

turpitude. In fact, the information sought by the employer if not disclosed

as required, would definitely amount to suppression of material

information. In that eventuality, the service becomes liable to be

terminated, even if there had been no further trial or the person concerned

stood acquitted/discharged.

13. It is a settled proposition of law that where an applicant gets an office

by misrepresenting the facts or by playing fraud upon the competent

authority, such an order cannot be sustained in the eye of the law. “Fraud

avoids all judicial acts, ecclesiastical or temporal.” [Vide S.P.

Chengalvaraya Naidu v. Jagannath (1994) 1 SCC 1: AIR 1994 SC 853.] In

Lazarus Estates Ltd. V. Beasley [(1956) 1 QB 702: (1956) 2 WLR 502:

(1956) 1 ALL ER 341 (CA)] the Court observed without equivocation that:

(QB p. 712)

“… No judgment of a court, no order of a Minister can be allowed to stand

if it has been obtained by fraud, for fraud unravels everything.”

18. The ratio laid down by this Court in various cases is that dishonesty

should not be permitted to bear the fruit and benefit those persons who

have frauded or misrepresented themselves. In such circumstances the

court should not perpetuate the fraud by entertaining petitions on their

behalf. In Union of India v. M. Bhaskaran (1995) Supp (4) SCC 100 this

court, after placing reliance upon and approving its earlier judgment in

Vizianagaram Social Welfare Residential School Society v. M. Tripura

Sundari Devi (1990) 3 SCC 655, observed as under: (M. Bhaskaran case,

SCC p. 104, para 6)

If by committing fraud any employment is obtained, the same cannot be

permitted to be countenanced by a court of law as the employment

secured by fraud renders it voidable at the option of the employer.

25. More so, if the initial action is not in consonance with law, the

subsequent conduct of party cannot sanctify the same. Sublato

fundamento cadit opus – a foundation being removed, the superstructure

falls. A person having done wrong cannot take advantage of his own

wrong and plead bar of any law to frustrate the lawful trial by a competent

court. In such a case the legal maxim nullus commodum caprere potest de

16

injuria sua propria applies. The persons violating the law cannot be

permitted to urge that their offence cannot be subjected to inquiry, trial or

investigation. [Vide Union of India v. Major General Madan Lal Yadav

(1996) 4 SCC 127:1996 SCC (Cri) 592: AIR 1996 SC 1340 and Lily

Thomas v. Union of India (2000) 6 SCC 224: 2000 SCC (Cri) 1056.] Nor

can a person claim any right arising out of his own wrongdoing (jus ex

injuria non oritur).

8.3 In the case of Jainendra Singh (supra), this Court summarised the

principles to be considered in a case where the appointment is obtained

by misrepresentation and/or suppression of facts by

candidates/appointees as under:

“(i) Fraudulently obtained orders of appointment could be legitimately

treated as voidable at the option of the employer or could be recalled by

the employer and in such cases merely because the respondent employee

has continued in service for a number of years, on the basis of such

fraudulently obtained employment, cannot get any equity in his favour or

any estoppel against the employer.

(ii) Verification of the character and antecedents is one of the important

criteria to test whether the selected candidate is suitable to the post under

the State and on account of his antecedents the appointing authority if find

not desirable to appoint a person to a disciplined force can it be said to be

unwarranted.

(iii) When appointment was procured by a person on the basis of forged

documents, it would amount to misrepresentation and fraud on the

employer and, therefore, it would create no equity in his favour or any

estoppel against the employer while resorting to termination without

holding any inquiry.

(iv) A candidate having suppressed material information and/or giving false

information cannot claim right to continue in service and the employer,

having regard to the nature of employment as well as other aspects, has

the discretion to terminate his services.

(v) The purpose of calling for information regarding involvement in any

criminal case or detention or conviction is for the purpose of verification of

the character/antecedents at the time of recruitment and suppression of

such material information will have clear bearing on the character and

antecedents of the candidate in relation to his continuity in service.

17

(vi) The person who suppressed the material information and/or gives

false information cannot claim any right for appointment or continuity in

service.

(vii) The standard expected of a person intended to serve in uniformed

service is quite distinct from other services and, therefore, any deliberate

statement or omission regarding a vital information can be seriously

viewed and the ultimate decision of the appointing authority cannot be

faulted.

(viii) An employee on probation can be discharged from service or may be

refused employment on the ground of suppression of material information

or making false statement relating to his involvement in the criminal case,

conviction or detention, even if ultimately he was acquitted of the said

case, inasmuch as such a situation would make a person undesirable or

unsuitable for the post.

(ix) An employee in the uniformed service pre-supposes a higher level of

integrity as such a person is expected to uphold the law and on the

contrary such a service born in deceit and subterfuge cannot be tolerated.

(x) The authorities entrusted with the responsibility of appointing

Constables, are under duty to verify the antecedents of a candidate to find

out whether he is suitable for the post of a Constable and so long as the

candidate has not been acquitted in the criminal case, he cannot be held

to be suitable for appointment to the post of Constable.”

8.4 In the case of Daya Shankar Yadav (supra), this Court had an

occasion to consider the purpose of seeking the information with respect

to antecedents. It is observed and held that the purpose of seeking the

information with respect to antecedents is to ascertain the character and

antecedents of the candidate so as to assess his suitability for the post.

It is further observed that when an employee or a prospective employee

declares in a verification form, answers to the queries relating to

character and antecedents, the verification thereof can lead to any of the

following consequences:

18

“(a) If the declarant has answered the questions in the affirmative and

furnished the details of any criminal case (wherein he was convicted or

acquitted by giving benefit of doubt for want of evidence), the employer

may refuse to offer him employment (or if already employed on probation,

discharge him from service), if he is found to be unfit having regard to the

nature and gravity of the offence/crime in which he was involved.

(b) On the other hand, if the employer finds that the criminal case

disclosed by the declarant related to offences which were technical, or of a

nature that would not affect the declarant’s fitness for employment, or

where the declarant had been honourably acquitted and exonerated, the

employer may ignore the fact that the declarant had been prosecuted in a

criminal case and proceed to appoint him or continue him in employment.

(c) Where the declarant has answered the questions in the negative and

on verification it is found that the answers were false, the employer may

refuse to employ the declarant (or discharge him, if already employed),

even if the declarant had been cleared of the charges or is acquitted. This

is because when there is suppression or non-disclosure of material

information bearing on his character, that itself becomes a reason for not

employing the declarant.

(d) Where the attestation form or verification form does not contain proper

or adequate queries requiring the declarant to disclose his involvement in

any criminal proceedings, or where the candidate was unaware of initiation

of criminal proceedings when he gave the declarations in the verification

roll/attestation form, then the candidate cannot be found fault with, for not

furnishing the relevant information. But if the employer by other means

(say police verification or complaints, etc.) learns about the involvement of

the declarant, the employer can have recourse to courses (a) or (b)

above.”

Thereafter, it is observed and held that an employee can be discharged

from service or a prospective employee may be refused employment on

the ground of ……..suppression of material information or making false

statement in reply to queries relating to prosecution or conviction for a

criminal offence (even if he was ultimately acquitted in the criminal

case).

19

8.5 In the case of Abhijit Singh Pawar (supra), when the employee

participated in the selection process, he tendered an affidavit disclosing

the pending criminal case against him. The affidavit was filed on

22.12.2012. According to the disclosure, a case registered in the year

2006 was pending on the date when the affidavit was tendered.

However, within four days of filing such an affidavit, a compromise was

entered into between the original complainant and the employee and an

application for compounding the offence was filed under Section 320

Cr.P.C. The employee came to be discharged in view of the deed of

compromise. That thereafter the employee was selected in the

examination and was called for medical examination. However, around

the same time, his character verification was also undertaken and after

due consideration of the character verification report, his candidature

was rejected. The employee filed a writ petition before the High Court

challenging rejection of his candidature. The learned single Judge of the

High Court of Madhya Pradesh allowed the said writ petition. The

judgment and order passed by the learned single Judge directing the

State to appoint the employee came to be confirmed by the Division

Bench which led to appeal before this Court. After considering catena of

decisions on the point including the decision of this Court in the case of

Avtar Singh (supra), this Court upheld the order of the State rejecting the

candidature of the employee by observing that as held in Avtar Singh

20

(supra), even in cases where a truthful disclosure about a concluded

case was made, the employer would still have a right to consider

antecedents of the candidate and could not be compelled to appoint

such candidate. After reproducing and/or re-considering para 38.5 of the

decision in the case of Avtar Singh (supra), in paragraph 13, this Court

observed and held as under:

13. In Avtar Singh (supra), though this Court was principally concerned

with the question as to non-disclosure or wrong disclosure of information,

it was observed in para 38.5 that even in cases where a truthful disclosure

about a concluded case was made, the employer would still have a right to

consider antecedents of the candidate and could not be compelled to

appoint such candidate.

In the said decision, this Court also considered the conduct on the part

of the employee in getting discharge on the basis of the compromise

which was obtained within a period of four days of filing the

affidavit/disclosure. In paragraph 14, it is observed and held as under:

14. In the present case, as on the date when the respondent had applied,

a criminal case was pending against him. Compromise was entered into

only after an affidavit disclosing such pendency was filed. On the issue of

compounding of offences and the effect of acquittal under Section

320(8) of CrPC, the law declared by this Court in Mehar Singh (2013) 7

SCC 685, specially in paras 34 and 35 completely concludes the issue.

Even after the disclosure is made by a candidate, the employer would be

well within his rights to consider the antecedents and the suitability of the

candidate. While so considering, the employer can certainly take into

account the job profile for which the selection is undertaken, the severity of

the charges levelled against the candidate and whether the acquittal in

question was an honourable acquittal or was merely on the ground of

benefit of doubt or as a result of composition.

21

9. Applying the law laid down by this Court in the aforesaid decisions

to the facts of the case on hand, the impugned order passed by the

Division Bench dismissing the appeal and confirming the order passed

by the learned single Judge quashing and setting aside the order of

termination terminating the services of the employee on the ground of

non-disclosure/suppression of material fact and filing a false declaration

and directing the appellants to reinstate the respondent-employee is

unsustainable.

