Indian courts consistently apply fundamental common law principles and natural justice to disciplinary proceedings against employees of societies and autonomous institutions. In Kerala, these general standards are statutorily embodied in Rule 198 of the Kerala Co-operative Societies Rules, 1969. The key procedural requirements governing such actions, structured with reference to Rule 198, are outlined below.
SUSPENSION
Who has to suspend an employee ?
An authority competent to appoint the employee has to suspend him.
Usually, the Managing Committee is the appointing authority. When the Managing Committee has taken a decision, it can be issued by the President or the Secretary of the committee.
President’s Role: In urgent situations requiring immediate preventive action, the President may issue a suspension order in anticipation of subsequent ratification by the Managing Committee. The President has general control over the affairs of the Society, as the chief executive of the Committee.
See: Prasanth Maroli v. Kannur Primary Co-operative Agricultural & Rural Development Bank Ltd. 2008 (4) KLT 451; 2008 (4) KHC 240); Chandrikamma v. Assistant Registrar (General), Co-operative Societies, 2000 (3) KLT 940.
The bye-laws of the society may expressly confer disciplinary/ suspension power on the President or exclusively on the Committee. It has to be honoured.
Rule 198(6) of the Kerala Co-operative Societies Rules, 1969 provides as under: “An authority competent to appoint an employee may suspend him pending enquiry into serious charges against such employee.”
What should be the period of suspension?
The period of suspension should be kept as brief as possible to ensure fairness and prevent unnecessary hardship.
Rule 198(6) of the Kerala Co-operative Societies Rules is the relevant provision. It reads: “No employee shall however be kept under suspension for a period exceeding six months at a time. In no case an employee shall be kept under suspension for a continuous period exceeding one year without the prior approval of the Registrar.”
Is the suspended employee entitled to a subsistence allowance?
Yes. Because suspension is not a punishment.
Rule 198(6) of the Kerala Rules further reads: “An employee under suspension shall be entitled to subsistence allowance payable under the Kerala Payment of Subsistence Allowance Act, 1972 (27 of 1973).”
Is suspension a part of enquiry?
No. Suspension and enquiry are independent legal matters. It is not a step within the enquiry itself.
Is suspension a punishment?
No. Suspension is purely a temporary administrative measure to ensure a fair enquiry.
Can a suspended employee be reinstated pending an enquiry?
Yes. A suspended employee can be taken back into service pending an enquiry by revoking the suspension order if the competent authority later finds that continued suspension is unnecessary.
What are the grounds for revoking suspension?
‘In the absence of any likelihood of the respondent to interfere with the enquiry or tampering with the evidence keeping the employee under suspension is unwarranted and cannot be justified.’ This principle is stated in K.K. Chandramathi v. Vadakkumpad Service Co-operative Bank Ltd., 1998 (2) KLT SN 37.
Who can revoke the suspension?
The same authority competent to suspend—normally the Managing Committee—may revoke the suspension and permit the employee to rejoin duty.
Can such employee be posted elsewhere?
Yes.
The Society may:
revoke the suspension;
assign the employee to another seat/branch/section;
restrict access to records connected with the enquiry; or
require the employee not to interfere with witnesses or documents.
Such arrangements are often adopted where the employee’s presence is not likely to prejudice the enquiry.
DISCIPLINARY SUB-COMMITTEE
Why is a Disciplinary Sub-Committee formed?
Ensuring a Genuine Right of Appeal: If the full Managing Committee were to conduct the initial inquiry or directly impose punishment, an employee would have no independent, unbiased body left to hear an appeal. Separating the initial disciplinary authority from the appellate body ensures that the Managing Committee can function as an impartial tribunal during the appeal stage.
Separation of Roles: Having a smaller, dedicated standing body to handle charge memos and inquiries prevents the members who judge the final appeal from having prejudged the facts or actively participated in the original penalty decision (nemo judex in causa sua).
The disciplinary sub-committee, envisaged under Rule 198(2A), is ordinarily to be constituted as a standing body, andit is not constituted on a case-to-case basis (Mattanur Co-Operative Rural Bank Ltd. v. The Co-Operative Arbitration Court (FB), 2023-5 KLT 312; 2023 KHC (Online) 541).
How many members can be included in a Disciplinary Sub-Committee?
The total number of sub-committee members must be kept low enough so that when they abstain or recuse themselves from hearing an appeal, the remaining members of the Managing Committee (Managing Committee members minus (-) Sub-Committee members) still form a clear majority to hear the appeal without institutional bias.
Rule 198 (2A) reads: “The committee of a society shall constitute a disciplinary sub-committee consisting of not more than three of its members, of whom one shall be designated as Chairman ….”
Can the Disciplinary Sub-Committee suspend an employee?
No. Only the authority competent to appoint the employee (Management) holds the power to issue a suspension order.
Role of the Sub-Committee: The scope and authority of a Disciplinary Sub-Committee are strictly limited to issuing charge memos and inquiring into charges.
Rule 198(6) says – “… an authority competent to appoint an employee may suspend him pending enquiry into serious charges.”
Can the President of the Society be the President of the Disciplinary Committee?
Better not to be. This is for the reason that the Appeal is to the Managing Committee, chaired by the President.
Rule 198 (2A) further reads: “….. but the President of the committee of the society shall not be a member in the disciplinary sub-committee”.
Duties of Disciplinary Sub-Committee
The Full Bench in Mattanur Co-Operative Rural Bank Ltd. v. The Co-Operative Arbitration Court, 2023-5 KLT 312; 2023 KHC (Online) 541, has now made it clear that the Disciplinary Sub-Committee has a substantial statutory role. It can:
1. inquire into the charges;
2. issue the memo of charges;
3. engage an external agency;
4. conduct or arrange the disciplinary enquiry.
Can those (already constituted) Sub-Committee members participate in the Managing Committee’s decision to suspend?
No harm. Ordinarily, they should not participate (or vote) in the Managing Committee’s decision on suspension if they are acting as members of the Disciplinary Sub-Committee.
Can a member of the Disciplinary Sub-Committee participate in the Managing Committeein the disciplinary-action-decision-making process?
Being a member of the Managing Committee he does not, by itself, disqualify from attending a Managing Committee meeting.
But participating in the enquiry as a member of the Disciplinary Sub-Committee and then participating in the decision-making process concerning the same disciplinary matter raises a serious issue of institutional bias / nemo judex in causa sua.
This is particularly strong where the Sub-Committee has already formed an opinion regarding the charges or recommended disciplinary action.
PRELIMINARY FACT-FINDING ENQUIRY
Can there be a preliminary fact-finding enquiry before issuing a formal charge sheet?
Yes, it can be. It is not legally required. Such a procedure is not in Rule 198. Still, it may be useful, particularly where the facts are uncertain.
It is only a fact-finding exercise to decide whether further action is warranted. It does not legally bind the employee or formally start disciplinary proceedings. It is for the limited purpose of ascertaining the veracity of the allegation against the employee. (Girijan Co-operative Corporation Limited, Andhra Pradesh v. K. Satyanarayana Rao, S.B. Sinha, Deepak Verma, JJ., 2010-15 SCC 322; 2010 KHC 5107)
In this action, the employee is not entitled to a formal hearing.
Can thepreliminary fact-finding enquiry be done by the Disciplinary Sub-Committee
It is not a full-fledged ‘fact-finding’ procedure. It should not be done in a way so that it may cast prejudice to the minds of persons who may be associated with the ‘enquiry’ done after issuing a Charge Memo.
Therefore, it is proper to conduct the preliminary fact-finding enquiry through persons other than the members of the Disciplinary Sub-Committee.
Should opportunity be given to the employee to make his representation on the preliminary fact-finding enquiry report?
Not at all necessary. It is not even an ‘enquiry’ in its full sense.
SEPARATE “SHOW-CAUSE NOTICE” BEFORE ISSUING THE CHARGE-SHEET
Should there be a separate “show-cause notice” before issuing the charge-sheet?
Not necessary. A separate “show-cause notice” before issuing the charge-sheet is not required in every case. Such a procedure is not in Rule 198.
But it is useful and may be a fair procedure to ask the employee to explain why disciplinary action should not be initiated, particularly where the facts are uncertain.
CHARGES
Is it necessary to issue Memo of Charges in disciplinary actions?
Yes.
Rule 198(2) reads: “(2) No kind of punishment shall be awarded to an employee unless he has been informed in writing of the grounds on which it is proposed to take action against and he has been afforded an opportunity including a personal hearing to defend himself. ….”
What should be the contents of a Charge Sheet?
The grounds on which it is proposed to take action against the employee.
Rule 198(2) itself requires – It should be capable of affording an opportunity to understand the matters upon which actions are taken against him and defend himself.
Who has to issue Memo of charges in disciplinary actions?
Memos of charges in disciplinary actions can be issued by the
disciplinary sub-committee or
the managing committee.
(Mattanur Co-Operative Rural Bank Ltd. v. The Co-Operative Arbitration Court (FB), 2023-5 KLT 312; 2023 KHC (Online) 541, analysing the Kerala Cooperative Societies Rule 198).
It is desirable to be done by a sub-committee – so that it may not cast prejudice to the minds of persons (other managing committee members) who may be associated with the ‘appeal decision’ that may be arisen in future.
Time of issue of Memo of charges?
Before starting enquiry.
Should an explanation be sought for from the employee when a Memo of charges is issued?
Yes, though not mandatory. It is not so specifically stated in the Kerala Co-operative Societies Rules. If the employee admits the guilt, it may not be necessary, in the circumstances of the matter, to conduct an enquiry even.
Purpose of issuing a charge-sheet
It is a mandatory requirement apart from complying natural-justince.
Rule 198(2) provides — No kind punishment unless the employee has been informed in writing of the grounds on which it is proposed to take action against.
Therefore, it is clear that the purpose of a charge sheet is precisely to tell the employee what he is required to meet. See: Saralakumari P.V. v. President, Kottayam Co-operative Urban Bank Ltd.
Should the charges be specific?
A vague allegation such as “you committed serious irregularities” is different from a charge identifying the particular act, date, transaction, document and rule allegedly violated. Vague charge is defective.
Whether the omission to make a charge-sheet (or improper charge sheet), vitiates the entire disciplinary proceeding?
Yes. The absence of a charge-sheet/memo of charges before that enquiry is a serious procedural defect and can vitiate the enquiry. Framing of the charge-sheet is the first step taken for holding enquiry into the allegations on the decision taken to initiate disciplinary proceedings. See:
Union of India v. K.V. Jankiraman, AIR 1991 SC 2010,
Union of India v. Anil Kumar Sarkar, 2013 (4) SCC 161, and
State of Andhra Pradesh v. C.H. Gandhi, 2013 (5) SCC 111.
ENQUIRY
Who has to enquire into the charges?
A sub-committee of the Managing Committee, or an outside agency like an Enquiry Officer. Usually an Advocate is appointed.
Rule 198(2B) reads as under: “The disciplinary sub-committee so constituted shall inquire into the charges against the employee either by themselves or by engaging an external agency.”
Can an advocate can be engaged as an external agency/enquiry officer for the disciplinary enquiry?
Yes, an advocate can be engaged as an external agency/enquiry officer for the disciplinary enquiry.
Who has to appoint the advocate/enquiry officer?
The Managing Committee, if no specific By-law provision.
Rule 198(2B) provides: “The disciplinary sub-committee so constituted shall inquire into the charges against the employee either by themselves or by engaging an external agency.”
Can the Managing Committee appoint the Advocate?
If the By-law does not provide anything as to this matter, the Managing Committee has to appoint the Advocate.
In view of Rule 198(2B), the Managing Committee should not simply bypass the Sub-Committee and appoint an Advocate to conduct the Rule 198 enquiry unless there is some separate statutory authority for doing so (such as a by-law provision).
Should there be a presenting Officer for Management?
Yes. Normally it will be the Secretary of the Society.
What are the duties of a presenting Officer for Management?
Inspect documents or places;
collect evidence;
investigate particular factual matters for the Management;
submit sworn statement before the enquiry officer by himself or arrange a competent person or persons for the same.
Should the Sub-Committee analyse and adopt the findings (if they agree) of the advocate’s report?
Yes. If the advocate is engaged as the external agency, it should not be mechanically adopted the Committee or Sub-committee. It must consider the report, the materials/evidence relied upon, and the employee’s explanation/ objections, if any, and then arrive at its own independent finding on each charge.
Is the Advocate’s report the ultimate finding of disciplinary action?
No. The advocate’s report is not itself the disciplinary decision. The external agency (advocate) only conducts the enquiry. The advocate’s report is therefore a report/ recommendation arising from the enquiry; it does not automatically become the final finding of the statutory disciplinary authority.
Rule 198(2B) says that the Disciplinary Sub-Committee shall inquire into the charges “either by themselves or by engaging an external agency.”
The Disciplinary Sub-Committee is required to independently consider the enquiry report, the evidence on record and the defence of the delinquent employee, apply its own mind to each charge, and record its independent finding as to whether the charge has been proved.
A mechanical acceptance of the external agency’s report, without independent consideration and a reasoned finding by the competent disciplinary authority, would be vulnerable to under Rule 198.
Should opportunity be given to the employee to make his representation on the enquiry report and on the proposed finding of guilt/punishment?
Desirable; not mandatory under the Rules.
Must the employee receive the Advocate’s enquiry report?
If the disciplinary authority relies upon the report, the employee should ordinarily be furnished the report and given an opportunity to make a representation before the final decision.
Can the disciplinary authority disagree with the Enquiry Officer?
Yes—but the procedure becomes important. If the disciplinary authority proposes to disagree with a finding favourable to the employee, the employee should ordinarily be informed of the proposed disagreement and allowed to respond before the finding is finally recorded.
Should the findings be confined to the charges?
The authority should not punish the employee for an allegation which was never made a charge and on which no opportunity of defence was given.
Can a charge be held proved merely because the employee did not disprove it?
The disciplinary authority must assess the material establishing the misconduct; it should not simply reverse the burden onto the employee.
What is the standard of proof?
A departmental/co-operative disciplinary proceeding is generally governed by the preponderance of probabilities, rather than proof beyond a reasonable doubt. But the finding still has to be based on evidence/material on record.
PUNISHMENT
Who should impose the punishment?
The sub-committee, if so appointed. A sub-committee is desirable – for providing an appeal to the Managing Committee.
Under the Kerala Co-operative Societies Rules, 1969, it is a matter that depends upon the employee’s category as shown in the table in Rule 198(3). It reads as under:
Rank of the employee
Authority competent to impose
Penalties under (a) to (c)
Penalties under (d) to (h)
Secretary /Manager or other Chief Executive Officer and all employees holding posts higher than that of Sr. Clerk/Sr. Assistant/I Grade Assistant/Equivalent other employees with same or identical scale of pay
President /Chairman
Sub-Committee/ Executive Committee
All other employees
Secretary /Manager or other Chief Executive Officer.
President
Where the relevant penalty is one that the Disciplinary Sub-Committee is competent to impose under Rule 198(3), the Sub-Committee may impose it in the categories specified in Rule 198(3).
Where the Managing Committee is the competent penalty authority, however, the Sub-Committee’s role is different: it conducts the enquiry and records its findings, and the competent authority thereafter deals with the penalty in accordance with Rule 198.
Should opportunity be given to the delinquent to say his part as regards the proposed punishment?
Yes.
Rule 198(2) requires the employee to be informed in writing of the grounds on which action is proposed and given an opportunity, including personal hearing, to defend himself.
Should there be ‘Show-Cause Notice’ for Punishment
Yes. It is to comply doctrine of natutal-justice. “Communication of Enquiry Report and Opportunity to Submit Representation Against the Findings and Proposed Penalty” is desirable rather than: “Show-Cause Notice for Punishment”.
Is the Managing Committee the disciplinary/penalty authority?
If a Sub committee, No. The Managing Committee has to act as the appellate authority.
Under Rule 198(4), the Managing Committee is the appellate authority.
The President is the competent penalty authority for certain lower-level employees under the table in Rule 198(3), and the Executive Committee/Board was the appellate authority.
The Managing Committee cannot and should not subsequently “approve” or “confirm” the punishment if the Sub-Committee is the designated penalty authority.
What must the final punishment order contain?
It should ideally contain:
charges,
employee’s defence,
enquiry findings,
consideration of objections to the report,
independent findings of the competent authority,
reasons for accepting/rejecting material contentions,
finding on each charge,
reasons relevant to the penalty,
penalty imposed,
right of appeal and appellate authority.
Should the punishment be proportionate?
Even if misconduct is proved, the proportionality of the penalty can be challenged in appropriate circumstances.
APPEAL
Who is the appeal authority?
Usually, the Managing Committee is the appellate authority. It is so under Rule 198(4). It provides as under:
Rank of the employee
Authority competent to impose
Penalties under (a) to (c)
Penalties under (d) to (h)
Secretary /Manager or other Chief Executive Officer and all employees holding posts higher than that of Sr. Clerk/Sr. Assistant/I Grade Assistant/Equivalent other employees with same or identical scale of pay
Executive Committee or Board of Management
Board of Management
All other employees
President
Executive Committee/ Board of Management
Can members of the Disciplinary Sub-Committee subsequently participate in the Managing Committee’s decision on appeal?
Not Desirable. This raises the bias/nemo judex issue, especially if those members have already considered the evidence and formed an opinion about guilt.
End Notes:
Rule 198 of the Kerala Co-operative Societies Rules
Rule 198. Disciplinary action.— (1) Any member of the establishment of a cooperative Society may, for good and sufficient reasons, be punished by imposing any of the following penalties, namely:
(a) Censure;
(b) Fine (in the case of employees in the last grade);
(c) Withholding of increments with or without cumulative effect.
(d) Withholding of promotion;
(e) Recovery from pay of the whole or part of any pecuniary loss caused to the society, by negligences or breach of orders or otherwise;
(f) Reduction to a lower rank;
(g) Compulsory retirement;
(h) Dismissal from service.
(2) No kind of punishment shall be awarded to an employee unless he has been informed in writing of the grounds on which it is proposed to take action against and he has been afforded an opportunity including a personal hearing to defend himself. Every order awarding punishment shall be communicated to the employee concerned in writing stating the grounds on which the punishment has been awarded.
(2A) The committee of a society shall constitute a disciplinary sub-committee consisting of not more than three of its members, of whom one shall be designated as Chairman, but the President of the committee of the society shall not be a member in the disciplinary sub-committee.
(2B) The disciplinary sub-committee so constituted shall inquire into the charges against the employee either by themselves or by engaging an external agency.
(3) The authority competent to impose the various penalties on different categories of employees shall be as shown in the table below:
Rank of the employee
Authority competent to impose
Penalties under (a) to (c)
Penalties under (d) to (h)
Secretary /Manager or other Chief Executive Officer and all employees holding posts higher than that of Sr. Clerk/Sr. Assistant/I Grade Assistant/Equivalent other employees with same or identical scale of pay
President /Chairman
Sub-Committee/Executive Committee
All other employees
Secretary /Manager or other Chief Executive Officer.
President
(4) An appeal shall lie against every order imposing a penalty to the competent appellate authority, shown in the table below:-
Secretary /Manager or other Chief Executive Officer and all employees holding posts higher than that of Sr. Clerk/Sr. Assistant/I Grade Assistant/Equivalent other employees with same or identical scale of pay
Executive Committee or Board of Management
Board of Management Executive
All other employees
President
Committee/Board of Management
(5) No appeal shall be entertained if it is not preferred within a period of three months from the date of the order imposing the penalty. Provided that where the penalties are imposed on employee by an administrator or an administrative committee, such employees can file appeal before the forthcoming elected committee and in such cases the restriction of three months shall not be applicable.
(6) An authority competent to appoint an employee may suspend him pending enquiry into serious charges against such employee. No employee shall however be kept under suspension for a period exceeding six months at a time. In no case an employee shall be kept under suspension for a continuous period exceeding one year without the prior approval of the Registrar. An employee under suspension shall be entitled to subsistence allowance payable under the Kerala Payment of Subsistence Allowance Act, 1972 (27 of 1973).
Provided that an employee not coming under the purview of the Kerala Payment of Subsistence Allowance Act, 1972 (27 of 1973) shall be entitled to subsistence allowance at the rate admissible to State Government Employees as prescribed under the Kerala Service Rules.
(7) In the event of any pendancy of disciplinary proceedings against any employee of a co-operative society or any co-operative institution pursuant to any charge of grave misconduct, irregularity, corruption or other charge involving moral turpitude, no retirement benefits shall be sanctioned to such employee or retired employee and in case of sanctioning of any retirement benefits to any such employee or retired employee, the name and designation of the sanctioning authority together with the reason for such sanctioning shall be recorded by the sanctioning authority by himself and such authority shall be held responsible for any loss to the society owing to such sanctioning of retirement benefits if found that such sanctioning was unwarranted.
(8) In respect of all employees save the Chief Executive Officer of a society, no retirement benefits shall be sanctioned and disbursed until after the due issuance of a nonliability certificate by the Chief Executive Officer and approval of the same by the committee of the society within thirty days from the date of retirement of such employee. In the event of the retirement of the Chief Executive Officer, the non-liability certificate shall be issued by the committee of the Society. For any loss to the society due to the non-adherence of the forgoing procedure, the Chief Executive Officer along with the committee of the society shall be held responsible collectively and severally in respect of the issuance of Non-liability Certificate to any employee other than the Chief Executive Officer and the members of the committee shall be held collectively and severally responsible for the issuance of Non-liability Certificate to the Chief Executive Officer.”
Land Tribunal is the sole authority to determine Tenancy.
The TLB alone deals with exemption and land to be surrendered.
Civil court alone to find disputes on title
It is observed in M/S Radha Krishan Industries v. The State of Himachal Pradesh, 2021 SCC OnLine SC 334, that where there are disputed questions of fact, the High Court may decide to decline jurisdiction in a writ petition (Art. 226); and it is pointed out that this principle have been consistently upheld by the Apex Court in
Babubhai Muljibhai Patel v Nandlal Khodidas Barot, (1974) 2 SCC 706 , and
Rajasthan SEB v. Union of India, (2008) 5 SCC 632, etc.
The Division Bench of the Kerala High Court in Harrisions Malayalam Ltd. v. State of Kerala, 2018(2) KLT 369, held that even the High Court cannot adjudicate on title. It is held as under:
“141. …Title, we reiterate, in this context, we have not found on the petitioners, which we are incompetent to do in the present (Writ) proceedings……”.
Title to the Property is not Ajudicated by the TLB.
