suit for perpetual injunction to restrain the defendants from interfering with the peaceful possession and enjoyment of the plaint schedule property, as claimed by the plaintiff. - trail court dismissed the suit as the plaintiff not proved his possession and plaintiff not filed a suit for declaration of title and possession - Appellant court reassessed and found that plaintiff proved his possession as he is paying kists and decreed the suit - Second appeal, the High court set aside the appellant court judgment as the plaintiff failed to prove his possession and also not filed a suit for declaration of title and confirmed the judgment of trial court- Apex court held that While arriving at such conclusion the trial court had taken note of the right as claimed by the plaintiff and in that background had arrived at the conclusion that except for the say of plaintiff as PW1 there was no other evidence.-On the documentary evidence it was indicated that the kist receipts at Exhibit A5 series would not establish possession merely because the name has been subsequently substituted in the patta records and the kist had been paid. As against such conclusion, the first appellate court in fact has placed heavy reliance solely on the kist receipts which in fact had led the first appellate court to arrive at the conclusion that the continuous payment of kist would indicate that the plaintiff was also in possession of the property - divergent findings on fact were available - The said applications have not been pressed to its logical conclusion nor has any other step been taken to seek restoration of possession by establishing that the possession in fact had been taken by the defendant No.1 subsequent to the interim injunction. Therefore, on all counts the possession of the suit schedule property was also not established. - Civil appeal was dismissed

       

suit for perpetual   injunction   to   restrain   the   defendants   from interfering with the peaceful possession and enjoyment of the plaint schedule property, as claimed by the plaintiff. - trail court dismissed the suit as the plaintiff not proved his possession and plaintiff not filed a suit for declaration of title and possession - Appellant court reassessed and found that plaintiff proved his possession as he is paying kists and decreed the suit - Second appeal, the High court set aside the appellant court judgment as the plaintiff  failed to prove his possession and also not filed a suit for declaration of title  and confirmed the judgment of trial court- Apex court held that While arriving at such conclusion the trial court had taken note of   the   right   as   claimed   by   the   plaintiff   and   in   that background had arrived at the conclusion that except for the say of plaintiff as PW1 there was no other evidence.-On the documentary evidence it was indicated that the kist  receipts  at  Exhibit  A5  series would  not   establish possession   merely   because   the   name   has   been subsequently substituted in the patta records and the kist had been paid. As   against   such   conclusion,   the  first   appellate court in fact has placed heavy reliance solely on the kist receipts which in fact had led the first appellate court to arrive at the conclusion that the continuous payment of kist   would   indicate   that   the   plaintiff   was   also   in possession of the property - divergent findings on fact were available -    The   said applications   have   not   been   pressed   to   its   logical conclusion nor has any other step been taken to seek restoration   of   possession   by   establishing   that   the possession in fact had been taken by the defendant No.1 subsequent to the interim injunction. Therefore, on all counts the possession of the suit schedule property was also not established. - Civil appeal was dismissed 

                                       NON­REPORTABLE

   IN THE SUPREME COURT OF INDIA

   CIVIL APPELLATE JURISDICTION

   CIVIL APPEAL NO. 2066 OF 2012

  

Balasubramanian & Anr.                .…Appellant(s)

Versus

M. Arockiasamy (dead) Through Lrs.    ….  Respondent(s)

J U D G M E N T

A.S. Bopanna,J.      

              

1.   The appellant is before this Court in this appeal,

assailing the judgment dated 30.10.2009 passed by the

High Court of Madras, Madurai Bench in S.A. No. 1303 of

1994. The appellant herein is the plaintiff in the suit

while the respondents are the legal representatives of the

deceased first defendant before the Trial Court. For the

sake   of   convenience   and   clarity   the   parties   will   be

Page 1 of 22

referred to in the rank assigned to them before the court

of first instance namely, the Court of District Munsif,

Palani.

2.   The factual matrix in brief is that the plaintiff filed

the suit bearing O.S No. 769/1987 seeking the relief of

perpetual   injunction   to   restrain   the   defendants   from

interfering with the peaceful possession and enjoyment of

the plaint schedule property, as claimed by the plaintiff.

The defendant No.2 did not respond to the summons

issued in the suit and therefore, was placed ex­parte. The

defendant   No.1   appeared   before   the   trial   court   and

contested the suit. The case of the plaintiff was that the

plaint schedule property belonged to the plaintiff who has

been enjoying the same for a period of 40 years by paying

kist.  The  property  belonging  to  the  defendant   No.1  is

adjacent to the suit property. The same was sold by the

defendant   No.1   to   one   Parvatham   Ammal   wife   of

Ponnusamy in the year 1984. The properties were subdivided after the purchase and were assigned the Survey

No.1073/3V, and 1073/3B. The property bearing Survey

Page 2 of 22

No.1073/13A belonged to Parvatham Ammal. The said

Smt.  Parvatham  Ammal  alienated  the  property  to  one

Subban Asari. Hence, it was contended by the plaintiff

that the defendant No. 1 has no manner of right over the

suit   schedule   property.   The   plaintiff   alleged   that   the

defendant No.1 approached the plaintiff and demanded to

sell the property to him but the plaintiff refused to do so,

due to which the defendants attempted to trespass into

the suit property. The plaintiff having resisted the same

claimed   that   the   suit   is   filed   in   that   view   seeking

injunction.

3.  The defendant No.1 in order to resist the suit, filed

a detailed written statement disputing the right claimed

over the suit schedule property by the plaintiff. It was

contended   that   the   suit   schedule   property   neither

belonged   to   the   plaintiff   nor   was   the   plaintiff   in

possession   of   the   same.   On   the   other   hand,   it   was

contended that the defendant was in possession of the

property.   It   was   averred   that   the   suit   property   and

certain other properties originally belonged to Ponnimalai

Page 3 of 22

Chetti, the father of Konar Chettiar. He purchased 1/3rd

share in Survey No.1073/3 and 1/5th share in Survey

No.1073/13. Though only the said extent was purchased,

the entire extent was in his possession and enjoyment.

The said Konar Chettiar handed over the entire extent to

Marimuthu Kudumban son of Sivanandi Kudumban who

was  the   grandfather  of   defendant   No.1.  Subsequently,

0.33 cents of land in Survey No.1073/3A was acquired

for the formation of Kodaikanal road and the remaining

extent of land available in the said Survey Number is only

46 cents. Marimuthu Kudumban disposed 0.35 cents of

land in Survey No.1073/13 from out of the extent of 1.76

acre to one Arockiammal i.e., the mother of the defendant

No.1 under a sale deed dated 10.08.1937 and delivered

the possession. The remaining 1.41 acres of land was

also enjoyed by Marimuthu Kudumban. Subsequently, he

died leaving behind him the mother of defendant no. 1

namely Arockiammal as the only heir. Arockiammal was

thus in possession and enjoyment of 0.79 cents in Survey

No.1073/3V   and   1.41   acre   in   Survey   No.1072/13A

Page 4 of 22

alongwith   the   0.35   cents   of   land   purchased   by

Arockiammal.   The   defendant   No.1   was   enjoying   the

properties through the guardian since the defendant No.1

was 3 years old when Arockiammal and her husband

died. 

4.    It was further averred that the defendant No.1

sold 0.31 cents of land in survey No.1073/13 from out of

1.76 acres of land to Parvatham Ammal on 24.11.1984.

The remaining 1.41 acres of land has been in possession

and enjoyment of defendant No.1. After the purchase of

land   Parvatham   Ammal   obtained   patta   for   Survey

No.1073/13 to the extent of 55 cents and sub­divided in

1073/13A. The Revenue authorities issued patta for the

extent of 55 cents and on 19.12.1987 Parvatham Ammal

sold 55 cents of land to one Subban Asari. The defendant

alleged   that   Subban   Asari   in   order   to   grab   the   suit

property is litigating in the instant suit in the name of the

plaintiff. The defendant No.1 disputed the payment of kist

by the plaintiff which has been done with the ulterior

motive for the suit. The defendant No.1 claimed in the

Page 5 of 22

written statement that the defendant No.1 is residing in

the thatched house in the suit property and is engaged in

agricultural work. The defendant No.1 therefore, sought

for dismissal of the suit.

5.    Based on the rival pleadings, the trial court framed

two issues and an additional issue casting burden on the

plaintiff to prove whether the plaintiff was in exclusive

possession and enjoyment of the suit property and as to

whether the plaintiff is entitled for permanent injunction

as prayed for. The plaintiff examined himself as PW1 and

relied upon the documents at Exhibit A1 to A16. No other

witness   was   examined   on   behalf   of   the   plaintiff.   The

defendant examined two witnesses as DW1 and DW2 and

documents at Exhibits B1 to B14 were marked. 