10. Apart from the fact that at the time when the respondent applied in

the month of October/November, 2013 though he was already convicted

by the competent court and was given the benefit under Section 3 of the

Act 1958 only, he did not disclose his conviction, but even at the time

when he filed a declaration on 14.04.2015 he filed a false declaration

that neither any criminal case is pending against him nor he has been

convicted by any court of law and relying upon such a declaration the

appellants gave him appointment. Only on police verification/receipt of

the antecedent’s report from the Superintendent of Police, Sawai

Madhopur, the appellants came to know about the conviction of the

respondent. Therefore, the appellants were absolutely justified in

terminating the services of the respondent.

11. Even the conduct on the part of the respondent to obtain the order

subsequently from the learned Sessions Court in an appeal and getting

22

the benefit of Section 12 of the Act 1958 deserves consideration. As

observed hereinabove, the judgment and order of conviction by the

learned trial Court was passed as far back as on 5.8.2013. For two

years, the respondent did not file any appeal before the learned

Sessions Court. After a period of approximately two years and after he

obtained the appointment on the basis of the false declaration that

neither any criminal case is pending against him nor he has been

convicted by any court of law and having realised that his conviction and

the benefit granted under Section 3 of the Act 1958 by the learned trial

Court only will come in his way, subsequently after a period of two years

he filed an appeal before the learned Sessions Court on 11.08.29015

and the appeal came to be disposed of within a period of one month,

i.e., on 9.9.2015 and the learned Sessions Court granted the benefit of

Section 12 of the Act 1958. From the judgment and order passed by the

learned Sessions Court, it appears that the respondent only prayed for

giving the benefit of Section 12 of the Act 1958 and nothing was

contended by him with regard to conviction and order of sentence.

Therefore, with a view to get out of the conviction and the benefit of

Section 3 of the Act 1958 only and having realised that his conviction

may come in his way, he preferred an appeal after a period of two years

and obtained the benefit of Section 12 of the Act 1958 which provides

that a person found guilty of an offence and dealt with under the

23

provisions of section 3 or section 4 shall not suffer disqualification, if any,

attaching to a conviction of an offence under such law.

Even otherwise, subsequently getting the benefit of Section 12 of

the Act 1958 shall not be helpful to the respondent inasmuch as the

question is about filing a false declaration on 14.04.2015 that neither any

criminal case is pending against him nor he has been convicted by any

court of law, which was much prior to the order passed by the learned

Sessions Court granting the benefit of Section 12 of the Act 1958. As

observed hereinabove, even in case of subsequent acquittal, the

employee once made a false declaration and/or suppressed the material

fact of pending criminal case shall not be entitled to an appointment as a

matter of right.

12. The issue/question may be considered from another angle, from

the employer’s point of view. The question is not about whether an

employee was involved in a dispute of trivial nature and whether he has

been subsequently acquitted or not. The question is about the credibility

and/or trustworthiness of such an employee who at the initial stage of

the employment, i.e., while submitting the declaration/verification and/or

applying for a post made false declaration and/or not disclosing and/or

suppressing material fact of having involved in a criminal case. If the

correct facts would have been disclosed, the employer might not have

appointed him. Then the question is of TRUST. Therefore, in such a

24

situation, where the employer feels that an employee who at the initial

stage itself has made a false statement and/or not disclosed the material

facts and/or suppressed the material facts and therefore he cannot be

continued in service because such an employee cannot be relied upon

even in future, the employer cannot be forced to continue such an

employee. The choice/option whether to continue or not to continue

such an employee always must be given to the employer. At the cost of

repetition, it is observed and as observed hereinabove in catena of

decision such an employee cannot claim the appointment and/or

continue to be in service as a matter of right.

13. In view of the afore-stated facts and circumstances of the case,

both, the learned Division Bench as well as the learned Single Judge

have clearly erred in quashing and setting aside the order of termination

terminating the services of the respondent on the ground of having

obtained an appointment by suppressing material fact and filing a false

declaration. The order of reinstatement is wholly untenable and

unjustified.

14. In view of the above and for the reasons stated above, the present

appeals succeed. The impugned judgment and order passed by the

Division Bench, as well as, the order passed by the learned Single

Judge quashing and setting aside the order of termination are hereby

quashed and set aside. Consequently, the writ petition filed by the

25

respondent-employee stands dismissed and the order of termination

stands restored. However, in the facts and circumstances of the case,

there shall be no order as to costs.

……………………………………J.

[M.R. SHAH]

NEW DELHI; ……………………………………J.

SEPTEMBER 17, 2021. [A.S. BOPANNA]

26

once a judicial order was passed by the High Court of Allahabad permitting the appellants to withdraw the 12 writ petition with liberty to file a writ petition before the appropriate court (the High Court of Uttarakhand) and thereafter when the appellants preferred the writ petition before the High Court of Uttarakhand, the learned Single Judge of the High Court of Uttarakhand is not at all justified in making comments upon the judicial order passed by the Coordinate Bench of the Allahabad High Court.

 REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.  5667 OF 2021

(Arising out of SLP (C) No. 2815 OF 2020)

UTTAR PRADESH JAL VIDYUT       .. APPELLANT 

(S)NIGAM LIMITED & ORS.      

VERSUS

BALBIR SINGH  .. RESPONDENT (S)

J U D G M E N T

M. R. Shah, J.

Leave granted.

1. Feeling aggrieved and dissatisfied with the impugned judgment

and   order   dated   26.11.2019   passed   by   the   High   Court   of

Uttarakhand at Nainital in Writ Petition No.1314 of 2014 (M/S)

by which the High Court has dismissed the said writ petition

preferred by the appellants herein without entering into the

merits of the case, the original writ petitioner has preferred the

present appeal. 

1

2. The   facts   leading   to   the   present   appeal   in   nutshell   are   as

under:­

That   the   respondent   herein   raised   an   industrial   dispute

challenging his termination dated 15.06.1996. The dispute was

referred   to   the   labour   court.   The   Presiding   Officer,   Labour

Court, Dehradun, passed an award dated 31.05.1997 holding

that the termination order is illegal. The Labour Court directed

the   reinstatement   of   the   respondent   with   full   back   wages.

Feeling aggrieved and dissatisfied with the judgment and award

passed by the Labour Court, Dehradun in case No.180 of 1996,

the   original   petitioners   ­   appellants   herein   preferred   Writ

Petition No.6898 of 1997 before the High Court of Allahabad.

That the High Court of Allahabad passed a conditional interim

order   staying   the   execution   of   award   and   on   condition   to

deposit the entire back wages before the Labour Court. The

appellant complied with the same and deposited the amount of

back wages. That during the pendency of the aforesaid writ

petition, the State of Uttarakhand came to be created and the

jurisdiction of the Labour Court, Dehradun came within the

2

jurisdiction of the State of Uttarakhand. 

2.1 In that view of the matter and in view of Section 35 of the Uttar

Pradesh   Reorganization   Act,   2000,   the   proceedings   pending

before   the   High   Court   at   Allahabad   were   required   to   be

transferred to the High Court having jurisdiction, in the present

case the High Court of Uttarakhand. However, writ petition

No.6898 of 1997 was not transferred by the Chief Justice of the

High Court of Allahabad for whatever reason. Therefore when

writ   petition   No.6898   of   1997   though   was   required   to   be

transferred   to   the  High   Court  of   Uttarakhand   as  what   was

challenged   before   the   High   Court   of   Allahabad   was   the

judgment and award passed by the Labour Court, Dehradun,

the jurisdiction of which subsequently vested with the High

Court   of   Uttarakhand,   came   up   for   hearing   before   the

Allahabad High Court on 24.04.2014 and the Allahabad High

Court was of the view that since the award has been passed by

the Labour Court, Dehradun and therefore the jurisdiction does

not   lie   with   the   High   Court   of   Allahabad   and   therefore

permitted   the   appellants   herein   ­   original   writ   petitioner   to

3

withdraw   the   writ   petition   with   liberty   to   file   fresh   petition

before the appropriate court i.e. High Court of Uttarakhand.

That thereafter the appellants herein preferred the present writ

petition   before   the   High   Court   of   Uttarakhand   which   was

numbered as writ petition No.1314 of 2014, challenging the

award   dated   31.05.1997   passed   by   the   Presiding   Officer,

Labour   Court,   Dehradun   in   case   No.180   of   1996.   That

thereafter the matter was listed before the learned Single Judge

of   the   High   Court   of   Uttarakhand   on   26.11.2019.     By   the

impugned order the High Court has dismissed the said writ

petition without entering into the merits of the case solely on

the ground that in view of the provisions contained under SubSection (2) of Section 35 of the Uttar Pradesh Reorganization

Act, 2000 (hereinafter referred to as ‘the Act’), the power to

transfer the case lie with the Chief Justice of the High Court of

Allahabad  and  therefore the Coordinate  Bench  of  Allahabad

High   Court   was   not   justified   in   granting   liberty   to   the

appellants herein – original writ petitioner to withdraw the writ

petition   with   liberty   to   file   fresh   writ   petition   before   the

4

appropriate   court.   The   Single   Judge   of   the   High   Court   of

Uttarakhand   observed   that   the   liberty   granted   by   the   High

Court of Allahabad permitting the appellants to withdraw the

writ petition pending before it with liberty to file fresh writ

petition before the appropriate court is just contrary to the

provisions contained under Sub­Section (2) of Section 35 of the

Act. 

2.2 Feeling   aggrieved   and   dissatisfied   with   the   impugned   order

passed by the High Court of Uttarakhand, the original writ

petitioners have preferred the present appeal.   

   

3. Having heard the learned counsel appearing for the respective

parties and considering the impugned order passed by the High

Court of Uttarakhand, we are of the opinion that the impugned

order passed by the High Court dismissing the writ petition

without entering into the merits of the case is unsustainable.

3.1 It cannot be disputed that as such on the creation of the State

of   Uttarakhand,   the   jurisdiction   over   the   Labour   Court,

Dehradun would only vest with the High Court of Uttarakhand.

