mere findings of fact cannot be interfered with in exercise of second appellate jurisdiction given the three limbs of jurisdiction available under Section 41 of the Punjab Courts Act. Findings of fact which are unreasonable, or which are rendered by overlooking the record, therefore, per se do not appear to fall within the scope of second appellate review by the High Court. In these circumstances, the High Court's findings – which are based entirely on the reappreciation of the record – and consequent interference with the concurrent findings of the lower courts, cannot be upheld.

1

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

 CIVIL APPEAL NO. OF 2021

 (ARISING OUT OF SLP (C) NO. 35655 OF 2016)

AVTAR SINGH & ORS. ...APPELLANT(S)

VERSUS

BIMLA DEVI & ORS. ...RESPONDENT(S)

JUDGMENT

S. RAVINDRA BHAT, J.

1. Special leave granted. Counsel for parties were heard, with their consent, for

final disposal of the appeal which questions a judgment and order of the Punjab and

Haryana High Court1

.

2. The relevant facts are that the property marked 'ABCD' in the site plan

(produced along with the suit), located at GT Road, Shahabad Markanda was

purchased in the name of the first defendant, allegedly in lieu of claim of properties

left in Pakistan. It was stated that the joint family properties belonged to a Hindu

undivided family consisting of second plaintiff (hereafter Rajpal), his father and the

first defendant (hereafter Girdhari Lal). Girdhari Lal being brother of Rajpal agreed

to sell portion marked 'GFEDCB' along with the first floor roof of the entire building

(marked ‘ABCD’) to Rajpal’s wife, Bimla Devi (the first plaintiff/first respondent,

referred to by her name hereafter) for a total consideration of ₹ 2500/- in 1961. This

sum was allegedly received by Girdhari Lal who agreed to execute the sale deed as

1Dated 24.8.2016 in RSA 932/2010 (O & M).

2

and when required by Bimla Devi. Girdhari Lal also delivered possession to Rajpal

and since then the plaintiffs claim to have been in peaceful possession of the

property. The suit alleged that Girdhari Lal was left with no right, title or interest in

the suit property except a formal sale deed which remained to be executed. In the

year 1978, Bimla Devi purchased portion marked 'IHDA' shown in blue colour in the

site plan and thereafter the plaintiffs demolished the existing construction and

constructed a residential house in portion marked 'OJHC'. They also reconstructed the

shop marked 'GFOB' and 'IJEA'. The plaintiffs being in exclusive possession as

prospective purchasers, also constructed a residential house on the entire portion

marked 'IHCB' on the first floor, which includes the portion purchased by the

plaintiffs in 1978. The Market Committee, Shahabad (M) assessed the portion

marked 'OJHC' as a separate unit (bearing No. 647, Ward No. 13, Shahabad (M)) in

the name of Bimla Devi. Since the staircase to access the roof was only in the said

residential portion and there was no access to the roof from any other side as such,

the roof too was in their exclusive possession.

3. The suit alleged that on 05.03.2000, Defendant Nos. 2 to 4 broke the lintel

portion of the roof (from point X to Y shown in the site plan, of the first floor)

illegally and with intention to take forcible possession of the plaintiffs’ house

constructed on the first floor. It was also alleged that they had secretly constructed a

staircase in the portion marked 'AEFG' for forcible occupation of the first floor of the

building.

4. Girdhari Lal, in his written statement denied that the plaintiffs had any cause of

action and claimed that they lacked locus standi to file and maintain the suit. The

written statement alleged that the property which was acquired in his name in the

year 1961 did not belong to any Hindu joint family as alleged by the plaintiffs, as he

had spent his own funds. He denied entering into an agreement to sell the property to

Rajpal, and claimed that he had neither received any sale consideration nor handed

over possession to Rajpal. Girdhari Lal sold the shop marked 'AGFE' to the second 

3

defendant (hereafter, Avtar Singh) by a registered sale deed dated 06.08.1999

together with first floor of the shop. It was alleged that Avtar Singh was in exclusive

possession of the property ever since.

5. The allegations in the written statement of Girdhari Lal, were endorsed by

Defendant Nos. 2 to 4 in a joint written statement. They reiterated that Avtar Singh

purchased the shop in dispute from Girdhari Lal along with chaubara (a room

surrounded by door/windows on all fours sides) situated on the roof, for a valuable

consideration of ₹ 3 lakhs by a sale deed dated 06.08.1999 and possession was

delivered to him. Avtar Singh was in possession of the shop for over 30 years prior to

the purchase as a tenant and doing business of spare parts of electrical goods and

submersible pumps. It was urged that the defendants are in peaceful possession of the

shop, roof as well as chaubara constructed thereon.

6. The trial court and the first appellate court after considering the evidence on

record - including the report of a local commissioner who, pursuant to the orders

made during the trial, visited the site - dismissed the suit. Bimla Devi (the first

plaintiff) preferred a second appeal. The High Court, framed a substantial question of

law, as required by Section 100 of the Code of Civil Procedure (CPC) which reads as

follows:

“Whether the findings of the Courts below in regard to claim of the appellants

qua their possession of the chobaras on the first floor of the three shops and

mandatory injunction to close the holes in the lintel of the shop in occupation of

Avtar Singh are the result of ignoring material evidence and misreading of

evidence rendering it perverse”.

The High Court answered the substantial question, in favour of the plaintiffs, Bimla

Devi and Rajpal, and, consequently allowed the second appeal, thus resulting in

decree of the suit. The High Court’s judgment is impugned before this Court.

7. Mr. K.K. Mohan, learned counsel appearing for the appellants/defendants

argued that the impugned judgment is in clear error of law because it upsets

concurrent findings of fact, based upon a complete misappreciation of the 

4

circumstances bearing from the record. Mr. Mohan underlines that the substantial

question of law framed by the High Court cannot be termed as falling within the

framework of Section 100 CPC. He complained that the High Court assumed

perversity on the part of the reasoning of the trial court and the district court and

ignored relevant and material evidence in the form of documents as well as the oral

depositions.

8. It was argued by the appellant that Avtar Singh is the father of the other two

defendants (Defendant Nos. 3 and 4); they purchased the shop in question, measuring

43.33 square yards along with the disputed chaubara for ₹ 3 lakhs by a registered

sale deed in 1999 from Girdhari Lal, who died during the pendency of the suit. This

fact was appreciated by the trial court, which gave credence to the registered

document rather than the allegations in the suit that a prior agreement to sell – which

was an unregistered document – was executed, favouring Bimla Devi and Rajpal, and

on which they based their claim.

9. It was urged that the entire story of the respondents/plaintiffs was that Rajpal

Singh was brother of Girdhari Lal and he purchased the northern half portion of the

building received by the latter, in lieu of his claim. This was a false and concocted

story, disbelieved quite rightly, by the trial court. In fact, they argued that this was not

supported by evidence of any kind. The court noticed that there was due execution of

the sale deed dated 06.08.1999 (exhibited as Ex.D-1) during the course of the trial.

This document unequivocally stated that the chaubara was part and parcel of the

property purchased by Avtar Singh. In the absence of a challenge to that sale deed,

that Rajpal and Bimla Devi had purchased the property through an agreement (Ex. P3 dated 24.08.1999) merely 18 days after the execution of Ex.D-1, was not believed.

That claim was never taken in the plaint filed by the respondent Bimla Devi but saw

the light of the day only during the trial. Consequently, the so-called agreement

(Ex.P-3) was disbelieved and discredited by both the trial court and the first appellate

court. This aspect was completely brushed aside by the High Court which proceeded 

5

to discuss the pure findings of fact even though it purported to frame substantial

questions of law.

10. It was urged that once the plaintiffs admitted to the due execution of Ex.D-1,

the evidence appreciated by the High Court and its observations that it was agreed by

the parties that ownership of the suit property was pending adjudication in separate

proceedings was a superfluity and untenable. Mr. Mohan also submitted that the

plaintiffs had admitted to Avtar Singh’s tenancy prior to the execution of Ex.D-1. It

was highlighted that the lower courts gave importance to the fact that the registered

document could not be brushed aside and its contents had to be taken at face value. It

was submitted that in view of all these factors, the interference by the High Court

with concurrent findings of fact was unwarranted.

11. Mr. Tarunvir Singh Khehar, learned counsel appearing for the

respondents/plaintiffs supported the judgment in appeal. He submitted that the suit

averments clearly mentioned that after the agreement to sell was entered into in 1978,

the plaintiffs were given possession with the property. It was underlined that the

plaintiffs reconstructed portions of the property and clearly mentioned that on the

first floor of the three shops, there were two portions. It was importantly argued that

the dimensions of the chaubara were different from what was alleged by the

appellants/defendants.

12. Learned counsel appearing for the respondents/plaintiffs also drew the

attention of this court to the report of the Local Commissioner which had been

challenged. He submitted that the Commissioner was asked to inspect the site and

report to the trial court about the precise dimensions of the various premises. It was

stated that Avtar Singh’s possession in the capacity as owner of the shop was not a

matter of dispute, and what was in issue was only regarding the possession of the

chaubara. Learned counsel submitted that the dimensions alleged in the plaint and

the dimensions of the chaubara found on the first floor were in accord with each

other. It was also submitted that the allegations in the suit that holes had been drilled 

6

on the lintels in order to make separate staircase from within the shop premises (of

Avtar Singh) was borne out because the Local Commissioner found such holes.

Analysis and Conclusions

13. One of the main arguments of the appellants/defendants is that the impugned

judgment is erroneous, because it upsets concurrent findings of fact. It is emphasized

that even though a substantial question of law was framed for consideration in the

second appeal, the exercise of jurisdiction and interference in the findings of the two

lower courts, was unwarranted.

14. The Local Commissioner's report corroborated the respondents/plaintiffs' case

that a staircase did not exist, or rather that it was in the stage of construction and was

not completed. The report also bore out the plaintiffs’ allegation that holes had been

made in the lintel of the roof. Furthermore, the dimensions of the chaubara, as found

by the Local Commissioner, differed from what was stated by Avtar Singh.

15. From an overall discussion of the evidence, it is apparent that undeniably Avtar

Singh's possession - and perhaps even ownership - of the ground floor shop, could

not be denied. The findings of the lower courts, therefore, based upon the registered

documents cannot be faulted. However, both these courts ignored the other evidence -

in the form of the Local Commissioner's report - with regard to the issue of

possession of the chaubara. The Local Commissioner was neither cross-examined,

nor was his report objected to.

16. In these circumstances, the question that arises, is whether the High Court

justly interfered with what are unquestionably, concurrent findings of fact. This court

in its five-judge bench ruling, in Pankajakshi v. Chandrika2 held that the provisions

of Section 41 of the Punjab Courts Act, 1918 continued to be in force, and not

Section 100 CPC. The Court observed that:

2

(2016) 6 SCC 157.

7

“27. …. Section 41 of the Punjab Courts Act is of 1918 vintage. Obviously, therefore,

it is not a law made by the Legislature of a State after the Constitution of India has

come into force. It is a law made by a Provincial Legislature under Section 80A of

the Government of India Act, 1915, which law was continued, being a law in force in

British India, immediately before the commencement of the Government of India Act,

1935, by Section 292 thereof. In turn, after the Constitution of India came into force

and, by Article 395, repealed the Government of India Act, 1935, the Punjab Courts

Act was continued being a law in force in the territory of India immediately before

the commencement of the Constitution of India by virtue of Article 372(1) of the

Constitution of India. This being the case, Article 254 of the Constitution of India

would have no application to such a law for the simple reason that it is not a law

made by the Legislature of a State but is an existing law continued by virtue of

Article 372 of the Constitution of India. If at all, it is Article 372(1) alone that would

apply to such law which is to continue in force until altered or repealed or amended

by a competent Legislature or other competent authority. We have already found that

since Section 97(1) of the Code of Civil Procedure (Amendment) Act, 1976 has no

application to Section 41 of the Punjab Courts Act, it would necessarily continue as

a law in force.”

As a result, the previous smaller bench ruling in Kulwant Kaur v Gurdial Singh

Mann3 which held that Section 41 is inconsistent with Section 100 CPC after its

amendment in 1976, and that the latter prevails, was expressly overruled.

17. The decision in Pankajakshi (supra) came up for discussion in two subsequent

judgments of this Court. In Dhanpat v. Sheo Ram4

, citing the ruling in the earlier

decision Randhir Kaur v. Prithvi Pal Singh5

, it was held as follows:

“13. It may be noticed that in view of Constitution Bench judgment of this Court

in Pankajakshi v. Chandrika [Pankajakshi v. Chandrika, (2016) 6 SCC 157 : (2016)

3 SCC (Civ) 105] , substantial question of law may not be required to be framed in

Punjab and Haryana but still, the finding of fact recorded cannot be interfered with

even in terms of Section 41 of the Punjab Courts Act, 1918. The said question was

examined by this Court in Randhir Kaur v. Prithvi Pal Singh [Randhir

Kaur v. Prithvi Pal Singh, (2019) 17 SCC 71 : (2020) 3 SCC (Civ) 372] , wherein,

the scope for interference in the second appeal under Section 41 of the Punjab

Courts Act applicable in the States of Punjab and Haryana was delineated and held

as under : (Randhir Kaur case [Randhir Kaur v. Prithvi Pal Singh, (2019) 17 SCC

71 : (2020) 3 SCC (Civ) 372], SCC p. 80, paras 15-16)

3

(2001) 4 SCC 262.

4

(2020) 16 SCC 209.

5

(2019) 17 SCC 71.

8

“15. A perusal of the aforesaid judgments would show that the jurisdiction in

second appeal is not to interfere with the findings of fact on the ground that

findings are erroneous, however, gross or inexcusable the error may seem to be.

The findings of fact will also include the findings on the basis of documentary

evidence. The jurisdiction to interfere in the second appeal is only where there is

an error in law or procedure and not merely an error on a question of fact.

16. In view of the above, we find that the High Court [Prithvi Pal Singh v. Randhir

Kaur, 2015 SCC OnLine P&H 4792] could not interfere with the findings of fact

recorded after appreciation of evidence merely because the High Court thought

that another view would be a better view. The learned first appellate court has

considered the absence of clause in the first power of attorney to purchase land on

behalf of the plaintiff; the fact that the plaintiff has not appeared as witness.”

18. It is thus evident, therefore, that mere findings of fact cannot be interfered with

in exercise of second appellate jurisdiction given the three limbs of jurisdiction

available under Section 41 of the Punjab Courts Act. Findings of fact which are

unreasonable, or which are rendered by overlooking the record, therefore, per se do

not appear to fall within the scope of second appellate review by the High Court. In

these circumstances, the High Court's findings – which are based entirely on the

reappreciation of the record – and consequent interference with the concurrent

findings of the lower courts, cannot be upheld.