6.    The learned District Munsif (Trial Court) having

taken   note   of   the   rival   contentions   and   the   evidence

tendered  by  the   parties   recorded   a  categorical  finding

that the plaintiff has failed to prove possession over the

suit   schedule   property   and   taking   note   of   certain

admissions made by the plaintiff during the course of the

Page 6 of 22

cross­examination and the contention put­forth by the

defendant, was also of the view that though the claim of

the plaintiff is denied by the defendant No.1 the plaintiff

has not sought the relief of declaration and in that light

the only question relating to possession was answered

against   the   plaintiff.   The   suit   of   the   plaintiff   was

accordingly dismissed with costs through its judgment

dated 13.04.1993.

7.  The plaintiff being aggrieved by the same preferred

a   Regular   First   Appeal   under   Section   96   of   the   Civil

Procedure Code before the District Judge, Dindigul (First

Appellate   Court)   in   A.S   No.51   of   1993.   The   learned

District   Judge   framed   two   points   for   consideration,

essentially   to   the   effect   as   to   whether   the   plaintiff   is

entitled   to   the   relief   of   permanent   injunction.   While

taking note of the evidence tendered by the parties before

the   trial   court,  the   learned   District   Judge   has  placed

much reliance on the documents at Exhibit A5 series,

namely, the kist receipts and based mainly on the same

has   arrived   at   the   conclusion   that   the   claim   of   the

Page 7 of 22

plaintiff that he is in possession of the suit schedule

property is to be accepted since he was paying kist in

respect of the property. 

8. The   defendant   No.1   therefore,   claiming   to   be

aggrieved by the judgment dated 18.03.1994 passed by

the learned District Judge in A.S. No.51/1993 preferred

the   Second   Appeal   under   Section   100   of   the   Civil

Procedure Code before the Madras High Court, Madurai

Bench in S.A. No.1303 of 1994. The High court while

admitting the Second Appeal had framed a substantial

question of law, as to whether the suit without the prayer

for declaration is maintainable when especially the title of

the plaintiff is disputed. Thereupon having taken note of

the rival contentions urged by the parties had arrived at

the   conclusion   that   the   substantial   question   of   law

framed   has   substance   and   therefore,   set   aside   the

judgment dated 18.03.1984 passed in A.S. No.51/1993

by   the   learned   District   Judge   Dindigul.   The   plaintiff

therefore, claiming to be aggrieved has filed the instant

appeal. 

Page 8 of 22

9.     In   the   above   background   we   have   heard   Mr.

Jayanth Muth Raj, learned senior counsel appearing for

the   plaintiff­appellant,   Mr.   Sriram   P.,   learned   counsel

appearing for the respondents and perused the appeal

papers.

10.     The   reference   made   hereinabove   to   the   rival

pleadings would delineate the nature of contentions that

were put­forth by the parties in support of the suit and to

oppose the same. The manner in which it is dealt by the

various fora in the hierarchy will have to rest on the

claim that was originally put­forth in the plaint and the

manner in which the claim was sought to be established

with the evidence tendered, either documentary or oral.

The   learned   senior   counsel   for   the   appellant   has

strenuously   contended   that   the   parameter   for

interference   by   the   High   Court   in   the   Second   Appeal

under Section 100 of the Civil Procedure Code is well

established and the High Court cannot travel beyond the

same and advert to re­appreciate the evidence on factual

aspects.   It   is   contended   that   though   a   substantial

Page 9 of 22

question of law was framed by the High Court, the same

has not been answered. It is his contention that even

otherwise the substantial question of law as framed by

the High Court is not sustainable inasmuch as the law is

well settled that in a suit for bare injunction the plaintiff

need not always seek for declaratory relief and if this

aspect of the matter is kept in view there was no other

substantial question of law subsisting and the second

appeal ought to have been dismissed. He contended that

in such event when the lower appellate court which is the

last   court   for   appreciation   of   facts   has   recorded   its

finding of fact, the same cannot be interfered by the High

Court on re­appreciation of the evidence. In that view it is

contended that the judgment passed by the High court is

liable   to   be   set   aside   and   the   judgment   of   the   lower

appellate court is to be restored.

11.   The   learned   counsel   for   the   defendant   No.1

however, sought to sustain the judgment passed by the

High Court. It is pointed out that the suit was instituted

by the plaintiff as far back as in the year 1987 and the

Page 10 of 22

trial court through its judgment dated 13.04.1993 had

referred to the entire evidence and arrived at a conclusion

that the prayer made in the plaint is liable to be rejected.

Though the lower appellate court has set aside the same,

the judgment of the lower appellate court would indicate

that the evidence has not been properly appreciated and,

in such circumstance, the High Court as far back as on

30.10.2009   has   set   aside   the   judgment   of   the   lower

appellate court and in such event, at this distant point in

time it would not be appropriate to set aside the order of

the  High  Court  more  particularly  when  the  defendant

No.1 has been in possession, prior to and subsequent to

the   suit.   The   learned   counsel   therefore,   sought   for

dismissal of this appeal.

12.    In   the   light   of   the   rival   contentions,   before

adverting to the fact situation herein it is to be stated at

the outset that on the general principles of law laid down

in the decisions referred to by the learned senior counsel

for the appellant, there can be no quarrel whatsoever. In

the   case   of  Gajaraba   Bhikhubha   Vadher   &   Ors.

Page 11 of 22

versus  Sumara  Umar  Amad  (dead)   thr.  Lrs.  &  Ors.

(2020)  11  SCC  114   the fact situation arising therein

was   referred   to   and   having   taken   note   that   five

substantial questions of law had been framed, this Court

had   arrived   at   the   conclusion   that   such   substantial

questions of law which arose therein had not been dealt

with appropriately since it had not been considered in the

light of the contentions. It is in that circumstance, this

Court was of the view that the judgment of the High

Court is to be set aside and the matter is to be remitted

to   the   High   Court.   In   the   case   of  Ramathal   versus

Maruthathal   &   Ors.   (2018)   18   SCC   303,   the   issue

considered was as to whether the High Court was wrong

in interfering with the question of fact in the Second

Appeal. It was a case where both the courts below had

arrived   at   a   concurrent   finding   of   fact   and   both   the

Courts had disbelieved the evidence of witnesses. In such

a   case   where   such   concurrent   factual   finding   was

rendered by two courts and in such situation, it had been

interfered by the High Court in a Second Appeal, this

Page 12 of 22

Court   was   of   the   view   that   the   interference   was   not

justified. However, it is appropriate to notice that in the

said decision this Court had also indicated that such

restraint against interference is not an absolute rule but

when there is perversity in findings of the court which are

not   based   on   any   material   or   when   appreciation   of

evidence suffers from material irregularity the High Court

would be entitled to interfere on a question of fact as well.

The decision in the case of Ram Daan (dead) through

Lrs.  versus  Urban Improvement  Trust.  (2014) 8 SCC

902, is a case, where in a suit for permanent injunction

the plaintiff had pleaded possession from the year 1942

and the defendant had admitted the possession of the

plaintiff from 1965 though it was contended that they

had re­entered the property after being evicted in 1965. It

is in that circumstance the case of the plaintiff seeking to

protect the possession was accepted and the necessity for

seeking declaration did not arise as the defendant did not

assert   its   right   of   ownership   which   is   not   so   in   the

instant   case.   In   the   case   of  P.   Velayudhan   &   Ors.

Page 13 of 22

versus  Kurungot  Imbichia  Moidu’s  son  Ayammad  &

Ors.   (1990)   Supp.   SCC   9  and in the case of  Tapas

Kumar  Samanta   versus  Sarbani  Sen  &  Anr.  (2015)

12   SCC  523, the decisions are to the effect that in a

Second Appeal the High Court would not be justified in

interfering   with   the   finding   of   fact   made   by   the   first

appellate   court   since   such   finding   rendered   would   be

based on evidence. On this aspect there can be no doubt

that the same is the settled position of law but it would

depend on the fact situation and the manner in which

the evidence is appreciated in the particular facts. In the

case   of  Ramji   Rai   &   Anr.   versus   Jagdish   Mallah

(dead) thr. Lrs. & Anr. (2007) 14 SCC 200 though it is

held that there was no need to seek for declaration and

suit for possession alone was sustainable, it was held so

in   the   circumstance   where   injunction   was   sought   in

respect   of   the   disputed   land   which   was   an   area

appurtenant to their building in which case possession

alone   was   relevant   and   restraint   sought   was   against

preventing construction of compound wall. 

Page 14 of 22

13.   In the background of the legal position and on

reasserting the position that there is very limited scope

for reappreciating  the  evidence  or interfering  with  the

finding of fact rendered by the trial court and the first

appellate court in a second appeal under Section 100 of

the Civil Procedure Code, it is necessary for us to take

note as to whether in the instant facts the High Court

has breached the said settled position. To that extent the

factual aspects and the evidence tendered by the parties

has already been noted above in brief. Further, what is

distinct in the present facts of the case is that the finding

rendered by the learned Munsif (Trial Court) and by the

learned   District   Judge   (First   Appellate   Court)   are

divergent. The trial court on taking note of the pleadings

and the evidence available before it was of the opinion

that the plaintiff has failed to prove exclusive possession

and,   in   such   light,   held   that   the   entitlement   for

permanent injunction has not been established. While

arriving at such conclusion the trial court had taken note

of   the   right   as   claimed   by   the   plaintiff   and   in   that

Page 15 of 22

background had arrived at the conclusion that except for

the say of plaintiff as PW1 there was no other evidence.

