Saji Koduvath Associates

Order II, Rule 2 CPC – Not to Vex Defendants Twice for the Same Cause of Action

Saji Koduvath, Advocate, Kottayam.

Introduction.

Order II rule 2 of the Code of Civil Procedure bars splitting of reliefs, claimed in suits, on the same cause of action. The object is two-fold. First, defendants should not be vexed twice for the same cause of action (Inacio Martins v. Narayan Hari Naik, AIR 1993 SC 1756; 1993-3 SCC 123; and the second, prevent multiplicity of suits (Cuddalore Powergen Corporation Ltd. v. Chemplast Cuddalore Vinyls Ltd. J.B. Pardiwala and Justice R. Mahadevan, JJ., Neutral Citation: 2025 INSC 73; State Bank of India v. Gracure Pharmaceuticals Ltd. , AIR 2014 SC 731; R. Salvi v. Satish Shankar Gupte, AIR 2004 Bom 455).

“Cause of action” is “the matter requires adjudication for getting the reliefs”

“Cause of action” is –

“every fact which would be necessary for the plaintiff to prove, if traversed, in order to support his right to the judgment of the Court”

A matter “necessary to prove, if traversed” is the matter that requires “adjudication”.

Because, adjudication means –

“a judicial determination of a matter in controversy”.

Therefore “cause of action” can be practically explained as “the matter requires adjudication for getting the reliefs”.

“Cause of action” chosen, or that ‘formed the foundation’ of suit, is the criterion

Pointing out that that the term “cause of action” is not defined in the CPC, it has been explained by the Apex Court, in Kandimalla Raghavaiah v. National Insurance Co., AIR 2010 SC Supp 880, that “cause of action” has different meanings in different contexts, though generally, it is described as “bundle of facts”; and that the plaintiff is entitled to the relief prayed for, if they are proved. In this decision the Apex Court also observed that “Cause of action” means the cause of action for which the suit is brought; and that “Cause of action” is cause of action which gives occasion for and forms the foundation of the suit.

On a scrutiny of the Supreme Court decision it is clear that, in a given set of facts, a plaintiff can choose the cause of action for an order of injunction, leaving apart causes of action for specific performance.

In Mohammad Khalil Khan v. Mahbub Ali Mian, AIR 1949 PC 78, it was pointed out that what would constitute the cause of action in a suit must always depend on the particular facts of each case and the true difficulty in each instance arises only upon the application of this rule. It is held as under:

“As pointed out in Moonshee Bazloor Ruheem v. Shumsoonnissa Begum (11 M.I.A. 551 at p. 605) “The correct test in all cases of this kind is, whether the claim in the new suit is, in fact, founded on a cause of action distinct from that which was the foundation of the former suit.” (Quoted in: Cuddalore Powergen Corporation Ltd. v. Chemplast Cuddalore Vinyls Ltd. J.B. Pardiwala and Justice R. Mahadevan, JJ., Neutral Citation: 2025 INSC 73)

Referring various English decisions it is observed in Cuddalore Powergen Corporation Ltd. v. Chemplast Cuddalore Vinyls Ltd. J.B. Pardiwala and Justice R. Mahadevan, JJ., Neutral Citation: 2025 INSC 73, as under:

“These observations show that in considering whether the cause of action in the subsequent suit is the same or not as the cause of action in the previous suit, the test to be applied is, are the causes of action in the two suits in substance-not technically-identical?
Applying this test the learned Judges came to the conclusion that the causes of action in the two suits in Brunsden v. Humphrey[(14 Q.B.D. 141). were distinct. Observations to the same effect appear in certain decisions of this Board. In Soorjomonee Dayee v. Suddanund [12 Beng. [(1873) 12 Beng L.R. 304, 315], their Lordships stated as follows:-
“Their Lordships are of opinion that the term “cause of action” is to be construed with reference rather to the substance than to the form of action.”
In Krishna Behari Roy v. Brojeswari Chowdranne [(1875) LR 2.I.A. 283, 285.], Sir Montague Smith in delivering the judgment of the Board observed:- “their Lordships are of opinion that the expression “cause of action” cannot be taken in its literal and most restricted sense. But however that may be.”

“Order II rule 2 : Suits to include the whole claim:

(1) Every suit shall include the whole of the claim which the plaintiff is entitled to make in respect of the cause of action; but a plaintiff may relinquish any portion of his claim in order to bring the suit within the jurisdiction of any Court.
(2) Relinquishment of part of claim.- Where a plaintiff omits to sue in respect of, or intentionally relinquishes, any portion of his claim, he shall not afterwards sue in respect of the portion so omitted or relinquished.
(3) Omission to sue for one of several reliefs.- A person entitled to more than one relief in respect of the same cause of action may sue for all or any of such reliefs; but if he omits, except with the leave of the Court, to sue for all such reliefs, he shall not afterwards sue for any relief so omitted.
Explanation.- For the purposes of this rule an obligation and a collateral security for its performance and successive claims arising under the same obligation shall be deemed respectively to constitute but one cause of action.”

Also Read: Order IX Rule 9 CPC: Earlier Suit for Injunction; Subsequent Suit for Recovery & Injunction – No Bar

O.II r.2 is Attracted when a Plaintiff Omitted to Raise All Reliefs in a Previous Suit

It is held in Gurbux Singh v. Bhooralal, AIR 1964 SC 1810, as follows:

“6. In order that a plea of a bar under O. 2, r. 2(3), Civil Procedure Code should succeed the defendant who raises the plea must make out
(1) that the second suit was in respect of the same cause of action as that on which the previous suit was based,
(2) that in respect of that cause of action the plaintiff was entitled to more than one relief,
(3) that being thus entitled to more than one relief, the plaintiff, without leave obtained from the Court, omitted to sue for the relief for which the second suit had been filed.”

Several reliefs Arises from the Same Cause of Action should be United

In Mohammed Khalil Khan v. Mahbub Ali Khan, AIR 1949 PC 78 it is held as under:

“The principles laid down in the cases thus far discussed may be thus summarized :
the correct test in cases falling under Or. 2, r. 2, is “whether the claim in the new suit is, in fact, founded on a cause of action distinct from that which was the foundation for the former suit.” (Moonshee Buzloor Ruheem v. Shumsoonnissa Begum.)
(2.) The cause of action means every fact which will be necessary for the plaintiff to prove, if traversed, in order to support his right to the judgment. (Read v. Brown.)
(3.) If the evidence to support the two claims is different, then the causes of action are also different. (Brunsden v. Humphrey.)
(4.) The causes of action in the two suits may be considered to be the same if in substance they are identical. (Brunsden v. Humphrey.)
(5.) The cause of action has no relation whatever to the defence that may be set up by the defendant, nor does it depend on the character of the relief prayed for by the plaintiff.
It refers “to the media upon which the plaintiff asks the Court to arrive at a conclusion in his favour.” (Muss. Chand Kour v. Partab Singh.) This observation was made by Lord Watson in a case under s. 43 of the Act of 1882 (corresponding to Or. 2, r. 2), where plaintiff made various claims in the same suit.” (Quoted in Life Insurance Corporation v. Sanjeev Builders Pvt. Limited, AIR 2022 SC 4256)

Referring Mohammed Khalil Khan v. Mahbub Ali Khan, AIR 1949 PC 78 it is observed in Raman Ittiyathi VS Pappy Bhaskaran, AIR 1990 Ker 112, that there may be cases in which the same cause of action might give rise to several reliefs. In such cases also, all these reliefs should be united in the same suit. If not, the bar would apply. But in such cases, he could obtain leave of Court and reserve one or more reliefs for a separate suit. The bar would apply only if the leave of Court is not obtained. Even then the whole claim will have to be included, otherwise the bar would apply.

O.II, R.2 Does Not Require All Causes of Action Must be Combined in One Suit

It is further pointed out in Raman Ittiyathi v. Pappy Bhaskaran, AIR 1990 Ker 112, that Order II, r.2 does not require that when a transaction or right gives rise to several causes of action they should all be combined in one suit, or that the plaintiff must lay his claim alternatively in the same suit for these different causes of action. What is required is that the cause of action cannot be split up to sue for one part in one suit and another part in another suit.

It is Not Every Claim or Every Cause of Action of Plaintiff Against Defendant

In Cuddalore Powergen Corporation Ltd. v. Chemplast Cuddalore Vinyls Ltd. J.B. Pardiwala and Justice R. Mahadevan, JJ., Neutral Citation: 2025 INSC 73, the Supreme Court found that earlier injunction suit was not a bar for second suit for specific performance since the plaintiff could not have filed (because of a bar under and Govt. Order) the suit for specific performance when the first suit was filed. The Court emphasised the law on this matter as under:

“36. The object of both the Rules 1 and 2 of Order II is to prevent the multiplicity of suits. Order II Rule 2 is founded on the principle that a person should not be vexed twice for one and the same cause. It is a rule which is directed against two evils i.e., the splitting up of claims and the splitting up of remedies. What Order II Rule 2 requires is the inclusion of the whole claim arising in respect of one and the same cause of action, in one suit. However, this must not be misunderstood to mean that every suit shall include every claim or every cause of action which the plaintiff may have against the defendant. Therefore, where the causes of action are different in the two suits, Order II Rule 2 would have no application.
37. On a more careful perusal of the provision, it can be seen that Order II Rule 2(1) reads as – “every suit shall include the whole of the claim which the plaintiff is entitled to make in respect of the cause of action”, whereas the words used in Order II Rule 2(3) are “the same cause of action”. Despite being so, the words “the cause of action” used in Order II Rule 2(1) must be read to mean “the particular cause of action“. Only on such a reading one can arrive at the inference that where there are different causes of action, Order II Rule 2 will not apply; and where the causes of action are the same, the bar imposed by Order II Rule 2 may apply.
38. Order II Rule 2(1) requires every suit to include the whole of the claim to which the plaintiff is entitled to in respect of a particular cause of action. However, the plaintiff has an option to relinquish any part of his claim for the purpose of bringing the suit within the jurisdiction of any court. Order II Rule 2(2) contemplates a situation where a plaintiff omits to sue or intentionally relinquishes any portion of the claim which he is entitled to make. If the plaintiff so acts, then he shall not, afterwards, sue for the part or portion of the claim that has been omitted or relinquished.
xxxxx
It is, therefore, clear from a conjoint reading of the provisions of Order II Rules 2(2) and (3) CPC that the aforesaid two sub-rules of Order II Rule 2 contemplate two different situations, namely,
- where a plaintiff omits or relinquishes a part of a claim which he is entitled to make and,
- secondly, where the plaintiff omits or relinquishes one out of the several reliefs that he could have claimed in the suit.
It is only in the latter situation where the plaintiff can file a subsequent suit seeking the relief omitted in the earlier suit, provided that at the time of omission to claim the particular relief, he had obtained the leave of the court in the first suit.”

If Claim is Omitted or Limited, Bar to Seek Recover the Balance

If a cause of action enables a person to ask for a larger and wider relief than that to which he limits his claim, he cannot afterwards seek to recover the balance. (Sidramappa VS Rajashetty, AIR 1970 SC 1059; Raman Ittiyathi v. Pappy Bhaskaran, 1990 AIR Ker 112).

Should Omission Be “Intentional”

Order II rule 2 says:

Relinquishment of claim in Order II rule 2 is attracted where
plaintiff omits to sue in respect of any portion of his claim, and
intentionally relinquishes any portion of his claim.

It is clear that the relinquishment must be “intentional”. However, “omission” stated in Order II rule 2 need not be “intentional”, as worded in this rule. Apparently, it is immaterial whether the omission was by neglect, oversight, mistake, fraudulent, dishonest or intentional. But, it is pointed out in Raman Ittiyathi v. Pappy Bhaskaran, 1990 AIR Ker 112 that in the following decisions it is held that in order that the bar should apply the plaintiff must have been aware of or conscious about the omitted relief, and that if the omission was due to lack of knowledge or awareness of the cause of action or the relief, the bar cannot apply.

Nihal Singh v. Mt. Najuban, AIR 1923 All 230;
Yarlagadda Pakeerayya v. Puligadda Suryanarayana, AIR 1927 Mad 791;
Thotappalle Sarvabhotla Venkata Chandikamba v. Kunala Indrakanti Veswanadhamayya, AIR 1936 Mad 699;
Binya Bai v. Ganpat, AIR 1918 Nag 158

O.II r.2 Bar is Attracted Only When Inclusion of Relief is ‘Obligatory’, and ‘Not Optional’.

In other words, subsequent reliefs ‘Could not have been Claimed’ in the Former Suit.

In Gurbux Singh v. Bhooralal, AIR 1964 SC 1810, it is held by the Apex Court, analyzing O.II r.2, as follows:

“6. From this analysis it would be seen that the defendant would have to establish primarily and to start with, the precise cause of action upon which the previous suit was filed, for unless there is identity between the cause of action on which the earlier suit was filed and that on which the claim in the later suit is based there would be no scope for the application of the bar.”

Relying on Gurbux Singh v. Bhooralal it is observed in Raman Ittiyathi v. Pappy Bhaskaran, 1990 AIR Ker 112, that O.II r.2 bar is attracted when the inclusion of the relief in the previous suit was not only possible, but also its inclusion was obligatory and not optional.

For example, the second suit for recovery of possession is not barred when title was found in the earlier suit; and the relief of injunction was denied on the ground that defendants are in possession. The relief of recovery could not have been claimed on the cause of action alleged in the previous suit (though optionally alternative relief of recovery could have been claimed). (See also: K. Palaniappa Gounder v. Valliammal, AIR 1988 Mad 156, Bominic Animal v. Muthusamy, 1986 TNLJ 117.)

Relief Claimed must have been ‘Available’ in the Earlier Suit

To attract bar under Order II rule 2 the plaintiffs must have relinquished or intentionally omitted to sue the reliefs, in the earlier suit, claimed subsequently. The phrase “omits to sue” denotes that the impugned reliefs in the subsequent suit must have been ‘available’ at the time of filing the first suit. It is observed in Raman Ittiyathi v. Pappy Bhaskaran, 1990 AIR Ker 112, that if the relief claimed in the subsequent suit was not available on the facts alleged to support the fight to relief, namely the cause of action, in the previous suit, there was no bar under O.II, R.2; and that the question was whether the relief in respect of which the bar was pleaded was available on the cause of action pleaded in the earlier suit. (See also: Swaran Singh v. Jaspal Singh, 2019 0 Supreme (P&H) 1934; State Bank of India v. Gracure Pharmaceuticals Ltd. AIR 2014 SC 731)

In Union of India v. H.K. Dhruv (2005) 10 SCC 218, the Apex Court held as follows:

“4. .. In order to attract applicability of the bar enacted by Order 2 Rule 2 CPC, it is necessary that the cause of action on which the subsequent claim is founded should have arisen to the claimant when he sought for enforcement of the first claim before any court.”

If relief of specific performance was available, when Injunction suit was filed, there is bar.

Or. II rule 2 attracts when no suit for sp. performance, but only Suit for Inj.

In Virgo Industries (Eng.) Private Limited v. Venturetech Solutions Private Limited, (2013) 1 SCC 625, the cause of action to file suit for specific performance had arisen on the date the suit for injunction was filed, but it was not claimed. Therefore, our Apex Court held that the subsequent suit would be barred under Order II Rule 2 CPC. (Referred to by the Supreme Court in Bharat Petroleum Corporation Ltd. v. Atm Constructions Pvt. Ltd., 2023)

In Vipan Kumar v. Asha Lata Ahuja, 2009-3 CivCC 737 (P&H); 2009-3 Law Herald 1697; 2010-7 RCR (Civ) 1317, observing that if on the date of filing suit for injunction, the relief of specific performance was available, then the vendee was not entitled to file a suit for specific performance of agreement, as it would be barred under Order 2 Rule 2 of the CPC.

Similar view is expressed in Suresh Chaudhary v. Rakesh Singhal, 2011-1 PLR 331 (P&H) also. It was observed that once it was held that the plaintiff should have filed suit seeking relief of specific performance as the main relief at the time he filed first suit for injunction, then the suit for rec recovery of earnest money and damages, also could not have been subsequently obtained. It will be barred by Order 2 Rule 2(3) CPC.

Criterion – Whether cause of action was available at the time of first suit

In Vurimi Pullarao v. Vemari Venkata Radharani, (2020) 14 SCC 110, it was held that (in the light of earlier injunction suit, where the plaintiff was entitled to sue for specific performance when the earlier suit for injunction was instituted) the second suit for specific performance was barred under Order II Rule 2. The Supreme Court held as under:

“The plaintiff was entitled to sue for specific performance when the earlier suit for injunction was instituted but omitted to do so. There was an identity of the cause of action in the earlier suit and the subsequent suit. …. Yet, without seeking the leave of the Court, the plaintiff omitted to sue for specific performance and rested content with the prayer for permanent injunction. In these circumstances, we agree with the finding which has been arrived at by all the three courts that the subsequent suit filed is barred under Order 2 Rule 2 does not warrant any interference in this appeal.”

The Madras High Court, in Kumarayee Ammal v. M. Ramanathan 2007-4 LW 319; 2007-4 MLJ 1145 held that the real test should be whether the causes of action now urged for the latter suit, were available at the time of the filing of the first suit or not. In the instant case, the causes of action for filing a suit for specific performance were very well available at the time of the first suit. The High Court relied on the following observation in Sidramappa v. Rajashetty, AIR 1970 SC 1059, where the Supreme Court has held as under:

“The requirement of Order 2, Rule 2, Code of Civil Procedure is that every suit should include the whole of the claim which the plaintiff is entitled to make in respect of a cause of action. Cause of action means the cause of action for which the suit was brought. It cannot be said that the cause of action on which the present suit was brought is the same as that in the previous suit. Cause of action is a cause of action which gives occasion for and forms the foundation of the suit. If that cause of action enables a person to ask for a larger and wider relief than that to which he limits his claim, he cannot afterwards seek to recover the balance by independent proceedings.”

The Madras High Court also relied on Bombay High Court in Gajanan R. Salvi v. Satish Shankar Gupte, AIR 2004 Bom 455. The Bombay High Court has held as under:

“6. The learned counsel for the appellant vehemently urged that the present suit of the plaintiff is to claim specific performance of the agreement coupled with the relief of possession, but the earlier suit was for injunction simpliciter. In this way, it was sought by to be urged that plaintiff cannot be prevented by the bar of Order 2, Rule 2 of the C.P.C. as the reliefs were also different. However, this submission cannot be accepted even for a moment because in the eye of law, while considering the bar of Order 2, Rule 2, which provision is aimed for avoiding multiplicity of the suit and mere comparison of the reliefs of variance in few allegation here or there would have no relevance. On the other hand, in substance, what is to be seen is, whether the foundation in the previous suit as well as the present suit is one and the same and further what type of rulings would have been there available for seeking relief in this previous suit that was prayed.
In this regard, time and again, this Court as well as the Apex Court have decided this issue on many occasions. The material principles laid down in various rulings can be summarised thus-
“(1) The correct test in cases falling under Order 2, Rule 2 is whether the claim in new suit is in fact founded on a cause of action distinct from that which was the foundation for the former suit.
(2) The cause of action means every fact which will be necessary for the plaintiff to prove, if traversed, in order to support his right to judgment.
(3) If the evidence to support the two claims is different then the cause of action are also different.
(4) The cause of action in the two suits may be considered to be the same if in substance they are identical.
(5) The cause of action has no relation whatsoever to the defence that may be set up by the defendant nor does it depend on the character of the relief prayed for by the plaintiff. It refers to the media upon which the plaintiff makes the Court to arrive at a conclusion in his favour.”

No bar in filing separate Damages Suit, in spite of earlier Possessory Suit

In Bharat Petroleum Corporation Ltd. v. ATM Constructions Pvt. Ltd., 2023, Supreme Court considered whether the second suit for damages, filed during the pendency of the first suit for possession, was maintainable. It is found that there is no bar in filing a separate suit for claiming damages for use and occupation, though a first suit was filed for possession. The court, inter alia, referred the following decisions:

Gurbux Singh v. Bhooralal, AIR 1964 SC 1810,
Ponnammal v. Ramamirda Aiyar (FB), ILR (1915) XXXVIII Mad 829.

Cause of action for recovery of Possession & Mesne Profits

In Ram Karan Singh v. Nakchhad Ahir, AIR 1931 All 429, and in Sadhu Singh v. Pritam Singh, (FB), ILR (1976) 1 P&H 120, it was pointed out that he cause of action for recovery of possession was not necessarily identical with the cause of action for recovery of mesne profits. (Referred to by the Supreme Court in Bharat Petroleum Corporation Ltd. v. Atm Constructions Pvt. Ltd., 2023)

In Indian Oil Corporation Ltd. v. Sudera Realty Pvt. Ltd., 2022 SCC OnLine SC 1161, it was observed (following Ram Karan Singh v. Nakchhad Ahir, AIR 1931 All 429, and Raptakos Brett and Company Limited v. Ganesh, Property, (2017) 10 SC 643) that the cause of action claiming mesne profits accrue from day to day and the cause of action is a continuing one. (Referred to by the Supreme Court in Bharat Petroleum Corporation Ltd. v. Atm Constructions Pvt. Ltd., 2023)

Pleading and Issue Necessary

In Gurbux Singh Vs. Bhooralal, AIR 1964 SC 1810, it is held as under:

“… From this analysis it would be seen that the defendant would have to establish primarily and to start with, the precise cause of action upon which the previous suit was filed, for unless there is identity between the cause of action on which the earlier suit was filed and that on which the claim in the later suit is based there would be no scope for the application of the bar. No doubt, a relief which is sought in a plaint could ordinarily be traceable to a particular cause of action but this might, by no means, be the universal rule. As the plea is a technical bar it has to be established satisfactorily and cannot be presumed merely on basis of inferential reasoning. It is for this reason that we consider that a plea of a bar under Order 2 Rule 2 of the Civil Procedure Code can be established only if the defendant files in evidence the pleadings in the previous suit and thereby proves to the Court the identity of the cause of action in the two suits……”

The Supreme Court in Alka Gupta Vs. Narender Kumar Gupta, (2010) 10 SCC 141 held as under:

“A suit cannot be dismissed as barred by Order 2 Rule 2 of the Code in the absence of a plea by the defendant to that effect and in the absence of an issue thereon.”

Does Order II Rule 2 ‘Bar’ Apply to ‘Amendments’?

In Life Insurance Corporation v. Sanjeev Builders Pvt. Limited, AIR 2022 SC 4256, it is held that the bar under Order II Rule 2 of the CPC would not apply to an application for amendment of a suit. The argument that the principle of constructive res judicata would apply was also rejected, for there would be no formal adjudication between the parties after full hearing. The apex Court approved the decision of the High Court of Delhi in Vaish Cooperative Adarsh Bank Ltd. v. Geetanjali Despande, (2003) 102 DLT 570.

It is observed in Vaish Cooperative Adarsh Bank Ltd. v. Geetanjali Despande, (2003) 102 Del LT 570, that Order II Rule 2 (2) precludes a subsequent suit on any part of claim, which had been omitted or intentionally relinquished by the plaintiff in an earlier suit based on the same cause of action. It is pointed out that Order II Rule 2 CPC enacts a rule barring a second suit and it sets to operate if there was (i) identity of cause of action in the former and subsequent suits, and (ii) formal adjudication between the parties after full hearing in the former suit. Similarly, Order II Rule 2(3) CPC also directs – where the plaintiff is entitled to more than one relief in respect of the same cause of action but omits, except with the leave of the court, one can sue for such reliefs. In this decision it is also clarified that where the claim or reliefs in the second suit were based on a distinct cause of action, Order II Rule 2 CPC would have no application; and that the field of amendment of pleadings falls far beyond its purview.

From the words that ‘bar’ under Order II Rule 2 (‘shall not afterwards sue in respect of the portion so omitted or relinquished’) it is clear that the ‘bar’ applies to subsequent “suit” alone and not to an amendment in the same suit. (Twilight Properties Pvt. Ltd. VS Supratik Bhattacharjee, 13 Nov 2019, 2019 0 Supreme(Cal) 776.)

Order II Rule 2 ‘Bars’ Reliefs; Res Judicata deals with ‘grounds of attack‘

As regards the plea of res judicata, it is held in Gurbux Singh v. Bhooralal, AIR 1964 SC 1810, as under:

“Plea of res judicata is a restraint on the right of a plaintiff to have an adjudication of his claim. The plea must be clearly established, more particularly where the bar sought is on the basis of constructive res judicata. The plaintiff who is sought to be prevented by the bar of constructive res judicata should have notice about the plea and have an opportunity to put forth his contentions against the same. In the present case, there was no plea of constructive res judicata, nor had the appellant-plaintiff an opportunity to meet the case based on such plea. Res judicata means “a thing adjudicated”, that is, an issue that is finally settled by judicial decision. The principle of constructive res judicata emerges from Explanation IV to Section 11 CPC when read with Explanation III thereof both of which explain the concept of “matter directly and substantially in issue”. In view thereof, even though a particular ground of defence or attack was not actually taken in the earlier suit, if it was capable of being taken in the second suit in view of the principle of constructive res judicata. Constructive res judicata deals with grounds of attack and defence which ought to have been raised, but not raised, whereas Order 2 Rule 2 CPC relates to reliefs which ought to have been claimed on the same cause of action but not claimed.”

NO Res Judicata on a Finding on Title in an Earlier Injunction Suit

In Sulochana Amma v. Narayanan Nair [(1994) 2 SCC 14] it is observed as under:

“The decision in earlier case on the issue between the same parties or persons under whom they claim title or litigating under the same title, it operates as a res-judicata. A plea decided even in a suit for injunction touching title between the same parties, would operate as res-judicata. It is a settled law that in a Suit for injunction when title is in issue, for the purpose of granting injunction, the issue directly and substantially arises in that suit between the parties when the same is put in issue in a later suit based on title between the same parties or their privies in a subsequent suit, the decree in injunction suit equally operates as a res-judicata.”

Anathula Sudhakar v. P. Buchi Reddy, AIR 2008 SC 2033, the Supreme Court held that where the issue of title involves complicated or complex questions of fact and law, or where court feels that parties had not proceeded on the basis that title was at issue, the court should not decide the issue of title in a suit for injunction. It is clear that findings of title in such suits are redundant so far as res judicata is concerned, The Court proceeded to hold as under:

“Where there are necessary pleadings regarding title, and appropriate issue relating to title on which parties lead evidence, if the matter involved is simple and straight-forward, the court may decide upon the issue regarding title, even in a suit for injunction. But such cases, are the exception to the normal rule that question of title will not be decided in suits for injunction. But persons having clear title and possession suing for injunction, should not be driven to the costlier and more cumbersome remedy of a suit for declaration, merely because some meddler veraciously or wrongfully makes a claim or tries to encroach upon his property. The court should use its discretion carefully to identify cases where it will enquire into title and cases where it will refer to plaintiff to a more comprehensive declaratory suit, depending upon the facts of the case.”

(Both, Sulochana Amma and Anathula are referred to in T. Ravi v. B. Chinna Narasimha, 2017-7 SCC 342)

When “Cause of Action” in a Subsequent Suit for Possession Stand Distinct

The Supreme Court held in Inacio Martins v. Narayan Hari Naik, AIR 1993 SC 1756; 1993-3 SCC 123, as under:

“The first suit was for an injunction and not for possession of the demised property. The first suit was dismissed on the technical ground that since the plaintiff was not in de facto possession no injunction could be granted and a suit for a mere declaration of status without seeking the consequential relief for possession could not lie. Once it was found that the plaintiff was not in actual physical possession of the demised property, the suit had become infructuous. The cause of action for the former suit was not based on the allegation that the possession of the plaintiff was forcibly taken sometime in the second week of June, 1968. The allegation in the former suit was that the plaintiff was a lessee and his possession was threatened and, therefore, he sought the court’s assistance to protect his possession by a prohibitory injunction. When in the course of that suit it was found that the plaintiff had in fact been dispossessed, there was no question of granting an injunction and the only relief which the court could have granted was in regard to the declaration sought which the court held could not be granted in view of the provisions of Specific Relief Act. Therefore, the cause of action for the former suit was based on an apprehension that the defendants were likely to forcibly dispossess the plaintiff. The cause of action for that suit was not on the premise that he had in fact been illegally and forcibly dispossessed and needed the court’s assistance to be restored to possession. Therefore, the subsequent suit was based on a distinct cause of action not found in the former suit and hence we do not think that the High Court was right in concluding that the suit was barred by Order 2 Rule 2(3) of the Code of Civil Procedure. It may be that the subject matter of the suit was the very same property but the cause of action was distinct and so also the relief claimed in the subsequent. suit was not identical to the relief claimed in the previous suit.”

Res Judicata, Order II Rule 2 Bar and Sec. 10 CPC

Sec. 11 CPC and Order II rule 2 CPC bar suit/relief. But, Sec. 10 CPC bars trial only. Because:

Sec. 11 CPC (Res Judicata) begins as – “No Court shall try any suit or issue”.
Order II Rule 2 bars to – “sue for any relief omitted“.
Sec. 10 CPC (Res subjudice) begins as – “No Court shall proceed with the trial of any suit“.

Res Judicata and Estoppel

Though Res Judicata is called ‘estoppel by judgment‘, res judicata differs from estoppel. Res Judicata arises from the decision of an earlier court. It ousts the jurisdiction of the court to conduct trial of the already adjudicated matters. Estoppel arises from the acts of parties and it shuts the mouth of a party. Res Judicata bars multiplicity of suits. Estoppel bars multiplicity of representations.

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Notary Attested Power-of-Attorney is Sufficient for Registration of a Deed

Should it necessarily be a Registered One? No

Saji Koduvath, Advocate, Kottayam.

Introduction

Sec. 33 of the Registration Act will NOT be attracted if the the power of attorney himself executes the document; and Sec. 33 will be attracted only when the document is “executed” by one (including a power of attorney) and “presented” through another holding “power of attorney”.

Power of Attorney Concepts in Law

In State of Rajasthan v. Basant Nehata, 2005-12 SCC 77, our Apex Court made clear the Concepts on a Power of Attorney. They are the following –

It is governed by Chapter X of the Contract Act. It is also governed by the the Powers-of-Attorney Act.
A power of attorney is, as is well known, a document of convenience.
By a power of attorney, an agent is formally appointed to act for the principal.
It is an authority upon another person; but, subject to the limitations contained in the said deed.
The agent derives a right to use the principal’s name. The donee (agent) only acts in place of the donor .
All acts, deeds and things done by done by the agent shall be read as if done by the donor.
Except in cases where power of attorney is coupled with interest, it is revocable.
The agent cannot use the power of attorney for his own benefit.
He acts in a fiduciary capacity.
Any act of infidelity or breach of trust is a matter between the donor and the donee.

State of Rajasthan v. Basant Nehata, 2005-12 SCC 77, laid down as under”

“A grant of power of attorney is essentially governed by Chapter X of the Contract Act. By reason of a deed of power of attorney, an agent is formally appointed to act for the principal in one transaction or a series of transactions or to manage the affairs of the principal generally conferring necessary authority upon another person. A deed of power of attorney is executed by the principal in favour of the agent. The agent derives a right to use his name and all acts, deeds and things done by him and subject to the limitations contained in the said deed, the same shall be read as if done by the donor. A power of attorney is, as is well known, a document of convenience. Execution of a power of attorney in terms of the provisions of the Contract Act as also the Powers-of-Attorney Act is valid. A power of attorney, we have noticed hereinbefore, is executed by the donor so as to enable the donee to act on his behalf. Except in cases where power of attorney is coupled with interest, it is revocable. The donee in exercise of his power under such power of attorney only acts in place of the donor subject of course to the powers granted to him by reason thereof. He cannot use the power of attorney for his own benefit. He acts in a fiduciary capacity. Any act of infidelity or breach of trust is a matter between the donor and the donee.”

Document can be “Presented” by Purchaser or Donee also

It is noteworthy that the document can be presented by the purchaser/vendee or donee also, as Sec. 32 directs that the document can be presented by “some person executing or claiming under the same“.

Section 33 of the Registration Act lays down that the Power-of-Attorney recognisable for purposes of Section 32 is ‘a power-of-attorney executed before and authenticated by the Registrar or Sub-Registrar within whose district or sub-district the principal resides’ (if the principal at the time of executing the power-of-attorney resides in any part of India).

Nevertheless, the expression ‘person executing’ in Section 32 is the person who actually signs or marks the document.
If the document itself is signed by the agent (a power of attorney holder), he is entitled to present the deed for registration (without a Power of Attorney executed before and authenticated by the Registrar or Sub-Registrar).
In other words, ‘a power-of-attorney executed before and authenticated by the Registrar or Sub-Registrar’ is required in the following circumstance-
- that is, the owner of the property (or his power of attorney) himself signs the deed and a power of attorney is given to another, for registering the deed.

Presumption on PoA authenticated by a Notary, or any Court, etc.

Section 85 of the Indian Evidence Act, 1872 gives ‘presumption’ on a power of attorney as given under:

85. Presumption as to powers-of-attorney.—The Court shall presume that every document purporting to be a power-of-attorney, and to have been executed before, and authenticated by, a Notary Public, or any Court, Judge, Magistrate, Indian Consul or Vice-Consul, or representative of the Central Government, was so executed and authenticated.

Rajni Tandon v. Dulal Ranjan Ghosh Dastidar

The Supreme Court elucidated the matter in Rajni Tandon v. Dulal Ranjan Ghosh Dastidar, (2009) 14 SCC 782 as under:

“26. It is important to bear in mind that one of the categories of persons who are eligible to present documents before the registration office in terms of Section 32 of the Act is the “person executing” the document. The expression “person executing” used in Section 32 of the Act, can only refer to the person who actually signs or marks the document in token of execution, whether for himself or on behalf of some other person. Thus, “person executing” as used in Section 32 (a) of the Act signifies the person actually executing the document and includes a principal who executes by means of an agent. Where a person hold a power of attorney which authorises him to execute a document as agent for someone else, and he executes a document under the terms of the power of attorney, he is, so far as the registration office is concerned, the actual executant of the document and is entitled under Section 32 (a) to present it for registration and get it registered.
33. Where a deed is executed by an agent for a principal and the same agent signs, appears and presents the deed or admits execution before the Registering Officer, that is not a case of presentation under Section 32 (c) of the Act. As mentioned earlier the provisions of Section 33 will come into play only in cases where presentation is in terms of Section 32 (c) of the Act. In other words, only in cases where the person(s) signing the document cannot present the document before the registering officer and gives a power of attorney to another to present the document that the provisions of Section 33 get attracted. It is only in such a case, that the said power of attorney has to be necessarily executed and authenticated in the manner provided under Section 33 (1) (a) of the Act.”

The Apex Court upheld the view in the following decisions, placed by the appellants:

Motilal v. Ganga Bai [AIR 1915 Nag 18],
Gopeswar Pyne v. Hem Chandra Bose [AIR 1920 Cal 316],
Mt. Aisha Bibi v. Chhajju Mal & Ors. [AIR 1924 All 148],
Sultan Ahmad Khan v. Sirajul Haque [AIR 1938 All 170],
Ram Gopal v. L. Mohan Lal [AIR 1960 Punj 226]
Sami (Goswami) Malti Vahuji Maharaj v. Purushottam Lal Poddar [AIR 1984 Cal 297].

The Apex Court observed that the interpretation of Section 32 and 33 in the following decisions was not the correct legal position.

D. Sardar Singh v. Seth Pissumal Harbhagwandas Bankers [AIR 1958 AP 107]
Abdus Samad vs. Majitan Bibi [AIR 1961 Cal 540].

The Supreme Court decision in Rajni Tandon v. Dulal Ranjan Ghosh Dastidar, (2009) 14 SCC 782, is followed in the cases below:

Beladevi Vs. Ramjanak, 2019-4 CGLJ 105;
C. P. Ashok Kumar Vs. Sub Registrar Thrithala, 2018-4 KerLT 1186;
Matadin Surajmal Rajoria Vs. Ramdwar Mahavir Pande, 2018-5 AIRBomR 739;
Dr. Ashok Mishra Vs. Ram Niwas, 2018-10 ADJ 297, 2019-142 RD 394;
Asset. Reconstruction Company (India) Limited Vs. The Inspector General Of Registration, AIR 2016 Mad 123;
Budhi Singh Vs. Ashok Kumar, 2016-2 CIVCC 80, 2015-3 HLR 1899;
International Asset Reconstruction Company Pvt Ltd Vs. State of Punjab, AIR 2013 P&H 216;
Raji Maheshkumar Vs. State of Gujarat, AIR 2013 Guj 9.
Sardar Paramjeet Singh v. Prabhat Kumar Shrivastav, (1996) MPLJ 339, (Madhya Pradesh).

Amar Nath v. Gian Chand

Sec. 33 of the Registration Act states that the ‘power-of-attorney executed before and authenticated by the Registrar or Sub-Registrar’ is necessary for presenting the document for registration ‘if the principal at the time of executing the power-of-attorney resides in any part of India’.