It   also   cannot   be   disputed   that   therefore   as   such   the   writ

petition pending before the High Court of Allahabad challenging

5

the   judgment   and   award   passed   by   the   Presiding   Officer,

Labour Court, Dehradun was required to be transferred to the

High Court of Uttarakhand by the Chief Justice of the High

Court of Allahabad in exercise of power under Sub­Section (2)

of Section 35 of the ‘Act’. 

Section 35 of the Uttar Pradesh Reorganization Act reads as

under:­   

"35.   Transfer   of   proceedings   from   Allahabad   High   Court   to

Uttaranchal High Court:­ 

(1) Except as hereinafter provided, the High Court at Allahabad

shall, as from the appointed day, have no jurisdiction in respect

of the transferred territory. 

(2) Such proceedings pending in the High Court at Allahabad

immediately before the appointed day as are certified, whether

before or after that day, by the Chief Justice of that High Court,

having regard to the place of accrual of the cause of action and

other circumstances, to be proceedings which ought to be heard

and decided by the High Court of Uttarachal shall, as soon as

may be after such certification, be transferred to the High Court

of Uttaranchal.

(3) Notwithstanding anything contained in subsections (1) and

(2) of this  section or in section 28, but save as  hereinafter

provided, the High Court at Allahabad shall have, and the High

Court of Uttaranchal shall not have, jurisdiction to entertain,

hear   or   dispose   of   appeals,   applications   for   leave   to   the

Supreme Court, applications for review and other proceedings

where any such proceedings seek any relief in respect of any

order   passed   by   the   High   Court   at   Allahabad   before   the

appointed  day:  Provided  that   if   after  any   such  proceedings

have   been   entertained   by   the   High   Court   at   Allahabad,   it

appears to the Chief Justice of that High Court that they ought

to be transferred to the High Court of Uttaranchal, he shall

order that they shall be so transferred, and such proceedings

shall thereupon be transferred accordingly. 

(4) Any order made by the High Court at Allahabad. 

6

(a) before the appointed day, in any proceedings transferred to

the High Court of Uttaranchal by virtue of sub­section (2) or 

(b) in any proceedings with respect to which the High Court at

Allahabad retains jurisdiction by virtue of sub­section (3), shall

for all purposes have effect, not only as an order of the High

Court at Allahabad, but also as an order made by the High

Court of Uttaranchal."

As the writ petition before the High Court of Allahabad was

against the judgment and award passed by the Labour Court,

Dehradun, Sub­Section (3) of Section of the Act shall not be

applicable. Therefore, as such, the writ petition before the High

Court of Allahabad was required to be transferred to the High

Court of Uttarakhand. However for whatever reason the writ

petition   filed   by   the   appellants   before   the   High   Court   of

Allahabad being writ petition No.6898 (M/S) of 1997 was not

transferred. Therefore when the writ petition pending before the

High   Court   of   Allahabad   came   up   for   hearing   before   the

Allahabad High Court, the High Court permitted the appellants

to withdraw the said writ petition with liberty to file the same

before the appropriate court i.e. in the present case the High

Court of Uttarakhand. Accordingly, the appellants filed the writ

petition before the High Court of Uttarakhand. However, after 5

years   of   filing   of   writ   petition,   by   impugned   order   dated

7

26.11.2019   the   learned   Single   Judge   of   the   High   Court   of

Uttarakhand has dismissed the said writ petition by observing

that the Coordinate Bench of the Allahabad High Court was not

justified   in   permitting   the   appellants   to   withdraw   the   writ

petition with liberty to file fresh petition before the appropriate

court.   The   learned   Single   Judge   of   the   High   Court   of

Uttarakhand has observed that by permitting the appellants to

withdraw writ petition pending before it with liberty to file the

writ   petition   before   the   appropriate   court   –   High   Court   of

Uttarakhand,   the   Coordinate   Bench   of   the   High   Court   of

Allahabad has barged into to override the provisions contained

under   Sub­Section   (2)   of   Section   35   of   the   Act   by   adoring

himself with the powers of the Chief Justice of Allahabad High

Court as contemplated under Sub­Section (2) of Section 35 of

the Act for transfer of pending matters before the Allahabad

High Court.  It is observed by the learned Single Judge that the

liberty   granted   by   Allahabad   High   Court   permitting   the

appellants to file a fresh writ petition before the appropriate

court dated 24.04.2014, will not make the writ petition tenable

8

before the High Court of Uttarakhand and that too when a

challenge   is   given   to   the   impugned   award   before   the

Uttarakhand High Court after 19 years of its pendency. The

learned   Single   Judge   has   also   observed   that   even   the

institution   of   the   writ   petition   before   the   High   Court   of

Uttarakhand   challenging   the   award   passed   by   the   Labour

Court, Dehradun dated 31.05.1997 would be suffering from the

principles of laches.  

3.2 None of the aforesaid grounds are tenable at law. It cannot be

disputed that after the creation of the State of Uttarakhand the

jurisdiction over judgment and award passed by the Labour

Court,   Dehradun   would   vest   with   the   High   Court   of

Uttarakhand   and   not   with   the   High   Court   of   Allahabad.

Therefore, the writ petition pending before the High Court of

Allahabad challenging the judgment and award passed by the

Labour   Court,   Dehradun   was   as   such   required   to   be

transferred by the Chief Justice of the High Court of Allahabad

to the High Court of Uttarakhand in exercise of power under

Section 35 of the Act. For whatever reason the said writ petition

9

was not transferred. That does not mean that despite the above,

jurisdiction   of   the   High   Court   of   Allahabad   against   the

judgment and award passed by the Labour Court, Dehradun

would continue. Therefore subsequently when the writ petition

came up before the High Court of Allahabad and having realized

and observed that the jurisdiction against the judgment and

award passed by the Labour Court, Dehradun would vest with

the High Court of Uttarakhand, the High Court of Allahabad

rightly   permitted   the   appellants   to   withdraw   the   said   writ

petition pending before it with the liberty to the appellants to

file   fresh   writ   petition   before   the   appropriate   court.   In   the

present case, the appropriate court would be the High Court of

Uttarakhand only. Therefore as such no error was committed

by the High Court of Allahabad permitting the appellants to

withdraw the writ petition pending before it with the liberty to

file a fresh writ petition before the court having jurisdiction. The

aforesaid cannot be said to be adoring himself with the powers

of the Chief Justice of Allahabad High Court. The judicial order

passed   by   the   High   Court   of   Allahabad   permitting   the

10

appellants   to   withdraw   the   writ   petition   pending   before   the

Allahabad High Court with the liberty to file fresh writ petition

before the appropriate court cannot be said to be contrary to

the provisions contained under Sub­Section (2) of Section 35 of

the   Act   as   observed   by   the   learned   Single   Judge   in   the

impugned order. The order under Sub­Section (2) of Section 35

of the Act by the Chief Justice of the Allahabad High Court for

transfer of pending matters before the Allahabad High Court to

the High Court of Uttarakhand is an administrative order. If

that power was not exercised and subsequently it was found

that   proceedings   which   were   required   to   be   transferred   in

exercise of power Sub­Section (2) of Section 35 of the Act, has

not been transferred, it does not preclude the High Court of

Allahabad to pass a judicial order and that too permitting the

appellants to withdraw the writ petition pending before it and to

file it before an appropriate court. As such the High Court in

such a situation would be absolutely justified in permitting to

withdraw the writ petition pending before it with liberty to file it

11

before an appropriate court having jurisdiction, on the creation

of the new State – State of Uttarakhand.      

3.3 The another reason which is assigned by the High Court while

passing the impugned order is that if the writ petition is filed

before   it   –   the   High   Court   of   Uttarakhand   challenging   the

judgment   and  award   of  the   Labour   Court,   Dehradun  dated

31.05.1997, it would be suffering from the principles of laches.

The   aforesaid   reason   is   absolutely   unsustainable.   The   High

Court has not appreciated that the writ petition before the High

Court was filed immediately which remained pending before the

High Court of Allahabad for about 14 years and thereafter after

the appellants withdrew the writ petition from the Allahabad

High Court immediately the writ petition was filed before the

High Court of Uttarakhand. Therefore there was no delay at all

on the part of the appellants in challenging the award passed

by the Labour Court, Dehradun.  Therefore in such a situation

there was no question of any delay and laches. 

4. Even otherwise once a judicial order was passed by the High

Court of Allahabad permitting the appellants to withdraw the

12

writ   petition   with   liberty   to   file   a   writ   petition   before   the

appropriate   court   (the   High   Court   of   Uttarakhand)   and

thereafter when the appellants preferred the writ petition before

the High Court of Uttarakhand, the learned Single Judge of the

High Court of Uttarakhand is not at all justified in making

comments upon the judicial order passed by the Coordinate

Bench of the Allahabad High Court. The Single Judge of the

High Court of Uttarakhand was not acting as an appellate court

against   the   judicial   order   passed   by   the   High   Court   of

Allahabad   permitting   the   appellants   to   withdraw   the   writ

petition with liberty to file a writ petition before an appropriate

court. Judicial discipline/propriety demand to respect the order

passed   by   the   Coordinate   Bench   and   more   particularly   the

judicial   order   passed   by   the   Coordinate   Bench   of   the   High

Court, in the present case the Allahabad High Court which as

such   was   not   under   challenge   before   it.   Therefore   the

observations made by the High Court of Uttarakhand in the

impugned order on the judicial order passed by the learned

Single   Judge   of   Allahabad   High   Court   dated   24.04.2014

13

permitting the appellants to withdraw the writ petition pending

before   it   with   liberty   to   file   fresh   writ   petition   before   the

appropriate court (the High Court of Uttarakhand) is absolutely

unwarranted and is unsustainable. 

5. In   view   of  the   above   and   for  the   reasons   stated  above  the

present appeal succeeds.   The impugned judgment and order

dated 26.11.2019 passed by the High Court of Uttarakhand at

Nainital   in   Writ   Petition   No.1314   of   2014   (M/S)   is   hereby

quashed   and   set   aside.   The   writ   petition   is   directed   to   be

restored   on   the   file   of   the   High   Court   of   Uttarakhand.