In K. Jagadeesachandran v. E.K. Mamomohanan Pandarathil, 2013 (4) KLT 584, it was held with respect to title of a plantation property as under:
“As rightly argued by the learned Senior counsel appearing for the company such issue (with respect to title) is wholly outside the realm of the TLB proceedings … . Nor did the TLB have the jurisdiction to enter a finding on any such contention.”
In Harikumar v. State of Kerala, 2013 (2) KLT 44; 2013 (1) KHC 847 (Para 9), it was held as under:.
“Title to property is not what is decided in the Land Board proceedings in a ceiling case as between the declarant and the State, though such issues may be germane while exemptions or identification of excess, are to be decided by the Land Board, as between the declarant and other parties appearing before the Land Board. If the Government have the case that the paramount title to the land rests with them, they would be at liberty to initiate action in accordance with law.”
Both Harikumar v. State of Kerala, 2013 (2) KLT 44 (Para 9), Jagadeesachandran Nair v. Mamomohanan Pandarathil, 2013 (4) KLT 584 (para 11) were referred to in Harrisons Malayalam Limited v. State of Kerala, Represented By The Chief Secretary, 2018-2 KHC 719; 2018-2 KLT 369 (para 54).
A Tenant Cannot Declare Himself to be a Tenant and Avail Benefits under KLR Act
The competent statutory authority to determine tenancy under the KLR Act is the Land Tribunal.
Land Board or Taluk Land Board deals with exemption on the ground of plantation, excess land issues etc. It cannot adjudicate on tenancy right or title.
Land Tribunal to go into the question of tenancy
In Ganapathy Acharya v. Bhaskaran (TLV Iyer, J.), ILR 1993-3 (Ker) 736
“If there is dispute on any of these points necessarily the Land Tribunal has to go into the question of possession and the alleged tenancy”.
Balanoor Plantations Case – Based on the PrincipleLT to fix Tenancy’; TLB to Fix Plantation Exemption.
In Balanoor Plantations & Industries Ltd. v. State of Kerala, 2018(3) KLT 283, it is pronounced that the tenants who have not approached the Land Tribunal and established rights as “cultivating tenant” are not entitled to avail benefits on “Fixity of Tenure”, under Kerala Land Reforms Act, 1963.
It is pointed out – when a title claim is raised by the Government or the Devaswom, the person who claims to be a cultivating tenant –
“will have to first prove their claim of being a cultivating tenant, entitled to fixityof tenure, under the provisions of the KLR Act through a proper process of law.“
It is held as under:
“This is pertinent because, under Section 72B(3) of the KLR Act, it is legally obligated on every cultivating tenant, entitled to assignment of right, title and interest in respect of any property, to apply to the Land Tribunal, within whose jurisdiction that the property is situated, within two years from the date of vesting of such title and interest.”
It is based upon the following principles of law:
It is for adjudicating the ‘tenancy right’, by the Land Tribunal – for, the Land Tribunal is the only authority that can decide on the “tenancy right.” (It is the principle applied in the Balanoor case.)
Note: A tenant cannot declare himself to be a cultivating-tenant and avail benefits – the competent statutory authority (for the same) under the KLR Act is the Land Tribunal.
Land Board or Taluk Land Board (deals with exemption on the ground of plantation, excess land issues etc.) cannot adjudicate on tenancy right.
Cultivating Tenants (‘Entitled to Assignment’) are Obligated to Apply LT
Balanoor Plantations & Industries Ltd. v. State of Kerala, 2018(3) KLT 283, it was laid down that only cultivating tenants, entitled to fixity of tenure under Section 13 of the Kerala Land Reforms Act, 1963, would be “entitled to hold possession over the property and to resist action under the KLC Act”.
Sec. 72B provides for cultivating tenant’s rights to get an assignment by purchase certificate (through LT) – within the ceiling area. A Tenant was “obligated to apply” for the purchase certificate within 2 years from 1-1-1970.
Sec. 73B(3) reads as under:
“(3) Any cultivating tenant entitled to assignment of the right, title and interest in respect of a holding or part of a holding under Subsection (1) may apply to the Land Tribunal within whose jurisdiction such holding or part is situate within two years from the date of vesting of such right, title and interest in the Government under Section 72, or such further time as may be allowed by the Government in this behalf, for such assignment to him.”
Referrence to the Land Tribunal, under Section 125(3)
On the basis of the Full Bench decision in Lissy v. Kuttan, 1976 KLT 571, it was argued in Balanoor Plantations & Industries Ltd. v. State of Kerala that a person who claims to be a cultivating tenant, entitled to fixity of tenure under Section 13 of the KLR Act, the Civil Courts are prohibited from considering such issues and the matter has to be referred to the Land Tribunal, under Section 125(3) of the KLR Act. It is pointed out in this decision that the judgment in Lissy v. Kuttan had been overruled by a Larger Bench in Kesava Bhat v. Subraya Bhat, 1979 KLT 766. It was held in Balanoor Plantations as under:
“11…. Unless the question actually “arises” for consideration, there is no obligation under S. 125 (3) to make a reference to the Land Tribunal. The mere incorporation of an unnecessary or irrelevant plea of tenancy into the written statement which has no relation whatever to the material averments and the reliefs sought in plaint, cannot attract the bar of S. 125 (1), or the provisions of S. 125 (3 ). ….. It is only if the question arises for consideration that the obligation to refer under S. 125 (3) also arises. …..”
Section 47 of The Registration Act, 1908 reads thus: “47. Time from which registered document operates – A registered document shall operate from the time from which it would have commenced to operate if no registration thereof had been required or made, and not from the time of its registration.”
Legal effect of Section 47 Registration Act
The Constitution Bench in Ram Saran Lall v. Domini Kuer, AIR 1961 SC 1747 considered Section 47 of The Registration Act and observed to the following effect:
A registered document shall operate from the time from which it would have commenced to operate if no registration thereof had been made. That is, it has nothing to do with the completion of the registration.
It applies to a document only after it has been registered.
In the same way it has nothing to do with the completion of the registration, it has nothing to do with the completion of a sale when the instrument is one of sale.
A sale which is admittedly not completed until the registration of the instrument of sale is completed, cannot be said to have been completed earlier.
The Supreme Court held as under:
“8. We do not think that the learned Attorney-General’s contention is well founded. We will assume that the learned Attorney-General’s construction of the instrument of sale that the property was intended to pass under it on the date of the instrument is correct. Section 47 of the Registration Actdoes not, however, say when a sale would be deemed to be complete. It only permits a document when registered, to operate from a certain date which may be earlier than the date when it was registered. The object of this section is to decide which of two or more registered instruments in respect of the same property is to have effect. The section applies to a document only after it has been registered. It has nothing to do with the completion of the registration and therefore nothing to do with the completion of a sale when the instrument is one of sale. A sale which is admittedly not completed until the registration of the instrument of sale is completed, cannot be said to have been completed earlier because by virtue of Section 47 the instrument by which it is effected, after it has been registered, commences to operate from an earlier date. Therefore we do not think that the sale in this case can be said, in view of Section 47, to have been completed on January 31, 1946. The view that we have taken of Section 47 of the Registration Act seems to have been taken in Tilakdhari Singh vs. Gour Narain, AIR 1921 Pat. 150. We believe that the same view was expressed in Nareshchandra Datta vs. Gireeshchandra Das, (1935) ILR 62 Cal. 979 and Gobardhan Bar vs. Guna Dhar Bar, ILR (1940) II Cal. 270.”
In Kanwar Raj Singh v. Gejo, AIR 2024 SC 238; 2024-2 SCC 416, it is observed as under:
“6. On plain reading of Section 47, it provides that a registered document shall operate from the time from which it would have commenced to operate if no registration thereof was required. Thus, when a compulsorily registerable document is registered according to the Registration Act, it can operate from a date before the date of its registration. The date of the operation will depend on the nature of the transaction. If, in a given case, a sale deed is executed and the entire agreed consideration is paid on or before execution of the sale deed, after it is registered, it will operate from the date of its execution. The reason is that if its registration was not required, it would have operated from the date of its execution.”
In Vasudha Gupta v. Delhi Development Authority, 215 (2014) DLT 711, it is pointed out as under:
“Section 23 of the Registration Act, 1908, clearly lays down that a document which is required to be registered must be done so within a period of four months.
Section 47 of the Registration Act, 1908, lays down that once the registration of a document takes place, it relates back to the date when the document was executed meaning thereby that in the instant case, although the document was registered on 13.10.2011, but it could not be said that the document became operative only on 03.10.2011. On the contrary, a combined reading of the aforesaid two sections will clearly show that not only the executants of a document is given four months time to get the document registered with the Sub Registrar but also that once the said document is registered, it relates back to the date when the same was executed.”
If claimed in the alternative, confine to one at least at trial.
Saji Koduvath, Advocate, Kottayam
Abstract
••Distinct Legal Origins: The legal foundations for an easement by express grant and an easement of necessity are distinct. An easement of necessity under Section 13 of the Indian Easements Act, 1882 arises solely from absolute necessity (i.e., having no other access). An easement by grant is governed exclusively by the contractual terms.
••Precarious Nature & Precise Pleadings: An easement is a precarious, special right claimed over another’s property; therefore the pleadings thereof must be precise. While a plaintiff pleads both express grant and necessity as alternative claims, they being mutually destructive, the plaintiff must elect and confine the claim to one before trial commences.
••Extinguishment Mechanisms: An easement of necessity automatically terminates under Section 41 of the Indian Easements Act, 1882 once the absolute necessity ends. Conversely, an easement by express grant is not governed by Section 41 and terminates strictly in accordance with its contractual terms.
•• As illustrated under Section 41, purchase of land “over which he can pass” extincts easement of necessity (even if the way is not actually made).
Easement By Express Grant and Necessity: Distinguished
In Hero Vinoth v. Seshammal (2006) 5 SCC 545, the Supreme Court distinguished an easement by grant from an easement of necessity, laying down the following principles:
Nature of Acquisition: The character of an easement is determined strictly by how it was acquired.
Necessity Does Not Alter Grant: An easement acquired by grant may be absolutely necessary for the enjoyment of the dominant tenement, but that does not convert it into an easement of necessity under Section 13.
Governance by Contract: A grant is governed exclusively by its own terms and conditions.
Scope of Extinguishment: Section 41 of the Indian Easements Act—which extinguishes an easement when necessity ceases—applies solely to an easement of necessity under Section 13, not to an easement by grant.
Easement By Express Grant and Necessity: Both Cannot Co-exist
The source of the legal right of easement by necessity is absolute necessity arising out of ‘no-other-way’. Easement acquired by grant iscontrolled only by the terms of the contract.
Both these rights cannot co-exist. They are mutually exclusive. Both have distinct legal bases. If a granted contractual way is pleaded, an easement of necessity does not arise. That is, the legal requirement of necessity ceases (even if assumed to have been there, otherwise) when a way is acquired by express grant.
In Hero Vinoth v. Seshammal, (2006) 5 SCC 545, the Supreme Court held to the following effect:
“But easement of grant is a matter of contract between the parties. In the matter of grant the parties are governed by the terms of the grant and not anything else. Easement of necessity and quasi easement are dealt with in Section 13 of the Act. The grant may be express or even by necessary implication. In either case it will not amount to an easement of necessity under Section 13 of the Act even though it may also be an absolute necessity for the person in whose favour the grant is made. Limit of the easement acquired by grant iscontrolled only by the terms of the contract. If the terms of the grant restrict its user subject to any condition the parties will be governed by those conditions. Any how the scope of the grant could be determined by the terms of the grant between the parties alone. When there is nothing in the term of the grant in this case that it was to continue only until such time as the necessity was absolute. In fact even at the time it was granted, it was not one of necessity. If it is a permanent arrangement uncontrolled by any condition, that permanency in user must be recognized and the servient tenement will be recognized and the servient tenement will be permanently burdened with that disability. Such a right does not arise under the legal implication of Section 13 nor is it extinguished by the statutory provision under Section 41 of the Act which is applicable only to easement of necessity arising under Section 13 .
An easement by grant does not get extinguished under Section 41 of the Act which relates to an easement of necessity. An easement of necessity is one which is not merely necessary for the reasonable enjoyment of the dominant tenement, but one where dominant tenement cannot be used at all without the easement. The burden of the servient owner in such a case is not on the basis of any concession or grant made by him for consideration or otherwise, but it is by way of a legal obligation enabling the dominant owner to use his land. It is limited to the barest necessity however inconvenient it is irrespective of the question whether a better access could be given by the servient owner or not. When an alternate access becomes available, the legal necessity of burdening the servient owner ceases and the easement of necessity by implication of law is legally withdrawn or extinguished as statutorily recognized in Section 41. Such an easement will last only as long as the absolute necessity exists. Such a legal extinction cannot apply to an acquisition by grant and Section 41 is not applicable in such case.”
In K. Krishnamoorthy v Nagammal, 2015-1 CTC 417 ; 2015-1 LW 570, it is held as under:
19. … Easements can be acquired by different ways and are of different kinds, that is, easement by grant, easement of necessity, easement by prescription, etc. A dominant owner seeking any declaratory or injunctive relief relating to an easementary right shall have plead and prove the nature of easement, manner of acquisition of the easementary right, and the manner of disturbance or obstruction to the easementary right.
20. The pleadings necessary to establish an easement by prescription, are different from the pleadings and proof necessary for easement of necessity or easement by grant…..”
In Joy Joseph v. Jose Jacob, 2010(4) KHC 167, it was held as under:
“As already mentioned, the defendants who are the appellants herein claim a right to use the pathway by way of easement by necessity and prescriptive right of easement. First of all both these cannot go together. While easement of necessity has its origin in a statute, the right of way by easement by prescription is the result of continuous and hostile use to the knowledge of the other person.” (Quoted in: Kallen Devi v. Raghavan, 2012 4 CurCC 520)
Purchase of Land “over which he can pass“Extincts Easement of Necessity
Section 41 of the Easements Act reads as under:
“41. Extinction on termination of necessity. An easement of necessity is extinguished when the necessity comes to an end.
Illustration: A grants B a field inaccessible except by passing over A’s adjoining land. B afterwards purchases a part of that land over which he can pass to his field. The right of way over A’s land, which B had acquired, is extinguished.”
From the above, the following propositions emerge:
Duration of Right: An easement of necessity, arising by implication of law, lasts only as long as the absolute necessity exists.
Extinguishment by Alternate Access: The easement automatically stands extinguished—and the burden on the servient tenement ceases—the moment an alternate access becomes available.
Application of the Statutory Illustration: As illustrated under Section 41, if the dominant owner acquires adjoining land over which access to their property can be obtained, the existing easement of necessity is extinguished.
Availability v. Actual Construction: It is not necessary that a functional pathway has already been laid through the newly acquired land; if such a way can be made, the absolute necessity ends, thereby terminating the easement.
Easement is a Precarious Right. Its Pleadings should be Precise
The right of easement is claimed over a land of another. Therefore the pleadings of easement should be precise.
In Ibrahimkutty v. Abdul Rahmankunju, 1992(2) KLT 775, the Kerala High Court pointed out –
“The ‘Easement’ is a precarious and special right. The right of easement is one which a person claims over a land which is not his own. Since the right of easement is a precarious and special right claimed over the land of another, it is highly essential that the pleadings should be precise.”
Easement By Express Grant and Necessity: Can be Claimed Alternatively
A litigant in a suit is entitled to plead alternative claims of easement by express grant and easement of necessity. Thomas P. Joseph, J., held in Krishnankutty Nair v. Murukesh Kumar (RSA No. 1394 of 2011 of the Kerala High Court, 30-01-2012, as under:
“There could be no much dispute that a claim of easement by way of grant and by way of necessity cannot run together. But, it is open to the respondent/plaintiff to raise inconsistent pleas, the only thing being that when it comes to evidence, he must confine his claim to either of the two. In this case, evidence shows that respondent elected to claim easement by way of necessity and proceeded in that way.”
Even if a plaintiff may plead and claim both rights in the alternative, he must confine his claim to one before trial begins. Since one right arises from contract and the other is a statutorily recognised right, they are mutually destructive and cannot coexist during trial.
If Both Rights Pleaded, Confine to One at the Trial
The pleadings necessary to establish an easement by prescription, are different from the pleadings and proof necessary for easement of necessity or easement by grant. If both express grant and easement of necessity are claimed in the same suit, the court may adopt one of the following three positions:
(i) Reject both claims (if the party fails to elect): Discarding them on the ground that mutually destructive rights cannot co-exist in trial.
(ii) Proceed on the implied choice: Treating the claim that has been actively asserted or supported as the one opted by the party.
(iii) Proceed on the express election: Adjudicating the claim explicitly chosen and opted by the party prior to trial.
Both rights will not coexist because the easement of necessity will be extinguished when the necessity comes to an end as per Section 41 of the Indian Easement Act (See: R. Paramasivan v. T. Anasuya, AIR 2005 Kar 240).
Co-Ownership, and ‘Animus’to Easement of Necessity
To establish the prescriptive right, one must prove that he was exercising that right on a property treating it as property of someone else. (Chapsibhai Dhanjibhai Dand v. Purushottam, AIR 1971 SC 1878).
In Palaniswami Naicker v. Chinnaswami Naciker, (1968)1 MLJ. 582, it was held as under:
“Therefore, the question of animus plays an important part in the acquisition of easement. If, even at the time of the trial, the plaintiff was proceeding on the basis that he is the owner of the land CDEF, he cannot be said to have had the requisite animus of enjoying the easement in the defendants land as he had always been conscious of his ownership of the land.”
Claim of Common Passage;Alternatively, Easement by Necessity: Not Contradictory
In Dhanu Pandaram v. Kali Pandaram, 1999 2 LW 317; 1999 2 MLJ 242, the plaintiff was the co-owner claiming right of common passage and in alternative, he claimed easementary right by necessity. It is held that the plea was neither contradictory to each other nor inconsistent mutually, and found that the plaintiff is entitled to right of easement by necessity.
Neighbours: Impossible to Know he was Not the Owner, Inconsistent Claims Sustainable
Sanjiva Rows ‘Commentaries on Basements and Licneces’ gives the answer. It reads as under:
“No plaintiff can be allowed to take the impossible position of being the owner of and of having an simultaneous right of easement over the same land. Inconsistent claims may, therefore, under the peculiar circumstances, be explained and accounted for. The parties were close neighbours. It was impossible for the plaintiff not to have known that he was not the owner of the property in dispute. The reliefs based upon ownership and upon the right of easement were not claimed simultaneous but in the alternative. This view is supported in principle by a Full Bench decision of the Madras High Court in Subba Rao v. Lakshmana Rao I.L.R. 49 Mad. 820 in which the facts were somewhat different.” (quoted in: Dhanu Pandaram v. Kali Pandaram, 1999-2 LW 317; 1999 2 MLJ 242)
Mutually Inconsistent Pleas (easement and title) will Not Sustain
In Arunachalam Pillai v. Sorimuthu Pillai, AIR 2004 Mad 185, it is held as under:
“The plaintiff cannot be permitted to raise inconsistent pleas. To claim easement, the plaintiff must admit the title of the defendant over the property. If the plaintiff claims easementary right that must be proved by sufficient evidence by the plaintiff.
When the plaintiff admits that he claimed ownership and not easement and if he fails to prove ownership, he cannot be allowed to prove easementary right.
Ownership and easement are mutually exclusive.
Both cannot be pleaded.
Therefore, when the plaintiff claimed ownership, he gives up the plea of easementary right.
Ultimately, when the plaintiff failed to prove ownership, he cannot revive the plea of easement. In such circumstances, the plaintiff is not entitled for any relief.”
The following decisions support this view:
S. Tirupathi Rao v. M. Lingamaiah, AIR 2024 SC 3738; 2024-20 SCC 188: Absolute title by escheat and that on the basis of revenue entries.
Sammanasu v. M. Cashmir, 2024 Mad HC 2973: title and claim of easement are mutually destructive in nature.
Bachhaj Nahar v. Nilima Mandal, (2008)17 SCC 491: The High Court could not have converted a suit for title into a suit for enforcement of an easementary right.
Biswanath Agarwalla v. Sabitri Bera, (2009) 15 SCC 693: Alternative pleas cannot be mutually destructive of each other.
L.N. Aswathama v. P. Prakash, (2009) 13 SCC 229: Pleas based on title and adverse possession are mutually (destructive) and the latter does not begin to operate until the former is renounced.
Arunachalam Pillai v. Sorimuthu Pillai, AIR 2004 Mad 185: Ownership and easement are mutually ex exclusive.
Chapsibhai Dhanjibhai Danad v. Purushottam reported in 1971-2 SCC 205: held that a party to a Suit can plead inconsistent plea in the alternative such as the right of ownership and a right of easement.
Rayachand Vanmalidas v. Maneklal Mansukhbai, AIR 1946 Bom. 266: It is open to a party in a litigation to raise inconsistent pleas of ownership and easement in the alternative.
See also: Purani Dhirajlal Amritlal v. Mehta Sankleshwar, Aditram, AIR 1976 Guj. 180.
Elumalai Chetty v. Naina Mudali, AIR 1987 Mad 102
Sadhurajan v. Sriramulu Naidu, AIR 1999 Mad 377
P. Chandrasekharan v. S.Kanakarajan, AIR 2007 SC 2306.
The Indian Easements Act, 1882 refers to the different methods by which easements are acquired. They are pointed out (Ramkanya Bai v. Jagdish, AIR 2011 SC 3258) to be the following:
easements by grant: express grant by the owner of the servient heritage
easements of necessity: based on implied grants or reservations made by the owner of a servient heritage at the time of transfers or partitions
easements by prescription: it is presumed that it is acquired by peaceable and open enjoyment, without interruption for twenty years and
customary easements: it is inferred that it is acquired by virtue of a local custom.
The origin of all easements is, theoretically, grant by the servient owner. It may be express or implied. It may also be presumed from long user.
For easement by prescription, it is not necessary that the user should be exclusive (of others), but the claimant should exercise it under some claim existing in his own favour independently of all others.
In Lachhi v. Ghansara Singh, AIR 1972 HP 89, it is held as under:
“The basis of every right of easement by whatsoever method it may have been acquired, is theoretically a grant from the servient-owner.
It may be expressed, as is mentioned in Sections 8 to 12 of the Act, orit may be implied from the circumstances as in Section 13 of the Act. orit may be presumed from long and continued user for a certain period as in Section 15 of the Act, or
it may be inferred from a long and continued practice of user by a certain class of the public in certain locality.”
2. Grant may be Express or “Implied“
The origin of all easements is, theoretically, grantby the servient owner. It may be express or implied. It may also be presumed from long user.