“24. The words “executed and authenticated in manner hereinafter mentioned” in Section 32(c) would mean the procedure specified in Section 33. This is clear from the opening words of Section 33 which reads “for the purposes of Section 32, the following power of attorney shall alone be recognised”. Section 32 refers to documents presented for registration by a holder of “power of attorney” in clause (c) and it therefore follows that the procedure specified under Section 33 would be attracted where a document is presented by a person holding “powers of attorney” of the persons mentioned in clause (a) of Section 32.
25. The aforesaid position makes it explicitly clear that Section 32 of the Act requires the documents sought to be registered, to be presented, inter alia by the person executing it. In other words, the said expression requires presence of the actual person executing the document. The basic principle underlying this provision of the Act is to get before the Sub-Registrar the actual executant who, in fact, executes the document in question. In fact, the ratio of the decision in Ram Gopal [AIR 1960 Punj 226] has laid down a similar proposition on the conjoint reading of Section 32 and Section 33 of the Act and after referring to all the judgments noted hereinbefore. Same view has been expressed earlier by the Bombay High Court in Ratilal Nathubhai v. Rasiklal Maganlal [AIR 1950 Bom 326].
26. It is important to bear in mind that one of the categories of persons who are eligible to present documents before the registration office in terms of Section 32 of the Act is the “person executing” the document. The expression “person executing” used in Section 32 of the Act, can only refer to the person who actually signs or marks the document in token of execution, whether for himself or on behalf of some other person. Thus, “person executing” as used in Section 32(a) of the Act signifies the person actually executing the document and includes a principal who executes by means of an agent. Where a person holds a power of attorney which authorises him to execute a document as agent for someone else, and he executes a document under the terms of the power of attorney, he is, so far as the registration office is concerned, the actual executant of the document and is entitled under Section 32(a) to present it for registration and get it registered.”
Note: Amar Nath v. Gian Chand, Mad LJ 2022-2 69, 2022-2 SCALE 521, 2022-2 RCR(Civil) 96 is referred to in the split verdivt in Manik Majumder v. Dipak Kumar Saha, 2023 SCC OnLine SC 37.

Provisions of the Registration Act.

Sections 17, 32 and 33 of the Registration Act are the relevant provisions. They read as under:

“Section 17. Documents of which registration is compulsory.—(l) The following documents shall be registered, if the property to which they relate is situate in a district in which, and if they have been executed on or after the date on which, Act No. XVI of 1864, or the Indian Registration Act, 1866, or the Indian Registration Act, 1871, or the Indian Registration Act, 1877, or this Act came or comes into force, namely:—

(a) instruments of gift of immovable property;
(b) other non-testamentary instruments which purport or operate to create, declare, assign, limit or extinguish, whether in present or in future, any right, title or interest, whether vested or contingent, of the value of one hundred rupees and upwards, to or in immovable property;
(c) non-testamentary instruments which acknowledge the receipt or payment of any consideration on account of the creation, declaration, assignment, limitation or extinction of any such right, title or interest; and
(d) leases of immovable property from year to year, or for any term exceeding one year, or reserving a yearly rent;
(e) non-testamentary instruments transferring or assigning any decree or order of a Court or any award when such decree or order or award purports or operates to create, declare, assign, limit or extinguish, whether in present or in future, any right, title or interest, whether vested or contingent, of the value of one hundred rupees and upwards, to or in immovable property:]
Provided that the [State Government] may, by order published in the [Official Gazette], exempt from the operation of this sub-section any lease executed in any district, or part of a district, the terms granted by which do not exceed five years and the annual rents reserved by which do not exceed fifty rupees.
(1A) The documents containing contracts to transfer for consideration, any immovable property for the purpose of section 53A of the Transfer of Property Act, 1882 shall be registered if they have been executed on or after the commencement of the Registration and Other Related laws (Amendment) Act, 2001 and if such documents are not registered on or after such commencement, then, they shall have no effect for the purposes of the said section 53A.]
(2) Nothing in clauses (b) and (c) of sub-section (l) applies to—
(i) any composition deed; or
(ii) any instrument relating to shares in a joint stock Company, notwithstanding that the assets of such Company consist in whole or in part of immovable property; or
(iii) any debenture issued by any such Company and not creating, declaring, assigning, limiting or extinguishing any right, title or interest, to or in immovable property except in so far as it entitles the holder to the security afforded by a registered instrument whereby the Company has mortgaged, conveyed or otherwise transferred the whole or part of its immovable property or any interest therein to trustees upon trust for the benefit of the holders of such debentures; or
(iv) any endorsement upon or transfer of any debenture issued by any such Company; or
(v) [any document other than the documents specified in sub-section (1A)] not itself creating, declaring, assigning, limiting or extinguishing any right, title or interest of the value of one hundred rupees and upwards to or in immovable property, but merely creating a right to obtain another document which will, when executed, create, declare, assign, limit or extinguish any such right, title or interest; or
(vi) any decree or order of a Court [except a decree or order expressed to be made on a compromise and comprising immovable property other than that which is the subject-matter of the suit or proceeding]; or
(vii) any grant of immovable property by [Government]; or
(viii) any instrument of partition made by a Revenue-Officer; or
(ix) any order granting a loan or instrument of collateral security granted under the Land Improvement Act, 1871, or the Land Improvement Loans Act, 1883; or
(x) any order granting a loan under the Agriculturists, Loans Act, 1884, or instrument for securing the repayment of a loan made under that Act; or
[(xa) any order made under the Charitable Endowments Act, 1890, (6 of 1890) vesting any property in a Treasurer of Charitable Endowments or divesting any such Treasurer of any property; or]
(xi) any endorsement on a mortgage-deed acknowledging the payment of the whole or any part of the mortgage-money, and any other receipt for payment of money due under a mortgage when the receipt does not purport to extinguish the mortgage; or
(xii) any certificate of sale granted to the purchaser of any property sold by public auction by a Civil or Revenue-Officer.
(3) Authorities to adopt a son, executed after the 1st day of January, 1872 and not conferred by a will, shall also be registered.

Section 18. Documents of which registration is optional.—Any of the following documents may be registered under this Act, namely:—

(a) instruments (other than instruments of gift and wills) which purport or operate to create, declare, assign, limit or extinguish, whether in present or in future, any right, title or interest, whether vested or contingent, of a value less then one hundred rupees, to or in immovable property;
(b) instruments acknowledging the receipt or payment of any consideration on account of the creation, declaration, assignment, limitation or extinction of any such right, title or interest;
(c) leases of immovable property for any term not exceeding one year, and leases exempted under section 17;
[(cc) instruments transferring or assigning any decree or order of a Court or any award when such decree or order or award purports or operates to create, declare, assign, limit or extinguish, whether in present or in future, any right, title or interest, whether vested or contingent, of a value less than one hundred rupees, to or in immovable property;]
(d) instruments (other than wills) which purport or operate to create, declare, assign, limit or extinguish any right, title or interest to or in movable property;
(e) wills; and
(f) all other documents not required by section 17 to be registered.”

“Section 32. Persons to present documents for registration.—Except in the cases mentioned in 1[sections 31, 88 and 89], every document to be registered under this Act, whether such registration be compulsory or optional, shall be presented at the proper registration-office,—

(a) by some person executing or claiming under the same, or, in the case of a copy of a decree or order, claiming under the decree or order, or
(b) by the representative or assign of such a person, or
(c) by the agent of such a person, representative or assign, duly authorised by power-of-attorney executed and authenticated in manner hereinafter mentioned.

Section 32-A. Compulsory affixing of photograph, etc.—Every person presenting any document at the proper registration office under section 32 shall affix his passport size photograph and fingerprints to the document:

Provided that where such document relates to the transfer of ownership of immovable property, the passport size photograph and fingerprints of each buyer and seller of such property mentioned in the document shall also be affixed to the document.]

Section 33. Power-of-attorney recognisable for purposes of section 32.— (1) For the purposes of section 32, the following powers-of-attorney shall alone be recognised, namely:—

(a) if the principal at the time of executing the power-of-attorney resides in any part of [India] in which this Act is for the time being in force, a power-of-attorney executed before and authenticated by the Registrar or Sub-Registrar within whose district or sub-district the principal resides;
(b) if the principal at the time aforesaid [resides in any part of India in which this Act is not in force], a power-of-attorney executed before and authenticated by any Magistrate;
(c) if the principal at the time aforesaid does not reside in [India], a power-of-attorney executed before and authenticated by a Notary Public, or any Court, Judge, Magistrate, [Indian] Consul or Vice-Consul, or representative [***] of the Central Government:
Provided that the following persons shall not be required to attend at any registration-office or Court for the purpose of executing any such power-of-attorney as is mentioned in clauses (a) and (b) of this section, namely:—
- (i) persons who by reason of bodily infirmity are unable without risk or serious inconvenience so to attend;
- (ii) persons who are in jail under civil or criminal process; and
- (iii) persons exempt by law from personal appearance in Court. [Explanation.—In this sub-section “India” means India, as defined in clause (28) of section 3 of the General Clauses Act, 1897 (10 of 1897).]
(2) In the case of every such person the Registrar or Sub-Registrar or Magistrate, as the case may be, if satisfied that the power-of-attorney has been voluntarily executed by the person purporting to be the principal, may attest the same without requiring his personal attendance at the office or Court aforesaid.
(3) To obtain evidence as to the voluntary nature of the execution, the Registrar or Sub-Registrar or Magistrate may either himself go to the house of the person purporting to be the principal, or to the jail in which he is confined, and examine him, or issue a commission for his examination.
(4) Any power-of-attorney mentioned in this section may be proved by the production of it without further proof when it purports on the face of it to have been executed before and authenticated by the person or Court hereinbefore mentioned in that behalf.

Adjudication as to Proper Stamp by Revenue Authorities

Section 31 of The Indian Stamp Act, 1899 speaks as under:

“31. Adjudication as to proper stamp.—
(1) When any instrument, whether executed or not and whether previously stamped or not, is brought to the Collector, and the person bringing it applies to have the opinion of that officer as to the duty (if any) with which it is chargeable, and pays a fee of such amount (not exceeding five rupees and not less than[fifty naye paise]) as the Collector may in each case direct, the Collector shall determine the duty (if any) with which, in his judgment the instrument is chargeable.
(2) For this purpose the Collector may require to be furnished with an abstract of the instrument, and also with such affidavit or other evidence as he may deem necessary to prove that all the facts and circumstances affecting the chargeability of the instrument with duty, or the amount of the duty with which it is chargeable, are fully and truly set forth therein, and may refuse to proceed upon any such application until such abstract and evidence have been furnished accordingly: Provided that—
(a) no evidence furnished in pursuance of this section shall be used against any person in any civil proceeding, except in an enquiry as to the duty with which the instrument to which it relates is chargeable; and
(b) every person by whom any such evidence is furnished, shall, on payment of the full duty with which the instrument to which it relates, is chargeable, be relieved from any penalty which he may have incurred under this Act by reason of the omission to state truly in such instrument any of the facts or circumstances aforesaid.”

If proper stamp duty Paid no Requirement of Adjudication

The Madras High Court, in Manoharan v. Velu, (1998) III M.L.J 272, held that a power of attorney executed on proper stamp need not be produced before the Collector for the purpose of certification or adjudication that the full duty with which it is chargeable has been paid.

Kerala High Court, relying on Manoharan v. Velu, it was held in Anitha Rajan v. Revenue Divisional Officer, AIR 2010 Ker 153, that it was not necessary to produce the power of attorney, even if executed outside India, for adjudication if it was sufficiently stamped. The High Court definitely held further that the Village Officer, Nattika Village erred in directing the petitioner to produce the (sufficiently stamped) original power of attorney before the Revenue Divisional Officer for adjudication under sections 31 and 32 of the Kerala Stamp Act, 1959.

See Blog: (CLICK): No Adjudication Needed If Power of Attorney is Sufficiently Stamped

Document Executed out of India – can be registered

A document executed outside India can be registered in India. Sec. 23 of the Registration Act allows it.

Note – Power of attorney is not a compulsorily registrable document.

Time Limit for Registration of Documents (executed within India)– Four Months

Time limit for registration of documents before a Sub-Registrar is four months under section 23 of the Registration Act, 1908. Time is calculated from the date of execution (signature) of the deed.

23. Time for presenting documents. Subject to the provisions contained in sections 24, 25 and 26, no document other than a will shall be accepted for registration unless presented for that purpose to the proper officer within four months from the date of its execution:
Provided that a copy a of a decree or order may be presented within four months from the day on which the decree or order was made, or, where it is appealable, within four months from the day on which it becomes final.

Registration of Documents executed out of India – Four Months from Receipt in India

The period of four months for registration (stated above) will be counted from the date of receipt of that document in India, as per Sec. 26 of the Registration Act.

Sec. 23A, 24, 25 and 26 of the Registration Act are relevant. They read as under:
23A. Re-registration of certain documents. Notwithstanding anything to the contrary contained in this Act, if in any case a document requiring registration has been accepted for registration by a Registrar or Sub-Registrar from a person not duly empowered to present the same, and has been registered, any person claiming under such document may, within four months form his first becoming aware that the registration of such document is invalid, present such document or cause the same to be presented, in accordance with the provisions of Part VI for re-registration in the office of the Registrar of the district in which the document was originally registered; and upon the Registrar being satisfied that the document was so accepted for registration from a person not duly empowered to present the same, he shall proceed to the re-registration of the document as if it has not been previously registered, and as if such presentation for re-registration was a presentation for registration made within the time allowed therefore under Part IV, and all the provisions of this Act, as to registration of documents, shall apply to such re-registration; and such document, if duly re-registered in accordance with the provisions of this section, shall be deemed to have been duly registered for all purposes from the date of its original registration
24. Documents executed by several persons at different times. Where there are several persons executing a document at different times, such document may be presented for registration and re-registration within four months from the date of each execution.
25. Provision where delay in presentation is unavoidable. (1) If, owing to urgent necessity or unavoidable accident, any document executed, or copy of a decree or order made, in India is not presented for registration till after the expiration of the time hereinbefore prescribed in that behalf, the Registrar, in cases where the delay in presentation does not exceed four months, may direct that, on payment of a fine not exceeding ten times the amount of the proper registration-fee, such document shall be accepted for registration.
(2) Any application for such direction may be lodged with a Sub-Registrar, who shall forthwith forward it to the Registrar to whom he is subordinate.
“26. Documents executed out of India. When a document purporting to have been executed by all or any of the parties out of India is not presented for registration till after the expiration of the time hereinbefore prescribed in that behalf, the registering officer, if satisfied—
(a) that the instrument was so executed, and
(b) that it has been presented for registration within four months after its arrival in India,
may, on payment of the proper registration-fee accept such document for registration.”

Registration with Penalty – within Eight Months

After four months, document can be presented within another four months to the District Registrar.

The District Registrar may impose a penalty up to a maximum of ten times the registration fees and grant permission to Sub-Registrar to register the document (as per Sec. 25 – quoted above).

Registration After Eight Months

After eight months a document can be registered if impediments like court- injunction (Raj Kumar Dey v. Tarapada Dey, AIR 1987 SC 2195), bona fide delay in collecting stamps (Nestor Builders And Developers v. State Of Maharashtra,24 June, 2015, (S.C. Dharmadhikari, J.) etc.

In Unitech Ltd. v. Telangana State Industrial Infrastructure Corpn., 2021 SCC OnLine SC 99, it is held by our Apex Court as under:

“TSIIC and the State of Telangana have brought to our notice that the Development Agreement, on the basis of which Unitech has sought to avail its contractual remedy has not been registered or assessed to stamp duty. Under Article 3.1 of the Development Agreement, the obligation of paying registration fees and stamp duty is on Unitech. It is well-settled law that the Stamp Act is a fiscal measure enacted to secure the revenue for the State, and not to arm the opponent with a weapon of technicality. Unitech’s claim to compensatory payment cannot be defeated on the sole ground of the payment of stamp duty. The Development Agreement shall have to be impounded and be presented to the Chief Controlling Revenue Authority in the State of Telangana for assessment of stamp duty and to the competent authority for registration. The assessment shall be completed within thirty days. The appropriate stamp duty and registration charges liable to be paid in terms of the determination shall be paid by TSIIC and be deducted from the refund due and payable to Unitech under the terms of this order.”

End-words – There is no no meaning in ‘complaining’, as-per-law

From experience we see – when one points out the ‘law’ to the officers of the Registration Department in India, most of them get irritated. The reasons are evident; and the root-cause is known to everybody who approached a registration office for registration of a deed. The top executive machinery wink at their illegal deeds. If the registration proceedings are simplified, the illegalities will be stopped within a day. The stamp-duty for various documents are to be made reasonable also; and one should not be ‘compelled’ to make false statement as to ‘consideration’ in the documents. It is definite – the power-bodies will not do it. As in other fields, the rap has to begin from the ‘top’. (When the matters are clear to everybody – police, vigilance and even courts – mark, there is no no meaning in ‘complaining’, as-per-law!)

Should a Power of Attorney be Compulsorily Registered

Those Power of Attorneys that fall under clause (b) of Sec. 17(1) Registration Act alone requires registration. Sec. 17(1)(b) reads as under:

“(b) other non-testamentary instruments which purport or operate to create, declare, assign, limit or extinguish, whether in present or in future, any right, title or interest, whether vested or contingent, of the value of one hundred rupees and upwards, to or in immovable property”

Power of Attorney “coupled with interest”

A Power of Attorney that is “coupled with interest” requires registration.

E.g., if the power of attorney is issued by the owner after obtaining entire sale consideration from the holder of power of attorney, and if (in fact) it set-forth a “sale of property”, it falls under the category ‘power of attorney coupled with interest’. (See as to ‘General-Power-of-Attorney-sale’: Suraj Lamp and Industries P. Limited v. State of Haryana, (2012) 1 SCC 656).

Kerala Amendment to Sec. 17(1)(g)

Registration Act, Kerala Amendment, Sec. 17(1)(g), requires registration for development, transfer etc. relating to immovable property, except for exempted categories. (It is introduced because it is not a general rule that all power of attorneys for ‘transfer‘ must have been registered.) Sec. 17(1)(g) reads as under:

(g) Power of attorney creating any power or right of management, administration, development, transfer or any other transaction relating to immovable property of the value of one hundred rupees and upwards other than those executed in favour of father, mother, wife, husband, son, adopted son, daughter, adopted daughter, brother, sister, son-in-law or daughter-in-law of the executant.
See: Cherryl Ann Joy v. Sub Registrar, Udumbanchola, Idukki District, ILR 2018-3 Ker 540.

But, in Lachchhiram v Imrati, 2017-2 RN 117, it is held that for registration of a deed, registered power of attorney is needed (relying on – obiter – Manjunath Anandappa Urf Shivappa Hanasi v. Tammanasa, (2003)10 SCC 390).

Read in this cluster (Click on the topic):

Civil Suits: Procedure & Principles

Evidence Act

Constitution

Contract Act

Easement

Club/Society

Trusts/Religion

Sec. 91 CPC and Suits Against Wrongful Acts

Saji Koduvath.

Suits against Wrongful Acts: Relevant statutory provisions

Following are the elemental provisions of law concerning the jurisdiction of the civil court in the matters under consideration.

Section 9 of the Civil Procedure Code
Section 91 of the Civil Procedure Code
Secs.38 and 39 of the Specific Relief Act

Sec. 9 of Code of Civil Procedure says as under:

“9. Courts to try all civil suits unless barred.The court shall (subject to the provisions herein contained) have jurisdiction to try all suits of a civil nature excepting suits of which their cognisance is either expressly or impliedly barred.”

Section 91 of the Civil Procedure Code reads as under:

Public nuisances and other wrongful acts affecting the public: (1) in the case of a public nuisance or other wrongful act affecting, or likely to affect, the public, a suit for a declaration and injunction or for such other relief as may be appropriate in the circumstances of the case, may be instituted,-
(a) by the Advocate General, or
(b) with the leave of the Court, by two or more persons, even though no special damage has been caused to such persons by reason of such public nuisance or other wrongful act.
(2) Nothing in this section shall be deemed to limit or otherwise affect any right of suit which may exist independently of its provisions.

Sec. 38 and 39 of Code of Civil Procedure reads as under:

38. Perpetual injunction when granted: (1) Subject to the other provisions contained in or referred to by this Chapter, a perpetual injunction may be granted to the plaintiff to prevent the breach of an obligation existing in his favour, whether expressly or by implication. (2) When any such obligation arises from contract, the court shall be guided by the rules and provisions contained in Chapter II. (3) When the defendant invades or threatens to invade the plaintiff’s right to, or enjoyment of, property, the court may grant a perpetual injunction in the following cases, namely:- (a) where the defendant is trustee of the property for the plaintiff; (b) where there exists no standard for ascertaining the actual damage caused, or likely to be caused, by the invasion; (c) where the invasion is such that compensation in money would not afford adequate relief; (d) where the injunction is necessary to prevent a multiplicity of judicial proceedings.
39. Mandatory injunctions: When, to prevent the breach of an obligation, it is necessary to compel the performance of certain acts which the court is capable of enforcing, the court may in its discretion grant an injunction to prevent the breach complained of, and also to compel performance of the requisite acts.

Bar of Jurisdiction and Common Law Right

Under section 9 of the CPC, the civil courts will have plenary jurisdiction to try all suits of civil nature, unless the same is expressly or impliedly barred. It is trite law that where the statute neither creates a particular right or liability nor provides any remedy or forum for adjudication of any dispute arising out or such right or liability, there will be no ouster of the civil courts jurisdiction. See: Saraswathi v. Lachanna, (1994)1 S.C.C. 611.

Willes, J, in Volverhomton New Water Works Co. v. Hawkes Ford, expressed his view on jurisdiction of courts as under:

“…..where there is liability existing at common law and that liability is affirmed by a statute which gives a special and peculiar form of remedy different from the remedy which existed at common law…..unless the statute contains words which expressly or by necessary implication exclude the common law remedy the party suing has election to pursue either that or the statutory remedy”.(Quoted in: Musstt Anjira Khatoon Hazarika VS Tapan Kumar Das, 2015-1 GauLR 133).

Relying on the Privy Council decision in Secretary of State v. Mask & Co., AIR 1940 PC 43 and the Apex Court decisions in Firm Seth Radhakishan v. Administrator, Municipal Committee, Ludhiana, AIR 1963 SC 1547 and Premier Automobiles Ltd. v. Kamlakar Shantnram, AIR 1975 SC 2238, The Gauhati High Court, in Musstt Anjira Khatoon Hazarika VS Tapan Kumar Das, 2015-1 GauLR 133, summarised the legal position as under:

“Applying the ratio of the aforesaid judicial pronouncements the law that emerges is that if a special right is created by a statute and there is procedure for enforcement of such right and that such right did not exist prior to enactment of the special statute, in that event irrespective of whether there is express ouster of civil court’s jurisdiction or not, the jurisdiction of the civil court would stand automatically barred. Of course, in that case also, if there is violation of the principles of natural justice or there is violation of the procedure prescribed under the statute which bars jurisdiction of civil court, in that event instead of express ouster, civil court shall have jurisdiction to entertain a suit. However, if such right was in existence in common law prior to the enactment of the special law, the plaintiff shall have right to elect the forum.”

‘An illegality cannot be cured only because it was undertaken by the Government‘

In Bangalore Medical Trust v. B. S. Muddappa, AIR 1991 SC 1902, the Apex Court (RM Sahai, J.) considered the legality of leasing out a Public Park into private nursing home for a long period. It was observed that an illegality cannot be cured only because it was undertaken by the Government; and that an illegality or any action contrary to law does not become in accordance with law because it is done at the behest of the Chief Executive of the State. It was also pointed out that no one is above law; and that in a democracy what prevails are law and rule and not the height of the person exercising the power.

Construction in Violation of Municipal Building Regulation

A person who is affected by neighbour’s illegal construction which is in infraction of a Municipal regulation will have the locus to maintain a suit for perpetual injunction. The Kerala High Court, in Saina v. Konderi, AIR 1984 Ker 170, turned down the argument that the matters concerning violation of the Municipal Rules are entirely rest in the look-out of the local authority. It was observed that unless, by express words or by necessary implication, he is debarred (Sec. 9 CPC) from doing so, the civil court would have jurisdiction if there was violation of Building Rules. Finally, it is held that the law recognises a citizen’s right to institute a suit with a view to ensure effective implementation of the Municipal regulations, such as the Buildings Rules, even in the absence of a specific personal injury to the person suing. The High Court quoted Lord Wright in (1868) 4 Ex. 43 where it was said:

“If you have an infringement of a legal right there is a right of action without actual damage being proved…. Where you have an interference with a legal right, the law presumes damage.”

Referring the Kerala decision, it is observed in Sindhu Education Society v. Municipal Corporation of City of Ulhasnagar, AIR 2001 Bom 145 and in Fatima w/o Caetano Joao v. Village Panchayat of Merces, AIR 2000 Bom 444, it was observed that the citizens will have the right to enforce Rules through Court if the Municipal Corporation fails to perform its duty and that courts in India has the duty to see that the law is obeyed and not violated.

(See also: Babulal Shivlal Upadhye v. Yadav Atmaram Joshi, 1994-2 Bom CR 583; 1994-2 MahLR 869; 1994-1 MhLJ 256;
D. Thomas v. N. Thomas1999-2 MLJ 260;
Musstt Anjira Khatoon Hazarika v. Tapan Kumar Das: 2015-1 GauLR 133.)

In K. Ramdas Shenoy v. Chief Officer, Town Municipal Council, Udipi, AIR 1974 SC 2177, the Apex Court held as follows:

“An illegal construction of a cinema building materially affects the right to of enjoyment of the property by persons residing in the residential area. The Municipal Authorities owe a duty and obligation under the statute to see that the residential areas is not spoilt by unauthorized construction. The scheme is for the benefit of the residents of the locality. The Municipality acts in aid of the scheme. The rights of the residents in the area are invaded by an illegal construction of a cinema building. It has to be remembered that a scheme in residential area means planned orderliness in accordance with the requirements of the residents. If the scheme is nullified by arbitrary acts in excess and derogation of the powers of the Municipality the courts will quash orders passed by Municipalities in such cases.”

Andhra Pradesh High Court in Bhagwan Das v. Harish ChetwalIt held as under, as appears from the reported judgment, Sarada Bai v. Shakuntala Bai, AIR 1993 AP 20 it was held as under:

“The pronouncement of the Supreme Court in K.R. Shenoy v. Udipi Municipality emboldens us to take a view at variance with the one expressed by a Division Bench of this Court in Kamalamma v. Subba Rao and so hold that an individual, be he a neighbour or one of a class of persons where the infraction of a right is involved and complained of, is certainly clothed with a right to invoke the jurisdiction of a Civil Court not only to enforce the obligations and duties was on the concerned authorities, but also subject the individual or class of individuals to conform to the obligations of the statute.
If that be so, it presents no difficulty in answering one of the questions raised in this case, viz., whether it would be competent for the neighbour, namely, the petitioners herein to enforce the obligation cast on the Municipal Corporation to remove the structures constructed in contravention of the statutory provisions; and to seek a direction against an individual, plaintiff herein to conform to the obligation laid down in Chapter XII of the Act and to demolish any construction made in contravention thereof, either by way of a civil proceeding or seeking mandamus under Article 226 of the Constitution. The answer is quite apparent and it is in the affirmative.”

Liquor Shop causing Public Nuisance

The question that required consideration in D. Thomas v. N. Thomas, 1999-2 MLJ 260 was whether the civil court had jurisdiction to entertain suit for permanent prohibitory injunction restraining defendants from conducting a liquor shop for apprehended injury of public nuisance to the residents of locality. The plaintiffs filed the suit in representative capacity under Order 1, Rule 8 of the CPC. The defendants resisted the suit on the ground that the suit was barred under Sec. 56 of Tamil Nadu Prohibition Act. In this decision the court held as under:

“Under Specific Relief Act, a suit to prevent the nuisance is maintainable under Secs.38 and 39. Plaintiff is also entitled to file a suit for perpetual prohibitory and mandatory injunction from causing any nuisance. Nuisance is an act of omission which is an interference with, disturbance of or annoyance to a person in the exercise or enjoyment of (a) a right belonging to him as a member of the public, when it is a public nuisance, or (b) his ownership or occupation of land or of some easement, quasi-easement, or other right used or enjoyed in connection with land, when it is a private nuisance.
Whether it is public or private, it is common law right and the suit to prevent the occurrence of nuisance is also a suit of civil nature. So the enforcement of such civil right can had through court.”
“Plaintiffs are not claiming any right under Tamil Nadu Prohibition Act and what want to enforce is only a common law right. I do not find any prohibition under Tamil Nadu Prohibition Act that the common law right to prevent a nuisance is taken away by any other provisions of Prohibition Act. Plaintiffs are not claiming any right by virtue of statute which creates a right for do they want enforcement of such a right created by statute. To prevent a person from committing nuisance is all along a common law right and that could be enforced de hors the enactment of Tamil Nadu Prohibition Act.

Forum for Enforcement of Right like Avoidance of Nuisance

It was held in Saraswathi v. Lachanna (1994)1 S.C.C. 611, while considering bar of suit, the court had to see where a particular act creates a right and also provides a forum for enforcement of such right and bars the jurisdiction of the civil court, then ouster of the civil court jurisdiction had to be upheld. But the situation will be different where the statute neither creates the right in question nor provides any remedy or having created any right or liability no forum for adjudication of any dispute arising out or such right or liability is provided. In such a situation, the ouster of the civil courts jurisdiction is not to be easily inferred.

‘Wrongful Acts’ in Sec. 91 CPC, inserted by 1976 Amendment of the CPC

It is clear that the purport of insertion of the words “other other wrongful act affecting, or likely to affect the public”, in 1976 amendment of the CPC, is to bring in all wrongful acts, which affect the public or that may affect in future, within the ambit of Sec. 91. It is definite that this clause stands independent from ‘nuisance‘, already contained in this Section.

In Adani Wilmar Ltd. Vs. A S Hansraj, 2018-4 Mad LJ641, the Madras High Court held as under:

“The scope of a suit filed under Section 91 CPC by the very language used in the provision gives a very wide amplitude. A plain reading of the Section would go to show that in case of a “public nuisance” or other “wrongful acts” affecting, or likely to affect the public, false within the scope of Section 91(1) CPC. The word “other” also assumes significance as it clearly drawn a distinction from the word “public nuisance”. Similarly the words “likely to affect” taken within its sweep will include any possible act in future. Thus, the overwhelming factor is that of public interest. This is once again made clear by dispensing with the personnel injury termed “special damage”. Two or more persons can file a suit on this nature with the leave of the Court even though no special damage has been caused to such persons by reason of such “public nuisance” or “other wrongful acts”. In our considered opinion, even an advertisement which is likely to affect the public at large can fall within the scope of Section 91 CPC. Taking into consideration the intention of the legislature enabling the filing of a suit by any two persons, after getting the leave of the Court, whenever any act causes “public nuisance” or “other wrongful acts” affecting or likely to affect the public and also taking into consideration the wide amplitude of the language used under Section 91 CPC, this Court cannot give a restricted meaning as sought to be projected by the learned senior counsel for the appellants. The provisions of Section 91 CPC is an important tool for remedying the grievances of a large number of individuals who cannot file independent suits. Such an important right guaranteed under the said provision cannot be defeated by giving it a restrictive interpretation.”

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Vesting of Property in Trusts

Saji Koduvath, Advocate, Kottayam.

Abstract

Generally speaking, the legal ownership of trust property vests in trustees.
But, in case of a property of a legal person, such as temple, Math, etc., the legal ownership thereof vests with that legal person.
In English Law there is ‘duel ownership’ upon a trust property; ie., the legal or trust ownership. It is not followed in India. In India the ‘eqiotable ownership’ is not accepted.
The vesting of property is subject to the basic principles of foundation laid down by the author.

Introduction

English Law asserts ‘duel ownership’ upon a trust property; ie., the legal or trust ownership[1] vested with the trustee; and real, equitable or beneficial ownership, with the beneficiaries or the cestui que trust.

Merely because the property is vested in the trustee as the legal owner, he is not the full owner of the property in the real sense of the term; because, the beneficial interest (is, ‘proprietary interest’ or interest pertaining to owner) and equitable ownership are carved out in the property. Similarly, the ‘real’ or beneficial ownership with the beneficiary is not the ‘proprietary interest’ pertaining to an owner; but, it is interest pertaining to beneficiaries.

No ‘Equitable Ownership’ With Beneficiaries under Indian Law

But, Indian Law does not recognize legal and equitable estates. [2] There is no ‘equitable/beneficial ownership’ with the beneficiaries as per the Common Law of trust predicated by courts in India and under the Indian Trusts Act, in both public and private trusts. Beneficiaries have, under Indian Law, only beneficial[3] interest.[4] It is not the interest that pertains to (true) owner.

Inasmuch as idols, and trusts like Mutts, are considered as juristic persons by virtue of legal fiction imposed by Common Law of India, exploration of actual vesting of ownership of trust property has much significance.

Property Vests in the ‘Legal Ownership’ of the Trustees

Salmond on Jurisprudence[5] reads as under:

“A trustee is the legal owner of the property, the actual owner thereof having lost title thereto by the creation of a trust.”

As per the definition of trust in the Indian Trusts Act, ‘a trust is (i) an obligation annexed to the ownership of property and (ii) arising out of a confidence accepted by the owner’. Because the obligation upon the trustee is to administer the trust property, and the obligation is ‘annexed to the ownership of property’, the administration by the trustee is, is as its (legal) owner. When the ‘beneficial interest or interest’ is defined, it is explained that the ‘beneficial interest’ or ‘interest’ of the beneficiary is his right against the trustee ‘as owner of the trust property’.

Because the obligation upon the trustee is to administer the trust property, and the obligation is ‘annexed to the ownership of property’, the administration by the trustee is, is as its (legal) owner.

Read Blog: Indian Law Does Not Accept Salmond, as to Dual Ownership

Inasmuch as the vesting of ownership of trust property with the trustee is under an obligation to manage it for the benefit of the beneficiaries, the trust property vests in the ‘legal ownership’ of the trustees;[6] and not in their absolute or actual ownership, as observed in Kansara Abdulrehman Sadruddin Vs. Trustees of the Maniar Jamat Ahmedabad.[7]. The actual owner loses his title thereto by the creation of a trust[8]. But, in case of a property of a legal person, such as temple, Math, etc., the legal ownership thereof vests with that legal person.[9]

The ingredients of trust stated in the former part of Section 6 (ie. intention, purpose, beneficiary and property), are the legal requirements for endowments also. The differentiating particularity of trust is the ‘transfer of the trust-property to the trustee’. From Sections 10 and 75 of the Indian Trust Act, 1882 it is clear that the (legal) ‘ownership’ of trust property vests with the trustee.

Sec. 10 reads as under:

10. ….. Disclaimer of trust.—Instead of accepting a trust, the intended trustee may, within a reasonable period, disclaim it, and such disclaimer shall prevent the trust property from vesting in him. A disclaimer by one of two or more co-trustees vests the trust property in the other or others and makes him or them sole trustee or trustees from the date of the creation of the trust.

Sec. 75 of the Indian Trust Act, 1882 reads:

75. Vesting of trust property in new trustees.—Whenever any new trustee is appointed under section 73 or section 74, all the trust property for the time being vested in the surviving or continuing trustees or trustee, or in the legal representative of any trustee, shall become vested in such new trustee, either solely or jointly with the surviving or continuing trustees or trustee, as the case may require.

Vesting of Property Held by Associations and Public Trusts

In law, vesting of property is of two kinds.

Vesting for management
Vesting of ownership.

Vesting for management:

Under Common-Law of trusts in India, properties of associations of people and public trust properties vest for management with the administrators known as managers, trustees, governing bodies, directors, Shebaits, Dharmakarthas, etc. The persons in management have a fiduciary duty to perform the obligations they had undertaken.

Vesting of Ownership:

There may be no difficulty, in case of a legal entity, such as an idol or a mutt, to determine the person in whom the legal ownership of property vests. But, even in such cases, a further question may arise – inasmuch as the vesting of property in a legal person is only in an ‘ideal sense’ – in whom the actual or ultimate ownership vests.

General Propositions as to Vesting of Trust Property

‘Ultimate Vesting’: No Practical Importance in Public Trust

The enquiry as to actual or ultimate vesting of ownership of a public trust property (beyond the vesting of the legal ownership) may be commented upon as superfluous, if not redundant, inasmuch as it is a basic principle that ‘once a trust is always trust’[10]; and therefore, the law does not envisage such an enquiry.

When dedication of property is for the benefit of public, either for religious purposes or for other matters, it is irrevocable. If the endowment created by the dedication is a legal person the dedicated property vests in such person. If the same is not a legal person, the terms of dedication (as revealed from the deed, if any, or other evidence) determine the person or body of persons in whom/which such property ultimately vest in.

In most cases of public trusts, the ‘ultimate vesting’ may not be a matter of practical importance; because, the endowment will be permanent and indivisible; and court takes cognizance, when practical difficulties come to carry-on the object of the trust, by applying cy-pres doctrine or by invoking its statutory/inherent jurisdiction.

It is held in Syed Mohammad Salie Labbai Vs. Mohd Hanifa[11] that once a Kabarstan has been held to be a public graveyard then it vests in the public and constitutes a wakf and it cannot be divested by nonuser but will always continue to be so whether it is used or not.

But, the nature of vesting of actual ownership of property held by Associations of persons and trusts may be risen up for consideration, while a dissention or valid claim for separation arises or if there could be a lawful winding-up or dissolution. Where the property continues to be that of the Society, change in office bearers who control of management of the Society cannot amount to creation of third party interest in or transfer of property of Society. The same does not amount to creation of any rights in the property of Society in favour of changed management inasmuch as the assets continue to be enjoyed by the Society and the new management does not acquire any personal interest in the assets.

No Trust upon the “Property Belonging to a Society”: Exceptions

A trust cannot be created upon the “property belonging to a society”. But this proposition is subject to certain qualifications.

That is, certain properties held by a Society may be that vest with the Society only for administration – E.g., (i) where a charitable association is established, after a valid ‘dedication‘ of property – for the enjoyment of the public – by a group of persons, for the administration of the dedicated property (or the trust); (ii) a society formed with the object of dedicating property for a public charitable purpose; (iii) a Society is formed by the beneficiaries for administering a charitable institution (already) established by valid ‘dedication‘ of property.

Vesting is Subject to Basic Principles of Foundation

The vesting of trust property is always subject to the basic principles of the foundation laid down by the author/founder of the trust. In proper cases, courts enquire, based on evidence, what were the true ‘basic principles of foundation’. The nature of vesting of actual ownership, and the basic principles of its foundation (beyond legal ownership which vests in the trustees, or beyond the ‘ideal ownership’ vested in a legal person), differ according to the nature of the trust.