Considering the fact that the dispute is very old, we request the

High Court to finally decide and dispose of the Writ Petition

No.1314 of 2014 (M/S) at the earliest and preferably within a

period of six months from the date of receipt of the present

order. The Registry is directed to communicate this order to the

High Court of Uttarakhand forthwith.   No costs.   

…………………………………J.

                   (M. R. SHAH)

New Delhi,    …………………………………J. 

September  13, 2021                             (ANIRUDDHA BOSE)

14

15

at the time when the deceased employee died on 25.03.2012 the marriage between the respondent and her husband was subsisting. Therefore, at the time when the deceased employee died she was a married daughter and therefore, also cannot be said to be ‘dependent’ as defined under Rule 2 of the Rules 1996. Therefore, even if it is assumed that the ‘divorced daughter’ may fall in the same class of ‘unmarried daughter’ and ‘widowed daughter’ in that case also the date on which the deceased employee died she – respondent herein was not the ‘divorced daughter’ as she obtained the divorce by mutual consent subsequent to the death of the deceased employee. Therefore, also the respondent shall not be eligible for the appointment on compassionate ground on the death of her mother and deceased employee.

 1

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICITON

CIVIL APPEAL NO. 5122 OF 2021

The Director of Treasuries 

in Karnataka & Anr.              .. Appellants

Versus

V. Somyashree    .. Respondent

J U D G M E N T

M. R. Shah, J.

1. Feeling   aggrieved   and   dissatisfied   with   the   impugned

Judgment and Order dated 17.12.2018 passed by the High

Court   of   Karnataka   at   Bengaluru   in   Writ   Petition

No.5609/2017 by which the High Court has allowed the said

Writ   Petition   preferred   by   the   respondent   herein   and   has

2

quashed and set aside the order dated 09.12.2015 passed by

the   Karnataka   State   Administrative  Tribunal,   Bengaluru   in

Application No.6396 of 2015 and consequently has directed

the   appellants   herein   to   consider   the   application   of   the

respondent   herein   –   original   writ   petitioner   (hereinafter

referred to as ‘original petitioner’) for grant of compassionate

appointment,   the   original   respondent   has   preferred   the

present appeal.

2. The facts leading to the present appeal in nutshell are as

under:

That one Smt. P. Bhagyamma, the mother of the original

writ   petitioner   was   employed   with   the   Government   of

Karnataka as Second Division Assistant at Mandya District

Treasury.   She   died   on   25.03.2012.     That   original   writ

petitioner, who at the relevant time was a married daughter at

the   time   when   the   deceased   (Smt.   P.   Bhagyamma)   died,

initiated a divorce proceedings for divorce by mutual consent

under   Section   13B   of   the   Hindu   Marriage   Act,   1955   on

12.09.2012.  By its judgment and decree dated 20.03.2013 a

3

decree   of   divorce   by   mutual   consent   was   passed   by   the

Learned Principal Senior Civil Judge, CJM, Mandya.  On the

very next day i.e. on 21.03.2013, the original writ petitioner

submitted an  application  to  appoint  her on   compassionate

ground   on   the   death   of   her   mother.     By   order   dated

03.05.2013, the application for appointment on compassionate

appointment came to be rejected on the ground that there is

no provision provided under Rule 3(2)(ii) of Karnataka Civil

Services   (Appointment   on   Compassionate   Grounds)   Rules

1996 (hereinafter referred to as ‘the Rules, 1996’) for divorced

daughter.     That   the   original   writ   petitioner   made   an

application   before   the   Karnataka   State   Administrative

Tribunal being application No.6396 of 2015 on 20.07.2015 i.e.

after   a   period   of   approximately   2   years   from   the   date   of

rejection of her application for appointment on compassionate

ground.  The Learned Tribunal dismissed the said application

by order dated 09.12.2015 on the ground that there is no

provision   for   appointment   on   compassionate   ground   for

divorced   daughter.     Thereafter,   the   original   writ   petitioner

4

approached   the   High   Court   against   the   order   dated

09.12.2015 passed by the Learned Administrative Tribunal,

Bengaluru.  

3. By impugned judgment and order dated 17.12.2018 the

High Court has allowed the Writ Petition No.5609 of 2017 and

has quashed and set aside the order dated 09.12.2015 passed

by   the   Karnataka   Administrative   Tribunal,   Bengaluru   in

application No.6393 of 2015 and has directed the appellants

herein to consider the application of the original writ petitioner

for   grant   of   compassionate   appointment   based   on   the

observations made in the impugned judgment and order.  By

the   impugned   judgment   and   order   the   High   Court   has

interpreted Rule 3 of the Rules, 1996 and has observed that a

divorced   daughter   would   fall   in   the   same   class   of   an

unmarried   or   widowed   daughter   and   therefore,   a   divorced

daughter has to  be considered on  par with  ‘unmarried’ or

‘widowed daughter’.

5

3.1 Feeling   aggrieved   and   dissatisfied   with   the   impugned

judgment and order passed by the High Court, the appellants

have preferred the present appeal.

4. Shri V.N. Raghupathy, Learned Advocate appearing on

behalf of the State has vehemently submitted that in the facts

and circumstances of the case, the High Court has materially

erred in quashing and setting aside the order passed by the

Learned Tribunal and has erred in directing the appellants to

consider   the   application   of   the   writ   petitioner   for   grant   of

compassionate appointment.

4.1 It is submitted that the directions issued by the High

Court directing the appellants to consider the application of

the   original   writ   petitioner   for   grant   of   compassionate

appointment is just contrary to Rule 3 of Rules, 1996.  It is

submitted   that   as   per   Rule   3   of   the   Rules   1996   only

“unmarried and widowed daughter” shall be entitled to and/or

eligible for the appointment on compassionate ground in the

case   of   the   deceased   female   Government   servant.     It   is

submitted that Rule 3 (2)(ii) of Rules, 1996 does not include

6

the   ‘divorced   daughter’   for   grant   of   compassionate

appointment in the case of the deceased female Government

servant.  

4.2 It is further submitted that even as per the definition of

‘dependent’ as defined in Rule 2 of the Rules, 1996, in case of

deceased   female   Government   servant   her   widower,   son,

(unmarried   daughter   or   widowed   daughter)   who   were

dependent upon her and were living with her can be said to be

‘dependent’.  It is submitted that the divorced daughter is not

included within the definition of ‘dependent’.

4.3 It is submitted that therefore the directions issued by the

High Court directing the appellants to consider the application

of the respondent herein for appointment on compassionate

ground as a divorced daughter is beyond Rule 2 and Rule 3 of

the Rules, 1996.

4.4 It   is   submitted   that   even   otherwise   it   has   not   been

established   and   proved   that   the   respondent   herein   was

‘dependent’ upon the deceased employee and was living with

her at the time of her death.

7

4.5 It   is   further   submitted   that   even   otherwise   the   High

Court has committed a grave error in not appreciating the fact

that   the   deceased   employee   died   on   25.03.2012   and   that

thereafter   immediately   the   respondent   initiated   a   divorced

proceedings under Section 13B of the Hindu Marriage Act,

1955 on  12.09.2012  and   obtained  a  decree  for  divorce by

mutual   consent   dated   20.03.2013   and   immediately   on   the

very next day submitted that application for appointment on

compassionate ground on 21.03.2013.  It is submitted that the

aforesaid facts would clearly demonstrate that only for the

purpose of getting the appointment on compassionate ground

she obtained the divorce by mutual consent.  It is submitted

that the High Court has not at all considered the aforesaid

aspects.

5.7 Reliance is placed on the decision of this Court in the

case of  N.C.  Santhosh  vs.  State  of  Karnataka  and  Ors.,

(2020)   7   SCC   617   in   support   of   the   submission   that   the

appointment   on   compassionate   ground   only   be   as   per   the

scheme and the policy.

8

5.8 Making the above submissions it is prayed to allow the

present appeal.

6. Present   appeal   is   vehemently   opposed   by   Shri   Mohd.

Irshad Hanif, Learned Advocate for the respondent – original

writ petitioner.

6.1 It is submitted that in the facts and circumstances of the

case the High Court has rightly interpreted Rule 3 and the

object and purpose by which Rule 3 was amended in the year

2000 by which the words ‘unmarried daughter’ and ‘widowed

daughter’   came   to   be   included   within   the   definition   of

‘dependent’ in Rule 3.  It is submitted that the High Court has

rightly   observed   that   the   intention   and   the   rule   making

authority in adding ‘unmarried’ or ‘widowed daughter’ to the

definition of dependent is very clear.  It is submitted that the

High Court has rightly observed that ‘divorced daughter’ would

fall in the same class of ‘unmarried’ or ‘widowed daughter’.  It

is submitted that while interpreting Rule 3 of the Rules, 1996

the High Court has adopted the purposive meaning.  

9

6.2 It is submitted that even subsequently and as per the

Karnataka   Civil   Services   Appointment   on   Compassionate

Grounds   (Amendment   Rules,   2021)   the   ‘divorced   daughter’

also   shall   be   eligible   for   appointment   on   compassionate

ground in the case of the deceased Government servant.  It is

submitted that therefore the interpretation made by the High

Court by the impugned judgment is absolutely in line with the

amended Rules, 2021 by which now even ‘divorced daughter’

also   shall   be   entitled   the   appointment   on   compassionate

ground in the case of the deceased servant.

6.3 Making the above submissions it is prayed to dismiss the

present appeal.

7. While considering the submissions made on behalf of the

rival parties a recent decision of this Court in the case of N.C.

Santhosh  (Supra)  on   the   appointment   on   compassionate

ground is required to be referred to.  After considering catena

of decisions of this Court on appointment on compassionate

grounds   it   is   observed   and   held   that   appointment   to   any

public post in the service of the State has to be made on the

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basis of principles in accordance with Articles 14 and 16 of the

Constitution of India and the compassionate appointment is

an exception to the general rule.   It is further observed that

the dependent of the deceased Government employee are made

eligible by virtue of the policy on compassionate appointment

and they must fulfill the norms laid down by the State’s policy.