On the documentary evidence it was indicated that the

kist  receipts  at  Exhibit  A5  series would  not   establish

possession   merely   because   the   name   has   been

subsequently substituted in the patta records and the

kist had been paid. 

14.    As   against   such   conclusion,   the  first   appellate

court in fact has placed heavy reliance solely on the kist

receipts which in fact had led the first appellate court to

arrive at the conclusion that the continuous payment of

kist   would   indicate   that   the   plaintiff   was   also   in

possession of the property. When such divergent findings

on fact were available before the High Court in an appeal

under Section 100 of the Civil Procedure Code though

reappreciation   of   the   evidence   was   not   permissible,

except when it is perverse, but it was certainly open for

the High Court to take note of the case pleaded, evidence

tendered, as also the findings rendered by the two courts

which was at variance with each other and one of the

Page 16 of 22

views   taken   by   the   courts   below   was   required   to   be

approved. 

15.  In view of the above, although the counsel for the

appellant may be technically correct in his submission

that the High Court erred in not clearly answering the

question of law framed by it under Section 100, CPC, the

High Court was still within its jurisdiction to determine

whether the reading of the evidence on record by one of

the   Courts   below   was   perverse.   Question   of   law   for

consideration will not arise in abstract but in all cases

will emerge from the facts peculiar to that case and there

cannot   be   a   strait   jacket   formula.   Therefore,   merely

because the High Court refers to certain factual aspects

in the case to raise and conclude on the question of law,

the  same  does  not  mean   that  the  factual  aspect  and

evidence has been reappreciated. As already noted, the

divergent view of the courts below on the same set of

facts   was   available   before   the   High   Court.   From   the

judgment   rendered   by   the   trial   court,   the   nature   of

contentions   as   noted   would   disclose   that   the   plaintiff

Page 17 of 22

except contending that the suit schedule property was

being enjoyed for the past 40 years by paying kist has not

in fact referred to the manner in which such right had

accrued so as to suggest or indicate unassailable right to

be   in   physical   possession.   On   the   other   hand,   the

defendant while denying the right of the plaintiff to claim

the relief had traced the manner in which the property

had devolved and the right which is being claimed by the

defendant. It was also contended that the defendant No.1

is   residing   in   the   thatched   house   which   is   on   the

property. It is in that light the trial court having taken

note of the assertions made by the defendant No.1 and

lack   of   evidence   by   the   plaintiff   had   arrived   at   the

conclusion that the possession of the plaintiff as claimed

cannot be accepted and that the plaintiff has not sought

for declaration despite the defendant having disputed the

claim of the plaintiff. 

16.    The   trial   court   while   answering   Issue   No.1and

Addl. Issue No.1, on adverting to rival contentions and

evidence, recorded thus: 

Page 18 of 22

“Though the claim of the plaintiff is denied by

the 1st defendant, the plaintiff has not sought

the relief of declaration as already adverted.

The only question remains to be answered is

whether   the   plaintiff   has   been   enjoyment   of

suit   property   and   he   is   entitled   to   relief   of

permanent injunction as prayed for”. 

The trial court, thereafter on assessing the evidence has

concluded thus:

 “This Court feels that these documents do not

require   any   consideration.   Hence   this   court

could   not   conclude   that   the   plaintiff   is   in

possession   and   enjoyment   of   the   suit

properties based on the documents marked as

exhibits on the side of the plaintiff”.

17.  One other aspect which is also to be noted is that

the plaintiff himself had filed applications before the trial

court claiming that the defendant No.1 had trespassed

into the suit property and encroached the house after

grant   of   temporary   injunction.   In   another   application

filed it was contended by the plaintiff that the defendant

had trespassed and is residing in the thatched house.

Whereas   the   defendant   No.1   in   his   written   statement

itself had stated that he is residing in the thatched house

Page 19 of 22

situate   in   the   suit   schedule   property.   The   said

applications   have   not   been   pressed   to   its   logical

conclusion nor has any other step been taken to seek

restoration   of   possession   by   establishing   that   the

possession in fact had been taken by the defendant No.1

subsequent to the interim injunction. Therefore, on all

counts the possession of the suit schedule property was

also not established. 

18.   That apart, though the lower appellate court had

reversed the judgment of the trial court, this aspect of the

matter relating to the grievance of the plaintiff that he

had   been   dispossessed   had   not   been   addressed   and

despite   the   plaintiff   not   being   in   possession   the

injunction   being   granted   by   the   lower   appellate   court

would not be justified. On the other hand a perusal of the

judgment passed by the learned District Judge and the

observations   contained   therein   to   the   effect   that   the

defendant has not produced any documentary evidence

to show that Arockiammal is the only heir of deceased

Marimuthu   Kudumban   and   also   that   defendant   No.1

Page 20 of 22

alone is the legal heir of deceased Arockiammal, daughter

of Marimuthu Kudumban and the conclusion that there

is no clinching proof on behalf of the defendant that he

has paid kist to the suit property as also the observation

that   the   defendant   has   miserably   failed   to   prove   his

possession   over   the   suit   property,   on   the   face   of   it

indicate that the learned District Judge has misdirected

himself and proceeded at a tangent by placing the burden

on the defendant. Though there was no issue to that

effect before the trial court, the learned District Judge

with such conclusions has ultimately set aside the wellconsidered   judgment   and   decree   dated   13.04.1993

passed by the trial court in O.S. No.769/1987, which will

indicate   perversity   and   material   irregularity   in

misdirecting itself in wrongly expecting the defendant to

discharge the burden in a suit for bare injunction and

arriving at a wrong conclusion.

19. When the above aspects are kept in view, without

making any observations as to the question of law raised

in the present appeal, we are of the considered opinion

Page 21 of 22

that it would not be appropriate to interfere with the

judgment of the High Court which is in consonance with

the fact situation arising in the instant case.   In that

view, we see no merit in this appeal.

20. The appeal is accordingly dismissed with no order

as to costs in this appeal.

21. Pending applications, if any, shall stand disposed

of. 

………….…………CJI

(N.V. RAMANA)

          ………….…………….J.

                                                (A.S. BOPANNA)

………….…………….J.

                                              (HRISHIKESH ROY)

New Delhi,

September 02, 2021

Page 22 of 22

the principle of equal pay for equal work cannot be applied merely on basis of designation. While dealing with the 5th Pay Commission recommendations with respect to functional requirements, it was held that there was no question of any equivalence on that basis. The said case dealt with Stenographers of the Geological Survey of India. While observing that as a general statement it was correct to state that the basic nature of work of a Stenographer remained by and large the same whether they were working for an officer in the Secretariat or for an officer in a subordinate office; it was held that Courts ought not to interfere if the Commission itself had considered all aspects and after due consideration opined that absolute equality ought not to be given. 7(2003) 11 SCC 658. [18] 20. In the end we would like to reiterate that the aspect of disparity between the Secretariat and the field offices was a matter taken note of by the Commission itself while making the recommendations. Yet to some extent, a separate recommendation was made qua Secretariat Organizations and non-Secretariat Organizations. Once these recommendations are separately made, to direct absolute parity would be to make the separate recommendations qua non-Secretariat Organizations otiose. If one may say, there would have been no requirement to make these separate recommendations if everyone was to be treated on parity on every aspect.In view of the aforesaid reasons, we find the impugned judgment, which in turn relies upon other orders passed by different Tribunals and Courts unsustainable, and is accordingly set aside.

REPORTABLE

 IN THE SUPREME COURT OF INDIA

 CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NOS. 913-914 OF 2021

UNION OF INDIA & ORS. … APPELLANTS

VERSUS

MANOJ KUMAR & ORS. …RESPONDENTS

J U D G M E N T

SANJAY KISHAN KAUL, J.

1. Indian Railways is the largest civilian employer in the country

comprising of six production units and eighteen zones, with each zone

having three to six divisions.1

 The total number of employees as on

31.03.2005 was stated to be about 14 lakh with the following distribution

of staff strength:

Group In position

A 8285

B 7247

1Indian Railways Annual Report and Accounts 2019-20 pg. 6.

[1]

C 873536

D 521578

Total 1410646*

* As per the Indian Railways Annual Report and Accounts 2019-20, the

current strength is about 12,53,592 as on 31.03.2020.

2. The Sixth Central Pay Commission (“6

th CPC”) report in chapter

7.36 deals with the Ministry of Railways and shows that it has fourteen

departments, including the Railway Board. The report examined the

demands of these different departments seeking higher pay-scales and

allowances for various categories in different departments. We are

concerned in the present matter with claims made by Private Secretaries

(Grade-II) (“PS-II”) employed in the Eastern Central Railways (Field

Office/Zonal Railways),for parity in pay with their counterparts working

in the Central Secretariat Stenographers Service (“CSSS”)/Railway

Board Secretariat Stenographers Service (“RBSSS”)/Central

Administrative Tribunal (“CAT”). We may note at this stage itself that

there have been conflicting judicial views on the claim for such parity

which we will come to later.