We can take cue from the following observations of Dr. BK Mukherjea, J., on Hindu Law of Religious and Charitable Trusts:[12]

“The idol as representing and embodying the spiritual purpose of the donor is the juristic person recognized by law and in this juristic person the dedicated property vests.”[13]

It is further explained in by Dr. Mukherjea, J. as under:

“… ‘The dedication to deity’, said Sir Lawrence Jenkins in Bhupati Vs. Ramlal, ILR 37 Cal. 128, ‘is nothing but a compendious expression of the pious purpose for which the dedication is designed’. It is not only a compendious expression but a material embodiment of the pious purpose and though there is difficulty in holding that property can reside in the aim or purpose itself, it would be quite consistent with sound principles of Jurisprudence to say that a material object which represents or symbolises a particular purpose can be given the status of a legal person, and regarded as owner of the property which is dedicated to it”.[14]

Is Trust a ‘Living Person’ under S. 5 of the TP Act

Can transfer of property be made to or by Trusts/Associations

Sec. 5 of the TP Act reads as under:

5. “Transfer of property” defined: In the following sections “transfer of property” means an act by which a living person conveys property, in present or in future, to one or more other living persons, or to himself and one or more other living persons; and “to transfer property” is to perform such act.
In this section “living person” includes a company or association or body of individuals, whether incorporated or not, but nothing herein contained shall affect any law for the time being in force relating to transfer of property to or by companies, associations or bodies of individuals.

Two views are possible from the 2^nd paragraph of Sec. 5: First, all unregistered associations are ‘living persons’ by this inclusive definition. Second, by virtue of the decisive and directive clause – ‘nothing herein contained shall affect any law for the time being in force relating to transfer of property’ – juristic persons alone can be brought-in as ‘living persons’.

The accepted and authoritative view is that companies, incorporated clubs, statutory bodies etc. alone can be considered as ‘living persons’ under Sec. 5. The laws in force accept only ‘juristic persons’, other than individuals, as ‘living persons’ capable of holding/possessing and transferring properties. Therefore, unincorporated or unregistered associations of individuals cannot take benefit of this provision. It is authoritatively pointed out that the first limb of the second part of Sec. 5 –‘living person’ includes a company or association or body of individuals – cannot stand independent from the latter regulative part (‘nothing herein contained shall affect any law for the time being in force relating to transfer of property’). Usha Rani Kundu Vs. Agradut Sangha (2006) 3 Cal LT 139; 2006 (3) CHN 77, eruditely exposes this explanation.

It is now settled law that though an idol is considered by a fiction of law as a juristic person clothed for some purposes with rights of persons, it is not a living person for the purpose of the Transfer of Property Act.

Note: Order 31 rule 1 CPC also makes it clear – a trust is not a legal person. It enables to file a suit by (or be sued) a trustee concerning ‘property vested in trustees’.

“Bodies of individuals” in Sec. 5, TP Act

It may also be pointed out that, “Bodies of individuals” in Sec. 5, TP Act (transfer to – “living person” includes a company or association or body of individuals) is wide in meaning; and it stands independent. It is broad enough to take-in ‘Beneficiaries’ of a Trust.

Can ‘Law for the Time Being in Force’ Include ‘Common Law’

‘Law for the time being in force’ in Sec. 5 TP Act includes “common law”. It is a reality: the common law of our country accepts as valid the ‘transfer of property’ made to or effected by well-known institutions, organisations, and associations attached to well reputed trusts, institutions etc., though they are not juristic-persons in its strict sense. Our courts sumptuously refer to such deeds as documents executed by or in favour of such entities, when they are referred to as exhibits. For example:

Settlement deed by Ashramam–Swayam Prakash Ashramam Vs. G Anandavally Amma : AIR 2010 SC 622;
Settlement to trust – S N Mathur Vs. Board of Revenue: 2009-13 SCC 301;
Sale deed by unregistered society – Suresh s/o. Bhagwanrao Puri Vs. State of Maharashtra: 2016-3 AIR Bom R (Cri.) 603;
Gift to unregistered Association – Pullamma Vs. Valmiki Anna Satram: 1984-2 ALT 157;
Sale deed to an association – K. Kala Vs. Dist Registrar, Madurai: 2016 3 MLJ 50,
Sale deed to an association – State of Punjab Vs. Amolak Ram Kapoor: [1990] 79 STC 315; ILR1991- 2 P&H 218.
Sale deed to an association – Asst. Commr. Vs. Shivalingawwa: ILR 2003 Kar 2855;
Lease deed by trust to school – TNP Mothoo Natarajan Vs. PV Ravi: 2015-2 MLJ (Cri.) 656;
Lease deed by a firm -2014-3 ALT 46;
Settlement deed to private trust –Kolli Venkata Raja Vs. Govt. of AP: 2014-1 ALT 155;
Lease deed to a public trust –Nadigar Sangham Charitable Trust, rep. by its managing Trustee, R. Sarathkumar Vs. S. Murugan:2013-1 MLJ 433;
Sale deed to Board of Trustees – Commissioner of Income Tax Vs. Chemists and Druggists Association Building Trust: 1995-215 ITR(Mad) 741;
Mortgage deed by a College – Sonar Bangla Bank Vs. Calcutta Engineering College: AIR 1960 Cal 450.

Similarly, the registration and revenue authorities, without objection, register deeds relating to such properties in the names of such institutions, associations etc.

It was held by our Apex Court in Kamaraju Venkata Krishna Rao Vs. Sub Collector, Ongole, AIR 1969 SC 563, that, under Hindu Law, a tank can be an object of charity and when a dedication was made in favour of a tank, the same was considered as a charitable institution. Without deciding whether that institution can also be considered as a juristic person, it was held that the same had to be registered in its name (ie., in the name of the tank) in the Inam register though it had continue to be managed by its Manager.

It is also noteworthy that Salmond on Jurisprudence reads: “Legal persons, being the arbitrary creations of the law, may be of as many kinds as the law pleases.”

Read Blog: Dedication of Property in Public Trusts

Vesting of Actual Ownership of Property of an Association

Ownership of property of a club vests in its members. Salmond on Jurisprudence reads as under:[15]

“The Club property is the joint property of the members, though in fact, it is often held by trustees on behalf of the members.”

Halsbury’s Law of England lays down:[16]

“Unincorporated members’ clubs. – An unincorporated members’ club is a society of persons each of whom contributes to the funds out of which the expenses of conducting the society are paid. ……. Subject to any rule to the contrary, the property and funds of the club belong to the members of the time being jointly in equal shares. “

A society is the compendium of its members and its property is the ‘joint property’ held by the members as ‘joint tenants’ (as opposed to ‘tenants in common’, till a decision is taken for dissolution).

If objectives of foundation of a society envisioned permanency; or preservation of its property is mandated for the benefit of its future members also (and therefore encumbered with obligations attached to ‘trust’), the members of a particular time cannot deal with the property disregarding its objectives of foundation.

Gift on Trust for Future and Existing Members: Cannot Appropriate

Underhill, in his treatise ‘Law of Trusts and Trustees’, explained it thus:

“However, the crucial difference surely is that no absolutely entitled members exist if the gift is on trust for future and existing members, always being for the members of the association for the time being. The members for the time being cannot under the association rules appropriate trust property for themselves for there would then be no property held on trust as intended by the testator for those persons who some years later happened to be the members of the association for the time being.” [17]

Tudor on Charities reads:

“A gift to a parish church is construed to be a gift to the parson and parishioners of that parish and their successors forever.”[18]

Vesting of Ownership of Trust/Association Property

The following propositions can be presented as to the vesting of ownership of the trust-property and the property held by an association.

In most cases of public trusts, the ‘ultimate vesting’ may not be a matter of practical importance; because, the endowment will be permanent and indivisible; and court takes cognizance, when practical difficulties come to carry on the object of the trust, by applying cy pres doctrine or by invoking its statutory/inherent jurisdiction.
The terms of dedication (as revealed from the deed of dedication, if any, or on other substantial evidence) determine the person or body of persons in whom/which such property ultimately vest in.
If the ownership of the property of a trust vests in a legal person, such vesting is permanent (thereby it cannot be put to an end), and is subject to the purpose envisaged by the founder, as revealed from the document of foundation or byelaws, if any.
If the property is that of an association and the members thereof are ascertainable (as in the case of a society) the actual ownership of the property will be presumed to be vested with those members (from time-to-time), only as joint owners (contra-distinct to ownership under tenants-in-common).
If the property is one dedicated to public so as to form a public trust and beneficiaries are unascertainable (as in the case of a political party or a Church) the property ultimately vests with the entire members (of such Association or Church), from time to time, permanently (thereby it cannot be put to an end), subject to its objectives, as revealed from the document of foundation or byelaws, if any.
If the subject matter of a trust is one partially dedicated to public at large or a section of public (as in the case of a waiting shed or a public well)by a known person and administered and maintained by himself or another person, the property will continue to vest with the owner.
If the subject matter of the trust is dedicated to public at large or a section of public, the title of such subject matter stands separated from the owner and vests in public or a section of public who are the beneficiaries, subject to the objectives of foundation, as established by evidence or as revealed from the deed of foundation or byelaws, if any.

Two (Kinds of) “Trusts” over the Parish or Branch Property

One Property, Several Trusts Possible

Trust is a general term used in wider sense in law. Therefore –

If a property is acquired by a branch of a larger body, or a parish of a Church, the entire members of the larger body, from time to time, will be presumed to be the owners, subject to (i) the byelaws of the (entire) association or trust and (ii) the purposes or objectives ‘aimed to achieve’ by that particular property.
If the bylaws (expressly or by necessary implication) provides for special beneficial enjoyment by the members of the branch or parish, over the branch/parish properties, definitely there will be two (kinds of) “trusts” over the same property – one, trust for the beneficial enjoyment of whole body; and the other, for the members of the branch/parish.

Are Shebait, Mahant, Mutawalli etc. Trustees in ‘True Sense’?

It is trite law that dedicated property of a temple will be vested with the idol as the legal owner thereof, though such vesting is qualified to be in an ‘ideal or secondary sense’ (Bhupathi Nath v. Ramlal Maitra: ILR 37 Cal. 128) and the possession and management thereof will be with some human being identified as Shebait or Manager, though in the strict legal sense, they cannot be accepted as trustees.

In Wali Mohammed v. Rahmat Bee, (1999- 3 SCC 145), to the question whether the Mutawalli of a Wakf would be a trustee, our Apex Court observed as under:

“35. It will be seen that the main part of Sec. 10 (Limitation Act) states that no period of limitation applies for recovery of property from a trustee in whom the property is vested for a specific purpose, unless such a person is an assignee for valuable consideration. The Explanation further states that it shall be deemed that a person managing the property of a Hindu, Muslim or Buddhist religious or charitable endowment is to be deemed to be a trustee in whom such property has vested for a specific purpose. We shall explain these provisions in some detail.
36. In Vidya Varuthi Thirtha Swamigal v. Baluswami Ayyar [AIR 1922 PC 123 : ILR 44 Mad 831] the Privy Council held that property comprised in a Hindu or Mohammedan religious or charitable endowment was not property vested in trust for a specific purpose within the meaning of the said words in the main section. The reason was that according to the customary law, where property was dedicated to a Hindu idol or mutt or to a Mohammedan wakf, the property vested in the idol or the institution or God, as the case may be, directly and that the shebait, mahant, mutawalli or other person who was in charge of the institution was simply a manager on behalf of the institution. As Sec. 10 did not apply unless these persons were trustees this judgment made recovery of properties of the above trusts from donees, from these managers, rather difficult.
37. The legislature therefore intervened and amended Sec. 10 for the purpose of getting over the effect of the above judgment. The Statement of Objects and Reasons to the Bill of 1929 makes this clear. It says: “The (Civil Justice) Committee’s recommendation refers, it is understood, to the decisions of the Privy Council in Vidya Varuthi v. Baluswami [AIR 1922 PC 123 : ILR 44 Mad 831] and Abdur Rahim v. Narayan Das Aurora [(1922) 50 IA 84] which lay down that a dharmakarta, mahant or manager of a Hindu religious property or the mutawalli or sajjadanashin in whom the management of Mohammedan religious endowment is vested, are not trustees within the meaning of the words as used in Sec. 10 of the Limitation Act, for the reason that the property does not vest in them. The result is that when a suit is brought against a person, not being an assignee for valuable consideration, endowments of this nature are not protected. The Committee’s recommendation is that Sec. 10 of the Limitation Act should be amended so as to put Hindu and Mohammedan religious endowments on the same footing as other trust funds which definitely vest in a trustee.” (Quoted in: Maharashtra State Board of Wakfs v. Shaikh Yusuf Bhai Chawla, 2022-12 SCR 482).

In Maharashtra State Board of Wakfs v. Shaikh Yusuf Bhai Chawla, 2022-12 SCR 482, the Apex Court held that the Mutawalli is not a trustee in its true sense. The Supreme Court formulated a crucial question and answered it as under:

“127. Thus, the Mutawalli is treated as a trustee. But would the amendment made to Sec. 10 of the Limitation Act, 1963 make a Mutawalli a trustee generally?

Our answer is an emphatic No. This is for the reason that the change in Sec. 10 of the Limitation Act was effected to overcome the judgment of the Privy Council, when it held that a Mutawalli would not be a trustee and when in view of the requirement in Sec. 10 that the suit must be one against a person in whom the property has become vested in trust for any specific purpose and as a Mutawalli would not be a trustee in law per se, the legislature brought in the explanation. But what is striking are two features. Firstly, the change is brought by way of an Explanation. More importantly, the explanation begins with words “For the purpose of this section and proceeds to declare that “any property comprised in a Hindu, Muslim or Buddhist religious or charitable endowment shall be deemed to be properly vested in trust for a specific purpose and the manager of the property shall be deemed to be the trustee thereof.”

Vesting of Property in Various Kinds of Associations and Trusts

Club, Society, Firm and Company

*No.*	*Nature of Association.*	*Vesting of Management and Legal Ownership.*	*Vesting of actual/ ultimate ownership*	*Whether perma-nent or can it be put an end to*
1	Club	Trustees or Gov. Body, as per Byelaws	Members, subject to the byelaws and objectives of foundation.	Presumed to be not permanent.[19]
2	Unregistred. Society/ Association	-do-	-do-	Presumed to be permanent.
3	Registered Society	-do-	-do-	Permanent. SR Act governs dissolution.
4	Firm	Partners	Partners	Contract/partnership deed governs
5	Trading Company	Board of Directors	Company	Permanent. Co. Act governs winding up.
6	Charitable or Non-trading company	-do-	-do-	-do-

Trusts/Religious-Endowments:

7	Public Trust– English Law[20]	Trustees	Legal ownership in Trustees; beneficial ownership in Beneficiaries.	Permanent
8	Public Trust-Indian (common) Law	Trustees	Beneficiaries have only beneficial interest; and, no beneficial ownership. Theoretically, properties vest in public or section who are beneficiaries, subject to the objectives of foundation, as established by evidence or as revealed from the deed of founda-tion or byelaws, if any.	Permanent
9	Public School, Public Library, etc.	Trustees (called by different names).	-do-	Permanent.
10	Private religious or charitable trusts	Management on Trustees (called by different names). If the trust/ institution/ endowment is a legal person upon which legal ownership can be vested, legal ownership will be vested upon it.	Properties vest in trust/ institution/endowment itself. If it cannot be – for it is not a legal person – property vests in such persons as established by evidence or the deed of foundation or byelaws. Beneficiaries have no beneficial ownership.	Presumed to be permanent.
11	Mosque, Church, Gurudwara, etc.	Management on Trustees (by different names). If the trust/ institution/ endowment is a legal person upon which legal ownership can be vested, legal ownership will be vested upon it.	In trust/institution or endowment itself. If it cannot be – for it is not a legal person – section of public who are beneficiaries, subject to the objectives of foundation, as established by evidence or as revealed from the deed of foundation or bylaws, if any.	Permanent
12	Temple (Public)	Management on Shebaits/ Darmkarta/ Ooralen. Since Idol/deity is a legal person upon which legal ownership can be vested, legal ownership vests upon it.	Idol/deity	do-
13	Temple (private)	-do-	-do-	-do-
14	Mutt	Management on Madathipathi. Since Mutt is a legal person upon which legal ownership can be vested, legal ownership vests upon it.	Mutt	-do-
15	Private Trust (Coming under the Trusts Act	Trustees	Terms/ Deed of Trust govern.	Trusts Act governs Extinction and Revocation.[21]

Government School, University, etc.

University, Govt. Hospital, Govt. College, etc.

Administrators as provided in the statute concerned

In the institution itself, if not expressly stated to be in the Government.

Presumed to be permanent. (Permanent until decided to close by the Government.)

[1] Salmond on Jurisprudence: 12^th Edition, page 256.

[2] See: ChhatraKumari Devi Vs. Mohan Bikram Shah: AIR 1931 PC 196.

[3] See: M. R. Goda Rao Sahib Vs. State of Madras: AIR 1966 SC 653; Sree Siddhi Budhi Vinayakagar Sree Sundareswarar Vs. S V Marimuthu: AIR 1963 Mad 369.

[4] Chhatra Kumari Vs. Mohan Bikram: AIR 1931 PC 196; WO Holdsworth Vs. The State of Uttar Pradesh: AIR 1957 SC 887: 2001-9 SCC 471; Commissioner of Wealth Tax Vs. Kripashankar: AIR 1971 SC 2463; Bai Dosabai Vs. Mathurdas: AIR 1980 SC 1334; Bomi Munchershaw Mistry Vs. Kesharwani Co Op. Hosg. So.: 1993-2 BCR 301; 1993-2 BCR 32. See also: Ramabai GovindVs. Raghunath Vasudevo: AIR 1952 Bom 106; Deoki Nandan Vs. Murlidhar: AIR 1957 SC 133; Behari Lal Vs. Thakur Radha Ballabhji: AIR 1961 All 73 .

[5] Salmond on Jurisprudence: 12^th Edition, page 256

[6] Kansara Abdulrehman Sadruddin Vs. Trustees of the Maniar Jamat : AIR 1968 Guj 184.Narayani Amma Vs Eyo Poulose: AIR 1982 Ker 198; S R Varadarajulu Naidu Vs. Papanasam Labour Union: AIR1969 Mad 401; T C Chacko Vs. Annamma: AIR 1994 Ker 107.

[7] AIR 1968 Guj 184.

[8] Baba Badri Dass Vs. Dharma: AIR 1982 P&H 255

[9] See Chapter: VESTING OF PROPERTY IN HINDU ENDOWMENTS

[10] KS Varghese Vs. St. Peters and Pauls Syrian Orthodox Church: (2017) 15 SCC 333

[11] AIR 1976 SC 1569.

[12] Page 38.

[13] Quoted in Yogendra Nath Naskar Vs. Commissioner of Income Tax: AIR 1969 SC 1089.

[14] Quoted in Yogendra Nath Naskar Vs. Commissioner of Income Tax: AIR 1969 SC 1089; M Siddiq Vs. Mahanth Suresh Das (Ayodhya Case): (2019) SCC OnLine SC 1440

[15] 12^th Edition, Page 326

[16] IV Edition, Vol. 6, Para 205

[17] Quoted in: Most Rev. PMA Metropolitan Vs. Moran Mar Marthoma: AIR 1995 SC 2001.

[18] Page 208

[19] If the objectives of foundation envisage benefit to future members also, the present members and administrators are trustees for future members.

[20] Preferred name: Charities

[21] It is settled that in the matter of (secular) private trusts, English principles are followed in India which lay down that if the beneficiaries are sui juris and of one mind, the trust can be put to an end or use the trust fund for any purpose (they wish): Profulla Chorone Requitte Vs. Satya Chorone Requitte: AIR 1979 SC 1682.

Read in this cluster (Click on the topic):

Civil Suits: Procedure & Principles

Evidence Act

Constitution

Contract Act

Easement

Club/Society

Trusts/Religion

Clubs and Societies, Bye Laws Fundamental

Saji Koduvath.

Synopsis

Provisions of the Societies Registration Act, 1860
Bye Laws Bind as Contract
Bye laws Must be Reasonable and in Accord with So. Rgn. Act
Bye laws – Fundamental
Bye Laws Determines Form and Formation of Govg. Body
Bye Laws Vs. Rule of Majority
Amendment of Bye Laws
Sub Rules
Churches and Canon Law
Disputes be Redressed as Provided by the Rules

1. Provisions of the Societies Registration Act, 1860:

1. Societies formed by memorandum of association and registration
- Any seven or more persons associated for any literary, scientific, or charitable purpose, or for any such purpose as is described in section 20 of this Act, may, by subscribing their names to a memorandum of association, and filing the same with Registrar of Joint-stock Companies form themselves into a society under this Act.
2. Memorandum of association
- The memorandum of association shall contain the following things, that is to say, the name of the society; the object of the society; the names, addresses, and occupations of the governors, council, directors, committee, or other governing body to whom, by the rules of the society, the management of its affairs is entrusted. A copy of the rules and regulations of the society, certified to be a correct copy by not less than three of the members of the governing body, shall be filed with the memorandum of association.
20. To what Societies Act applies
- The following societies may be registered under this Act:-
- Charitable societies, the military orphan funds or societies established at the several presidencies of India, societies established for the promotion of science, literature, or the fine arts for instruction, the diffusion of useful knowledge, [the diffusion of political education], the foundation or maintenance of libraries or reading-rooms for general use among the members or open to the public or public museums and galleries of paintings and other works of art, collections of natural history, mechanical and philosophical inventions, instruments, or designs.

2. Bye Laws Bind as Contract

The members of a club or society, both registered and unregistered, are bound by the memorandum of association and its rules and regulations. The bye laws bind its members as a contract.[1] Even the formation of a society itself is based on a contract.[2] When a person becomes a member of the society, he would have no independent rights, and lose his individuality[3] qua the society except those that are given to him by the statutes concerned and bye laws.[4] It is observed in Zoroastrian Co-op. Housing Society Ltd. Vs. District Registrar [5] that the rights of members merge in the rights of the society. In State of UP Vs. CD Chheoki Employees Co-operative Society,[6] our Apex Court explicated it with the analogy that the stream cannot rise higher than the source. It reads:

“Thus, it is settled law that no citizen has a fundamental right under Article 19(1)(c) to become a member of a Cooperative Society. His right is governed by the provisions of the statute. So, the right to become or to continue being a member of the society is a statutory right. On fulfillment of the qualifications prescribed to become a member and for being a member of the society and on admission, he becomes a member. His being a member of the society is subject to the operation of the Act, Rules and bye-laws applicable from time to time. A member of the society has no independent right qua the society and it is the society that is entitled to represent as the corporate aggregate. No individual member is entitled to assail the constitutionality of the provisions of the Act, Rules and the bye-laws as he has his right under the Act, Rules and the bye-laws and is subject to its operation. The stream cannot rise higher than the source.”

It is observed in All India Sank Employee’s Association Vs. National Industrial Tribunal (Bank Disputes)[7] as under:

“As the stream can rise no higher than the source, associations of citizens cannot lay claim to rights not open to citizens, or claim freedom from restrictions to which the citizens composing it are subject.”

If the rules of the society or club provided that the decision of a particular question must be by a majority, [8] the decision would bind all the members unless the act complained of is a fraud on the minority or is ultra vires the society or club. In all other matters about which the rules are silent, the majority does not have any right to coerce the minority[9].

Referring to the Supreme Court decision in Hira Devi Vs. District Board of Shahjahanpur[10], it is determined in Raja Himanshu Dhar Singh Vs. Additional Registrar Co-operative Societies[11] that the secretary of a society cannot perform any function which the rules do not authorise him to perform. The secretary is the creature of the rules.

Salmond reads:

“The rules of the club or society constitute the basic contract to which all the members are parties.”[12]

The civil court has jurisdiction to interfere where a club had followed a procedure not warranted by the Rules of the Club.[13]

In Supreme Court Bar Association Vs. BD Kaushik[14] it is observed that the Memorandum of Association is a contract amongst the members of the Society and that these are rules which govern internal control and management of the Society. The authority to frame, amend, vary and rescind such rules, undoubtedly, vests in the General Body of the Members of the Society. The power to amend the rules is implicit in the power to frame rules.

3. Bye laws Must be Reasonable and in Accord with So. Rgn. Act

It is trite law[15] that an unfair, unreasonable or irrational clause in a contract is unjust and amenable to Judicial Review. Bye laws of a society or a club is a contract amongst its members. Bye laws must be reasonable.[16] It is liable to be held invalid for uncertainty.[17] It should not militate against the provisions of the Societies Registration Act and Contract Act.

In ABC Laminart Pvt. Ltd. Vs. SAP Agencies, Salem[18] it is held:

“…. An agreement enforceable at law is a contract. An agreement which purports to oust the jurisdiction of the court absolutely is contrary to public policy and hence void. …”

It was held, with respect to bylaw of a public body, in Repton School Governors Vs. Repton Rural District Council[19] as under:

“I quite agree that bye laws, especially those of public bodies, should be approached from the point of view of upholding them, if possible, and should be, as it has been described, benevolently interpreted; but still they must be reasonable.”[20]

In H.C. Suman Vs. Rehabilitation Ministry Employees’ Cooperative House Building Society (AIR 1991 SC 2160) it is observed:

“In Kruse Vs. Johnson [(1898) 2 QB 91] it was held that in determining the validity of bye-laws made by public representatives bodies, such as country councils, the court ought to be slow to hold that a bye-law is void for unreasonableness. A bye-law so made ought to be supported unless it is manifestly partial and unequal in its operation between different classes or unjust, or made in bad faith, or clearly involving an unjustifiable interference with the liberty of those subject to it…”[21]

In Shanti Swarup Vs. Radhaswami Satsang Sabha, Dayal Bagh,[22] the bylaws of the society stated the terms for dissolution as under: ‘The society shall stand dissolved in case no Satsang Guru reappeared within two years of the death of the last Satsang Guru’. It was held that such bye laws were invalid and inoperative, they being militated against the provisions of Section 13 of the Societies Registration Act, 1860 (Sec 13 relates to dissolution of societies and adjustment of their affairs).

In Lingappa Police Patil Vs. Registrar of Societies[23] it is held that the Rule of the Society which declared a person would cease to be a member merely on his default to make the subscription, without even providing him an opportunity to show cause for not making the payment within a specified period appeared ‘to be very harsh’; and that ‘confiscatory and deprivatory provisions made, resulting in civil consequences, should not have been allowed’ to be incorporated in the bye laws. The Division Bench struck down the impugned Rule it being contrary to the provisions of the Act. It is also on the principle that rules of natural justice require that that no person can be condemned unheard.[24]

4. Bye laws – Fundamental

If a person voluntarily joins in a particular association, including a Church, he would be bound by the rules which have been framed for the internal discipline and for the management of its affairs.[25]

Any action taken contrary to the bye laws would be ultra vires.[26] Even the entire members of an association, altogether, cannot legally do a thing which is ultra vires; though they are at liberty to change or amend their bye laws and do the thing, provided it is not hit by the doctrine of ‘basic principles of foundation’. It is held in Inderpal Singh Vs. Avtar Singh:[27]

“Rule of Law demands and dictates that the people follow the Law. The Constitution, whether of the State or of a Society registered under the Societies Act, is paramount. As people are to follow the Law in a State, so the members of a Society are duty-bound to follow the Constitution of the Society. After all, the Constitution is the soul of the Society. The Society, therefore, cannot function in contravention of its Constitution. .… In case the action of the Sabha is contrary to the tenor and spirit of its Constitution, the said action cannot be sustained by a Court of law. The doctrine of factum valet is applicable to cure the violation of a directory provision or a mere matter of form but does not cure the violation of the fundamental principles or the essence of the transaction.”

In Sri Bhaben Chandra Pegu Vs. The State of Assam[28] the Division Bench considered the relevant statutory Rule under which meeting of the governing body of a college had to be convened and pointed out that acts in violation of the Rules would be void, unlawful and illegal and was liable to be set aside.

In Clubs, no general law applicable except the law of Fraud

In Noel Frederick Barwell v. John Jackson, AIR 1948 All 146, majority observed as under:

“In Lyttelton v. Blackburne (1875) 45 L.J. Ch. 219, which was for restoration of a member who had been expelled from the Junior Naval and Military club, which was a proprietary club, Bacon V.C., observed:
- ‘Clubs have always rules of management and there is no general law applicable to members as such except the law of fraud; they are governed by their rules, and the law must be extracted from the rules.’ “

Dissent and Disagreement be Resolved under the Party Constitution

In the ‘floor test case’ (Maharashtra Assembly), Subhash Desai v. Principal Secretary, Governor of Maharashtra (decided on May 11, 2023), the Supreme Court held as under:

“88. The political imbroglio in Maharashtra arose as a result of party differences within the Shiv Sena. However, the floor test cannot be used as a medium to resolve internal party disputes or intra party disputes. Dissent and disagreement within a political party must be resolved in accordance with the remedies prescribed under the party constitution, or through any other methods that the party chooses to opt for.”

Strict Compliance of the Bye-Laws

Strict compliance of the bye-law may not be necessary when the member of the Co-operative Sugar Factory is unable to comply with the conditions due to circumstances, over which he could have no control. Non cultivation of sugar cane crop due to paucity of the irrigation facility could be attributed to calamity which occurred in the drought prone area. It is, therefore, clear that noncompliance of the condition was due to vis-major. It is worthy to be mentioned that such bye-law is required to be construed having regard to the object of the provisions of the Maharashtra Co-operative Societies Act.[29]

Non-renewal of the registration of a society may be a bar to avail the benefits offered to registered societies, but the same by itself will not lead the inference that the society is not in existence.[30] In the event of becoming a society defunct, or failure to file documents under Sec. 4 of the So. Regn. Act, there is no bar to revive its activities and to conduct the election of the office bearers. The courts cannot set aside such elections on the sole ground that certain statutory provisions have not been complied with by it.[31]

When a question arose as to whether the provision in the Co-operative Rules that provides 15 clear days notice for moving a no-confidence motion was directory or mandatory,[32] following the Supreme Court decision in Narasimhiah Vs. Singri Gowda[33] it was held in VA Jose Vs. Joint Registrar of Co-operative Societies[34] that the provision was only directory since the legislature had not provided any consequence that was to follow if 15 clear days notice had not been given and since the petitioner did not explain in what manner he was prejudiced for not getting 15 clear days’ notice. It was also held that the petitioner being participated in the disputed meeting, he had no right to challenge the invalidity in the notice for convening the meeting.

In Supriyo BasuVs. WB Housing Board[35] it has been held by our Apex Court that it is undisputed that a Co-operative Society is constituted on agreement between members thereof who had agreed to abide by the provisions of the Co-operative Societies Act, the Rules framed thereunder or the bye-laws framed by the Society. The Society is undisputedly not a department of the State and is also not a creature of a statute but merely governed by a statute. Only if it is established that the mandatory provision of a Statute has been violated, a writ petition could be maintainable.

5. Bye Laws Determines Form and Formation of Governing Body

It is pertinent to note that the Societies Registration Act enacted in 1860 does not specifically direct ‘election’ of the governing body. The rules and regulations of the society determine the form and details as to formation of the governing body.[36]

A democratic set up in the associations or unions, subject to its bye laws, is envisioned in that right to form an association itself. Bye laws of several societies, especially religious and Government-controlled societies, provide for permanent or ex-officio Presidents.

Person who Signs Pleadings must be Authorised by the Byelaws

The Supreme Court, in P. Nazeer Vs. Salafi Trust, AIR 2022 SC 1580, held:

(i) A society registered under the Societies Registration Act is entitled to sue and be sued, only in terms of its byelaws.
(ii) The byelaws may authorise the President or Secretary or any other office bearer to institute or defend a suit for and on behalf of the society,
- since section 6 of the Societies Registration Act, provides that ‘every society registered under the Act may sue or be sued in the name of President, Chairman, or Principal Secretary, or trustees, as shall be determined by the rules and regulations of the society and,
- in default of such determination, in the name of such person as shall be appointed by the governing body for the occasion’.
(iii) Unless the plaintiff, which claims to be a society, demonstrates that it is a registered entity and that the person who signed and verified the pleadings was authorised by the byelaws to do so, the suit cannot be entertained
- The fact that the plaintiff in a suit happens to be a local unit or a Sakha unit affiliated to a registered society is of no consequence, unless the byelaws support the institution of such a suit.

6. Bye Laws Vs. Rule of Majority

Can a society be formed disregarding democratic principles?

The immediate answer may be, ‘yes’; mainly because, the So. Regn. Act,[37] enacted in 1880, does not speak as to ‘election’; and because, the members of an association are united on consensual basis whereby the members are voluntarily submitted themselves to the administration under the bye laws. Therefore, they cannot question the reasonableness of the bye laws as ‘the stream cannot rise higher than the source’.

What is in the interest of the society is primarily for the society alone to decide and it is not for an outside agency to say.[38]

Ninety Seventh Amendment of our Constitution provided constitutional status to the Co-operative Societies and it has brought out radical changes in the concept of Co-operative Societies. Democratic functioning and autonomy have now become the core constitutional values of a Co-operative Society. With respect to Co-op. Societies, it is held in Vipulbhai M. Chaudhary Vs. Gujarat Cooperative Milk Marketing Federation[39] as under:

“The Co-operative society registered under the Central or the State Act is bound to function as a democratic institution and conduct its affairs based on democratic principles. Democratic functioning on democratic principles is to be reflected in the respective Acts or Rules or Bye-laws both on the principle and procedure. If not, it is for the court to read the democratic principles into the Act or Rules or Bye-laws. If a procedure is prescribed in any Act or Rule or Bye-law regarding election of an office bearer by the Board, as defined under Article 243ZH(b) of the Constitution of India, and for removal thereof, by way of a motion of no confidence, the same procedure has to be followed. In case there is no express provision under the Act or Rules or Bye-laws for removal of an office bearer, such office bearer is liable to be removed in the event of loss of confidence by following the same procedure by which he was elected to office.”

But, it may also be equally important: an autonomous association, which is formed in a republic which considers doctrines of collective wisdom or democracy important and which is founded under the guarantees given in the ‘fundamental-rights’ of the Constitution of such a republic, it is expected to be (if not should be) a miniature replica of the republic. Therefore, though the members of an association are united on consensual basis and are voluntarily submitted themselves to the administration under the bye laws, if the provisions of its bye laws annihilate democratic principles, the same will be reckoned as illegal as opposed to public-policy.

In Ravi Yashwant Bhoir Vs. District Collector Rajgad,[40] with regard to removal of an office bearer, the Supreme Court observed:

”34. In a democratic institution, like ours, the incumbent is entitled to hold the office for the term for which he has been elected unless his election is set aside by a prescribed procedure known to law or he is removed by the procedure established under law.”

Majority of an Association Cannot Alter Fundamental Principles

The fundamental principles upon which a trust is founded cannot be varied. Therefore, the courts cannot sanction any drastic amendment to the document of trust which would destroy the basic purpose for which the trust was created. The trust properties will not be allowed to be sold even to the members of their community for whose benefit the trust is created and the properties were acquired. It is also not open for the majority of the members of an association to alter the fundamental principles upon which it is founded, unless such a power is specifically reserved. These principles laid down in Milligan Vs. Mitchel,[41]Attorney General Vs. Anderson[42] and Free Church of England Vs. Overtoun[43] is referred to in Prasanna Venkitesa Rao Vs. Srinivasa Rao.[44]

In Free Church of England Vs. Overtoun the House of Lords (by a majority of 5-2) found that the minority was entitled to the assets of the Free Church. It was observed that when men subscribe money for a particular object, and leave it behind them for the promotion of that object, their successors have no right to change the object endowed. It was held that, by adopting new standards of doctrine (and particularly by abandoning its commitment to ‘the establishment principle’, which was held to be fundamental to the Free Church), the majority had violated the conditions on which the property of the Free Church was held.

Whether the majority has an Inherent Power to Alter the Rules?

In Noel Frederick Barwell v. John Jackson, AIR 1948 All. 146, the court referred the following passage from Harington v. Sendall, (1903) 1 Ch. 921, where the raising of subscription of Oxford and Cambridge University Club was discussed. It reads as under:

“When the plaintiff became a member he thereby became entitled to the benefits and privileges of the club, and was to be taken to have declared his submission to the then rules and regulations. I say ‘the then rules and regulations’ because the words are not ‘such rules and regulations as may be made from time to time,’ but ‘the following rules and regulations.’ In other words, he agreed to be bound by the written contract that is to be found in the rules. Unfortunately, as I think, those rules did not, nor indeed, do the present rules, contain any provision for the making of amendments or alterations from time to time. …. ‘Indeed, so far as there can be said to be authority upon the subject, and, as I think, upon principle, there is no more inherent authority in the members of the club by a majority in general meeting to alter the rules against the wishes of a minority than there is in the members of any other society or association the constitution of which depends upon and is matter of contract – there being as there is here a written contract expressing the terms upon which the members associate together’.”