It is further observed and held that the norms prevailing on

the date of the consideration of the application should be the

basis   for   consideration   of   claim   of   compassionate

appointment.  A dependent of a government employee, in the

absence   of   any   vested   right   accruing   on   the   death   of   the

government   employee,   can   only   demand   consideration   of

his/her application.  It is further observed he/she is, however,

entitled to seek consideration in accordance with the norms as

applicable on the day of death of the Government employee.

The law laid down by this Court in the aforesaid decision on

grant   of   appointment   on   compassionate   ground   can   be

summarized as under: 

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(i) that   the   compassionate   appointment   is   an

exception to the general rule;

(ii) that   no   aspirant   has   a   right   to   compassionate

appointment;

(iii) the appointment to any public post in the service of

the   State   has   to   be   made   on   the   basis   of   the

principle in accordance with Articles 14 and 16 of

the Constitution of India;

(iv) appointment   on   compassionate   ground   can   be

made only on fulfilling the norms laid down by the

State’s policy and/or satisfaction of the eligibility

criteria as per the policy;

(v) the   norms   prevailing   on   the   date   of   the

consideration of the application should be the basis

for   consideration   of   claim   for   compassionate

appointment.

8. Applying the law laid down by this Court in the aforesaid

decision to the facts of the case on hand, we are of the opinion

that as such the High Court has gone beyond Rule 2 and Rule

12

3 of the Rules, 1996 by directing the appellants to consider the

application   of   the   respondent   herein   for   appointment   on

compassionate ground as ‘divorced daughter’.   Rule 2 and

Rule 3 of the Rules, 1996 read as under:

“2.   Definitions:­   (1)   In   these   rules,

unless the context otherwise requires:­

(a) “Dependent   of   a   deceased   Government

servant” means­

(i) in   the   case   of   deceased   male   Government

servant, his widow, son, (unmarried daughter

and widowed daughter) who were dependent

upon him; and were living with him; and 

(ii) in the case of a deceased female Government

servant,   her   widower,   son,   (unmarried

daughter   and   widowed   daughter)   who   were

dependent upon her and were living with her;

(iii) ‘family’ in relation to a deceased Government

servant means his or her spouse and their

son,   (unmarried   daughter   and   widowed

daughter) who were living with him.

(2)     Words   and   expressions   used   but   not

defined shall have the same meaning assigned

to   them   in   the   Karnataka   Civil   Services

(General Recruitment) Rules, 1977.”

6.   The eligibility on the death of a female

employee  is   in   terms  of  Rule   3(2)(ii)  of  the

Karnataka   Civil   Services   (Appointment   on

Compassionate Grounds) Rules, 1996, which

reads as follows:

13

Rule 3(2)(ii):­

‘(ii)     in   the   case   of   the   deceased   female

Government servant;

(a) a son;

(b) an   unmarried   daughter,   if   the   son   is   not

eligible or for any valid reason he is not willing

to accept the appointment;

(c) the widower, if the son and daughter are not

eligible or for any valid reason they are not

willing to accept the appointment.

(d) a widowed daughter, if the widower, son and

unmarried daughter are not eligible or for any

valid reason they are not willing to accept the

appointment.

3. xxx

4 xxx”

8.1 From   the   aforesaid   rules   it   can   be   seen   that   only

‘unmarried   daughter’   and   ‘widowed   daughter’   who   were

dependent upon the deceased female Government servant at

the time of her death and living with her can be said to be

‘dependent’ of a deceased Government servant and that ‘an

unmarried daughter’ and ‘widowed daughter’ only can be said

to be eligible for appointment on compassionate ground in the

case of death of the female Government servant.  Rule 2 and

Rule   3   reproduced   hereinabove   do   not   include   ‘divorced

14

daughter’   as   eligible   for   appointment   on   compassionate

ground and even as ‘dependent’.  As observed hereinabove and

even as held by this Court in the case of  N.C.   Santhosh

(Supra),  the norms prevailing on the date of consideration of

the application should be the basis of consideration of claim

for compassionate appointment.  The word ‘divorced daughter’

has   been   added   subsequently   by   Amendment,   2021.

Therefore, at the relevant time when the deceased employee

died and when the original writ petitioner – respondent herein

made   an   application   for   appointment   on   compassionate

ground   the   ‘divorced   daughter’   were   not   eligible   for

appointment   on   compassionate   ground   and   the   ‘divorced

daughter’ was not within the definition of ‘dependent.’

8.2 Apart from the above one additional aspect needs to be

noticed, which the High Court has failed to consider.  It is to

be noted that the deceased employee died on 25.03.2012.  The

respondent herein – original writ petitioner at that time was a

married daughter.  Her marriage was subsisting on the date of

the death of the deceased i.e. on 25.03.2012.  Immediately on

15

the death of the deceased employee, the respondent initiated

the   divorced   proceedings   under   Section   13B   of   the   Hindu

Marriage Act, 1955 on 12.09.2012 for decree of divorce by

mutual consent.  By Judgment dated 20.03.2013, the Learned

Principal Civil Judge, Mandya granted the decree of divorce by

mutual consent.  That immediately on the very next day i.e. on

21.03.2013, the respondent herein on the basis of the decree

of   divorce   by   mutual   consent   applied   for   appointment   on

compassionate ground.  The aforesaid chronology of dates and

events   would   suggest   that   only   for   the   purpose   of   getting

appointment on compassionate ground the decree of divorce

by   mutual   consent   has   been   obtained.     Otherwise,   as   a

married daughter she was not entitled to the appointment on

compassionate ground.   Therefore, looking to the aforesaid

facts and circumstances of the case, otherwise also the High

Court ought not to have directed the appellants to consider the

application   of   the   respondent   herein   for   appointment   on

compassionate ground as ‘divorced daughter’.   This is one

16

additional ground to reject the application of the respondent

for appointment on compassionate ground.

8.3 Even otherwise, it is required to be noted that at the time

when the deceased employee died on 25.03.2012 the marriage

between   the   respondent   and   her   husband   was   subsisting.

Therefore, at the time when the deceased employee died she

was a married daughter and therefore, also cannot be said to

be ‘dependent’ as defined under Rule 2 of the Rules 1996.

Therefore, even if it is assumed that the ‘divorced daughter’

may   fall   in   the   same   class   of   ‘unmarried   daughter’   and

‘widowed daughter’ in that case also the date on which the

deceased employee died she – respondent herein was not the

‘divorced daughter’ as she obtained  the divorce by mutual

consent subsequent to the death of the deceased employee.

Therefore, also the respondent shall not be eligible for the

appointment on compassionate ground on the death of her

mother and deceased employee.

9. In view of the above and for the reasons stated above, the

appeal succeeds.   The impugned common judgment and order

17

passed by the High Court in Writ Petition No.5609/2017 is

hereby quashed and set aside.   The Writ Petition before the

High Court is dismissed accordingly. However, there shall be

no order as to costs.

…………………………………J.

             (M. R. SHAH)

…………………………………J.

     (ANIRUDDHA BOSE)

New Delhi, 

September  13, 2021

Or.7 rule 11 CPC - the guiding principles for deciding an application under Order 7 Rule 11(d) can be summarized as follows: (i) To reject a plaint on the ground that the suit is barred by any law, only the averments in the plaint will have to be referred to; (ii) The defense made by the defendant in the suit must not be considered while deciding the merits of the application; (iii) To determine whether a suit is barred by res judicata, it is necessary that (i) the ‘previous suit’ is decided, (ii) the issues in the subsequent suit were directly and substantially in issue in the former suit; (iii) the former suit was between the same parties or parties through whom they claim, litigating under the same title; and (iv) that these issues were adjudicated and finally decided by a court competent to try the subsequent suit; and (iv) Since an adjudication of the plea of res judicata requires consideration of the pleadings, issues and decision in the ‘previous suit’, such a plea will be beyond the scope of Order 7 Rule 11 (d), where only the statements in the plaint will have to be perused.

Or.7 rule 11 CPC - the guiding principles for deciding an application under Order 7 Rule 11(d) can be summarized as follows:

(i) To reject a plaint on the ground that the suit is barred by any law, only the averments in the plaint will have to be referred to;

(ii) The defense made by the defendant in the suit must not be considered while deciding the merits of the application;

(iii) To determine whether a suit is barred by res judicata, it is necessary that 

(i) the ‘previous suit’ is decided, 

(ii) the issues in the subsequent suit were

directly and substantially in issue in the former suit; 

(iii) the former suit was between the same parties or parties through whom they claim, litigating

under the same title; and 

(iv) that these issues were adjudicated and finally decided by a court competent to try the subsequent suit; and

(iv) Since an adjudication of the plea of res judicata requires consideration of the pleadings, issues and decision in the ‘previous suit’, such a plea will be beyond the scope of Order 7 Rule 11 (d), where only the statements in the plaint will have to be perused.

1

Reportable

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

Civil Appeal No 4665 2021

Arising out of SLP (C) No.3899 of 2021

Srihari Hanumandas Totala ...Appellant

Versus

Hemant Vithal Kamat & Ors ...Respondents

J U D G M E N T

Dr Justice Dhananjaya Y Chandrachud

1 Leave granted.

2 This appeal arises from a judgment dated 18 January 2021 of a Single Judge

at the Dharwad Bench of the High Court of Karnataka. The revisional jurisdiction of

the High Court under Section 115 of the Code of Civil Procedure 1908 (“CPC”) was

invoked for challenging an order dated 1 July 2019 of the IInd Additional Senior Civil 

2

Judge and Chief Judicial Magistrate, Belgaum on an application1 under Order 7 Rule

11 of the CPC.

3 Ms. Leela Vithal Kamat was the title holder of the suit property. On her death

on 16 May 1996, the property was mutated in the names of her legal heirs – the first

respondent and his brother. The first respondent and his brother took a loan from

the Karnataka State Finance Corporation (“KSFC”) and mortgaged the suit property

as security for repayment of the loan. Since the loan was not repaid, KSFC

auctioned the property. The third respondent, who is the predecessor-in-interest of

the appellant, furnished the highest bid of Rs. 15,00,000. A sale deed of the suit

property was executed in favour of the third respondent on 8 August 2006. Despite

the execution of the sale deed, the first respondent and his brother failed to

handover the possession of the suit property and as a consequence a suit for

possession was filed by the third respondent on 13 March 2007. On 20 December

2007, the first respondent, who was impleaded as the second defendant to the suit

filed his written statement raising inter alia the following defences:

(i) KSFC had no authority to put the suit property on sale;

(ii) The second defendant (first respondent herein) had not taken any loan from

KSFC nor had any transaction with it. He had not executed any documents

offering the suit property as security; and

(iii) The second defendant had no concern with the borrower.