[2]

3. We may notice that the 6th CPC referred to the demands made by

common category posts relating to certain cadres in the Ministry of

Railways in para 7.36.95.One of the common category posts is that of

“Typists and Stenographers”. Thereafter, in para 7.36.96, it was observed

that these common categories have been covered by the Commission

elsewhere in the report. It was stated that the recommendations made

therein shall apply in respect of the common category posts in the

Ministry of Railways as well, there being no separate recommendations

made for this category. In the aforesaid conspectus we have to turn to

Chapter 3.1 of the report of the 6th CPC, which deals with “Headquarters

Organisations in Government of India & Office Staff in field offices”.

The disparity between Secretariat and Field offices is set out in clauses

3.1.2 and 3.1.3, which read as under:

“Disparity between Secretariat and field offices

3.1.2 The senior administrative posts in the Secretariat are mainly

filled by officers of All India Services and Central Group A

services on deputation under the Central Staffing Scheme. Some of

the posts in the middle level are also held by officers of the Central

Secretariat Services, Railway Board Secretariat Service in Ministry

of Railways, Defence Forces Headquarters Services in Ministry of

Defence and by Indian Foreign services (B) in Ministry of External

Affairs. Historically, various services in the Secretariat have been

given an edge over analogous posts in the field offices. This was

[3]

done on the ground that office staff in the Secretariat performs

complex duties and are involved in analyzing issues with policy

implications whereas their counter parts in field offices perform

routine work relating to routine matters concerning personnel and

general administration, etc. Another argument that is used to justify

the edge for various posts in Secretariat is that in Secretariat, level

jumping occurs and personnel in the grade of Assistant etc. submit

files directly to decision making levels of Under Secretary, Deputy

Secretary, etc.”

3.1.3Higher pay scales in the Secretariat offices may have been

justified in the past when formulation of proper policies was of

paramount importance. The present position is different. Today, the

weakest link in respect of any Government policy is at the delivery

stage. This phenomenon is not endemic to India. Internationally

also, there is an increasing emphasis on strengthening the delivery

lines and decentralization with greater role being assigned at

delivery points which actually determines the benefit that the

common citizen is going to derive out of any policy initiative of

the Government. The field offices are at the cutting edge of

administration and may, in most cases, determine whether a

particular policy turns out to be a success or a failure in terms of

actual benefit to the consumer. Accordingly, the time has come to

grant parity between similarly placed personnel employed in field

 offices and in the Secretariat. This parity will need to be absolute

till the grade of Assistant. Beyond this, it may not be possible

or even justified to grant complete parity because the

hierarchy and career progression will need to be different

taking in view the functional considerations and relativities

across the board.”

(emphasis supplied)

[4]

4. The recommendations in para 3.1.9 have been made for various

posts from the LDC to the Director including Section Officer, with a

caveat that in the case of Sections Officers having pay scale of Rs. 8000-

13500, the scale would only be available to such of these

organizations/services which have had a historical parity with CSS/CSSS.

We, however, note that before setting forth in a tabular form the revised

pay-scales of the different posts, it has been observed in para 3.1.9 that:

“these recommendations shall apply mutatis-mutandis to post of Private

Secretary/equivalent in these services as well.”

5. We may note that the submission of the respondents is that it is this

clause which ought to govern; and that it recommends parity between the

post of Private Secretaries/equivalent and the post of a Section Officer.

We now turn to clause 3.1.14 which deals with recommendations for nonSecretariat Organizations. According to the appellants, the aspects sought

to be raised before us are specifically dealt with under this paragraph; and

thus, the respondent’s claim that their pay-scale ought to be governed by

para 3.1.9 is misplaced. These paragraphs read as under:

“Recommendations

[5]

3.1.9 Accordingly, the Commission recommends upgradation of

the entry scale of Section Officers in all Secretariat Services

(including CSS as well as nonparticipating

ministries/departments/organizations) to Rs.7500-12000

corresponding to the revised pay band PB 2 of Rs.8700-34800

along with grade pay of Rs.4800. Further, on par with the

dispensation already available in CSS, the Section Officers in other

Secretariat Offices, which have always had an established parity

with CSS/CSSS, shall be extended the scale of Rs.8000-13500 in

Group B corresponding to the revised pay band PB 2 of Rs.8700-

34800 along with grade pay of Rs.4800 on completion of four

years service in the lower grade. This will ensure full parity

between all Secretariat Offices. It is clarified that the pay band PB

2 of Rs.8700-34800 along with grade pay of Rs.4800 is being

recommended for the post of Section Officer in these services

solely to maintain the existing relativities which were disturbed

when the scale was extended only to the Section Officers in CSS.

The grade carrying grade pay of Rs.4800 in pay band PB-2 is,

otherwise, not to be treated as a regular grade and should not be

extended to any other category of employees. These

recommendations shall apply mutatis-mutandis to post of Private

Secretary/equivalent in these services as well. The structure of

posts in Secretariat Offices would now be as under:-

Post Pre revised pay scale Corresponding

revised pay band and

grade pay

LDC Rs.3050-4590 PB-1 of Rs.4860-

20200 along with

grade pay of Rs.1900

UDC Rs.4000-6000 PB-1 of Rs.4860-

20200 along with

grade pay of Rs.2400

Assistant Rs.6500-10500 PB-2 of Rs.8700-

[6]

34800 along with

grade pay of Rs.4200

Section Officer Rs.7500-12000

Rs.8000-13500*

(on completion of

four years)

PB-2 of Rs.8700-

34800 along with

grade pay of Rs.4800.

PB-2 of Rs.8700-

34800 along with

grade pay of Rs.5400*

(on completion of four

years)

Under Secretary Rs.10000-15200 PB-3 of Rs.15600-

39100 along with

grade pay of Rs.6100

Deputy Secretary Rs.12000-16500 PB-3 of Rs.15600-

39100 along with

grade pay of Rs.6600

Director Rs.14300-18300 PB-3 of Rs.15600-

39100 along with

grade pay of Rs.7600

* This scale shall be available only in such of those

organizations/services which have had a historical parity with

CSS/CSSS. Services like AFHQSS/AFHQSSS/RBSS and

Ministerial/Secretarial posts in Ministries/Departments

organizations like MEA, Ministry of Parliamentary Affairs, CVC,

UPSC, etc. would therefore be covered.”

“Recommendations for non - Secretariat Organizations

3.1.14 In accordance with the principle established in the earlier

paragraphs, parity between Field and Secretariat Offices is

recommended. This will involve merger of few grades. In the

Stenographers cadre, the posts of Stenographers Grade II and

Grade I in the existing scales of Rs.4500-7000/Rs, 5000-8000 and

Rs.5500-9000 will, therefore, stand merged and be placed in the

higher pay scale of Rs.6500-10500. In the case of ministerial post

in non- Secretariat Offices, the posts of Head Clerks, Assistants,

[7]

Office Superintendent and Administrative Officers Grade III in the

respective pay scales of Rs.5000-8000, Rs.5500-9000 and

Rs.6500-10500 will stand merged. The existing and revised

structure in Field Organization will, therefore, be as follows:-

Designation Present

Pay Scale

Recommended

Pay Scale

Corresponding Pay

Band and Grade Pay

Pay

Band

Grade Pay

LDC 3050-4590 3050-4590 PB-1 1900

UDC 4000-6000 4000-6000 PB-1 2400

Head Clerk/

Assistants/ Steno

GradeII/equivalent

4500-

7000/

5000-8000

6500-10500 PB-2 4200

Office

Superintendent/

Steno Grade

I/equivalent

5500-9000

Superintendent/

Asst. Admn.

Officer/ Private

Secretary/

equivalent

6500-

10500

Administrative

Officer Grade

II /Sr. Private

Secretary/equ.

7500-

12000

7500-12000

entry grade for

fresh recruits)

8000-13500

(on completion

of four years)

PB-2 4800

(5400 after

4 years)

Administrative

Officer Grade I

10000-

15200

10000-15200 PB-2 6100

[8]

A perusal of paragraph 3.1.14 would show that Steno (Grade-II) has

specifically been mentioned under this paragraph and it deals with the

aspect of parity between field and Secretariat offices.

6. We consider it appropriate to settle the aforesaid issue which is on

a plain reading of the recommendations of the 6th CPC as a lot of other

arguments and claims of parity will flow from which clause would

govern.

7. There is no doubt, in our considered view, that though there is an

observation that the recommendations shall apply mutatis mutandis to

Private Secretaries and posts equivalent thereto in the service under para

3.1.9; the subsequent paragraph 3.1.14 has specifically dealt with the

aspect of parity between the field and Secretariat offices, which is really

the subject matter of the claim before us.