19. In view of the foregoing reasons, the impugned judgment has to be set aside.

The appeal is accordingly allowed, without orders on cost.

.......................................................J

 [K.M. JOSEPH]

......................................................J

 [S. RAVINDRA BHAT]

New Delhi,

September 29, 2021.

hile considering the effect of Section 27 of the General Clauses Act, 1897, a Bench of three Judges of this Court in C.C. Alavi Haji vs. Palapetty Muhammed and Anr2 made following observations:- “14. Section 27 gives rise to a presumption that service of notice has been effected when it is sent to the correct address by registered post. In view of the said presumption, when stating that a notice has been sent by registered post to the address of the drawer, it is unnecessary to further aver in the complaint that in spite of the return of the notice unserved, it is deemed to have been served or that the addressee is deemed to have knowledge of the notice. Unless and until the contrary is proved by the addressee, service of notice is deemed to have been effected at the time at which the letter would have been delivered in the ordinary course of business. This Court has already held that when a notice is sent by registered post and is returned with a postal endorsement “refused” or “not available in the house” or “house locked” or “shop closed” or “addressee not in station”, due service has to be presumed.

1

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NOs. OF 2021

(Arising out of Special Leave Petition (Civil)Nos……..…………………...of 2021)

(Arising out of Special Leave Petition (Civil)D.No.1855 of 2020)

VISHWABANDHU …Appellant

Versus

SRI KRISHNA AND ANR. …Respondents

J U D G M E N T

Uday Umesh Lalit, J.

1. Delay condoned.

2. Leave granted.

3. These appeals challenge: (i) the Judgment and order dated 21.04.2006

passed by the High Court1

in FAFO (First Appeal From Order) No.2473 of

2005; and (ii) the Order dated 18.10.2019 passed by the High Court in CMRA

(Civil Miscellaneous Recall Application) No. 107616 of 2009 preferred in

said FAFO No. 2473 of 2005.

1 High Court of Judicature at Allahabad

2

4. Respondent No.2 herein filed a Suit in the court of Civil Judge (Junior

Division), Mainpuri, Uttar Pradesh, for recovery of money along with interest

submitting inter alia that the defendant in the Suit i.e. Respondent No.1 herein

had failed to refund Rs.22,400/- received by him towards part sale

consideration for sale of property comprising of Gata No.1616/0.93 acres

situated at Nangle Rate, Village Panchayat Mainpuri Rural, Tehsil and

District Mainpuri. The Suit was filed on 25.05.1993 and as the summons sent

to Respondent No.1 by registered post was received back with postal

endorsement of ‘refusal’, the order dated 19.02.1997 passed by the Trial Court

was :-

“Case called out. On behalf of plaintiff her counsel is

present. Nobody present on behalf of defendant. The

registered notice which was sent to defendant, had

received with remark refusal. Notice is deemed to be

sufficient. No one is present on behalf of defendant, the

defendant is being proceed ex-party accordingly. Put

up for the ex-parte proceeding on 01.04.1997.”

The matter was thereafter adjourned on few dates and finally on

16.09.1997 an ex-parte decree was passed in favour of Respondent No.2 in

the sum of Rs.22,400/- along with interest @ 9%.

5. In the application filed by Respondent No.2 seeking execution of the

decree dated 16.09.1997, the property admeasuring 0.93 acres which was 

3

subject matter of the agreement to sell, was sought to be attached vide notice

of attachment dated 29.05.1999. Later, the property was attached vide order

dated 04.12.1999 on the basis of a report filed by the Ameen. The report

indicated that since the judgment debtor i.e. Respondent No.1 could not be

found on search, drum beats were carried out at the place of residence of

Respondent No.1.

6. On 29.01.2000 the following order was passed by the trial court:-

“Case presented today. Case called out. Decree Holder

with her counsel present. The report of attachment of

property is filed. The decree holder shall take steps for

notice under O XXI Rule 66 within 15 days.”

7. On 04.04.2000 a report was filed by the Process Server to the following

effect:-

“Today 02.04.2000 I came to Nagla Rate district

Mainpuri, and searched Sri Krishna, and served a notice

on him and the receipt of the same have been duly

acknowledged by him by putting him signature on the

copy of notice.”

8. In the aforesaid circumstances, the executing court issued warrant of

sale of property on 06.12.2000 whereunder the property was directed to be

auctioned on 16.12.2000 and the warrant was to be returned on or before

23.12.2000, duly executed. Accordingly, on 16.12.2000 the property was put

to auction in which the present appellant as the highest bidder with a bid of 

4

Rs.1,25,000/-. In accordance with the prescribed procedure, 1/4th of the

amount was deposited by the appellant.

9. On 19.12.2000 Respondent No.1, for the first time, appeared before the

court and filed an application under Order IX Rule 13 of Code of Civil

Procedure (‘the Code’, for short) praying that the ex-parte decree dated

16.09.1997 be set aside.

In the application it was asserted:-

“…The applicant executed an agreement to sale in

favour of plaintiff, and the applicant was always ready

to execute the same till today. Applicant have no

money. That the plaintiff by misleading the court and

got passed an ex-parte judgment on 16.09.1997 in her

favour and an execution petition filed before the

Hon’ble Court. That no summon or notice issued from

this executing court. That the plaintiff get the execution

proceeding transferred to the court of Civil Judge

(Senior Division) Mainpuri, which is pending there, by

which the applicant facing the irreparable loss and the

applicant had not defaulted intentionally and applicant

have no knowledge about suit as well as execution

proceeding. Due to ex-parte Judgment the applicant

facing irreparable loss and injury. In the interest of

justice the judgment and decree dated 16.09.1997 to be

set aside. The applicant got the knowledge of the suit

and execution proceeding from the information given

by plaintiff’s husband on 16.12.2000, so this application

is within time.”

10. The aforesaid application was dismissed on 05.07.2005 by the

Additional District Judge, Mainpuri with following observations:-

5

“It is also noted that after passing the ex-parte judgment

and decree the respondent initiated the execution

proceeding which was registered as 04/1998. In this

execution proceeding the summons were sufficiently

served on applicant. In spite of this the applicant filed

a restoration application on 19.12.2000. From the

knowledge of execution proceedings on 02.04.2000, the

present application is filed after more than 8 months

from the knowledge about the pendency of the

execution proceedings, indicates that in spite of having

specific knowledge of the same he has filed this

application after the period of limitation and the reason

which was shown in applications is totally false,

frivolous and baseless. That no evidence is produced to

deny the report of the process server dated 04.04.2000

in which he stated that on 02.04.2000 the summons was

duly served on applicant, nor the said report is to be

manipulated.”

11. Respondent No.1, being aggrieved, filed FAFO No. 2473 of 2005 in the

High Court challenging the order dated 05.07.2005. During the pendency of

said FAFO, sale certificate was issued in favour of the Appellant on

30.03.2006 by virtue of order dated 10.01.2006 passed by the concerned court

in Execution No.4 of 1998.

12. On 21.04.2006 FAFO No. 2473 of 2005 was allowed by the High Court

with following observations:-

“In the instant case, the appellant appears not to be

vigilant as he ought to have been, yet the conduct does

not on the whole warrant to castigate him as an

irresponsible litigant. Further, the inconvenience

caused to the plaintiff respondent on account of the

absence of appellant may be compensated by warding

appropriate cost. In the interest of justice and under the 

6

peculiar circumstances of the case, I set aside the

impugned judgment and decree.

In the result of this appeal is allowed with the costs of

Rs.1000/-. The trial court is directed to decide the case

on merits after affording opportunities to the parties.”

13. Thereafter, Respondent No.2 filed CMRA No. 107616 of 2009 seeking

recall inter alia on the ground that Respondent No.1 had full knowledge of

the proceedings since 17.02.1997 and had intentionally and deliberately

avoided to appear and contest the matter. The application was, however,

dismissed by the High Court by its order dated 18.10.2019 observing that after

the order dated 21.04.2006 passed by the High Court, the Suit was restored to

the file and the issues were already framed.

14. These two orders dated 21.04.2006 and 18.10.2019 are presently under

challenge.

15. While issuing notice in the instant appeals, by Order dated 20.02.2020

passed by this Court, further proceedings were stayed.

16. We heard Mr. Gopal Sankaranarayanan, learned Senior Advocate for

the appellant and Mr. Pradeep Kumar Yadav, learned Advocate for

Respondent No.1.

7

17. It was submitted by Mr. Sankaranarayanan, learned Senior Advocate

that Respondent No.1 was always aware of the proceedings and had

deliberately avoided to appear and contest the matter; that his stand in the

application under Order IX Rule 13 of the Code itself indicated that he was

ready to execute sale deed in favour of the original plaintiff and that he had

no money to repay the amount received by him way of part consideration. It

was submitted that as an auction purchaser the Appellant had complied with

all the legal requirements and sale certificate was also issued in his favour.

18. On the other hand, Mr. Pradeep Kumar Yadav, learned Advocate

submitted that the orders passed by the High Court did not call for any

interference and that the Suit having been restored to the file, the matter be

allowed to be taken to the logical conclusion.

19. The summons issued by registered post was received back with postal

endorsement of refusal, as would be clear from the order dated 19.02.1997.

Sub-Rule (5) of Order V Rule 9 of the Code states inter alia that if the

defendant or his agent had refused to take delivery of the postal article

containing the summons, the court issuing the summons shall declare that the

summons had been duly served on the defendant. The order dated 19.02.1997

was thus completely in conformity with the legal requirements. In a slightly 

8

different context, while considering the effect of Section 27 of the General

Clauses Act, 1897, a Bench of three Judges of this Court in C.C. Alavi Haji

vs. Palapetty Muhammed and Anr2 made following observations:-

“14. Section 27 gives rise to a presumption that service

of notice has been effected when it is sent to the correct

address by registered post. In view of the said

presumption, when stating that a notice has been sent by

registered post to the address of the drawer, it is

unnecessary to further aver in the complaint that in spite

of the return of the notice unserved, it is deemed to have

been served or that the addressee is deemed to have

knowledge of the notice. Unless and until the contrary

is proved by the addressee, service of notice is deemed

to have been effected at the time at which the letter

would have been delivered in the ordinary course of

business. This Court has already held that when a notice

is sent by registered post and is returned with a postal

endorsement “refused” or “not available in the house”

or “house locked” or “shop closed” or “addressee not in

station”, due service has to be presumed. [Vide Jagdish

Singh v. Natthu Singh3

: State of M.P. vs. Hiralal &

Ors.4

and V. Raja Kumari vs. P. Subbarama Naidu &

Anr.5

]. … ….”

20. Even after the passing of the ex-parte decree, the report filed by the

process server on 04.04.2000 clearly indicated that notice was served upon

Respondent No.1 which was duly acknowledged by him by putting signature

on the copy of the notice. Despite such knowledge, Respondent No.1 allowed

2 AIR 2007 SC (Supp) 1705

3 AIR 1992 SC 1604

4

(1996) 7 SCC 523

5

(2004) 8 SCC 774

9

the property to be put to auction in the month of December, 2000. It was only

after the auction was so undertaken, that he preferred the application under

Order IX Rule 13 of the Code. The High Court, therefore, rightly observed in

its order dated 21.04.2006 that Respondent No.1 was not vigilant. Yet, the

High Court proceeded to grant relief in favour of Respondent No.1.

21. In the light of the features indicated above and the fact that the auction

was allowed to be undertaken, Respondent No. 1 was disentitled from

claiming any relief as was prayed for. Further, after completion of

proceedings in auction, sale certificate was also issued in favour of the

Appellant.

22. We, therefore, allow these Appeals, set aside the orders dated

21.04.2006 and 18.10.2019 passed by the High Court and dismiss the

application preferred by Respondent No.1 under Order IX Rule 13 of the

Code. No costs.

……………………………..J.

[Uday Umesh Lalit]

……………………………..J.

[S. Ravindra Bhat]

New Delhi;

September 29, 2021.

on the date of theft, the vehicle had been driven/used without a valid registration, amounting to a clear violation of Sections 39 and 192 of the Motor Vehicles Act, 19886 . This results in a fundamental breach of the terms and conditions of the policy, as held by this Court in Narinder Singh (supra), entitling the insurer to repudiate the policy.

1

REPORTABLE

 IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

 CIVIL APPEAL NO. 5887 OF 2021

UNITED INDIA INSURANCE CO. LTD. ...APPELLANT(S)

VERSUS

SUSHIL KUMAR GODARA ....RESPONDENT(S)

ORDER

S. RAVINDRA BHAT, J.

1. Counsel for parties were heard, with their consent, for final disposal of the

appeal. The appellant (hereby “insurer”) questions the judgment and order of the

National Consumer Disputes Redressal Commission, New Delhi1

("hereafter the

NCDRC"). In the impugned order, the NCDRC dismissed the appellant’s revision

petition, that challenged the order2 of the Rajasthan State Consumer Disputes

Redressal Commission, Circuit Bench at Bikaner (hereafter “the State Commission”).

2. The respondent-complainant obtained an insurance policy3

from the insurer for

his Bolero car, somewhere in Punjab, though he was a resident of Sri Ganganagar,

Rajasthan. The vehicle had a temporary registration (No. PB-11-T-5101 from 20-06-

1 Dated 11/12/2020 in Revision Petition No. 1984/ 2015

2 dated 20/03/2015, in FA No. 244/2013

3 bearing policy no. 200104/31/11/0100000947

2

2011 to 19-07-2011). The sum insured was ₹ 6,17,800/-. The temporary registration

of the vehicle, however, expired on 19-07-2011.

3. As the respondent/complainant was engaged in business as a private contractor,

for business purposes he had to be outside the city. On 28-07-2011 the complainant

went to Jodhpur for business purposes; and stayed in Geeta Guest House at night.

Whilst there, his vehicle was parked outside the guest house premises. When the

respondent awoke in the morning, he found that the Bolero car had been stolen. He

lodged a first information report (FIR) on 29-07-2011 with PS Ratanada, Jodhpur

alleging commission of offences under Section 379, IPC. However, on 30-09-2011

the police lodged a final report stating that the vehicle was untraceable.

4. The respondent claimed the loss, from the appellant/insurer. The insurance

claim, however was repudiated by order dated 23-01-2013 on three grounds:

(i) Intimation of theft of vehicle was given to the insurer after delay which was

in violation of the policy condition.

(ii) The temporary registration of the vehicle expired on 19-07-2011 and the

respondent did not get the vehicle permanently registered; and

(iii) The complainant left the vehicle unattended outside the guesthouse in

violation of the policy conditions.