 1 IA No. VII in OS 138/2008. 

3

Issues were framed in the suit, among them being the following:

“4.Whether defendant No.2 KSFC had no authority to put the

suit property for sale?”

4 On 12 November 2008, the first respondent instituted a suit being OS No.

138/2008 challenging the sale deed dated 8 August 2006 executed by KSFC in

favour of the third respondent primarily on the ground that KSFC had no authority to

put the suit property for sale. He sought a partition of the suit property and

possession of his share. The first respondent made the following averments in the

plaint:

(i) The suit property was owned by the mother of the first respondent. After her

death, the suit property was inherited by the first respondent and his brother

and the first respondent has been in possession of this property from 1998 till

the filing of the suit;

(ii) The brother of the first respondent mortgaged the suit property with KFSC

without his consent and KFSC without investigating the title of the suit

property and verifying the underlying title documents, accepted the suit

property as security;

(iii) In 2004, the daughters of the first respondent’s brother had filed a suit for

partition and separate possession of the said suit property, where the first

respondent was a party. There was no mention made of a loan being

sanctioned by KFSC against the suit property; 

4

(iv) The first respondent did not consent to the mortgage of the suit property to

KFSC and executed no documents for this purpose; and

(v) The first respondent received knowledge of the sale deed executed by KFSC

in favour of the third respondent only when he appeared in the suit filed by the

third respondent-that is OS No. 103/2007. There is a possibility that the first

respondent could suffer a decree for possession in OS No. 103/2007. Thus,

the first respondent filed this suit for partition and possession to challenge the

validity of the sale deed and to claim his share in the suit property.

5 The following issues were framed by the Trial Court:

“1. Whether the description of suit property is correct

2. Whether plaintiff proves that he has purchased suit

property and he acquired valid title as pleaded

3. Whether plaintiff is entitled for possession of suit property

4. Whether defendant No.2 proves that K.S.F .C. had no

authority to put the suit property for sale

5. Whether defendant No. 2 proves that there is no cause of

action for the suit

6. Whether plaintiff is entitled for decree

7. What decree or order”

6 By a judgment dated 26 February 2009, the Trial Judge decreed the first suit

(OS No. 103/2007) that was instituted by the third respondent and directed the

defendants (first respondent and his brother) in the suit to hand over vacant and

peaceful possession of the suit property to the third respondent-plaintiff. The Trial

Court concluded that:

(i) The contention of the first respondent-defendant that KFSC did not have the

right to auction the suit property cannot be determined in the suit and must 

5

be challenged independently. The first respondent took no action to challenge

the auction or the sale deed executed between KFSC and the plaintiff-third

respondent till arguments were being heard by the Trial Court, though

evidence suggests that he had knowledge of the auction. The first respondent

acknowledged the receipt of the letter from KFSC. Moreover, KSFC was

impleaded as the fourth defendant in O.S No. 369/2004- the suit that was filed

by his brother’s daughters and it was averred in the plaint that the auction

notice by KSFC was null and void;

(ii) The defendant- first respondent had filed suit in OS No. 138/2008 for partition

and separate possession, where one of the reliefs claimed was that the sale

deed executed between the plaintiff-third respondent and KFSC was not

binding on the first respondent. Though an application was filed to club O.S

No. 103/2007 and O.S No. 138/2008, it was not allowed. Under these

circumstances, the validity of the sale deed cannot be determined in the

present suit, particularly when KFSC was not made a party to this suit. Thus,

the validity of the sale deed and the auction would have to be considered in

the other suit filed by the first respondent (OS No. 138/2008); and

(iii) On the date of the judgment of the court, the sale deed executed by the

plaintiff-third respondent and KFSC had not been set aside. Other than this

challenge, there was no other ground raised by the first respondent to

challenge the claim of possession of the plaintiff-third respondent. Based on

this, the sale deed is valid and title to the suit property is transferred to the 

6

third respondent – plaintiff by virtue of the sale deed executed by KSFC. The

third respondent had the right to take possession of the property.

7 The first respondent appealed against the judgment of the Trial Court before

the High Court2

. During the pendency of the appeal, the third respondent filed an

application under Section 10 of the CPC in OS No. 138/2008 for staying the suit

proceedings till the disposal of the first appeal from the judgment in OS No.

103/2007, on the ground that the issues involved in the second suit were directly

and substantially the same as the issues in the previous suit. The Trial Judge by an

order dated 3 November 2012 held that the issues involved in the previous suit for

possession and the subsequent suit for declaration filed by the first respondent were

directly and substantially the same. Hence the application was allowed and the

proceedings in the subsequent suit instituted by the first respondent were stayed.

8 The decree in the previous suit (OS No. 103/2007) was upheld by the High

Court by a judgment dated 11 August 2017. The High Court dismissed the appeal

with the following observations:

(i) The plaintiff-third respondent states that both the defendants (that is first

respondent and his brother) had borrowed the money. However, KSFC filed a

memo in Miscellaneous Petition No. 114/2003 stating that the first respondent

(second defendant therein) was not a guarantor; and

(ii) The application filed for clubbing O.S No. 138/2008 and O.S No. 103/2007

ought to have been allowed by the Trial Court. Since the right of the first

 2 RFA No. 3037/2008.

7

respondent cannot be considered in the present proceedings arising out of

O.S No. 103/2007, the third respondent is entitled to the possession of the

suit property as he is a bona fide auction purchaser.

9 Pursuant to the judgment of the High Court, the appellant who has purchased

the suit property from the third respondent, filed an application3 for rejection of plaint

under Order 7 Rule 11 of the CPC on the grounds of (i) non-payment of court fee; (ii)

non-disclosure of cause of action; and (iii) the suit being barred by res judicata. It

was contended that the suit instituted by the first respondent was barred by res

judicata as the grounds relating to the validity of the sale deed and the issue of title

were raised in the previous suit O.S No. 103/2007. The appellant urged that after the

judgment of the Trial Court, which had been affirmed by the High Court, the rights of

the parties cannot be further adjudicated and re-litigated upon.

10 The application under Order 7 Rule 11 was dismissed by the Trial Judge on 1

July 2019 for the following reasons:

(i) With respect to non-payment of the court fee, according to Order 7 Rule

11(c), a plaint would only be rejected if the plaint is written on a paper that is

insufficiently stamped, and the court requires the plaintiff to supply the

requisite stamp paper within a time fixed and despite such an order, the

plaintiff fails to do so. In this case, no such order was passed by the court;

(ii) The cause of action had been specifically pleaded by the first respondent in

paragraph 5 of the plaint; and

 3 IA No. VII dated 25 March 2019 in OS No. 138/2008.

8

(iii) In order to reject a plaint for the suit being barred by any law under Order 7

Rule 11(d), the court needs to be guided by the averments in the plaint and

not the defence taken. The grounds taken by the appellant – that the issues

raised had been decided by the decree of the Trial Court in OS No. 103/2007

and affirmed on appeal by the High Court – were the defence of the appellant.

Thus, these cannot be taken into account while rejecting a plaint under Order

7 Rule 11 of the CPC. Moreover, the issue as to whether the suit is barred by

res judicata cannot be decided in an Order 7 Rule 11 application but has to be

decided in the suit.

11 The appellant filed a revision petition before the High Court assailing the 1

July 2019 order of the Trial Court. The High Court dismissed the appeal upholding

the reasoning of the Trial Court on all the three grounds raised in the Order 7 Rule

11 application. On the ground of res judicata, the High Court placed reliance on the

decision of this Court in Soumitra Kumar Sen v. Shyamal Kumar Sen4

, and

observed that the learned Trial Judge correctly came to the conclusion that the

application filed under Order 7 Rule 11(d) on the ground of res judicata could not be

decided merely by looking into the averments in the plaint. In the view of the High

Court, a plaint could be rejected under Order 7 Rule 11 only if it was not

maintainable on the basis of the averments contained in the plaint. In the present

application, such a determination would require the production of pleadings, the

issues framed and the judgment in the previous suit, to compare it with the present

 4 (2018) 5 SCC 644.

9

suit. This exercise, the High Court held, could not be undertaken merely by looking

into the plaint averments as held in Soumitra Kumar Sen (supra). Pursuant to the

dismissal of the revision petition by the High Court, the appellant has approached

this Court challenging the order of the High Court.

12 The rejection of the application under Order 7 Rule 11 of the CPC is the bone

of the contention in this appeal. O.S No. 138 of 2008, instituted by the first

respondent, is a suit for declaration, partition, possession, and for a consequential

relief of injunction. Besides the first respondent, who is the plaintiff in the said suit,

KSFC (the second respondent) is the first defendant. The third respondent is the

second defendant, the appellant is the fourth defendant. The third defendant to the

suit is Dr Arvind Vithal Kamat, the brother of the first respondent. The following

reliefs have been sought in the suit :

“a] Declaring that the Sale-Deed dated: 08-08-2006 executed by

Defendant No. 1 in favor of the Defendant No. 2 with respect to the

suit property is null and void to the extent of half share of the

Plaintiff and the same is not binding on the plaintiff.

b] Awarding half share in the suit property to the plaintiff and

putting him in actual possession of his half share by effecting

physical partition in the suit property.

c] Restraining the defendants from causing inference in the

Plaintiffs actual possession of the suit property that may be given

to him by issue of perpetual injunction.

d] Entire costs of the suit may be awarded to the Plaintiff.”