8. The plea of the respondents is that para 3.1.9 of the

recommendations of the 6th CPC has been issued pursuant to paras

7.36.95 and 7.36.96. No separate recommendations for Stenographers in

zonal offices of Railways have been made. Para 3.1.9, which relates

specifically to Section Officers also provides that it applies mutatis

mutandis to private secretaries in these services. The premise of this plea

is therefore that para 3.1.14 deals with the recommendations for non-

[9]

Secretariat Organizations other than the Railways, and that they should

be treated as Secretariat organizations. In our view this becomes a

crucial issue. In the spectrum of conflicting views of different Central

Administrative Tribunals, the view of the CAT, Bangalore in Original

Application Nos. 640-649 and 1001-1030 of 2014 seek to favour the case

of the appellants.

9. If we turn to that judgment (V.N. Narayanappa & Ors. v. The

Secretary, Railway Board Etc.) decided on 13.04.2016, the factual

matrix deals with a case of similarly situated Private Secretaries (Grade

II) in the Southern Railways. In considering this plea, the Tribunal took

note of a different view in O.A. No.658/2010 decided on 05.06.2012 by

the Madras Bench of the Tribunal, which the applicants therein sought to

rely upon. That judgment in turn was based on an earlier view of the

Principal Bench of the CAT at Delhi in the case of OA No.164/2009

decided on 19.02.2009 (S.R. Dheer & Ors. v. Union of India & Ors.), in

respect of Private Secretaries (Grade-II) of the CAT. At this juncture, it

may be important to note that the respondents herein in their OA before

the CAT Patna, also claimed parity with the aforementioned decision of

the CAT Madras. The Madras Bench of the CAT had noticed that no

recruitment rules had been placed on record by the Government while

[10]

stating that different standards of academic and professional

qualifications, etc. exist. Thus, the view of the Madras Bench of the

Tribunal was based on absence of material and on a reason of parity with

the Principal Bench at Delhi, even though the Principal Bench at Delhi

dealt with the case of CAT Stenographers (Grade II) officers and had

allowed the OA on the basis of historical parity.

10. We may add here that the views of the Madras CAT have not been

interfered with by this Court. Both an SLP challenging the decision and a

subsequent Review Petition met with a summary dismissal and

resultantly, the question to be decided in this case has not been

specifically dealt with by this Court. This has resulted in the

implementation of different orders in different matters, which are really

contradictory in nature.

11. The Bangalore Bench of the CAT in seeking to determine the issue

on merits sought strength from an earlier decision of the Principal Bench

(Delhi) in OA No.2102/2010 in Rabindra Nath Basu & Ors. v. Union of

India & Ors. and other connected matters decided on 16.05.2011 dealing

with the case of the Assistant Staff Officers of the Ordnance Factory

Board. The CAT therein opined that the applicants belonged to a non-

[11]

Secretariat organization and would therefore be covered by the pay-scale

prescribed in para 3.1.14 of the 6th CPC.

12. If we notice the discussion in V.N. Narayanappa & Ors.2

,

historical parity is one of the aspects which has been examined. The

factual matrix in the present case is that there was such historical parity

under the first and second Pay Commissions’ recommendations.

However, the third and fourth Pay Commissions did not give parity and

the fifth Pay Commission gave parity to a limited extent. Thus, there is

no continued history of parity insofar the present case is concerned, i.e.,

sometimes parity was given and sometimes not. The history as available

from the brief note submitted by the respondents and is as under:

Central Pay

Commission

RBSS Zonal Railways/Field

Officers

1

st Pay Commission Rs.160-450/- Rs.160-450/-

2

nd Pay Commission Rs.210-530/- Rs.210-530/-

3

rd Pay Commission Rs.650-1200/- Rs.650-960/-

4

th Pay Commission Rs.2000-3500/- Rs.2000-3200/-

5

th Pay Commission Rs.6500-10500/- Rs.6500-10500/-

6

th Pay Commission

(Grade Pay)

Rs.4800 Rs.4200 (Later

Rs.4600/-)

13. We now turn to the aspect of whether the post in the case in hand

can be said to be that of a Secretariat or non-Secretariat organization.

2(supra)

[12]

This aspect, once again, has been dealt with in the judgment in V.N.

Narayanappa & Ors.3

, taking note of Swamy’s Compilation of 6th CPC

Report Part I (pages 141 to 147) and Swamy’s Manual on Office

Procedure 2006 and 2009. In the definition Chapter at entry 53,

Secretariat Offices are said to have been defined as those which are

responsible for formulation of the policies of the Government and also

for the execution and review of those policies. Relying on this definition,

it was opined that the organizations where the applicants in V.N.

Narayanappa & Ors.4 were working, were not Secretariat Organizations,

but were non-Secretariat Organizations or attached offices or subordinate

offices thereto. The meaning of subordinate offices is stated to signify

their function as field establishments or as agencies responsible for the

detailed execution of the policies of Government. They function under

the direction of an attached office or directly under a department. In that

context, it was opined that there exists a distinction in the works,

functions and responsibilities between Secretariat and non-Secretariat

organizations. As such, it was noted that if there are functional

dissimilarities between the cadres, there are bound to be financial

3(supra)

4(supra)

[13]

disparities in pay and allowances. It would be useful to reproduce paras

38 and 39 of the judgment in V.N. Narayanappa & Ors.5

, which read as

under:

“38. As it would be evident from the discussions in the preceding

paras, there is a significant difference in the recruitment rules,

promotional hierarchy etc. between the applicants who are Private

Secretaries Grade-II in the Zonal Railways with that of Private

Secretaries in the Railway Board/Central Secretariat

Services/CSSS or CAT. There also no case of any historical parity

between the applicants and their counterparts in CSSS or CAT or

RBSS. Therefore the applicants cannot claim the benefits of pay

scales allowed to CSSS in the ratio of judgments in OA

No.164/2009 in S.R. Dheer & Ors. v. Union of India wherein the

Private Secretaries in the CAT were granted the benefit on the

basis of establishment of a historical parity with CSS.

39. In this context, we also note the submission made by the

respondents about the consequential implications on various other

categories/groups under the respondents if such benefit is granted

to the applicants even though they do not have any parity with

RBSS and CSSS and are not entitled to the same. The Railways is

a vast organization where there are many cadres/category of

employees having identical pay scales and equal parity with that of

Private Secretaries Grade-II in the Zonal Railways. A list of such

groups has been highlighted in the reply statement. Therefore,

grant of benefit which the applicants are otherwise not entitled to

will also have an effect on the other cadres of Railways as

contended.”

5(supra)

[14]

14. We do believe in the conspectus of the aforesaid discussion that the

correct perspective has been taken in V.N. Narayanappa & Ors.6

 insofar

as which clause of the 6th CPC recommendations would be applicable.

We find that once we come to the conclusion that the regional offices of

the Railways are to be treated as non-Secretariat Organizations, then the

specific recommendations in para 3.1.14 relating to such non-Secretariat

Organizations will apply. The observations made in para 3.1.9 which are

qua Secretariat offices giving parity between the Private

Secretary/equivalent to a Section Officer cannot be said to be mutatis

mutandis applicable even to non-Secretariat Organizations. If we were to

opine otherwise and equate everybody there would have been no purpose

in the 6th CPC making separate recommendations for non-Secretariat

Organizations in their wisdom. It is not as if the Commission was

unaware of the plea of disparity between the Secretariat and field offices

as that was dealt with in paras 3.1.2 and 3.1.3 but despite having taken

note of the same some difference was sought to be made between

Secretariat and non-Secretariat offices.

15. The Pay Commission is a specialized body set up with the

objective of resolving anomalies. It is relevant to note that the anomaly in

6(supra)

[15]

question was referred to the Pay Commission at the request of candidates

similarly situated to the respondents and thus, the 6th CPC was aware of

the claim for parity and the requirement of making a recommendation in

that regard. In its wisdom while giving better scales it has still sought to

maintain a separate recommendation for non-Secretariat Organizations.

16. We may also notice another aspect. There is a plea by the

respondents that the recruitment process for the two cadres was common

and persons used to be transferred from one to the other. Some

illustrations have been given of this. In fact, the plea of the respondents

is that there have been times when a common competitive exam was

conducted and sometimes the exams were conducted separately. In this

regard, it has been explained by the learned Additional Solicitor General

on behalf of the appellants that the cadres are separate and the rules

governing them are also separate. The Stenographers under the Railway

Board are governed by the RBSS Rules, 1971, the Central Secretariat

Stenographers are governed by the CSS Rules, 1969 and the CSSS Rules,

2010 and the Stenographers in the Central Administrative Tribunal are

governed by the CATSS Rules, 2013. These are the posts with which the

respondents sought parity. On the other hand, the respondents working in

the Zonal Railways were governed by Rule 107 of the Indian Railway

[16]

Establishment Code. The avenue and channel of promotion of

stenographers in the Railway Board and the Zonal Railways, it has been

stated, are entirely different.