5. Aggrieved by the repudiation of his claim the respondent/complainant filed a

complaint before the District Forum Consumer Protection, Shri Ganganagar

(hereafter the “District Forum”) for a direction that the insurer ought to pay him the 

3

sum insured for the vehicle with rent amount of ₹1,40,000/- and also claimed relief

for mental agony and costs of litigation.

6. The insurer's position before the District Forum was that till the incidence of

theft, the complainant’s vehicle was not registered which was in violation of

conditions of insurance policy; the insurer therefore requested for dismissal of the

complaint. The District Forum dismissed the complaint against the insurer while

observing that on 28-07-2011 (date of the incident) the vehicle’s temporary

registration had expired and relying upon two previous orders of the NCDRC had

concluded that if at the time of theft, the vehicle was not registered then the claim

was not payable to the complainant. It was held that repudiation of the claim by the

insurer did not amount to deficiency in service on its part. Aggrieved by the dismissal

of his complaint, the respondent/complainant approached the State Commission. The

State Commission set aside the order of the District Forum and allowed the appeal,

and held that as the insurer had covered the complainant's vehicle with particular

engine and chassis number, and issued a policy during the currency of which, the

vehicle was stolen it could not repudiate the insured’s genuine claim on technical,

petty and frivolous grounds of absence of permanent registration certificate from the

competent authority and thus escape its liability to indemnify the insured for the loss

of the vehicle. The State Commission directed the insurer to pay to the

respondent/complainant an amount of ₹ 6,17,800/- (Rupees Six Lakhs Seventeen

Thousand Eight Hundred Only) along with 9% interest per annum from the date of

filing of the complaint and also pay to the respondent/complainant ₹ 20,000/- as 

4

litigation costs. The insurer preferred a revision petition before the NCDRC which

was dismissed, affirming the State Commission’s reasoning.

7. This Court issued notice; despite service, the respondent did not cause

appearance to be entered. In the circumstances, Ms. Gauri Puri was appointed to

assist the Court, as amicus curie. The Court heard the learned counsel for the

petitioner Mr. Amit Singh, AOR and learned amicus.

8. It was argued by Mr. Amit Singh that the NCDRC committed an error in not

appreciating the judgment of this Court in Narinder Singh Vs. New India Assurance

Co. Ltd4

. He also relied on a previous order of the NCDRC, i.e., Naveen Kumar Vs.

National Insurance Company Ltd5

. It was urged that the impugned order should be

set aside, since the NCDRC ignored a binding judgment of this court, and disregarded

the circumstance that the vehicle in question, had no registration. This constituted a

fundamental breach of the policy, entitling the insurer to repudiate the claims under

it.

9. The learned amicus, on the other hand, urged that this Court should not disturb

the findings of the State Commission or the NCDRC. It was argued by the learned

counsel that the judgment in Narinder Singh (supra) pertained to claim for

compensation for a damaged vehicle on account of accident, and not on account of

theft of a vehicle, and was thus not applicable to the present case. She urged that in

the present case, it could not be said that the policy holder’s vehicle was an

4

(2014) 9 SCC 324.

5

[RP/250/2019] decided on 26.11.2019

5

unregistered one; rather a temporary number had been assigned to it, but a few days

after its expiry, the theft occurred. In the given circumstances, the preclusion of

liability, in the manner expressed in Narinder Singh (supra) by this court, was

inapplicable.

10. What is discernible from the above narration of facts, is that the policy holder

had purchased a new Bolero which had a temporary registration. That registration

lapsed on 19-07-2011. The respondent/complainant never alleged or proved that he

applied for a permanent registration, or sought extension of the temporary registration

beyond 19-07-2011. He travelled outside his residence, to Jodhpur, in his car, and

stayed overnight in a guest house. In the morning of 28-07-2011, he discovered that

the car had been stolen, when parked outside the guest house premises in Jodhpur.

11. In Narinder Singh (supra), the claim was in the context of an accident,

involving a vehicle, the temporary registration of which had expired. This Court held

that the insurer was not liable, and observed that:

“12. A bare perusal of Section 39 shows that no person shall drive the motor

vehicle in any public place without any valid registration granted by the

registering authority in accordance with the provisions of the Act.

13. However, according to Section 43, the owner of the vehicle may apply to

the registering authority for temporary registration and a temporary registration

mark. If such temporary registration is granted by the authority, the same shall be

valid only for a period not exceeding one month. The proviso to Section

43 clarified that the period of one month may be extended for such a further

period by the registering authority only in a case where a temporary registration

is granted in respect of chassis to which body has not been attached and the same

is detained in a workshop beyond the said period of one month for being fitted

with a body or unforeseen circumstances beyond the control of the owner.

14. Indisputably, a temporary registration was granted in respect of the

vehicle in question, which had expired on 11.1.2006 and the alleged accident took 

6

place on 2.2.2006 when the vehicle was without any registration. Nothing has

been brought on record by the appellant to show that before or after 11.1.2006,

when the period of temporary registration expired, the appellant, owner of the

vehicle either applied for permanent registration as contemplated under Section

39 of the Act or made any application for extension of period as temporary

registration on the ground of some special reasons. In our view, therefore, using a

vehicle on the public road without any registration is not only an offence

punishable under Section 192 of the Motor Vehicles Act but also a fundamental

breach of the terms and conditions of policy contract.”

12. In Naveen Kumar (supra), NCDRC decided a reference, to its bench, and held

that:

" 9. For the reasons stated hereinabove, the reference is answered in following

terms:-

(i) If a vehicle without a valid registration is or has been used/driven on a public

place or any other place that would constitute a fundamental breach of the terms

and conditions of the contract of insurance even if the vehicle is not being driven

at the time it is stolen or is damaged:

(ii) If a vehicle without a valid registration is used/driven on a public place or any

other place, it would constitute a fundamental breach of terms and conditions of

the policy even if the owner of the vehicle has applied for the issuance of a

registration in terms of S.41 of the Act before expiry of the temporary

registration, but the regular registration has not been issued".

 (emphasis supplied)

13. In the present case, the temporary registration of the respondent’s vehicle had

expired on 28-07-2011. Not only was the vehicle driven, but also taken to another

city, where it was stationed overnight in a place other than the respondent’s premises.

There is nothing on record to suggest that the respondent had applied for registration

or that he was awaiting registration. In these circumstances, the ratio of Narinder

Singh (supra) applies, in the opinion of this court. That Narinder Singh (supra) was

in the context of an accident, is immaterial. Despite this, the respondent plied his

vehicle and took it to Jodhpur, where the theft took place. It is of no consequence,

that the car was not plying on the road, when it was stolen; the material fact is that

concededly, it was driven to the place from where it was stolen, after the expiry of 

7

temporary registration. But for its theft, the respondent would have driven back the

vehicle. What is important is this Court’s opinion of the law, that when an insurable

incident that potentially results in liability occurs, there should be no fundamental

breach of the conditions contained in the contract of insurance. Therefore, on the date

of theft, the vehicle had been driven/used without a valid registration, amounting to a

clear violation of Sections 39 and 192 of the Motor Vehicles Act, 19886

. This results in a fundamental breach of the terms and conditions of the policy, as held by this

Court in Narinder Singh (supra), entitling the insurer to repudiate the policy.

14. This Court is of the opinion that the NCDRC’s order cannot be sustained.

Furthermore, the NCDRC should not have overlooked and disregarded a clear

binding judgment of this Court – it also should not have disregarded its ruling in

6

39. Necessity for registration. - No person shall drive any motor vehicle and no owner of a motor vehicle shall cause or permit the vehicle to be driven in any public place or in any other place unless the vehicle is registered in accordance with this Chapter and the certificate of registration of the vehicle has not been suspended or cancelled and the vehicle carries a registration mark displayed in the prescribed manner:

Provided that nothing in this section shall apply to a motor vehicle in possession of a dealer subject to such conditions as may be prescribed by the Central Government.

192. Using vehicle without registration.--(1) Whoever drives a motor vehicle or causes or allows a motor vehicle to be used in contravention of the provisions of section 39 shall be punishable for the first offence with a fine which may extend to five thousand rupees but shall not be less than two thousand rupees for a second or subsequent offence with imprisonment which may extend to one year or with fine which may extend to ten thousand rupees but shall not be less than five thousand rupees or with both:

Provided that the court may, for reasons to be recorded, impose a lesser punishment.

(2) Nothing in this section shall apply to the use of a motor vehicle in an emergency for the conveyance of persons suffering from sickness or injuries or for the transport of food or materials to relieve distress or of medical supplies for a like purpose:

Provided that the persons using the vehicle reports about the same to the Regional Transport Authority within seven days from the date of such use.

(3) The court to which an appeal lies from any conviction in respect of an offence of the nature specified in sub-section

(1), may set aside or vary any order made by the court below, notwithstanding that no appeal lies against the conviction in connection with which such order was made.

Explanation.--Use of a motor vehicle in contravention of the provisions of section 56 shall be deemed to be a contravention of the provisions of section 39 and shall be punishable in the same manner as provided in sub-section (1).

8

Naveen Kumar (supra), as well. Before parting, this Court expresses its appreciation

for the assistance rendered by the learned amicus, Ms. Gauri Puri.

15. For these reasons, the impugned order and the order of the State Commission

are hereby set aside; the respondent’s complaint is dismissed. The appeal is allowed

in these terms, without order on costs.

.......................................................J

 [UDAY UMESH LALIT]

.......................................................J

 [S. RAVINDRA BHAT]

......................................................J

 [BELA. M. TRIVEDI]

New Delhi,

September 30, 2021.

In the absence of any plea or proof of fraud, respondent No.1 is bound by the written document on which he admitted his signatures and of his wife. There is no oral evidence which could prove fraud, intimidation, illegality or failure of consideration to permit the respondents to lead oral evidence to dispute the sale deed dated 14.9.1970. Therefore, the judgments referred to by Mr. Mehta are of no help to support his arguments. Thus, the findings recorded by the First Appellate Court as affirmed by the High Court are clearly erroneous in law and are, thus, set aside.

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 1491 OF 2007

PLACIDO FRANCISCO PINTO (D) by LRs &

ANR. .....APPELLANT(S)

VERSUS

JOSE FRANCISCO PINTO & ANR. .....RESPONDENT(S)

J U D G M E N T

HEMANT GUPTA, J.

1. The legal representatives of the plaintiff have appealed before this

Court, aggrieved by the judgment and decree of the First Appellate

Court dated 6.7.2005 affirmed by the High Court in the Second

Appeal on 16.8.2006.

2. The plaintiff filed a suit1

 (Special Civil Suit No. 55/77/I) seeking

possession and accounts from his younger brother-defendant No. 1

(respondent No. 1) who was given the southern portion of the

property in question by virtue of a gift deed dated 10.5.1957

executed by the parents of the parties involved. The northern

portion was allotted to the plaintiff by the same gift deed.

3. The plaintiff had inter-alia pleaded that Defendant No. 1 – Jose

1 Hereinafter referred to as the ‘first suit’

1

Francisco Pinto earlier sold his one of his properties to the plaintiff

due to failure in timely discharging the debts raised by him in the

year 1962. Subsequently, the plaintiff purchased the southern

portion of the property from defendant No. 1 by a registered sale

deed after settling the creditors of defendant No. 1 so as to save

their ancestral property. The plaintiff, as an elder brother, allowed

his younger brother to stay in the house for five years. Defendant

No. 1 collected rents from the other defendants as well during this

period. The plaintiff filed the first suit on 10.5.1977 relying upon

the sale deed executed on 14.9.1970 and registered on 23.9.1970

in respect of southern half of the property called “Pedda”. It is

pleaded that defendant Nos. 3 to 9 are occupying the premises as

tenants of the six tenements existing in the premises.

4. The plaintiff had pleaded that the suit property after the same was

purchased from the defendant No. 1 and his wife Defendant No. 2,

the said defendants had created several charges and

encumbrances thereon and the plaintiff to prevent its compulsory

auction-sale at the instance of one of the creditors, had paid and

cleared all those charges and encumbrances thereby spending

much more than the market value of the suit property, and that the

Defendant No. 1 executed sale deed in favour of the plaintiff on

14.9.1970. Since defendant No. 1 did not vacate the property after

the expiry of five years, an Advocate’s notice was sent by

registered post on 6.11.1976 calling upon him to surrender the suit

property and also to stop collecting rent from the other defendant

2

Nos. 3 to 9. Therefore, the suit was filed claiming vacant

possession of the house occupied by defendant Nos. 1 and 2 and

directing defendant Nos. 1 and 2 to render accounts of the money

received by him from defendant Nos. 3 to 9 as rent. In the written

statement filed on 11.8.1977, the defendant Nos. 1 and 2 have

pleaded as under:

“2. With reference to paragraph 2 of the plaint, these

defendants submit that they are not aware of any property

sold by these defendants to the plaintiff. Defendants

however recollect that the plaintiff had represented to them

in the office of the Sub Registrar of Margao certain

documents purported to be a document in respect of an

amount of Rs.12000/- which was paid by him to the creditors

of defendant no. 1. Under such pretext the plaintiff

managed to obtain the signatures of the defendants no. 1

and 2 who do not know to read or write except that they

write their own name. These defendants deny having sold

their property to the plaintiff mentioned in paragraph 2 of

the plaint.”

5. Another suit, namely, Special Civil Suit No. 71/80/I2

 was filed by the

respondents on 1.7.1980 against the appellants, inter alia, on the

ground that they had never sold the southern half of the suit

property to the appellants nor intend to sell the same to any

person. It was also claimed that they had never executed any sale

deed in favour of the appellants nor received any amount as

consideration of the sale. It was specifically pleaded as under:

“13. The plaintiffs state that they never executed the sale

deed of the suit property and they had never gone in the

office of the Sub-Registrar of Margao to register the sale

deed. However, the defendant no. 1 in the year 1970 had

taken the plaintiffs in the office of Sub-Registrar, Margao and

asked them to sign the stamp paper purported to be a

document in respect of the loan amount of Rs.12000/-

2 Hereinafter referred to as the ‘second suit’

3

(Rupees twelve thousand only) paid by the defendant no.1

to the creditors of the plaintiff no. 1. He further explained

that it is necessary for him to take in writing from the

plaintiff about the amount paid to the creditors of plaintiffs

and that amount was due to him by the plaintiffs. The

writings on the stamp was in Roman scripts and the

language not known to the plaintiffs and now learnt that it is

in Portuguese.”

6. The parties went to trial on following issues in the first suit:

“(i) Whether the plaintiff proves that the defendant nos. 1

and 2 sold to the plaintiff the southern half of the property

Peda situated Navelim and identified in paragraph 2 of the

plaint?