Note: Traditionally, the term ‘implied easement’ was used by the conventional authorities only to denote ‘easement of necessity‘. However, in Sree Swayam Prakash Ashramam v. G. Anandavally Amma, AIR 2010 SC 622, the Supreme Court used the same to refer to an easement of grant ‘arising by implication‘.
It is observed in Sree Swayam Prakash Ashramam v. G. Anandavally Amma, AIR 2010 SC 622, as under:
“13. On the question of easement by grant, the Appellate Court was of the opinion that the plaintiff’s claim in that respect stood proved. The plaintiff had acquaintance and association with the Ashramam and Yogini Amma from his childhood days as revealed from the oral and documentary evidence. Considering the location and nature of `B’ schedule pathway, the location of two pillars at its inception and the gate from which it started, it could be seen that it had been in use by the plaintiff as a pathway. The plaintiff had been residing in the house on `A’ schedule property even prior to the deed of settlement. Therefore, the Appellate Authority arrived at the conclusion that the plaintiff had obtained right of easement of grant from Yogini Amma over the `B’ schedule pathway.
An easement of grant is a matter of contract between the parties and it may have its own consideration. (B.B. Katiyar’s Commentaries on Easements and Licenses, p. 762). It may be either express or even by necessary implication. Though easement of necessity will come to an end with the termination of necessity, easement acquired by grant cannot be extinguished on that ground as per section 13(b) of the Indian Easements Act, 1882. Therefore, even assuming that the plaintiff had an alternative pathway as contended by the defendants, it does not extinguish the right of easement of grant in favour of the plaintiff. Therefore, the Trial Court was justified in granting a relief of declaration of right of easement of grant over the `B’ schedule pathway. However, the declaration granted on the ground of easement of necessity was not justified.”
The aforesaid Supreme Court decision (Sree Swayam Prakash Ashramam v. G. Anandavally Amma, AIR 2010 SC 622) arose from the Kerala High Court decision, Sree Swyam Prakash Ashramam v. N. Gopala Pillai on 9 May, 2006. It was affirmed by the Supreme Court. The Kerala High Court held as under:
“Theoretically all easements have their origin in some sort of grant by the servient owner. The grant may be express or it may be implied from the surrounding attendant circumstances and conduct of the parties or it may even be presumed from long user. In the case of an express grant of easement the limit thereof depends on the words used.”
Upholding the view of the Kerala High Court the Apex Court held as under:
“In our view, therefore, the High Court was also fully justified in holding that there was implied grant of ‘B’ schedule property as pathway, which can be inferred from the circumstances for the reason that no other pathway was provided for access to ‘A’ schedule property of the plaint and there was no objection also to the use of ‘B’ schedule property of the plaint as pathway by the original plaintiff (since deceased) at least up to 1982, when alone the cause of action for the suit arose.”
3. No Explicit ‘Consideration’ Required for Easement by Grant
Neither the provisions of the enacted law (Easements Act, 1882) nor judicial decisions specifically address the requirement of ‘consideration’ in the creation of easements by grant. This omission is understandable, as Indian law clearly permits the acquisition of easements by grant – both express and implied. Since an easement may arise by implication, and the intention to grant can be inferred from the terms of the grant or the surrounding circumstances, the fundamental principle of easement law – that every easement is, in theory, rooted in a grant – supports the conclusion that no express consideration is required for the creation of an easement by grant.
4. Sec. 8 of the Indian Easements Act reads:
“An easement may be acquired by the owner of the immovable property for the beneficial enjoyment of which the right is created, or, on his behalf, by any person in possession of the same.”
Sec. 13 further elaborates on easements of necessity and quasi-easements, indicating that such easements can arise from the transfer or bequest of immovable property, again without a requirement for consideration.
In Sree Swayam Prakash Ashramam v. G. Anandavally Amma, the Supreme Court held:
“Theoretically all easements have their origin in some sort of grant by the servient owner. The grant may be express or it may be implied from the surrounding attendant circumstances and conduct of the parties or it may even be presumed from long user.”
Consideration is not an essential element for easement of grant. In Sree Swayam Prakash Ashramam v. G. Anandavally Amma, the Supreme Court held easement of grant is a matter of contract between the parties and it may have its own consideration. (B.B. Katiyar’s Commentaries on Easements and Licenses, p. 762).
••The General Law in India: Judgment is rendered in ignorance of an earlier decision of a co-equal (coordinate) Bench will be ‘per incuriam‘. Such decisions will not have any precedential value or binding force on any subsequent decision. (Bilkis Yakub Rasool v. Union of India, (2024) 5 SCC 481).
••The Full Bench Decision of the Kerala High Court: The Kerala High Court, in Raman Gopi v. Kunju Raman Uthaman, 2011 (4) KLT 458 (FB), held that where there is a direct conflict between decisions of the SUPREME COURT rendered by Benches of co-equal strength, the later decision is to be followed – having regard to the binding force of Supreme Court decisions under ARTICLE 141 of the Constitution.
••A close reading of Raman Gopi indicates: Kerala Full Bench Decision Did Not Consider the Effect of Divergent Decisions of Co-Equal Benches of HIGH COURTS (and only that of SUPREME COURT).
••Criticism of the Full Bench Decision: • 1. Kumari Alias Mary Francis v. Baby, 2022-6 KHC 270; 2022-5 KLT 614 (P. Somarajam, J.): The observations are obiter dicta. • 2. Bindu v. State of Kerala, 2014-4 KHC 772; 2015-1 KLT(SN) 5 (Dama Seshadri Naidu, J.): This school of thought is fallacious.
Part I
What is ‘Per Incuriam‘
‘Incuria’ literally means carelessness. In practice ‘per incuriam’ appears to mean ‘per ignoratium’ (State of U.P. v. Synthetics and Chemicals Ltd. ,T.K. Thommen, R.M. Sahai, JJ. 1991-4 SCC 139).
Black’s Law Dictionary, explains ‘per incuriam’ as under:
“A judgment per incuriam is one which has been rendered inadvertently.”
In Halsbury’s Laws of England (4th Edn. Vol. 26, pages 297-98, para 578), per incuriam has been explained as under:
“A decision is given per incuiam when the court has acted in ignorance of a previous decision … or when the decision is given in ignorance of the terms of a statute or rule having statutory force.”
(Quoted in: Siddharam Satlingappa Mhetre v. State of Maharashtra, AIR 2011 SC 312; Bajaj Alliance General Insurance Company Limited vs. Rambha Devi, (2025) 3 SCC 95)
The following decisions make it clear that the doctrine of per incuriam is attracted where a judgment is rendered in ignoranceof the terms of a statute or of a previous binding decision
M/S Santosh Associate Private Limited v. Haryana State Industrial and Infrastructure Development Corporation Ltd., 2026 INSC 872
Confederation of Real Estate Developers of India (CREDAI) v. Vanashakti, (2026) 5 SCC 201
State of M.P. v. Narmada Bachao Andolan, (2011) 7 SCC 639
Siddharam Satlingappa Mhetre v. State of Maharashtra, AIR 2011 SC 312
Bore Gowda v. State of Karnataka, (2000) 10 SCC 260
Punjab Land Develop. & Reclamation Corp. Ltd. v. Labour Court, (1990) 3 SCC 682
Municipal Corporation of Delhi v. Gurnam Kaur, AIR 1989 SC 38; (1989) 1 SCC 101
Morelle Ld. vs. Wakeling, , (1955) 2 QB 379 (CA)
Huddersfield Police Authority v. Watson (1947) 2 ALL ER 193
Young v. Bristol Aeroplane Co. Ltd., 1944 KB 718: (1944) 2 All ER 293
Lancaster Motor Co. (London) Ltd. v. Bremith Ltd., , (1941) 1 KB 675 (CA)
Rule of Per Incuriam Applies Strictly to Ratio Decidendi; Not to Obiter Dicta
The doctrine of per incuriam applies strictly to the ratio decidendi and does not apply to obiter dicta. See:
Confederation of Real Estate Developers of India (CREDAI) v. Vanashakti, 2026-5 SCC 201
Bajaj Alliance General Insurance Company Limited v. Rambha Devi, (2025) 3 SCC 95;
Career Institute Educational Society Vs. Om Shree Thakurji Educational Society , (2023) 16 SCC 458
Dr. Shah Faesal v. Union of India, (2020) 4 SCC 1;
Punjab Land Development and Reclamation Corpn. Ltd. v. Presiding Officer, Labour Court, Chandigarh, (1990) 3 SCC 682).
In Mamleshwar Prasad v. Kanhaiya Lal, (1975) 2 SCC 232 (Krishna Iyer, J.), while considering binding precedents, held as under:
“7. … We do not intend to detract from the rule that, in exceptional instances, where by obvious inadvertence or oversight a judgment fails to notice a plain statutory provision or obligatory authority running counter to the reasoning and result reached, it may not have the sway of binding precedents. It should be a glaring case, an obtrusive omission.” (Quoted in: Bajaj Alliance General Insurance Company Limited v. Rambha Devi, (2025) 3 SCC 95)
A Judgment Rendered Per Incuriam is Not Binding
It Does Not Have a Precedential Value
In Confederation of Real Estate Developers of India (CREDAI) v. Vanashakti, 2026-5 SCC 201, it is held as under:
“A decision rendered per incuriam denudes the decision of precedential value. Such a decision would not be binding as a judicial precedent. A co-ordinate Bench can disagree with it and decline to follow it.”
See also:
Glass Trust Company LLC v. Byju Raveendran, (2025) 3 SCC 625
Bilkis Yakub Rasool v. Union of India, (2024) 5 SCC 481
State Through Central Bureau of Investigation v. Hemendhra Reddy, (2023)16 SCC 779
The Commissioner of Income Tax, Jaipur v. Prakash Chand Lunia, (2024) 1 SCC 204
Chauharya Tripathi v. L.I.C.of India, (2015) 7 SCC 263
Amrit Dasv. State of Bihar, (2000) 5 SCC 488.
Failure to Follow Earlier Decision Renders a Judgment Per Incuriam
A judgment may suffer from the vice of per incuriam for failure to consider a binding precedent in two ways:
(i) where a subsequent court completely fails to consider an earlier binding precedent; or
(ii) even where the subsequent judgment makes reference to the binding precedent, if it fails to apply an imperative or controlling portion of that precedent.
That is, the doctrine of per incuriam can apply to specific “part of a decision“. To sustain a plea of per incuriam, it must be shown that the “reasoning” of that particular portion in the judgment under consideration is “erroneous” for failing to consider or apply the relevant part of the binding precedent.
Note: In Fuerst Day Lawson Ltd. v. Jindal Exports Ltd., (2001) 6 SCC 356, the Supreme Court explained that ‘per incuriam‘ may strike a part of the decision. It reads: “It has to be shown that some part of the decision was based on a reasoning which was demonstrably wrong, for applying the principle of per incuriam.”
Courts Cannot Refuse Binding Judgments Citing minor Differences
In Official Liquidator v. Dayanand, (2008) 10 SCC 1, it is emphasised as under:
“70. We are distressed to note that despite several pronouncements on the subject, there is substantial increase in the number of cases involving violation of the basics of judicial discipline. The learned Single Judges and Benches of the High Courts refuse to follow and accept the verdict and law laid down by coordinate and even larger Benches by citing minor difference in the facts as the ground for doing so.”
In State Through Central Bureau of Investigation v. Hemendhra Reddy, 2023-16 SCC 779 (Surya Kant, J.B. Pardiwala, JJ.), it is said as under:
“81. We would like to extend a word of caution over here. …. The learned Judge cannot simply say “with due respect, I do not agree to the ratio…” or “the decision is per incuriam as a binding judgment of the Supreme Court has not been considered….” and proceed to take a contrary view as done in the impugned order. Such an approach would result in conflicting opinions of Co-ordinate Benches, resulting in judicial chaos and is, thus, improper. This is something atrocious and unacceptable.”
In Mahadeolal Kanodia v. Administrator General of W.B., AIR 1960 SC 936 : (1960) 3 SCR 578] our Apex Court pointed out as under:
“19. … If one thing is more necessary in law than any other thing, it is the quality of certainty. That quality would totally disappearifJudges of coordinate jurisdiction in a High Court start overruling one another’s decisions.
Part II
Decision in Ignorance of the Judgment of Coordinate Bench is also Per Incuriam
In Halsbury’s Laws of England (4th Edn.) Vol. 26: Judgment and Orders: Judicial Decisions as Authorities (pp. 297-98, para 578) per incuriam has been elucidated as under:
“A decision is given per incuriam when the court has acted in ignorance of a previous decision of its own or of a court of coordinate jurisdiction which covered the case before it, in which case it must decide which case to follow (Young v. Bristol Aeroplane Co. Ltd., 1944 KB 718 at 729 : (1944) 2 All ER 293 at 300.
See: Siddharam Satlingappa Mhetre v. State of Maharashtra, AIR 2011 SC 312; (2011) 1 SCC 694.
In National Insurance Company Ltd. v. Pranay Sethi (Constitution Bench) 2017-16 SCC 680, it is held as under:
“A decision or judgment can also be per incuriam if it is not possible to reconcile its ratio with that of a previously pronounced judgment of a co-equal or larger Bench. There can be no scintilla of doubt tha an earlier decision of co-equal Bench binds the Bench of same strength.” (Referred to in: The Karnataka Lokayuktha Bagalkote District, Bagalkot v. Chandrashekar: 2026 INSC 31; 2026 KHC(Online) 6021; 2026 KLT(OnLine) 1013).
Per Incuriam Decisions have NoPrecedential Force
A subsequent Bench of co-ordinate strength is bound by the Ratio Decidendi of an earlier co-equal Bench; a contrary decision rendered in disregard of that binding precedent is per incuriam and cannot claim binding precedential force. In Jai Singh v. Municipal Corporation of Delhi, 2010-9 SCC 385, it was observed, as regards the legal effect of the divergent coordinate bench decisions, as under:
“23. … Except in compelling circumstances, such as where the order of the earlier bench can be said to be per incuriam, in that it is passed in ignorance of an earlier binding precedent/statutory or constitutional provision, the subsequent bench would follow the earlier coordinate bench.”
This principle is also laid down in the following decisions:
Adarsh Dinkar Sontakke v. Navodaya Vidyalaya Samiti, 2026 INSC 865
Vanashakti v. Union of India, 2026 INSC 761; 2026 KLT(Online) 439
Parveen Kumar v. State of Haryana, 2026 KHC(Online) 6496
Confederation of Real Estate Developers of India (CREDAI) v. Vanashakti, (2026) 5 SCC 201
Bajaj Allianz General Insurance Co. Ltd. v. Rambha Devi, (2025) 3 SCC 95
Bilkis Yakub Rasool v. Union of India, (2024) 5 SCC 481
Dr. Shah Faesal v. Union of India, (2020) 4 SCC 1 (Constitution Bench)
Official Liquidator v. Dayanand, (2008) 10 SCC 1.
A.R. Antulay v. R.S. Nayak, (1988) 2 SCC 602
From the above, it can be concluded:
First: A (basic) decision of a High Court or Supreme Court, even if (appears to be) erroneous, has the binding force on the subsequent co-equal or lesser Benches.
Second: A decision of a High Court or Supreme Court, will be per incuriam if it ignored a binding (basic) decision having precedential value on any subsequent co-equal or lesser Benches.
Third: A mere reference to a binding precedent does not, by itself, prevent the ills of per incuriam. Where the subsequent decision fails to consider and apply the controlling or imperative principle laid down in that precedent, and that omission renders the relevant part of its reasoning demonstrably wrong, then the decision may be treated as per incuriam.
A Coordinate Bench Should Refer to Larger Bench
Judicial discipline envisages that a coordinate bench follow the decision of the previous coordinate bench. If a coordinate bench does not agree with the principles of law enunciated by an earlier bench, the matter has to be referred to a larger bench (through the Chief Justice). See:
Full Bench of the Kerala High Court: Raman Gopi v. Kunju Raman
The Full Bench of the Kerala High Court, in a reference in Raman Gopi v. Kunju Raman Uthaman, 2011 (4) KLT 458 (Pius C. Kuriakose, T.R. Ramachandran Nair & P.S. Gopinathan, JJ.), had to decide how to deal with conflicting views in the decisions of two benches of equal strength of the Apex Court. It was held that in case of conflicting decisions taken in the two Benches of equal strength of the Apex Court, the decision later in point of time will prevail over the earlier one. The following two reasons were pointed out –
a decision of the Apex Court on a declaration of law is binding on all High Courts and Subordinate courts under Article 141 of the Constitution of India and
it may not be proper for the High Courts or Subordinate Courts to criticise and characterise a decision of the Apex Court which has laid down a point of law as per incuriam.
The Full Bench (Raman Gopi) pointed out that an earlier Full Bench of the High Court, in Joseph v. Special Tahsildar, 2001 (1) KLT 958, had held that in a case of conflict between two decisions of Benches of equal strength of Judges of the Supreme Court, the decision later in time would be binding.
Principles in Raman Gopi Misapplied in Some Decisions
The core ratio decidendi in Raman Gopi is that even when an immediately earlier Supreme Court decision is per incuriam – for it deviated from a prior ruling – such a (per incuriam) decision must still be followed by High Courts and subordinate courts. The foundation of this principle is drawn from Article 141 of the Constitution of India.
It was further held that when a direct conflict arises between decisions of co-equal Benches of the Supreme Court of India, High Courts and subordinate courts cannot declare that a Supreme Court decision is per incuriam.
It is definite that those decisions that relied on Raman Gopi, without noticing its restricted scope — that it applies only to Supreme Court precedents rendered by co-equal Benches (and not to High Court precedents given by co-equal Benches) — have misapplied the Full Bench verdict.
Decisions that Referred Raman Gopi
Raman Gopi is referred to (while dealing with the effect of decisions of co-equal Benches) in the following cases:
M/s. M.D. Esthappan v. Reserve Bank of India, 2025 KER 20437, (Gopinath P., J.)
Sunitha Venkatram v. Divya Rayapati, 2015 2 MLJ(Cri) 385 (S. Manikumar, J.)
Valsamma v. Binu Jose, 2014 ACJ 977; 2014 1 KHC 207; 2014 1 KLJ 388; 2014 1 KLT 10 (S. Siri Jagan & K. Ramakrishnan, JJ.)
Principles in Raman Gopi (SUPREME COURT‘SLater co-equalBench Decision will Prevail) Applied
Raman Gopi is followed in M/s. Norman Printing Bureau v. P.M. Mammu Haji, 2013 3 KHC 798; 2013-4 KLT 606 (K.M. Joseph & A. Hariprasad, JJ.) observing as under:
“10. Question as to which of the decisions pronounced by Benches of the Supreme Court of co-equal strength is the binding precedent was considered by this Court on many occasions. In Joseph v. Special Tahsildar (2001 (1) KLT 958) Full Bench of this Court considered the above question in extenso. Law laid down therein is the following:
“We may now refer to a few High Court decisions on the question where an apparent conflict between an earlier and a later decision of the Apex Court by Benches consisting ofequal number of Judges is pointed out. In our view, in such a situation the later decision must prevail over the earlier decision.”
11. Later, a Full Bench of this Court in Raman Gopi v. Kunju Raman Uthaman, 2011 (4) KLT 458, answered a reference order relating to the binding nature of decisions, where conflicting views are expressed in the decisions of two Benches of co-equal strength of the Supreme Court. …”
The principle established in Raman Gopi—that a later SUPREME COURT decision, taking a contrary view from an earlier decision, prevails—has been applied in the following decisions:
M/s Asm Traxim Pvt Ltd v. Union of India, 2025-11 ADJ 500; 2025-5 AllLJ 100 (Sanjay Kumar Singh, J.)
XXXXXXXXXX v. State of Kerala, 2022-5 KLT 636 (Kauser Edappagath, J.),
Daisy M.P. v. State of Kerala, 2020-3 KHC 115; 2020-2 KLT 639 (Sunil Thomas, J.)
Wilson v. Vasantha Kumar, 2015 ACJ 1524; 2013 4 ILR(Ker) 893; 2013 3 KHC 764; 2013 4 KLT(SN) 121 (S. Siri Jagan & K. Ramakrishnan, JJ.)
Is the Full Bench Decision, Raman Gopi, “Obiter” or “Per Incuriam”?
Kumari Alias Mary Francis v. Baby, 2022-6 KHC 270; 2022-5 KLT 614 (P. Somarajam, J.) distinguished Raman Gopi. It was pointed out that Raman Gopi was rendered in a reference matter where the lesser Bench failed to consider the decision of a prior Larger Bench. And, it was held that the observations in Raman Gopi regarding the effect of not considering an earlier decision of a co-equal Bench were obiter. It is observed in Kumari Alias Mary Francis as under:
6. …. But the reference was only for the purpose of binding precedents of the larger Benchesover the Benches of lesser strength. It was not referred in relation to “ratio decidendi” settled with respect to conflicting decision rendered by co-equal Benches. A mere citing of a decision or a legal position settled in an earlier judgment, not for the purpose either to follow or dissent, cannot be said to have referred so as to exclude the same from the mischief of “per incuriam”. ….
Kumari Alias Mary Francis held –
8. ” … when two decisions of co-equal Benches of the Apex Court are conflicting, the decision later in time to be binding, cannot be held good law.”
The learned Single Judge reached this compelling conclusion, relying firmly on two landmark Constitution Bench decisions of the Apex Court:
1. Central Board of Dawoodi Bohra Community v. State of Maharashtra, AIR 2005 SC 752, and
2. Dr. Shah Faesal v. Union of India, (2020) 4 SCC 1.
Is the View ‘Latest Judgment should Prevail’, Fallacious?
It is held in Bindu v. State of Kerala, 2014-4 KHC 772; 2015-1 KLT(SN) 5 (Dama Seshadri Naidu, J.):
“When the subsequent co-equal bench renders the judgment in ignorance of the earlier pronouncement of co-equal bench, the judgment of the previous bench will have binding effect.”
With respect to the judicial opinion that the ‘latest judgment should prevail’, Dama Seshadri Naidu, J., emphasised as under:
“46. Viewed from another legal perspective, precedentially, one prevalent school of jurisprudential thought is that in a series of judgments of co-equal benches, in the face of cleavage or conflict of judicial opinion, the latest judgment should prevail. This school of thought, I am afraid, is fallacious. In fact, on the said issue, though has not been decided by any definitive pronouncement of the Hon’ble Supreme Court under Article 141 of the Constitution of India, guidance is available in the form of Full Bench judgments and also Larger Bench pronouncements of various other High Courts.”