13 The essential averments in the plaint are that the property in question was

owned by the mother of the first respondent-plaintiff and the third defendant. It has

been averred that their father had predeceased their mother, and that after the death 

10

of their mother on 26 May 1996, the property was inherited by the first respondent

and his brother in equal shares. The third defendant is stated to have taken a loan

from KSFC for setting up a CT scan centre and to have mortgaged the suit property

as security for that purpose. According to the first respondent, his brother had no

right to create a mortgage in respect of the suit property which was held in joint

ownership by both the first respondent and his brother. It has been alleged that

KSFC sold the property in executing its charge on the property and entered into a

registered sale deed on 8 August 2006 in favour of the second defendant (third

respondent herein). According to the first respondent, he had neither consented to

the mortgage nor signed any document. The first respondent pleaded that he may

suffer a decree for possession in O.S. 103 of 2007 instituted by the auction

purchaser and was accordingly seeking to assert his claim and interest as a lawful

owner in respect of half share in the suit property by filing O.S No. 138 of 2008.

14 The submission which has been urged on behalf of the appellant is that the

issue concerning title of the suit property stands adjudicated in favour of the

predecessor-in-interest of the appellant in the earlier suit and the decree for

possession was upheld by the High Court. Hence, another suit agitating the same

issues and challenging the same sale deed is not maintainable and is barred by the

principles of res judicata. Moreover, it has been submitted that the first respondent

was arrayed as the second defendant to the earlier suit and had raised a specific

defence in regard to the validity of the sale conducted by the KSFC in favour of the

third respondent. The submission is that the original sale deed executed by KSFC is 

11

of 8 August 2006. The decree in the first suit was of 26 February 2009 and though

twelve years have passed since the date of the decree, the appellant as a

successor-in-interest of the auction purchaser is not being allowed to enjoy the suit

property.

15 Order 7 Rule 11 of the CPC reads as follows:

“11. Rejection of plaint.— The plaint shall be rejected in the

following cases:—

(a) where it does not disclose a cause of action;

(b) where the relief claimed is undervalued, and the plaintiff, on

being required by the Court to correct the valuation within a time to

be fixed by the Court, fails to do so;

(c) where the relief claimed is properly valued, but the plaint is

returned upon paper insufficiently stamped, and the plaintiff, on

being required by the Court to supply the requisite stamp-paper

within a time to be fixed by the Court, fails to do so;

(d) where the suit appears from the statement in the plaint to

be barred by any law;

[(e) where it is not filed in duplicate;]

[(f) where the plaintiff fails to comply with the provisions of rule 9:]

[Provided that the time fixed by the Court for the correction of the

valuation or supplying of the requisite stamp-paper shall not be

extended unless the Court, for reasons to be recorded, is satisfied

that the plaintiff was prevented by any cause of an exceptional

nature from correcting the valuation or supplying the requisite

stamp-paper, as the case may be, within the time fixed by the

Court and that refusal to extend such time would cause grave

injustice to the plaintiff.]”

 (emphasis supplied)

16 Order 7 Rule 11(d) of CPC provides that the plaint shall be rejected “where

the suit appears from the statement in the plaint to be barred by any law”. Hence, in

order to decide whether the suit is barred by any law, it is the statement in the plaint

which will have to be construed. The Court while deciding such an application must 

12

have due regard only to the statements in the plaint. Whether the suit is barred by

any law must be determined from the statements in the plaint and it is not open to

decide the issue on the basis of any other material including the written statement in

the case. Before proceeding to refer to precedents on the interpretation of Order 7

Rule 11(d) CPC, we find it imperative to refer to Section 11 of CPC which defines

res judicata:

“11. Res judicata.—No Court shall try any suit or issue in

which the matter directly and substantially in issue has been

directly and substantially in issue in a former suit between the

same parties, or between parties under whom they or any of

them claim, litigating under the same title, in a Court

competent to try such subsequent suit or the suit in which

such issue has been subsequently raised, and has been

heard and finally decided by such Court.”

17 Section 11 of the CPC enunciates the rule of res judicata : a court shall not

try any suit or issue in which the matter that is directly in issue has been directly or

indirectly heard and decided in a ‘former suit’. Therefore, for the purpose of

adjudicating on the issue of res judicata it is necessary that the same issue (that is

raised in the suit) has been adjudicated in the former suit. It is necessary that we

refer to the exercise taken up by this Court while adjudicating on res judicata, before

referring to res judicata as a ground for rejection of the plaint under Order 7 Rule 11.

Justice R C Lahoti (as the learned Chief Justice then was), speaking for a two Judge

bench in V. Rajeshwari v. T.C. Saravanabava5 discussed the plea of res judicata

and the particulars that would be required to prove the plea. The court held that it is

 5 (2004) 1 SCC 551.

13

necessary to refer to the copies of the pleadings, issues and the judgment of the

‘former suit’ while adjudicating on the plea of res judicata:

“11. The rule of res judicata does not strike at the root of the

jurisdiction of the court trying the subsequent suit. It is a rule of

estoppel by judgment based on the public policy that there should

be a finality to litigation and no one should be vexed twice for the

same cause.

13. Not only the plea has to be taken, it has to be

substantiated by producing the copies of the pleadings,

issues and judgment in the previous case. Maybe, in a given

case only copy of judgment in previous suit is filed in proof of plea

of res judicata and the judgment contains exhaustive or in

requisite details the statement of pleadings and the issues which

may be taken as enough proof. But as pointed out in Syed

Mohd. Salie Labbai v. Mohd. Hanifa [(1976) 4 SCC 780] the

basic method to decide the question of res judicata is first to

determine the case of the parties as put forward in their

respective pleadings of their previous suit and then to find

out as to what had been decided by the judgment which

operates as res judicata. It is risky to speculate about the

pleadings merely by a summary of recitals of the allegations

made in the pleadings mentioned in the judgment. The

Constitution Bench in Gurbux Singh v. Bhooralal [AIR 1964 SC

1810 : (1964) 7 SCR 831] placing on a par the plea of res

judicata and the plea of estoppel under Order 2 Rule 2 of the

Code of Civil Procedure, held that proof of the plaint in the

previous suit which is set to create the bar, ought to be brought on

record. The plea is basically founded on the identity of the

cause of action in the two suits and, therefore, it is necessary

for the defence which raises the bar to establish the cause of

action in the previous suit. Such pleas cannot be left to be

determined by mere speculation or inferring by a process of

deduction what were the facts stated in the previous pleadings.

Their Lordships of the Privy Council in Kali Krishna

Tagore v. Secy. of State for India in Council [(1887-88) 15 IA 186

: ILR 16 Cal 173] pointed out that the plea of res judicata cannot

be determined without ascertaining what were the matters in

issue in the previous suit and what was heard and decided.

Needless to say, these can be found out only by looking into the

pleadings, the issues and the judgment in the previous suit.”

 (emphasis supplied)

14

18 At this stage, it would be necessary to refer to the decisions that particularly

deal with the question whether res judicata can be the basis or ground for rejection

of the plaint. In Kamala & others v. KT Eshwara Sa6

, the Trial Judge had allowed

an application for rejection of the plaint in a suit for partition and this was affirmed by

the High Court. Justice S B Sinha speaking for the two judge bench examined the

ambit of Order 7 Rule 11(d) of the CPC and observed:

“21. Order 7 Rule 11(d) of the Code has limited application. It must

be shown that the suit is barred under any law. Such a

conclusion must be drawn from the averments made in the

plaint. Different clauses in Order 7 Rule 11, in our opinion, should

not be mixed up. Whereas in a given case, an application for

rejection of the plaint may be filed on more than one ground

specified in various sub-clauses thereof, a clear finding to that

effect must be arrived at. What would be relevant for invoking

clause (d) of Order 7 Rule 11 of the Code are the averments made

in the plaint. For that purpose, there cannot be any addition or

subtraction. Absence of jurisdiction on the part of a court can

be invoked at different stages and under different provisions

of the Code. Order 7 Rule 11 of the Code is one, Order 14 Rule

2 is another.

22. For the purpose of invoking Order 7 Rule 11(d) of the

Code, no amount of evidence can be looked into. The issues

on merit of the matter which may arise between the parties

would not be within the realm of the court at that stage. All

issues shall not be the subject-matter of an order under the

said provision.”

(emphasis supplied)

The Court further held:

“23. The principles of res judicata, when attracted, would bar

another suit in view of Section 12 of the Code. The question

involving a mixed question of law and fact which may require

not only examination of the plaint but also other evidence and

the order passed in the earlier suit may be taken up either as a

 6 (2008) 12 SCC 661.

15

preliminary issue or at the final hearing, but, the said question

cannot be determined at that stage.

24. It is one thing to say that the averments made in the plaint on

their face discloses no cause of action, but it is another thing to say

that although the same discloses a cause of action, the same is

barred by a law.

25. The decisions rendered by this Court as also by various High

Courts are not uniform in this behalf. But, then the broad

principle which can be culled out therefrom is that the court at

that stage would not consider any evidence or enter into a

disputed question of fact or law. In the event, the jurisdiction

of the court is found to be barred by any law, meaning

thereby, the subject-matter thereof, the application for

rejection of plaint should be entertained.”

(emphasis supplied)

The above view has been consistently followed in a line of decisions of this Court. In

Church of Christ Charitable Trust & Educational Charitable Society v.

Ponniamman Educational Trust7

, Justice P Sathasivam (as the learned Chief

Justice then was), speaking for a two judge Bench, observed that

“10. […] It is clear from the above that where the plaint does

not disclose a cause of action, the relief claimed is

undervalued and not corrected within the time allowed by the

court, insufficiently stamped and not rectified within the time

fixed by the court, barred by any law, failed to enclose the

required copies and the plaintiff fails to comply with the

provisions of Rule 9, the court has no other option except to

reject the same. A reading of the above provision also

makes it clear that power under Order 7 Rule 11 of the Code

can be exercised at any stage of the suit either before

registering the plaint or after the issuance of summons to the

defendants or at any time before the conclusion of the trial.

11. This position was explained by this Court in Saleem

Bhai v. State of Maharashtra [(2003) 1 SCC 557] , in which,

 7 (2012) 8 SCC 706.