17. Learned counsel for the appellants did accept that there were some

cases of transfer, but those were persons who were brought to the

Railway Board for exigency of work – it was not as if they were absorbed

in the Railway Board. There were also cases where transfers took place

from the Railway Board to the Zonal Railway offices, but that was on the

specific request of such officers and considered on a case-to-case basis

and they had to take then seniority at the bottom of the list.

18. Para 3.1.3 which dealt with the disparity between the Secretariat

and field offices has canvassed a case for parity between similarly placed

persons employed in field offices and the Secretariat; in view of the field

offices being at the cutting edge of administration. However, it came to

the conclusion that parity would need to be absolute till the grade of

Assistant. It was clearly stipulated that beyond that “it may not be

possible or even justified to grant complete parity because the hierarchy

and career progression will need to be different taking in view the

functional considerations and relativities across the board.” If this

principle is observed, the benefit cannot accrue to the respondents and we

[17]

cannot accept the plea that as a result of parity being given up to the level

of Assistant (which would put them in the grade of Rs.4200 (later

Rs.4600)), the respondents, being one post higher, would automatically

have to get one higher grade.

19. We are fortified in the view we are seeking to adopt in interpreting

the aforesaid paragraphs of the Pay Commission by the observations in

Union of India v. Tarit Ranjan Das,

7 where it was opined that the

principle of equal pay for equal work cannot be applied merely on basis

of designation. While dealing with the 5th Pay Commission

recommendations with respect to functional requirements, it was held

that there was no question of any equivalence on that basis. The said

case dealt with Stenographers of the Geological Survey of India. While

observing that as a general statement it was correct to state that the basic

nature of work of a Stenographer remained by and large the same

whether they were working for an officer in the Secretariat or for an

officer in a subordinate office; it was held that Courts ought not to

interfere if the Commission itself had considered all aspects and after due

consideration opined that absolute equality ought not to be given.

7(2003) 11 SCC 658.

[18]

20. In the end we would like to reiterate that the aspect of disparity

between the Secretariat and the field offices was a matter taken note of by

the Commission itself while making the recommendations. Yet to some

extent, a separate recommendation was made qua Secretariat

Organizations and non-Secretariat Organizations. Once these

recommendations are separately made, to direct absolute parity would be

to make the separate recommendations qua non-Secretariat Organizations

otiose. If one may say, there would have been no requirement to make

these separate recommendations if everyone was to be treated on parity

on every aspect.

21. In view of the aforesaid reasons, we find the impugned judgment,

which in turn relies upon other orders passed by different Tribunals and

Courts unsustainable, and is accordingly set aside.

22. The appeals are accordingly allowed.

23. We hope this puts to rest this controversy which has been agitated

before different forums without receiving a final reasoned view of this

Court.

...……………………………J.

[Sanjay Kishan Kaul]

[19]

...……………………………J.

[Hrishikesh Roy]

New Delhi.

August 31, 2021.

[20]

issuing an oral direction restraining the arrest of the first respondent was irregular.-Oral directions of this nature by the High Court are liable to cause serious misgivings. Such a procedure is open to grave abuse. Most High Courts deal with high volumes of cases. Judicial assessments change with the roster. Absent a written record of what has transpired in the course of a judicial proceeding, it would set a dangerous precedent if the parties and the investigating officer were expected to rely on unrecorded oral observations. 25. We are conscious of the fact that in civil proceedings, Counsel appearing on behalf of the contesting parties do in certain cases mutually agree before the court to an ad interim arrangement and agree among themselves to record the terms of the arrangement by an exchange of correspondence between the advocates. This can typically happen when civil disputants are attempting an amicable settlement. Civil cases involve disputes between two private contestants.

1

REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

Criminal Appeal No. 884 of 2021

Arising out of SLP (Crl) No.4617 of 2021

Salimbhai Hamidbhai Menon …Petitioner

Versus

Niteshkumar Maganbhai Patel & Anr. …Respondents

O R D E R

Dr Dhananjaya Y Chandrachud, J

1. This appeal arises from a judgment dated 31 March 2021 of a Single Judge of

the High Court of Gujarat.

2. On 10 October 2010, the appellant and the first respondent entered into a

deed of partnership under which a firm by the name of Calla Associates was

constituted. The share of the first respondent in the profit / loss is alleged to be 55

per cent while the share of the appellant, 45 per cent. On 21 June 2017, a document 

2

styled as ‘’sammati-lekh’’ was allegedly entered into by the appellant consenting to

the execution of a sale deed in favour of a third party and the appellant agreed not to

make any claim in the amount of Rs 3.89 crores from his capital investment.

3. On 23 August 2017, an addendum to the “sammati-lekh” is alleged to have

been executed in terms of which certain amounts were to be adjusted and an

amount of Rs 5.03 crores was to be paid by the first respondent to the appellant. It

has been alleged that under the terms of the addendum, a sale deed of certain land

situated at Mouje Samiyala was to be executed in favour of the appellant.

4. It has been alleged that on 4 September 2017, a document was prepared and

notarised on 8 September 2017 pertaining to record the relinquishment of rights by

the appellant from a parcel of land belonging to the firm. The allegation of the

appellant is that under the terms of the original document, the appellant agreed to

relinquish rights only in certain land situated at Akota, Vadodara. However, it is

alleged that the first respondent forged the internal pages of the document and

added additional survey numbers of land, over and above what was agreed to be

relinquished.

5. On 1 November 2017, an advocate’s notice was issued by the appellant to

the first respondent which was followed by a public notice on 2 January 2018

alleging misappropriation of the amount invested by the appellant. In a reply dated 5

January 2018, the respondent suggested that partnership had been mutually

dissolved and documents had been executed to that effect. 

3

6. On 25 January 2018, a legal notice was issued by the appellant complaining

of the dishonour of a cheque of Rs 1.47 crores and on 7 January 2018, of another

cheque in the amount of Rs 81.31 lacs.

7. On 31 January 2018, the appellant addressed a communication to the

bankers to cease all transactions in the account of the partnership firm due to

disputes between the parties.

8. On 22 February 2018, the appellant received a communication from HDFC

Bank recording that the bank had received a document allegedly executed on 8

September 2017 by which the appellant had relinquished all his rights in the firm in

favour of the first respondent. The appellant alleges that it was then that he came to

know that the first respondent has fabricated the deed of dissolution of partnership

dated 10 February 2018. This forged deed allegedly contained a reference to

another forged document dated 8 September 2017. According to the appellant, his

signature on the deed of dissolution of partnership is forged and another copy of the

document without his signature was notarised on 23 February 2018.

9. On 25 February 2018, the investigating officer at JP Road Police Station

conducted a preliminary enquiry into a complaint lodged by the appellant, which is

stated to have been disposed of on the ground that the first respondent was ready to

settle the accounts in the presence of a mediator and that the allegations were of a

civil nature. 

4

10. On 12 March 2018, a settlement was arrived at between the appellant and the

first respondent in terms of which it was agreed that the partnership be dissolved

and a sum of Rs 26.03 crores be paid to the appellant. Post-dated cheques were

issued to the appellant. One of Rs 50 lacs was honoured while the remaining

cheques were dishonoured, leading to the initiation of proceedings under the

Negotiable Instruments Act 1881.

11. On 20 June 2018, the appellant instituted a complaint before the Gotri Police

Station against the first respondent making allegations of forgery and cheating.

12. On 24 December 2018, a fresh MoU was entered between the appellant and

the first respondent which acknowledged that an amount of Rs 50 lacs was paid,

while a balance of Rs 25.52 crores remained due. The terms of the MoU envisaged

that certain lands would be transferred to the appellant in lieu of the outstanding

amount. The appellant has alleged that fresh cheques issued to him also returned

unpaid on 6 March 2020 and the sale deeds which were executed by the first

respondent were in respect of lands whose title was not marketable. The complaint

filed by the appellant was disposed of by the Gotri Police Station on 25 August 2019

in view of the settlement dated 24 December 2018 on the ground that despite

repeated requests, the appellant had not come forth to record his statement and it

appeared that the matter involved monetary transactions for which the appellant

would have to seek redressal before the appropriate court. 

5

13. On 9 July 2020, the first respondent got an FIR registered before the

Vadodara City Police Station alleging an act of forgery on the part of the appellant.

On 9 October 2020, the investigating officer filed a ‘B’ summary report recording that

the alleged document dated 8 September 2017 had not been forged by the appellant

but by the first respondent.

14. On 6 December 2020, the FIR which forms the basis of the present

proceedings was registered, alleging the commission of offences punishable under

Sections 405, 420, 465, 467, 468 and 471 of the Penal Code. The gravamen of the

allegations in the FIR is that:

a. The deed of relinquishment which was prepared in relation to certain lands

situated at Akota had been interpolated and forged by the first respondent;

b. The deed of dissolution of partnership has been fabricated; and

c. Despite the settlement dated 24 December 2018, the amount due to the

appellant had not been paid and the title to the lands which were purported to

be transferred in favour of the appellant is in dispute.

15. The first respondent instituted proceedings under Section 482 of the Code

of Criminal Procedure 1973 (“CrPC”) for quashing the FIR, being Criminal Misc.