Fundamental Objectsof Association Cannot be Altered by Amendment

In Noel Frederick Barwell v. John Jackson, AIR 1948 All 146, while considering the right of an association to dissolve a Club by majority desolution it was stated as under:

“50. In Morgan v. Driscoll (1922) 38 T.L.R. 251, the rules of the Secular Catholic Clergy Common Fund Association, which was founded in the year 1701, provided for decision of all questions by a majority and there was a provision for repeal and alteration of the rules framed from time to time. Dealing with the question whether a particular amendment was valid or not, it was argued that the amendment was invalid as it was incompatible with the fundamental objects of the association and went to the foundation of it. Sargant J. held that the alteration complained of did not, in his view, go to the foundation of the association and was not incompatible with its fundamental objects and was, therefore, valid.
51. It has been argued by Mr. Pathak on the basis of this decision and the decision of the House of Lords in Hole v. Garnsey (1930) 1930 A.C. 472, already referred to, that the rules of every association may be divided into two classes – the rules relating to fundamentals and the ordinary rules. Learned Counsel went on to urge that the fundamental rules could not be altered even by a unanimous vote of the members, though, if the rules provided for amendments, the other rules could be amended. It is not necessary for me to go into this question as the point does not arise in this case, but if I may say so without meaning any disrespect, the cases cited above have entirely been misunderstood. All that their Lordships intended to say was that the rules of any club being framed for the purpose of carrying on the objects of the club, ordinarily any power to amend such rules must be limited to the contemplated scope of the original rules and that under the general powers of amendment the alteration should not affect the foundation of the club or should not be incompatible with its fundamental objects.
52. Dealing with this question Lord Han – worth, Master of the Bolls, in Doyle v. White City Stadium Ltd (1935) 1 K.B. 110 said:
When these rules as altered are still for the purpose of carrying out the original purpose of the society or body of persons, the altered rules are made binding on the plaintiff. If there was an attempt fundamentally to alter the purpose for which the rules had been originally drawn up, the prospective agreement to adhere to-fresh rules, or any alteration in the rules, would not apply. It is quite plain from the decision in Thelluson v. Viscount Valentia (1907) 2 Ch. 1 that if and so long as the rules are akin to the purpose for which a society exists, there is no inherent, objection to an alteration of those rules or to further rules being made for the same purpose.”

Whether the majority has an Inherent Power to Alter the Rules?

In Noel Frederick Barwell v. John Jackson, AIR 1948 All 146, the court referred the following passage from Harington v. Sendall, (1903) 1 Ch. 921, where the raising of subscription of Oxford and Cambridge University Club was discussed. It reads as under:

“When the plaintiff became a member he thereby became entitled to the benefits and privileges of the club, and was to be taken to have declared his submission to the then rules and regulations. I say ‘the then rules and regulations’ because the words are not ‘such rules and regulations as may be made from time to time,’ but ‘the following rules and regulations.’ In other words, he agreed to be bound by the written contract that is to be found in the rules. Unfortunately, as I think, those rules did not, nor indeed, do the present rules, contain any provision for the making of amendments or alterations from time to time. …. ‘Indeed, so far as there can be said to be authority upon the subject, and, as I think, upon principle, there is no more inherent authority in the members of the club by a majority in general meeting to alter the rules against the wishes of a minority than there is in the members of any other society or association the constitution of which depends upon and is matter of contract – there being as there is here a written contract expressing the terms upon which the members associate together’.”

Property Of A Club Cannot Be Transferred By The Majority

In Noel Frederick Barwell v. John Jackson, AIR 1948 All 146, it was further stated as under:

“55. For the proposition that the property of a club cannot be transferred by the majority, learned Counsel has relied on the case in Murray v. Johnstone (1896) 23 Ruttia Court of Session (Scoland) 981. In that case a silver trophy, known as the Waterlow Cup, had been presented for competition by the curliers of the County of Dumfriesshire by Sir Sydney Waterlow and as a winner for three consecutive years was to keep the cup, the Upper Annandale Club won the cup and it became its property. At a meeting of the Upper Annandale Club, by a majority of votes against the objection of the minority, it was decided that the cup should be gifted to Johnstone who was the custodier for the cup during the winning sessions 1893 and 1894. It was held that the majority had no such power and the gift was, therefore, invalid.
56. In Vick v. Toironen 12 Dominion Law Rep. 299 it was held by the Ontario Supreme Court, Appellate Division, that the property of a voluntary society could not be diverted by the majority of its members, against the wishes of the minority, from the purpose for which it was acquired by their contributions and devoted to a purpose alien to and in conflict with the fundamental principles of the society.”

7. Amendment of Bye Laws

See blog: ‘Amendment of Bye Laws’.

8. Sub Rules

The legal basis and principles for formulating the sub rules can be traced from the doctrine of ‘implied ancillary and incidental powers’. If there is no detailed rules governing an important administrative or quasi-judicial matter, such as election, selection or redressal of disputes, the concerned authority will have the legitimate right to formulate detailed sub rules in that matter. It is, mainly, to provide proclaimed ‘general standards’ in administration and to ensure ‘rule of law’.[45] Nonetheless, it must be intra vires, reasonable and conducive to the intended purpose.

Similarly, in the absence of express or implied regulations to the contrary,[46] the Domestic Tribunals including Syndicate of a University,[47] Enquiry Committees, election authorities, etc. are also free to evolve and follow their own procedure as they are ‘masters of their own procedure’;[48] but, they must ensure natural justice in their actions.[49]

With respect to the procedure to be adopted by the domestic tribunal it is held in Kurukshetra University Vs. Vinod Kumar[50] as under:

“It is not the province and the function of this Court to lay down either the time or the mode and manner in which autonomous and high-powered bodies like the Syndicate of the appellant-University are entitled to conduct their business in the meetings. They are equally masters of their own procedure and unless there is an infraction of the clear statutory rules in carrying out their duties and in conforming to the procedure prescribed by law, this Court would be ill-advised to render any gratuitous advice to them in their autonomous field in dealing and disposing of their business.”

Lord Denning, Master of Rolls, in the Court of Appeal in England observed, with respect to the doctrine, ‘masters of their own procedure’, as under, in the matter of a non-statutory domestic tribunal:[51]

“Is a party who is charged before a domestic tribunal entitled as of right to be legally represented, much depends on what the rules say about it. When the rules say nothing, then the party has no absolute right to be legally represented. It is a matter for the discretion of the tribunal. They are masters of their own procedure: and, if they, in the proper exercise of their discretion, decline to allow legal representation, the Courts will not interfere….”[52]

See Blog: Management – Powers of General Body and Governing Body

9. Churches and Canon Law

Canon-Law refers to the law internal to the church. [53] In disputes relating to spiritual or temporal affairs of a Roman Catholic Church, the parties should be presumed to be governed by the general law relating to the administration of churches, namely the Canon Law.[54]

The Catholic Community in India is governed[55] either by ‘Code of Canons of the Eastern Churches’ (CCEC) applicable to Syro Malabar & Syro Malankara Rites, or ‘Code of Canon Law’ (CIC), applicable to the Latin Rite. The Canon Law recognizes three categories of personalities; ie., the moral person, the physical person and the juridic person. The Catholic Church and the Apostolic See have the character of a moral person (CIC – 113). By baptism an individual is incorporated into the Church of Christ (CIC -208-223).

Both “parish” and the “diocese” are public juridic persons. Canon (CIC) 1256 specifically provides that under the supreme authority of the Roman Pontiff, ownership of goods belongs to that particular juridic person which has acquired them legitimately.

10. Disputes be Redressed by the Mechanism Provided by the Rules

In Kowtha Suryanarayana Rao Vs. Patibandla Subrahmanyam[56] it is held as follows:

“It is a well established principle that, provided that the acts of the management are within the powers of the society itself any dispute between individual members of the society and those responsible for its management must be decided by the machinery provided by the rules and not in a Court of law. It is only when an act is ultra vires the society that a member is entitled to come to a Civil Court and have the act of the management which is ultra vires declared to be void.”

In Supreme Court Bar Association Vs. BD Kaushik[57] it is observed that in matters of internal management of an association, the courts normally do not interfere, leaving it open to the association and its members to frame a particular bye-law, rule or regulation which may provide for eligibility and or qualification for the membership and/or providing for limitations/restrictions on the exercise of any right by and as a member of the said association.

It is further held in this decision that the Memorandum of Association is a contract amongst the members of the Society and that these are rules which govern internal control and management of the Society. The authority to frame, amend, vary and rescind such rules, undoubtedly, vests in the General Body of the Members of the Society. The power to amend the rules is implicit in the power to frame rules.

It is well settled legal proposition that once a person becomes a member of the association, such a person loses his individuality qua the association and he has no individual rights except those given to him by the rules and regulations and/or bye-laws of the association. Courts will not delve in the internal disputes of an association unless it is shown[58] that the aggrieved parties have worked out and exhausted their remedies[59] (but, failed to resolve disputes) under the bye laws, before:

(a) the machinery or body (domestic tribunals)[60], if any, provided in its bye laws,[61] or
(b) the body or authority which has to take (expressly or impliedly) cognisance of the matter, under its bye laws, or
(c) the authorities under the statute, if any, holds the field.[62]

The general principle is that when the Act and the Rules made thereunder are silent on a particular aspect, we have to look for guidance into the broad scheme of the Act and the intention of the legislature.[63] This principle applies, with full vigor, to the bye laws of voluntary associations.

In the celebrated decision, TP Daver Vs. Lodge Victoria,[64] the Supreme Court held that a member of a Masonic lodge was bound to abide by the rules of the lodge, and if the rules provide for expulsion, he should be expelled only in the manner provided by the rules;[65] and that the lodge was bound to act strictly according to the rules.[66]

[1] Board of Trustees, Ayurvedic & Unani Tibia College Vs. The State: AIR 1962 SC 458; Siddheshwar Sahkari Sakhar Karkhana Vs. Commissioner of I T: AIR 2004 SC 4716; Hyderabad Karnataka Education Society Vs. Registrar of Societies: AIR 2000 SC 301; Co- op. Central Bank Vs. Addl. Industrial Tribunal, Andhra Pradesh: AIR 1969 SC 245; Naresh Chandra Sanyal Vs. Calcutta Stock Exchange Assn Ltd. : AIR 1971 SC 422; Damyanti Naranga Vs. Union of India: AIR 1971 SC 966; Daman Singh Vs. State of Punjab AIR 1985 SC 973.

[2] Zoroastrian Co-op. Housing Society Ltd. Vs. Dist. Registrar: AIR 2005 SC 2306; State Bank of India Staff Association Vs. Mohindra Bhattacharyya: AIR 1991 Cal 378.

[3] Daman Singh Vs. State of Punjab: AIR 1985 SC 973; Damyanti Naranga Vs. Union of India: AIR 1971 SC 966.

[4] Syed Munir Hoda Vs. Bader Sayeed: TLMAD-2012-0-2262; Supreme Court Bar Association Vs. BD Kaushik: : (2011) 13 SCC 774; State of UP Vs. COD Chheoki Employees’ Coop. Society Ltd : AIR 1997 SC 1413.

[5] Zoroastrian Co-op. Housing Society Ltd. Vs. District Registrar: AIR 2005 SC 2306

[6] AIR 1997 SC 1413: Quoted in Zoroastrian Co-op. H. Society Ltd. Vs. District Registrar: AIR 2005 SC 2306; Supreme Court Bar Association Vs. BD Kaushik: (2011) 13 SCC 774; Chandigarh Housing Board Vs. Devinder Singh: AIR 2007 SC 1723.

[7] AIR 1962 SC 171

[8] Deepak R Mehtra Vs. National Sports Club of India : ILR2009-19 Dlh216

[9] Raja Himanshu Dhar Singh Vs. Additional Registrar Co-op. Societies: AIR1962 All 439

[10] AIR 1952 SC 362

[11] Raja Himanshu Dhar Singh Vs. Additional Registrar Co-Op. Societies: AIR1962 All 439

[12] Salmond on Jurisprudence: 12^th Edition, Page 326.

[13] Kalyan Kumar Dutta Gupta Vs. B.M. Verma: AIR 1995 Cal. 140 (DB). Also see: Deepak R Mehtra Vs. National Sports Club of India: ILR 2009-19 Dlh 216. See Chapter: Expulsion of Members & Officers’ Removal.

[14] (2011) 13 SCC 774

[15] LIC of India Vs. Consumer Education & Research Centre: AIR 1995 SC 1811; A C Muthiah Vs. Board of Control for Cricket in India: (2011) 6 SCC 617: CTC 2010 (2) 429; Supreme Court Bar Association Vs. BD Kaushik: (2011) 13 SCC 774.

[16] Alty Vs. Farrell (1896) 1 QB 638; Kruse Vs. Johnson, (1898) 2 QB 91, Scott Vs. Pilliner, (1904) 2 KB 855, Repton School Governors Vs. Repton Rural District Council, (1918) 2 KB 133; Chester Vs. Bateson, (1920) 1 KB 829; Attorney General Vs. Denhy, 1925 Ch 596: All referred to in: Municipal Board Vs. Rizwan Beg: AIR 1964 All 544.

[17] Nash Vs. Finlay. (1901) 85 LT 082; Attorney General Vs. Denhy, 1925 Ch. 596. Both referred to in: Municipal Board Vs. Rizwan Beg: AIR 1964 All 544.

[18] AIR 1989 SC 1239

[19] (1918) 2 KB 133

[20] It is referred to in: Municipal Board Vs. Rizwan Beg: AIR 1964 All 544.

[21] Quoted in Om Prakash Vs. State of Uttar Pradesh: AIR 2004 SC 1896.

[22] AIR 1969 All 248

[23] ILR 1997 Kar 3127.

[24] Sarbjit Singh Vs. All India Fine Arts and Crafts Society: ILR 1989-2 Del 585: AIR 1990 NOC 26(Del)

[25] Gaspari Louis Vs. Gonsalves: 35 MLJ 407; Long Vs. The Bishop of Cape Town (1863) 1 Moo. P.C.(N.S.)411) and Merriman Vs. Williams: (1882) L.R.7 A.C.484) referred to. S Robert Vs. M Kanagappan: (2003)2 MLJ 254.

[26] Lila Parulekar Vs. Sakal Papers (P) Ltd.: AIR 2005 SC 4074; Raja Himanshu Dhar Singh Vs. Additional Registrar Co-op. Societies: AIR1962 All 439.

[27] 2007-4 Raj LW 3547

[28] 1998 (1) GLR 38

[29] Yeshwant Khashaba Dubal Vs. Krishna Sahakari Sakhar Karkhana: 1991 CTJ 230

[30] Committee of Management Vs. Commr, Kanpur Region: 2008 -1 AWC 695; 2008 -1 ADJ 706; 2008-70 All LR 368.

[31] See: Nelson Vs. Kallayam Pastorate: AIR 2007 SC 1337

[32] Executive Committee of U. P. State Warehousing Corporation Vs. Chandra Kiran Tyagi. AIR 1970 SC 1244. Quoted in Palakole Co Op Sugars Ltd Vs. P N Raju: 1988-2 ALT 460, 1988-2 APLJ 433

[33] AIR 1966 SC 330

[34] ILR 2007 (1) Ker 10

[35] AIR 2005 SC 4187. Madhya Pradesh Rajya Sahakari Bank Maryadit Vs. State of MP: AIR 2007 SC 540.

[36] Sec. 2, 16 and 20 are relevant.

[37] See Sec. 2 & 16.

[38] State of Maharashtra Vs. Karvanagar Sahakari Griha: (2000) 9 SCC 295; Zoroastrian Co -operative Housing Society Vs. District Registrar: AIR 2005 SC 2306.

[39] AIR 2015 SC 1960

[40] AIR 2012 SC 1339

[41] 40 ER 852

[42] (1888) 57 LJ Ch 543

[43] (1904) AC 515:

[44] AIR 1931 Mad. 12. See also: Inderpal Singh Vs. Avtar Singh: 2007-4 Raj LW 3547; Allahabad High School Society Vs. State of UP: 2010-5 ADJ 734, 2010-82 All LR 83; P. Jayader Vs. Thiruneelakanta Nadar Chinnaneela Nadar: ILR 1966-2 Mad 92.

[45] State of U P Vs. Pawan Kumar Singh [2009-3 ADJ 166].Also see: Vidya Charan Shukla Vs. Tamil Nadu Olympic Association: AIR 1991 Mad 323; Pati Tripathi Vs. The Board of High School & Intermediate Edn, UP: AIR 1973 All 1 (FB).

[46] See: Shyam Narain Shukla Vs. State of UP: 1995-25 All LR 100; 1995-1 LBESR 174; Commissioners for the Port of Calcutta Vs. Asit Ranjan Majumder: AIR 1962 Cal 530; Balaka Co-Operative Vs. Shri Shibdas Raha: AIR 1992 Cal 122.

[47] Guru Nanak University Vs. Iqbal Kaur Sandhu: AIR 1976 P & H 69.

[48] Kurukshetra University Vs. Vinod Kumar: AIR 1977 P & H 21; State of Haryana Vs. Ram Chander: 1976 P & H 381; Sarup Singh Vs. State of Punjab: 1990-1 LLJ 285. Board of High School and Intermediate Education Vs. Ghanshyam Das Gupta: AIR 1962 SC 1110 (Local Government Board Vs. Alridge, 1915 AC 120 referred to); Ramesh Kapur Vs. Punjab University, AIR 1965 Punj 120; Triambak Pati Tripathi Vs. The Board of H S and Intermediate Edn.: AIR 1973 All 1; Bansi Lal Gera Vs. University Of Delhi: 1968-4 DLT 353; University of Madras v. Nagalingam : AIR 1965 Mad 107. See as to statutory Tribunal: Annamalai Vs. R. Doraiswamy Mudaliar: 1982 ACJ 371. Sasidharan Vs. State of Kerala: 1980 KerLT 671

[49] Ramesh Kapur Vs. Punjab University: AIR 1965 Punj 120; Rakesh Kumar Vs. J And K State Board of School Education: AIR 1992 J&K 22.

[50] AIR 1977 Pj & Hr 21

[51] Enderby Town Football Club Ltd. Vs. Football Association Ltd. (1971 Chancery Div. 591)

[52] Quoted in J K Aggarwal Vs. Haryana Seeds Development Corporation: AIR 1991 SC 1221.

[53] Most Rev. P.M.A. Metropolitan Vs. Moran Mar Marthoma: AIR 1995 SC 2001.

[54] Latin Archdiocese of Trivandrum Vs. Seline Fernandez: 2013(4) Ker LT 283; Major Arch Bishop Vs. Lalan Tharakan, 2016(2) Ker LT 791.

[55] Seline Fernandez Vs. Bernard Francis: ILR 2013-1 Ker 56.

[56] AIR 1940 Mad 902.

[57] (2011) 13 SCC 774

[58] Madras Gymkhana Club Vs. KC Sukumar: 2010-1 CTC 199.

[59] A. Venkatasubbiah Naidu Vs. S. Chellappan: 2000 (7) SCC 695: AIR 2000 SC 3032; Superintending Engineer Periyar Electricity Distribution Circle Erode Vs. Pavathal: 2002-2 CTC 544; 2002-1 Mad LJ 515. G. Bala Subrahmanyam Vs. Bar Council of AP: 2014 (2) ALD 101; 2014 (1) ALT 264; AP Arya Vysya Mahasabha Vs. Mutyapu Sudershan: 2015 (5) ALD 1: 2015 (6) ALT 227; Umesh Shivappa Ambi Vs. Angadi Shekara Basappa: (1998) 4 SCC 529: AIR 1999 SC 1566; Avtar Singh Hit Vs. Delhi Sikh Gurdwara Management Committee (2006) 8 SCC 487; Harnek Singh Vs. Charanjit Singh: AIR 2006 SC 52; Supreme Court Bar Association Vs. B.D. Kaushik: (2011) 13 SCC 774;NP Ponnuswami Vs. Returning Officer1952 SCR 218 : AIR 1952 SC 64

[60] Ujjal TalukdarVs. Netai Chand Koley: AIR 1969 Cal 224. Rashmi Bala Saxena Vs. Jiwaji University Gwalior: AIR 1989 MP 181

[61] Supreme Court Bar Association Vs. BD Kaushik: (2011) 13 SCC 774

[62] G. Bala Subrahmanyam Vs. Bar Council of AP: 2014 (2) ALD 101; 2014 (1) ALT 264; AP Arya Vysya Mahasabha Vs. Mutyapu Sudershan: 2015 (5) ALD 1: 2015 (6) ALT 227.

[63] V. Virupakshappa Vs Dangadi Hanumanthappa: AIR 1978 Kar 131

[64] AIR 1963 SC 1144.

[65] See also: Capt. DK Giri Vs. Secunderabad Club: AIR 2018 AP 48; M. Sekar Vs. The Tamil Nadu State Council of the CPI: 2015-7 MLJ 689.

[66] Board of Control for Cricket Vs. Cricket Asson. of Bihar: AIR 2015 SC 3194; D. Dwarakanantha Reddy Vs. Chaitnya Bharathi Educational Society : AIR 2007 SC 1794

Read in this cluster (Click on the topic):

Book No. 1. Handbook of a Civil Lawyer

Book No. 2: A Handbook on Constitutional Issues

Book No. 3: Common Law of CLUBS and SOCIETIES in India

Book No. 4: Common Law of TRUSTS in India

The Law and Principles of Mandatory Injunction

Jojy George Koduvath.

Classification of Injunctions

1. On the basis of the Nature of the Order of the Court.

(a) Prohibitory Injunction, and
(b) Mandatory Injunction

2. On the basis of Duration of the Period of the Order.

(a) Perpetual Injunction, and
(b) Temporary Injunction

Relevant provisions of the Specific Relief Act

S.2 (a)	“Obligation“	“Obligation” includes every duty enforceable by law
S.4	Specific relief	Specific relief to be granted only for enforcing individual civil rights and not for enforcing penal laws: Sp. relief can be granted only for the purpose of enforcing individual civil rights and not for the mere purpose of enforcing a penal law.
S.34	Declaration	Discretion of court as to declaration of status or right. Any person entitled to any legal character, or to any right as to any property, may institute a suit against any person denying, or interested to deny, his title to such character or right, and the court may in its discretion make therein a declaration that he is so entitled, and the plaintiff need not in such suit ask for any further relief: Provided that no court shall make any such declaration where the plaintiff, being able to seek further relief than a mere declaration of title, omits to do so. Explanation.-A trustee of property is a “person interested to deny” a title adverse to the title of someone who is not inexistence, and for whom, if in existence, he would be a trustee.
S.36		Preventive relief how granted.- Preventive relief is granted at the discretion of the court by injunction, temporary or perpetual.
S.38	Perpetual injunction	Perpetual injunction when granted (1) Subject to the other provisions contained in or referred to by this Chapter, a perpetual injunction may be granted to the plaintiff to prevent the breach of an obligation existing in his favour, whether expressly or by implication. (2) When any such obligation arises from contract, the court shall be guided by the rules and provisions contained in Chapter II. (3) When the defendant invades or threatens to invade the plaintiff’s right to, or enjoyment of, property, the court may grant a perpetual injunction in the following cases, namely:- (a) where the defendant is trustee of the property for the plaintiff; (b) where there exists no standard for ascertaining the actual damage caused, or likely to be caused, by the invasion; (c) where the invasion is such that compensation in money would not afford adequate relief; (d) where the injunction is necessary to prevent a multiplicity of judicial proceedings.
S.39	Mandatory injunctions	Mandatory injunctions: When, to prevent the breach of an obligation, it is necessary to compel the performance of certain acts which the court is capable of enforcing, the court may in its discretion grant an injunction to prevent the breach complained of, and also to compel performance of the requisite acts.
S.41	Injunction when refused	Injunction when refused: An injunction cannot be granted- (a) to restrain any person from prosecuting a judicial proceeding …..; (b) to restrain instituting … any proceeding in a court not sub-ordinate … (c) to restrain any person from applying to any legislative body (d) to restrain – proceedings in a criminal matter; (e) prevent breach of contract performance of which not be specifically enforced; (f) to prevent – an act of which it is not reasonably clear that it will be a nuisance; (g) to prevent a continuing breach in which the plaintiff has acquiesced; (h) when equally efficacious relief can certainly be obtained …. except in case of breach of trust; [(ha) if it would impede or delay the progress or completion of infrastructure project or interfere with the continued provision of relevant facility …..] (i) when the conduct of the plaintiff or his agents …. disentitle him to be the assistance of the court; (j) when the plaintiff has no personal interest in the matter.

Temporary Injunction Granted when- Prima Facie Case and Balance of Convenience; Also to Preserve Status Quo

In Seema Arshad Zaheer v. Municipal Corporation of Greater Mumbai, 2006 5 SCC 282, it is pointed out by our Apex Court that in cases relating to orders for demolition of buildings, irreparable loss may occur if the structure is demolished even before trial, and an opportunity to establish by evidence that the structure was authorized and not illegal. In such cases, where prima facie case is made out, the balance of convenience automatically tilts in favour of plaintiff and a temporary injunction will be issued to preserve status quo. But where the plaintiffs do not make out a prima facie case for grant of an injunction and the documents produced clearly show that the structures are unauthorized, the court may not grant a temporary injunction merely on the ground of sympathy or hardship. To grant a temporary injunction, where the structure is clearly unauthorized and the final order passed by the Commissioner (of the Corporation) after considering the entire material directing demolition, is not shown to suffer from any infirmity, would be to encourage and perpetuate an illegality.

In Dorab Cawasji Warden v. Coomi Sorab Warden, AIR 1990 SC 867 : (1990) 2 SCC 117, our Apex Court also held that he relief of interlocutory mandatory injunctions are thus granted generally to preserve or restore the status quo of the last non-contested status which preceded the pending controversy until the final hearing when full relief may be granted or to compel the undoing of those acts that have been illegally done or the restoration of that which was wrongfully taken from the party complaining.

Temporary Mandatory Injunction and Ad Interim Mandatory Injunction

Temporary Mandatory Injunction is granted rarely; because, it may tantamount to granting the final relief itself.

Grant of Ad Interim Mandatory Injunction (ex-parte, till the appearance of opposite party) is still restricted, as it is given only in very exceptional cases and on strong circumstance to protect the rights and interest of the parties.

Following are the Two Landmark Decisions on this subject

(1) Dorab Cawasji Warden v. Coomi Sorab Warden, AIR 1990 SC 867
(2) Deoraj v. State of Maharashtra, AIR 2004 SC 1975, (2004) 4 SCC 697

(1) Dorab Cawasji Warden v. Coomi Sorab Warden, AIR 1990 SC 867 : (1990) 2 SCC 117, is the laudable decision on interim mandatory injunction. It is laid down in this decision that interlocutory mandatory injunctions are granted to:

(i) preserve or restore the status quo ante, of the last non-contested status which preceded the pending controversy, or
(ii) to compel the undoing of those acts that have been illegally done, or
(iii) the restoration of that which was wrongfully taken from the party complaining.

It is also pointed out that the court would consider the prospect of granting of a mandatory injunction finally, after trial; and delineated that a fresh state of affairs cannot be allowed to be created by the grant of such an injunction.

(2) Deoraj v. State of Maharashtra, AIR 2004 SC 1975, (2004) 4 SCC 697, is the decision in the matter of elections in a Co-operative Society where the Apex Court moved forward and stated that Interim Mandatory Injunction can be granted if the court is satisfied that refusal of injunction would tantamount to dismissal of the main petition itself and there would be nothing left to be allowed when the final pronouncement comes.

1. Dorab Cawasji Warden v Coomi Sorab Warden, AIR 1990 SC 867 (Doctrine of higher standard)

In this decision it is held as under:

“16. The relief of interlocutory mandatory injunctions are thus granted generally to preserve or restore the status quo of the last non-contested status which preceded the pending controversy until the final hearing when full relief may be granted or to compel the undoing of those acts that have been illegally done or the restoration of that which was wrongfully taken from the party complaining. But since the granting of such an injunction to a party who fails or would fail to establish his right at the trial may cause great injustice or irreparable harm to the party against whom it was granted or alternatively not granting of it to a party who succeeds or would succeed may equally cause great injustice or irreparable harm, courts have evolved certain guidelines. Generally stated these guidelines are:
- (1) The plaintiff has a strong case for trial. That is, it shall be of a higher standard than a prima facie case that is normally required for a prohibitory injunction.
- (2) It is necessary to prevent irreparable or serious injury which normally cannot be compensated in terms of money.
- (3) The balance of convenience is in favour of the one seeking such relief.
17. Being essentially an equitable relief the grant or refusal of an interlocutory mandatory injunction shall ultimately rest in the sound judicial discretion of the court to be exercised in the light of the facts and circumstances in each case. Though the above guidelines are neither exhaustive nor complete or absolute rules, and there may be exceptional circumstances needing action, applying them as prerequisite for the grant or refusal of such injunctions would be a sound exercise of a judicial discretion.”

The Apex Court had relied on English decisions as under:

” 12. In Evans Marshall & Co. Ltd. v. Bertola SA (1973) 1 All ER 992 the Court of Appeal held that:
- “Although the failure of a plaintiff to show that he had a reasonable prospect of obtaining a permanent injunction at the trial was a factor which would normally weigh heavily against the grant of an interlocutory injunction, it was not a factor which, as a matter or law, precluded its grant;”.
The case law on the subject was fully considered in the latest judgment in Films Rover International Ltd. v. Cannon Film Sales Ltd. (1986) 3 All ER 772, Hoffmann, J. observed in that case:
- “But I think it is important in this area to distinguish between fundamental principles and what are sometimes described as guidelines, i.e. useful generalisations about the way to deal with the normal run of cases falling within a particular category. The principal dilemma about the grant of interlocutory injunctions, whether prohibitory or mandatory, is that there is by definition a risk that the court may make the wrong decision, in the sense of granting an injunction to a party who fails to establish his right at the trial (or Would fail if there was a trial) or alternatively, in failing to grant an injunction to a party who succeeds (or would succeed) at trial. A fundamental principle is therefore that the court should take whichever course appears to carry the lower risk of injustice if it should turn out to have been wrong in the sense I have described. The guidelines for the grant of both kinds of interlocutory injunctions are derived from this principle.”
Again at page 781 the learned Judge observed :
- “The question of substance is whether the granting of the injunction would carry that higher risk of injustice which is normally associated with the grant of a mandatory injunction. The second point is that in cases in which there can be no dispute about the use of the term mandatory to describe the injunction, the same question of substance will determine whether the case is normal and therefore within the guideline or exceptional and therefore requiring special treatment. If it appears to the court that, exceptionally, the case is one in which withholding a mandatory interlocutory injunction would be in fact carry a greater risk of injustice than granting it even though the court does not feel a high degree of assurance, about the plaintiffs chances of establishing his right, there cannot be any rational basis for withholding the injunction.”
and concluded that :
- “These considerations lead me to conclude that the Court of Appeal in. Locabail International Finance Ltd. v. Agroexport (1986) 1 All ER 901 at p. 906, (1986) 1 WLR 657 at p. 664 was not intending to fetter the courts discretion by laying down any rules which would have the effect of limiting the flexibility of the remedy, to quote Lord Diplock in the Cyanamid case (1975) 1 All ER 504 at p. 510, (1975) AC 396 at p 407. Just as the Cyanamid guidelines for prohibitory injunctions which require a plaintiff to show no more than an arguable case recognise the existence of exceptions in which more is required (compare Cayne v. Global Natural Resources plc (1884) 1 All ER 225), so the guideline approved for mandatory injunctions in Locabail recognises that there may be cases in which less is sufficient.
On the test to be applied in granting mandatory injunctions on interlocutory applications in 24 Halsburys Laws of England (4th Edn.) para 948 it is stated:
- “A mandatory injunction can be granted on an interlocutory application as well as at the hearing, but, in the absence of special circumstances, it will not normally be granted. However, if the case is clear and one which the court thinks ought to be decided at once, or if the act done is a simple and summary one which can be easily remedied , or if the defendant attempts to steal a march on the plaintiff, such as where, on receipt of notice that an injunction is about to be applied for, the defendant hurries on the work in respect of which complaint is made so that when he receives notice of an interim injunction it is completed, a mandatory injunction will be granted on an interlocutory application.”

2. Deoraj v. State of Maharashtra, AIR 2004 SC 1975

Deoraj v. State of Maharashtra, AIR 2004 SC 1975 : (2004) 4 SCC 697, pertained to elections in a Co-operative Society. The Apex Court observed in this case that if interim orders were not granted, by the time the matter came up for final hearing, there might be nothing left to grant a relief. It is pointed out that grant of interim mandatory relief may be justified where withholding of interim relief may tantamount to dismissal of the main petition itself (in spite of a prima facie case). Therefore, it was observed that if there was a very strong prima facie case, although the interim mandatory order amounted to granting final relief itself, considering the balance of convenience and irreparable injury, the Court could allow the interim relief. At the same time, the Court cautioned that this order should be passed in rare cases in compelling circumstances, alone. The Apex Court held as under:

“12. Situations emerge where the granting of an interim relief would tantamount to granting the final relief itself. And then there may be converse cases where withholding of an interim relief would tantamount to dismissal of the main petition itself; for, by the time the main matter comes up for hearing there would be nothing left to be allowed as relief to the petitioner though all the findings may be in his favour. In such cases the availability of a very strong prima facie case of a standard much higher than just prima facie case, the considerations of balance of convenience and irreparable injury forcefully tilting the balance of the case totally in favour of the applicant may persuade the court to grant an interim relief though it amounts to granting the final relief itself. Of course, such would be rare and exceptional cases. The court would grant such an interim relief only if satisfied that withholding of it would prick the conscience of the court and do violence to the sense of justice, resulting in injustice being perpetuated throughout the hearing, and at the end the court would not be able to vindicate the cause of justice. Obviously such would be rare cases accompanied by compelling circumstances, where the injury complained of is immediate and pressing and would cause extreme hardship. The conduct of the parties shall also have to be seen and the court may put the parties on such terms as may be prudent.”

Other Decisions

In State of Kerala v. Union of India, 01 Apr 2024, AIR 2024 SC 2649; 2024-7 SCC 183, it is held as under:

“At this juncture, it is necessary to distinguish the standard of scrutiny in applying these parameters for ‘prohibitory’ and ‘mandatory’ injunctions. Prohibitory injunctions vary from mandatory injunctions in terms of the nature of relief that is sought. While the former seeks to restrain the defendant from doing something, the latter compels the defendant to take a positive step, State of Haryana v. State of Punjab, (2004) 12 SCC 673, para 37-38. For instance, hypothetically, in the context of a construction dispute, if a plaintiff seeks to prevent the defendant from demolishing a structure, it would be deemed a prohibitory injunction. Whereas, if a plaintiff wants to compel the defendant to demolish a structure, then this would amount to mandatory injunction.
In that sense, prohibitory injunctions are forward-looking, such that they seek to restrict a future course of action. Conversely, mandatory injunctions are backward-looking, because they require the defendant to take an active step and undo the past action, Shepherd Homes Ltd. v. Sandham, [1970] 3 WLR 348. Since mandatory injunctions require the defendant to take a positive action instead of merely being restrained from performing an act, they carry a graver risk of prejudice for the defendant if the final outcome subsequently turns out to be in its favour. For instance, in the example above, preventing the demolition of a structure for the time being cannot be perceived to be on the same pedestal as mandating the demolition of a construction. While the former may still be undone, i.e., the defendant may still be compelled to demolish the structure should the plaintiff succeeds in his final claim, undoing the latter, i.e., rebuilding the construction, would cause graver injustice. The Courts are, therefore, relatively more cautious in granting mandatory injunction as compared to prohibitory injunction and thus, require the plaintiff to establish a stronger case, Id., Dorab Cawasji Warden v. Coomi Sorab Warden, (1990) 2 SCC 117, para 16.”

It is pointed out in Samir Narain Bhojwani v. Aurora Properties and Investments, 2018-8 MLJ 227: 2018-10 Scale 33, that the principle expounded in Dorab Cawasji Warden v. Coomi Sorab Warden, AIR 1990 SC 867, has been consistently followed by the Apex Court in decisions including Metro Marins v. Bonus Watch Co. (P) Ltd, (2004) 7 SCC 478, Kishore Kumar Khaitan v. Praveen Kumar Singh, (2006) 3 SCC 312, and Purshottam Vishandas Raheja v. Shrichand Vishandas Raheja, (2011) 6 SCC 73).

In Dr Syed Afzal v. Rubina Syed Faizuddin, 2020-1 CivCC 412; 2020-1 RCR (Civ) 185, the Supreme Court has observed that though the court has power to grant interim mandatory injunctions, it did not mean that the same could be granted even without giving opportunity of hearing to the opposite side, especially when the main appeal was pending for the six years. The Supreme Court observed in Hammad Ahmed v. Abdul Majeed, 2019 – 14 SCC 1, that ad interim mandatory injunction is granted only ‘on strong circumstance so that to protect the rights and interest of the parties’.

Injunction is a possessory remedy.

Courts protect settled possession (Rame Gowda v. M. Varadappa Naidu, 2004-1 SCC 769). Injunction is a possessory remedy. (See: Ladies Corner, Bangalore vs State of Karnataka, ILR 1987 KAR 1710, 1987 (1) KarLJ 402. Patil Exhibitors (Pvt.) Ltd. vs The Corporation of The City (M Venikatachaliah, J.) : AIR 1986 Kant 194, ILR 1985 KAR 3700, 1985 (2) KarLJ 533. Referred to in Chetak Constructions Vs. Om Prakash, AIR 2003 MP 145. )

Courts grant injunction without seeking declaration when title is clear, simple and straight-forward; and when no serious denial or cloud on title (not any apparent defect): Anathula Sudhakar v. Buchi Reddi: AIR 2008 SC 2033.

But, an injunction cannot be issued against a true owner or title holder and in favour of a trespasser or a person in unlawful possession. See: Padhiyar Prahladji Chenaji vs Maniben Jagmalbhai: 2022 SCC OnLine SC 258.

Settled Possession and Established Possession

In A. Subramanian v. R. Pannerselvam, AIR 2021 SC 821, the Supreme Court held that even a trespasser, who is in established possession of the property could obtain injunction. But, it was cautioned that the matter would be different, if the plaintiff himself elaborated in the plaint about title dispute and fails to make a prayer for declaration of title along with injunction relief.