(ii) Whether the plaintiff proves that he allowed the

defendants no. 1 and 2 to continue to live in the

corresponding portion of the house for five years free of any

charge?

(iii) Whether the plaintiff proves that he suggested to the

defendant No. 1 to surrender the suit premises after 5 years

had passed?

(iv) Whether the defendant Nos. 1 and 2 prove that the sale

deed was obtained by fraud by the plaintiff?

(v) What relief, what order?

(vi) Whether the defendants prove that the suit is

undervalued.”

7. The plaintiff examined himself as PW-1 and deposed as pleaded by

him in the plaint filed. Silvester Coutinho (PW-2) deposed that

there was some beat of drum on the road in front of the Chapel

near the house of the plaintiff and that his house is situated behind

the plaintiff’s house. The Bailiff told the witness that the house of

the defendant is being auctioned by the Court. Devidas Chari (PW3) had seen the parties residing at one and the same place.

4

8. Defendant No. 1 appeared as DW-1. In examination-in-chief, he

deposed as under:

“I know the plaintiff who is my brother. The suit property

including the house has been divided between us into two

halves. I have not obtained any loan at any time in respect

of the half of the house and the property belonging to me I

have obtained loan of Rs.12,000/- but this has no connection

of whatsoever nature in respect of my half of the share in

respect of the suit property and my house. The loan of

Rs.12,000/- which I secured has been repaid by my brother

(plaintiff). I have not repaid the suit amount to my brother.

But on one occasion the plaintiff asked me in my house as to

when I am going to repay the amount which is paid on my

behalf. As I could not paid the amount the plaintiff asked me

to execute a document mentioning therein that he would

pay Rs.12,000/- which he had paid. The plaintiff then asked

me to come to a hotel near Margao Municipality in order to

execute the said document. The plaintiff three days

thereafter once again he came to my house and asked me

to come near the Municipality in order to prepare the said

documents. This he told me at 2:30 at my house.

Accordingly myself and my wife came near the Municipality

to execute the said documents.

After me and my wife came near my municipality the

obtained my signature and also my wife signature on the

stamp papers. The plaintiff, however did not explained to

me and my wife the contents of the documents on which he

obtained my signature and my wife. I say that he and his

wife made two signatures each on the said stamp paper.

Out of said two signatures made by each of us signature was

obtained outside the Municipal Building and other signature

was obtained in side the M. Building. Even when the plaintiff

obtained second signature from me and my wife, we were

not explained the contents of the documents. The person

before whom me and my wife made signatures in the M.

Building did not explain to use the contents of the said

documents. I do not know to read and to write English so is

the case of my wife. I have not sold the half of the house in

my possession and belonging to me and also my land to

anyone.”

9. In cross-examination, defendant No. 1 admitted that the plaintiff

has repaid two of his loans. One loan was of Jose Minguel Pereira of

5

Chandor amounting to Rs.6,000/-. He further deposed that he went

along with the plaintiff to execute a document in connection with

the loan amount of Rs.12,000/- paid by the plaintiff on his behalf.

He further deposed that he did not ask the Officer to explain the

contents of the said document to him. He and his wife were

present on the said day. He further denied selling the property to

the plaintiff vide sale deed dated 14.9.1970 (Ex.P/1).

10. DW-2 is Eduardo Pinto. In cross-examination, he stated that the

loan taken by defendant No. 1 from one Mr. Pareira was cleared by

the plaintiff. He further admitted that the plaintiff had filed a

criminal case against him for the theft of his cow. Romeo D’Costa

(DW-3) deposed that in the year 1970 on Carnival Day, two persons

from the Court had come to the suit property with a beating drum in

order to attach the property. At that time, the appellant told the

employees of the Court in presence of defendant No. 1 that he

would clear the debt on the property and seek release of the

property. In cross-examination, he admits that when the Court

employees came with a drum for announcement, he was present in

the house of the appellant but he was unaware of the amount of

debt accrued by the defendant.

11. The learned trial court found that the evidence presented by the

defendants does not rebut the duly registered sale deed (Ex.P/1) in

respect of Issue Nos. 2 and 3, which were decided in favour of the

plaintiff. However, in respect of Issue No. 4, the Court returned the

6

following finding:

“12. From the deposition of D.W.1 it is borne out that there

has never been any intention on the part of the plaintiff to

deceive the defendants nor they have caused any

inducement to them to enter into any contract. The silence

which has been discussed in the evidence of D.W.1 shows

willingness of a person to enter into a contract. It is the

duty of the person keeping silent to speak or unless he is

silent it is equivalent to speech. Thus, none of the

ingredients of section 17 have bene fulfilled by the

defendants in this case.”

12. Thus, it was held that the defendants had failed to prove that the

sale deed was obtained by fraud. The first suit was decreed on

24.2.1997.

13. The second suit filed by the respondents was to declare the

registered sale deed dated 14.9.1970 as null and void. In the said

suit, the defendants pleaded that no consideration was received by

them for sale. The second suit was dismissed on 16.1.2001, inter

alia, holding that the suit is barred by the principle of res judicata

and the sale deed is valid.

14. The respondents herein filed two appeals from the judgment and

decree passed in the first and second suit. Such appeals were

heard and decided together. The respondents sought amendment

in the written statement and also in the plaint in the first and

second suit respectively during the pendency of the appeal before

the First Appellate Court. Such amendments were allowed on

8.9.2004 after many years of filing of the suit and the written

statement. The first appeals against both the judgment and decree

7

were allowed by the learned First Appellate Court, inter alia, on the

following grounds:

(i) The appellant has produced oral evidence contrary to the

terms of the sale deed. Therefore, such oral evidence is

barred by Section 91 of the Evidence Act as there is no

recital in the sale deed that he has paid and cleared all

dues of respondent No. 1 for purchasing the suit property.

(ii) The appellant has not pleaded that he had paid Rs.3,000/-

as consideration under the sale deed. Therefore, the sale

is null and void for want of consideration.

(iii) The fact that respondent No. 1 continued to occupy the

house goes to show that respondent No. 1 was not given

to understand that it was a sale deed. The signatures on

such sale deed by respondent No. 1 were obtained by

misrepresentation and concealment.

(iv) The sale consideration is inadequate; therefore, the

consent of the vendor was not freely given.

15. It is an admitted fact that consequent to the amendment in the

plaint and in the written statement, no evidence was led. Mr.

Dhruv Mehta, learned senior counsel for the respondents stated

that the evidence was already on record in respect of

misrepresentation leading to fraud, therefore, the pleadings were

amended so as to support the evidence.

16. The learned counsel for the appellants has argued that the

amendment of the pleadings should not have been allowed at the

first appeal stage and that the second suit is barred by the

8

principle of res judicata. But we do not find that such questions

need to be examined as the first suit and the second suit were

pending in appeal and were decided by the common judgment.

Still further, since the amendment in the plaint and the written

statement has been allowed in exercise of discretion vested with

the First Appellate Court, we do not find that such amendment can

be permitted to be disputed at this stage.

17. The appellants relied upon judgment of this Court in Bellachi

(Dead) by LRs v. Pakeeran

3

to contend that the burden of proof

regarding the genuineness of documents lies upon the vendee. In

case of a registered document, there is a presumption that it was

executed in accordance with law. This Court held as under:

“17. In a given case it is possible to hold that when an

illiterate, pardanashin woman executes a deed of sale, the

burden would be on the vendee to prove that it was (sic)

the deed of sale was a genuine document. It is, however, a

registered document. It carries with it a presumption that it

was executed in accordance with law. Again a concurrent

finding of fact has been arrived at that the appellant was

not an illiterate woman or she was incapable of

understanding as to what she had done.”

18. The primary finding recorded by the First Appellate Court as

affirmed by the High Court is that the signatures of respondent No.

1 were obtained by misrepresentation. Mr. Mehta vehemently

argued that misrepresentation is another facet of fraud and the oral

evidence of sale consideration led by the plaintiff had been rightly

not accepted.

3 (2009) 12 SCC 95

9

19. We have heard the learned counsels for the parties and find that

the findings of the First Appellate Court as affirmed by the High

Court are clearly erroneous. Respondent No. 1 in the written

statement has admitted payment of Rs.12,000/- to his creditors by

the appellant No.1. It is also admitted by him that his and his

wife’s signatures were obtained outside the Municipal Office and

also before the Officers in the Municipal Building when there were

about 10-12 people in the office.

20. The sale deed (Ex.P/1) had a recital that the suit property was sold

for a sum of Rs.3,000/-. The First Appellate Court returned a

finding that such sale consideration was not mentioned in the

plaint and that the evidence has come on record that there were

loans which were settled by the appellant No.1 which fact is also

not recited in the sale deed. Thus, it is a sale without

consideration. Reliance was placed upon Section 25 of the Indian

Contract Act, 18724

. We find that such finding is not correct in law.

Section 25 of the Contract Act is to the effect that an agreement

without consideration is void but if a document is registered on

account of natural love and affection between the parties standing

in a near relation to each other, then such an agreement is not

void. Section 25 of the Contract Act reads as under:

“25. Agreement without consideration void, unless it is in

writing and registered, or is a promise to compensate for

something done, or is a promise to pay a debt barred by

limitation law. - An agreement made without consideration is

void, unless—

4 For short, the ‘Contract Act’

10

(1) it is expressed in writing and registered under the law for

the time being in force for registration of documents, and is

made on account of natural love and affection between

parties standing in a near relation to each other; or unless

(2) xx xx

In any of these cases, such an agreement is a contract.

xx xx xx

Illustration (b). A, for natural love and affection, promises to

give his son, B, Rs.1,000. A puts his promise to B into

writing and registers it. This is a contract.”

21. The parties are in near relations, the appellant No.1 being the elder

brother and the sale was executed to help his younger brother who

was facing auction of the property gifted by the parents of the

parties. Even the defendants’ witnesses have admitted that there

was a notice of Court auction of the property in question by beat of

drum. Therefore, if elder brother had come to the help of the

younger brother, discharging his debtors and executing a sale deed

mentioning a nominal sale consideration, it cannot be said to be a

sale without consideration. It is admitted by respondent No.1 that

a sum of Rs.12,000/- was paid by the appellant No. 1 to discharge

his debts. Once there is an admission of the respondent No. 1 of

discharge of his debts by appellant No.1, the sale deed registered

in normal course of official duties carries the presumption of

correctness which cannot be said to be illegal only on the basis of

feigned ignorance that his signatures were obtained on papers

which respondent No. 1 and his wife did not know. The Judgment of

11

this Court in Bellachi supports the argument raised by the

appellants.

22. The only stand of respondent No.1 is ignorance of the nature of the

document on which his signatures were obtained. Such ignorance

is not an instance of misrepresentation or a fraud in the facts of the

present case which would vitiate a sale deed executed and

registered with the Sub-Registrar. It has been admitted by

respondent No. 1 that he went to the Sub-Registrar’s office with his

wife, signed once outside the Municipal Building and once before

the Officers, shows that tactically he has admitted execution of the

sale deed without expressly stating so. We find that the findings of

the Courts below that the document is without consideration or the

consideration having not pleaded in the plaint or the fact that

appellant No. 1 has discharged the debtors of respondent No. 1 will

not render the document of sale deed as void.

23. Order VI Rule 2 of the Code of Civil Procedure, 19085

 is to the effect

that every pleading shall contain, and contain only, a statement in

a concise form of the material facts on which the party pleading

relies upon for his claim or defence as the case may be, but not the

evidence by which they are supposed to be proved. Appellant No.1

has relied upon the sale deed which contains the recital of payment

of Rs.3,000/- as the sale consideration. The evidence in support of

such sale deed was not required to be pleaded in the plaint filed by

the appellant. Still further, in terms of Order VI Rule 4 of the Code,

5 For short, the ‘Code’

12

in all cases in which the party pleading relies on any

misrepresentation, fraud, or undue influence shall state in the

pleadings the particulars with dates and items in the pleadings.

The extract from the written statement or the plaint does not show

that there is any pleading of misrepresentation or fraud. The

evidence led by the respondents is not indicative of any instance of

fraud or misrepresentation as well. Respondent No. 1 was candid

enough to admit that there were debts of Rs.12,000/- which were

paid off by appellant No.1. He also admits that he was taken to the

Municipal Office and signed once outside the Municipal Office and

once inside the Municipal Office. His wife had accompanied him.

With such facts on record, we find that the findings recorded by the

Courts below that the sale deed was result of fraud or

misrepresentation are clearly not sustainable.

24. Mr. Dhruv Mehta relied upon judgments of this Court reported as

Smt. Gangabai w/o Rambilas Gilda v. Smt. Chhabubai w/o

Pukharajji Gandhi

6

 and Roop Kumar v. Mohan Thedani

7

 to

contend that the respondents can lead oral evidence to rebut the

contents of the document but not the appellants who had relied

upon the sale deed. In Gangabai, the plaintiff entered into an

agreement with the appellant for a loan of Rs.2,000/- and it was

decided that simultaneously the plaintiff would execute a nominal

document of sale and a rent note. It was alleged by the plaintiff

that documents were never intended to be acted upon. The trial

6 (1982) 1 SCC 4

7 (2003) 6 SCC 595

13

court decreed the suit holding that the sale deed was never

intended to be acted upon but the First Appellate Court held that

the sale has taken place but the transaction between the parties

constitutes a mortgage. The High Court held that Section 92 of the

Indian Evidence Act, 18728 did not prevent plaintiff from

establishing the true nature of the transaction. In appeal, this

Court held that first proviso to Section 92 permits any fact which

may prove which would invalidate any document, such as fraud,

intimidation, illegality, want of due execution can be led into

evidence. This Court while dismissing appeal of the defendant held

as under:

“11. …It is clear to us that the bar imposed by sub-section

(1) of Section 92 applies only when a party seeks to rely

upon the document embodying the terms of the transaction.

In that event, the law declares that the nature and intent of

the transaction must be gathered from the terms of the

document itself and no evidence of any oral agreement or

statement can be admitted as between the parties to such

document for the purpose of contradicting or modifying its

terms. The sub-section is not attracted when the case of a

party is that the transaction recorded in the document was

never intended to be acted upon at all between the parties

and that the document is a sham. Such a question arises

when the party asserts that there was a different transaction

altogether and what is recorded in the document was

intended to be of no consequence whatever. For that

purpose oral evidence is admissible to show that the

document executed was never intended to operate as an

agreement but that some other agreement altogether, not

recorded in the document, was entered into between the

parties…” (Emphasis Supplied)

25. A reading of the aforesaid judgment would show that it was open to

the plaintiff to assert that the document was never intended to be

8 For short, the ‘Evidence Act’

14

acted upon and the document is a sham. Such question arises

when one party asserts that there has been a different transaction

altogether than what is recorded in the document. It is for that

purpose oral evidence is admissible.