The court relied on the following decisions:
1. S.K. Mahaboob Ali, Ex-CRPF Constable, Nandyal v. Director General of Police, Central Reserve Police Force, New Delhi, 2005(1) ALT 412 (D.B.). It is held in this decision -“However, while adopting cautious approach in case of conflicting Judgments of the Apex Court of co-ordinate Benches cited before the Courts, Courts may have to carefully scrutinize whether reasons had been recorded while laying down the ratio and whether the concerned statutory provisions had been considered and whether the other prior decisions or the binding decisions also had been referred to, if any available on the point by the Court while rendering such Judgments.”
2. Jabalpur Bus Operators Association and others v. State of Madhya Pradesh and another, AIR 2003 MP 81. It is held in this decision -“It has eventually held that in case of conflict between judgments of two Division Benches of equal strength, the decision of earlier Division Bench shall be followed, except when it is explained by the latter Division Bench in which case the decision of latter Division Bench shall be binding.”
Part IV
How should a HIGH COURT deal with Divergent PrecedentsRendered by Co-Equal Benches of (i) the HIGH Court and (ii) the SUPREME Court
The Full Bench decision, Raman Gopi, is not relevant in this matter. A close reading of this decision (Raman Gopi) reveals the following:
The Full Bench (in Raman Gopi) did not examine the status of divergent decisions rendered by co-equal Benches of the High Court, as subsequently pointed out in the decision Kumari alias Mary Francis.
Joseph v. Special Tahsildar, 2001 (1) KLT 958 (FB), held—when two decisions of co-equal Benches of the Apex Court are conflicting on a matter, the decision later in time is binding. This decision is not used in Raman Gopi for the purpose either to follow or to dissent.
Such a citation to Joseph v. Special Tahsildar is mere surplusage. Consequently, the observation in Raman Gopi—that, where two decisions of co-equal Benches of the Apex Court are in conflict, the decision rendered later in point of time is binding—stands as a redundant assertion.
Divergent Decisions – Legitimate Course to be adopted by the the HIGH COURT
When dealing with conflicting precedents, what course should a High Court or trial court adopt if:
(i) there are divergent coordinate decisions of the High Court or the Supreme Court, and
(ii) the later decision appears to be legitimate and reasonable?
The answer would be –
if the coordinate Benches of the HIGH COURT had rendered divergent decisions — refer the matter to a larger bench (through Chief Justice); and
if the coordinate Benches of the SUPREME COURT had rendered divergent decisions — follow previous precedent (treating the later Co-equal Bench decision as per incuriam).
Following decisions support the view — “Where a co-equal Bench of the High Court finds divergent views in earlier co-equal Bench decisions, it must refer the matter to a Larger Bench (through Chief Justice)”:
P. Suseela v. University Grants Commission, AIR 2015 SC1976; 2015-8 SCC 129 (T.S. Thakur, R.F. Nariman, JJ)
State Through Central Bureau of Investigation v. Hemendhra Reddy, 2023-16 SCC 779
U.P. Power Corporation Ltd. v. Rajesh Kumar, AIR 2012 SC 2728; 2012-7 SCC 1
Hardeep Singh v. State of Punjab, 2009 AIR(SC) 483; 2009-16 SCC 785.
Official Liquidator v. Dayanand, (2008) 10 SCC 1;
Sundarjas Kanyalal Bhathija v. The Collector, Thane, AIR 1991 SC 1893
Lala Shri Bhagwan v. Ram Chand, AIR 1965 SC 1767,
How TRIAL COURTSshould Legitimately Deal with Divergent HIGH COURT or SUPREME COURT PrecedentsRendered by Co-Equal Benches
The trial courts (Munsiff Courts, Sub Courts, Magistrate Courts, District Courts, etc.) are bound to follow previous “binding precedent”. If there is divergence among precedents rendered by co-equal Benches, a question may come – How to determine this previous “binding precedent” from among the precedents rendered by co-equal Benches?
To answer the question the following matters require consideration –
1. Ratio Decidendi: The ratio decidendi of the High Court or the Supreme Court decision alone constitutes a binding precedent.
2. Per Incuriam: If such a ratio or decision is per incuriam, for having failed to consider the effect of an earlier decision of a co-equal Bench, it cannot have any binding force or precedential value.
Three lines of approach are seen adopted by the trial courts (or left open?) for handling such divergent Coequal-Bench precedents:
(a) follow the decision that appears to have laid down the law more accurately and comprehensively.
(b) follow the earlier decision as binding treating the subsequent decision as “per incuriam”.
(c) follow the latest decision.
First View: Apply the Co-Equal BenchDecision that APPEARS to Lay Down the Law Accurately
The Full Bench of the P & H High Court, in M/s Indo Swiss Time Limited v. Umrao, AIR 1981 P & H 213, held that the decision that appears to lay down the law more accurately and elaborately must be applied when there is a conflict between the two decisions of equal benches which cannot possibly reconcile. [Followed in: Ganga Saran v. Civil Judge, Hapur, Ghaziabad, AIR 1991 All. 114 (B. P. Jeevan Reddy, CJ., V. N. Khare, V. N. Mehrotra, JJ.)]. Also See:
T.P. Naik v. UOI : AIR 1998 MP 83
Indo Swiss Time Limited v. Umrao : AIR 1981 P&H 213
Amar Singh Yadav v. Shanti Devi : AIR 1987 Pat 191
Second View: Apply Earlier Decision among the Co-Equal Bench Decisions, Treating Second Decision Per Incuriam
The General Law on this point is clear from the Constitutional Bench decision of the Supreme Court, in Central Board of Dawoodi Bohra Community v. State of Maharashtra, AIR 2005 SC 752; 2005-2 SCC 673, summed up the legal position, inter alia, in the following terms:
“The law laid down by this Court in a decision delivered by a Bench of larger strength is binding on any subsequent Bench of lesser or co-equal strength.”
Another Five Judge Bench also in National Insurance Company Limited v. Pranay Sethi, AIR 2017 SC 4973; 2017 16 SCC 680, held that a coordinate Bench of the same strength cannot take a contrary view than what has been held by another coordinate Bench.
Central Board of Dawoodi Bohra Community v. State of Maharashtra is followed in a large number of decisions of our Apex Court including the following larger Bench decisions:
Aligarh Muslim University v. Naresh Agarwal, 2025 6 SCC 1 (Seven Judge Bench)
Property Owners Association v. State of Maharashtra, 2024-18 SCC 1; 2024-11 SCR 1 (Nine Judge Bench)
Sita Soren v. Union of India, AIR 2024 SC 1701; 2024-5 SCC 629 (Seven Judge Bench)
Third View: Follow the Latest Decision among the Co-Equal Bench Decisions
There will be no doubt, if there are conflicting decisions of courts of co-ordinate jurisdiction and the later decision if reached after full consideration of the earlier decision, it is to be preferred. See:
CIT v. Pamwi Tissues Limited, 313 ITR 137
Indian Oil Corporation Ltd. v. State of Bihar, 167 ITR 897
Kunhayammed v. State of Kerala 245 ITR 360
But, certain decisions prefer to follow the Latest Decision among the co-equal Bench decisions on a question of law that cannot be reconciled by the said co-equal Benches. See:
Govindanaik G. Kalaghtigi v. West Patent Press Co. Ltd.: AIR 1980 Kar 92 (FB) (If two decisions of the Supreme Court on a question of law cannot be reconciled and if both such Benches consist of equal number of Judges, the later of the two decisions should be followed by High Courts and other Courts.)
See also: Vasant Tatoba Hargude v. Dikkaya Muttaya Pujari : AIR 1980 Bombay 341.
Cassel & Co. Ltd. vs. Broome [1972] 1 All ER 801 (House of Lords)
It is seen that it is not at all legitimate to support this view, for the following well accepted legal principles –
1. There can be no scintilla of doubt that an earlier decision of co-equal Bench binds the Bench of same strength (National Insurance Company Ltd. v. Pranay Sethi (Constitution Bench) 2017-16 SCC 680).
2. Our Jurisprudence treats decisions in ignorance of earlier verdicts as ‘Per Incuriam’. (Bilkis Yakub Rasool v. Union of India, (2024) 5 SCC 481; Rohit Chaturvedi v. State of Uttarakhand, 2026 AIR SC 2380).
3. It is held in Bilkis Yakub Rasool v. Union of India, AIR 2024 SC 289; 2024-5 SCC 481 as under:
“44.1. ….Incuria legally means carelessness and per incuriam may be equated with per ignorantium.
If a judgment is rendered in ignorantiam of a statute or a binding authority, it becomes a decision per incuriam.
Thus, a decision rendered by ignorance of a previous binding decision of its own or of a court of coordinate or higher jurisdiction or in ignorance of the terms of a statute or of a rule having the force of law is per incuriam.
Such a per incuriam decision would not have a precedential value. If a decision has been rendered per in curium, it cannot be said that it lays down good law, even if it has not been expressly overruled vide Mukesh K. Tripathi vs. Senior Divisional Manager, LIC, (2004) 8 SCC 387 (para 23).
Thus, a decision per incuriam is not binding.”
3. To maintain judicial consistency, per incuriam decisions cannot be be given precedence. Such supremacy will be “fallacious” and lead to “judicial chaos“.
Part V
DivergentApproaches
When applying the doctrine of precedent to conflicting decisions of co-equal Benches, High Courts across the country remain divided. Three distinct approaches have emerged:
The Earlier Decision Prevails
The Better-Reasoned Decision Prevails
The Later Decision Prevails.
A uniform, nationally settled consensus on this issue is yet to be established.
Conclusion
When dealing with divergent precedents of coordinate Benches, the proper course depends on the level of the court and the authority that issued the conflicting judgments:
For High Courts:
Conflicting High Court Precedents: The High Court cannot choose between divergent coordinate decisions of its own Court. It must refer the issue to a larger Bench through the Chief Justice to maintain judicial discipline.
Conflicting Supreme Court Precedents: The High Court should follow the earlier binding precedent, treating any subsequent coordinate Supreme Court decision rendered in ignorance of that earlier ruling as per incuriam.
For Trial Courts:
They must adhere strictly to the earlier binding precedent established by the prior Bench.
End Notes – 1
Judicial Discipline Requires Co-Ordinate or Co-Equal Benches to Follow Earlier Rulings:Also see:
Sankar Padam Thapa v. Vijaykumar Dineshchandra Agarwal, AIR 2025 SC 4980
State of State of M.P. v. Narmada Bachao Andolan, (2011) 7 SCC 639,
Jai Singh v. Municipal Corporation of Delhi, (2010) 9 SCC 385)
M/s. Norman Printing Bureau v. P.M. Mammu Haji, 2013 4 ILR(Ker) 84; 2013 3 KHC 798; 2013-4 KLT 606 (K.M. Joseph & A. Hariprasad, JJ.)
Abdu Rahiman v. The District Collector, 2009-4 KHC 283; 2009-4 KLT 485 (K. Balakrishnan Nair & P. Bhavadasan, JJ.)
P. A. Thomas v. Authority Under the Minimum Wages Act 2008 1 KHC 800; 2008 1 KLT 858 (S. Siri Jagan, J.).
SALMOND: Lower Court Can Pick And Choose: Salmond on Jurisprudence a lower court can pick and choose between two conflicting decisions of the same court on the same question of law. P. A. Thomas v. Authority Under the Minimum Wages Act 2008 1 KHC 800; 2008 1 KLT 858 (S. Siri Jagan, J.). Read as under:
“10. Salmond on Jurisprudence deals with the question of choosing between conflicting decisions of the same court by a subordinate court as follows:
“(4) Inconsistency with earlier decision of higher court. it is clear law that a precedent loses its binding force if the court that decided it overlooked an inconsistent decision of a higher court. If, for example, the Court of Appeal decides a case in ignorance of a decision of the House of Lords which went the other way, the decision of the Court of Appeal is per incuriam, and is not binding either on itself or on lower courts; on the contrary, it is the decision of the House of Lords that is binding. The same rule applies to precedents in other courts, such as the Divisional Court.
(5) Inconsistency between earlier decisions of the same rank. A court is not bound by its own previous decisions that are in conflict with one another. This rule has been laid down in the Court of Appeal, Court of Criminal Appeal and Divisional Court and it obviously applies also to the House of Lords. There may at first sight seem to be a difficulty here: how can a situation of conflict occur, if the court is bound by its own decisions? At least two answers may be given. First, the conflicting decisions may come from a time before the binding force of precedent was recognized. Secondly, and more commonly, the conflict may have arisen through inadvertence, because the earlier case was not cited in the later. Owing to the vast number of precedents, and the heterogeneous ways in which they are reported-or are not reported-it is only too easy for counsel to miss a relevant authority. Whenever a relevant prior decision is not cited before the court, or mentioned in the judgments, it must be assumed that the court acts in ignorance or forgetfulness of it. If the new decision is in conflict wit the old, it is given per incuriam and is not binding on a later court.
Although the later court is not bound by the decision so given per incuriam, this does not mean that it is bound by the first case. Perhaps in strict logic the first case should be binding, since it should never have been departed from, and was only departed from per incuriam. However, this is not the rule. The rule is that where there are previous inconsistent decisions of it own, the court is free to follow either. It can follow the earlier, but equally, if it thinks fit, it can follow the later. This rule has been laid down for the Court of Appeal, and it is submitted that it applies also to other courts. It will be seen, therefore, that this exception to the binding force of precedent belongs both to the category of abrogation by subsequent facts and to the category of what is here called inherent vice. The earlier case can be disregarded because of the subsequent inconsistent decision on the same level of authority, and the later case can be disregarded because of its inherent vice of ignoring the earlier case.
Where authorities of equal standing are irreconcilably in conflict, a lower court has the same freedom to pick and choose between them as the schizophrenic court itself. The lower court may refuse to follow the later decision on the ground that it was arrived at per incuriam, or it may follow such decision on the ground that it is the latest authority. Which of these two courses the court adopts depends, or should depend, upon its own view of what the law ought to be. However, it takes a somewhat bold judge to disregard a precedent handed down by a court of higher standing on the ground that the decision was per incuriam.”
End Notes – 2
History of Raman Gopi v. Kunju Raman Uthaman
In Kumari Alias Mary Francis v. Baby, 2022-6 KHC 270; 2022-5 KLT 614 (P. Somarajam, J.) while referring Raman Gopi v. Kunju Raman Uthaman, laid down the history of this Full Bench decision (Raman Gopi v. Kunju Raman Uthaman) as under:
“2. Ext. B1 is a registered Will dated 2/11/1971 jointly executed by Paul and Sara. The suit was filed after the lapse of more than 30 years. ……The learned counsel for the appellant/plaintiff relied on the decision in Bharpur Singh & Ors. v. Shamsher Singh, 2009 (3) SCC 687, in support of his argument that there cannot be any application of Section 90 of the Evidence Act pertaining to a Will or testament irrespective of whether it is registered or not. But it is against the rationale (ratio) applied by the Apex Court in several decisions including the decision rendered by a Constitution Bench. Hence, it is necessary to ascertain the principle of binding precedent especially when contrary views were taken by a Full Bench and a Division Bench of this Court.
3. The issue came up before the Privy Council as early as in the year 1947 in Munnalal v. Mt. Kashibai, AIR 1947 PC 15, wherein it was held that the execution and attestation of a Will of more than 30 years old, when produced from proper custody, can be presumed. Later on, a three Judge Bench of the Apex Court had affirmed the legal position in Kalidindi Venkata Subbaraju & Ors. v. Chintalapati Subbaraju & Ors., AIR 1968 SC 947. It was followed by this Court in Narayanan Radhakrishna Menon v. Narayanan Sukumara Menon, 2018 (2) KLT 553. Subsequently, it was settled by a Constitution Bench of the Apex Court in Central Board of Dawoodi Bohra Community and Another v. and State of Maharashtra and Another, AIR 2005 SC 752, that a decision delivered by a larger Bench is binding on any subsequent Bench of lesser or co-equal strength. It is further laid down that a Bench of lesser strength cannot doubt the correctness of the view of the law taken by a Bench of larger strength and summed up as follows:-
“The law laid down by Supreme Court in a decision delivered by a Bench of larger strength is binding on any subsequent Bench of lesser or co-equal strength. A Bench of lessor quorum cannot doubt the correctness of the view of the law taken by a Bench of larger quorum. In case of doubt all that the Bench of lesser quorum can do is to invite the attention of the Chief Justice and request for the matter being placed for hearing before a Bench of larger quorum than the Bench whose decision has come up for consideration. It will be open only for a Bench of co-equal strength to express an opinion doubting the correctness of the view taken by the earlier Bench of co-equal strength, whereupon the matter may be placed for hearing before a Bench consisting of a quorum larger than the one which pronounced the decision laying down the law the correctness of which is doubted.”
4. It has been further reiterated by a three Judge Bench of the Apex Court in New India Assurance Company Ltd. v. Hilli Multipurpose Cold Storage Pvt. Ltd., AIR 2016 SC 86, by holding that the judgment delivered earlier in point of time shall prevail over the judgment rendered by a co-equal Bench on a later point of time.
5. The abovesaid principle is subject to the exception that when in a subsequent pronouncement, after taking into consideration the previous judgment, re-defines or explains the width of principles laid down in the previous judgment, the subsequent pronouncement has to be followed (M. Natarajan v. State (2008) 8 SCC 413). It must be understood that there is no scope to re-write or reconsider the legal position earlier laid down by a larger Bench or a co-equal Bench, except for the purpose of explaining the width and length of the principle laid down in the previous judgment. Very recently, another Constitution Bench of the Apex Court in Dr. Shah Faesal and Ors. v. Union of India and Another [(2020) 4 SCC 1] had reiterated the legal position by explaining the rule of per incuriam, relevancy and binding precedent of ratio decidendi laid down in an earlier judgment of co-equal Bench or a larger Bench. There will not be any binding precedent regarding obiter dicta. The Constitution Bench of the Apex Court had considered in this context, the doctrine of binding precedent with its utmost importance in the administration of judicial system by referring yet another five Judge Bench of the Apex Court in Chandra Prakash v. State of U.P., (2002) 4 SCC 234, and also the law laid down in National Insurance Co. Ltd. v. Pranay Sethi, (2017) 16 SCC 680: (2018) 3 SCC (Civ) 248 : (2018) 2 SCC (Cri) 205. The view that the subsequent decision shall be declared per incuriam only if there exists a conflict in the ratio decidendi of the earlier judgments has got approval by a five-Judge Bench of the Apex Court in Punjab Land Development & Reclamation Corpn. Ltd. v. Labour Court, (1990) 3 SCC 682.”
Kumari Alias Mary Francis, v. Baby, 2022-6 KHC 270; 2022-5 KLT 614 (P. Somarajam, J.) distinguished (?) Raman Gopi v. Kunju Raman Uthaman [2011 (4) KLT 458 (FB)] observing as under:
“6. But, without noticing the law laid down by the Constitution Bench of the Apex Court in Central Board of Dawoodi Bohra Community’s case ( Central Board of Dawoodi Bohra Community v. State of Maharashtra, AIR 2005 SC 752)), a Division Bench of this Court in Sampath S. Pawar v. Ibrahim, 2013 (3) KLT 722, had laid down the law that when conflicting views are taken by Benches of co-equal strength, the decision later in point of time will prevail over the earlier one by referring to a Full Bench decision of this Court in Raman Gopi v. Kunju Raman Uthaman, 2011 (4) KLT 458 (FB).”
In fact, the abovesaid contrary view was taken by the Full Bench of this Court after referring the legal position laid down by the Constitution Bench in Central Board of Dawoodi Bohra Community’s case (supra). But the reference was only for the purpose of binding precedents of the larger Benches over the Benches of lesser strength. It was not referred in relation to “ratio decidendi” settled with respect to conflicting decision rendered by co-equal Benches. A mere citing of a decision or a legal position settled in an earlier judgment, not for the purpose either to follow or dissent, cannot be said to have referred so as to exclude the same from the mischief of “per incuriam decis”. In order to avoid the mischief, the “ratio decidendi” settled on a particular legal issue by the earlier larger or co-equal Bench must be referred in relation to that particular “ratio decidendi”. Hence, the legal position laid down by the Full Bench without referring to the law laid down in Central Board of Dawoodi Bohra Community’s case (supra) in relation to conflicting decision and the binding precedents of co-equal Benches would stand “per incuriam decis”. The decision rendered by the Division Bench in Sampath’s case (supra) by following the Full Bench decision in Raman Gopi’s case (supra) without noticing the decision of the Constitution Bench in Central Board of Dawoodi Bohra Community’s case (supra) also would stand per incuriam decis. So also, the decision rendered by a Single Bench of this Court in Hameed v. State of Kerala, 2008 (1) KLT 534, by taking a contrary view, though referred the decision of the Constitution Bench of the Apex Court in Central Board of Dawoodi Bohra Community’s case (supra) cannot be held good law.
7. The observation made by the Apex Court in Official Liquidator v. Dayanand and Others [(2008) 10 SCC 1] assumes importance at this juncture. The relevant portion is extracted below for reference:
“There have been several instances of different Benches of the High Court not following the judgments/ orders of coordinate and even larger Benches. In some cases, the High Courts have gone to the extent of ignoring the law laid down by this Court without any tangible reason. Likewise, there have been instances in which smaller Benches of this Court have either ignored or bypassed the ratio of the judgments of the larger Benches including the Constitution Benches. These cases are illustrative of non-adherence to the rule of judicial discipline which is sine qua non for sustaining the system.”
8. Further, in view of the legal position settled by the Constitution Bench of the Apex Court in Central Board of Dawoodi Bohra Community’s case (supra) and Dr. Shah Faesal’s case (Dr. Shah Faesal v. Union of India [(2020) 4 SCC 1]), the earlier decision rendered by a Full Bench of this Court in Joseph v. Special Tahsildar (2001 (1) KLT 958 (FB)) holding that when two decisions of co-equal Benches of the Apex Court are conflicting, the decision later in time to be binding, cannot be held good law. The decision rendered by the Apex Court in Bharpur Singh’s case (supra) without noticing the earlier legal position settled by a larger Bench (three Judge Bench) of the Apex Court in Kalindindi Venkata Subbaraju’s case (Kalidindi Venkata Subbaraju v. Chintalapati Subbaraju, AIR 1968 SC 947)), hence cannot be held to have binding precedent.”