Application No 19358 of 2020.

16. On 23 December 2020, when the proceedings were initially moved before the

High Court, an order was passed by the Single Judge recording that :

“ The matter is between the partners and there appears

allegation that some of the partners have taken advantage 

6

and siphoned away amount as well as also made falsification

of documents. “

Counsel appearing on behalf of the first respondent urged that he was willing to offer

a settlement. Since Counsel for the parties sought time to explore the possibility of a

settlement, the proceedings were adjourned to 10 February 2021. On 8 March 2021,

the first respondent was arrested. When the proceedings were taken up by the

Single Judge on 9 March 2021, the Court recorded the submission of the first

respondent that on 23 December 2020, an oral direction had been issued by the

Court restraining the arrest of the first respondent. Recording that this statement

was not disputed on behalf of the appellant, the Single Judge directed that the first

respondent should forthwith be released by the Vadodara Police Station if he was

arrested in connection with the FIR which was the subject matter of the petition for

quashing. The proceedings were adjourned to 15 March 2021. On 15 March 2021,

the proceedings were adjourned to 22 March 2021 with a direction that no steps

should be taken against the first respondent till 23 March 2021. Eventually, on 31

March 2021, the Single Judge recorded that:

“5. … prima facie it appears that the complaints are with

respect to business transactions between both the parties. It

further appears that there are some dues which are payable

by the present applicant and FIR came to be filed against

applicant. On 6.12.2020 by the respondent No.2 which is

subject matter of present petition. It is alleged that the

documents dated 8.9.2017 and 10.2.2018 are forged

documents. There was one complaint filed by the present

application against respondent No.2 on 9.7.2020 wherein B

Summary report was filed which is at pages 38 to 57. The

said report has culminated in a proceedings before the

learned Magistrate Court, Vadodara. Those proceedings are

also pending.” 

7

The Single Judge noted that previously the appellant had filed a similar complaint

which was disposed of by the investigating officer and it was then that a new

settlement was arrived at which, formed the basis of the FIR in question. After

extracting the earlier orders dated 23 December 2020 and 9 March 2021, the Single

Judge issued the following directions in paragraph 9 of the impugned order:

“9. At this juncture when the proceedings are clearly pending

between the parties and both of them have set the criminal

machinery in action, to strike a balance between both the

parties the investigation is required to be proceeded, however

the present applicant be not arrested till next date of hearing,

S.O. to 28.4.2021.”

17. This order has given rise to the appeal before this Court.

18. We have heard Mr Anshin H Desai, Senior Counsel appearing on behalf of

the appellant, Mr Manoj Swarup, Senior Counsel for the first respondent and Mr

Kanu Agrawal, Counsel for the State of Gujarat.

19. Mr Desai, Senior Counsel appearing on behalf of the appellant submits that:

(i) An FIR was lodged on 6 December 2020 containing serious allegations

involving:

a. Interpolation of the deed of relinquishment executed by the appellant

with the consequence that whereas the interest in only one property at

Akota was relinquished, several additional properties have been

included and the nature of the interpolation would be obvious on a bare

perusal of the documents which have been annexed to the paper book;

8

and

b. The deed of dissolution of partnership is purported to have been

executed on a day when the appellant was not present in India but was

traveling to Dubai;

(ii) The FIR has been registered on the basis of the above allegations

implicating the commission of offences punishable under Sections 405,

420, 465, 467, 468 and 471 of the Penal Code;

(iii) On the representation made by the first respondent, successive

Memorandum of Understandings (“MoU” or “MoUs”) were entered into

between the appellant and the first respondent; and

(iv) Pursuant to the settlement, the cheques which were issued by the first

respondent have been dishonoured and the title to the lands which were

purported to be transferred to the appellant is under a cloud and is not

marketable.

In this backdrop, it was urged that in view of the consistent position in law laid down

by this Court, the High Court was not justified in issuing a direction restraining the

arrest of the first respondent till the next date of listing without reasons .

20. On the other hand, Mr Manoj Swarup, learned Senior Counsel appearing on

behalf of the first respondent submitted that:

(i) In terms of the MoU several parcels of land have been transferred to the

appellant, details of which have been tabulated as followed in the Counter

Affidavit:

9

(ii) These parcels of land have been transferred to the appellant in terms of

the MoUs executed on 12 March 2018 and 24 December 2018 in addition

to which a payment of Rs 50 lacs has been made by cheque. As a result,

out of the agreed payment of Rs 26.02 crores to be made to the appellant,

10

25.52 crores have been paid or value has been received;

(iii) The appellant has received the benefit of the settlements which have been

arrived at between the parties and lands have been transferred to him;

(iv) On the earlier complaint lodged by the appellant, a ‘B’ summary was filed

by the Gotri Police Station recording that the appellant had not come forth

to record his statement and the transaction between the parties appeared

to be of a monetary nature;

(v) By August 2019, these parcels of land were transferred to the appellant in

pursuance of the settlements dated 12 March 2018 and 24 December

2018; and

(vi) The order of the High Court dated 31 March 2021 continued to remain in

operation due to the general orders operating during the second wave of

the pandemic.

21. Mr Kanu Agrawal, learned Counsel appearing on behalf of the State of

Gujarat has submitted that the impugned order of the High Court refers to the

submission of the police report by the APP which was taken on the record and that

the police report has adverted to the forgery of two valuable documents namely, the

deeds of relinquishment and dissolution of partnership.

22. After the High Court was moved in proceedings under Section 482 of the

CrPC for quashing the FIR, an order was initially passed on 23 December 2020,

recording the statement of Counsel for the first respondent that he was ready and

willing to offer a settlement. Since Counsel for the parties desired to explore the 

11

possibility of a settlement, the proceedings were adjourned to 10 February 2021.

The text of the order of the High Court did not contain any direction restraining the

arrest of the first respondent. But it appears from the subsequent order dated 9

March 2021 that an oral direction was issued by the Single Judge not to arrest the

first respondent. In its order dated 9 March 2021, the High Court adverted to the

submission of Counsel for the first respondent that such a direction was previously

issued, which was not disputed by the appellant. Since the first respondent was

arrested on 8 March 2021, he was directed to be released forthwith.

23. The procedure followed by the High Court of issuing an oral direction

restraining the arrest of the first respondent was irregular. If after hearing the parties

on 23 December 2020, the High Court was of the view that an opportunity should be

granted to Counsel for the appellant and the first respondent to explore the

possibility of a settlement and, on that ground, an interim protection against arrest

ought to be granted, a specific judicial order to that effect was necessary. Oral

observations in court are in the course of a judicial discourse. The text of a written

order is what is binding and enforceable. Issuing oral directions (presumably to the

APP) restraining arrest, does not form a part of the judicial record and must be

eschewed. Absent a judicial order, the investigating officer would have no official

record emanating from the High Court on the basis of which a stay of arrest is

enforced. The administration of criminal justice is not a private matter between the

complainant and the accused but implicates wider interests of the State in

preserving law and order as well as a societal interest in the sanctity of the criminal 

12

justice administration. Though in a different context, the principle was set down by

this Court in Zahira Habibulla H. Sheikh v State of Gujarat1 :

“35. This Court has often emphasized that in a criminal case

the fate of the proceedings cannot always be left entirely in

the hands of the parties, crimes being public wrongs in

breach and violation of public rights and duties, which affect

the whole community as a community and are harmful to the

society in general. The concept of fair trial entails familiar

triangulation of interests of the accused, the victim and the

society and it is the community that acts through the State

and prosecuting agencies. Interests of society are not to be

treated completely with disdain and as persona non grata.

Courts have always been considered to have an overriding

duty to maintain public confidence in the administration of

justice — often referred to as the duty to vindicate and uphold

the “majesty of the law”…..”

24. Oral directions of this nature by the High Court are liable to cause serious

misgivings. Such a procedure is open to grave abuse. Most High Courts deal with

high volumes of cases. Judicial assessments change with the roster. Absent a

written record of what has transpired in the course of a judicial proceeding, it would

set a dangerous precedent if the parties and the investigating officer were expected

to rely on unrecorded oral observations.

25. We are conscious of the fact that in civil proceedings, Counsel appearing on

behalf of the contesting parties do in certain cases mutually agree before the court

to an ad interim arrangement and agree among themselves to record the terms of

the arrangement by an exchange of correspondence between the advocates. This

can typically happen when civil disputants are attempting an amicable settlement.

Civil cases involve disputes between two private contestants. In criminal

 1 (2004) 4 SCC 158

13

proceedings, apart from the accused and the complainant, there is a vital interest of

the State and of society in the prosecution of crime. The procedure which was

followed by the Single Judge must therefore be eschewed in the future. Judges

speak through their judgments and orders. The written text is capable of being

assailed. The element of judicial accountability is lost where oral regimes prevail.

This would set a dangerous precedent and is unacceptable. Judges, as much as

public officials over whose conduct they preside, are accountable for their actions.