26. In Roop Kumar, this Court was seized of an appeal filed by the

defendant arising out of a suit for possession and for rendition of

accounts. The plaintiff claimed that he entered into an agencycum-deed of license with the appellant-defendant on 15.5.1975

and the terms of such agency-cum-licensing agreement was

incorporated in an agreement dated 15.5.1975. The stand of the

defendant was that he was in lawful possession as a tenant under

the plaintiff. The trial court decreed the suit holding that the

transaction between the respondent and the appellant evidenced

by an agreement dated 15.5.1975 amounts to license and not subletting. The question before the High Court was whether a

relationship between the parties is that of a licensor and licensee

or that of a lessor and lessee. The first appeal was dismissed. This

Court held that it is general and most inflexible rule that in respect

of written instruments, any other evidence is excluded from being

used either as a substitute for such instruments, or to contradict or

alter them. This is a matter both of principle and policy. It was

held that in Section 92 of the Evidence Act, the legislature has

prevented oral evidence from being adduced for the purpose of

varying the contract, such contract can be proved by production of

such writing. It was held that Section 91 is concerned with the

15

mode of proof of a document with limitation imposed by Section

92. If after the document has been produced to prove its terms

under Section 91, provisions of Section 92 come into operation for

the purpose of excluding evidence of any oral agreement or

statement for the purpose of contradicting, varying, adding or

subtracting from its terms. This Court held as under:

“17. It is likewise a general and most inflexible rule that

wherever written instruments are appointed, either by the

requirement of law, or by the contract of the parties, to be

the repositories and memorials of truth, any other evidence

is excluded from being used either as a substitute for such

instruments, or to contradict or alter them. This is a matter

both of principle and policy. It is of principle because such

instruments are in their own nature and origin, entitled to a

much higher degree of credit than oral evidence. It is of

policy because it would be attended with great mischief if

those instruments, upon which men's rights depended,

were liable to be impeached by loose collateral evidence.

(See Starkie on Evidence, p. 648.)

18. In Section 92 the legislature has prevented oral

evidence being adduced for the purpose of varying the

contract as between the parties to the contract; but, no

such limitations are imposed under Section 91. Having

regard to the jural position of Sections 91 and 92 and the

deliberate omission from Section 91 of such words of

limitation, it must be taken note of that even a third party if

he wants to establish a particular contract between certain

others, either when such contract has been reduced to in a

document or where under the law such contract has to be

in writing, can only prove such contract by the production

of such writing.

xx xx xx

21. The grounds of exclusion of extrinsic evidence are: (i)

to admit inferior evidence when the law requires superior

would amount to nullifying the law, and (ii) when parties

have deliberately put their agreement into writing, it is

conclusively presumed, between themselves and their

privies, that they intended the writing to form a full and

16

final statement of their intentions, and one which should be

placed beyond the reach of future controversy, bad faith

and treacherous memory.

22. This Court in Gangabai v. Chhabubai [(1982) 1 SCC 4 :

AIR 1982 SC 20] and Ishwar Dass Jain v. Sohan Lal [(2000) 1

SCC 434 : AIR 2000 SC 426] with reference to Section 92(1)

held that it is permissible to a party to a deed to contend

that the deed was not intended to be acted upon, but was

only a sham document. The bar arises only when the

document is relied upon and its terms are sought to be

varied and contradicted. Oral evidence is admissible to

show that document executed was never intended to

operate as an agreement but that some other agreement

altogether, not recorded in the document, was entered into

between the parties.” (Emphasis Supplied)

27. A perusal of the above judgment would show that the oral evidence

of a written agreement is excluded except when it is sought to be

alleged the document as a sham transaction.

28. It is beyond dispute that a sale deed is required to be registered i.e.

a document required by law to be reduced to the form of a

document. Therefore, no evidence of any oral agreement or

statement shall be admitted for the purpose of contradicting,

varying, adding or subtracting from its terms. The proviso (1) of

Section 92 of the Evidence Act on which reliance was placed is a

proof of such fact which would invalidate any document such as

fraud, intimidation, illegality, want of due execution, want of

capacity in any contracting party, want or failure of consideration,

or mistake in fact or law. Section 92 of the Evidence Act reads as

under:

“92. Exclusion of evidence or oral agreement. - When the

terms of any such contract, grant or other disposition of

17

property, or any matter required by law to be reduced to

the form of a document, have been proved according to the

last section, no evidence of any oral agreement or

statement shall be admitted, as between the parties to any

such instrument or their representatives in interest, for the

purpose of contradicting, varying, adding to, or subtracting

from, its terms:

Proviso (1).—Any fact may be proved which would

invalidate any document, or which would entitle any person

to any decree or order relating thereto; such as fraud,

intimidation, illegality, want of due execution, want of

capacity in any contracting party, want or failure of

consideration, or mistake in fact or law.”

29. The respondents were free to prove fraud in execution of the sale

deed. However, factually, the respondents have not alleged any

fraud in their suit or in the written statement in the suit filed by

appellant No. 1. The feigned ignorance about the nature of

document cannot be said to be an instance of fraud. In the

absence of any plea or proof of fraud, respondent No.1 is bound by

the written document on which he admitted his signatures and of

his wife. There is no oral evidence which could prove fraud,

intimidation, illegality or failure of consideration to permit the

respondents to lead oral evidence to dispute the sale deed dated

14.9.1970. Therefore, the judgments referred to by Mr. Mehta are

of no help to support his arguments. Thus, the findings recorded

by the First Appellate Court as affirmed by the High Court are

clearly erroneous in law and are, thus, set aside.

30. Accordingly, the appeal is allowed and the judgment and decree

passed by the trial court in Special Civil Suit No. 55/77/I is restored.

18

Special Civil Suit No. 71/80/I is dismissed. The respondents are

given two months’ time to vacate and hand over the vacant

physical possession of the property in question.

.............................................J.

(HEMANT GUPTA)

.............................................J.

(V. RAMASUBRAMANIAN)

NEW DELHI;

SEPTEMBER 30, 2021.

19

Once the order was passed by the Corporation on 5.1.1995 and was put on the means of communication, the date of actual receipt of notice is insignificant as the receipt could be delayed by the recipient, though there is no such attempt or finding. The wife and daughter of the plaintiff had removed the goods including sewing machines etc., hence the damages would include any loss of goods and the machines which were in the tenanted premises in question. Keeping in view the fact that the building was demolished within three days of the receipt of notice, we deem it appropriate to order the appellant to compensate the plaintiff with the damages of Rs.5 lakhs. Such amount will be payable to the legal heirs of the deceased plaintiff in accordance with law. The appellant shall deposit a sum of Rs. 5 lakhs within a period of two months before the trial court.

 REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 1833 OF 2008

ABDUL KHUDDUS .....APPELLANT(S)

VERSUS

H.M. CHANDIRAMANI (DEAD) THR LRS. &

ORS.

.....RESPONDENT(S)

W I T H

CIVIL APPEAL NO. 1834 OF 2008

J U D G M E N T

HEMANT GUPTA, J.

1. The present appeals are directed against an order passed by

the Division Bench of the High Court of Karnataka on

28.9.2006 in three First Appeals filed before it. The first

appeal was against the judgment and decree passed by the

Additional City Civil & Sessions Judge, Bangalore on

16.4.2005 in O.S. No. 10082 of 19951

 whereby the suit of

plaintiff, now represented by his legal heirs, for permanent

and mandatory injunction was dismissed on 16.4.2005. The

other appeal arises out of another suit filed by the plaintiff for

claiming damages in O.S. No. 16643 of 19992

 which was

1 Hereinafter referred to as the ‘first suit’

2 Hereinafter referred to as the ‘second suit’

1

decreed on 6.10.2003. The Plaintiff was found entitled to

recover a sum of Rs.1,25,000/- as damages towards the

loss/destruction of machineries, furniture, fittings and stockin-trade apart from the damages @ Rs.10,000/- per month

towards the loss of business of plaintiff from 9.1.1995 till the

possession is restored, subject to final decision of first suit.

The defendants, official respondents and the owner, filed two

separate appeals against the same. The third appeal arises

out of first suit decided by the Additional City Civil Judge,

Bangalore on 16.4.2005 whereby the suit of the plaintiff for

permanent and mandatory injunction was dismissed.

2. All the three appeals were taken up and decided together by

the High Court. The High Court dismissed the appeals arising

out of the judgment and decree passed by the trial court in

favour of the plaintiff whereas, the appeal arising out of

judgment and decree in first suit filed by the plaintiff was

allowed.

3. The plaintiff was inducted as a tenant on 7.5.1974 by an

allotment order passed by the Rent Controller under Section 5

of the Karnataka Rent Control Act, 19613

. The rented portion

was on the first floor of the two-floor building of Premises No.

50, Ebrahim Saheb Street, Civil Station, Bangalore.

4. One Panduranga Shetty was the owner of the building. Such

3 For short, the ‘Rent Act’

2

building was constructed in 1903 with Mangalore tiles and

wooden beams. The appellant Abdul Khuddus was arrayed as

defendant No. 7 in the first suit and defendant No. 1 in the

second suit and was the purchaser of the front portion of the

building vide sale deed dated 18.3.1994. Sheikh Hyder

purchased the rear portion of the building on the same date

whereas one Sheikh Mohd. purchased the northern side of the

building on 9.12.1994. The Bangalore City Corporation4

 is the

appellant in the third appeal.

5. The appellant herein filed an ejectment petition seeking

ejectment of the plaintiff under Section 21(1)(j) of the Rent

Act on the ground that the premises were required for

bonafide use by the landlord for the immediate purpose of

demolishing them and erecting a new building in place of the

premises sought to be demolished.

6. A notice under Section 322 of the Karnataka Municipal

Corporations Act, 19765

 was issued by the Corporation on the

ground that the building was in dilapidated condition, unsafe

and dangerous. The plaintiff challenged the said show cause

notice in W.P. No. 20400 of 1994 whereby an ad-interim stay

was granted by the High Court. Later, Shri B. Ravi Kumar,

Advocate was appointed as a Commissioner on 27.9.1994 to

visit the property and submit a report which was done on

4 For short, the ‘Corporation’

5 For short, the ‘Act’

3

16.11.1994. In the report, it was stated that the building was

in a bad condition and that there were also cracks in the

building, leakage of water etc.

7. The High Court dismissed the writ petition on 8.12.1994 as

the same was directed only against show cause notice.

However, the High Court directed the officials of the

Corporation not to demolish the building except pursuant to a

final order to be made within four weeks. The operative part

of the order of the High Court reads as under:

“5. Accordingly this petition is disposed of with a

direction to respondent-2 not to dismantle the building

in question without making any final order pursuant to

notice, Annexure-A and serving a copy of the final

order on the petitioner. It is made clear that none of

the respondents should take any steps to dismantle

the building except pursuant to a final order made by

respondent-2. It is further made clear that if the

petitioner sustains any injury on account of the

alleged dilapidated condition of the building,

respondents 7 to 10 shall not be held responsible.

Respondent-2 shall make the final order within four

weeks to serve a copy of the same on the petition a

week therefrom. Liberty is reserved petitioner to take

steps as are allowed against the final order.”

8. It is thereafter the Deputy Commissioner of the Corporation

passed an order on 5.1.1995 after personally inspecting the

building and returning a finding that the building was in poor

condition. It was noticed that it was the duty of the

Corporation to take action in order to prevent any imminent

danger to the public independently of the dispute, if any,

between the parties. The operative part of the order reads as

4

under:

“After careful consideration of all aspects the

objections filed by the occupier Sri. H.M.

Chandiramani are overruled and it is ordered and

directed that the building situated at No. 50, Ibrahim

Saheb Street, Bangalore, which is in a dilapidated and

dangerous condition be taken down immediately to

avoid any danger to the passers by.

If the owner or occupier fails to take down the

building within 3 days action will be taken by the

Bangalore Mahanagar Palika under Section 462(2) of

the K.M.C. Act, 1976 to take down the building at the

cost of the owner and the said cost will be recovered

as per Section 470 of K.M.C. Act, 1976.”

9. The said order was served upon the plaintiff on 6.1.1995 at

5.20 PM and the building was demolished by the Corporation

on 9.1.1995 at around 9 AM. The possession of vacant land

was given to the owners. The order of demolition was not

challenged in appeal in terms of Section 444 of the Act or

before any other authority or forum.

10. The appellant relies upon the communication dated

09.01.1995 on behalf of Bina Chandiramani, wife of the

deceased plaintiff, and Sharmila Chandiramani, daughter of

the deceased plaintiff which was made in the handwriting of

the daughter. It was averred that they have carried the goods

such as garments, machinery, fittings etc., in the absence of

the plaintiff in vehicle No. CAS 337, thus it was an implied

surrender of possession.

5

11. The first suit was filed on 27.1.1995 for permanent injunction,

though the building stood demolished on 9.1.1995.

Subsequently, the suit was amended to claim relief for

mandatory injunction and possession. The plaintiff had

pleaded that he would be taking steps for contempt of court

for disobedience of the orders of Court and for damages

incurred, actual or general. The cause of action was said to

have arisen on 25.01.1995 when the appellant attempted to

commit criminal trespass into the schedule property in

possession of the plaintiff. The relevant extract from the

plaint reads thus:

“9. …………The plaintiff will be taking steps against

the defendant and corporation officials for contempt

of court, disobedience of orders of Court and for

damages incurred actual, general by the plaintiff

separately.

10. In the meanwhile, the defendant, who, under law

cannot be in possession of schedule premises and is

attempting to take forcible possession of the same

and letting out and alienate the same to others and

also to put up construction. He cannot do so under

law, until disposal of the HRC Petition. The plaintiff has

legal right to be protected. The plaintiff is rudely

shocked at the high handedness of the defendant. In

the evening of 25.01.95, alongwith his henchmen, the

defendant tried to commit criminal trespass into the

schedule property and wanted to put up wall etc.

whereupon the plaintiff made hue and cry and by

which there was commotion and a oral complaint also

given to the police, and in writing on 25.01.95 for

which no acknowledgement was given, however the

defendant could not succeed in his attempt and the

plaintiff has sent copy of the said complaint under

certificate of posting today to the police.

11. The cause of action for the suit arises within the

jurisdiction of this Hon’ble Court at Bangalore on

6

25.01.95 and subsequently thereafter, when the

plaintiff attempted to commit criminal trespass into

the suit schedule property, within the jurisdiction of

this Hon’ble Court.”