End Notes – 3
M/s. Norman Printing Bureau v. P.M. Mammu Haji, 2013 4 ILR(Ker) 84; 2013 3 KHC 798; 2013-4 KLT 606 (K.M. Joseph & A. Hariprasad, JJ.), following Raman Gopi v. Kunju Raman Uthaman [2011 (4) KLT 458 (FB)], it is observed as under:
“10. Question as to which of the decisions pronounced by Benches of the Supreme Court of co-equal strength is the binding precedent was considered by this Court on many occasions. In Joseph v. Special Tahsildar (2001 (1) KLT 958) Full Bench of this Court considered the above question in extenso. Law laid down therein is the following:
“We may now refer to a few High Court decisions on the question where an apparent conflict between an earlier and a later decision of the Apex Court by Benches consisting ofequal number of Judges is pointed out. In our view, in such a situation the later decision must prevail over the earlier decision.”
11. Later, a Full Bench of this Court in Raman Gopi v. Kunju Raman Uthaman (2011 (4) KLT 458) answered a reference order relating to the binding nature of decisions, where conflicting views are expressed in the decisions of two Benches of co-equal strength of the Supreme Court. After an elaborate precedential survey, following propositions have been laid down:
“The legal position, which therefore emerges on a discussion and analysis of the principles stated in various decisions of the Apex Court and other High Courts including this Court, so as to act as guidance to the High Courts and Subordinate Courts, when faced with a conflicting decisions, are summarised below:-
(i) In case of conflicting views taken in the decisions of two Benches of equal strength of the Apex Court, the decision later in point of time, will prevail over the earlier one;
(ii) What is binding is the ratio decidendi. A decision is only an authority for what it actually decides.
(iii) A decision which is not expressed and is not found on reasons nor proceeds on consideration of issue cannot be deemed to be a law declared to have a binding effect as is contemplated by Art.141 of the Constitution. Similarly, any declaration made or conclusion arrived at without application of mind or preceded without a reason, cannot be a declaration of law, or authority as a binding precedent.
(iv) It is well settled that what is the essence of a decision is the ratio and not every observation, nor what logically follows from various observations made in it.
(v) The enunciation of the reason or principle on which a question before a court has been decided is alone binding as a precedent. The concrete decision alone is binding between the parties to it, but it is the abstract ratio decidendi, ascertained on a consideration of the judgment in relation to the subject-matter of the decision, which alone has the force of law and which, when it is clear what it was, is binding. It is only the principle laid down in the judgment that is binding law under Art.141 of the Constitution.
(vi) A decision passes sub-silentio, in the technical sense that has come to be attached to that phrase, when the particular point of law involved in the decision is not perceived by the court or present to its mind (Salmond on Jurisprudence 12th Edn. p.153).
(vii) A Division Bench, in case of conflict between the decision of a Division Bench of two Judges and the decision of a larger Bench and in particular, a Constitution Bench, would be bound by the latter decision.
(viii) Per incuriam means a decision rendered by ignorance of a previous binding decision such as a decision of its own or of a court of coordinate or higher jurisdiction or in ignorance of the terms of a statute or of a rule having the force of law. A ruling making specific reference to an earlier binding precedent may. Or may not be correct, but cannot be said to be per incuriam”.
Hence, it is now indubitable that the decision rendered by the Apex Court later in point of time will prevail over the earlier one.”
Principles of Rejection of Plaint under Order VII Rule 11 CPC
The principles of rejection of plaint under Order VII Rule 11 CPC is authoritatively laid down in Dahiben v. Arvindbhai Kalyanji Bhanusali, (2020) 7 SCC 366.
It can be summarised as under:
1. Rejection of plaint must be on any of the grounds contained in Order VII Rule 11. They include:
no cause of action is disclosed,
the suit is barred by limitation under Rule 11 (d).
2. Conditions in Order VII Rule 11 are to be strictly adhered to.
3. To find disclosure of a cause of action, averments in the plaint itself scrutinized.
4. Plaint must be read in conjunction with the documentsfiled along with the plaint
5. A case for rejecting the plaint at the threshold be made out.
6. The pleas taken by the defendant in thewritten statementand in the application for rejection of the plaint, on the merits, would be irrelevant.
7. It is not permissible to cull out a sentence or a passage, and to read it in isolation. It is the substance, and not merely the form, which has to be looked into.
8. If the allegationsin the plaint prima facie show a cause of action, the court cannot embarkupon an enquiry whether the allegations are true in fact.
9. If on a meaningful reading of the plaint, it is found that the suit is manifestly vexatious and without any merit, and does not disclose a right to sue, the court would exercise the power under Order VII Rule 11 CPC.
10. The power under Order VII Rule 11 CPC may be exercised by the Court at any stage of the suit.
11. The provision of Order VII Rule 11 is mandatory in nature. It states that the plaint “shall” be rejected.
12. If clever drafting has created the illusion of a cause of action, nip it in the bud at the first hearing.
13. Everysuit instituted after the prescribed period, shall be dismissed even though limitation may not have been set up as a defence.
14. If a suit is based on multiple causes of action, the period of limitation will begin to run from the date when the right to sue first accrues.
Dahiben v. Arvindbhai Kalyanji Bhanusali (Gajra), (2020) 7 SCC 366, is followed in:
The Correspondence, RBANMS Educational Institution v. B. Gunashekar, AIR 2025 SC 2065; 20255 SCR 94
Geetha v. Nanjundaswamy, AIR 2023 SC 5516; 2024 14 SCC 390,
Frost International Limited v. M/s Milan Developers and Builders (P) Limited, 2022-8 SCC 633.
Part II
Dahiben v. Arvindbhai Kalyanji Bhanusali (Gajra), (2020) 7 SCC 366
It is held in this decision as under:
“23.2. The remedy under Order VII Rule 11 is an independent and special remedy, wherein the Court is empowered to summarily dismiss a suit at the threshold, without proceeding to record evidence, and conducting a trial, on the basis of the evidence adduced, if it is satisfied that the action should be terminated on any of the grounds contained in this provision.
23.3. The underlying object of Order VII Rule 11 (a) is that if in a suit,
no cause of action is disclosed, or
the suit is barred by limitation under Rule 11 (d),
the Court would not permit the plaintiff to unnecessarily protract the proceedings in the suit. In such a case, it would be necessary to put an endto the sham litigation, so that further judicial time is not wasted.
23.4. In Azhar Hussain v. Rajiv Gandhi, 1986 Supp SCC 315 (Followed in Manvendrasinhji Ranjitsinhji Jadeja v. Vijaykunverba, 1998 SCC OnLine Guj 281 : (1998) 2 GLH 823) this Court held that the whole purpose of conferment of powers under this provision is to ensure that a litigation which is meaningless, and bound to prove abortive, should not be permittedto waste judicial time of the court, in the following words : (SCC p.324, para 12)
23.5. The power conferred on the court to terminate a civil action is, however, a drastic one, and the conditions enumerated in Order VII Rule 11 are required to be strictly adhered to.
23.6. Under Order VII Rule 11, a duty is cast on the Court to determine whether the plaint discloses a cause of action by scrutinizing the averments in the plaint (Liverpool & London S.P. & I Assn. Ltd. V. M.V. Sea Success I, (2004) 9 SCC 512), read in conjunction with the documents relied upon, or whether the suit is barred by any law.
23.7. Order VII Rule 14(1) provides for production of documents, on which the plaintiff places reliance in his suit, which reads as under:
“14. Production of document on which plaintiff sues or relies.-
Where a plaintiff sues upon a document or relies upon document in his possession or power in support of his claim, he shall enter such documents in a list, and shall produce it in Court when the plaint is presented by him and shall, at the same time deliver the document and a copy thereof, to be filed with the plaint.
Where any such document is not in the possession or power of the plaintiff, he shall, wherever possible, state in whose possession or power it is.
A document which ought to be produced in Court by the plaintiff when the plaint is presented, or to be entered in the list to be added or annexed to the plaint but is not produced or entered accordingly, shall not, without the leave of the Court, be received in evidence on his behalf at the hearing of the suit.
Nothing in this rule shall apply to document produced for the cross examination of the plaintiff’s witnesses, or, handed over to a witness merely to refresh his memory.”(emphasis supplied)
23.8. Having regard to Order VII Rule 14 CPC, the documents filed along with the plaint, are required to be taken into consideration for deciding the application under Order VII Rule 11 (a). When a document referred to in the plaint, forms the basis of the plaint, it should be treated as a part of the plaint.
23.9. In exercise of power under this provision, the Court would determine if the assertions made in the plaint are contrary to statutory law, or judicial dicta, for deciding whether a case for rejecting the plaint at the threshold is made out.
23.10. At this stage, the pleas taken by the defendant in thewritten statement and application for rejection of the plaint on the merits, would be irrelevant, and cannot be adverted to, or taken into consideration (Sopan Sukhdeo Sable v. Charity Commr., (2004) 3 SCC 137).
23.11. The test for exercising the power under Order VII Rule 11 is that if the averments made in the plaint are taken in entirety, in conjunction with the documents relied upon, would the same result in a decree being passed. This test was laid down in Liverpool & London S.P. & I Assn. Ltd. v. M.V. Sea Success I which reads as : (SCC p.562, para 139)
“139. Whether a plaint discloses a cause of action or not is essentially a question of fact. But whether it does or does not must be found out from reading the plaint itself. For the said purpose, the averments made in the plaint in their entirety must be held to be correct. The test is as to whether if the averments made in the plaint are taken to be correct in their entirety, a decree would be passed.”
23.12. In Hardesh Ores (P.) Ltd. v. Hede & Co., (2007) 5 SCC 614, the Court further held that it is not permissible to cull out a sentence or a passage, and to read it in isolation. It is the substance, and not merely the form, which has to be looked into. The plaint has to be construed as it stands, without addition or subtraction of words. If the allegations in the plaint prima facie show a cause of action, the court cannot embarkupon an enquiry whether the allegations are true in fact. D. Ramachandran v. R.V. Janakiraman, (1999) 3 SCC 267).
23.13. If on a meaningful reading of the plaint, it is found that the suit is manifestly vexatious and without any merit, and does not disclose a right to sue, the court would be justified in exercising the power under Order VII Rule 11 CPC.
23.14. The power under Order VII Rule 11 CPC may be exercised by the Court at any stage of the suit, either before registering the plaint, or after issuing summons to the defendant, or before conclusion of the trial, as held by this Court in the judgment of Saleem Bhai v. State of Maharashtra, (2003) 1 SCC 557. The plea that once issues are framed, the matter must necessarily go to trial was repelled by this Court in Azhar Hussain (supra).
23.15. The provision of Order VII Rule 11 is mandatory in nature. It states that the plaint “shall” be rejected if any of the grounds specified in clause (a) to (e) are made out. If the Court finds that the plaint does not disclose a cause of action, or that the suit is barred by any law, the Court has no option, but to reject the plaint.
24. “Cause of action” means every fact which would be necessary for the plaintiff to prove, if traversed, in order to support his right to judgment. It consists of a bundle of material facts, which are necessary for the plaintiff to prove in order to entitle him to the reliefs claimed in the suit.
24.1. In Swamy Atmanand v. Sri Ramakrishna Tapovanam, (2005) 10 SCC 51, this Court held:
“24. A cause of action, thus, means every fact, which if traversed, it would be necessary for the plaintiff to prove an order to support his right to a judgment of the court. In other words, it is a bundle of facts, which taken with the law applicable to them gives the plaintiff a right to relief against the defendant. It must include some act done by the defendant since in the absence of such an act, no cause of action can possibly accrue. It is not limited to the actual infringement of the right sued on but includes all the material facts on which it is founded”(emphasis supplied)
24.2. In T. Arivanandam v. T.V. Satyapal, (1977) 4 SCC 467, this Court held that while considering an application under Order VII Rule 11 CPC what is required to be decided is whether the plaint discloses a real cause of action, or something purely illusory, in the following words: (SCC p. 470, para 5)
“5. The learned Munsif must remember that if on a meaningful – not formal –reading of the plaint it is manifestly vexatious, and meritless, in the sense of not disclosing a clear right to sue, he should exercise his power under Order VII, Rule 11 C.P.C. taking care to see that the ground mentioned therein is fulfilled. And, if clever drafting has created the illusion of a cause of action, nip it in the bud at the first hearing.”(emphasis supplied)
24.3. Subsequently, in I.T.C. Ltd. v. Debt Recovery Appellate Tribunal, (1998) 2 SCC 170, this Court held that law cannot permit clever drafting which creates illusions of a cause of action. What is required is that a clear right must be made out in the plaint.
24.4. If, however, by clever drafting of the plaint, it has created the illusion of a cause of action, this Court in Madanuri Sri Ramachandra Murthy v. Syed Jalal, (2017) 13 SCC 174, held that it should be nipped in the bud, so that bogus litigation will end at the earliest stage. The Court must be vigilant against any camouflage or suppression, and determine whether the litigation is utterly vexatious, and an abuse of the process of the court.
25. The Limitation Act, 1963 prescribes a time-limit for the institution of all suits, appeals, and applications. Section 2(j) defines the expression “period of limitation” to mean the period of limitation prescribed in the Schedule for suits, appeals or applications. Section 3 lays down that every suit instituted after the prescribed period, shall be dismissed even though limitation may not have been set up as a defence. If a suit is not covered by any specific article, then it would fall within the residuary article.
Description of suit
Period of limitation
Time from which period begins to run
58. To obtain any other declaration
Three years
When the right to sue first accrues
59. To cancel or set aside an instrument or decree or for the rescission of a contract
Three years
When the facts entitling the plaintiff to have the instrument or decree cancelled or set aside or the contract rescinded first become known to him.
The period of limitation prescribed under Articles 58 and 59 of the 1963 Act is three years, which commences from the date when the right to sue first accrues.
27. In Khatri Hotels Pvt. Ltd. v. Union of India, (2011) 9 SCC 126, this Court held that the use of the word ‘first’ between the words ‘sue’ and ‘accrued’, would mean that if a suit is based on multiple causes of action, the period of limitation will begin to run from the date when the right to sue first accrues. That is, if there are successive violations of the right, it would not give rise to a fresh cause of action, and the suit will be liable to be dismissed, if it is beyond the period of limitation counted from the date when the right to sue first accrued.
28. A three-Judge Bench of this Court in State of Punjab v. Gurdev Singh, (1991) 4 SCC 1 : 1991 SCC (L&S) 1082, held that the Court must examine the plaint and determine when the right to sue first accrued to the plaintiff, and whether on the assumed facts, the plaint is within time. The words “right to sue” means the right to seek relief by means of legal proceedings. The right to sue accrues only when the cause of action arises. The suit must be instituted when the right asserted in the suit is infringed, or when there is a clear and unequivocal threat to infringe such right by the defendant against whom the suit is instituted. Order VII Rule 11(d) provides that where a suit appears from the averments in the plaint to be barred by any law, the plaint shall be rejected.”
Abstract The right to adjourn a meeting is vested in the assembly itself unless there are particular regulations which vest this power in the chairman.
If voting has not started, generally there will be no difficulty in postponing/adjourning the election to another date, provided the constitution/bye-laws or the authority conducting the election permits it, or there is a valid reason for postponement.
The election provisions, no doubt, constitute a special procedure governing the poll, and a general meeting-adjournment clause may not necessarily authorise the Returning Officer/Chairman to interrupt a partially completed poll.
If Poll Adjourned, it does not ordinarily begin afresh. It resumes from the stage at which it was interrupted.
The members who did not attend the first date can vote on the adjourned date, if the adjourned date is merely a continuation of the same election and those persons were otherwise eligible voters.
Part I
Adjournment of Meetings: The right is vested in the Assemblyitself
In Deodutt Sharma v. Zahoor Ahmed Zaid (AIR 1960 Raj 25) it is held:
“From the aforesaid view of cases the following principles clearly emerge:-
1 That once a meeting has been properly called, and it meets, the chairman of the meeting can only adjourn it with the consent of the majority of the members, subject, of course, to the rules and regulations of the particular body in relation to which such a question might arise. Thus, where a meeting according to a statute or the rules under which it has been called must have a certain quorum and such quorum is not present, the chairman will have the authority to adjourn the meeting because in its absence no lawful meeting can be held.
2 In the absence of any rule to the contrary the common law doctrine should be held to prevail that the adjournment of the meeting rests with the majority of the members present and is not a matter merely of the pleasure of the chairman.
3 An exception to the aforesaid rule which has been almost universally accepted is that where disorder breaks out at a meeting the chairman has an inherent right (See also: John Vs. Rees: 1969 (2) All ER 274) even if it has not been granted by statute or the rules to adjourn the meeting without consulting the majority.
4 These exceptions apart if the chairman adjourns a meeting contrary to the wishes of the members present and thereby interrupts or leaves unfinished the business for which the meeting was summoned the remaining members can lawfully continue the business; and in the absence of their proper chairman it is open to them to elect another chairman to act as his substitute and continue the business and any business which was duly notified in the notice for the meeting could be transacted to completion and if it is so transacted it would be valid.
5 Where however the adjournment has been properly ordered by the chairman or it having been ordered the members have acquiesced in it and thereafter it dawns on or strikes some of them to continue the business of the meeting then such continuance should be held to be invalid as being a surprise or a fraud on the members who may have already left the meeting.”
Deodutt Sharma v. Zahoor Ahmed Zaid is referred to in the following decisions:
Karan Singh Bhadoria v. Government of Madhya Pradesh, AIR 1996 MP 175,
M.I. Royappan v. Government of Tamil Nadu, AIR 1972 Mad 435,
Seth SobhagmalLodha v. The Edward Mills Ltd., Beawar, AIR 1971 Raj 926
KantilalJ.Sanghavi v. Vinay Sharma, 1971 GujLR 741
In Kantilal J. Sanghavi v. Vinay Sharma, (P.N. Bhagwati, T.U. Mehta, JJ.) 1971 GujLR 741, referring Gujarat Municipalities Act 1963, it is observed as under:
“Therefore, if such a general meeting is properly called in ordinary course that meeting should continue till its business is finished. Under ordinary circumstances it would be for that meeting itself to consider whether it should continue till the business on hand is finished or should for some valid reasons adjourn even before finishing the business on hand. …That being the position the authority presiding over that meeting cannot claim any right which would arbitrarily interfere with the rights of councilors attending the meeting.
14. This seems to be the position at common law in England. There the right to adjourn is considered inherent in the assembly itself.
Shackleton in his book on The Law and Practice of Meetings observes as under at page 48 of the Fourth Edition of that book:- –
“There is a power at common law to adjourn a meeting. The right is vested in the assemblyitself unless there are particular regulations which vest this power in the chairman.”
Crew another well known author of the Conduct of Meetings observes as page 151 of 20th Edition of his book as under:-
“Where no provision is made by the articles as to the adjournment of a meeting the power of adjourning is apparently vested in the meeting. In Stoughton v. Reynolds (1736) 2 Strange 1044 a similar question arose on the following facts. A vestry meeting was held for the election of churchwardens at which the Vicar presided. He had as his nominee for the office of churchwarden one Chapman but the parishioners nominated two other individuals Messrs. Stoughton and Farren. Before the election was completed however the Vicar at the desire and with the consent of Chapman adjourned the meeting against the wish of many present to the next day. Stoughton and those in sympathy with him remained behind and completed the poll whereby he had a majority of votes. The next day the Vicar and Chapman and their supporters met and continued the poll. On these facts it was held that the right of adjournment was in the parish at large. In the case in question there was no custom found and as no precedent in the common law could be found resort therefore was made to the common right which was in the whole assembly where all were upon an equal footing. It is thus evident that so far as the common law position is concerned it is the inherent right of the assembly itself to adjourn its deliberations.”
15. No such inherent right is found to be in the presiding authority. On this question we find the following important observations at page 57 of the above referred book of Crew:-
“If the chairman leaves the meeting before the business is completed or if he purports to adjourn the meeting without authority the meeting may if a quorum still remains appoint another chairman and proceed with the business for the chairman has no right to adjourn the meeting without the consent of the meeting itself unless the business for which it was conveyed has been done or an express power in that behalf is given to him by the relevant rules.”
Halsbury in Vol. No. 6 of Third Edition observes in para 663 at page 338 as under:-
“Except where empowered by the regulations of the company the chairman cannot adjourn the meeting nor dissolve it while any of the business for which it was called remains un-transacted; and if he refuses to act the meeting may elect another chairman. If he has the right with the consent of the meeting to adjourn it the majority of the members present at the meeting cannot compel him to do so. He cannot however adjourn or dissolve the meeting against the wish of the majority.”
We find that a leading case on this point is National Dwellings Society v. Sykes (1894) 3 Ch. 159 where it is held that it is the duty of a chairman to preserve order conduct proceeding regularly and take care that the sense of the meeting is properly ascertained with regard to any question before it; but he has no power to stop or adjourn a meeting at his own will; and if he purports to do so it is competent for the meeting to resolve to go on with the business for which it has been conveyed and to appoint another chairman for that object. In Andhra Pradesh case of VedPrakashDusaj v. The Municipal Corporation of The City of Secunderabad reported in (1958) I. L. R. Andhra 17 Clause (a) of sec. 88 of Hyderabad Municipal Corporations Act (II of 1956) which was similar to sub-sec. (11) of sec. 51 of the Act was considered. The meeting there was adjourned by the concerned Mayor. With reference to this adjournment and after construing the provisions of above referred clause (m) of sec. 88 it was observed that if the Mayor or the Deputy Mayor or both of them as the case may be find it inconvenient to go on with the meeting they cannot adjourn the meeting at their will and pleasure without the consent of the majority and if they do so and leave the hall they would be deemed to be absent within the meaning of clause (g).
We find that similar view is taken in several Indian decisions namely the case of
Gopal Narayan Kulkarni and others v. SanmukhappaNingappaAngali and others reported in A. I. R. 1927 Bom 603 and two Madras cases of
NarayanaChettiar v. The Kaleeswarar Mills Ltd. reported in A. I. R. 1952 Mad 515 and the other
B. Gnanaraj v. A. M. Vedanayagam reported in A. I. R. 1966 Mad 372.
As the same principle is discussed in all these cases we don’t find it necessary to refer to the facts of these cases and the observations made by the learned Judges in these decisions. It would be sufficient to state that in all these cases the principle which is accepted is that the right to adjourn a meeting which is properly convened inherently vests in the meeting itself and that the chairman presiding over that meeting has no unfettered right to adjourn the said meeting and to interrupt its work at his sweet will.”