26. The Single Judge, by the impugned order dated 31 March 2021 issued an ad

interim protection against arrest till the next date of listing. The only reasons which

are to be found in the order of the Court are that:

(i) Proceedings are pending between the parties; and

(ii) Both of them have set the criminal machinery in action.

27. Having recorded this, the Single Judge has granted a stay of arrest “to strike”

a balance between both the parties while observing that the investigation may

proceed. How this would strike a balance between both the parties is unclear from

the reasons which have been adduced. The FIR contains grave allegations

involving:

(i) The interpolation of a deed of relinquishment so as to cover a significantly

larger number of properties than the sole property which was agreed to be

relinquished; and

(ii) The fabrication of a deed of dissolution of partnership. 

14

28. The offences which are alleged to be involved are punishable under the

provisions of Sections 405, 420, 465, 467, 468 and 471 of the Penal Code. These

offences are of a serious nature. The APP had evidently apprised the Single Judge

of the police report dated 31 March 2020, to which a reference has been made by

the Counsel of the State of Gujarat, as noted earlier. While an order granting a stay

of arrest in a proceeding under Section 482 of the CrPC lies within the jurisdiction of

the High Court, the grant of such relief must be after a judicious application of mind,

which must emerge from the reasons which are recorded by the Judge. The

formulation of reasons in a judicial order provides the backbone of public confidence

in the sanctity of the judicial process. While directing that the proceedings are to be

listed on a future date, the High Court is undoubtedly not expected to deliver a

detailed judgment elaborating upon reasons why a stay of arrest has been granted.

But the reasons recorded by the Court must reflect an application of mind to relevant

facts and circumstances, including:

(i) The nature and gravity of the allegations;

(ii) The seriousness of the alleged offence(s);

(iii) The position of the accused and the likelihood of their availability for

investigation; and

(iv) The basis on which a stay of arrest has been granted till the next date.

29. The High Court has not alluded to the allegations made in the FIR. This

constitutes a serious deficiency. The petition before the High Court is for quashing

the FIR under section 482. While determining whether to grant ad-interim relief in 

15

such a case, involving a stay of arrest, the High Court must bear in mind the

parameters for the exercise of the jurisdiction for quashing, which has been invoked.

The interim order of a stay of arrest is in aid of the final relief which is sought in the

petition. Hence, the considerations germane to the exercise of the jurisdiction to

quash an FIR must be present to the mind while deciding whether an interim stay of

arrest is warranted. What is present to the mind must emerge from the text of the

order. In the recent judgment in Neeharika Infrastructure Pvt Ltd. v. State of

Maharashtra2

, this Court through one of us (Justice MR Shah) formulated the

principles which have to be borne in mind by the High Court, when its intervention is

sought under Section 482 of the CrPC to quash an FIR. After setting out the

principles, the Court observed:

“59. Before passing an interim order of staying further

investigation pending the quashing petition under Section 482

Cr.P.C. and/or Article 226 of the Constitution of India, the

High Court has to apply the very parameters which are

required to be considered while quashing the proceedings in

exercise of powers under Section 482 Cr.P.C. in exercise of

its inherent jurisdiction, referred to hereinabove.”

30. Expressing a caution, which requires the High Courts to be circumspect in

interfering with investigation, the Court noted:

“60. In a given case, there may be allegations of abuse of

process of law by converting a civil dispute into a criminal

dispute, only with a view to pressurize the accused. Similarly,

in a given case the complaint itself on the face of it can be

said to be barred by law. The allegations in the FIR/complaint

may not at all disclose the commission of a cognizable

offence. In such cases and in exceptional cases with

circumspection, the High Court may stay the further

investigation. However, at the same time, there may be

genuine complaints/FIRs and the police/investigating agency

 2 2021 SCC OnLine SC 315

16

has a statutory obligation/right/duty to enquire into the

cognizable offences. Therefore, a balance has to be struck

between the rights of the genuine complainants and the FIRs

disclosing commission of a cognizable offence and the

statutory obligation/duty of the investigating agency to

investigate into the cognizable offences on the one hand and

those innocent persons against whom the criminal

proceedings are initiated which may be in a given case abuse

of process of law and the process. However, if the facts are

hazy and the investigation has just begun, the High Court

would be circumspect in exercising such powers and the High

Court must permit the investigating agency to proceed further

with the investigation in exercise of its statutory duty under

the provisions of the Code. Even in such a case the High

Court has to give/assign brief reasons why at this stage the

further investigation is required to be stayed. The High Court

must appreciate that speedy investigation is the requirement

in the criminal administration of justice.”

This Court observed that while there may be some cases where the initiation of the

criminal proceedings may be an abuse of law, it is in cases of an exceptional nature,

where it is found that absence of interference would result in a miscarriage of justice,

that the Court may exercise its jurisdiction under Section 482 of the CrPC and Article

226 of the Constitution. This Court has disapproved of interim orders of High Courts

which grant stay of arrest or which direct that no coercive steps must be taken

against the accused, without assigning reasons. The impugned order of the High

Court cannot be sustained on the touchstone of the principles which have been

consistently laid down by this Court and reiterated in the above decision.

31. In Parbatbhai Aahir alias Parbatbhai Bhimsinhbhai Karmur v. State of

Gujarat3

, this Court formulated the governing principles to guide the exercise of

powers under Section 482 of the CrPC. Speaking for the three judge Bench, one of

 3 (2017) 9 SCC 641

17

us (Dr DY Chandrachud) observed:

“(1) Section 482 CrPC preserves the inherent powers of the

High Court to prevent an abuse of the process of any court or

to secure the ends of justice. The provision does not confer

new powers. It only recognise and preserves powers which

inhere in the High Court.

(2) The invocation of the jurisdiction of the High Court to

quash a first information report or a criminal proceeding on

the ground that a settlement has been arrived at between the

offender and the victim is not het same as the invocation of

the jurisdiction for the purpose of compounding an offence.

While compounding an offence, the power of the court is

governed by the provisions of Section 320 CrPC. The power

to quash under Section 482 is attracted even if the offence is

non-compoundable.

(3) In forming an opinion whether a criminal proceeding

or complain should be quashed in exercise of its jurisdiction

under Section 482, the High Court must evaluate whether the

ends of justice would justify the exercise of the inherent

power.

(4) While the inherent power of the High Court has a wide

ambit and plenitude it has to be exercised (i) to secure the

ends of justice, or (ii) to prevent an abuse of the process of

any court.

(5) The decision as to whether a complaint or first information

report should be quashed on the ground that the offender and

victim have settled the dispute, revolves ultimately on the

facts and circumstances of each case and no exhaustive

elaboration of principles can be formulated.

(6) In the exercise of the power under Section 482 and

while dealing with a plea that the dispute has been settled,

the High Court must have due regard to the nature and

gravity of the offence. Heinous and serious offences involving

mental depravity or offences such as murder, rape and deceit

cannot appropriately be quashed though the victim or the

family of the victim have settled the dispute. Such offences

are, truly speaking, not private in nature but have a serious

impact upon society. The decision to continue with the trial in

such cases is founded on the overriding element of public

interest in punishing persons for serious offences.

(7) As distinguished from serious offences, there may be

criminal cases which have an overwhelming or predominant

element of a civil dispute. They stand on a distinct footing

insofar as the exercise of the inherent power to quash is

concerned. 

18

(8) Criminal cases involving offences which arise from

commercial, financial, mercantile, partnership or similar

transactions with an essentially civil flavour may in

appropriate situations fall for quashing where parties have

settled the dispute.

(9) In such a case, the High Court may quash the

criminal proceeding if in view of the compromise between the

disputants, the possibility of a conviction is remote and the

continuation of a criminal proceeding would cause oppression

and prejudice; and

(10) There is yet an exception to the principle set out in

Propositions (8) and (9) above. Economic offences involving

the financial and economic well-being of the State have

implications which lie beyond the domain of a mere dispute

between private disputants. The High Court would be justified

in declining to quash where the offender is involved in an

activity akin to a financial or economic fraud or

misdemeanour. The consequences of the act complained of

upon the financial or economic system will weigh in the

balance.”

32. We are conscious of the fact that in the present case the petition for quashing

is still pending before the High Court. At the same time, the High Court was moved

for the grant of ad interim relief in a petition for quashing the FIR. The considerations

which ought to weigh in whether or not to exercise the jurisdiction to quash must be

present in the mind of the Judge while determining whether an interim order should

be made. That these considerations have been borne in mind can only be evident

from the reasons, however brief, which have been indicated in the order of the High

Court. This does not emerge from the impugned order of the High Court. 

19

33. We accordingly allow the appeal and set aside the impugned order of the

High Court dated 31 March 2021. The High Court, it is clarified would be at liberty to

proceed to deal with the petition under Section 482 of the CrPC which is pending

consideration. The appeal is disposed of in the above terms.

34. Pending application(s), if any, stand disposed of.

…………...…...….......………………........J.

 [Dr Dhananjaya Y Chandrachud]

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

 [MR Shah]

New Delhi;

August 31, 2021.