12. The second suit was filed on 30.10.1995 claiming damages,

though such right of damages was also available when the

first suit was filed on 27.1.1995. As mentioned above, the

first suit was decided on 16.4.2005 which is later than the

decree in the second suit. In the first suit, a finding was

returned that the second suit was barred by the provisions of

Order II Rule 2 of the Code of Civil Procedure, 19086

. The

second suit was filed as an indigent person wherein the

plaintiff claimed that he had 12 sewing machines, and other

materials at the shop at the time of demolition. The learned

trial court assessed the value of stock-in-trade of readymade

garments and finished goods at around Rs.50,000/- and

another Rs.25,000/- for fittings, fixtures, furniture, electrical

fittings etc. The trial court further found that he had lost his

earnings of Rs.10,000/- per month on the basis of Ex.P/40.

The decree was to grant quantified damages and to pay Rs.

10,000/- per month till such time, the possession is handed

over to the plaintiff.

13. In the first appeal, the Division Bench of the High Court interalia held that:

(i) There is lack of bonafides in issuing notice under

6 For short, the ‘Code’

7

Section 322 of the Act, therefore, the order passed is

not legal and valid.

(ii) The notice has been issued without examining the

fact that the plaintiff has got statutory protection

under the Rent Act. The cause of action to demolish

the building would arise only after passing an order

under Section 462 of the Act and that action of the

Corporation is tainted with legal malafide.

(iii) The building was demolished in haste as the order

was served upon the plaintiff at 17:20 hours on

6.1.1995 and the building was demolished on

9.1.1995 without giving clear 3 days of notice

period.

(iv) Section 21 of the Rent Act has overriding effect

under Section 322 of the Act as statutory protection

is granted to the tenant. Therefore, the proceeding

under Section 322 of the Act was not permissible.

(v) That the suit is not barred by the principles of Order

II of Rule 2 of the CPC.

14. The High Court, thus, allowed the appeal holding that the

building in question was demolished in haste and the plaintiff

was thus entitled to possession of the building as he was

unlawfully dispossessed of the same. The Corporation and the

appellant were therefore directed to restore the possession

within two months of a shop comparable in size and form in

8

the built portion of the suit property.

15. Learned counsel for the appellant vehemently argued that

the High Court proceeded on the assumption that there was

an interim injunction on 15.2.1995 in the first suit, however

the building already stood demolished on 9.1.1995. The first

suit was filed on 27.1.1995 subsequent to the demolition.

Still further, an application filed by the plaintiff under Order

XXXIX Rule 2A of the CPC for violation of an interim order

dated 15.2.1995 was dismissed on 10.8.1998. Thereafter,

the first suit was decided on 16.4.2005. Thus, there is a

factual error in the order passed by the High Court.

16. The proceedings were initiated against the plaintiff under the

Act vide notice issued on 24.5.1994. The said order was

challenged by the plaintiff before the Writ Court wherein a

Court Commissioner was appointed who reported about the

dilapidated condition of the building. The High Court had

given four weeks’ time to the Corporation to pass an order on

the show cause notice issued. The order was passed on

5.1.1995 after giving an opportunity of hearing to the plaintiff

and after visiting the site by the Deputy Commissioner of the

Corporation. Thus, the plaintiff was well aware of the

proceedings initiated against him by the Corporation. The

order of dismissal of the writ petition on 8.12.1994 was not

challenged by the plaintiff. Since the Corporation was given

9

four weeks’ time to pass a final order, therefore, the

Corporation was bound to pass an order in terms of the

direction of the High Court, which was passed on 5.1.1995.

The said order was served on 6.1.1995. The building was

demolished on 9.1.1995, which was the third day of serving

of the said order. Therefore, there is no violation neither of

the order of the High Court nor the building was demolished

in haste.

17. It was also argued that the plaintiff was bound to include his

claim for damages in the first suit which was filed on

27.1.1995 after the demolition had taken place. Since no

grievance was raised in the first suit regarding damage to the

property or to the loss of business, the second suit would be

barred by the provision of Order II Rule 2 CPC. However, as

per the plaintiff, the cause of action arose on 09.01.1995,

when the plaintiff was dispossessed from the schedule

property. The relevant extract from the plaint of the second

suit reads as under:

“The cause of action for the suit arises within the

jurisdiction of this Hon’ble Court at Bangalore on

09.01.95 being date when plaintiff was disposed from

the schedule premises with his belongings etc. and as

stated above and subsequently on various dates when

notices have been issued and acknowledged by the

defendants-6. The value of the suit for purpose of

(illegible) and jurisdiction is as per valuation (illegible)

plaintiff is indigent person and he may be permitted to

prosecute the above case in pharma (illegible) as he is

unable to pay court fee.”

10

18. The finding of the High Court that notice under Section 322 of

the Act was not bonafide as tenant has the protection of the

Rent Act was assailed on the ground that the proceedings

under the Rent Act are restricted between landlord and

tenant to seek ejectment on the permissible grounds whereas

the Act is much wider to ensure public safety on account of

dilapidated building endangering the life and property of the

occupants. Both the Acts operate in their assigned separate

fields and therefore, it cannot be said that the Rent Act has

the preference over the Act. It was also argued that the order

passed by the Corporation on 5.1.1995 was keeping in view

the building which was in old dilapidated condition and could

be a cause of danger to the public. The finding of the High

Court that the proceedings under the Act was an act of

collusion between the owner and the Corporation is

misconceived only for the reason that the appellant has

withdrawn rent proceedings after the demolition of the

building on 6.2.1995. The tenanted portion had ceased to

exist after demolition; therefore, the relief of ejectment was

no longer available to the appellant.

19. On the other hand, learned counsel for the respondents

herein argued that the order of demolition was served upon

the deceased plaintiff on 6.1.1995 at 5:20 pm and the

building was demolished on 9.1.1995 at 9:00 am. Therefore,

11

there was no clear three days’ notice granted to the plaintiff

to vacate the premises nor to avail any legal remedy. It was

further argued that order under Section 322 of the Act could

not be executed without passing an order under Section 462

of the Act. Learned counsel supported the findings of the

High Court that it was high handedness of the officials of the

Corporation and the appellant which led not only to loss of

the premises but loss of business as well. Section 322 and

Section 462 of the Act read as under:

“322. Precautions in case of dangerous structures. –

(1) If any structure be deemed by the Commissioner

to be in a ruinous state or dangerous to passersby or

to the occupiers of neighbouring structures, the

Commissioner may, by notice require the owner or

occupier to fence off, take down, secure or repair such

structure so as to prevent any danger therefrom.

(2) If immediate action is necessary, the

Commissioner may himself, before giving such notice

or before the period of notice expires fence off, take

down, secure or repair such structure or fence off a

part of any street or take such temporary measures as

he thinks fit to prevent danger and the cost of doing

so shall be recoverable from the owner or occupier in

the manner provided in Section 470.

(3) If in the Commissioner’s opinion the said structure

is imminently dangerous to the inmates thereof, the

Commissioner shall order the immediate evacuation

thereof and any person disobeying may be removed

by any police officer.

xx xx xx

462. Time for complying with order and power to

enforce in default. – (1) Whenever by any notice,

requisition or order made under this Act or under any

rule, bye-law or regulation made under it, any person

in required to execute any work, or to take any

measures or do anything, a reasonable time shall be

12

named in such notice, requisition or order within

which the work shall be executed, the measures

taken, or the thing done.

(2) If such notice, requisition or order is not complied

with within the time so named, then whether or not a

fine is provided for such default and whether or not

the person in default is liable to punishment or has

been prosecuted or sentenced to any punishment for

such default, the Commissioner may cause such work

to be executed, or may take any measure or do

anything which may, in his opinion, be necessary for

giving due effect to the notice, requisition or order as

aforesaid.

(3) If no penalty has been specially provided in this

Act for failure to comply with such notice, the said

person shall, on conviction, be punished with fine not

exceeding fifty rupees for such offence.”

20. The plaintiff asserted that the area of the subject shop was

1000 sq. feet (approx.). Reliance was placed upon schedule

of property given in plaint of the first suit. It was submitted

that the right of a tenant survives even after demolition of

tenanted premises. Reference was made to Section 27 of the

Rent Act as well as three-judge bench judgment of this Court

reported as Shaha Ratansi Khimji and Sons v. Kumbhar

Sons Hotel Private Limited and Ors.

7

 holding that in

terms of Section 108B(e) of the Transfer of Property Act,

18828

, the destruction of tenanted property would not

amount to determination of tenancy under Section 111 of the

TP Act. Reliance was also placed upon some judgments of

7 (2014) 14 SCC 1

8 For short, the ‘TP Act’

13

the High Courts in support of such argument.

21. In respect of area of tenanted premises, the plaintiff relied

upon the schedule of the property in the suit for injunction.

Such schedule does not show the area in possession but

shows the boundaries of the building. As per the Court

Commissioner, the entire building measured about 38 feet x

16 feet. The Commissioner had given the report that

northern side of the ground floor was damaged as in the

inside wall, there were air cracks and leakage of water. Some

of the portion of the building towards the northern side had

already fallen down. The western side, adjacent to the

northern wall was also in a very bad condition as the roof of

the room was damaged by the cracks and leakage of water

from the roof inside the northern wall. In the middle of

northern wall on the first floor, 1½” cracks appeared inside

the wall from the top of the roof. The length of the said crack

was about 6 feet from the top. The leakage of the water from

the roof of the first floor and cracks were coming in the wall

of the southern side as well. The Court Commissioner found

that there were cracks in the building and leakage of water

on the northern side wall. The area of tenanted premises was

not an issue, which would be relevant as to whether the

tenanted premises had been demolished without adequate

notice or if the tenant has right to enter into possession of

building constructed on the site in question.

14

22. We have heard learned counsel for the parties and found that

the judgment and decree of the High Court cannot be

sustained. The argument of the plaintiff was that in spite of

demolition of the building by the Corporation, the tenancy

rights survive as the right of tenancy is not only in building

but also in the land. Thus, the plaintiff was entitled to

equivalent size of shop in the building which has been

constructed on the land of which the Plaintiff was a tenant on

the first floor. Reliance has been placed on judgment of this

Court in Shaha Ratansi Khimji wherein the godown in

possession of the tenant was demolished. The assertion of

the tenant in the said case was that the owner started

digging of basement for construction of a hotel next to the

wall of godown. The tenant filed a suit for injunction claiming

restraint order against the owner from digging as it would

endanger the godown. The tenant claimed by way of an

amendment to reconstruct the walls of godown. The learned

trial court dismissed the suit. The appeal as well as the

second appeal against the said judgment was also dismissed.

This Court, in an appeal directed against the three orders

passed by the courts below interpreted Section 108(B)(e) of

the TP Act holding that right has not been conferred by the

statute on the lessor for determination, therefore, it will not

be permissible for the Court to add another ground of base or

fulcrum of ethicality, difficulty or assumed supposition. The

15

tenancy rights would continue over the land even after the

building was demolished. This Court approved the judgment

of this Court reported as T. Lakshmipathi & Ors. v. P.

Nithyananda Reddy & Ors.

9

 wherein the landlord initiated

eviction proceedings on the ground that he requires the

premises for his own bona fide use and that tenant was in

arrears of rent and had also sub-let the premises. This Court

overruled the judgment of this Court reported as

Vannattankandy Ibrayi v. Kunhabdulla Hajee

10 and held

as under:

“23. In Vannattankandy Ibrayi the learned Judges

referred to the decision on common law, the principles

in American jurisprudence, and various decisions of

the High Courts and adverted to two categories of

tenants, namely, a tenant under the Transfer of

Property Act and the other under the State rent of

laws and proceeded to interpret Section 108(B)(e) to

hold that where a premises has fallen down under the

circumstances mentioned therein, the destruction of

the shop itself does not amount to determination of

tenancy under Section 111 of the Act and there is no

automatic determination of tenancy and it continues

to exist…….

xx xx xx

27………………………. On the touchstone of this

analysis, we respectfully opine that the decision

rendered in Vannattankandy Ibrayi (supra) does not

correctly lay down the law and it is, accordingly,

overruled.

28. In the present case, it is not in dispute that the

respondent purchased the lessor's interest. The lease

continued even thereafter and did not extinguish. The

lease was subsisting when the shares of the land were

purchased by the respondent. But the interest of the

9 (2003) 5 SCC 150

10 (2001) 1 SCC 564

16

lessee was not purchased by the respondent. What

has been purchased by the respondent is the right

and interest of ownership of the property. The interest

of the appellant as lessee has not been vested with

the respondent. Therefore, we are of the view that the

tenancy of the appellant cannot be said to have been

determined consequent upon demolition and

destruction of the tenanted premises.

29. In view of the facts and circumstances of the

case, we have no other option but to set aside the

impugned judgment and decree dated 18-7-2006

passed by the High Court of Judicature of Bombay

in Shaha Ratansi Khimji & Sons v. Proposed Kumbhar

Sons Hotel (P) Ltd. [Shaha Ratansi Khimji &

Sons v. Proposed Kumbhar Sons Hotel (P) Ltd., Second

Appeal No. 109 of 2006, decided on 18-7-2006 (Bom)]

and judgment and decree dated 30-11-2005 passed

by the Additional District Judge, Karad in RCA No. 86

of 2002. However, taking into consideration the fact

that the appellant is not in possession of the suit

property since long, we are not inclined to direct

restoration of possession of suit property to the

appellant. Instead we direct the respondent to pay a

sum of Rs 20,00,000 (Rupees twenty lakhs only) in

favour of the appellant towards compensation for

depriving the appellant from enjoying the suit

property within two months, failing which it shall be

liable to pay interest @ 6% per annum from the date

of the judgment.”

23. A perusal of the above extract from the judgment shows that

this Court noticed that there are two categories of tenants

namely, a tenant under the TP Act and the other under the

State Rent Laws. There is no assertion that the property in

question in the said case was governed by State Rent Laws. It

was a case where the owner started digging a ditch towards

the northern side wall of the suit property. During the rainy

season, the water used to get accumulated in the said ditch

and that the owner closed the access road to the said

17

property. It was also alleged that the owner went ahead with

destruction of the godown and demolished the western wall

of the godown. The judgment does not deal with statutory

tenant protected by a particular statute but with the

principles of a contractual tenancy in terms of Section 108(B)

(e) of the TP Act. In fact, the para quoted in the three judge

bench judgment is an alternate argument raised in the

Vannattankandy Ibrayi, which is evident from the following

para:-

“20. From the aforesaid decisions there is no doubt

that if a building is governed by the State Rent Act

the tenant cannot claim benefit of the provisions of

Sections 106, 108 and 114 of the Act. Let us test the

arguments of learned counsel for the appellant that

on the destruction of the shop the tenant can resist

 his dispossession on the strength of Section 108B(e).