If Chairman Disregards Majority View, Even Minority can Proceed
Seth SobhagmalLodha v. The Edward Mills Ltd., Beawar, AIR 1971 Raj 926, held as under:
“28. It is settled law that when once a meeting is called, no chairman can arbitrarily dispose of it. Its continuance or dispersion rests entirely on the will of the shareholders. It is mentioned in the Law and Practice of Meetings by Frank Shackleton, 3rd edition, page 69, that a chairman cannot adjourn a meeting at his own will and pleasure without the consent of the members unless the business for which it was convened has been concluded. That means that a chairman has no power to adjourn the meeting at his own choice. The power of adjournment vests in the majority of those present at the meeting. If a chairman should vacate the chair or adjourn the meeting regardless of the views of the majority, those remaining, even if a minority, can appoint a chairman and conduct the business left unfinished by the former chairman: see Catesby v. Burnett, [1916] 2 Ch. 325 (Ch. D.). This point was also considered by a Division Bench of this court in Deodutt Sharma v. Zahoor Ahmed Zaid, [1960] R.L.W. 486 ; A.I.R. 1960 Raj. 25, ….”
“29. Similar views were expressed in Stoughton v. Reynolds, [1736] 2 Stragge 1044 in Nation Dwelling Society v. Sykes, [1894] 3 Ch. 159 (Ch. D.) and in Catesby v. Burnett quoted supra. In the last case there was much opposition in the meeting. There was considerable uproar when the chairman declared the auditors elected and he declared the business to be closed and left the chair and the hall. The remaining members continued the business and elected Catesby to the chair and some new directors were also elected. The question arose, whether the proceedings after the chairman had vacated the chair and dissolved the meeting were valid. It was held that the proceedings were regular and that the appointment of the new directors was valid.”
Voting/Polling is a Continuous Process
Voting/polling is a continuous process for the prescribed polling period, unless it was made at the discretion of the Chairman/Returning Officer and with any emergency or other sufficient cause. It cannot simply be interrupted and adjourned. A mere general power to adjourn the meeting does not necessarily confer an unrestricted power to interrupt a partially completed poll.
After voting has commenced and some members have voted, the Returning Officer/Chairman cannot unilaterally adjourn the voting and resume it on another date. That may raise a serious question of continuity, fairness, and possible manipulation of the electoral process.
Section 57 of the Representation of the People Act, 1951, permits adjournment only in specified circumstances—such as riot/open violence, natural calamity, or “any other sufficient cause” making it impossible to conduct the poll. The Election Commission’s instructions emphasise that this power should be exercised sparingly, where it has become physically impossible to continue the poll. This principle applies to all elections in India.
Part II
Adjournment of Election/Polling in a Society/Association
Adjournment of an election of the governing body of a society, church, association, cooperative society, etc., are governed by:
the bye-laws;
the statute governing the body;
the rules governing the election;
the authority conducting the election and its decision; and
the reasons for adjourning the election.
Principles as to Adjournment of Voting/polling
Once polling has commenced, it is ordinarily expected to continue.
There is a strong distinction between:
adjournment of the general meeting before voting begins, and
interruption/adjournment of an election after voting has actually commenced.
The latter is much more serious. The person conducting the election cannot ordinarily treat the polling as freely interruptible merely because he has the general power to adjourn a meeting.
Courts have emphasised that elections are intended to be completed at the earliest and that an election officer has no inherent power to adjourn an election unless the governing statute, rules or bye-laws confer such power. In R. VenkataRangareddy v. N. MuralidharRao, AIR 1983 AP 83, Andhra Pradesh High Court held to the following effect:
Election officer is not a court and has no inherent powers. Therefore, he has to exercise his powers in accordance with what is found in law governing the election.
Once the election process commences, it should be proceeded with unhampered. The Election officer cannot proceed to hold an enquiry and hold-up the elections pending such enquiry – except under exceptional circumstances or under orders of court in exceptional circumstances.
The election process once commenced, cannot be impeded except under the orders of the Court and the Court would be reluctant except in exceptional circumstances to come in the way of holding of election to the Co-Operative bodies.
The election process which has commenced should not be interfered with ordinarily by any Court. In Ram PyareChaudhary v. State of U.P., [1982]3 SCR207, with reference to the provisions of the U. P. Co-operative societies Act the Supreme Court held that “from the date of the poll until the results are finally declared, the entire process is an election process and ordinarily this process should not be interfered with by the courts”.
The officer concerning the election has to make a summary enquiry with respect to matters that come before him without giving him the power to adjourn and decide the objection.
The officer cannot stop the election process upon an allegation of disqualification, however much it may be supported by material cessation of membership operates and he is disabled from functioning as member of the managing committee.
Any other interpretation would throw open floodgates of allegations by the members of the society who have unsuccessfully contested the election.
Lawful Adjournment is Possible
Here, bye-law becomes crucial. Some bye-laws may expressly provide that the Chairman may adjourn a meeting and resume unfinished business later. But, there is a difference in a general power to adjourn the meeting and the power to interrupt an election after polling has commenced.
The election provisions, no doubt, constitute a special procedure governing the poll, and a general meeting-adjournment clause may not necessarily authorise the Returning Officer/Chairman to interrupt a partially completed poll.
IfPoll Adjourned, Process Resumes From The Stage It Was Interrupted
The poll does not ordinarily begin afresh. The adjourned poll resumes from the stage at which it was interrupted. Those who have already voted cannot vote again; only those who had not voted before the adjournment may vote when polling recommences.
Where polling had been stayed and the general meeting adjourned, the poll should be resumed, the from the stage which the election stood when it was interrupted (MadhavanNamboodiri v. Kammaran,1992 (2) KLT 567; K.Ravindranvs State Of Kerala on 2022 1 ILR(Ker) 669 ; 2020 KLT(Online) 1210, C.T.Ravikumar, N.Nagaresh, JJ.), rather than starting a fresh election calendar (R. VenkataRangareddy v. N. MuralidharRao, 1982 SCC OnLine AP 123; S.R. Shanth Kumar v. State of Karnataka, W.P. Nos. 369/2025 & 306/2025, decided 24-1-2025).
Note: The position is materially different if polling has not commenced.
If no voting has yet taken place
If voting has not started, generally there will be no difficulty in postponing/adjourning the election to another date, provided the constitution/bye-laws or the authority conducting the election permits it, or there is a valid reason for postponement. The Kerala High Court, in K. Ravindranvs State Of Kerala, 2022 1 ILR(Ker) 669 ; 2020 KLT(Online) 1210 (C.T.Ravikumar, N.Nagaresh, JJ.), has recognised that, where an election cannot be conducted on the originally fixed date, the election can in an appropriate case be continued on a later date from the stage at which it was stopped, rather than requiring the entire process to be restarted.
What happens to the Votes Already Cast?
If polling is lawfully adjourned, the crucial issue becomes whether:
the ballot papers already cast remain securely preserved;
those votes are not cancelled or altered;
voters who have already voted are prevented from voting again; and
the remaining eligible voters are subsequently given an opportunity to vote under the same electoral process.
Can members who did not attend the first date vote on the adjourned date?
Ordinarily, yes—if the adjourned date is merely a continuation of the same election and those persons were otherwise eligible voters.
Note: The critical distinction is between: “members present on the original date” and “members entitled to vote in the election.”
Unless the bye-laws expressly restrict voting to members present at the original meeting, eligibility ordinarily depends upon the electoral roll/voters’ list applicable to that election, not upon physical attendance on the first date. K. Ravindran v. State of Kerala, 2022 1 ILR(Ker) 669 ; 2020 KLT(Online) 1210 (C.T.Ravikumar, N.Nagaresh, JJ.), following MadhavanNamboodiri v. Kammaran, 1992 (2) KLT 567, can be authoritatively cited in this point. The Kerala High Court held that when an election was adjourned, the persons entitled to vote had to be determined with reference to the original election date, and not the adjourned date. The Court also held that the election could continue from the stage where it had stopped.
In short:
The adjournment does not ordinarily create a new electorate.
In that situation, members who were absent on the first date should ordinarily be entitled to attend and vote on the adjourned polling date, provided they were members entitled to vote according to the electoral roll applicable to the original election.
Conversely, a person who became eligible only after the original election date would not ordinarily acquire a right to vote merely because he happens to be present on the adjourned date.
Everything ultimately depends upon the association’s constitution/bye-laws and the resolution by which the election was originally convened.
Conclusion
The crucial questions for taking a decision on the point under consideration are:
What are the exact provisions of the bye laws that governs the election?
Was the first meeting adjourned, or was the election cancelled and a fresh election ordered?
What does the election notice say?
Was the voters’ list already finalised/published?
Do the bye laws require the voters to be members satisfying particular conditions as on a particular date?
Was the adjournment made by the person/body having authority to adjourn the Parish General Body?
To sum up – (i) the election can potentially be adjourned before polling begins; and the members who were absent on the first date can ordinarily attend and vote on the adjourned polling date, provided they were eligible voters for that election; (ii) one should not ordinarily lose his voting right merely because he was absent on the first date unless there is an express prohibition in the bye laws.
• The Supreme Court of India, in Basudev v. Sanjay Kumar (11 August, 2026), 2026 INSC 831, considered following questions – (i) Whether in every situation where a suit and a counterclaim are disposed of by a single judgment, two decrees should be drawn up; and (ii) If two decrees were drawn up, should there be two appeals?
• It is answered: No necessity of two decrees. A suit and a counterclaim can be disposed of in a common judgment. And, a common judgment can be challenged in a composite appeal.
• Nevertheless, the composite appeal should be valued as two separate appeals, and the court fees should be paid accordingly. The composite appeal, however, should show the grounds raised against the decree in the suit and the decree in the counterclaim separately, whether there are two decrees or one drawn up.
Importance of Basudev v. Sanjay Kumar
Basudev v. Sanjay Kumar, 2026 INSC 831 (J. B. Pardiwala, Vinod Chandran, JJ.), is a landmark judgment. It resolved several long-standing controversies. The findings therein can be summarised as under:
Single Judgment & Decree: A suit and a counterclaim can be validly disposed of through a common judgment without the necessity of drawing up two separate decrees.
Composite Appeal: A common judgment and decree can be challenged by a single, composite appeal.
The reasons for the above are pointed out by the Apex Court as under:
When there is one suit and a counterclaim, there is only one trial, one finding and one decision.
The provision for appeal requires only a judgment to accompany the Memorandum of Appeal.
• The proviso to Order XLI Rule 1 of the CPC enables the certified copy of the judgment to be dispensed with when two appeals are preferred from a common judgment in two suits tried together, whether or not the appeals are filed by the same person.
Order XX Rule 19 of the CPC posits that the decree passed in a suit in which a counterclaim is filed, shall be subject to the same provisions in respect of an appeal, if there was no counter claim.
As a general rule, the prayer in the suit and the counterclaim are so interlinked that the requirement was only to file one appeal. It is not in contravention of any of the provisions of the CPC.
To enable the appeal to be considered on merits, without the grounds of estoppel and res judicata –– owing to the non-filing of two appeals –– and to ensure avoidance of procedural rigmarole as also multiplicity of litigations, the Apex Court presented the following directives:
The composite appeal should show the grounds raised against the decree in the suit and the decree in the counterclaim separately; whether there are two decrees or one drawn up.
When a composite appeal is filed from a common judgment in the suit and the counterclaim, necessarily, court fees have to be paid on the valuation in the suit and the counterclaim as applicable to appeals, whether it be a single decree or two.
Arguments Placed before the Apex Court
First: Argument for a Single Appeal Insufficient (Rejected by the Supreme Court)
In the impugned judgment, the High Court of Himachal Pradesh took the view that the single appeal was incompetent. It mainly relied on:
Ramesh Chand v. Om Raj, 2022 (2) SLC 1145.
The High Court also referred –
Narhari v. Shanker, 1950 SCC 668,
Charan Singh v. Ram Saroop, C.A. No.1585-1586 of 2025 dated 03.02.2025. (The court permitted the appellant to file a separate memorandum of appeal, without a certified copy of the judgment since, Order XLI Rule 1 of the CPC permitted the Appellate Court to dispense with the requirement of filing a copy of the impugned judgment twice when two separate appeals are filed.)
Premier Tyres Ltd. v. Kerala State Road Transport Corporation, 1993 Supp. (2) SCC 146.
The respondents placed the following decisions, in the Supreme Court:
Premier Tyres Ltd. v. Kerala State Road Transport Corporation, 1993 Supp. (2) SCC 146. (It is held: “Where no appeal is filed, as in this case from the decree in connected suit, it has the same effect of non-filing of appeal against the judgment or decree. Thus, the finality of finding recorded in the connected suit, due to non-filing appeal, precludes the court from proceeding with appeal in other suit.”)
Girija v. Rajan, 2015 (1) KerLT 695 (The High Court of Kerala found that a single appeal would fail on the ground of res-judicata because of the findings in the companion decree. Relied on: Premier Tyres Ltd. v. Kerala State Road Transport Corporation, 1993 Supp. (2) SCC 146)
State of Punjab v. Bakshish, (1998) 8 SCC 222 (It was pointed out that Order XLI Rule 33 — the Appellate Court shall have power to pass any decree even if no appeal is filed — is discretionary and the scope of appeal cannot be enlarged, and also that the principles of res judicata would be attracted where one appeal alone was filed.)
T.K.V.S. Vidyapoornachary Sons v. M.R. Krishnamahary, AIR 1983 Mad 291. (Counter claim is to be treated as a plaint, by a legal fiction employed by sub-rules (2) and (4) of Rule 6A CPC. According to Rule 19(1) of Order XX CPC, homogeneity clearly indicates that it is a unified proceeding. A suit-claim and a counterclaim constitute a unified proceeding.)
Ghanshyam Singh v. Narendra Singh, Second Appeal No.76 of 2022 decided on 22.07.2022 by High Court of Uttarakhand.
Gumai Singh v. Baburam Second Appeal No. 144 of 2012 decided on 28.07.2025 by Madhya Pradesh High Court at Gwalior, 2026 SCC OnLine Mad 14 (It relied on Rajni Rani v. Khairati Lal, 2015-2 SCC 682, to find that a suit and a counterclaim when disposed of by a single judgment, there are two decrees drawn up, and both have to be appealed separately in two different appeals).
Second: Argumnet for Single Appeal Sufficient (Accepted by the Supreme Court)
The Appellants placed reliance on the following decisions:
Shankar Masu Dokare v. Shobha Subhash Dokare, 2014 SCC Online Bom 1859
Abdul Nazer, 2016 SCC OnLine Ker 41103; Girija v. Rajan, 2015 (1) KerLT 695, was reversed and held – single appeal filed would be maintainable.
K. Kandasamy v. P. Natarajan, Second Appeal No. 144 of 2012 decided on 28.07.2025 by Madhya Pradesh High Court at Gwalior, held – Order VIII Rule 6A of the CPC treats the counterclaim as a cross-suit which culminates in a single judgment and a composite decree, does not necessitate multiplicity of appeals.
Supreme Court DistinguishedRajni Rani and Ramesh Chand
The Apex Court found it proper to distinguish Rajni Rani v. Khairati Lal, 2015-2 SCC 682, on facts, and pointed out:
In Rajni Rani, the trial court rejected the counterclaim under order VII Rule 11 CPC for reason that it was barred by Order II Rule 2.
The suit was still pending before the Trial Court.
The rejection of counterclaim had to be challenged in appeal.
The question of two appeals being filed from a decree in the counterclaim as well as that in the suit did not arise at all in Rajni Rani.
Ramesh Chand v. Om Raj, 2015-2 SCC 682, relied on in the impugned judgment, is distinguished by the Apex Court holding as under:
“17. Ramesh Chand, as relied on in the impugned judgment, also found that where both the suit and the counter claim are disposed of by a common judgment, regardless of whether separate decrees have been prepared, there shall be two appeals filed (Para 42 (iv)). The appellants argued that that this would in fact be contrary to the principle enunciated in the very same decision in Para 42 (i), that when two suits are consolidated and tried together, the same can be subjected to challenge by way of a single appeal; while, two suits, which were not consolidated but are decided by a common judgment, require a challenge by way of two appeals (Para 42(iii)), as held in Rajni Devi (Rajni Rani, 2015-2 SCC 682). It was found that there could be situations when the suit is dismissed; in default or as withdrawn, then the counter claim is continued.”
Conclusion
In Basudev v. Sanjay Kumar (2026 INSC 831), the Supreme Court of India streamlined the procedure by affirming that a suit and a counterclaim disposed of by a common judgment do not require two separate decrees or separate appeals. The importance of this decision lies in its nuanced approach to eliminating procedural hurdles and prioritising substantive justice over hyper-technical pedantry.
The Supreme Court of India indisputably makes it clear — where a secondary evidence is sought to be admitted on the basis of an admission (by the opposite party), such admission must be either –
a written admission; or
a clear—express or implied—admission on a matter that is legally capable of being admitted by the opposite party.
The Supreme Court has authoritatively held that the mere marking of a document in evidence—in the absence of a clear admission, as stated above—does not preclude the opposite party from challenging its admissibility at a later stage of the proceedings.
Introduction
Howbeit, the decisions of the High Courts disclose two apparently divergent views regarding objections to the mode of proof of documents.
The first view is that an objection to the Mode of Proof must be raised strictly at the time the document is tendered in evidence. Failure to do so amounts to a waiver.
The second view is that Section 65 of the Indian Evidence Act (Section 60, BSA) is mandatory and exhaustive. Therefore, where the party relying on secondary evidence has failed to establish the foundational facts justifying the non-production of the original, the mere exhibition of a document does not preclude the opposite party from challenging its admissibility even at a later stage of the proceedings.
Sec. 65(b) Evidence Act: Admission IN WRITING alone Recognised
Section 65 of the Evidence Act (Section 60, Bharatiya Sakshya Adhiniyam) deals with secondary evidence.
Section 65(b) [Section 60(b), BSA] expressly mandates – where a document is sought to be admitted in evidence based on an admission, it must be ‘in writing‘.
Section 65(b) of the Evidence Act reads as under:
“65. Cases in which secondary evidence relating to document may be given: Secondary evidence may be given of the existence, condition or contents of a document in the following cases :
(a) ……..
(b) When the existence, condition or contents of the original have been proved to be admitted in writing by the person against whom it is proved or by his representative in interest ……”
Law Relating to “ADMISSIONS”
The general law relating to ‘Admissions’ is contained in Sections 17 to 31 of the Evidence Act (Sections 15 to 20, BSA). In the teeth of the statutory requirement of an admission ‘in writing’ under Section 65(b) of the Evidence Act, on a harmonious consideration, the doctrine of “proof for no objection” (or implied admission) must remain confined to matters that are legally ‘capable of being admitted or waived’ by the party against whom it is to be proved.
Examples for matters ‘capable of being admitted or waived’:
1. A copy of a document — original signed/executed by the opposite party himself.
2. A copy of a document — the opposite party is conversant with the original or its contents.
3. A photograph of a person or a scene — where the opposite party or witness is acquainted with the person or scene.
4. A copy of an Order passed by a Public Authority — where the existence of the Order is known to the opposite party.
Provisions that deal with the Proof of Copy of A Docuemnt
The provisions of the Evidence Act that deal with the proof of ‘computer output’ are the following –
First, Section 63: Secondary evidence: Secondary evidence includes— (i)…. (ii) copies made from the original by mechanical processes which in themselves ensure the accuracy of the copy, and copies compared with such copies (iii) copies made from or compared with the original ……
Second, Section 65: Cases in which secondary evidence relating to documents may be given: Secondary evidence may be given of the existence, condition, or contents of a document in the following cases, namely: — (a) when the original is shown or appears to be in the possession or power-(i) of the person against whom the document is sought to be proved; or(ii) of any person out of reach of, or not subject to, the process of the Court; or(iii) of any person legally bound to produce it, and when, after the notice mentioned in section 64 such person does not produce it; (b) …. (c) …. (d) when the original is of such a nature as not to be easily movable……
When Section 63 or Section 65 is invoked, it may become necessary (particularly when it is objected to or questioned) to give oral evidence as to the fact that (i) copies made from or compared with the original and (ii) the original is lost or it is of such a nature as not to be easily movable.
1. R.V.E. Venkatchalla Gounder v. Arulmighu Viswesaraswamy
The classic decision usually pointed out to support the first view (objectionbe raised when the document is tendered) is – R.V.E. Venkatchalla Gounder v. Arulmighu Viswesaraswamy and V.P. Temple (R.C. Lahoti, Ashok Bhan, JJ.), (2003) 8 SCC 752. It is held in this decision as under:
“One document A/30 is the photocopy of a certified copy of the decision given by the Charity Commissioner. This document was tendered in evidence and marked as an exhibit without any objection by the defendants when this was done. The plaintiff has in his statement deposed and made it clear that the certified copy, though available, was placed on the record of another legal proceedings and, therefore, in the present proceedings he was tendering the photocopy. There is no challenge to this part of the statement of the plaintiff. If only the tendering of the photocopy would have been objected to by the defendant, the plaintiff would have then and there sought for the leave of the Court either for tendering in evidence a certified copy freshly obtained or else would have summoned the record of the other legal proceedings with the certified copy available on record for the perusal of the Court. It is not disputed that the order of Charity Commissioner is a public document admissible in evidence without formal proof and certified copy of the document is admissible in evidence for the purpose of proving the existence and contents of the original.”
“The other document is the rent note executed by defendant No.2 in favour of plaintiff. Here also photocopy of the rent note was produced. The defendant No.2 when in witness box was confronted with this document and he admitted to have executed this document in favour of the plaintiff and also admitted the existence of his signatureon the document. It is nobody’s case that the original rent note was not admissible in evidence. However, secondary evidence was allowed to be adduced without any objection and even in the absence of a foundation for admitting secondary evidence having been laid by the plaintiff.”
R.V.E. Venkatchalla Gounder continued as under:
“The crucial test is whether an objection, if taken at the appropriate point of time, would have enabled the party tendering the evidence to cure the defect and resort to such mode of proof as would be regular. …. a prompt objection …. firstly … enables the Court to apply its mind and pronounce its decision on the question of admissibility …… and secondly, in the event of finding of the Court on the mode of proof sought to be adopted going against the party …. a regular mode …. removing the objection …. is available …. Out of the two types of objections, referred to hereinabove, in the later case, failure to raise a prompt and timely objection amounts to waiver of the necessity for insisting on formal proof of a documen…….”
‘Mode of Proof‘ and ‘Waiver‘ in R.V.E. Venkatchalla must be read in its factual context
Because the Apex Court, in R.V.E. Venkatchalla Gounder v. Arulmighu, accepted the Charity Commissioner’s Order and the rent notes on specific factual grounds—the former being a certified copy already on record elsewhere, and the latter bearing the opposite party’s signature—the general observations on “mode of proof” and “waiver” in this decision must be read in its factual context. That is, the broader propositions cannot not be applied in isolation.
Note: Subsequent decisions that were founded on R.V.E. Venkatachalla Gounder without considering these crucial factors that explain the decision, do not reflect the true ratio and legal principle laid down in this decision. This distinction becomes even more crucial in light of the statutory scheme of Sections 63 and 65 of the Evidence Act (Sections 58 and 60, BSA).