16

while considering Order 7 Rule 11 of the Code, it was held

as under: (SCC p. 560, para 9)

“9. A perusal of Order 7 Rule 11 CPC makes it clear that the

relevant facts which need to be looked into for deciding an

application thereunder are the averments in the plaint. The

trial court can exercise the power under Order 7 Rule 11

CPC at any stage of the suit—before registering the plaint or

after issuing summons to the defendant at any time before

the conclusion of the trial. For the purposes of deciding an

application under clauses (a) and (d) of Rule 11 of Order 7

CPC, the averments in the plaint are germane; the pleas

taken by the defendant in the written statement would be

wholly irrelevant at that stage, therefore, a direction to file

the written statement without deciding the application under

Order 7 Rule 11 CPC cannot but be procedural irregularity

touching the exercise of jurisdiction by the trial court.”

It is clear that in order to consider Order 7 Rule 11, the court

has to look into the averments in the plaint and the same can

be exercised by the trial court at any stage of the suit. It is

also clear that the averments in the written statement are

immaterial and it is the duty of the Court to scrutinize the

averments/pleas in the plaint. In other words, what needs to

be looked into in deciding such an application are the

averments in the plaint. At that stage, the pleas taken by the

defendant in the written statement are wholly irrelevant and

the matter is to be decided only on the plaint averments.

These principles have been reiterated in Raptakos Brett &

Co. Ltd. v. Ganesh Property [(1998) 7 SCC 184] and Mayar

(H.K.) Ltd. v. Vessel M.V. Fortune Express [(2006) 3 SCC

100].”

Similarly, in Soumitra Kumar Sen (supra), an application was moved under Order 7

Rule 11 of the CPC claiming rejection of the plaint on the ground that the suit was

barred by res judicata. The Trial Judge dismissed the application and the judgement

of the Trial Court was affirmed in revision by the High Court. Justice AK Sikri, while

affirming the judgment of the High Court held:

17

“9. In the first instance, it can be seen that insofar as relief of

permanent and mandatory injunction is concerned that is

based on a different cause of action. At the same time that

kind of relief can be considered by the trial court only if the

plaintiff is able to establish his locus standi to bring such a

suit. If the averments made by the appellant in their written

statement are correct, such a suit may not be maintainable

inasmuch as, as per the appellant it has already been

decided in the previous two suits that Respondent 1-plaintiff

retired from the partnership firm much earlier, after taking his

share and it is the appellant (or appellant and Respondent 2)

who are entitled to manage the affairs of M/s Sen Industries.

However, at this stage, as rightly pointed out by the

High Court, the defense in the written statement cannot

be gone into. One has to only look into the plaint for the

purpose of deciding application under Order 7 Rule 11 CPC.

It is possible that in a cleverly drafted plaint, the plaintiff has

not given the details about Suit No. 268 of 2008 which has

been decided against him. He has totally omitted to mention

about Suit No. 103 of 1995, the judgment wherein has

attained finality. In that sense, the plaintiff-Respondent 1

may be guilty of suppression and concealment, if the

averments made by the appellant are ultimately found to be

correct. However, as per the established principles of law,

such a defense projected in the written statement cannot be

looked into while deciding application under Order 7 Rule 11

CPC.”

Referring to Kamala (supra), the Court further observed that

“12. … The appellant has mentioned about the earlier two

cases which were filed by Respondent 1 and wherein he

failed. These are judicial records. The appellant can easily

demonstrate the correctness of his averments by filing

certified copies of the pleadings in the earlier two suits as

well as copies of the judgments passed by the courts in

those proceedings. In fact, copies of the orders passed in

judgement and decree dated 31-3-1997 passed by the Civil

Judge (Junior Division), copy of the judgment dated 31-3-

1998 passed by the Civil Judge (Senior Division) upholding

the decree passed by the Civil Judge (Junior Division) as

well as copy of the judgment and decree dated 31-7-2014

passed by Civil Judge, Junior Division in Suit No. 268 of

2008 are placed on record by the appellant. While deciding

the first suit, the trial court gave a categorical finding that as

per MoU signed between the parties, Respondent 1 had 

18

accepted a sum of Rs 2,00,000 and, therefore, the said suit

was barred by principles of estoppel, waiver and

acquiescence. In a case like this, though recourse to

Order 7 Rule 11 CPC by the appellant was not

appropriate, at the same time, the trial court may, after

framing the issues, take up the issues which pertain to

the maintainability of the suit and decide the same in the

first instance. In this manner the appellant, or for that

matter the parties, can be absolved of unnecessary

agony of prolonged proceedings, in case the appellant

is ultimately found to be correct in his submissions.”

(emphasis supplied)

While holding that “recourse to Order 7 Rule 11” by the appellant was not

appropriate, this Court observed that the Trial Court may, after framing the issues,

take up the issues which pertain to the maintainability of the suit and decided them

in the first instance. The Court held that this course of action would help the

appellant avoid lengthy proceedings.

19 In a more recent decision of this Court in Shakti Bhog Food Industries Ltd.

v. Central Bank of India and Another8

, a three Judge bench of this Court,

speaking though Justice AM Khanwilkar, was dealing with the rejection of a plaint

under Order 7 Rule 11 by the Trial Court, on the ground that it was barred by

limitation. The Court referred to the earlier decisions including in Saleem Bhai v.

State of Maharashtra9

, Church of Christ Charitable Trust (supra), and

observed that

 8 2020 SCC OnLine SC 482. 9 (2003) 1 SCC 557.

19

“18. It is clear that in order to consider Order 7 Rule 11, the

court has to look into the averments in the plaint and the

same can be exercised by the trial court at any stage of the

suit. It is also clear that the averments in the written statement

are immaterial and it is the duty of the Court to scrutinize the

averments/pleas in the plaint. In other words, what needs to

be looked into in deciding such an application are the

averments in the plaint. At that stage, the pleas taken by the

defendant in the written statement are wholly irrelevant and

the matter is to be decided only on the plaint averment. These

principles have been reiterated in Raptakos Brett & Co.

Ltd. v. Ganesh Property, (1998) 7 SCC 184 and Mayar (H.K.)

Ltd. v. Vessel M.V. Fortune Express, (2006) 3 SCC 100.”

20 On a perusal of the above authorities, the guiding principles for deciding an

application under Order 7 Rule 11(d) can be summarized as follows:

(i) To reject a plaint on the ground that the suit is barred by any law, only the

averments in the plaint will have to be referred to;

(ii) The defense made by the defendant in the suit must not be considered while

deciding the merits of the application;

(iii) To determine whether a suit is barred by res judicata, it is necessary that (i)

the ‘previous suit’ is decided, (ii) the issues in the subsequent suit were

directly and substantially in issue in the former suit; (iii) the former suit was

between the same parties or parties through whom they claim, litigating

under the same title; and (iv) that these issues were adjudicated and finally

decided by a court competent to try the subsequent suit; and

(iv) Since an adjudication of the plea of res judicata requires consideration of the

pleadings, issues and decision in the ‘previous suit’, such a plea will be 

20

beyond the scope of Order 7 Rule 11 (d), where only the statements in the

plaint will have to be perused.

21 In the present case, a meaningful reading of the plaint makes it abundantly

clear that when the first respondent instituted the subsequent suit, he had been

impleaded as the second defendant to the earlier suit (OS No. 103/2007) that was

instituted on 13 March 2007. The first respondent instituted the subsequent suit, OS

138/2008 though he had knowledge of the earlier suit. The plaint in the subsequent

suit which was instituted by the first respondent indicates that the he was aware of

the mortgage executed in favour of KSFC, that KSFC had executed its charge by

selling the property for the recovery of its dues and that the property had been sold

on 8 August 2006 in favour of the predecessor of the appellant. As a matter of fact,

the plaint contains an averment that there was every possibility that the first

respondent may suffer a decree for possession in OS 103/2007 which “has forced”

the first respondent to institute the suit for challenging the legality of the sale deed.

Given the fact that an argument was raised in the previous suit regarding no

challenge having been made to the auction and the subsequent sale deed executed

by the KFSC, it is possible that the first respondent then decided to exercise his

rights and filed the subsequent suit. Be that as it may, on a reading of the plaint, it is

evident that the first respondent has not made an attempt to conceal the fact that a

suit regarding the property was pending before the civil court at the time. It is also

relevant to note that at the time of institution of the suit (OS No. 138/2008) by the

first respondent, no decree had been passed by the civil court in OS No. 103/2007. 

21

Thus, the issues raised in OS No. 103/2007, at the time, had not been adjudicated

upon. Therefore, the plaint, on the face of it, does not disclose any fact that may

lead us to the conclusion that it deserves to be rejected on the ground that it is

barred by principles of res judicata. The High Court and the Trial Court were correct

in their approach in holding, that to decide on the arguments raised by the appellant,

the court would have to go beyond the averments in the plaint, and peruse the

pleadings, and judgment and decree in OS No. 103/2007. An application under

Order 7 Rule 11 must be decided within the four corners of the plaint. The Trial court

and High Court were correct in rejecting the application under order 7 Rule 11(d).

22 For the above reasons, we hold that the plaint was not liable to be rejected

under Order 7 Rule 11(d) and affirm the findings of the Trial Court and the High

Court. We clarify however, that we have expressed no opinion on whether the

subsequent suit is barred by the principles of res judicata. We grant liberty to the

appellant, who claims as an assignee of the bona fide purchaser of the suit property

in an auction conducted by KSFC, to raise an issue of the maintainability of the suit

before the Additional Civil Judge, Belgaum in OS No. 138/2008. The Additional Civil

Judge, Belgaum shall consider whether a preliminary issue should be framed

under Order XIV, and if so, decide it within a period of 3 months of raising the

preliminary issue. In any event, the suit shall be finally adjudicated upon within the

outer limit of 31 March 2022. 

22

23 For the above reasons, we dismiss the appeal and affirm the impugned

judgment and order of the High Court dated 18 January 2021. The application under

Order 7 Rule 11 of the CPC shall stand dismissed. There shall be no orders as to

costs.

24 Pending application(s), if any, stand disposed of.

…………………..…………………………J

 [Dr Dhananjaya Y Chandrachud]

………..………….…………………………J

 [MR Shah]

New Delhi;

August 09, 2021