In Poona Ram v. Moti Ram, AIR 2019 SC 813, it was pointed out in a case where there was no document to prove settled possession that ‘merely on doubtful material and cursory evidence, it cannot be held that the plaintiff was ever in possession of the property, and that too in settled possession’. It held further as under:

“13. The crux of the matter is that a person who asserts possessory title over a particular property will have to show that he is under settled or established possession of the said property. But merely stray or intermittent acts of trespass do not give such a right against the true owner. Settled possession means such possession over the property which has existed for a sufficiently long period of time, and has been acquiesced to by the true owner. A casual act of possession does not have the effect of interrupting the possession of the rightful owner. A stray act of trespass, or a possession which has not matured into settled possession, can be obstructed or removed by the true owner even by using necessary force. Settled possession must be (i) effective,(ii) undisturbed, and (iii) to the knowledge of the owner or without any attempt at concealment by the trespasser. There cannot be a straitjacket formula to determine settled possession. Occupation of a property by a person as an agent or a servant acting at the instance of the owner will not amount to actual legal possession. The possession should contain an element of animus possidendi. The nature of possession of the trespasser is to be decided based on the facts and circumstances of each case.”

In Rame Gowda v. M. Varadappa Naidu, (2004) 1 SCC 769, our Apex Court Court, observed as under:

“8. It is thus clear that so far as the Indian law is concerned the person in peaceful possession is entitled to retain his possession and in order to protect such possession he may even use reasonable force to keep out a trespasser. A rightful owner who has been wrongfully dispossessed of land may retake possession if he can do so peacefully and without the use of unreasonable force. If the trespasser is in settled possession of the property belonging to the rightful owner, the rightful owner shall have to take recourse to law; he cannot take the law in his own hands and evict the trespasser or interfere with his possession. The law will come to the aid of a person in peaceful and settled possession by injuncting even a rightful owner from using force or taking law in his own hands, and also by restoring him in possession even from the rightful owner (of course subject to the law of limitation), if the latter has dispossessed the prior possessor by use of force. In the absence of proof of better title, possession or prior peaceful settled possession is itself evidence of title. Law presumes the possession to go with the title unless rebutted. The owner of any property may prevent even by using reasonable force a trespasser from an attempted trespass, when it is in the process of being committed, or is of a flimsy character, or recurring, intermittent, stray or casual in nature, or has just been committed, while the rightful owner did not have enough time to have recourse to law. In the last of the cases, the possession of the trespasser, just entered into would not be called as one acquiesced to by the true owner.”

‘Possession is good against all but the True Owner’

This principle is declared in Parry v. Clissold, (1907) AC 73. Though the Supreme Court accepted this principle in Nair Service Society Ltd. vs. K.C. Alexander and others, AIR 1968 SC 1165, it was with a clarification. It reads as under:

“(17) In our judgment this involves an incorrect approach to our problem. To express our meaning we may begin by reading 1907 AC 73, to discover if the principle that possession is good against all but the true owner has in any way been departed from. 1907 AC 73 reaffirmed the principle by stating quite clearly:
“It cannot be disputed that a person in possession of land in the assumed character of owner and exercising peaceably the ordinary rights of ownership has a perfectly good title against all the world but the rightful owner. And if the rightful owner does not come forward and assert his title by the process of law within the period prescribed by the provisions of the statute of Limitation applicable to the case, his right is for ever extinguished and the possessory owner acquires an absolute title.”

When Declaration is Needed for grant of Injunction

See Blog: Declaration and Injunction

As Introductory/preliminary to grant (1) Injunction or (2) Recovery (Unnikrishnan v. Ponnu Ammal: 1999 1 KLT 298: AIR 1999 Ker 405)
When serious denial or cloud on title (or right): Anathula Sudhakar v. P Buchi Reddy AIR 2008 SC 2033.
Asserted title or civil right is not clear, simple and straight-forward; or, not well-established (lawful possession). (Eg. inchoate rights like title on adverse possession).
Complicated or complex questions of fact and law to be ‘adjudicated’ (Anathula: 2008 SC 2033; Eg. Legitimacy of a child; Validity of Marriage: AIR 2018 SC 334;2013-3 KLJ 411; 2018-4 KLT 870; 2018-3 KLT 664;
Termination of service on illegality: AIR 1951 Mad 870. Qted. in 1989 ILR (Kar) 3320; 2008 4 All LR 39. See also: AIR 1958 SC 886: Q. in 2016 2 SCC 779.
Complicated questions of title: Mt. Azia v. Sukhai Biswas, AIR 1970 Pat 136; Government of AP v. Thummala Krishna Rao, (1982) 2 SCC 134; State of Rajasthan v. Smt.Padmavati Devi, JT 1995 (5) S.C. 481 .) Eg. Decree, instrument or contract stands as an insurmountable obstacle – though Plaintiff not a party : Md. Noorul Hoda V. Bibi Raifunnisa : (1996) 7 SCC 767
Make clear what is doubtful – as to legal character and title. ILR 1970-2 (Del) 433: Eg. Suit by trespasser claiming adverse possession: Darshan Kumari v. Kaushalya Devi: 1990 JKLR 208; 1991 KashLJ 1 (R.P. Sethi, J) for dispelling cloud: AIR 1953 (Gau) 162.

Mandatory Injunction Sought For Instead One For Possession

If possession is lost, the plaintiff has to seek recovery; and mandatory injunction would not be sufficient. Court fee is also different for recovery. In Sant Lal Jain v. Avtar Singh, AIR 1985 SC 857, our Apex Court observed as under:

“7. In the present case it has not been shown to us that the appellant had come to the Court with the suit for mandatory injunction after any considerable delay which will disentitle him to the discretionary relief. Even if there was some delay, we think that in a case of this kind at-tempt should be made to avoid multiplicity of suits and the licensor should not be driven to file another round of suit with all the attendant delay, trouble and expense. The suit is in effect one for possession though couched in the form of a suit for mandatory injunction as what would be given to the plaintiff in case he succeeds is possession of the property to which he may be found to be entitled. Therefore, we are of the opinion that the appellant should not be denied relief merely because he had couched the plaint in the form of a suit for mandatory injunction.”

When Injunction granted without declaration

When title or civil right is well established (or clear, simple and straight-forward).
When title is clear and simple, the court may venture a decision on the issue of title, even though the suit is for a mere injunction. But where the issue of title involves complicated or complex questions of fact and law, the court should not decide the issue.
Persons having clear title and possession suing for injunction, should not be driven to the costlier and more cumbersome remedy of a suit for declaration. (Anathula: 2008 SC 2033)

1	Title: clear,simple and straight-forward; or settled right (lawful possession)Well established possession No Substantial questions of fact and law exists (2017 -7 MLJ 627; 2005-4 MLJ 258): Unnikrishnan VS Ponnu Ammal: 1999 1 KLT 298: AIR 1999 Ker 405.No serious denial or cloud(not any apparent defect) on title (or right): Anathula: AIR 2008 SC 2033. (Such as settled or lawful possession: Anathula: AIR 2008 SC 2033; infringement of trade mark or copyright: 2004-3 SCC 90). Void acts:2000 SC 1099; 2009-4 KLT 840; (2002) 9 SCC 28; AIR 1977 SC 1718; 2013 SC 1226. Fraud on character of a document (not contents): Prem singh Vs. Birbal: (2006) 5 SCC 353
2	Particular instances specified in Sec. 38 (2) & (3) of the Sp. Rlf. Act 1. Breach of Contractual obligations(including Bylaw provisions). 2. Trustee invades plaintiff’s right. 3. No standard for ascertaining damages. 4. Compensation in money would not be adequate relief. 5. Necessary to prevent multiplicity of judicial proceedings.
3	Fiduciary (attached to trust) obligation: 41(h).
4	No lis (no dispute for defendant): 2010-168 DLT 132
5	Facts judicially noticeable: Evd. Act, S. 57
6	Law confers a right; or, Right arises under an Act. (Eg. with expression “shall be void”):(2015)7 SCC 601; 2003 SC 4102 Sec. 74 Contract Act: while resisting a claim of return of advance or to support forfeiture of earnest money, the defendant can resist it without a counter claim. In Kailash Nath Associates Vs. Delhi Development Authority (2015) 4 SCC 136, it is held: “The Section applies whether a person is a plaintiff or a defendant in a suit.”
7	Established custom/customary-rights. Village pathway, Marumakkathayam
8	Constitutional right: Art. 19, 21, 300A etc.
9	Estoppel against defendant S. 115, 116 (tenant), 117 (licencee) Evd. Act
10	Acquiescence against defendant
11	Already declared (in earlier civil case).

Cloud – Explained in Anathula – Para 12

A cloud is raised when some apparent defect in his title or some prima facie right of a third party. Not a cloud, if trespasser without any claim to title or an interloper without any apparent title, merely denies the plaintiff’s title. (It should be serious cloud: Kurella Naga Druva Yudaya Bhaskara Rao v. Galla Jani Kamma, (2008) 15 SCC 150: (q. in Muddasani Venkata Narsaiah v. Muddasani Sarojana: AIR 2016 SC 2250)

When declaration refused (S. 34 Proviso)

1. Further relief possible and not sought for (S. 34 Proviso). Where relief of partition is to be sought for, it should be prayed.
2. Where declaration is a vehicle to launch the weapon of injunction, or recovery – if injunction or recovery itself cannot be granted (or, if granted ineffective: Brutum-fulmen applies)

When declaration given without further relief:

No further relief possible on legal character/status or title.
Pecuniary rights (S. 34 is limited to legal character and right to property): AIR 1971 MP 65

No decree for recovery unless ‘present right to the possession’

While considering the question whether a worshipper can file a suit for recovery, it is held by our Apex Court, in M Siddiq Vs. Mahanth Suresh Das (Ayodhya Case) 2020-1 SCC 1, that no decree for recovery of possession can be made in such a suit unless the worshipper has the ‘present right to the possession’. But it is pointed out that in such situations, a worshipper must be permitted to sue as next friend of the deity, sue on behalf of the idol itself – directly exercising the deity’s right to sue.

Ayodhya Case – Proceeded on the principle: ‘The court is the protector of all charities’.

[See Blog: M. Siddiq Vs. Mahant Suresh Das –Pragmatic Verdict on Ayodhya Disputes]

It is held in M Siddiq Vs. Mahanth Suresh Das (Ayodhya Case) as under:

When a Shebait is negligent in its duties or takes actions that are hostile to the deity or improperly alienated trust property or refuses to act for the benefit of the idol or where the Shebait’s actions are prejudicial to the interest of the idol, it becomes necessary to confer on a next friend the right to bring an action in law against the Shebait; and a worshipper has an ad hoc power of representation to protect the interest of the idol.
The court can craft any number of reliefs, including the framing of a scheme. The question of relief is fundamentally contextual and must be framed by the court in light of the parties before it and the circumstances of each case.

It is clear that the our Apex Court has rendered the above edicts adopting the view that ‘the court is the protector of all charities’.

Declaration on ‘Legal Character’ & Anathula Sudhakar

See Blog: Declaration and Injunction

Sec. 34 refers to declaration of status (legal character) or right. Anathula Sudhakar refers to denial/cloud in property rights alone; and not status (legal character).

The same principle can be brought in ‘status’ (legal character)also. It is held in AIR 1995 Ori 59; Quoted in: 2013 3 ILR(Ker) 259; 2013 3 KLJ 411; 2013-3 KLT(SN) 60.

Declaration is given when cloud hovering the on (or denial of) ‘Legal Character’ also.

Eg. Legitimacy of a child; Validity of Marriage: AIR 2018 SC 334;2013-3 KLJ 411; 2018-4 KLT 870; 2018-3 KLT 664;
Termination of service on illegality: AIR 1951 Mad 870. Qted. in 1989 ILR (Kar) 3320; 2008 4 All LR 39. See also: AIR 1958 SC 886: Q. in 2016 2 SCC 779.

Declaration sought only as an ancillary relief – limitation

(Declaration under Sec. 34 is not exhaustive.)

A suit for declaration is governed by Article 58 of the Limitation Act and the period of limitation is three years. But it is not applicable for declaration sought only as an ancillary relief.

In S. Krishnamma v. TS Viswajith, 2009 (4) KLT 840, it is observed that when a declaration regarding the void character of a document is sought for, the period of limitation for the suit would not be the period provided for declaration. The consequential relief sought for is to be treated as main relief for governing the period of limitation. (See Mrs. Indira Bhalchandran Gokhale v. Union of India -AIR 1990 Bom 98). Therefore, declaration prayed for in this case as relief Nos. 1 and 2 were unnecessary, and even if made, need only be treated as ancillary to the main relief of partition of immovable properties and the claim that appellant is entitled to get family pension.

Locus for Plaintiff in Infraction of a Municipal Building Regulation

A neighbour who is affected by an illegal construction, or a construction in infraction of a Municipal regulation, will have the locus and can maintain a suit for perpetual injunction. The Kerala High Court, in Saina v. Konderi, AIR 1984 Ker 170, turned down the argument that the matters concerning violation of the Municipal Rules are entirely the look-out of the local authority. It was observed that unless, by express words or by necessary implication he is debarred (Sec. 9 CPC) from doing so, civil court would have jurisdiction if there was violation of Building Rules. Finally, it is held that the law recognises a citizen’s right to institute a suit with a view to ensure effective implementation of the Municipal regulations, such as the Buildings Rules, even in the absence of a specific personal injury to the person suing. The High Court quoted Lord Wright in (1868) 4 Ex. 43 where it was said: “If you have an infringement of a legal right there is a right of action without actual damage being proved…. Where you have an interference with a legal right, the law presumes damage.”

Relying on the Kerala decision, it is observed in Sindhu Education Society v. Municipal Corporation of City of Ulhasnagar, AIR 2001 Bom 145 and in Fatima w/o Caetano Joao v. Village Panchayat of Merces, AIR 2000 Bom 444, it was observed that the citizens will have the right to enforce Rules through Court if the Municipal Corporation fails to perform its duty and that courts in India has the duty to see that the law is obeyed and not violated.

(See also: Babulal Shivlal Upadhye v. Yadav Atmaram Joshi, 1994-2 Bom CR 583; 1994 2 MahLR 869; 1994 1 MhLJ 256; D. Thomas v. N. Thomas1999 2 MLJ 260; Musstt Anjira Khatoon Hazarika v. Tapan Kumar Das: 2015 1 GauLR 133.)

In K. Ramdas Shenoy v. Chief Officer, Town Municipal Council, Udipi, AIR 1974 SC 2177, the Apex Court held as follows:

“An illegal construction of a cinema building materially affects the right to of enjoyment of the property by persons residing in the residential area. The Municipal Authorities owe a duty and obligation under the statute to see that the residential areas is not spoilt by unauthorized construction. The scheme is for the benefit of the residents of the locality. The Municipality acts in aid of the scheme. The rights of the residents in the area are invaded by an illegal construction of a cinema building. It has to be remembered that a scheme in residential area means planned orderliness in accordance with the requirements of the residents. If the scheme is nullified by arbitrary acts in excess and derogation of the powers of the Municipality the courts will quash orders passed by Municipalities in such cases.”

Andhra Pradesh High Court in Bhagwan Das v. Harish ChetwalIt held as under, as appears from the reported judgment, Sarada Bai v. Shakuntala Bai AIR 1993 AP 20 t:

“The pronouncement of the Supreme Court in K.R. Shenoy v. Udipi Municipality emboldens us to take a view at variance with the one expressed by a Division Bench of this Court in Kamalamma v. Subba Rao and so hold that an individual, be he a neighbour or one of a class of persons where the infraction of a right is involved and complained of, is certainly clothed with a right to invoke the jurisdiction of a Civil Court not only to enforce the obligations and duties was on the concerned authorities, but also subject the individual or class of individuals to conform to the obligations of the statute.
If that be so, it presents no difficulty in answering one of the questions raised in this case, viz., whether it would be competent for the neighbour, namely, the petitioners herein to enforce the obligation cast on the Municipal Corporation to remove the structures constructed in contravention of the statutory provisions; and to seek a direction against an individual, plaintiff herein to conform to the obligation laid down in Chapter XII of the Act and to demolish any construction made in contravention thereof, either by way of a civil proceeding or seeking mandamus under Article 226 of the Constitution. The answer is quite apparent and it is in the affirmative.”

You find in this cluster

Natural Justice – Not an Unruly Horse, Cannot be Placed in a Straight-Jacket & Not a Judicial Cure-all.

Sea Change on Natural Justice– on Application of Doctrine of Prejudice, after Maneka Gandhi Vs. Union of India, AIR 1978 SC 597: Affirmed in State of UP v. Sudhir Kumar Singh, 2020 SCC OnLine SC 847. Now, the law requires – prejudice ‘as a matter of fact‘; i.e. there must be ‘real prejudice‘.

Jojy George Koduvath.

Introduction.

Formerly, only two rules of rules of Natural Justice were recognised:

“Nemo debetesse judex in propria causa sua” which means, no one should be a judge in his own case because it leads to rule of biases.
Audi alteram partem, which means, no one should be condemned unheard. This rule cannot by itself, without more, lead to the conclusion that prejudice is thereby caused.

Subsequently, more subsidiary rules were recognised, such as:

In good faith, without bias and not arbitrarily or unreasonably.
Right to reasons or ‘speaking order’.

Later on, the following edicts are also pointed out as requirements of complying natural justice:

‘Justice should not only be done but seen to be done’,
‘A charge should be framed against the delinquent to face his case’.

PART – I

Sea Change in Natural Justice – Doctrine of Prejudice & Straight Jacket Formula

In early times, the legal concept uniformly followed was that ‘denial of natural justice itself causes prejudice’. It is pointed out by the Bombay High Court in Gulab Babusaheb Bargiri Vs. Executive Engineer, Maharashtra State Electricity Board (2000)[1] that, after Maneka Gandhi Vs. Union of India (1978),[2] the principle of natural justice has undergone a sea change. Now, the law requires – prejudice exist as a matter of fact.

In PD Agrawal v. State Bank of India (2006)[3] the Apex Court observed that the principles of natural justice ‘has in recent time‘ undergone a sea change. Relying on State Bank of Patiala Vs. SK Sharma (1996)[4] and Rajendra Singh Vs. State of MP (1996)[5] the Court held that principle of law was that some real prejudice must have been caused to the complainant.

It is held in PD Agrawal v. State Bank of India as under:

“The principles of natural justice cannot be put in a straight jacket formula. It must be seen in circumstantial flexibility. It has separate facets. It has in recent time also undergone a sea change.
… In Ajit Kumar Nag vs. General Manager (PJ), Indian Oil Corpn. Ltd., Haldia, AIR 2005 SC 4217. a Three Judge Bench of this Court opined:
- “We are aware of the normal rule that a person must have a fair trial and a fair appeal and he cannot be asked to be satisfied with an unfair trial and a fair appeal. We are also conscious of the general principle that pre-decisional hearing is better and should always be preferred to post-decisional hearing. We are further aware that it has been stated that apart from Laws of Men, Laws of God also observe the rule of audi alteram partem. It has been stated that the first hearing in human history was given in the Garden of Eden. God did not pass sentence upon Adam and Eve before giving an opportunity to show cause as to why they had eaten the forbidden fruit. (See R. v. University of Cambridge) But we are also aware that the principles of natural justice are not rigid or immutable and hence they cannot be imprisoned in a straitjacket. They must yield to and change with exigencies of situations. They must be confined within their limits and cannot be allowed to run wild. It has been stated: ‘To do a great right after all, it is permissible sometimes to do a little wrong.’ [Per Mukharji, C.J. in Charan Lal Sahu v. Union of India (Bhopal Gas Disaster), [(1990) 1 SCC 613: AIR 1990 SC 1480] SCC p. 705, para 124.] While interpreting legal provisions, a court of law cannot be unmindful of the hard realities of life. In our opinion, the approach of the Court in dealing with such cases should be pragmatic rather than pedantic, realistic rather than doctrinaire, functional rather than formal and practical rather than ‘precedential’.
- …Decision of this Court in S.L. Kapoor vs. Jagmohan & Ors. [(1980) 4 SCC 379], whereupon Mr. Rao placed strong reliance to contend that non-observance of principle of natural justice itself causes prejudice or the same should not be read “as it causes difficulty of prejudice”, cannot be said to be applicable in the instant case. The principles of natural justice, as noticed hereinbefore, has undergone a sea change.
- In view of the decision of this Court in State Bank of Patiala & Ors. vs. S.K. Sharma [(1996) 3 SCC 364] and Rajendra Singh vs. State of M.P. [(1996) 5 SCC 460], the principle of law is that some real prejudice must have been caused to the complainant. The Court has shifted from its earlier concept that even a small violation shall result in the order being rendered a nullity. To the principal doctrine of audi alterem partem, a clear distinction has been laid down between the cases where there was no hearing at all and the cases where there was mere technical infringement of the principal. The Court applies the principles of natural justice having regard to the fact situation obtaining in each case. It is not applied in a vacuum without reference to the relevant facts and circumstances of the case. It is no unruly horse. It cannot be put in a straight jacket formula. [See Viveka Nand Sethi vs. Chairman, J. & K. Bank Ltd. & Ots. (2005) 5 SCC 337 and State of U.P. vs. Neeraj Awasthi & Ors. JT 2006 (1) SC 19. See also Mohd. Sartaj vs. State of U.P. (2006) 1 SCALE 265.]”

Analysing previous judgments it is observed in State of UP Vs. Sudhir Kumar Singh, 2020 SCC OnLine SC 847, that the following are the tests to determine the non-observance of natural justice:

“Natural justice is a flexible tool in the hands of the judiciary to reach out in fit cases to remedy injustice. The breach of the audi alteram partem rule cannot by itself, without more, lead to the conclusion that prejudice is thereby caused.
Where procedural and/or substantive provisions of law embody the principles of natural justice, their infraction per se does not lead to invalidity of the orders passed. Here again, prejudice must be caused to the litigant, except in the case of a mandatory provision of law which is conceived not only in individual interest, but also in public interest.
No prejudice is caused to the person complaining of the breach of natural justice where such person does not dispute the case against him or it. This can happen by reason of estoppel, acquiescence, waiver and by way of non-challenge or non-denial or admission of facts, in cases in which the Court finds on facts that no real prejudice can therefore be said to have been caused to the person complaining of the breach of natural justice.
In cases where facts can be stated to be admitted or indisputable, and only one conclusion is possible, the Court does not pass futile orders of setting aside or remand when there is, in fact, no prejudice caused. This conclusion must be drawn by the Court on an appraisal of the facts of a case, and not by the authority who denies natural justice to a person.
The “prejudice” exception must be more than a mere apprehension or even a reasonable suspicion of a litigant. It should exist as a matter of fact, or be based upon a definite inference of likelihood of prejudice flowing from the non-observance of natural justice.”(Quoted in Chairman, State Bank of India v. MJ James, (2022) 2 SCC 301).

The Supreme Court, in Uma Nath Pandey Vs. State of UP, (2009) 12 SCC 40, noted as under:

“7. The crucial question that remains to be adjudicated is whether principles of natural justice have been violated and if so, to what extent any prejudice has been caused, it may be noted at this juncture that in some cases it has been observed that where grant of opportunity in terms of principles of natural justice do not improve the situation, ‘useless formality theory’ can be pressed into service.”

EARLIER VIEW: Order in breach of Natural Justice is a Nullity

In AR Antulay Vs. RS Nayak (1988)[6] a seven Judge Bench of our Apex Court has held that when an order has been passed in violation of a fundamental right or in breach of the principles of natural justice, the same would be nullity.[7]

The Supreme Court, in SL Kapur Vs. Jagmohan (1981),[8] held as under:

“In our view the principles of natural justice know of no exclusionary rule dependent on whether it would have made any difference if natural justice had been observed. The non-observance of natural justice is itself prejudice to any man and proof of prejudice independently of proof of denial of natural justice is unnecessary. It ill comes from a person who has denied justice that the person who has been denied justice is not prejudiced.”

The principles of law as to natural justice, to be applied in an action for termination of an employee, are applied in the matter of expulsion of a member of a society also.

Natural Justice: Audi Alteram Partem – Requirements

Following are the three important principles of law as to enquiry:

(i) Charge or show cause notice[9]
(ii) Proper evidence.[10]
(iii) Natural justice should be complied with.[11] and
(iv) Findings with reasons.

Granting opportunity for cross examination is integral part of natural justice.[12]

Rule that is Contrary to the ‘Rules of Natural Justice’, Void

While considering Section 2 (b) of the Karnataka Societies Registration Act (similar provision to Sec. 15 of the Societies Registration Act), the High Court of Karnataka (RP Sethi, G. Patri Basavana Goud JJ.), in Lingappa Police Patil Vs. Registrar of Societies,[13] it is held that the Rule of the Society which declared a person would cease to be a member merely on his default to make the subscription, without even providing him an opportunity to show cause for not making the payment within a specified period appeared ‘to be very harsh’; and that ‘confiscatory and deprivatory provisions made, resulting in civil consequences, should not have been allowed’ to be incorporated in the bye laws. The Division Bench struck down the impugned Rule it being contrary to the provisions of the Act. It is on the principle that rules of natural justice require that that no person can be condemned unheard.[14]

PART – II

Domestic Tribunal – Jurisdiction of the Court is of a very limited

In Ujjal Talukdar Vs. Netai Chand Koley[15] following principle has been laid down by the Calcutta High Court:

“A domestic tribunal cannot do anything it likes, throwing everything to the winds. But the jurisdiction of the Court is of a very limited character. Generally speaking, the court can set aside the decision of a domestic tribunal on one of the three basic considerations set out below:

A. When the tribunal oversteps the limits of its jurisdiction.
B. When it violates the principles of natural justice.
C. When it acts dishonestly,[16] actuated by bias, bad faith and the like.”

Natural Justice: Order in violation bad or not depended on facts of each case

Whether an order in violation of natural justice is bad or not is depended on facts and circumstances of each case.[17] Its essence is good consciousness in a given situation; nothing more but nothing less.[18]

In Keshav Mills Co Ltd. Vs. Union of India[19]our Supreme Court held:

“We do not think it either feasible or even desirable to lay down any fixed or rigorous yard-stick in this manner. The concept of Natural Justice cannot be put into a straight-jacket. It is futile, therefore, to look for definitions or standards of Natural Justice from various decisions and then try to apply them to the facts of any given case. The only essential point that has to be kept in mind in all cases is that the person concerned should have a reasonable opportunity of presenting his case and that the administrative authority concerned should act fairly, impartially and reasonably.”

Court decide whether necessary for a just decision

In Mohinder Singh Gill Vs. Election Commissioner[20] our Apex Court expounded the purport of natural justice following the principles laid down in AK Kraipak Vs. Union of India[21] as under:

“The aim of the rules of natural justice is to secure justice or to put it negatively to prevent miscarriage of justice. These rules can operate only in areas not covered by any law validly made. In other words they do not supplant the law of the land but supplement it. The concept of natural justice has undergone a great deal of change in recent years. In the past it was thought that it included just two rules namely: (1) no one shall be a judge in his own case (Nemo Judex In Causa Sua) and (2) no decision shall be given against a party without affording him a reasonable hearing (Audi alteram partem). Very soon thereafter a third rule was envisaged and that is that quasi-judicial enquiries must be held in good faith, without bias and not arbitrarily or unreasonably. But in the course of years many more subsidiary rules came to be added to the rules of natural justice. Till very recently it was the opinion of the courts that unless the authority concerned was required by the law under which it functioned to act judicially there was no room for the application of the rules of natural justice. The validity of that limitation is now questioned. If the purpose of the rules of natural justice is to prevent miscarriage of justice one fails to see why those rules should be made inapplicable to administrative enquiries. Often times it is not easy to draw the line that demarcates administrative enquiries from quasi-judicial enquiries. Enquiries which were considered administrative at one time are now being considered as quasi-judicial in character. Arriving at a just decision is the aim of both quasi-judicial enquiries as well as administrative enquiries. An unjust decision in an administrative enquiry may have more far reaching effect than a decision in a quasi-judicial enquiry. As observed by this Court in Suresh Koshy George Vs. University of Kerala (AIR 1969 SC 198) the rules of natural justice are not embodied rules. What particular rule of natural justice should apply to a given case must depend to a great extent on the facts and circumstances of that case, the framework of the law under which the enquiry is held and the constitution of the Tribunal or body of persons appointed for that purpose. Whenever a complaint is made before a court that some principle of natural justice had been contravened the court has to decide whether the observance of that rule was necessary for a just decision on the facts of that case.”

Natural Justice: Common sense justice

The Supreme Court, in Uma Nath PandeyVs. State of UP (2009),[22] further explained the of principles of natural justice as follows:

“7. The crucial question that remains to be adjudicated is whether principles of natural justice have been violated and if so, to what extent any prejudice has been caused, it may be noted at this juncture that in some cases it has been observed that where grant of opportunity in terms of principles of natural justice do not improve the situation, ‘useless formality theory’ can be pressed into service.
8. Natural justice is another name for common sense justice. Rules of natural justice are not codified canons. But they are principles ingrained into the conscience of man. Natural justice is the administration of justice in a common sense liberal way. Justice is based substantially on natural ideals and human values. The administration of justice is to be freed from the narrow and restricted considerations which are usually associated with a formulated law involving linguistic technicalities and grammatical niceties. It is the substance of justice which has to determine its form.
9. The expressions ‘natural justice’ and ‘legal justice do not present a watertight classification, It is the substance of justice which is to be secured by both, and whenever legal justice fails to achieve this solemn purpose, natural justice is called in aid of legal justice. Natural justice relieves legal justice from unnecessary technicality, grammatical pedantry or logical prevarication. It supplies the omissions of a formulated law. As Lord Buckmaster said, no form or procedure should ever be permitted to exclude the presentation of a litigant’s defense.
10. The adherence to principles of natural justice as recognised by all civilised States is of supreme importance when a quasi-judicial body embarks on determining disputes between the parties, or any administrative action involving civil consequences; is in issue. These principles are well settled. The first and foremost principle is what is commonly known as audialterampartem rule. It says that no one should be condemned unheard. Notice is the first limb of this principle. It must be precise and unambiguous. It should apprise the party determinatively of the case he has to meet. Time given for the purpose should be adequate so as to enable him to make his representation. In the absence of a notice of the kind and such reasonable opportunity, the order passed becomes wholly vitiated. Thus, it is but essential that a party should be put on notice of the case before any adverse order is passed against him. This is one of the most important principles of natural justice. It is after all an approved rule of fair play. The concept has gained significance and shades with time. When the historic document was made at Runnymede in 1215, the first statutory recognition of this principle found its way into the ‘Magna Carta’. The classic exposition of Sir Edward Coke of natural justice requires to ‘vocate, interrogate and adjudicate’. In the celebrated case of Cooper Vs. Wandsworth Board of Works the principle was thus stated: ‘(E)ven God himself did not pass sentence upon Adam before he was called upon to make his defense. “Adam” (says God), “Where art thou? Hast thou not eaten of, the tree whereof I commanded thee that thou shouldest not eat?”

Natural justice has been variously defined. It is another name for common sense justice. It is held in Canara Bank v. Debasis Das:[27]

“Rules of natural justice are not codified canons. But they are principles ingrained into the conscience of man. Natural justice is the administration of justice in a common sense liberal way. Justice is based substantially on natural ideals and human values. The administration of justice is to be freed from the narrow and restricted considerations which are usually associated with a formulated law involving linguistic technicalities and grammatical niceties. It is the substance of justice which has to determine its form. Principles of natural justice are those rules which have been laid down by the courts as being the minimum protection of the rights of the individual against the arbitrary procedure that may be adopted by a judicial, quasi-judicial and administrative authority while making an order affecting those rights. These rules are intended to prevent such authority from doing injustice.”[28]

In this decision it is also held:

“Even an administrative order which involves civil consequences[29] must be consistent with the rules of natural justice. This Court has elaborated the expression `civil consequence’ by observing that it encompasses infraction of not merely property or personal rights but of civil liberties, material deprivations and non-pecuniary damages. This Court has further stated, that, in its wide umbrella comes everything that affects a citizen in civil life.”[30]

Violation of the Principles of Natural Justice

Our Apex Court, in Maharashtra State Board of Secondary and Higher Secondary Education Vs. K S Gandhi[23] observed that the applicability of the principles of natural justice is not a rule of thumb or a straight jacket formula as an abstract proposition of law; and that whether omission to record reasons by a domestic tribunal vitiates the impugned order or is in violation of the principles of natural justice depends on the facts of the case, nature of the inquiry and the effect of the order/decision on the rights of the person and attendant circumstances. In this decision, following the ratio in Ghazanfar Rashid v. Board, H.S. and I. Edn., U.P[24] Full Bench, it is observed that, though it is open to the High Court to interfere with the order of the quasi judicial authority if it is not supported by any evidence or if the order as passed in contravention of the statutory provisions of the law or in violation of the principles of natural justice, the court has no jurisdiction to quash the order merely on the ground that the evidence available on record is insufficient or inadequate or on the ground that different view could possibly be taken on the evidence available on the record. Court should be slow to interfere with the decisions of domestic tribunal. Authority’s appreciation of the problem must be respected.

In All Saints High School Hyderabad Vs. Government of Andhra Pradesh[25] our Apex Court held pointed out that the decision of a domestic tribunal can be interfered with if there is want of good faith or when there is victimisation or when the management has been guilty of basic error or violation of principles of natural justice or when the material findings are completely baseless or perverse.[26]

Natural Justice: Strict Compliance

Removal of a member or an office bearer of a society on the basis of proved misconduct[31] is a quasi-judicial proceeding in nature. Therefore, the principles of natural justice[32] are required to be given full play and strict compliance should be ensured, even in the absence of any provision providing for the same. Principles of natural justice require a fair opportunity of defense to such member or office bearer.

In Board of High School and Intermediate Education, UP Vs. Ghanshyam Das Gupta[33] the Supreme Court observed as follows:

“If a statutory authority has power to do any act which will prejudicially affect the subject then, although there are not two parties apart from the authority and the contest is between the authority proposing to do the act and the subject opposing it, the final determination of the authority will yet be a quasi-judicial act provided the authority is required by the Statute to act judicially. The statute is not likely to provide in so many words that the authority passing the order is required to act judicially; that can only be inferred from the express provisions of the statute in the first instance in each case and no one circumstance alone will be determinative of the question whether the authority set up by the statute has the duty to act judicially or not. The inference whether the authority acting under a statute where it is silent has the duty to act judicially will depend on the express provisions of the statute read along with the nature of the rights affected, the manner of the disposal provided the objective criterion if any to be adopted, the effect of the decision on the person affected and other indicia afforded by the statute. A duty to act judicially may arise in widely different circumstances which it will be impossible and indeed inadvisable to attempt to define exhaustively.”[34]

Any breach of a bye-law would not result into automatic cessation of membership but the procedure for removal or expulsion from membership would be required to be followed even in case of breach of bye-laws of a society.[35]

When a committee of an association continues to exercise powers even after cessation of their period of office opportunity of being heard should be given to the members of the committee concerned.[36] It is well settled that principles of natural justice must be read into the byelaws and the statute, unless there is a clear directive to the contrary.[37]

PART – III

Natural Justice: Additional Rules on Bias:

Quasi-judicial actions must be in good faith, without bias
Right to get reasons in administrative actions

Our Apex Court expounds the purport and extent of principles of natural justice in A.K. Kraipak Vs. Union of India[38] as under:

“The aim of the rules of natural justice is to secure justice or to put it negatively to prevent miscarriage of justice. These rules can operate only in areas not covered by any law validly made. In other words they do not supplant the law of the land but supplement it. The concept of natural justice has undergone a great deal of change in recent years. In the past it was thought that it included just two rules namely:

(1) no one shall be a judge in his own case (Nemo debetesse judex propria causa) and
(2) no decision shall be given against a party without affording him a reasonable hearing (Audi alteram partem).

Very soon thereafter a third rule was envisaged and that is that quasi-judicial enquiries must be held in good faith, without bias and not arbitrarily or unreasonably. But in the course of years many more subsidiary rules came to be added to the rules of natural justice.
Right to reasons is an indispensable part of a sound system of judicial review. Under our Constitution an administrative decision is subject to judicial review if it affects the right of a citizen, it is therefore desirable that reasons should be stated.”

The rule against bias contained in three maxims.

1. No man shall be a judge in his own cause
2. Justice should not only be done, but manifestly and undoubtedly be seen to done.
3. Judges like Caesar’s wife should be above suspicion.

Principles of Law as to Enquiry

It is observed in Sur Enamel and Stamping Works Pvt. Ltd. Vs. Their Workmen:[39]

“… An enquiry cannot be said to have been properly held unless,

the employee proceeded against has been informed clearly of the charges leveled against him,
the witnesses are examined ordinarily in the presence of the employee in respect of the charges,
the employee is given a fair opportunity to cross-examine witnesses,
- he is given a fair opportunity to examine witnesses including himself in his defense if he so wishes on any relevant matter, and
the inquiry officer records his findings with reasons for the same in his report.”

In Chamoli District Co-Operative Bank Ltd. Vs. Raghunath Singh Rana (2016)[40] our Apex Court laid down that the following principles would emerge as to the enquiry against a workman:

“(i) The enquiries must be conducted bona fide and care must be taken to see that the enquiries do not become empty formalities.
(ii) If an officer is a witness to any of the incidents which is the subject matter of the enquiry or if the enquiry was initiated on a report of an officer, then in all fairness he should not be the Enquiry Officer. If the said position becomes known after the appointment of the Enquiry Officer, during the enquiry, steps should be taken to see that the task of holding an enquiry is assigned to some other officer.
(iii) In an enquiry, the employer/department should take steps first to lead evidence against the workman/delinquent charged and give an opportunity to him to cross-examine the witnesses of the employer. Only thereafter, the workman/delinquent be asked whether he wants to lead any evidence and asked to give any explanation about the evidence led against him.
(iv) On receipt of the enquiry report, before proceeding further, it is incumbent on the part of the disciplinary/punishing authority to supply a copy of the enquiry report and all connected materials relied on by the enquiry officer to enable him to offer his views, if any.”