2. Tharammel Peethambaran v. T. Ushakrishnan
Latest decision on the second view (mere marking does not preclude challenging admissibility) is – Tharammel Peethambaran v. T. Ushakrishnan, AIR 2026 SC 938, Pankaj Mithal, S.V.N.Bhatti, JJ. The crux of the decision is the following:
the secondary evidence (notarised photocopy of a Power of Attorney) is NOT admissible until the non-production of the original is accounted for – that is, until the foundational facts of Section 65, Evidence Act are established;
the court also has an obligation to decide the question of admissibility before admitting it as secondary evidence;
mere marking, or marking on admission, does not automatically prove its contents; and
Sections 63 and 65 are exhaustive.
Divergent Views: As To Proof of Marking Documents Without Objection
The following apparently divergent views require consideration:
1. If no objection (from the opposite side), mere marking of a document will prove its existence and contents.
2. Even if a document is marked without objection, unless foundational facts (for its acceptance) are presented, the document will not be relied upon by the Court.
3. Where the validity of the document is already under challenge (or subjected to challenge in cross examination of a relevant witness), mere marking will not prove its existence or contents.
Important Supreme Court Decisions that are Usually Relied upon
It is pertinent to note – the Supreme Court has not adopted any of the aforesaid (three) propositions as an absolute or unqualified rule.
The following are the often-cited decisions of the Supreme Court to support the proposition –Mere Marking (without objection) Prove the Contents.
Often Cited Decisions
Evidence Considered
Reason for accepting this proposition
P.C. Purushothama Reddiar v. S. Perumal,(1972) 1 SCC 9
Police reports without examining the Head Constables who covered those meetings.
The reports were made by public servants in their official duty, falls u/S. 35, Evid. Act.
R.V.E. Venkatachalla Gounder v. Arulmighu Viswesaraswamy and V.P. Temple, (2003) 8 SCC 752
Ext. A 30, the photostat copy of the Order of the Asst. Commissioner, H.R. and C.E. Admini. Dept.
Photostat copy was the Order of the Public Authority. (Foundational facts for not producing the original furnished.)
R.V.E. Venkatachalla Gounder v. Arulmighu Viswesaraswamy and V.P. Temple, (2003) 8 SCC 752
Ext. A 34, the copy of the rent agreement.
Photostat copy of the rent receipts were executed by the opposite side.
Narbada Devi Gupta v. Birendra Kumar Jaiswal, 2003-8 SCC 745
The copy of the rent receipts.
The rent receipts were executed by the opposite side.
Kaliya v. State of Madhya Pradesh, 2013-10 SCC 758
(The observations on Marking without objection are obiter.)
Carbon copy of dying declaration alone furnished. If it was done without proving the foundational circumstances, the opposite party must have raised the objection at the time of admission. In case of failure, it would have been precluded from being raised at a belated stage.
Here, original dying declaration was not traceable. Hence the secondary evidence was adduced with proper foundational evidence. (It is also said – mere admission of a document in evidence does not amount to its proof. Nor, mere marking does not dispense with its proof.)
Cases often Cited to support the Proposition –Mere Marking (even without objection) WILL NOT Prove the Contents
Often Cited Decisions
Evidence Considered
Reason for not accepting this proposition
Ramji Dayawala v. Invest Import: AIR 1981 SC 2085: (1981) 1 SCC 80
Truth of contents of a letter and telegrams.
The truth of the facts stated in a document was in issue. Hence, the contents have to be proved by the evidence of persons who can vouchsafe for the truth.
M. Chandra v. M. Thangamuthu, 2010-9 SCC 712
Validity and Genuineness of the Photocopy (of the Caste Certificate)
Validity and Genuineness of the caste certificate werevery much in question
H. Siddiqui v. A. Ramalingam, (2011) 4 SCC 240
Contentsof the Photocopy was not receivedas proof -observing no ‘foundational’ evidence.
Photocopy was shown to the witness during cross-examination alone, and Signature alone was admitted by the witness.
Sait Tarajee Khimchand v. Yelamarti Satyam, AIR 1971 SC 1865, (1972) 4 SCC 562
Accounts of the Plaintiff
The accounts of the Plaintiff would not be proved by itself.
Sait Tarajee Khimchand v. Yelamarti Satyam, AIR 1971 SC 1865, (1972) 4 SCC 562
Ext. A-41 was a copy of the written statement (of the plaintiff) in a previous suit.
Ext. A-42 is an affidavit (of the plaintiff) in another Suit.
1. The documents were not inter-party. 2. They were not shown to the defendant in cross-examination. 3. Documents do not prove themselves – particularly because of the issues. 4. They were not relevant. 5. Mere marking of an exhibit does not dispense with proof.
LIC v. Ram Pal Singh Bisen, (2010) 4 SCC 491
The documents were the Inquiry Report and the evidence therein.
The documents did not partake the character of admissible.
A Common Thread in the Above (Apparently Divergent) Decisions
The decisions (in the two tables given above) are harmonious rather than conflicting. Certain classes of documents alone can be marked ‘without objection’. It can be the document –
(i) executed by the opposite party or by the witness through whom it is marked,
(ii) an Order of a Public Authority, the existence of which is known to the opposite party.
Correct Legal Position Can be Disceredfrom Narbada Devi v. Birendra Kumar
The Apex Court held in Narbada Devi Gupta v. Birendra Kumar Jaiswal, (2003) 8 SCC 745, to the following effect:
Meremarking of a document cannot be held to be proof of its contents (as held in Ramji Dayawala & Sons (P) Ltd., (1981) 1 SCC 80).
“The situation is, however, different” where the signatures “are admitted by the opposite party”.
Even in such cases, where the truth, genuineness, validity or correctness of the contents is itself in dispute, marking alone does not establish those facts.
Section 294 CrPC and Marking Documents on Admission
Section 294 in The Code of Criminal Procedure, 1973
294. No formal proof of certain documents.
(1) Where any document is filed before any Court by the prosecution or the accused, the particulars of every such document shall be included in a list and the prosecution or the accused, as the case may be, or the pleader for the prosecution or the accused, if any, shall be called upon to admit or deny the genuineness of each such document. ….
Upon a total analysis of the law governing the marking of documents on admission, the following legal principles emerge:
The Court Can Mark the Documents on Admission under Section 294 of the Code of Criminal Procedure.
Mere Marking Is Not Proof of Contents: Simply marking a document as an exhibit upon admission does not, by itself, constitute proof of the truth or accuracy of its contents.
Documents Subject to Judicial Presumption: Documents whose contents carry a statutory presumption of truth (such as an order issued by a public authority) may be taken as proved upon admission under Section 294 of the CrPC.
Documents Capable of Being Admitted by the Opposite Party: Documents that are legally capable of being admitted by the opposing party (for instance, an instrument executed by that party) can be established as proved upon admission under Section 294.
Secondary Evidence: Implied Waiver Cannot Override S. 65(b), Unless “Admission“
Section 65(b) of the Evidence Act is the enabling provision to adduce secondary evidence on ‘written admission’. The scheme of the Evidence Act makes it clear, in strong words, that an implied admission, or a waiver inferred from mere silence, cannot override the express statutory requirement of a written admission under Section 65(b).
A harmonious consideration of the competing principles suggests the following:
(i) the doctrine of implied admission or waiver arising from a failure to object marking the document, and (ii) the statutory requirement of Section 65(b) of the Evidence Act [Section 60(b), BSA] operate in distinct fields and should not be mixed up.
Effect of Express “Admission” by the Advocate
In cases where the advocate expressly “admits” a fact (not matters of law or legal conclusions), it may bind his client. Admissions by advocate are to be deciphered from Judgment (Sarcar) or Order-sheet.
See: Himalayan Coop. Group Housing Society v. Balwan Singh, (2015) 7 SCC 373;
How to Put “Truth of the Facts” in a Document in Issue?
Ramji Dayawala v. Invest Import: AIR 1981 SC 2085: (1981) 1 SCC 80, held as under:
“If the truth of the facts stated in a document is in issue mere proof of the handwriting and execution of the document would not furnish evidence of the truth of the facts or contents of the document. The truth or otherwise of the facts or contents so stated would have to be proved by admissible evidence, i.e. by the evidence of those persons who can vouch safe for the truth of the facts in issue.”
Following are the methods to place on record the objection to the formal proof of documents:
first, by pleadings (already made),
second, by objecting the marking of the document while it is tendered in evidence ,
third, the defence developed during the cross-examination of a relevant witness.
In Sait Tarajee Khimchand v. Yelamarti Satyam, AIR 1971 SC 1865, it is held, with respect to certain documents marked, as under:
“27. …. These documents would not by themselves prove the truth of the statements contained therein particularly because of the issues in suit.”
Four Stages before a Court of law Rely upon a Document
In PRS Hospital v. P. Anil Kumar (2021 (1) KLJ 923 (S.V. Bhatti, Bechu Kurian Thomas, J.), pointed out that there are four stages before a Court of law for relying upon a document. They are:
(i) marking of a document,
(ii) admissibility of a document,
(iii) proof of contents of the document and
(iv) evaluation of the document. ( Also See: Assistant Commissioner of Customs v. Edwin Andrew Minihan, 2023-7 KHC 512; 2024-1 KLT 24).
It is further held in PRS Hospital v. P. Anil Kumar (2021 KHC 1; 2021 (1) KLJ 923, relying on Sait Tarajee Khimchand v. Yelamarti Satyam Alias Satteyya [(1972) 4 SCC 562] and Ramji Dayawala and Sons (P) Ltd. v. Invest Import [(1981) 1 SCC 80, as under:
“23. … By the mere marking of a document, the person bound to prove that document, cannot be absolved of the burden to prove it.Markingof a document is different from proof of the contents of a document. …..
24. … In order to establish the right to adduce secondary evidence, a proper foundation is required to be laid. When the original of a document is not produced nor any factual foundation laid for giving secondary evidence, it is not permissible for the court to allow a party to adduce secondary evidence.”
Should a Document Be Rejected Outright If the Court Finds It Inadmissible?
It cannot be – except in cases like deficiency of stamp duty.
To answer the question (should a document be rejected outright if the court finds it inadmissible) the following matters require consideration:
1. As per Sec. 5 of the Evidence Act evidence can be given with respect to facts in issue and relevant facts, and of no others.
2. Under Rules 3 to 11 of Order 13, CPC, the Court can reject, at any stage of trial of the suit, any document which is irrelevant or inadmissible.
3. Order VII rule 14, Order VIII rule 1A and Order XIII rule 1 of the CPC specify time limits for producing documents relied upon by the parties. The left-out documents can be presented with leave of the court.
4. As per the third para of Section 136 of the Evidence Act (Section 141, BSA), if the relevancy of one alleged fact depends upon another alleged fact being first proved, the Judge can permit evidence of the second fact to be given before the first fact is proved, on the undertaking of the concerned party to give proof of such second fact.
5. In Bipin Shantilal Panchal v. State of Gujarat, AIR 2001 SC 1158, it is held that objections to marking a document should be recorded when the document is tendered in evidence and the document should be marked tentatively subject to objections which are decided or adjudicated later on.
6. In RVE Venkatachala Gounder v. Arulmigu, AIR 2003 SC 4548: (2003) 8 SCC 752,it is held that the objection as to ‘mode of proof’ should be taken at the time of marking of the document as an exhibit, so that the defect can be cured by the affected party. (The law laid down in Bipin Shantilal, as regards objection to marking documents, had been, impliedly, reversed.)
7. In State of NCT of Delhi v. Mukesh (Three Judge Bench), 2014-15 SCC 661, refuted to follow Bipin Shantilal Panchal (as regards marking documents) observing as under:
“The decision referred to by the learned Counsel in the case of Bipin Shantilal Panchal [supra] has to be read and understood in that context.”
8. In the decision, In Re: To Issue Certain Guidelines Regarding Inadequacies And Deficiencies In Criminal Trials v. State Of Andhra Pradesh (Three Judge Bench), 2021-10 SCC 598, considered objections to the oral evidence and ruled that Bipin Shantilal Panchal v. State of Gujarat, AIR 2001 SC 1158, stood modified (overruled), and directed as under:
“…….. Therefore, this court is of opinion that the view in Bipin Shantilal Panchal should not be considered as binding. The presiding officer therefore, should decide objections to questions, during the course of the proceeding, or failing it at the end of the deposition of the concerned witness.”
In the ‘Draft Rules of Criminal Practice, 2021’, (annexed to the Order of the Supreme Court) it is directed as regards marking of documents, inter alia, as under:
“…. If proper proof is not offered for that document at the time when it is marked, it shall be marked as Exhibit P-1/PW1 (subject to proof).”
9. The courts in India consistently follow RVE Venkatachala Gounder v. Arulmigu (Two Judge Bench), AIR 2003 SC 4548: (2003) 8 SCC 752, and Dayamathi Bai v. K.M. Shaffi (Two Judge Bench), AIR 2004 SC 4082: 2004- 7 SCC 107, (as regards marking documents) declining Bipin Shantilal Panchal v. State of Gujarat (Three Judge Bench), AIR 2001 SC 1158.
10. In no subsequent case the Apex Court applied (as regards marking documents) the dictum in Bipin Shantilal Panchal v. State of Gujarat.
Can the Documents be marked “Tentatively”?
In Nambi Narayanan v. State of Kerala, 2010-1 KHC 293; 2010-1 KLJ 685 ; 2010-1 KLT(SN) 46, it is held that, except in cases as to deficiency of stamp duty, the course to be followed when objections were raised, is –
(i) to mark the documents tentatively, subject to the objection, making a note of it;
(ii) to decide the objection at the last stage – in the final judgment; and
(iii) if the court finds at the final stage that the objection raised is sustainable, exclude it from consideration.
It is seen that the view adopted by the Kerala High Court substantially agrees with the the principles in the subsequent Supreme Court ruling in In Re: To Issue Certain Guidelines Regarding Inadequacies And Deficiencies In Criminal Trials v. State Of Andhra Pradesh, (2021) 10 SCC 598. See also: D. Usharani v. Y. Gangaiah, 2023 APHC 51935; B.S. Krishnan v. Peevees Exim Company Pvt. Ltd., (Madras), 2023 2 LW 469.
Marking Documents “Subject to Objection or Proof”
In M. Siddiq v. Mahant Suresh Das, (Ayodhya Case), 2020-1 SCC 1, the practice of marking documents “subject to objection and proof” was referred to as under:
“539. On 7 February 2002, counsel for the plaintiffs in Suit 5 filed a report dated 3 February 2002 before the High Court of Dr. KV Ramesh, pertaining to the “Ayodhya Vishnu Hari temple inscription”. The documents were taken on record “subject to objection and proof” as required by the provisions of the Evidence Act 1872. ….”
The practice of exhibiting documents ‘subject to proof and relevancy’ is also referred to in –
Jarnail Singh v. State of Punjab, 2022-10 SCC 451 (photocopy),
Uttaradi Mutt v. Raghavendra Swamy Mutt, 2018-10 SCC 484,
Ameer Minhaj v. Dierdre Elizabeth (Wright) Issar, 2018-7 SCC 639,
Nandkishore Lalbhai Mehta v. New Era Fabrics Pvt. Ltd., 2015-9 SCC 755,
State of Bihar v. PP Sharma, AIR 1991 SC 1260: 1992 Supp1 SCC 222,
Nilavarnisa v. MM Faizal, 2019-1 KHC 699; 2019-1 KLT 652.
Is Exhibiting a Document an Administrative Act.
In the light of the above, though ‘objection as to the mode of proof falls within procedural law’ (Dayamathi Bai v. K.M. Shaffi, AIR 2004 SC 4082: 2004- 7 SCC 107), it is beyond doubt that it cannot be said that exhibiting a document is an administrative act – as held in Bama Kathari Patil v. Rohidas Arjun Madhavi, 2004-2 AllMR 290; 2004-3 BomCR 509; 2004-3 CivCC 14; 2004-2 MhLJ 572.
Conclusion
The Supreme Court precedents unerringly establish that a written admission is a prerequisite to admit secondary evidence under Section 65(b) of the Evidence Act [Section 60(b), BSA]. Refer: Tharammel Peethambaran v. T. Ushakrishnan, AIR 2026 SC 938.
Still, where there is a clear—express or implied—admission of a matter legally capable of being admitted by the opposite party (for example, a document executed by the opposite party himself), the court is entitled to proceed upon such admission (invoking general provisions as to ‘Admission’ in the Evidence Act). Refer: Narbada Devi Gupta v. Birendra Kumar Jaiswal, 2003-8 SCC 745.
Where the execution, genuineness or contents of a document is specifically disputed—either by the pleadings or by the defence elicited in the cross-examination of the relevant witnesses—the mere absence of raising an objection at the time of markingcannot, by itself, be treated as an implied admission. Refer: M. Chandra v. M. Thangamuthu, 2010-9 SCC 712.
The following two things operate in distinct fields and should not be mixed up: (i) The doctrine of implied admission or waiver arising from a failure to object marking the document and (ii) the statutory requirement of Section 65(b) of the Evidence Act [Section 60(b), BSA]. Refer: Tharammel Peethambaran v. T. Ushakrishnan, AIR 2026 SC 938.
The document, for which proper proof is not offered, has to be marked “subject to proof”. Refer: (See: D. Usharani v. Y. Gangaiah, 2023 APHC 51935; B.S. Krishnan v. Peevees Exim Company Pvt. Ltd., (Madras), 2023 2 LW 469).
The following legal issues are answered in this Article:
1. Should objection to the Mode of Proof must invariably be raised at the very moment the document is tendered in evidence. (Otherwise, it stands waived.)
No. Especially where it is put in issue either by the pleadings or by the defence elicited in the cross-examination of the relevant witnesses.
2. When a document is marked without objection as to its mode of proof, is it open to the other side to object its admissibility afterwards?
If so, which class of documents fall in that group?
Yes. But it is confined to a class of documents. That is, where the Mode of Proof or contents of a document stand admitted by a clear — express or implied — admission (such as a document executed by the party or the witness himself).
3. . Who Should Object FIRST – Court or Opposite Side?
Not by court, in the class of documents where the Mode of Proof or contents of a document stand admitted on a clear — express or implied — admission (such as a document executed by the party or witness himself).
4. Effect: A document executed by the opposite party (e.g., rent receipt) in another proceeding is marked. Does it amount to valid admission?
5. Can the court vociferously drum-out a secondary evidence, even when the document and truth of its contents are admitted by the other side (or truth cannot be presumed under Ser. 114 Evidence Act)?
No. Sec. 136, Evidence Act permits to furnish a fact before proving it formally, if “the party undertakes to give proof of such fact, and the Court is satisfied with such undertaking”.
6. Effect: A party fails to object marking a document at the time of marking – but the truth, genuineness, execution and contents were specifically put in issue either by the pleadings or by the defence elicited in the cross-examination of the relevant witnesses.
In such cases, the failure to object marking is not fatal.
R.V.E. Venkatchalla Gounder v. Arulmighu Viswesaraswamy
The view in R.V.E. Venkatchalla Gounder v. Arulmighu Viswesaraswamy and V.P. Temple, (2003) 8 SCC 752, is the following:
Failure to raise objection as to mode of proof of a document (such as secondary evidence – photostat) should be raised at the time while it is marked ; and its failure amounts to waiver.
This view is also found in:
Smt. Dayamathi Bai v. K.M. Shaffi, AIR 2004 SC 4082.
Iqbal Basith v. N Subbalakshmi,(2021) 2 SCC 718;
PC Thomas v. PM Ismail, AIR 2010 SC 905; 2009-10 SCC 239
R.V.E. Venkatchalla Gounder v. Arulmighu Viswesaraswamy: Relevant Findings
In R.V.E. Venkatchalla Gounder v. Arulmighu Viswesaraswamy and V.P. Temple, (2003) 8 SCC 752 (R.C. Lahoti, Ashok Bhan, JJ.), held as under:
“Ordinarily an objection to the admissibility of evidence should be taken when it is tendered and not subsequently.
The objections as to admissibility of documents in evidence may be classified into two classes:
.(i) an objection that the document which is sought to be proved is itself inadmissible in evidence; and
(ii) where the objection does not dispute the admissibility of the document in evidence but is directed towards the mode of proof alleging the same to be irregular or insufficient.
In the first case, merely because a document has been marked as ‘an exhibit’, an objection as to its admissibility is not excluded and is available to be raised even at a later stage or even in appeal or revision.
In the latter case, the objection should be taken before the evidence is tendered and once the document has been admitted in evidence and marked as an exhibit, the objection that it should not have been admitted in evidence or that the mode adopted for proving the document is irregular cannot be allowed to be raised at any stage subsequent to the marking of the document as an exhibit. The later proposition is a rule of fair play. The crucial test is whether an objection, if taken at the appropriate point of time, would have enabled the party tendering the evidence to cure the defect and resort to such mode of proof as would be regular. The omission to object becomes fatal because by his failure the party entitled to object allows the party tendering the evidence to act on an assumption that the opposite party is not serious about the mode of proof. On the other hand, a prompt objection does not prejudice the party tendering the evidence, for two reasons: firstly, it enables the Court to apply its mind and pronounce its decision on the question of admissibility then and there; and secondly, in the event of finding of the Court on the mode of proof sought to be adopted going against the party tendering the evidence, the opportunity of seeking indulgence of the Court for permitting a regular mode or method of proof and thereby removing the objection raised by the opposite party, is available to the party leading the evidence. Such practice and procedure is fair to both the parties. Out of the two types of objections, referred to hereinabove, in the later case, failure to raise a prompt and timely objection amounts to waiverof the necessity for insisting on formal proof of a document, the document itself which is sought to be proved being admissible in evidence.
In the first case, acquiescence would be no bar to raising the objection in superior Court.”
This view is also found in
Neeraj Dutta v. State (Govt. of Delhi) [2023] 4 SCC 731: five-Judge Bench,
Iqbal Basith v. N Subbalakshmi,(2021) 2 SCC 718,
PC Thomas v. PM Ismail, AIR 2010 SC 905; 2009-10 SCC 239,
Oriental Insurance Co v. Premlata: 2007-8 SCC 575,
Thimmappa Rai v. Ramanna Rai,(2007) 14 SCC 63,
Smt. Dayamathi Bai v. K.M. Shaffi, AIR 2004 SC 4082.