In this case what was let out to the tenant was a shop

for occupation to carry on business. On the

destruction of the shop the tenant has ceased to

occupy the shop and he was no longer carrying on

business therein. A perusal of Section 108(B)(e)

shows that where a premises has fallen down under

the circumstances mentioned therein the destruction

of the shop itself does not amount to determination

of tenancy under Section 111 of the Act. In other

words there is no automatic determination of tenancy

and it continues to exist……………..”

(Emphasis Supplied)

24. In Shaha Ratansi Khimji, the Court has considered the

alternative argument assuming that Section 108(B)(e) of the

TP Act is applicable. However, the primary argument that

being a statutory tenant, right has to be culled out only from

the Rent Laws had not been raised or considered. It is the

alternative argument which has not found favour with the

18

three Judge Bench in Khimji case. In respect of the statutory

tenant, different aspects of rights of statutory tenant need to

be examined, which are not the same as rights of a lessee

under the TP Act.

25. A Seven Judge Bench in the judgment reported as V.

Dhanpal Chettiar v. Yesodai Ammal

11

 was examining a

question as to whether a statutory tenant is entitled to notice

of termination of tenancy contemplated by Section 106 of the

TP Act or not. It was held that since statutory tenant is

entitled to protection under the Rent Act, therefore, the

procedure prescribed under the TP Act would not be

applicable. The Court held as under:

“5. ….The subject being in the concurrent list, many

State Rent Acts have by necessary implication and

many of them by starting certain provisions with a

non-obstante clause have done away with the law

engrafted in Section 108 of the Transfer of Property

Act except in regard to any matter which is not

provided for in the State Act either expressly or by

necessary implication.

xxx xxx xxx

13. ...The notice does not bring to an end such a

relationship because of the protection given to the

tenant under the Rent Act. If that be so then it is not

necessary for the landlord to terminate the

contractual relationship to obtain possession of the

premises for evicting the tenant. If the termination of

the contractual tenancy by notice does not, because

of the Rent Act provisions, entitle the landlord to

recover possession and he becomes entitled only if he

makes out a case under the special provision of the

State Rent Act, then, in our opinion, termination of the

11 (1979) 4 SCC 214

19

contractual relationship by a notice is not necessary.

The termination comes into effect when a case is

successfully made out for eviction of the tenant under

the State Rent Act. We say with utmost respect that

on the point of requirement of a notice under Section

106 of the Transfer of Property Act Mangilal case [AIR

1965 SC 101: (1964) 5 SCR 239] was not correctly

decided.

xxx xxx xxx

16. …Even if the lease is determined by a forfeiture

under the Transfer of Property Act the tenant

continues to be a tenant, that is to say, there is no

forfeiture in the eye of law. The tenant becomes liable

to be evicted and forfeiture comes into play only if he

has incurred the liability to be evicted under the State

Rent Act, not otherwise. In many State statutes

different provisions have been made as to the grounds

on which a tenant can be evicted and in relation to his

incurring the liability to be so evicted. Some

provisions overlap those of the Transfer of Property

Act. Some are new which are mostly in favour of the

tenants but some are in favour of the landlord also.

That being so the dictum of this Court in Raj Brij case

[AIR 1951 SC 115: 1951 SCR 145: 1951 SCJ 238]

comes into play and one has to look to the provisions

of law contained in the four-corners of any State Rent

Act to find out whether a tenant can be evicted or not.

The theory of double protection or additional

protection, it seems to us, has been stretched too far

and without a proper and due consideration of all its

ramifications.

xxx xxx xxx

18. .…If we were to agree with the view that

determination of lease in accordance with the Transfer

of Property Act is a condition precedent to the starting

of a proceeding under the State Rent Act for eviction

of the tenant, we could have said so with respect that

the view expressed in the above passage is quite

correct because there was no question of

determination of the lease again once it was

determined by efflux of time. But on the first

assumption we have taken a different view of the

matter and have come to the conclusion that

determination of a lease in accordance with the

Transfer of Property Act is unnecessary and a mere

20

surplusage because the landlord cannot get eviction

of the tenant even after such determination. The

tenant continues to be so even thereafter. That being

so, making out a case under the Rent Act for eviction

of the tenant by itself is sufficient and it is not

obligatory to found the proceeding on the basis of the

determination of the lease by issue of notice in

accordance with Section 106 of the Transfer of

Property Act.”

26. In a later judgment reported as Pradesh Kumar Bajpai v.

Binod Behari Sarkar (Dead) by Lrs.

12

, a three Judge Bench

of this Court was examining the claim of tenant with respect

to right to pay arrears of rent in terms of Section 114 of the

TP Act. The following argument was examined:

“9. …….The only question that arises and which

was seriously contended for on behalf of the

respondent is that in addition to the safeguards

provided to the tenant under the Act, he is also

entitled to the benefits of Section 114 of the Transfer

of Property Act. Section 3 of the U.P. (Temporary)

Control of Rent and Eviction Act 3 of 1947 restricts the

rights of the landlord to have the tenant evicted. But

for the statutory provisions, the landlord would be

entitled to evict the tenant according to the terms of

the contract or the provisions of the Transfer of

Property Act. As the Rent Act has restricted the power

of the landlord to evict the tenant except in

accordance with the provisions of the Act, the terms of

the contract and the provisions of the Transfer of

Property Act to that extent are no longer applicable.”

27. The question raised on the basis of the argument of the

tenant was found to be without any substance that he was

entitled to double protection under the Rent Act and under

the TP Act. The Court held as under:

“12. …..If the relief provided for under the section is

available, as the lessee had tendered the rent in

12 (1980) 3 SCC 348

21

arrears along with the interest thereon and his full

costs in the suit, it was open to the court to pass an

order relieving the lessee against the forfeiture. The

plea of the learned Counsel for the tenant is that this

provision should also be read into the U.P. (Temporary)

Control of Rent and Eviction Act. In a decision of

seven-Judges, Bench of this Court in V. Dhanapal

Chettiar v. Yasodai Ammal [(1979) 4 SCC 214 : (1980)

1 SCR 334] the question as to whether in order to get

a decree for eviction, the landlord under the Rent

Control Act should give notice as required under

Section 106 of the Transfer of Property Act was

considered. This Court held that determination of the

lease in accordance with the Transfer of Property Act

is unnecessary and that if a case is made out for

eviction under the Rent Act, it is itself sufficient and it

is not obligatory to determine the lease by issue of

notice as required in accordance with Section 106 of

the Transfer of Property Act. The learned Counsel for

the tenant submitted that the decision is confined

only to the question as to whether notice under

Section 106 of the Transfer of Property Act is

necessary and did not decide as to whether the

provisions of the other sections of the Transfer of

Property Act are applicable. It is to be noted, however,

that the question of determination of a lease by

forfeiture under the Transfer of Property Act, was

specifically dealt with by the court and it was held

that the claim of the tenant that he is entitled to a

double protection (1) under the Rent Act and (2) under

the Transfer of Property Act, is without any substance.

xxx xxx xxx

In the case before us, it is not in dispute that after the

Rent Act came into force, the landlord cannot avail

himself of clause 12 which provides for forfeiture,

even if the tenant neglected to pay the rent for over

two months. The landlord cannot enter into

possession forthwith without notice. The only remedy

for him is to seek eviction under the provisions of the

Rent Act. In such circumstances the tenant cannot rely

on Section 114 of Transfer of Property Act and claim

that he should be given an opportunity to pay the

arrears of rent, even though the requirements of

Section 3(1) had been fulfilled.”

22

28. In another judgment reported as K. K. Krishnan v. M. K.

Vijaya Ragavan

13

 an argument was raised relying upon

Section 108(j) of the TP Act that lessee has a right to

sublease the whole or any part of his interest in the property.

Therefore, the landlord cannot seek eviction on the ground of

subletting under the Kerala Buildings (Lease and Rent

Control) Act. The Court held as under:

“8. It is clear from what has been said that not all

the rights conferred on landlord and tenant by Section

108 and other provisions of the Transfer of Property

Act have been left in tact by the various State Rent

Acts and that if a State Rent Act makes provision for

eviction on certain specified grounds, eviction cannot

be resisted on the basis of rights conferred by the

Transfer of Property Act. Section 108(j) of the Transfer

of Property Act stands displaced by Section 11(4)(i) of

the Kerala Buildings (Lease and Rent Control) Act and

is no defence to an action for eviction based on

Section 11(4)(i).”

29. In another judgment reported as R.S. Grewal & Ors. v.

Chander Prakash Soni & Anr.

14

, the Court was examining a

case where a legatee under a Will was given life interest. It

was argued that creation of a tenancy which will continue

beyond the life of the legatee will amount to transfer of the

interest beyond the life of the legatee. The Court held that

the protection which is conferred upon the tenant against

eviction, except on specified grounds, arises as a

consequence of statutory prescription under rent control

legislation. The Court held as under:

13 (1980) 4 SCC 88

14 (2019) 6 SCC 216

23

“28. A statutory protection granted for the benefit of

the tenants under specific tenancy laws is to be

viewed from a standpoint of protecting the interests of

a particular class. Restrictions on recovery of

possession of the premises let out to the tenants have

been imposed for the benefit of the tenants as a

matter of legislative policy.

29. There is a fallacy in the submission which was

urged on behalf of the appellant. The appellant

postulates that a life interest is personal to the person

who possesses it and the creation of a tenancy which

will enure beyond her life amounts to a transfer of the

life interest. What the submission overlooks is that the

creation of the tenancy was an act of the person

enjoying a life interest in the present case and was an

incident of the authority of that individual to generate

income from the property for her own sustenance. The

creation of a tenancy is an incident of the exercise of

such an authority. The protection which is conferred

upon the tenant against eviction, except on specified

grounds, arises as a consequence of statutory

prescription under rent control legislation. The reason

why the tenant is entitled to occupy the premises

beyond the lifetime of the landlord who created the

tenancy is simply as a result of a statutory enactment,

in this case, the East Punjab Rent Restriction Act,

1949. It is the intervention of a legislative mandate

which enures to the benefit of the tenant. Once this

has taken place, it was not open to the civil court to

entertain a suit for possession founded on the

hypothesis that the tenant is a trespasser.”

30. In another judgment reported as N. Motilal & Ors. v. Faisal

Bin Ali & Anr.

15

, it was held that even during the period of

contractual tenancy, if the premises are governed by the Rent

Laws, the parties have an option to seek determination of fair

rent. It was held as under:

“14. The Constitution Bench judgment in Raval & Co.

case [Raval & Co. v. K.G. Ramachandran, (1974) 1 SCC

424] as well as the seven-Judge Bench judgment in V.

15 (2020) 13 SCC 667

24

Dhanapal Chettiar case [V. Dhanapal

Chettiar v. Yesodai Ammal, (1979) 4 SCC 214] are

binding which categorically had laid down that the

application for determination of fair rent can be made

both by the landlord and the tenant which can be

made even during currency of contractual tenancy.

We, thus, find the submission made by the learned

counsel for the appellants in the above regard without

any substance.”

31. In view of the binding decisions of the larger bench and

keeping in view the fact that the judgment of this Court in

Shaha Ratansi Khimji was dealing with the rights of

contractual tenant, the statutory tenant cannot seek

repossession after the demolition of building under Section

108(B)(e) of the TP Act as the rights and liabilities of a

statutory tenant have to be found under the Rent Act alone.

32. The petition for eviction filed by the landlord was withdrawn.

Since the premises are situated within the urban areas

governed by the Rent Act, the tenant has a right to seek

possession only in terms of Section 27 of the Act if the decree

for eviction has been passed by a Court on the ground

specified under clause (j) of the proviso to sub-section (1) of

Section 21. Even if it is assumed that decree of eviction was

passed on the withdrawal of the eviction petition, the tenant

has to seek possession of the premises from the date on

which he delivered vacant possession of the premises to the

landlord. The plaintiff filed first suit claiming right over the

land after demolition of the building but being a statutory

25

tenant, he had to avail the remedy under the Rent Act as the

provisions of the TP Act are not applicable to the building and

land situated within urban area. In view of the provisions of

the Act, the terms of the TP Act cannot be applied for in

respect of statutory tenants. The High Court has returned a

finding that the plaintiff was a statutory tenant. In view of the

said fact, the remedy of the tenant, if any, has to be found

within four corners of the Rent Act and not under the TP Act.

33. Another argument raised by the tenant was that a notice

under Section 462 of the Act was not served. We do not find

any merit in the said argument. Section 322 of the Act is a

self-contained provision which empowers the Commissioner

for immediate evacuation of the property and any person

disobeying such orders was to be removed by any Police

Officer. Section 462 of the Act is in respect of execution of any

work or to take any measures or to do anything. The works

and the measures mentioned therein are in respect of other

provisions in the statute which contemplate compliance by

the citizens. Section 322 of the Act is an independent

provision. Therefore, the notice under Section 462 of the Act

was not required to be issued. The time for complying with

the order does not arise in the case of a building which was in

dilapidated condition endangering life of the citizens. Thus,

we do not find any merit in the said argument as well.

26

34. The plaintiff had filed the first suit on 27.1.1995 after the

tenanted premises were demolished. The right to claim

damages for loss of the property including goods and

machines was available to the plaintiff on the said date. In

fact, in the second suit, the plaintiff has pleaded that the

cause of action arose to him on 9.1.1995. The Order II Rule 2

CPC reads thus:

“2. Suit to include the whole claim. – (1) Every suit

shall include the whole of the claim which the plaintiff

is entitled to make in respect of the cause of action;

but a plaintiff may relinquish any portion of his claim

in order to bring the suit within the jurisdiction of any

Court.

(2) Relinquishment of part of claim.—Where a plaintiff

omits to sue in respect of, or intentionally

relinquishes, any portion of his claim, he shall not

afterwards sue in respect of the portion so omitted or

relinquished.

(3) Omission to sue for one of several reliefs.—A

person entitled to more than one relief in respect of

the same cause of action may sue for all or any of

such reliefs; but if he omits, except with the leave of

the Court, to sue for all such reliefs, he shall not

afterwards sue for any relief so omitted.”

35. A perusal of the above Rule would show that every suit shall

include whole of the claim which the plaintiff is entitled to

make in respect of the cause of action. The cause of action is

a bundle of facts and relief of damages is construed to be a

component of such bundle of facts. The plaintiff was conscious of the fact that he wants to sue for damages which is

evident from his averment in para 9 of the plaint of the first

27

suit but the plaintiff was required to obtain leave of the Court

before filing suit for damages subsequently. The High Court

has clearly erred in law in holding that the cause of action for

both the suits is different.

36. The cause of action as held in Suraj Rattan Thirani v.

Azamabad Tea Co. Ltd.