In this case (Chamoli District Co-operative Bank Ltd. Vs. Raghunath Singh Rana) our Apex Court referred to the following decisions:

(i) Sur Enamel and Stamping Works Pvt. Ltd. Vs.Their Workmen.[41]
(ii) State Bank of India Vs. R.K. Jain.[42] It is held: “……As emphasised by this Court in Ananda Bazar PatrikaVs.. Its Workmen, (1964) 3 SCR 601, the termination of an employee’s service must be preceded by a proper domestic inquiry held in accordance with the rules of natural justice. Therefore, it is evident that if the inquiry is vitiated by violation of the principles of natural justice or if no reasonable opportunity was provided to a delinquent to place his defense, it cannot be characterized as a proper domestic inquiry held in accordance with the rules of natural justice ……”
(iii) State of Uttranchal Vs. Kharak Singh.[43] It is held: “… … If an officer himself sees the misconduct of a workman, it is desirable that the enquiry should be left to be held by some other person who does not claim to be an eye-witness of the impugned incident. As we have repeatedly emphasised, domestic enquiries must be conducted honestly and bona fide with a view to determine whether the charge framed against a particular employee is proved or not, and so, care must be taken to see that these enquiries do not become empty formalities. … ….. It is necessary to emphasise that in domestic enquiries, the employer should take steps first to lead evidence against the workman charged, give an opportunity to the workman to cross-examine the said evidence and then should the workman be asked whether he wants to give any explanation about the evidence led against him. It seems to us that it is not fair in domestic enquiries against industrial employees that at the very commencement of the enquiry, the employee should be closely cross-examined even before any other evidence is led against him……” Followed Associated Cement Co. Ltd. Vs.The Workmen.[44]
(iv) ECIL Vs. B. Karunakar.[45]It is held: “(1) Where the enquiry officer is other than the disciplinary authority, the disciplinary proceedings break into two stages. The first stage ends when the disciplinary authority arrives at its conclusions on the basis of the evidence, enquiry officer’s report and the delinquent employee’s reply to it. The second stage begins when the disciplinary authority decides to impose penalty on the basis of its conclusions. If the disciplinary authority decides to drop the disciplinary proceedings, the second stage is not even reached. While the right to represent against the findings in the report is part of the reasonable opportunity available during the first stage of the inquiry viz., before the disciplinary authority takes into consideration the findings in the report, the right to show cause against the penalty proposed belongs to the second stage when the disciplinary authority has considered the findings in the report and has come to the conclusion with regard to the guilt of the employee and proposes to award penalty on the basis of its conclusions. The first right is the right to prove innocence. The second right is to plead for either no penalty or a lesser penalty although the conclusion regarding the guilt is accepted.
It is the second right exercisable at the second stage which was taken away by the Forty-second Amendment. The second stage consists of the issuance of the notice to show cause against the proposed penalty and of considering the reply to the notice and deciding upon the penalty. What is dispensed with is the opportunity of making representation on the penalty proposed and not of opportunity of making representation on the report of the enquiry officer. The latter right was always there. …..
Article 311(2) says that the employee shall be given a “reasonable opportunity of being heard in respect of the charges against him”. …. Hence, when the enquiry officer is not the disciplinary authority, the delinquent employee has a right to receive a copy of the enquiry officer’s report before the disciplinary authority arrives at its conclusions with regard to the guilt or innocence of the employee with regard to the charges levelled against him. That right is a part of the employee’s right to defend himself against the charges levelled against him. A denial of the enquiry officer’s report before the disciplinary authority takes its decision on the charges, is a denial of reasonable opportunity to the employee to prove his innocence and is a breach of the principles of natural justice.”
(v) RadheyShyam Gupta Vs. U.P. State Agro Industries Corporation.[46]It is held in this decision: “34. But in cases where the termination is preceded by an enquiry and evidence is received and findings as to misconduct of a definitive nature are arrived at behind the back of the officer and where on the basis of such a report, the termination order is issued, such an order will be violative of the principles of natural justice inasmuch as the purpose of the enquiry is to find out the truth of the allegations with a view to punish him and not merely to gather evidence for a future regular departmental enquiry. In such cases, the termination is to be treated as based or founded upon misconduct and will be punitive. ….”
(vi) Syndicate Bank Vs. Venkatesh Gururao Kurati.[47]It is held: “18. In our view, non-supply of documents on which the enquiry officer does not rely during the course of enquiry does not create any prejudice to the delinquent. It is only those documents, which are relied upon by the enquiry officer to arrive at his conclusion, the non-supply of which would cause prejudice, being violative of principles of natural justice. Even then, the non-supply of those documents prejudice the case of the delinquent officer must be established by the delinquent officer. It is well-settled law that the doctrine of principles of natural justice are not embodied rules. It cannot be put in a strait jacket formula. It depends upon the facts and circumstances of each case. To sustain the allegation of violation of principles of natural justice, one must establish that prejudice has been caused to him for non-observance of principles of natural justice.”

No order can be passed behind the back of a person adversely affecting him; and such an order if passed, is liable to be ignored being not binding on such a party as the same has been passed in violation of the principles of natural justice.[48] Failure to supply the delinquent the documents, on the basis of which charges were framed, along with the charge-sheet, amounts to non observance of natural justice.[49]

PART – IV

Natural Justice: Courts Generally Read-Into the Provisions

Even if the statute does not provide for notice, it is incumbent upon the quasi-judicial authority to issue a notice to the concerned persons disclosing the circumstances under which proceedings are sought to be initiated against them, failing which the conclusion would be that principle of natural justice are violated.[50] Courts generally read into[51] the provisions of the relevant sections a requirement of giving a reasonable opportunity of being heard before an order is made which would have adverse civil consequences for the parties affected.

It is held in C.B. Gautam Vs. Union of India[52]:

“The observance of principles of natural justice is the pragmatic requirement of fair play in action. In our view, therefore, the requirement of an opportunity to show cause being given before an order for purchase by the Central Government is made by an appropriate authority under Section 269 -UD must be read into the provisions of Chapter XX -C. There is nothing in the language of Section 269 -UD or any other provision in the said Chapter which would negate such an opportunity being given. Moreover, if such a requirement were not read into the provisions of the said Chapter, they would be seriously open to challenge on the ground of violations of the provisions of Article 14 on the ground of non-compliance with principles of natural justice.”[53]

Natural Justice: Recognized as part of Article 14

In Union of India Vs. Tulsiram Patel[54]the Supreme Court declared that principles of natural justice have now come to be recognised as being a part of the constitutional guarantee contained in Article 14 of the Constitution.[55]

Hearing: Must be a Genuine Hearing

The Supreme Court, in Maneka Gandhi Vs. Union of India,[56] has held that the person affected must have a reasonable opportunity of being heard and the hearing must be a genuine hearing and not an empty public relations exercise.

Authority has to Apply its Mind

In Ravi Yashwant BhoirVs. Chief Minister[57] the Supreme Court observed:

”34. In a democratic institution like ours, the incumbent is entitled to hold the office for the term for which he has been elected unless his election is set aside by a prescribed procedure known to law or he is removed by the procedure established under law. The proceedings for removal must satisfy the requirement of natural justice and the decision must show that the authority has applied its mind to the allegations made and the explanation furnished by the elected office-bearer sought to be removed.”

Natural Justice: Requirements Depend Upon the Circumstances

Principles of natural justice are neither treated with absolute rigidity nor as imprisoned in a straight-jacket. It has many facets. Sometimes, this doctrine is applied in a broad way, sometimes in a limited or narrow manner.[58]

Applicability and requirements of natural justice depend upon the circumstances of the case [59] and it is not possible to lay down rigid rules as to when the principles of natural justice are to apply; nor as to their scope and extent. Everything depends on the subject-matter.[60] Whether an order in violation of natural justice is bad or not is depended on facts and circumstances of each case.[61] Its essence is good consciousness in a given situation; nothing more but nothing less.[62]

In Keshav Mills Co Ltd. Vs. Union of India, AIR 1973 SC 389 it is held:

“… We do not think it either feasible or even desirable to lay down any fixed or rigorous yard-stick in this manner. The concept of Natural Justice cannot be put into a straight-jacket. It is futile, therefore, to look for definitions or standards of Natural Justice from various decisions and then try to apply them to the facts of any given case. The only essential point that has to be kept in mind in all cases is that the person concerned should have a reasonable opportunity of presenting his case and that the administrative authority concerned should act fairly, impartially and reasonably…”

Natural Justice: Not Unruly Horse & Doctrine of ‘Straight-Jacket’

The Supreme Court in Maharashtra State Financial Corporation v. Suvarna Board Mills (1994)[63], it has been observed that natural justice is not an unruly horse, no lurking landmine, nor a judicial cure-all. It is well settled that natural justice cannot be placed in a straight-jacket; its rules are not embodied and they do vary from case to case and from one fact-situation to another.

It was pointed out by our Apex Court in Suresh Koshy George Vs. University of Kerala[64] that the rules of natural justice are not embodied rules. What particular rule of natural justice should apply to a given case must depend to a great extent on the facts and circumstances of that case, the framework of the law under which the enquiry is held and the constitution of the Tribunal or body of persons appointed for that purpose. Whenever a complaint is made before a court that some principle of natural justice had been contravened the court has to decide whether the observance of that rule was necessary for a just decision on the facts of that case.

In Chairman, Board of Mining Examination Vs. Ramjee,[65] V.R. Krishna Iyer, J. observed as under:

“Natural justice is no unruly horse, no lurking land mine, nor a judicial cure-all. If fairness is shown by the decision-maker to the man proceeded against, the form, features and the fundamentals of such essential processual propriety being conditioned by the facts and circumstances of each situation, no breach of natural justice can be complained of. Unnatural expansion of natural justice without reference to the administrative realities and other factors of a given case, can be exasperating. We can neither be financial nor fanatical but should be flexible yet firm in this jurisdiction. No man shall be hit below the belt – that is the conscience of the matter.”

In Union of India Vs. P K Roy,[66] V. Ramaswami, J. observed:

“But the extent and application of the doctrine of natural justice cannot be imprisoned within the straight jacket of a rigid formula. The application of the doctrine depends upon the nature of the jurisdiction conferred on the administrative authority, upon the character of the rights of the persons affected, the scheme and policy of the statute and other relevant circumstances disclosed in the particular case.”

PART – V

Natural Justice & Principle of ‘No Prejudice’ in Disciplinary Action

As detailed above, denial of natural justice ‘itself causes prejudice’ was the uniformly followed legal concept in early times. The prejudice-doctrine has ‘taken a firm root’.[67] In PD Agrawal Vs. State Bank of India AIR 2006 SC 2064[68] it was pointed out [relying on Ajit Kumar Nag vs. General Manager (PJ), Indian Oil Corpn. Ltd., Haldia,[69] and Charan Lal Sahu v. Union of India (Bhopal Gas Disaster)[70] etc.] that the principles of natural justice cannot be put in a straight jacket formula; it must be seen in circumstantial flexibility; it has separate facets; and it has in recent time also undergone a sea change.

Test of prejudice or the test of fair hearing

In Managing Director ECIL Hyderabad Vs. B Karunakar II[71] it is held:

“The next question to be answered is what is the effect on the order of punishment when the report of the enquiry officer is not furnished to the employee and what relief should be granted to him in such cases. The answer to this question has to be relative to the punishment awarded. When the employee is dismissed or removed from service and the inquiry is set aside because the report is not furnished to him, in some cases the non-furnishing of the report may have prejudiced him gravely while in other cases it may have made no difference to the ultimate punishment awarded to him. Hence to direct reinstatement of the employee with back-wages in all cases is to reduce the rules of justice to a mechanical ritual. The theory of reasonable opportunity and the principles of natural justice have been evolved to uphold the rule of law and to assist the individual to vindicate his just rights. They are not incantations to be invoked nor rites to be performed on all and sundry occasions. Whether in fact, prejudice has been caused to the employee or not on account of the denial to him of the report, has to be considered on the facts and circumstances of each case. Where, therefore, even after the furnishing of the report, no different consequence would have followed, it would be a perversion of justice to permit the employee to resume duty and to get all the consequential benefits. It amounts to rewarding the dishonest and the guilty and thus to stretching the concept of justice to illogical and exasperating limits. It amounts to an “unnatural expansion of natural justice” which in itself is antithetical to justice.”
“Hence, in all cases where the enquiry officer’s report is not furnished to the delinquent employee in the disciplinary proceedings, the Courts and Tribunals should cause the copy of the report to be furnished to the aggrieved employee if he has not already secured it before coming to the Court/ Tribunal and given the employee an opportunity to show how his or her case was prejudiced because of the non-supply of the report. If after hearing the parties, the Court/Tribunal comes to the conclusion that the non-supply of the report would have made no difference to the ultimate findings and the punishment given, the Court/Tribunal should not interfere with the order of punishment. The Court/ Tribunal should not mechanically set aside the order of punishment on the ground that the report was not furnished as it regrettably being done at present. The courts should avoid resorting to short cuts. Since it is the Courts/Tribunals which will apply their judicial mind to the question and give their reasons for setting aside or not setting aside the order of punishment, (and not any internal appellate or revisional authority), there would be neither a breach of the principles of natural justice nor a denial of the reasonable opportunity. It is only if the Court/Tribunal finds that the furnishing of the report would have made a difference to the result in the case that it should set aside the order of punishment.”

The Supreme Court has, in Uma NathPandeyVs. State of UP,[72] held as follows:

“The crucial question that remains to be adjudicated is whether principles of natural justice have been violated and if so, to what extent any prejudice has been caused, it may be noted at this juncture that in some cases it has been observed that where grant of opportunity in terms of principles of natural justice do not improve the situation, ‘useless formality theory’ can be pressed into service.”

In Dharampal Satyapal Ltd Vs. Deputy Commissioner of Central Excise, Gauhati[73] our Apex Court held:

“Even if it is found by the Court that there is a violation of principles of natural justice, the Courts have held that it may not be necessary to strike down the action and refer the matter back to the authorities to take fresh decision after complying with the procedural requirement in those cases where non-grant of hearing has not caused any prejudice to the person against whom the action is taken. Therefore, every violation of a facet of natural justice may not lead to the conclusion that order passed is always null and void. The validity of the order has to be decided on the touchstone of ‘prejudice’. The ultimate test is always the same, viz., the test of prejudice or the test of fair hearing.”

But, in this decision our Apex Court held that the administrative authority cannot jump over the compliance of the principles of natural justice on the ground that even if hearing had been provided it would have served no useful purpose and dispense with the requirement of issuing notice by itself deciding that no prejudice will be caused to the person against whom the action is contemplated.

“At the same time”, our Apex Court pointed out “it cannot be denied that as far as Courts are concerned, they are empowered to consider as to whether any purpose would be served in remanding the case keeping in mind whether any prejudice is caused to the person against whom the action is taken.”

In A.S. Motors Pvt. Ltd Vs. Union of India[74] our Apex court observed:

“What the Courts in essence look for in every case where violation of the principles of natural justice is alleged is whether the affected party was given reasonable opportunity to present its case and whether the administrative authority had acted fairly, impartially and reasonably. The doctrine of audi alteram partem is thus aimed at striking at arbitrariness and want of fair play. Judicial pronouncements on the subject have, therefore, recognised that the demands of natural justice may be different in different situations depending upon not only the facts and circumstances of each case but also on the powers and composition of the Tribunal and the rules and regulations under which it functions. A Court examining a complaint on violation of rules of natural justice is entitled to see whether the aggrieved party had indeed suffered any prejudice on account of such violation”.

Compliance of Substantive and Procedural Provisions

It is observed in KL Katyal Vs. Central Secretariat Club (RC Lahoti, J.)[75]that the court may not interfere except in a clear case of violation of the provisions of the constitution or of the principles of natural justice.

In State Bank of India at Patialia Vs. SK Sharma[76] it is held:

“(1) An order passed imposing a punishment on an employee consequent upon a disciplinary/departmental enquiry in violation of the rules/ regulations/ statutory provisions governing such enquiries should not be set aside automatically. The Court or the Tribunal should enquire whether (a) the provision violated is of a substantive nature or (b) whether it is procedural in character.”

The court held further:

“(2) A substantive provision has normally to be complied with as explained herein before and the theory of substantial compliance of the test of prejudice would not be applicable in such a case.
(3) In case of violation of a procedural provision, the position is this: procedural provisions are generally meant for affording a reasonable and adequate opportunity to the delinquent officer/ employee. They are, generally speaking, conceived in his interest. Violation of any and every procedural provision cannot be said to automatically vitiate the enquiry held or order passed. Except cases falling under -“no notice”, “no opportunity” and “no hearing” categories, the complaint of violation of procedural provision should be examined from the point of view of prejudice, viz. whether such violation has prejudiced the delinquent officer employee in defending himself properly and effectively. If it is found that he has been so prejudiced, appropriate orders have to be made to repair and remedy the prejudice including setting aside the enquiry and/ or the order of punishment. If no prejudice is established to have resulted therefrom, it is obvious, no interference is called for. In this connection, it may be remembered that there may be certain procedural provisions which are of a fundamental character, whose violation is by itself proof of prejudice in such cases. As explained in the body of the judgment, take a case where there is a provision expressly providing that after the evidence of the employer/ government is over, the employee shall be given an opportunity to lead defense in his evidence, in a case, the enquiry officer does not give that opportunity in spite of the delinquent officer/ employee asking for it. The prejudice is self-evident. No proof of prejudice, i.e., whether the person has received a fair hearing considering all things. Now, this very aspect can also be looked at from the point of view of directory and mandatory provisions, if one is so inclined. The principle stated under (4) hereinbelow is only another way of looking at the same aspect as is dealt with herein and not a different or distinct principle.
(4)(a) In the case of a procedural provision which is not of a mandatory character, the complaint of violation has to be examined from the standpoint of substantial compliance. Be that as it may, the order passed in violation of such a provision can be set aside only where such violation has occasioned prejudice to the delinquent employee.
(b) In the case of violation of a procedural provision, which is of a mandatory character, it has to be ascertained whether the provision is conceived in the interest of the persons proceeded against or in public interest. If it is found to be the former, then it must be seen whether the delinquent officer has waived the said requirement either expressly or by his conduct. If he is found to have waived it, then the order of punishment cannot be set aside on the ground of the said violation. If, on the other hand, it is found that the delinquent officer/ employee has not waived it or that the provision could not be waived by him, then the Court or Tribunal should make appropriate directions (include the setting aside of the order of punishment), keeping in mind the appropriate adopted by the Constitution Bench in B. Karunakar. The ultimate test is always the same, viz., test of prejudice or the test of fair hearing, as it may be called.
(5) Where the enquiry is not governed by any rules/ regulations/ statutory provisions and the only obligation is to observe the principles of natural justice or, for that matter, wherever such principles are held to be implied by the very nature and impact of the order/ action – the Court or the Tribunal should make a distinction between a total violation of natural justice (rule of audi alteram partern) and violation of a facet of the said rule, as explained in the body of the judgment. In other words, a distinction must be made between “no opportunity” and no adequate opportunity, i.e., between “no notice”/ “no hearing” and “no fair hearing”, (a) In the case of former, the order passed would undoubtedly be invalid (one may call it ‘void’ or a nullity if one chooses to). In such cases, normally, liberty will be reserved for the Authority to take proceedings afresh according to law, i.e., in accordance with the said rule (audi alteram partem). (b) But in the later cases, the effect of violation (of a facet of the rule of audi alteram partem) has to be examined from the standpoint of prejudice; in other words, what the Court or Tribunal has to see is whether in the totality of the circumstances, the delinquent officer/ employee did or did not have a fair hearing and the orders to be made shall depend upon the answer to the said query. (It is made clear that this principle (No. 5) does not apply in the case of rule against bias, the test in which behalf are laid down elsewhere.)
(6) While applying the rule of audi alteram partem (the primary principle of natural justice) the Court/ tribunal/authority must always bear in the ultimate and overriding objective underlying the said rule, viz., to ensure a fair hearing and to ensure that there is no failure of justice. It is this objective which should guide them in applying the rule to varying situations that arise before them.
(7) There may be situations where the interests of State or public interest may call for a curtailing of the rule of audi alteram partem. In such situations, the court may have to balance public/ State interest with the requirement of natural justice and arrive at an appropriate decision.”

Non-supply of documents by the enquiry officer

In Syndicate Bank Vs. Venkatesh Gururao Kurati, (2006) 3 SCC 150 it is held that the non-supply of documents on which the enquiry officer did not rely during the course of enquiry did not create any prejudice to the delinquent; and it was pointed out that to sustain the allegation of violation of principles of natural justice, one must establish that prejudice has been caused to him for non-observance of principles of natural justice.”

Natural Justice: Laxity in Disciplinary Action

In HiraNath Mishra Vs. The Principal, Rajendra Medical College, Ranchi[77] the Supreme Court examined the application of principles of natural justice in the context of an order that was passed by the Principal of a College expelling certain male students against whom grave misbehaviour towards the girls had been alleged. The Enquiry Committee had not recorded the statements of the girl students in the presence of the male students. After making necessary enquiry, the Committee found that the male students were guilty of misconduct and recommended that they should be expelled. Acting on this report, the Principal passed the order of expulsion. The Supreme Court held that in such circumstances, the requirement of natural justice was fulfilled.

In Avinash Nagra Vs. Novodaya Vidyalaya Samiti[78] also the Supreme Court upheld dispensing with a regular enquiry in the matter of misbehaviour of a teacher against a girl student and observed that the denial of cross-examination did not vitiate the enquiry on the ground of violation of principles of natural justice.

Natural Justice: Laxity in Disciplinary Action of a Voluntary Association

The executive committee of a voluntary association cannot be put on par with a Court or a Tribunal when dealing with the disciplinary matters concerning the membership of the Body. They have very wide latitude in deciding as to when disciplinary action is warranted. The procedure to be followed by such an association also cannot be that which is normally expected to be followed in a Court, or a Tribunal. Even principles of natural justice are not required to be applied with the same degree of rigour as they would be in the case of adjudication before a Court or a Tribunal.[79]

In Daman Singh Vs. State of Punjab and Haryana[80] it is observed:

“So if the statute which authorises compulsory amalgamation of Co-operative Societies provides for notice to the societies concerned, the requirement of natural justice is fully satisfied. The notice to the society will be deemed as notice to all its members. That is why S. 13(9)(a) provides for the issue of notice to the societies and not to individual members. S.13(9)(b), however, provides the members also with an opportunity to be heard if they desire to be heard. Notice to individual members of a Co-operative society, in our opinion, is opposed to the very status of a Co-operative society as a body corporate and is, therefore, unnecessary. We do not consider it necessary to further elaborate the matter except to point out that a member who objects to the proposed amalgamation within the prescribed time is given, by S. 31(11), the option to walk-out, as it were, by withdrawing his share, deposits or loans as the case may be.”

Natural Justice: Laxity in Deptl. Proceedings & Domestic Tribunal

It is well settled law that strict rules of the Evidence Act, and the standard of proof envisaged therein, do not apply to departmental proceedings or domestic tribunal.[81] A domestic tribunal is free to evolve its own procedure.[82]

But in Bareilly Electricity Supply Co. Ltd. Vs. The Workmen,[83] the Supreme Court observed that the application of the principles of natural justice does not imply that what is not evidence can be acted upon. It was pointed out that the minutes of the meeting could not have been relied upon when neither the original was produced nor was any justification put forth for the absence of the signed copy of the original.

PART VI

Natural Justice: Violation and Alternate Remedy:

Courts will not delve in the internal disputes of an association unless it is shown[84] that the aggrieved parties have worked out and exhausted[85] their remedies (but, failed to resolve disputes) under the bye laws, before: (a) the machinery or body (domestic tribunals), if any, provided in its bye laws,[86] or (b) the body or authority which has to take cognisance of the matter, under the scheme of its bye laws, or (c) the authorities under the statute, if any, holds the field.[87] But, the rule of exhaustion of alternate remedy does not apply if there is violation of principle of natural justice,[88] as action in violation of natural justice is void.[89]

In Titaghur Paper Mills Company Ltd. Vs. State of Orissa[90] though the appellant pleaded that there was violation of natural justice and the impugned order was without jurisdiction, the Supreme Court held that the petitioner should avail his alternate remedy of appeal.

In Shaji K. Joseph Vs. V. Viswanath[91] it is held:

“In our opinion, the High Court was not right in interfering with the process of election especially when the process of election had started upon publication of the election program on 27th January, 2011 and more particularly when an alternative statutory remedy was available to Respondent No.1 by way of referring the dispute to the Central Government as per the provisions of Section 5 of the Act read with Regulation 20 of the Regulations.”

With respect to election to the office of Chairman of a Panchayat Union under the Tamil Nadu Panchayats Act, 1958 it was held in S.T. Muthusami Vs. K. Natarajan[92] that election petition is an effective alternative remedy. Umesh Shivappa AmbiVs. Angadi Shekara Basappa[93] is a case relating to election of the President, Vice – President and Chairman, etc. under the Karnataka Co-operative Societies Act, wherein our Apex Court reversed the judgment with the observation:

“Once an election is over, the aggrieved candidate will have to pursue his remedy in accordance with the provisions of law and the High Court will not ordinarily interfere with the elections under Article 226. The High Court will not ordinarily interfere where there is an appropriate or equally efficacious remedy available, particularly in relation to election disputes.”[94]

Natural Justice: Administrative Process & Urgency

The maxim audi alteram partem cannot be invoked if the import of such maxim would have the effect of paralysing the administrative process or where the need for promptitude or the urgency so demands. In Ajit Kumar Nag v. General Manager (PJ), Indian Oil Corpn. Ltd., Haldia[95] it is held that the approach of the Court in dealing with such cases should be pragmatic rather than pedantic, realistic rather than doctrinaire, functional rather than formal and practical rather than precedential. The concept of natural justice sometimes requires flexibility in the application of the rule.[96]

Natural Justice: Inordinate Delay in Disciplinary Proceedings

Unexplained and unjustifiable long delay in initiating and in conducting departmental disciplinary proceedings will result in causing great prejudice to the person against whom such a proceeding is initiated and it will be a ground for quashing the proceedings.[97]

Right of Appeal: Not an Ingredient of Natural Justice

Right of Appeal is a creation of statute.[98] Right to appeal is neither an absolute right[99] nor an ingredient of natural justice.[100] It must be conferred by statute and can be exercised only as permitted by statute.[101]If the legislature provides for no appeal in a particular case, or provides for an appeal subject to certain conditions, it is a piece of proper legislation. Even if a statute denied right of appeal, the same cannot be said to be a bad legislation.[102]

Charges Should Not be Vague

The charges should be specific, definite and giving details of the incident which formed the basis of charges and no enquiry can be sustained on vague charges.[103]In Surath Chandra Chakravarty Vs. The State of West Bengal[104] our Apex Court held that it is not permissible to hold an enquiry on vague charges, as the same do not give a clear picture to the delinquent to make out an effective defense as he will be unaware of the exact nature of the allegations against him, and what kind of defense he should put up or rebuttal thereof.

The Court observed as under:

“The grounds on which it is proposed to take action have to be reduced to the form of a definite charge or charges which have to be communicated to the person charged together with a statement of the allegations on which each charge is based and any other circumstance which it is proposed to be taken into consideration in passing orders has to be stated. This rule embodies a principle which is one of the specific contents of a reasonable or adequate opportunity for defending oneself. If a person is not told clearly and definitely what the allegations are on which the charges preferred against him are founded, he cannot possibly, by projecting his own imagination, discover all the facts and circumstances that may be in the contemplation of the authorities to be established against him.”[105]

In Sawai Singh Vs. State of Rajasthan[106] our Apex Court found that charges were vague and it was difficult to meet the charges. Therefore although the concerned delinquent had participated in the inquiry, the Court opined that participation by itself does not exonerate the department to bring home the charge.

PART VII

Civil Court has Jurisdiction when Expulsion in Violation of Natural Justice

Where a member of an association is expelled without observing the principles of natural justice,[107] or where a club had followed a procedure not warranted by the Rules of the Club,[108] the civil court will have the jurisdiction to interfere.[109]

In State of Kerala Vs. M/s N. RamaswamiIyer and Sons[110] the Supreme Court held:

“It is true that even if the jurisdiction of the Civil Court is excluded, where the provisions of the statute have not been complied with or the statutory tribunal has not acted in conformity with the fundamental principles of judicial procedure, the Civil Courts have jurisdiction to examine those cases.”[111]

Halsbury’s Laws of England[112] reads:

“Where the rules providing for expulsion have been strictly observed and the Committee or the members have otherwise acted properly, the court has no jurisdiction to interfere even though it considers that the Committee or the members voting for expulsion have, in fact, come to a wrong conclusion. The burden of proving want of good faith lies on the person who alleges that he has been wrongfully expelled.”

Court’s Jurisdiction in Expulsion of a Member from a Political Party

Whether a Civil Court has a jurisdiction to entertain a suit relating to expulsion from membership of a political party, particularly when an appeal against such order of expulsion was pending before the appellate authority was the question came up for consideration in Arunachal Pradesh Congress Committee Vs. Kalikho Pul.[113] In this case no notice was ever served upon the member giving him an opportunity to defend himself and explain before expelling him from the party. The party could not say about the procedure to be followed by the appellate authority and/or when such appeal was going to be disposed. The court upheld the contentions of the expelled member observing that that the Civil Court had jurisdiction to examine whether the expulsion was in good faith, in conformity with the Constitution and whether notice as required under the Constitution of the Party was served and the established principles of law of natural justice was followed by giving the member a chance of defense and explanation.[114]

Exclusion of Natural Justice

Emergency or situation that rial or hearings cannot be conveniently held: Eg. large number or of applicants – R v. Aston University Senate: (1969) 2 QB 538; cancellation of entrance tests for defect in procedure: Radhakrishnan v. Osmania University: (2000) (4) ALD 558
Strictly procedural matters, and no civil right is infringed or no prejudice caused: Eg. Procedure empty formality: Punjab National Bank v. Manjeet Singh: (2004) III LLJ 46 (P H).
In Karnataka Public Service Commission v. BM Vijay Shanker, AIR 1992 SC 952, the Supreme Court had to consider whether the rule of natural justice had no exception. It was found that once direction not to write roll number on answer book was violated the issue of bonafide and honest mistake did not arise.

Domestic Tribunal – Court Does Not Sit in Appeal

It is trite law that the Court does not sit in appeal over the findings of the enquiry officer as observed by our Apex Court, in UP State Road Transport Corpn. Vs. Musai Ram.[115] It is held in Board of Control for Cricket in India Vs. Cricket Association of Bihar:[116]

“We are at any rate not sitting in appeal against the findings of a domestic tribunal set up to enquire into the allegations of misconduct leveled against a team official of a participating team. We are not, therefore, reappraising the material that has been assembled by the probe committee and relied upon to support its finding. The finding is by no means without basis or perverse[117] to call for our interference with the same.”

The Supreme Court in TP Daver Vs. Lodge Victoria,[118] held that jurisdiction of courts to interfere in cases involving expulsion of a member from the organization is extremely limited, and the Court’s enquiry is confined to find out whether the decision making is within the four corners of the rules, and the Courts cannot sit in appeal over the decisions of the organization.[119]

In Leo Francis Xaviour Vs. The Principal, Karunya Institute of Technology, Coimbatore[120] it is held as under:

“26. As it is found on the facts that there was an enquiry satisfying the requirements of the principles of natural justice, this Court cannot interfere with the finding of the Enquiry Committee and the consequential order of expulsion passed against the petitioner. The plea taken by the first respondent that it is a private college and the jurisdiction of this Court under Article 226 of the Constitution of India cannot be invoked by the petitioner against the said College is well founded. Inasmuch as the principles of natural justice have been complied with, this Court has no jurisdiction to interfere with the order of expulsion passed against the petitioner.”

In Maharashtra State Board of Secondary and Higher Secondary Education Vs. KS Gandhi[121] it is observed that the power of judicial review in case of student indiscipline is very limited and in such cases this Court does not sit in appeal over decisions of the school authorities.[122]

Since General Body of a society or club is supreme,[123] the properly convened General Body has the right to remove any one or all of the elected-office-bearers (subject to the fundamental principles of substantive justice, including observance of natural justice) unless no clause in the bye laws restricts the same.

Removal of Earlier Committee

When a committee of an association continues to exercise powers even after cessation of their period of office, it is within the competence of the General Body of the Association to take up the matter,if provisionsof the byelaws or the enactment concerned do not, expressly or impliedly, mandates otherwise. In proper cases, the members can approach the civil court also.

In any event, opportunity of being heard should be given to the members of the committee concerned.[124] It is well settled that principles of natural justice must be read into the byelaws and the statute, unless there is a clear directive to the contrary.[125]

It is also held that the Rule of the Society which declared a person would cease to be a member merely on his default to make the subscription, without even providing him an opportunity to show cause for not making the payment within a specified period appeared “to be very harsh” and that “confiscatory and deprivatory provisions made, resulting in civil consequences, should not have been allowed” to be incorporated in the bye laws. It is on the principle that rules of natural justice require that that no person can be condemned unheard[126]

The Division Bench struck down the impugned Rule it being contrary to the provisions of the Act.

No expulsion for arrears if no notice

The rules of natural justice requires notice calling upon a member of a society to pay the arrears, before he be expelled for nonpayment.[127]

[1] 2001-1 Bom CR 390: 2000-3 Bom LR 741: 2001 1 MhLJ 63

[2] AIR 1978 SC 597

[3] AIR 2006 SC 2064

[4] (1996) 3 SCC 364

[5] (1996) 5 SCC 460

[6] (1988) 2 SCC 602

[7] See also: Board of Control for Cricket Vs. Cricket Association: AIR 2015 SC 3194; Capt. DK Giri Vs. Secunderabad Club: AIR 2018 AP 48.

[8] AIR 1981 SC 136

[9] Narinder Mohan Arya Vs. United India Insurance Co. : AIR 2006 SC 1748; Rajasthan STC Vs. BalMukundBairawa: (2009) 4 SCC 299 : (2009)5 SCJ 757; FirstoneTyre and Rubber Company Vs. Employees’ Union: AIR 1981 SC 1626; Union of India Vs. Gyan Chand Chatter: (2009) 12 SCC 78. Sawai Singh Vs. State of Rajasthan: AIR 1986 SC 995; State of Andhra Pradesh Vs. S. Sree Rama Rao; AIR 1963 SC 1723; U.P.S.R.T.C. Vs. Ram Chandra Yadav: AIR 2000 SC 3596; Union of India Vs. Gyan Chand Chattar, (2009) 12 SCC 78; Anil Gilurker Vs. Bilaspur Raipur KshetriaGraminBank : (2011) 14 SCC 379.

[10] Workmen Vs. Hindustan Steel Ltd. : AIR 1985 SC 251; Rajastan STC Vs. BalMukundBairawa: (2009) 4 SCC 299: (2009)5 SCJ 757; MV Bijlani Vs. Union of India : 2006 SC 3475; Roop Singh Negi Vs. Punjab National Bank – AIR 2008 SC (Sup.) 921; Vijay Singh Vs. State of U.P. – AIR 2012 SC 2840; M.S. Bindra Vs. Union of India – AIR 1998 SC 3058; Registrar Vs. Uday Singh – AIR 1997 SC 2286; Zora Singh Vs. JM Tandon – AIR 1971 SC 1537; State of Uttaranjal Vs. Kharak Singh: 2008 AIR (SCW) 7507; Union of India Vs. Naman Singh Sekhawat: 2008 AIR (SCW) 2813.

[11] TP Daver Vs. Lodge Victoria No. 363 SC Belgaum, 1963 AIR SC 1144; High Court of Judicature at Bombay Vs. Shashikant S. Patil: (2000) 1 SCC 416; JagmohanDalmia Vs. BCCI: AIR 2008 Cal. 227.

[12] AyaaubkhanNoorkhanPatan Vs. State of Maharashtra: AIR 2013 SC 58

[13] ILR 1997 Kar 3127

[14] Sarbjit Singh Vs. All India Fine Arts and Crafts Society: ILR 1989-2 Del 585.

[15] AIR 1969 Cal 224; Referred to in GegongApang Vs. SanjoyTassar: AIR 2001 Gau 1

[16] Dr. BK Mukherjea, J. On the Hindu Law of Religious and Charitable Trusts, Tagore Law Lectures: Page:411.

[17] Ex Armymen’s Protection Service Vs. Union of India: AIR 2014 SC 1376;

A.S. Motors Pvt. Ltd Vs. Union Of India: 2013 AIR (SCW) 3830;

MuhammedYunus Khan Vs. State of UP: 2010-10 Scale 2867.

[18] U P State Road Transport Corpn. Vs. Musai Ram:1999-3 SCC 372.

[19] AIR 1973 SC 389

[20] (1978) 1 SCC 405

[21] AIR 1970 SC 150

[22] (2009) 12 SCC 40

[23] 1991 AIR-SCW 879

[24] AIR 1970 All 209

[25] AIR 1980 SC 1042

[26] See as to labour dispute: Management of Travancore Knitting Co Tiruppur Coimbatore Vs. K Muthuswamy: AIR 1962 Mad 398; Regional Manager, U.P.S.R. T.C. Etawah v. HotiLal AIR 2003 SC 1462; DamohPannaSagar Rural Regional Bank Vs. MunnaLal Jain AIR 2005 SC 584;

[27] AIR 2003 SC 2041: (2003) 4 SCC 557

[28] Quoted in Poonam Vs. State of U.P. 20016-2 SCC 779.

[29] See: D.K. Yadav Vs. J.M.A. Industries Ltd. AIR 1992 SC 1795

[30] AIR 2003 SC 2041. Referred to in PrakashRatanSinha Vs. State of Bihar: 2009-14 SCC 690.