Neeraj Dutta v. State (Govt. of Delhi) [2023] 4 SCC 731
In Neeraj Dutta v. State (Govt. of Delhi) [2023] 4 SCC 731: Five-Judge Bench, held as under:
“Once a document has been properly admitted, the contents of the documents would stand admitted in evidence, and if no objection has been raised with regard to its mode of proof at the stage of tendering in evidence of such a document, no such objection could be allowed to be raised at any later stage of the case or in appeal vide Amarjit Singh vs. State (Delhi Admn.) 1995 Cr LJ 1623 (Del). But the documents can be impeached in any other manner, though the admissibility cannot be challenged subsequently when the document is bound in evidence.”
Tharammel Peethambaran v. T. Ushakrishnan, AIR 2026 SC 938
The view in Tharammel Peethambaran v. T. Ushakrishnan, AIR 2026 SC 938, is the following:
Section 65 Evidence Act is exhaustive. Secondary evidence (notarised photocopy of the alleged Power of Attorney)is NOT admissible until the non-production of the original is accounted for.
The court relied on –
H. Siddiqui (D) By Lrs. v. A. Ramalingam AIR (2011) SC 1492
Rakesh Mohindra v. Anita Beri, (2016) 16 SCC 483.
Ashok Dulichand v. Madahavlal Dube and Another (1975) 4 SCC 664;
Chandra v. M. Thangamuthu, (2010) 9 SCC 712.
The view in Tharammel Peethambaran v. T. Ushakrishnan, AIR 2026 SC 938, is also found in:
LIC v. Ram Pal Singh Bisen [(2010) 4 SCC 491
Yeshoda v. Shoba Ram AIR 2007 SC 1721
State of Rajasthan v. Khemraj [(2000) 9 SCC 241 : AIR 2000 SC 1759] ,
Roman Catholic Mission v. State of Madras [AIR 1966 SC 1457].
Important Findings (Tharammel Peethambaran v. T. Ushakrishnan)
“19. The crux of the matter depends on whether Exh. B-2 can be treated as documentary evidence warranting interpretation of the clauses and the alleged contradictions with Exh. A-3 and A-4. Exh. B-2 is a photocopy, or a mechanical copy, of the purported PoA. This, therefore, implies that Exh. B-2 is, at best, secondary evidence. Secondary evidence is evidence that proves the contents of an original document through a medium that is one step removed from the source. Section 63 of the Indian Evidence Act providesan exhaustive list of what constitutes secondary evidence. This includes certified copies, copies made from the original by mechanical processes ensuring accuracy, copies compared with such copies, counterparts of documents against parties who did not execute them, and oral accounts of the contents given by a person who has seen the document.
20. The broad parameters summarising the procedure to be followed for introducing secondary evidence are reiterated and read thus:
20.1 The fundamental principle of the Indian Evidence Act is that facts have to be established by primary evidence.
Section 64 mandates that documents must be proved by primary evidence, which is considered the “best evidence”.
Primary evidence is the rule, while secondary evidence is an exception admissible only in the absence of primary evidence. A party is generally required to produce the best evidence available; so long as the superior evidence (the original) is within a party’s possession or reach, they cannot introduce inferior proof (secondary evidence).
Smt. J. Yashoda v. K. Shobha Rani (2007) 5 SCC 730
20.2 Before secondary evidence can be admitted, the party relying on it must lay a factual foundation.
This involves two steps:
First, the party must prove that the original document actually existed and was executed.
Secondly, the party must establish valid reasons as to why the original cannot be furnished.
Kaliya v. State of Madhya Pradesh, (2013) 10 SCC 758
20.3 Secondary evidenceis inadmissible until the non-production of the original is accounted for in a manner that brings the case within the specific exceptions provided in Section 65.
H. Siddiqui (D) By Lrs. v. A. Ramalingam AIR (2011) SC 1492
If the original itself is found to be inadmissible through failure of the party who files it to prove it to be valid, the same party is not entitled to introduce secondary evidence of its contents. Smt. J. Yashoda v. K. Shobha Rani (2007) 5 SCC 730
20.4 Section 65 of the Evidence Act is exhaustive and states the specific circumstances under which secondary evidence is permissible.
To introduce secondary evidence, a party must satisfy the conditions of one of the clauses (a) through (g) of Section 65.
20.5 Further, admitting a documentas secondary evidence does not automatically prove its contents.
The secondary evidence must be authenticated byfoundational evidence showing that the alleged copy is, in fact, atrue copyof the original. For instance, if a party wishes to introduce a photostat copy, they must explain the circumstancesunder which the copy was prepared and who possessed the original at the time the photograph was taken.
Ashok Dulichand v. Madahavlal Dube and Another (1975) 4 SCC 664;
Chandra v. M. Thangamuthu, (2010) 9 SCC 712.
20.6 Mere admission of a document or making it an exhibit doesnot dispense with the requirement of proving it in accordance with the law. The court has an obligation to examine the probative value of the document and decide the question of admissibility before making an endorsement on the secondary evidence.
If the foundational facts, such as the loss of the original or the explanation for its non-production, are not established, the court cannot legally allow the party to adduce secondary evidence.
Rakesh Mohindra v. Anita Beri, (2016) 16 SCC 483.
20.7 There is no requirement that an applicationmust be filed to lead secondary evidence. While a party may choose to file such an application, secondary evidence cannot be ousted solely because no application was filed. It is sufficient if the party lays the necessary factual foundation for leading secondary evidence either in the pleadings or during the course of evidence
Dhanpat v. Sheo Ram 2020 (16) SCC 209
Condition for Secondary Evidence# Statutory Clause #Type of Secondary Evidence Allowed Adversary Possession Section 65(a) Any secondary evidence (after notice). Written Admission Section 65(b) The written admission itself. Loss or Destruction Section 65(c) Any secondary evidence. Immovable Original Section 65(d) Any secondary evidence. Public Document Section 65(e) Only a certified copy. Law-Specified Document Section 65(f) Only a certified copy. Voluminous Records Section 65(g) Testimony of a skilled examiner.
21. Therefore, the introduction of secondary evidence is atwo-step process, wherein,
first, the party must establish thelegalright to lead secondary evidence, and
second, theymustprove the contentsof the documents through that evidence.
The twin requirementsareconjunctive.
22. The High Court recorded a finding which is not challenged, that the PoA produced by the 1st Defendant is a notarised photocopy, and not the original document. The 1st Defendant is obligated to follow the procedure for adducing secondary evidence, and thereafter, claim presumption, if any, available to a document so adduced in evidence. It isaxiomaticthatsecondary evidence is permissibleonly as an exceptionto the requirement of adducing primary evidence.
23. ….. In our considered view, neither Section 33 of the Registration Act nor Section 85 of the Evidence Act would come into application if the primary requirement of adducing secondary evidence is discharged by the party relying on the document. Section 85 of the Evidence Act falls under Chapter V, titled Documentary Evidence. In the absence of an original or at least a secondary evidence, it is impermissible to apply Section 85 of the Indian Evidence Act to conclude the execution and extent of authority given by the plaintiff to the 1st defendant. No order is brought to our notice through which secondary evidence is brought on record before the Trial Court. Aphotocopyof a document is no evidenceunless the same isproved by following the procedure set out. Relying on Exh. B-2, the First Appellate Court acted on inadmissible evidence and accepted the existence of power to alienate. Exh. B-2/photocopy is no evidence, and the incorrect reliance on no evidence has been rightly corrected by the High Court through the impugned judgment. The High Court has considered the misreading of evidence by the Appellate Court and, by applying the correct principles of law, allowed the second appeal.”
End Notes 3
Decisive decisions on Marking Documents Without Objection
Following are the decisive decisions on marking Docuements without objection
P.C. Purushothama Reddiar v. S. Perumal,(1972) 1 SCC 9 (Three Judge Bench – A.N. Grover, K.S. Hegde, A.N. Ray, JJ.)
Admissibility of police reports without examining the Head Constables who covered those meetings. Those reports were marked without any objection. Hence it was not open to the respondent to object to their admissibility.
Relied on Bhagat Ram v. Khetu Ram, AIR 1929 PC 110.
R.V.E. Venkatchalla Gounder v. Arulmighu Viswesaraswamy and V.P. Temple, (2003) 8 SCC 752 (R.C. Lahoti, Ashok Bhan, JJ.)
Photo copies were admitted in evidence without leadingfoundation – without objection. They cannot be held inadmissible for originals were not produced.
Relied on Padman v. Hanwanta, AIR 1915 PC 111 P.C. Purushothama Reddiar vs. S.Perumal
PC Thomas v. PM Ismail, AIR 2010 SC 905; 2009-10 SCC 239.
Non-examination and absence of “proof of acknowledgment” by the author – If no objection on ‘mode of proof’ in trial court, it will be too late (in appeal) to raise objection on the ground of mode of proof – that is, “non production of John K as a witness”.
…
Rafia Sultan v. Oil And Natural Gas Commission (I.C. Bhatt, S.B. Majmudar, JJ.), 1986 ACJ 616; 1986 Guj LH 27; 1985-2 GujLR 1315
No objection about the truth of contents of Ex. 32. The witness of the defendant accepted the contents. Therefore, too late in the day to canvass that contents of Ex. 32 were not proved.
…
Smt. Dayamathi Bai v. K.M. Shaffi, AIR 2004 SC 4082
Objection to be taken (secondary evidence) at trial before document is marked as an ‘exhibit’ and admitted to the record.
Relied on Gopal Das v. Sri Thakurji, AIR 1943 PC 83; R.V.E. Venkatchalla Gounder v. Arulmighu , (2003) 8 SCC 752
Sarkar on Evidence .
If copies of the documents are admitted without objection in the trial Court, no objection can be taken in appeal
Referred to in: Smt. Dayamathi Bai v. K.M. Shaffi, AIR 2004 SC 4082.
EFFECT OF MARKING DOCUMENTS WITHOUT OBJECTION
Effect of marking a document without formal proof on admission (or without objection) is also a subject of controversy.
First view (a) Proof (Contents and ‘Truth of its Contents’) stands established. It cannot be questioned afterwards.
(b) Truth also: See: Rafia Sultan v. Oil And Natural Gas Commission, 1986 ACJ 616; 1985-2 GujLR 1315.
(c) Admission of contents – but, does not dispense with proof of truth of its contents.
(a)RVE Venkatachala Gounder v. Arulmigu Viswesaraswami: AIR 2003 SC 4548; (b) Rafia Sultan v. Oil And Natural Gas Commission (I.C. Bhatt, S.B. Majmudar, JJ.), 1985-2 GujLR 1315: No objection about the truth of contents … before the trial Court. … It is therefore too late in the day for Miss Shah for the Commission to canvass for the first time before us in appeal. Neeraj Dutta Vs. State (Govt. of N.C.T. of Delhi) reported in [2023] 4 SCC 731: If no objection as to its mode of proof , no such objection could be allowed to be raised at any later stage. (c) Sait Tarajee Khimchand v. Yelamarti Satyam, AIR 1971 SC 1865; Nandkishore Lalbhai Mehta v. New Era Fabrics, AIR 2015 SC 3796.
Second View Even if no objection, it does not dispense with proof (as to, both, existence of the document and its truth). In such a case the document will not be taken as proved.
(Note: It may not be lawful to apply this principle literatim. A close analysis of each case is essential.)
LIC v. Ram Pal Singh Bisen: 2010-4 SCC 491 (Filing of the Inquiry Report or the evidence adduced during the domestic enquiry); H. Siddiqui v. A. Ramalingam, (2011) 4 SCC 240 (Copy of a power of attorney alone was shown to the respondent during cross-examination and he admitted his signature thereon only, and not its contents).
Third view If truth is in issue, mere proof of contents, or marking without objection, is not proof of truth.
See: Narbada Devi Gupta v. Birendra Kumar Jaiswal, 2003-8 SCC 745; Ramji Dayawala Vs. Invest Import: AIR 1981 SC 2085: (1981) 1 SCC 80.
Fourth view Admission of contents, and dispenses with proof and truth; but its probative value will be a matter for appreciation by court.
See: State of Bihar v. Radha Krishna Singh, AIR 1983 SC 684 (Admission and probative value – different); Rakesh Mohindra v. Anita Beri: 2015 AIR(SCW) 6271; Kaliya v. State of MP: 2013-10 SCC 758; H. Siddiqui v. A. Ramalingam: AIR 2011 SC 1492; Rasiklal Manikchand v. MSS Food Products: 2012-2 SCC 196.
Fifth view Admission of contents, and dispenses with proof and truth; but Court should require (in proper cases) the party producing the document to adduce proper evidence, and to cure formal defects, invoking – • Sec. 165 of Evidence Act • Sec. 58 of Evidence Act • O. XII, r. 2A Proviso, CPC and • Sec. 294 of the CrPC.
See: Harkirat Singh v. Amrinder Singh, (2005) 13 SCC 511; Umesh Challiyil v. K.P. Rajendra, (2008) 11 SCC 740; KK Ramachandran Master v. MV Sreyamakumar, (2010) 7 SCC 428; AIR 2015 SC 3
End Notes 4
Chapter V of the Evidence Act deals with Documentary Evidence
Sections 61 to 65 deal generally with Preliminary Aspects as to Admissibility. It can be summarised as under:
Section 61. The contents of documents may be proved either by primary or by secondary evidence.
Section 62. Primary evidence means the document itself
Section 63. Secondary evidence. Secondary evidence means and includes–
.(1) certified copies
(2) copies made by mechanical processes
(3) copies compared with the original
(4) counterparts of documents
(5) oral accounts
Section 64 Documents must be proved by primary evidence.
Section 65. Cases in which secondary evidence may be given.
.(a) when the original is in the possession of the person against whom…
(b) when the existence, condition or contents admitted in writing
(c) when the original has been destroyed or lost,
(d) when the original is not to be easily movable
(e) when the original is a public document
(f) when a certified copy is permitted to be given in evidence
(g) when the originals consist of numerous accounts …
Certified copy of a Regd. Deed can be Given Only if Foundational Facts
According to clause (f) of Section 65 of the Evidence Act [Section 60, BSA], certified copy of a registered deed can be given in evidence (without reference to the original) only if the foundational facts for the non production of the original is presented. Because such a deed, is not a public document, and a certified copy of it is not permitted by any law “to be given in evidence” (without saying where the original is).
Proof on Documents- General Provisions
1. Section 91 expressly bars oral evidence to prove the terms of a contract if they are reduced to writing.
2. Sec. 22 and 144 of the Evidence Act postulate that the oral assertions as to contents of documents are not.
Modes of Proof of Documents
Modes of Proof of Documents (as to, both, ‘formal proof’ and ‘truth of the contents’) include the following:
Admission (Sec. 17, 21, 58, 67, 70).
Evidence of a person who has seen – ocular evidence (Sec. 59).
An attesting witness (Sec. 59).
Opinion of one who is acquainted with the writing (Sec. 47).
Evidence of one in the ordinary course of his business or official duty (Sec. 32, 34, 35 or 114).
Invoking (specific) presumptions under Sec. 79 to 90A.
Presumptions (general) under Sec. 114.
Circumstantial evidence: on probability or inferences (Sec. 114).
Court-comparison (Sec. 73).
Facts judicially noticeable (Sec. 56 and 57).
A fact of common-knowledge. (It does not require proof. See: Union Of India Vs. Virendra Bharti: 2011-2 ACC 886, 2010 ACJ 2353; Rakhal Chakraborty Vs. Sanjib Kumar Roy: 1998-1 GauLR 253, 1997-2 GauLT 705)
Internal evidence afforded by the contents of the document; a link in a chain of correspondence; recipient of the document. (Mobarik Ali Ahmed Vs. State of Bombay, AIR 1957 SC 857).
Section 465 of the Code of Criminal Procedure reads as follows:
“465. Finding or sentence when reversible by reason of error, omission or irregularity — (1) Subject to the provisions hereinbefore contained, no finding, sentence or order passed by a Court of competent jurisdiction shall be reversed or altered by a Court of appeal, confirmation of revision on account of any error, omission or irregularity in the complaint, summons, warrant, proclamation, order, judgment or other proceedings before or during trial or in any inquiry or other proceedings under this Code, or any error, or irregularity in any sanction for the prosecution, unless in the opinion of that Court, a failure of justice has in fact been occasioned thereby. (2) In determining whether any error, omission or irregularity in any proceeding under this Code, or any error, or irregularity in any sanction for the prosecution has occasioned afailure of justice, the Court shall have regard to the fact whether the objection could and should have been raised at an earlier stage in the proceedings.”
From Section 465 CrPC, the following propositions emerge:
First: A mere error, omission or irregularity (for example, in the sanction to prosecute under Section 19(3) of the Prevention of Corruption Act**) attracts the “failure of justice” test. Such a defect does not, by itself, vitiate the proceedings; that is, the proceedings are not automatically vitiated.
Second: The complete absence of a mandatory sanction stands on a different footing. Such a defect goes to the root of the prosecution and is not treated as a mere error, omission or irregularity capable of being cured under Section 465 CrPC. Consequently, the defect vitiates the cognizance (or the defect is not curable under Section 465 CrPC) and the prosecution CANNOT INVOKE SECTION 465 to cure it.
Accordingly, in the second category (e.g., absence of sanction), the saving provision under Section 465 is not attracted merely because the objection could have been raised at an earlier stage of the proceedings but was not. If the absence of a valid sanction remains as a fundamental defect, the prosecution cannot rely upon Section 465 to cure it. (SeeState of Goa v. Babu Thomas, 2005 KHC 1803: 2005 (4) KLT SN 87 : 2005 (8) SCC 130: AIR 2005 SC 3606; quoted in Luckose Joseph Formerly Village Officer, Kunnumma Village, Alappuzha v. State of Kerala, 2025 KLT (Online) 2658 : 2025 KHC (Online) 867.)
** Note: It is true that in Parkash Singh Badal v. State of Punjab, (2007) 1 SCC 1, and the decisions following it, the Supreme Court observed that Section 19 of the Prevention of Corruption Act is essentially procedural and does not go to the root of the court’s jurisdiction. Nevertheless, those decisions dealt with irregularity in an existing sanction and the applicability of the “failure of justice” test under Section 19(3). They do not detract from the “principle” recognised in State of Goa v. Babu Thomas that the complete absence of a mandatory sanction stands on a different footing and is not a mere procedural irregularity capable of being cured by the saving provision.
In Kannan v. AdisivaEnterprises, 2026 (4) KLT 151, it is observed as under:
“9. It is clear from the aforesaid provision of law that in the present case, the findings of conviction and sentence of the Trial Court, which were upheld by the Appellate Court, are not liable to be reversed in this revision proceedings unless it is shown that a failure of justice has, in fact, been occasioned due to the act of the learned Magistrate taking cognizance of the offence upon the complaint filed by the power of attorney holder of the complainant. Going by the provisions contained in sub Section (2) of Section 465 Cr.P.C, in determining whether a failure of justice has occasioned, this Court shall have regard to the fact whether the objection raised by the revision petitioner regarding the non-competence of the power of attorney holder to institute the complaint, was raised at an earlier stage in the proceedings. As far as the present case is concerned, the petitioner did not care to object the order of the learned Magistrate taking cognizance of the offence, on the basis of the complaint filed by the power of attorney holder of the complainant, before the commencement of the trial. Thus, the point to be looked into is whether the aforesaid aspect could be taken into account by this Court in this revision proceedings, to overturn the findings of the Courts below.”
Part – 2
Kannan v. Adisiva Enterprises (2026) also Requires Reconsideration for it Appears to Have Failed to Follow A.C. Narayanan v. State of Maharashtra
A.C. Narayanan v. State of Maharashtra (P Sathasivam, Ranjana Prakash Desai, Ranjan Gogoi), AIR 2014 SC 630, 2014 (11) SCC 790, was a decision rendered on a twin matter.
1. Criminal Appeal No. 73 of 2007 – A.C. Narayanan v. State of Maharashtra
This appeal is from the Bombay High Court decision. It pertained to the applications filed by the appellant against the order of issuance of process under Sections 138 and 142 of the Negotiable Instruments Act, 1881
2. Criminal Appeal No.1437 of 2013 – Shri G. Kamalakar v. Surana Securities Ltd.
This appeal is from the High Court of Andhra Pradesh. It pertained to the conviction of the accused under Section 138 of the N.I. Act. setting aside the dismissal of the complaint and acquittal of the accused by the Metropolitan Magistrate.
The verdict in A.C. Narayanan v. State of Maharashtra was rendered on a reference to a three Judge Bench to settle, mainly, the following dispute:
“Whether specific averments as to the knowledge of the Power of Attorney holderin the impugned transaction must be explicitly asserted in the complaint?”
It is answered in para 23 as under:
“Nevertheless, an explicit assertion as to the knowledge of the Power of Attorney holder about the transaction in question must be specified in the complaint.”
In the dictum in para 26 it is stated as under:
“(iii) It is required by the complainant to make specific assertion as to the knowledge of the power of attorney holder in the said transaction explicitly in the complaint and the power of attorney holder who has no knowledge regarding the transactions cannot be examined as a witness in the case.”
In Kannan v. AdisivaEnterprises (2026), the Kerala High Court proceeded as under:
“6. …. There was no such prompt challenge in the case on hand. That apart, in the instant case, it is the original complainant himself who adduced evidence during the course trial of the case. Thus the ratio in Naresh Potteries and Narayanan A.C. (supra) have been laid at the initial stages of the respective cases, and not after the inaction of the accused paving the way for the original complainant to adduce evidence in the trial about the transactions which led to the offence.
7. It is true that, in the complaint filed before the Trial Court by the power of attorney holder of the complainant (wife of the proprietor of the complainant firm), it is not stated that she was having direct personal knowledge about the transactions which resulted in the commission of the crime alleged in the complaint. However, at the stage of trial, the complainant himself had appeared before the Trial Court and adduced evidence as PW1 about the transactions alleged in the complaint, which gave rise to the offence under Section 138 of the N.I Act. …”
The High Court failed to take notice of two significant aspects.
1.G. Kamalakar v. Surana Securities Ltd.—the second case in the twin matter decided by the Supreme Court along with A.C. Narayanan v. State of Maharashtra—arose from a judgment of the High Court convicting the accused under Section 138 of the Negotiable Instruments Act after reversing the Metropolitan Magistrate’s order dismissing the complaint and acquitting the accused.
2. The subsequent examination of the complainant himself as PW1 did not cure (could not have cured) the defect. The three-Judge Bench, while answering the reference in A.C. Narayanan v. State of Maharashtra—a proceeding undertaken to settle the legal position authoritatively—held in unequivocal terms that the complaint itself must contain an explicitaverment that the power of attorney holder possessed direct personal knowledge of the transaction. In the absence of such an averment, the defect is foundational and is not cured by the complainant subsequently entering the witness box.
Saji Koduvath Associates 