16

is a bundle of facts which included

the relief of possession as well as the loss which occurred on

account of alleged demolition. This Court held as under:

“29. We consider that the test adopted by the Judicial

Committee for determining the identity of the causes

of action in two suits in Mohammed Khalil Khan v.

Mahbub Ali Mian [75 IA 121] is sound and expresses

correctly the proper interpretation of the provision. In

that case Sir Madhavan Nair, after an exhaustive

discussion of the meaning of the expression “same

cause of action” which occurs in a similar context in

para (1) of Order 2 Rule 2 of the Civil Procedure Code

observed:

“In considering whether the cause of action in the

subsequent suit is the same or not, as the cause of

action in the previous suit, the test to be applied is/are

the causes of action in the two suits in substance —

not technically — identical?”

30. The learned Judge thereafter referred to an earlier

decision of the Privy Council in Soorijomonse Dasee v.

Suddanund [(1873) 12 Beng LR 304, 315] and

extracted the following passage as laying down the

approach to the question:

“Their Lordships are of opinion that the term ‘cause of

action’ is to be construed with reference rather to the

substance than to the form of action….”

Applying this test we consider that the essential

bundle of facts on which the plaintiffs based their title

and their right to relief were identical in the two suits.

16 AIR 1965 SC 295

28

The property sought to be recovered in the two suits

was the same. The title of the persons from whom the

plaintiffs claimed title by purchase, was based on the

same fact…….”

37. In State of Rajasthan v. Swaika Properties

17

, this Court

held that cause of action is a bundle of facts which taken with

the law applicable to them gives the plaintiff a right to seek

relief against the defendant. The Court held as under:-

“8. The expression “cause of action” is tersely defined

in Mulla's Code of Civil Procedure:

“The ‘cause of action’ means every fact which, if

traversed, it would be necessary for the plaintiff to

prove in order to support his right to a judgment of

the court.”

In other words, it is a bundle of facts which taken with

the law applicable to them gives the plaintiff a right to

relief against the defendant. The mere service of

notice under Section 52(2) of the Act on the

respondents at their registered office at 18-B,

Brabourne Road, Calcutta i.e. within the territorial

limits of the State of West Bengal, could not give rise

to a cause of action within that territory unless the

service of such notice was an integral part of the

cause of action. The entire cause of action culminating

in the acquisition of the land under Section 52(1) of

the Act arose within the State of Rajasthan i.e. within

the territorial jurisdiction of the Rajasthan High Court

at the Jaipur Bench. The answer to the question

whether service of notice is an integral part of the

cause of action within the meaning of Article 226(2) of

the Constitution must depend upon the nature of the

impugned order giving rise to a cause of action. The

notification dated February 8, 1984 issued by the

State Government under Section 52(1) of the Act

became effective the moment it was published in the

Official Gazette as thereupon the notified land became

vested in the State Government free from all

encumbrances. ……………………..”

17 (1985) 3 SCC 217

29

38. The High Court has returned a finding that the Rent Act will

prevail over the Act. However, we are unable to agree with

this observation. Both the statutes are enacted by the State

of Karnataka. The Act deals with the municipal functions

which are wider and welfare-oriented towards the residents of

the area of Corporation, whereas the Rent Act has a limited

application for determining the rights of land owner and tenant. Both operate in separate spheres as both have different

objectives to be achieved.

39. In Ashoka Marketing Ltd. v. Punjab National Bank

18

, a

Constitution Bench held that where the literal meaning of the

general enactment covers a situation for which specific

provision is made by another enactment contained in the

earlier Act, it is presumed that the situation was intended to

continue to be dealt with by the specific provision rather than

the later general one. The Court held as under:-

“41. As a result of this comparison it can be said that

certain premises, viz. building or parts of buildings

lying within the limits of the New Delhi Municipal

Committee and the Delhi Cantonment Board and in

urban areas within the limits of the Municipal

Corporation of Delhi, which belong to or are taken on

lease by any of the companies or statutory bodies

mentioned in clauses (2) and (3) of Section 2(e) of the

Public Premises Act and which are in occupation of a

person who obtained possession of the said premises

as a tenant and whose tenancy has expired or has

been terminated but who is continuing in occupation

of the same, would ex-facie fall within the purview of

both the enactments. The question which, therefore,

arises is whether the occupant of such premises can

seek protection available under the provisions of Rent

18 (1990) 4 SCC 406

30

Control Act and he can be evicted from the premises

only in accordance with the said provisions and

proceedings for eviction of such a person cannot be

initiated under the provisions of the Public Premises

Act.

xx xx xx

49. This means that both the statutes, viz. the Public

Premises Act and the Rent Control Act, have been

enacted by the same legislature, Parliament, in

exercise of the legislative powers in respect of the

matters enumerated in the Concurrent List. We are,

therefore, unable to accept the contention of the

learned Additional Solicitor General that the Public

Premises Act, having been enacted by Parliament in

exercise of legislative powers in respect of matters

enumerated in the Union List would ipso facto

override the provisions of the Rent Control Act

enacted in exercise of the legislative powers in

respect of matters enumerated in the Concurrent List.

In our opinion the question as to whether the

provisions of the Public Premises Act override the

provisions of the Rent Control Act will have to be

considered in the light of the principles of statutory

interpretation applicable to laws made by the same

legislature.

50. One such principle of statutory interpretation

which is applied is contained in the latin maxim :

leges posteriores priores conterarias abrogant (later

laws abrogate earlier contrary laws). This principle is

subject to the exception embodied in the maxim :

generalia specialibus non derogant (a general

provision does not derogate from a special one.) This

means that where the literal meaning of the general

enactment covers a situation for which specific

provision is made by another enactment contained in

the earlier Act, it is presumed that the situation was

intended to continue to be dealt with by the specific

provision rather than the later general one (Bennion,

Statutory Interpretation pp. 433-34).

xx xx xx

55. The Rent Control Act makes a departure from the

general law regulating the relationship of landlord and

tenant contained in the Transfer of Property Act

31

inasmuch as it makes provision for determination of

standard rent, it specifies the grounds on which a

landlord can seek the eviction of a tenant, it

prescribes the forum for adjudication of disputes

between landlords and tenants and the procedure

which has to be followed in such proceedings. The

Rent Control Act can, therefore, be said to be a special

statute regulating the relationship of landlord and

tenant in the Union territory of Delhi. The Public

Premises Act makes provision for a speedy machinery

to secure eviction of unauthorised occupants from

public premises. As opposed to the general law which

provides for filing of a regular suit for recovery of

possession of property in a competent court and for

trial of such a suit in accordance with the procedure

laid down in the Code of Civil Procedure, the Public

Premises Act confers the power to pass an order of

eviction of an unauthorised occupant in a public

premises on a designated officer and prescribes the

procedure to be followed by the said officer before

passing such an order. Therefore, the Public Premises

Act is also a special statute relating to eviction of

unauthorised occupants from public premises. In other

words, both the enactments, namely, the Rent Control

Act and the Public Premises Act, are special statutes in

relation to the matters dealt with therein. Since, the

Public Premises Act is a special statute and not a

general enactment the exception contained in the

principle that a subsequent general law cannot

derogate from an earlier special law cannot be

invoked and in accordance with the principle that the

later laws abrogate earlier contrary laws, the Public

Premises Act must prevail over the Rent Control Act.

56. We arrive at the same conclusion by applying the

principle which is followed for resolving a conflict

between the provisions of two special enactments

made by the same legislature. We may in this context

refer to some of the cases which have come before

this Court where the provisions of two enactments

made by the same legislature were found to be

inconsistent and each enactment was claimed to be a

special enactment and had a non-obstante clause

giving overriding effect to its provisions.

xx xx xx

32

61. The principle which emerges from these decisions

is that in the case of inconsistency between the

provisions of two enactments, both of which can be

regarded as special in nature, the conflict has to be

resolved by reference to the purpose and policy

underlying the two enactments and the clear

intendment conveyed by the language of the relevant

provisions therein. We propose to consider this matter

in the light of this principle.

xx xx xx

64. It would thus appear that, while the Rent Control

Act is intended to deal with the general relationship of

landlords and tenants in respect of premises other

than government premises, the Public Premises Act is

intended to deal with speedy recovery of possession

of premises of public nature, i.e. property belonging to

the Central Government, or companies in which the

Central Government has substantial interest or

corporations owned or controlled by the Central

Government and certain corporations, institutions,

autonomous bodies and local authorities. The effect of

giving overriding effect to the provisions of the Public

Premises Act over the Rent Control Act, would be that

buildings belonging to companies, corporations and

autonomous bodies referred to in Section 2(e) of the

Public Premises Act would be excluded from the ambit

of the Rent Control Act in the same manner as

properties belonging to the Central Government. The

reason underlying the exclusion of property belonging

to the Government from the ambit of the Rent Control

Act, is that the Government while dealing with the

citizens in respect of property belonging to it would

not act for its own purpose as a private landlord but

would act in public interest. What can be said with

regard to government in relation to property

belonging to it can also be said with regard to

companies, corporations and other statutory bodies

mentioned in Section 2(e) of the Public Premises Act.

In our opinion, therefore, keeping in view the object

and purpose underlying both the enactments viz. the

Rent Control Act and the Public Premises Act, the

provisions of the Public Premises Act have to be

construed as overriding the provisions contained in

the Rent Control Act.”

33

40. In Allahabad Bank v. Canara Bank & Anr

19

, this Court held

that there can be a situation in law where the same statute is

treated as a special statute vis-à-vis one legislation and again

as a general statute vis-à-vis another legislation. Between

the Act and the Rent Act, the Act is a general statute enacted

as a third tier of local Government administration. The functions of the Corporation, inter alia, includes the regulation

and maintenance of the land and building, hygiene and

health, public streets and other for a larger section of the inhabitants falling in the municipal area, whereas the Rent Act

deals with the issues between the landlord and the tenant

conferring right to the landlord to seek eviction and correspondingly provide protection to the tenant. Therefore, the

finding of the High Court that Rent Act would prevail over the

Act is clearly erroneous as both legislations operate in separate distinct spheres having different objectives in mind.

41. The finding of the High Court that the building was

demolished without giving clear three days’ notice is partly

correct. The notice was served upon the plaintiff on

6.1.1995 and the building was demolished on 9.1.1995.

Thus, clear three days’ notice was not served upon the

plaintiff. The plaintiff was however aware of the proceedings

initiated by the Corporation on the ground that the building

in question was in dilapidated condition and unsafe for

19 (2000) 4 SCC 406

34

human inhabitation. The plaintiff had challenged such notice

before the High Court. The High Court had given four weeks’

time to the Corporation to pass a speaking order after giving

an opportunity of hearing to the plaintiff. The building was

inspected by the Deputy Commissioner of the Corporation

and opportunity of hearing was granted to the plaintiff as

well. Therefore, it is not a case where there was any sudden

development leading to the demolition of the building but

the order of demolition was a considerate action passed

after the report of the Court Commissioner was submitted

before the High Court and the Corporation was given time to

finally decide the show cause notice issued on 24.5.1994.

42. In fact, there is three days’ notice from the date of the order

but not from the date of receipt of the notice. This Court in

State of Punjab v. Khemi Ram20

 held as under:

“17. The question then is whether communicating the

order means its actual receipt by the concerned

government servant. The order of suspension in

question was published in the Gazette though that

was after the date when the respondent was to retire.

But the point is whether it was communicated to him

before that date. The ordinary meaning of the word

“communicate” is to impart, confer or transmit

information. (Cf. Shorter Oxford English Dictionary,

Vol. 1, p. 352). As already stated, telegrams, dated

July 31, and August 2, 1958, were dispatched to the

respondent at the address given by him where

communications by Government should be

dispatched. Both the telegrams transmitted or

imparted information to the respondent that he was

suspended from service with effect from August 2,

1958. It may be that he actually received them in or

20 (1969) 3 SCC 28

35

about the middle of August 1958, after the date of his

retirement. But how can it be said that the information

about his having been suspended was not imparted or

transmitted to him on July 31 and August 2, 1958 i.e.

before August 4, 1958, when he would have retired? It

will be seen that in all the decisions cited before us it

was the communication of the impugned order which

was held to be essential and not its actual receipt by

the officer concerned and such communication was

held to be necessary because till the order is issued

and actually sent out to the person concerned the

authority making such order would be in a position to

change its mind and modify it if it thought fit. But

once such an order is sent out, it goes out of the

control of such an authority, and therefore, there

would be no chance whatsoever of its changing its

mind or modifying it. In our view, once an order is

issued and it is sent out to the concerned government

servant, it must be held to have been communicated

to him, no matter when he actually received it. We

find it difficult to persuade ourselves to accept the

view that it is only from the date of the actual receipt

by him that the order becomes effective. If that be the

true meaning of communication, it would be possible

for a government servant to effectively thwart an

order by avoiding receipt of it by one method or the

other till after the date of his retirement even though

such an order is passed and despatched to him before

such date. An officer against whom action is sought to

be taken, thus, may go away from the address given

by him for service of such orders or may deliberately

give a wrong address and thus prevent or delay its

receipt and be able to defeat its service on him. Such

a meaning of the word “communication” ought not to

be given unless the provision in question expressly so

provides. Actual knowledge by him of an order where

it is one of dismissal, may, perhaps, become

necessary because of the consequences which the

decision in The State of Punjab v. Amar

Singh contemplates. But such consequences would

not occur in the case of an officer who has proceeded

on leave and against whom an order of suspension is

passed because in his case there is no question of his

doing any act or passing any order and such act or

order being challenged as invalid.”

36

43. Once the order was passed by the Corporation on 5.1.1995

and was put on the means of communication, the date of

actual receipt of notice is insignificant as the receipt could be

delayed by the recipient, though there is no such attempt or

finding. The wife and daughter of the plaintiff had removed

the goods including sewing machines etc., hence the

damages would include any loss of goods and the machines

which were in the tenanted premises in question. Keeping in

view the fact that the building was demolished within three

days of the receipt of notice, we deem it appropriate to order

the appellant to compensate the plaintiff with the damages of

Rs.5 lakhs. Such amount will be payable to the legal heirs of

the deceased plaintiff in accordance with law. The appellant

shall deposit a sum of Rs. 5 lakhs within a period of two

months before the trial court.

44. Consequently, the order of the High Court dated 28.09.2006

is hereby set aside and both the suits are dismissed, subject

to payment of Rs. 5 lakhs to the legal representatives of the

plaintiff within two months. The appeals are allowed.

.............................................J.

(HEMANT GUPTA)

.............................................J.

(A.S. BOPANNA)

NEW DELHI;

SEPTEMBER 14, 2021.

37