[31] Indian National Congress (I) Vs. Institute of Social Welfare: AIR 2002 SC 2158; Bachhitar Singh V. State of Punjab: AIR 1963 SC 395; Union of India v. H.C. Goel: AIR 1964 SC 364; JyotiBasu Vs. Debi Ghosal: AIR 1982 SC 983; Mohan LalTripathi Vs. District Magistrate, Raebareli: AIR 1993 SC 2042; Ram BetiVs. District PanchayatRajadhikari: AIR 1998 SC 1222.

[32] Chamoli District Co-Op. Bank Ltd.. Vs. Raghunath Singh Rana: 2016 AIR (SCW) 2510

[33] AIR 1962 SC 1110

[34] Quoted in K Chelliah Vs. Chairman Industrial Finance Corporation: AIR1973 Mad 122.

[35] HreeVitthalSahakari Vs. WadikuroliVividhKaryakariSeva Society: 2011-4 BCR 290

[36] AwariDevannaVs Divisional Co Operative Officer: 1994-1 ALT 363; K. Srinivas VS Commissioner of Fisheries: 2009 3 ALD 1; 2009 2 ALT 604.

[37] Institute of Chartered Accountants of India Vs. L.K. Ratna: AIR 1987 SC 71; C.B. GautamVs. Union of India: (1993) 1 SCC 78.

[38] AIR 1970 SC 150. Quoted in: Mohinder Singh Gill Vs. Election Commissioner: (1978) 1SCC 405

[39] (1964) 3 SCR 616

[40] 2016 AIR (SCW) 2510

[41] (1964) 3 SCR 616

[42] (1972) 4 SCC 304.

[43] (2008) 8 SCC 236.

[44] [1964] 3 SCR 652

[45] AIR 1994 SC 1074.

[46] (1999) 2 SCC 2.

[47] (2006) 3 SCC 150.

[48] J.S. Yadav Vs. State of U.P.: (2011) 6 SCC 570

[49] Bilaspur Raipur KshetriyaGramin Bank Vs. MadanlalTandon: AIR 2015 SC 2876.

[50] East India Commercial Company Vs. The Collector of Customs: 1962 AIR SC 1893; U.O.I. Vs. MadhumilanSyntex 1988-3 SCC 348; MorarjiGoculdas Vs. U.O.I. 1995 Supp3 SCC 588; Metal Forgings Vs. U.O.I. 2003 2 SCC 36.[51] S.P. Malhotra Vs. Punjab National Bank” AIR 2013 SC 3739; Manohar Vs. State of Maharashtra: AIR 2013 SC 681; Punjab National Bank Vs. KunjBehariMisra, AIR 1998 SC 2713; Yoginath D. Bagde Vs. State of Maharashtra : AIR 1999 SC 3734; State Bank of India Vs. K.P. Narayanan Kutty: AIR 2003 SC 1100; J.A. Naiksatam Vs. Prothonotary: AIR 2005 SC 1218; P.D. Agrawal Vs. State Bank of India : AIR 2006 SC 2064; Ranjit Singh Vs. Union of India : AIR 2006 SC 3685; Canara Bank Vs. ShriDebasis Das: AIR 2003 SC 2041; KanwarNutwar Singh Vs. Director of Enforcement: 2010 AIR (SCW) 6427.

[52] C.B. GautamVs. Union of India (1993) 1 SCC 78. Referred: Union Union of India Vs. Col. J. N. Sinha (1970) 2 SCC 458; Olga TellisVs. Bombay Municipal Corporation (1985) 3 SCC 545.

[53] Quoted in: Arcot Textile Mills Vs. Regional Provident Fund: AIR 2014 SC 295.

[54] AIR 1985 SC 1416; referred to in Board of Control for Cricket in India Vs. Cricket Association of Bihar: AIR 2015 SC 3194.

[55] See also: Central Inland Water Trans. Corpn. Vs. BrojoNathGanguly: AIR 1986 SC 1571.

[56] (1978) 1 SCC 248

[57] (2012) 4 SCC 438

[58] Arcot Textile Mills Vs. Regional Provident Fund: AIR 2014 SC 295

[59] Ajit Kumar Nag v. General Manager, Indian Oil Corpn.: AIR 2005 SC 4217;

[60] Natwar Singh Vs. Director of Enforcement (2010) 13 SCC 255

[61] Ex Armymen’s Protection Service Vs. Union of India: AIR 2014 SC 1376; A.S. Motors Pvt. Ltd Vs. Union Of India: 2013 AIR (SCW) 3830; MuhammedYunus Khan Vs. State of U.P.: 2010-10 Scale 2867.

[62] Mohinder Singh Gill Vs. Election Commissioner: (1978) 1SCC 405; A.K. KraipakVs. Union of India: AIR 1970 SC 150.

[63] Maharashtra State Financial Corpn. Vs. M/s. Suvarna Board Mills: 1994-5 SCC 566.

[64] AIR 1969 SC 198

[65] AIR 1977 SC 965

[66] AIR 1968 SC 850

[67] Zakraiah T Vs. APSC Cooperative Finance Corporation Ltd. (S.B. Sinha, V.V.S. Rao, JJ.) 2001- 6 ALD 549; 2001-6 ALT 514; 2002-4 LLJ 116.

[68] See also: A.S. Motors Pvt. Ltd Vs. Union of India: 2013 AIR (SCW) 3830.

[69] AIR 2005 SC 4217: (2005) 7 SCC 764.

[70] (1990) 1 SCC 613: AIR 1990 SC 1480.

[71] AIR 1994 SC 1074

[72] (2009) 12 SCC 40

[73] 2015 AIR (SCW) 3884: 2015 (8) SCC 519. Followed, Managing Director ECIL Hyderabad Vs. B Karunakar II: AIR 1994 SC 1074.

[74] 2013 AIR (SCW) 3830

[75] 1994-30 DRJ 669

[76] AIR 1996 SC 1669; (1996) 3 SCC 364

[77] (1973) 1 SCC 805

[78] (1997) 2 SCC 534

[79] Chennai KancheepuramTiruvelore District Film Distributors Association Vs. Chinthamani S. Murugesan: 2001 (3) CTC 349: 2001-Supp. Mad LJ 48; A C MuthiahVs. Board of Control for Cricket in India: (2011) 6 SCC 617: 2010 (2) CTC 429.

[80] AIR1985 SC 973

[81] Maharashtra State Board of Secondary Edn. Vs. K.S. Gandhi: (1991) 2 SCC 716. See also: Executive Engineer Vs. Sri Seetaram Rice Mill: (2012)2 SCC 108; Harekrishna K. Vadhwani Vs. VasupujyaSmruti Co -op. Hsg. Soc.: 2004(1) GLH 257; Banaskantha District Co -op. Union Ltd. Vs. State of Gujarat 2011(2) GLR 1707; State of U.P. Vs. C.O.D. Chheoki Employees’ Co-op. Society Ltd : AIR 1997 SC 1413; B.C. ChaturvediVs. Union of India: AIR 1996 SC 484.

[82] Kurukshetra University Vs. Vinod Kumar: AIR 1977 Pj&Hr 21

[83] AIR 1972 SC 330

[84] Especially, in discretionary reliefs: Madras Gymkhana Club Vs. Sukumar 2010-1 CTC 199

[85] See: A. Venkatasubbiah Naidu Vs. S. Chellappan: 2000 (7) SCC 695: AIR 2000 SC 3032; Superding Engineer Periyar Electricity Vs. Pavathal: 2002-2 CTC 544; 2002-1 Mad LJ 515.

[86] Supreme Court Bar Association Vs. BD Kaushik: (2011) 13 SCC 774

[87] G. BalaSubrahmanyam Vs. Bar Council of AP: 2014 (2) ALD 101; 2014 (1) ALT 264; AP AryaVysyaMahasabha Vs. MutyapuSudershan: 2015 (5) ALD 1: 2015 (6) ALT 227

[88] A.V. Venkateswaran, Collector Vs. RamchandSobhrajWadhwani : AIR 1961 SC 1506; SatwatiDeswal Vs. State of Haryana: [2010] 1 SCC 126 ; State of H.P. Vs. Gujarat Ambuja Cement Ltd.: AIR 2005 SC 3936; Dhulabhai Vs. State of M P : AIR 1969 SC 78; Whirlpool Corporation Vs. Registrar of Trade Marks, Mumbai: AIR 1999 SC 22.

[89] Rajasthan STC Vs. BalMukundBairawa: (2009) 4 SCC 299 : (2009)5 SCJ 757;

[90] AIR 1983 SC 603

[91] AIR 2016 SC 1094

[92] AIR 1988 SC 616

[93] AIR 1999 SC 1566

[94] Quoted in: Avtar Singh Hit Vs. Delhi Sikh GurdwaraMgent. Comte. (2006) 8 SCC 487. Similar view in: Harnek Singh Vs. Charanjit Singh: AIR 2006 SC 52. Also see: Supreme Court Bar Association Vs. BD Kaushik: (2011) 13 SCC 774; NP PonnuswamiVs. Returning Officer: AIR 1952 SC 64.

[95] AIR 2005 SC 4217.

[96] See also: Arcot Textile Mills Vs. Regional Provident Fund: AIR 2014 SC 295.

[97] State of Madhya Pradesh Vs. Bani Singh : 1990 (Supp) SCC 738, (more than 12 years); State of Punjab Vs. ChamanLalGoyal: (1995) 2 SCC 570 (5½ years); M. Balakrishnan Vs. The Corporation of Madurai: 1995 (II) CTC 589; The Commr, SankarapuramPanchayat Vs. S.A. Abdul Wahab: 1996 Writ L.R.677, State of Andhra Pradesh Vs. N. Radhakishan: (1998) 4 SCC 154, B. Loganathan Vs. The Union of India: 2000 (III) CTC 351 (SC) (15 years); Union of India Vs. Central Administrative Tribunal: 2005 (2) CTC 169(20 years); .V. Mahadevan Vs. M.D., Tamil Nadu Housing Board: 2005 (4) CTC 403(SC) (20 years); M.V. Bijlani Vs. Union of India: (2006) 5 SCC 88, (13 years) P. Anand Vs. The Principal Commissioner: 2006 (5) CTC 723; K. Kumaran Vs. The State of Tamil Nadu: 2007 (3) CTC 763 (18 years); Ranjeet Singh Vs. State of Haryana 2008 (3) CTC 781 (SC) (9 years).

[98]UshaUdyog Vs. Customs, Excise and Gold: 2000-86 DLT 667: 2000-71 ECC 416, Mohan LalSaraf Vs. Chairperson, Debts Recovery: 2013-2 ADJ 497, 2013-3All LJ 99

[99]SatyaNidhanBanerji Vs. Mdhazabbur Ali Khan: AIR 1932 All 47; GadagotluSitaramaiah Vs. Collector Of Central Excise Hyderabad: AIR1960 AP 294; Iddesh Tours And Travels Vs. Comrof Service Tax Mumbai: 2019-367 ELT 235

[100] Vijay Prakash D. Mehta Vs. Collector of Customs: AIR 1988 SC 2010; Unicipal Committee Hoshiarpur Vs. Punjab State Electricity Board: AIR 2011 SC 209, TecnimontPvt Ltd Vs. State of Punjab: 2019-12 SCALE 562, UshaUdyog Vs. Customs, Excise and Gold: 2000-86 DLT 667: 2000-71 ECC 416; Shyam Kishore Vs. Municipal Corporation of Delhi: AIR 1991 Del 104.

[101]UshaUdyog Vs. Customs, Excise and Gold: 2000-86 DLT 667: 2000-71 ECC 416; Discharged Servicemens Assn. Vs. State of Kerala: 1999-2 KerLJ 1133: 2000-1 KerLT 281.

[102]NathamaniGounder Vs. State of Tamil Nudu: 1986-2 LLJ 423

[103] State of Andhra Pradesh Vs. S. Sree Rama Rao; AIR 1963 SC 1723; Sawai Singh Vs. State of Rajasthan: AIR 1986 SC 995; U.P.S.R.T.C. Vs. Ram Chandra Yadav: AIR 2000 SC 3596; Union of India Vs. Gyan Chand Chattar, (2009) 12 SCC 78; Anil Gilurker Vs.Bilaspur Raipur KshetriaGraminBank : (2011) 14 SCC 379 .

[104] AIR 1971 SC 752.

[105] See also: Narinder Mohan Arya Vs. United India Insurance: AIR 2006 SC 1748; Rajastan STC Vs. BalMukundBairawa: (2009) 4 SCC 299: (2009)5 SCJ 757; Anil Gilurkarvs.Bilaspur Raipur Kshetria Bank 2011 AIR (SCW) 5327; FirstoneTyre and Rubber Company Vs. Employees’ Union: AIR 1981 SC 1626; Union of India Vs. Gyan Chand Chatter: (2009) 12 SCC 78.

[106] AIR 1986 SC 995

[107] Ambalal Sarabhai Vs. Phiros H. Antia: AIR 1939 Bom. 35. See also: C.D. Sekkilar Vs. R. Krishnamoorthy: AIR 1952 Mad 151. HuseinMiyaDosumiya vs. ChandulalJethabhai: AIR 1954 Bom 239; Rajasthan State Road Trant.Corpn. Vs. BalMukundBairawa: (2009) 4 SCC 299. Personal hearing necessary: Mumbai Cricket Asson. Vs. Ratnakar: (2014) 2 Mah LJ 726. Action on report of enquiry officer based on ‘no evidence’: Roop Singh Negi Vs. Punjab National Bank : AIR 2008 SC (Sup.) 921;JagmohanDalmiaVs. BCCI: AIR 2008 Cal. 227.Narinder Mohan Arya Vs. United India Insurance Co. : AIR 2006 SC 1748T.P. Daver Vs. Lodge Victoria AIR 1963 SC 1144; Central Inland Water Transport Corporation Vs. BrojoNathGanguly: AIR 1986 SC 1571; Institute of Chartered Accounts of India Vs. L.K. Ratna, 1986 (4) SCC 537; Delhi Transport Corp. Vs. DTC Mazdoor Congress 1991 (Supp.1) SCC 600; LIC of India Vs. Consumer Education and Research Centre 1995(5) SCC 482; Escorts Farms Vs. Commissioner Kumaon Division (2004) 4 SCC 281; SM KambleVs. Jt. Registrar, Co-Op. Societies: (2008) 1 AIR Bom R 274.

[108] Kalyan Kumar Dutta Gupta Vs. B.M. Verma: AIR 1995 Cal. 140 (DB). Also see: Deepak R MehtraVs. National Sports Club of India: ILR 2009-19 Dlh 216.

[109] T.P. Daver v. Lodge Victoria No. 363 S.C. Belgaum: AIR 1963 SC 1144.

[110] AIR 1966 SC 1738.

[111] See: Firm Seth Radhakishan Vs. Administrator, Muni. Committee: AIR 1963 SC 1547; Secretary of State Vs. Mask & Co.: AIR 1940 PC 43; Premier Automobiles Ltd. Vs. KamlakarShantnram: AIR 1975 SC 2238: Rajasthan STC Vs. BalMukundBairawa: (2009) 4 SCC 299 : (2009)5 SCJ 757: Referred to: Narinder Mohan Arya Vs. United India Insurance Co. : AIR 2006 SC 1748; Roop Singh Negi Vs. Punjab National Bank : AIR 2008 SC (Sup.) 921; Dhulabhai Vs. State of M P : AIR 1969 SC 78. See also: ShridharMisra Vs. JaichandraVidyalankar: AIR 1959 All 598; K K Jain Vs. Federation Of Indian Export Organisations: AIR 2002 Del 408; GegongApang Vs. SanjoyTassar: AIR 2001 Gau 1; SardarKanwaldeep Singh Vs. Assistant Registrar Firms: AIR 1994 All 161; Gaurav A Jain Vs. M P University of Agriculture And Technology, AIR 2004 Raj 247.

[112] 4^thEdnVol 6: Para 241: Quoted in K.L. Katyal Vs. Central Secretariat Club (Regd):1994-30 DRJ 669 .

[113] AIR 2015 Gau 179.

[114] See also: M. Sekar Vs. The Tamil Nadu State Council of the CPI: 2015-7 MLJ 689

[115] 1999-3 SCC 372.

[116] AIR 2015 SC 3194

[117] General Manager (P), Punjab Sind Bank Vs. Daya Singh: (2010) 11 SCC 233

[118] AIR 1963 SC 1144

[119] See: All India Hockey Federation Vs. Indian Olympic Association: (1994) 55 DLT 607, Ashok Kumar Vs. SBI Officers Association: (2013) 201 DLT 433. See also: Meghal Homes Pvt Ltd Vs. NiwasGirni K KSamiti: AIR 2007 SC 3079; CaptKailashNath Harsh Vs. D C Patel: AIR 1999 Bom 133.

[120] AIR 1993 Mad 233

[121] (1991) 2 SCC 716

[122] See also: BC ChaturvediVs. Union of India: AIR 1996 SC 484. Bhagat Ram Vs. State of Himachal Pradesh: AIR 1983 SC 454.

[123] Supreme Court Bar Association Vs. Registrar of Societies: ILR 2012-22 Del 1031; GirishMulchand Mehta Vs. Mahesh S. Mehta. 2010 (1) Bom. C.R 31

[124] AwariDevannaVs Divisional Co Operative Officer: 1994-1 ALT 363;

K. Srinivas VS Commissioner of Fisheries: 2009 3 ALD 1; 2009 2 ALT 604.

[125] Institute of Chartered Accountants of India Vs. L.K. Ratna: AIR 1987 SC 71;

C.B. GautamVs. Union of India: (1993) 1 SCC 78.

[126] Sarbjit Singh Vs. All India Fine Arts and Crafts Society: ILR 1989-2 Del 585.

[127] ShriSarbjit Singh Vs. All India Fine Arts and Crafts Society: ILR (1989) II Delhi 585

Read in this cluster (Click on the topic):

Civil Suits: Procedure & Principles

Evidence Act

Constitution

Contract Act

Easement

Club/Society

Trusts/Religion

Unstamped & Unregistered Documents and Collateral Purpose

Saji Koduvath, Advocate, Kottayam.

Introspection

Does the law allow to use unstamped or insufficiently stamped document in evidence?	No	Sec. 35 of the Indian Stamp Act is the relevant provision. But, it can be used for collateral purposes; or the substantive purpose after payment of penalty (except promissory note).
Does the law allow to use unregistered (compulsory registrable) deed in evidence?	No	Sec. 49 of the Registration Act bars. But, it can be used for collateral purposes.
Should the court exclude an unregistered (compulsory registrable) deed even if marked without objection?	Yes	(2008) 8 SCC 564 But, it can be used for collateral purposes.
Can the court exclude an insufficiently stamped (or unstamped) document once marked without objection?	No	Sec. 36 Stamp Act governs. Sirikonda Madhava Rao v. N. Hemalatha (SC), 12 April, 2022; Relied on: Javer Chand v. Pukhraj Surana, 1962-2 SCR 333; Shyamal Kumar Roy v. Sushil Kumar Agarwal, 2006-11 SCC 331.
Is there a duty upon Judge not to admit a document that is not duly stamped even if no objection to mark it?	Yes	2017-3 AIR(Kar)(R) 570; AIR 2015 Kar 175
Is there a duty upon Judge to impound every document not duly stamped, irrespective of objection to mark it?	Yes	2017-3 AIR(Kar)(R) 570; AIR 2015 Kar 175
When does question of using a document for ‘collateral purpose‘ arise?	….	In case of an unregistered (compulsorily registrable) document: Sec. 49 of the Registration Act.
Can the court allow to use an unstamped or insufficiently stamped document for ‘collateral purpose‘?	No	It is the duty of every Judge not to admit a document that is not duly stamped, even if no objection to other side. 2017-3 AIR(Kar)(R) 570; AIR 2015 Kar 175.
Can a document, required to be registered, but not registered, be used in a suit for specific performance.	Yes	It may be used in a suit for specific performance under Proviso to Sec. 49 of the Registration Act. And, it can be received as evidence of an oral agreement of sale. S. Kaladevi v. V.R. Somasundaram, (2010) 5 SCC 401; Ameer Minhaj v. Dierdre Elizabeth (Wright) Issar, 2018 (7) SCC 639.

INSUFFICIENTLY STAMPED DOCUMENTS

Instruments not duly stamped, inadmissible

Sec. 35, Indian Stamp Act reads as under:

“35. Instruments not duly stamped inadmissible in evidence, etc.–No instrument chargeable with duty shall be admitted in evidence for any purpose by any person having by law or consent of parties authority to receive evidence, or shall be acted upon, registered or authenticated by any such person or by any public officer, unless such instrument is duly stamped:
Provided that—(a) any such instrumentshall, be admitted in evidence on payment of the duty with which the same is chargeable, or, in the case of an instrument insufficiently stamped, of the amount required to make up such duty, together with a penalty of five rupees, or, when ten times the amount of the proper duty or deficient portion thereof exceeds five rupees, of a sum equal to ten times such duty or portion;
(b) where any person from whom a stamped receipt could have been demanded, has given an unstamped receipt and such receipt, if stamped, would be admissible in evidence against him, then such receipt shall be admitted in evidence against him, then such receipt shall be admitted in evidence against him on payment of a penalty of one rupee by the person tendering it;
(c) where a contract or agreement of any kind is effected by correspondence consisting of two or more letters and any one of the letters bears the proper stamp, the contract or agreement shall be deemed to be duly stamped;
(d) nothing herein contained shall prevent the admission of any instrument in evidence in any proceeding in a Criminal Court, other than a proceeding under Chapter XII or Chapter XXXVI of the Code of Criminal Procedure, 1898 (5 of 1898);
(e) nothing herein contained shall prevent the admission of any instrument in any Court when such instrument has been executed by or on behalf of theGovernment or where it bears the certificate of the Collector as provided by section 32 or any other provision of this Act.

Unstamped document cannot be looked at even for any collateral purpose

Privy Council in Ram Rattan v. Parma Nath, AIR 1946 PC 51, held that section 35 of the Stamp Act prohibited the unstamped (or inadequately stamped) document from being looked at even for any collateral purpose, as it enacts that no instrument chargeable with duty shall be admitted in evidence ‘for any purpose’. The unstamped (or inadequately stamped) document becomes admissible on payment of penalty under Stamp Act or on payment of the stamp duty after impounding.

In Omprakash v. Laxminarayan, (2014) 1 SCC 618, the Apex Court observed as under:

“From a plain reading of the aforesaid provision (S. 35 of the Stamp Act), it is evident that an authority to receive evidence shall not admit any instrument unless it is duly stamped. An instrument not duly stamped shall be admitted in evidence on payment of the duty with which the same is chargeable or in the case of an instrument insufficiently stamped, of the amount required to make up such duty together with penalty. As we have observed earlier, the deed of agreement having been insufficiently stamped, the same was inadmissible in evidence. The court being an authority to receive a document in evidence to give effect thereto, the agreement to sell with possession is an instrument which requires payment of the stamp duty applicable to a deed of conveyance. Duty as required, has not been paid and, hence, the trial court rightly held the same to be inadmissible in evidence.”

The Apex Court upheld the observation of the MP High Court in Writ Petition No. 6464 of 2008, overruling the impugned judgment (Laxminarayan v. Omprakash 2008 (2) MPLJ 416). The MP High Court had observed as under:

“8. A document would be admissible on basis of the recitals made in the document and not on basis of the pleadings raised by the parties. ….
9. It would be trite to say that if in a document certain recitals are made then the Court would decide the admissibility of the document on the strength of such recitals and not otherwise. In a given case, if there is an absolute unregistered sale deed and the parties say that the same is not required to be registered then we don’t think that the Court would be entitled to admit the document because simply the parties say so. The jurisdiction of the Court flows from Sec. 33, 35 and 38 of the Indian Stamp Act and the Court has to decide the question of admissibility. With all humility at our command we overrule the judgment in the matter of Laxminarayan (supra).”

N.N. Global held – If Arb. Agreement Unstamped, No ‘Valid Arb. Agreement Exists’

Before the 5-Judge-Bench of the Supreme Court, it was argued –

by the respondents/defendants, on the basis of the relevant provisions of the Arbitration and Conciliation Act, 1996 (especially Sec. 16), that an arbitration clause would stand as a distinct, separate and independent from the substantive contract and that an arbitration reference can be made by the court even if the arbitration agreement was insufficiently stamped; and
by the appellant/plaintiff, in view of the provisions in the Indian Stamp Act (especially Sec. 33 and 35), that the arbitration reference could not be made by the court on the basis of an insufficiently stamped agreement. It was pointed out that unstamped or insufficiently stamped documents cannot be used as evidence for any purpose, as provided in the Stamp Act; and that for reference under Sec. 8 of the Arbitration Act the court has to specifically find that prima facie a “valid arbitration agreement exists“.

It is held, by majority (3:2), in N.N. Global Mercantile (P) Ltd. v. Indo Unique Flame Ltd., 2023 SCC OnLine SC 495, that an arbitration reference cannot be made by the court under Sec. 8 of the Arb. Act, on the basis of an unstamped or insufficiently stamped agreement.

The Majority affirmed the findings in this regard, in the two earlier 3-Judge Bench decisions.

(i) Garware Wall Ropes Ltd. v. Coastal Marine Constructions & Engg. Ltd., (2019) 9 SCC 209 (it was held that an arbitration reference cannot be made on the basis of an unstamped or insufficiently stamped agreement).
(ii) Vidya Drolia v. Durga Trading Corporation, 2021-2 SCC 1 (it was held that landlord-tenant disputes covered and governed by rent control legislation would not be arbitrable when specific court or forum has been given exclusive jurisdiction to apply and decide special rights and obligations).

Admission of Contents of Document in Pleadings

In Perumal Chettiar v. Kamakshi Ammal, AIR 1938 Mad 785; (1938) 2 MLJ 189, it is observed, as to pleadings, as under:

“The result, in India, is that if by reason of the document being unstamped, no evidence of its contents whether primary or secondary is admissible, evidence of admissions by the defendant is equally inadmissible. The position may be different where admissions are made in the pleadings themselves (cf. Huddleston v, Briscoe (1805) 11 Ves. 583 (596) : 32 E.R. 1215 (1220) and Thynne v. Protheroe (1814) 2 M. & S. 553 : 105 E.R. 488), because by reason of Section 58 of the Evidence Act, it may not be necessary to prove admitted facts and the objection under Section 91 will not arise unless the plaintiff is called upon to go into evidence. (Mallappa v. Mat an Naga Chetty (1918) 35 M.L.J. 555 : I.L.R. 42 Mad. 41 (F.B.))
This was the position in Pramatha Nath Sandal v. Dwarka Nath Dey (1896) I.L.R. 23 Cal. 851; cf. however Chenbasappa v. Lakshman Ramchandra (1893) I.L.R. 18 Bom. 369, where it was suggested that in a suit on an unstamped promissory note, even an admission in the written statement may not avail the plaintiff, as the Court when giving a decree on such admission may be “acting on” the document within the meaning of Section 35 of the Stamp Act; see also Ankur Chunder Roy Chowdhry v. Madhub Chunder Gkose (1873) 21 W.R. 1.”

Read Blog : Oral Evidence on Contents of Document, Irrelevant

Impounding of Instruments

Section 33 of the Indian Stamp Act provides as under:

33. Examination and impounding of instruments—(1) Every person having by law or consent of parties, authority to receive evidence, and every person in charge of a public office, except an officer of police, before whom any instrument, chargeable, in his opinion, with duty, is produced or comes in the performance of his functions, shall, if it appears to him that such instrument is not duly stamped, impound the same.
(2) For that purpose every such person shall examine every instrument so chargeable and so produced or coming before him, in order to ascertain whether it is stamped with a stamp of the value and description required by the law in force in⁶² [India] when such instrument was executed or first executed: Provided that—
(a) nothing herein contained shall be deemed to require any Magistrate or Judge of a Criminal Court to examine or impound, if he does not think fit so to do, any instrument coming before him in the course of any proceeding other than a proceeding under Chapter XII or Chapter XXXVI of the Code of Criminal Procedure, 1898 (5 of 1898);
(b) in the case of a Judge of a High Court, the duty of examining and impounding any instrument under this section may be delegated to such officer as the Court appoints in this behalf.
(3) For the purposes of this section, in cases of doubt,—
(a) theState Government may determine what offices shall be deemed to be public offices; and
(b) theState Government may determine who shall be deemed to be persons in charge of public offices.

Section 36 of the Stamp Act – Once admitted shall NOT be called in question

Section 36 of the Stamp Act provides as under:

“36. Admission of instrument where not to be questioned – Where an instrument has been admitted in evidence such admission shall not except as provided in Section 61, be called in question at any stage of the same suit or proceeding on the ground that the instrument has not been duly stamped “.
- Note: Sec. 61 of the Indian stamp act reads as under:
- 61. Revision of certain decisions of Courts regarding the sufficiency of stamps— (1) When any Court in the exercise of its civil or revenue jurisdiction of any Criminal Court in any proceeding under Chapter XII or Chapter XXXVI of the Code of Criminal Procedure, 1898 (5 of 1898), makes any order admitting any instrument in evidence as duly stamped or as not requiring a stamp, or upon payment of duty and a penalty under section 35, the Court to which appeals lie from, or references are made by, such first-mentioned Court may, of its own motion or on the application of the Collector, take such order into consideration.
- (2) … (3) …. (4) …..

Order Admitting Document, Not liable to be Reviewed or Reversed in Appeal

The Apex Court held in Javer Chand v. Pukhraj Surana, AIR 1961 SC 1655, as under:

“Where a question as to the admissibility of a document is raised on the ground that it has not been stamped, or has not been properly stamped, it has to be decided then and there when the document is tendered in evidence.
The Court has to judicially determine the matter as soon as the document is tendered in evidence and before it is marked as an exhibit in the case. …
Once a document has been marked as an exhibit in the case and the trial has proceeded all along on the footing that the document was an exhibit in the case and has been used by the parties in examination and cross-examination of their witnesses, S. 36 of the Stamp Act comes into operation. Once a document has been admitted in evidence, as aforesaid, it is not open either to the Trial Court itself or to a Court of Appeal or revision to go behind that order.
Such an order is not one of those judicial orders which are liable to be reviewed or revised by the same Court or a Court of superior jurisdiction.”

Objection is to be raised when Document Tendered

Our Apex Court held in Sirikonda Madhava Rao v. N. Hemalatha, 12 April, 2022 (referring Javer Chand v. Pukhraj Surana, (1962-2 SCR 333 and Shyamal Kumar Roy v. Sushil Kumar Agarwal, 2006-11 SCC 331) that after marking a document unopposed, it is not open to the parties, or even the court, to reexamine the order or issue. In this case. a document purporting to be an unregistered and insufficiently-stamped sale deed was marked as an Exhibit. The High Court directed that the aforesaid document should be de-marked and not be treated as an exhibit.It is said by the Supreme Court –

“Once a document has been admitted in evidence, such admission cannot be called in question at any stage of the suit or proceedings on the ground that the instrument has not been duly stamped. Objection as to admissibility of a document on the ground of sufficiency of stamp, has to raised when the document is tendered in evidence. Thereafter, it is not open to the parties, or even the court, to reexamine the order or issue.”

In Lothamasu Sambasiva Rao v. Thadwarthi Balakotiah, AIR 1973 AP 342, and several other decisions it was held that Section 35 was only a bar to the admissibility of an unstamped or insufficiently stamped document; and that when it had been admitted in evidence it could not have been, afterwards, withdrawn. See also:

Pankajakshan Nair v. Shylaja: ILR 2017-1 Ker 951;
Dundappa v. Subhash Bhimagouda Patil: 2017-3 AIR(Kar)(R) 570;
Savithramma R. C. v. Vijaya Bank; AIR 2015 Kar 175;
Jayalakshmamma v. Radhika: 2015 4 KarLJ 545;
K. Amarnath v. Smt. Puttamma: ILR 1999 Kar. 4634
Nanda Behera v. Akhsaya Kumar Behera, 2017AIR (CC) 1893.

However, it was observed by the Supreme Court in 2001 in Bipin Shantilal Panchal v. State of Gujarat, AIR 2001 SC 1158, that that ‘it is an archaic practice that during the evidence collecting stage, whenever any objection is raised regarding admissibility of any material in evidence the court does not proceed further without passing order on such objection’. And the Court directed as under:

“When so recast, the practice which can be a better substitute is this: Whenever an objection is raised during evidence taking stage regarding the admissibility of any material or item of oral evidence the trial court can make a note of such objection and mark the objected document tentatively as an exhibit in the case (or record the objected part of the oral evidence) subject to such objections to be decided at the last stage in the final judgment.”

But, the subsequent decisions in R.V.E. Venkatachala Gounder: AIR 2004 SC 4082; Dayamathi Bai (2004) 7 SCC 107 took a contra view. It was 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.

Shall not Admit Unless Duly Stamped Vs. Once Admitted Immune from Challenge

The following forceful propositions stand paradoxical and incongruent.

Section 33 of the Stamp Act casts a duty on every authority including the Court to examine the document to find out whether it is duly stamped or not, irrespective of the fact whether an objection to its marking is raised or not. There is a duty upon every Judge under Sec. 35 of the Indian Stamp Act not to admit a document that is not duly stamped even if no objection to mark it.
The court should not exclude an insufficiently stamped (or unstamped) deed once marked without objection under Sec. 36 of the Indian Stamp Act.

The Karnataka High Court held in Smt. Savithramma R.C v. M/s. Vijaya Bank, AIR 2015 Kar 175, as under:

“6. From the aforesaid statutory provisions and the decisions, it is clear that a duty is cast upon every judge to examine every document, which is produced or comes before him in the performance of his functions. On such examination, if it appears to the Judge that such instrument is not duly stamped, an obligation is cast upon him to impound the same. This duty is to be performed by the Judge irrespective of the fact whether any objection to its marking is raised or not. Hence, there is a need for diligence on the part of the Court having regard to the statutory obligation under Section 33 of the Karnataka Stamp Act. Section 34 of the Karnataka Stamp Act* mandates that an instrument, which is not duly stamped shall not be admitted in evidence. If any objection is taken to the admissibility of the evidence, it shall be decided then and there. If this document is found to be insufficiently stamped, then in terms of the proviso(a) to Section 34, the Court shall call upon the person, who is tendering the said document to pay duty and ten times penalty and thereafter admit the document in evidence. If duty and penalty is not paid, the document shall not be admitted in evidence.
- *^{Corresponding to Sec. 35, Indian Stamp Act}
If such an objection is not taken at the time of admitting the said instrument in evidence, and the insufficiently stamped document is admitted in evidence then Section 35** of the Act provides that such admission shall not be called in question at any stage of the same suit or proceedings on the ground that the instrument has not been duly stamped.
- ^**^{Corresponding to Sec. 36, Indian Stamp Act}
It has nothing to do with impounding the document. A duty is cast upon every judge to examine every document that is sought to be marked in evidence. The nomenclature of the document is not decisive. The question of admissibility will have to be decided by reading the document and deciding its nature and classification. Even while recording ex parte evidence or while recording evidence in the absence of the Counsel for the other side, the Court should be vigilant and examine and ascertain the nature of the document proposed to be marked and ensure that it is a document which is admissible. The Court should not depend on objections of the other Counsel before considering whether the document is admissible in evidence or not. Section 33 of the Stamp Act casts a duty on the Court to examine the document to find out whether it is duly stamped or not, irrespective of the fact whether an objection to its marking is raised or not”

Should Court Sit Silent and Question Unstamped Documents Afterwards

Though Smt. Savithramma R.C v. M/s. Vijaya Bank (supra) clarified the position with great clarity. As shown above, it pointed out-

“6. …. The Court should not depend on objections of the other Counsel before considering whether the document is admissible in evidence or not. Section 33 of the Stamp Act casts a duty on the Court to examine the document to find out whether it is duly stamped or not, irrespective of the fact whether an objection to its marking is raised or not”

Therefore, it is not definite-

whether the court should be unfailingly diligent enough not to mark an unstamped or insufficiently stamped document,or
whether the court should sit silent and mark the document if it is not opposed, or
whether the court should raise its eye-brows after marking it unopposed.

It is yet to be solved after considering all relevant aspects.

Referring Sec. 36 of the (Indian) Stamp Act, Karnataka High Court pointed out in Nanda Behera v. Akhsaya Kumar Behera, 2017AIR (CC) 1893, relying on Javer Chand v. Pukhraj Surana, AIR 1961 SC 1655, and Yellapu Uma Maheswari v. Buddha Jagadheeswara Rao, (2015) 16 SCC 787, as under:

“12. Thus where a question as to the admissibility of a document is raised on the ground that it has not been stamped or has not been properly stamped, it has to be decided then and there when the document is tendered in evidence. Once the Court, rightly or wrongly, decides to admit the document in evidence, so far as the parties are concerned, the matter is closed. Parties to a litigation, where such a controversy is raised, have to be circumspect and the party challenging the admissibility of the document has to be alert to see that the document is not admitted in evidence by the Court. The Court has to judicially determine the matter as soon as the document is tendered in evidence and before it is marked as an exhibit. Once a document has been admitted in evidence, it is not open either to the trial court itself or to a Court of Appeal or revision to go behind that order. Such an order is not one of those judicial orders which are liable to be reviewed or revised by the same Court or a Court of superior jurisdiction. An unregistered document can be relied upon for collateral purpose i.e. severancy of title, nature of possession of various shares but not for the primary purpose i.e. division of joint properties by metes and bounds. An unstamped instrument is not admissible in evidence even for collateral purpose, until the same is impounded. If the petitioner wants to mark the documents for collateral purpose, it is open to him to pay the stamp duty together with penalty and get the document impounded. Thereafter the trial court shall consider the same for collateral purpose subject to proof and relevance.”

What is Collateral Purpose?

The word ‘collateral’ signifies something beyond or parallel. According to Law Lexicon it means “that which is by the side, and not the direct line; that which is additional to or beyond a thing” (Amit Khanna. Vs Suchi Khanna, 2008-10 ADJ 426; 2009-75 AllLR 34; 2009-1 AWC 929).

The Apex Court in K.B. Saha and Sons Private Limited v. Development Consultant Ltd., (2008) 8 SCC 564: 2008 AIR SCW 4829, held as under:

“A collateral transaction must be independent of, or divisible from, the transaction to effect which the law required registration.”
“A collateral transaction must be a transaction not itself required to be effected by a registered document, that is, a transaction creating, etc. any right, title or interest in immovable property of the value of one hundred rupees and upwards.”

Yellapu Uma Maheswari v. Buddha Jagadheeswararao, (2015) 16 SCC 787, is an authority to see, what is ‘collateral purpose’. It is held that following matters can be proved with an unregistered partition deed, as ‘collateral purpose’-

severancy of title,
nature of possession of various shares;
- but not primary purpose, i.e. division of joint properties by metes and bounds.

It is held as under:

“In a suit for partition, an unregistered document can be relied upon for collateral purpose i.e. severancy of title, nature of possession of various shares but not for the primary purpose i.e. division of joint properties by metes and bounds. An unstamped instrument is not admissible in evidence even for collateral purpose, until the same is impounded. Hence, if the appellant-defendant wants to mark these documents for collateral purpose it is open for them to pay the stamp duty together with penalty and get the document impounded and the trial court is at liberty to mark Exts. B-21 and B-22 for collateral purpose subject to proof and relevance.”

Proviso to Sec. 49 of the Registration Act reads as under:

Provided that an unregistered document affecting immovable property and required by this Act or the Transfer of Property Act, 1882 (4 of 1882), to be registered may be received as evidence of a contract in a suit for specific performance under Chapter II of the Specific Relief Act, 1877 (3 of 1877), or as evidence of any collateral transaction not required to be effected by registered instrument.”

Is ‘Impounding’ totally Independent from ‘Admissibility’

Karnataka High Court (N. Kumar, J.), in Rekha S. Chandru v. Chikka Venkatappa (2015), authoritatively held relying on Javer Chand v. Pukhraj Surana, AIR 1961 SC 1655, that when a document was already marked by the trial Court in evidence, the objection regarding stamp duty cannot be raised at a later stage.

It further observed (obiter) by the Karnataka High Court that the impounding the document was totally different from admissibility; and therefore, an insufficiently stamped document, if admitted by mistake, was liable to be impounded by the Court and the procedure prescribed in the Stamp Act was to be followed in so far as collection of stamp duty and penalty were concerned.

It appears that the above proposition of the Karnataka High Court has to be evaluated on the touchstone of the Apex Court verdict, Javer Chand v. Pukhraj Surana, AIR 1961 SC 1655, which reads as under:

“Once a document has been admitted in evidence, as aforesaid, it is not open either to the Trial Court itself or to a Court of Appeal or revision to go behind that order. Such an order is not one of those judicial orders which are liable to be reviewed or revised by the same Court or a Court of superior jurisdiction.”

Unstamped or Insufficiently Stamped Pro-note

Unstamped or insufficiently stamped promissory note cannot be marked in evidence. The weight of authority is on the side that says it is incurable. Hence no secondary evidence can also be lead on the same. It cannot be used for collateral purpose also. But the creditor can prosecute a suit upon ‘original consideration’.

See Blog: (CLICK): Adjudication as to Proper Stamp under Stamp Act

Impounding of Documents – When Produced or when Exhibited

In Yogesh Kumar Sikka v. Monika (2019) the P & H High Court held as under:

“12. Court cannot say that it would impound the document only when the document is tendered in evidence for marking. There may be instances where duty and penalty payable may be very high and the party may not choose to rely upon such insufficiently stamped document in order to avoid stamp duty and penalty. In such circumstances, it would result in loss of revenue to the exchequer. The power of impounding a document is to collect stamp duty and penalty whenever there is an escape of duty. Therefore, when it is brought to the notice of the Court that a document is insufficiently stamped, the Court exercising its power under S. 33 of the Act has to pass an order at the first instance for impounding the document. Though there is a discretion vested in the Court to exercise powers under S. 33 and 34 of the Act, no Court can hold that it would wait till the document is tendered in evidence. In such circumstances, there may be chances of loss of revenue to the exchequer.”

Copy of a Deed Cannot be Impounded; it cannot be Validated by Impounding

In Hariom Agrawal v. Prakash Chand Malviya , AIR 2008 SC 166, it is held as under:

“8. It is clear from the decisions of this Court and a plain reading of Ss. 33, 35 and 2(14) of the Act (Madhya Pradesh Stamp Act) that an instrument which is not duly stamped can be impounded and when the required fee and penalty has been paid for such instrument it can be taken in evidence under Sec. 35 of the Stamp Act. Ss. 33 or 35 are not concerned with any copy of the instrument and party can only be allowed to rely on the document which is an instrument within the meaning of Sec. 2(14). There is no scope for the inclusion of the copy of the document for the purposes of the Indian Stamp Act. Law is now no doubt well settled that copy of the instrument cannot be validated by impounding and this cannot be admitted as secondary evidence under the Indian Stamp Act, 1899.”

See Blog: No Adjudication Needed If Power of Attorney is Sufficiently Stamped

Can Unregistered Agreement be admitted in a suit for specific performance?

It is held in S. Kaladevi Vs. V.R. Somasundaram, (2010) 5 SCC 401, that a document required to be registered, if unregistered, can be admitted in evidence as evidence of a contract in a suit for specific performance.
It is followed in Ameer Minhaj v. Dierdre Elizabeth (Wright) Issar, 2018 (7) SCC 639.

Relevant Provisions in the Registration Act:

Sec. 17(1) (g) and 49 are the relevant provisions. They read as under:

“17. Documents of which registration is compulsory- (1) The following documents shall be registered, …, namely:
…
…
(State Amendment -AP) Agreement of sale of immovable property of the value of one hundred rupee and upwards. (Similar State Amendment in Tamil Nadu and Kerala also.)

“49. Effect of non-registration of documents required to be registered.– No document required by section 17 …. to be registered shall-
(a) affect any immovable property comprised therein
(b) ….
(c) be received as evidence of any transaction affecting such property or conferring such power, unless it has been registered:
- Provided that an unregistered document affecting immovable property and required by this Act or the Transfer of Property Act, 1882 (4 of 1882), to be registered may be received as evidence of a contract in a suit for specific performance under Chapter II of the Specific Relief Act, 1877 (3 of 1877), or as evidence of any collateral transaction not required to be effected by registered instrument.”

Pay Duty With Penalty to Admit Unstamped Deed for Collateral Purpose

In Yellapu Uma Maheswari v. Buddha Jagadheeswararao, (2015) 16 SCC 787, the Apex Court held in the suit for declaration of title that an unregistered document can be relied upon for collateral purposes i.e. to prove his possession, payment of sale consideration and nature of possession; but not for primary purpose i.e. sale between the plaintiff and defendant or its terms. It is held as under:

“…. Hence, if the appellant-defendant wants to mark these documents for collateral purpose it is open for them to pay the stamp duty together with penalty and get the document impounded and the trial court is at liberty to mark Exts. B-21 and B-22 for collateral purpose subject to proof and relevance.”

In Kalaivani @ Devasena v. J. Ramu, 2010(1) CTC 27, it was held that an opportunity should be given to the party who produces the document with insufficient stamp, to pay the deficit stamp duty and penalty so that the document could be exhibited; and that if penalty is not paid, the document should be impounded. It is held as under:

“24. .. It is well settled that even an unregistered document is admissible in evidence for collateral purpose provided it is adequately stamped under the Stamp act. If the document is both unstamped and unregistered, as the document in question here, it is no doubt true that it cannot be looked into for collateral purpose also. But such a document should not be thrown out at the threshold itself and an opportunity must be extended to the party who wants to mark the document on his side by directing him to pay the deficit stamp duty along with the penalty upto date, then the document could be admitted in evidence for collateral purpose. If the person does not pay the Court, then the document is to be impounded and sent to the Collector for taking action under the law.”

K.B. Saha and Sons Private Limited v. Development Consultant Ltd

Section 49 of the Registration Act expressly states admissibility of unregistered documents in evidence for collateral purposes.

The Apex Court in K.B. Saha and Sons Private Limited v. Development Consultant Ltd., (2008) 8 SCC 564: 2008 AIR SCW 4829, has laid down the principle in respect of the collateral purpose.

“34. From the principles laid down in the various decisions of this Court and the High Courts, as referred to here-in-above, it is evident that :-

A document required to be registered is not admissible into evidence under section 49 of the Registration Act.
Such unregistered document can however be used as an evidence of collateral purpose as provided in the Proviso to section 49 of the Registration Act.
A collateral transaction must be independent of, or divisible from, the transaction to effect which the law required registration.
A collateral transaction must be a transaction not itself required to be effected by a registered document, that is, a transaction creating, etc. any right, title or interest in immovable property of the value of one hundred rupees and upwards.
If a document is inadmissible in evidence for want of registration, none of its terms can be admitted in evidence and that to use a document for the purpose of proving an important clause would not be using it as a collateral purpose.

‘Collateral Purpose‘ under Sec. 49 Registration Act

Section 49 of the Registration Act expressly states admissibility of unregistered documents in evidence for collateral purposes. The word ‘collateral’ signifies something beyond or parallel. According to Law Lexicon it means “that which is by the side, and not the direct line; that which is additional to or beyond a thing” (Amit Khanna. Vs Suchi Khanna, 2008-10 ADJ 426; 2009-75 AllLR 34; 2009-1 AWC 929).

The Supreme Court observed in Sri Venkoba Rao Pawar v. Sri S. Chandrashekar, that the collateral purpose/transaction must be independent of, or divisible from the transaction which requires registration. In Yellapu Uma Maheswari v. Buddha Jagadheeswararao, (2015) 16 SCC 787, the Apex Court held that in the suit for declaration of title, an unregistered document can be relied upon for collateral purposes i.e. to prove his possession, payment of sale consideration and nature of possession; but not for primary purpose i.e. sale between the plaintiff and defendant or its terms.

In S. Kaladevi Vs. V.R. Somasundaram, (2010) 5 SCC 401, Our Apex Court held as under:

“11. The main provision in Section 49 provides that any document which is required to be registered, shall not affect any immovable property comprised therein nor such document shall be received as evidence of any transaction affecting such property. The proviso, however, would show that an unregistered document affecting immovable property and required by the 1908 Act or the Transfer of Property Act, 1882 to be registered may be received as an evidence to the contract in a suit for specific performance or as evidence of any collateral transaction not required to be affected by registered instrument. By virtue of the proviso, therefore, an unregistered sale deed of an immovable property of the value of Rs.100 and more could be admitted in evidence as evidence of a contract in a suit for specific performance of the contract. Such an unregistered sale deed can also be admitted in evidence as an evidence of any collateral transaction not required to be effected by registered document. When an unregistered sale deed is tendered in evidence, not as evidence of a completed sale, but as proof of an oral agreement of sale, the deed can be received in evidence making an endorsement that it is received only as evidence of an oral agreement of sale under the proviso to Section 49 of the 1908, Act.”
12. Recently in the case of K.B. Sahaand Sons Private Limited v. Development Consultant Limited ,(2008) 8 SCC 564, this Court noticed the following statement of Mulla in his Indian Registration Act, 7th Edition, at page 189:
- “……The High Courts of Calcutta, Bombay, Allahabad, Madras, Patna, Lahore, Assam, Nagpur, Pepsu, Rajasthan, Orissa, Rangoon and Jammu & Kashmir; the former Chief Court of Oudh; the Judicial Commissioner’s Court at Peshawar, Ajmer and Himachal Pradesh and the Supreme Court have held that a document which requires registration under Section 17 and which is not admissible for want of registration to prove a gift or mortgage or sale or lease is nevertheless admissible to prove the character of the possession of the person who holds under it……”

“This Court then culled out the following principles: (K.B. Saha case, SCC p.577, para 334)
- “1. A document required to be registered, if unregistered is not admissible into evidence under Section 49 of the Registration Act.
- 2. Such unregistered document can however be used as an evidence of collateral purpose as provided in the proviso to Section 49 of the Registration Act.
- 3. A collateral transaction must be independent of, or divisible from, the transaction to effect which the law required registration.
- 4. A collateral transaction must be a transaction not itself required to be effected by a registered document, that is, a transaction creating, etc. any right, title or interest in immovable property of the value of one hundred rupees and upwards.
- 5. If a document is inadmissible in evidence for want of registration, none of its terms can be admitted in evidence and that to use a document for the purpose of proving an important clause would not be using it as a collateral purpose.
To the aforesaid principles, one more principle may be added, namely, that a document required to be registered, if unregistered, can be admitted in evidence as evidence of a contract in a suit for specific performance.”

It is held in Ameer Minhaj v. Dierdre Elizabeth (Wright) Issar, 2018 (7) SCC 639, after quoting Sec. 17 Registration Act, as under:

10. On a plain reading of this provision, it is amply clear that the document containing contract to transfer the right, title or interest in an immovable property for consideration is required to be registered, if the party wants to rely on the same for the purposes of Section 53A of the 1882 Act to protect its possession over the stated property. If it is not a registered document, the only consequence provided in this provision is to declare that such document shall have no effect for the purposes of the said Section 53A of the 1882 Act.
The issue, in our opinion, is no more res integra. In S. Kaladevi Vs. V.R. Somasundaram and Ors., (2010) 5 SCC 401, this Court has restated the legal position that when an unregistered sale deed is tendered in evidence, not as evidence of a completed sale, but as proof of an oral agreement of sale, the deed can be received as evidence making an endorsement that it is received only as evidence of an oral agreement of sale under the proviso to Section 49 of the 1908 Act.

After quoting Sec. 49 Registration Act it is observed by the Apex Court as under:

11. In the reported decision (i.e. S. Kaladevi Vs. V.R. Somasundaram, (2010) 5 SCC 401), this Court has adverted to the principles delineated in K.B. Saha and Sons Private Limited v. Development Consultant Limited, (2008) 8 SCC 564 and has added one more principle thereto that a document is required to be registered, but if unregistered, can still be admitted as evidence of a contract in a suit for specific performance. In view of this exposition, the conclusion recorded by the High Court in the impugned judgment that the sale agreement dated 9th July, 2003 is inadmissible in evidence, will have to be understood to mean that the document though exhibited, will bear an endorsement that it is admissible only as evidence of the agreement to sell under the proviso to Section 49 of the 1908 Act and shall not have any effect for the purposes of Section 53A of the 1882 Act. In that, it is received as evidence of a contract in a suit for specific performance and nothing more. The genuineness, validity and binding nature of the document or the fact that it is hit by the provisions of the 1882 Act or the 1899 Act, as the case may be, will have to be adjudicated at the appropriate stage as noted by the Trial Court after the parties adduce oral and documentary evidence.”

Basis of the Erudite Decision In S Kaladevi (as stated in Para 11 of the decision)

Proviso in Section 49:
- “The proviso, however, would show that an unregistered document affecting immovable property and a document ‘required to be registered, but if unregistered’, may, still, be received as an evidence to the contract in a suit for specific performance …. “
Admitted as proof of an oral agreement of sale
- “Such an unregistered sale deed … can be received in evidence ….. as evidence of an oral agreement of sale.”

Unregistered Agreement to sell is admissible in evidence

R. Hemalatha v. Kashthuri, AIR 2023 SC 1895; 2023-10 SCC 725, it was held pointing out the proviso to Section 49 of the Registration Act –

that an unregistered Agreement to sell is be admissible in evidence in a suit for specific performance and the proviso is exception to first part of Section 49.

Unregistered Agreement can be used in Specific performance Even After the Amendment on Sec. 17

In C. Ramya Vs. C. Ganambal, 2020-5 Mad LJ 416 the Madras Court pointed out that the Madras and Andhra High Courts took the view that even after the amendment on Sec. 17 (Agreement of sale of immovable property is a compulsorily registrable document), non-registration of an agreement of sale does not operate as a total bar to look into the contract, since proviso to Section 49 has carved out two exceptions –

(i) a document ‘required to be registered, but if unregistered,’ may, still, be received as an evidence to the contract in a suit for specific performance, and
(ii) it can be used for any ‘collateral purpose’.

The following are the cases referred to by the Madras High Court:

G. Veeramani Vs. N. Soundaramoorthy, 2019(6) CTC 580;
D. Devarajan v. Alphonsa Mary, 2019 (2) CTC 290;
Minor Ravi Bharathi Vs. P. Balasubramani, 2014(3) MWN (Civil) 578.

Unregd. Partition Deed Admissible to see Severance & No Suit for Partition lie

In Chinnapareddigari Pedda Muthyalareddy v. Chinnappareddigari Venkatareddy, AIR 1969 AP 242, unregistered partition lists were drawn up showing the properties allotted to the respective sharers. The lists were construed as partition deeds and were held by the trial Court to be inadmissible in evidence for proving division by metes and bounds. No oral evidence was held to be admissible under section 91 of the Evidence Act to prove the factum of partition or the nature of possession. In appeal the Andhra Pradesh High Court (FB-Jaganmohan Reddy, C.J.) held that the unregistered partition deed was admissible not for proving terms of the partition or as the source of title, but for the purpose of showing that there was a disruption (division/severance) in status and that no suit for partition would lie on the basis that the properties were still joint family properties. This decision is relied on in Booraswami v. Rajakannu, 1978-1 MLJ 248; and held further, relying on K. Kanna Reddy v. K. Venkata Reddy, AIR 1965 AP 274, that for determining status and the nature of the possession oral evidence was also admissible (for proving the factum of partition).

Effect of Marking a Document Without Objection

Unregistered (Compulsorily Registrable) Documents:

With respect to unregistered documents it is held by the Apex Court in K.B. Saha and Sons Private Limited v. Development Consultant Ltd, (2008) 8 SCC 564: 2008 AIR SCW 4829, held as under:

“34. From the principles laid down in the various decisions of this Court and the High Courts, as referred to here-in-above, it is evident that :
A document required to be registered is not admissible into evidence under section 49 of the Registration Act.
Such unregistered document can however be used as an evidence of collateral purpose as provided in the Proviso to section 49 of the Registration Act. ….”

In the light of the Supreme Court decision in K.B. Saha and Sons Private Limited , it appears that the observation of the Karnataka High Court in Nanda Behera v. Akhsaya Kumar Behera, 2017AIR (CC) 1893, that once the Court, rightly or wrongly, decides to admit the documents in evidence, so far as the parties are concerned, the matter is closed, is not applicable to unregistered (compulsorily registrable) documents.

However, the Calcutta High Court in Dipak Kumar Singh v. Park Street Properties (P) Limited, AIR 2014 Cal 167, distinguished K.B. Saha & Sons Private Limited, (2008) 8 SCC 564, and other decisions saying that ‘the question of admissibility of a document, which had been admitted in evidence, was not taken up for consideration’ in those decisions. The High Court relied on Javer Chand v. Pukhraj Surana, AIR 1961 SC 1655 (question as to admissibility on the ground that it has not been stamped), which held that once a document had been marked as an exhibit in a case and the trial had proceeded all along on the footing that the document was an exhibit in the case and had been used by the parties in examination and cross-examination of their witnesses, it was not open either to the trial court itself or to a court of appeal or revision to go behind that order.

The other decisions referred to and distinguished in Dipak Kumar Singh v. Park Street Properties (P) Limited are the following:

Ram Kumar Das v. Jagdish Chandra Deo, Dhabal Deb: AIR 1952 SC 23,
Satish Chand Makhan v. Govardhan Das Byas: (1984) 1 SCC 369,
Anthony v. K.C. Ittoop: (2000) 6 SCC 394,
Surya Kumar Manji v. Trilochan Nath: AIR 1955 Cal 495,
Kunju Kesavan v. M.M. Philip: AIR 1964 SC 164,
Prasanta Ghosh v. Pushkar Kumar Ash: 2006 (2) CHN 277.

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Pleadings Should be Specific; Why?

Jojy George Koduvath.

Abstract: Why ‘Particulars’ are Insisted in Pleadings

1. To give Notice to the other side.
2. To narrow down the controversy.
3. To give definiteness to the stance of parties in court.
4. Pleadings must be pregnant enough to produce an issue.
5. It is Court that draws inference as to ‘abstract’ propositions.
6. Pleadings constitute the skeleton that give shape to the case.

Introduction

Order VI, rule 1 and 2 of Code of Civil Procedure 1908 lay down the basics of pleading. They read as under:

Rule 1: Pleading: “Pleading” shall mean plaint or written statement.
Rule 2: Pleading to state material facts and not evidence:
(1) Every pleading shall contain, and contain only a statement in a concise form of the material facts on which the party pleading relies for his claim or defence as the case may be, but not the evidence by which they are to be proved.
(2) Every pleading shall, when necessary, be divided into paragraphs, numbered consecutively, each allegation being, so far as is convenient, contained in a separate paragraph.
(3) Dates, sums and numbers shall be expressed in a pleading in figures as well as in words.

Order 6 rule 4 of the Civil Procedure Code stipulates guidelines for precise pleadings. Order 6 Rule 4 CPC reads as under:

“Rule 4. Particulars to be given where necessary: In all cases in which the party pleading relies on any misrepresentation, fraud, breach of trust, willful default, or undue influence and in all other cases in which particulars may be necessary beyond such as are exemplified in the forms aforesaid, particulars (with dates and items if necessary) shall be stated in the pleading.”

Order VIII Rule 3, 4 and 5 CPC reads as under:

Rule 3: Denial to be specific: It shall not be sufficient for a defendant in his written statement to deny generally the grounds alleged by the plaintiff, but the defendant must deal specifically with each allegation of fact of which he does not admit the truth, except damages.
Rule 4: Evasive denial: Where a defendant denies an allegation of fact in the plaint, he must not do so evasively, but answer the point of substance. Thus, if it is alleged that he received a certain sum of money, it shall not be sufficient to deny that he received that particular amount, but he must deny that he received that sum or any part thereof, or else set out how much he received. And if an allegation is made with diverse circumstances, it shall not be sufficient to deny it along with those circumstances.
Rule 5: Specific denial: (1) Every allegation of fact in the plaint, if not denied specifically or by necessary implication, or stated to be not admitted in the pleading of the defendant, shall be taken to be admitted except as against a person under disability :
Provided that the Court may in it discretion require any fact so admitted to be proved otherwise than by such admission.
(2) Where the defendant has not filed a pleading, it shall be lawful for the Court to pronounce judgment on the basis of the facts contained in the plaint, except as against a person under a disability, but the Court may, in its discretion, require any such fact to be proved.
(3) In exercising its discretion under the proviso to sub-rule (1) or under sub-rule (2), the Court shall have due regard to the fact whether the defendant could have, or has, engaged a pleader.
(4) Whenever a judgment is pronounced under this rule, a decree shall be drawn up in accordance with such judgment and such decree shall bear the date on which the judgment was pronounced.

Concise Statement of Material Facts – Explained

Order VI rule 2 reads as under:

“2: Pleading to state material facts and not evidence:
(1) Every pleading shall contain, and contain only a statement in a concise form of the material facts on which the party pleading relies for his claim or defence as the case may be, but not the evidence by which they are to be proved.”

AS Anand, J. in Mohd. Sadiq v. Rafiq Hussain Khan, 1978 JKLR 580, explained what is concise statement of material facts, as under:

“Assuming, that the petitioner could not give all the necessary details, as noticed earlier, nothing could have stopped him from giving at least the total number of votes which were either illegally accepted or illegally rejected or from stating as to why he considered the rejection or acceptance of any particular ballot paper to be illegal. In the absence of such particulars, in the petition, the allegations made in the petition are general and vague. Merely stating “a number of void votes” were counted in favour of the returned candidate or that “a number of valid votes” polled for the petitioner were illegally rejected, does not satisfy the requirements of given a concise statement of material facts in the petition and no order of recount can be made on the basis of such vague pleas.”

Under Order 6 rule 4, CPC, vague or general allegations are insufficient in pleading with respect to the matters laid down in this rule_{(f.n. 1)} and it requires ‘full‘ particulars of such matters in pleadings_{(f.n. 2)}.

Plaintiff must plead the correct property number, extent and also boundaries

In Naganna v. Siddaramegowda (Neutral Citation: 2025 INSC 369, dt. 19.3.2025), it is held as under:

“One who comes before the court with a declaration that, he is the absolute owner of the schedule property, he must plead the correct property number, extent and also boundaries before the court with cogent and acceptable evidence. On critical assessment of the material placed on record, the Trial Court arrived at the conclusion that the plaintiffs had failed to prove their ownership over the scheduled property by adducing acceptable oral and documentary evidence.”

Why ‘Particulars’ insisted in Pleadings

A pleadings shall contain only material facts; not law. For that, material ‘Particulars’ insisted. They are –

1. To narrow down the controversy to precise issues:
- Trojan & Co. v. RM. N.N. Nagappa Chettiar : AIR 1953 SC 235;
- Ladli Prashad Jaiswal v. Karnal Distillery, Co., AIR 1963 SC 1279;
- Raruha Singh v. Achal Singh ; Om Prakash Gupta v. Ranbir B. Goyal : AIR 2002 SC 665;
- Ishwar Dutt v. Land Acquisition Collector: AIR 2005 SC 3165;
- State of Maharashtra v. Hindustan Construction Company Ltd. : (2010) 4 SCC 518.
- Kalyan Singh Chouhan v. C.P.Joshi, AIR 2011 SC 1127;
- K. Anil Kumar v. Ajith, ILR 2012-4 Ker 632: 2012-4 KLT 545.
2. Notice to other side and ‘protect the party charged with improper conduct from being taken by surprise’:
- Ladli Prashad Jaiswal. v. Karnal Distillery, Co., AIR 1963 SC 1279;
- Ram Sarup Gupta v. Bishun Narain Inter College, AIR 1987 SC 1242.
- Shyam Narayan Prasad v. Krishna Prasad, AIR 2018 SC 3152; 2018-7 SCC 646.
3. Definiteness to the stance in court. Strictness in pleading ‘material facts’ is adopted in the procedural law also with a view to prevent a party from taking a changed position (from what he had taken at the time of making the pleading) to suit the situation that may be emerged subsequently, and thereby prejudice the other party. And to prevent cases being expanded or grounds being shifted during trial.
- Bachhaj Nahar v. Nilima Mandal: AIR 2009 SC 1103.
4. It is court that draws inference as to ‘abstract’ propositions. Plaint should contain plain facts; not law. Presentation of pleadings in mere ‘abstract’ propositions (like: injury, damages, illegality, trust, bias) is improper. Law requires pleading of “material facts” (rule 2 of Order VI) and “particulars” (rule 4 of Order VI). Facts that lead to such inferences must be pleaded in clear terms; and it is for the court to draw a reasonable inference as to such ‘abstract’ propositions or inferences from the facts pleaded and established.
Pleadings as to mere ‘mala fides‘, without details, it is held in Coal India Ltd. v. Ananta Saha, 2011-5 SCC 142, as under:
“36. In M. Sankaranarayanan, IAS v. State of Karnataka & Ors., AIR 1993 SC 763, this Court observed that the Court may –
- “draw a reasonable inference of mala fide from the facts pleaded and established. But such inference must be based on factual matrix and such factual matrix cannot remain in the realm of insinuation, surmise or conjecture.”
37. There has to be a very strong and convincing evidence to establish the allegations of mala fides specifically alleged in the petition, as the same cannot merely be presumed. The presumption is in favour of the bona fides of the order unless contradicted by acceptable material. (Vide: M/s. Sukhwinder Pal Bipan Kumar & Ors. v. State of Punjab & Ors., AIR 1982 SC 65; Shivajirao Nilangekar Patil v. Dr. Mahesh Madhav Gosavi & Ors., AIR 1987 SC 294; and Samant & Anr. v. Bombay Stock Exchange & Ors., (2001) 5 SCC 323).”
Pleadings as to mere ‘consent‘ of a candidate with respect to a corrupt practice, without details –
- Balan v. Manoharan Master, 1988 (1) KLT 717.
5. Pleadings must be pregnant enough to produce an issue on fact or law, and conduct an investigation (if opposite side varies), inasmuch as a bald and general allegation cannot be sufficient to lead to an issue–
- K.S. Mariyappa v. K.R. Siddalinga Setty, AIR 1989 Kar 425).
- General allegations insufficient to take notice by the court, however strong the allegation is- AIR 1977 SC 615.
6. Pleadings are meant to enable courts to determine what is really at issue between the parties
- Shyam Narayan Prasad v. Krishna Prasad, AIR 2018 SC 3152; 2018-7 SCC 646.
7. Pleadings constitute the skeleton that give shape to the case. For every motion, including drawing adverse inference for non-production of a document, lack of bonafides etc., the court has to apprise the pleadings–
- Union of India v. Ibrahim Uddin, (2012) 8 SCC 148).
8. No Relief Can Be Granted On A Case Not Founded In The Pleadings. It is the well-entrenched principle of law that no relief can be granted on a case not founded in the pleadings
- National Textile Corporation Limited v. Nareshkumar Badrikumar Jagad, (2011) 12 SCC 695;
- Divyagnakumari Harisinh Parmar v. Union of India, September 24, 2025 (Neutral Citation: 2025 INSC 1145)

If no specific pleadings, no evidence can be looked into

In the absence of specific pleadings, no evidence can be looked into in relation thereto.

Duggi Veera Venkata Gopala Satyanarayana Vs. Sakala Veera Raghavaiah (1987) 1 SCC 254;
Sri Venkataramana Devaru Vs. State of Mysore & Ors. AIR 1958 SC 255;
Bhagwati Prasad Vs. Chandramaul, AIR 1966 SC 735
Gajanan Krishnaji Bapat Vs. Dattaji Raghobaji Meghe (1995) 5 SCC 347;
Ram Sarup Gupta (Dead) By LRs v/s. Bishim Narain Inter College & Ors : (1987) 2 SCC 555.
Abubakar Abdul Inamdar Vs. Harun Abdul Inamdar AIR 1996 SC 112,
Gulabrao Balawantrao Shinde Vs. Chhabubai Balawantrao (2003) 1 SCC 212
Bondar Singh Vs. Nihal Singh (2003) 4 SCC 161
M Chandra Vs. M Thangamuthu, AIR 2011 SC 146.

Plea ‘Arising out of what is alleged‘ or ‘otherwise Apparent’ Sufficient

In Udhav Singh v. Madhav Rao Scindia, (1977) 1 SCC 511, it is observed as under:

“25…If the plea or ground of defence ‘raises issues of fact not arising out of the plaint’, such plea or ground is likely to take the plaintiff by surprise, and is therefore required to be pleaded. If the plea or ground of defence raises an issue arising out of what is alleged or admitted in the plaint, or is otherwise apparent from the plaint, itself, no question of prejudice or surprise to the plaintiff arises. Nothing in the rule compels the defendant to plead such a ground, not debars him from setting it up at a later stage of the case, particularly when it does not depend on evidence but raises a pure question of law turning on a construction of the plaint.” (Quoted in: Mohammed Abdul Wahid v. Nilofer, 2024-2 SCC 144)

Evidence beyond pleadings

Following are the accepted propositions of law.

Proof in variance of pleadings cannot be accepted.
Statement of witness beyond pleadings will not be read in evidence.
Reference to pleadings first and then to evidence is the rule. (Sujan Singh v. Lalsahab, TK Thommen, J., 1993 JLJ 552)
Decision of a case cannot be based on grounds outside the pleadings (Trojan and Co. , AIR 1953 SC 235).
On the failure of a party to prove his case, the Court cannot make out a new case for him. Sheodhari Rai (AIR 1954 SC 758).
Endorsement of the Sub -Registrar on the sale deed that the vendor has admitted receipt of consideration ‘loses sanctity’ if the vendor has not denied that he made that statement to the Sub-Registrar and his case is that the arrangement was to pay within a stipulated period and if there was default the vendee would execute a sale-deed in vendor’s favour. (Sujan Singh v. Lalsahab, TK Thommen, J., 1993 JLJ 552)

No New Case At The Appellate Stage

In Divyagnakumari Harisinh Parmar v. Union of India, September 24, 2025 (SC – Neutral Citation: 2025 INSC 1145), it is held by our Apex Court as under:

“This Court cannot entertain an entirely new case at the appellate stage at the behest of either party and is strictly confined to adjudicate the issues arising from the suit as framed by the pleadings of the parties.
19. This rule has been consistently affirmed across time and is rooted in the very purpose of pleadings-namely, to define the scope of the dispute and enable the court to adjudicate upon the rights of the parties. Pleadings, together with the issues framed thereon, serve to crystallise the points of conflict, ensure that each side is apprised of the case it has to meet, and afford both parties a fair opportunity to lead evidence and advance submissions (Kalyan Singh Chouhan v. CP Joshi, (2011) 11 SCC 786; Trojan and Co. v. Nagappa Chettiar, AIR 1953 SC 235.)”

Not necessary to Plead ‘Specific Words‘ or Expressions in the Statute

In Ram Sarup Gupta v. Bishun Narain Inter College, AIR 1987 SC 1242, 1987- 2 SCC 555, our Apex Court has held that when necessary pleadings were taken, though not in specific words, and parties were aware about the point in dispute and the parties had also led the evidence, merely because the, plea of irrevocability was not taken in so many words, it is not sufficient to reject the case of licensee. The Supreme Court held as follows :

“It in well settled that the pleadings need not reproduce the exact words or expressions as contained in the statute, nor the question of law is required to be pleaded. The substance of the respondent’s pleadings clearly informed that their case was that they had made constructions on the land acting upon the licence which substantially met the requirement of law.” (Quoted in: Paryag Mahto v. Ram Janam Mahto, 1991 BBCJ 118 (Pat)

In Nawal Kishore Vr. Kauleshwari Devi, 1986 PLJR. 431, referring Nandlal Sah v. Pawan Devi (1979 BBCJ 599), Ouseph Verghese v. Joseph Aleya (1969) 2 SCC 539) and Preme Raj v. The DLF Housing and Construction Pvt. Ltd. (AIR. 1968 SC 1355) it was held as under :

“The ratio of the decision relied upon by both the parties, to my mind, is that there ought to be an averment of the plaintiff’s willingness and readiness to perform his part of the contract. This may not be in the exact words used by the Legislature. The substance of it, however must be there as required under section 16 of the Specific Relief Act. The surrounding circumstances most also indicate that the readiness and willingness continued from the date of the contract till the hearing of the suit. It is true that the plaint cannot be construed in the pedantic manner to non suit the plaintiff.” (Quoted in: Paryag Mahto v. Ram Janam Mahto, 1991 BBCJ 118 (Pat)

Rajiv Sahai Endlaw, J. observed in Sambhav Kapur v.British Indo German Industrial Organics Private Ltd. , 2017-236 DLT 123; 2017-69 PTC 617; 2017-4 RAJ 99, as under:

Pleading to contain “only” a statement in a concise form

“7. Burdening the plaint with passages of judgments and citing the said judgments is contrary to the tenet of pleadings and Orders VI and VII of the Code of Civil Procedure, 1908 (CPC) which requires a pleading to contain “only” a statement in a concise form of material facts on which the party relies for his claim or defence laying down negatively that it shall not contain evidence or law. It was also so held in
The Mah. State Ele. Board vs. Madhusudan Dass, AIR 1966 Bom 160 (DB),
Guruswami Achari vs. Vengiduswami Achari, AIR 1963 Mad 71,
Lakshmi Narain vs. Union of India, AIR 1962 Pat. 64 (DB) and
Sampuran Singh vs. Aryan Singh, AIR 1961 P&H 414 (DB).”

Pleadings need not reproduce exact words in the statute

“Supreme Court also, in Ram Sarup Gupta vs. Bishun Narain Inter College, (1987) 2 SCC 555 held
- “it is well settled that the pleadings need not reproduce the exact words or expressions as contained in the statute, nor the question of law is required to be pleaded.”
The Division Bench of this Court also in Abhay Sapru vs. Chitralekha Bukshi, 2008 (106) DRJ 589 held that though “pleadings must contain only the material facts and not the law, yet copious reference to the law has been made.” Such burdening of the plaint with what is not required to be contained therein has a cascading effect, with the defendant replying thereto, the plaintiff filing replication thereto, issue, though not really required to be framed being framed thereon and often, evidence also being led thereon and is one of the causes of delay in disposal of suits.”

Courts to strike out pleadings under Order 6 Rule 16

“Rule 16 Order 6 empowers the Courts to strike out pleadings which are unnecessary or vexatious or which may delay trial. Though power thereunder is found to have been used often in the past, with pleadings not conforming to the requirement of law being labelled as mofussil pleadings and being blamed on weakness, in language and law, of pleaders in mofussil courts but owing to docket explosion is now exercised rarely.”

A time has come for maintaining the discipline of legal proceedings

“The Division Bench of this Court in Teva Pharmaceutical Industries Ltd. vs. Natco Pharma Ltd. (2014) 210 DLT 591 also lamented on the malady afflicting courts in cities including on the original side of the High Court. However refrain of the courts in exercising powers to strike off such pleadings is resulting in the principles of drafting of pleadings being thrown to the wind and passages of judgments being quoted in the plaint. A time has perhaps come for the Courts, which are responsible for maintaining the discipline of the legal proceedings before them, to refuse to entertain such pleadings to send a message to the pleaders. The plaint, being not in accordance with law and as provided in CPC, is liable to be rejected on this ground alone.”

No party should be Permitted to Travel Beyond its Pleading

In Ram Sarup Gupta v. Bishun Narain Inter College, AIR 1987 SC 1242, it was held as under:

“6………It is well settled that in the absence of pleading, evidence, if any, produced by the parties cannot be considered. It is also equally settled that no party should be permitted to travel beyond its pleading and that all necessary and material facts should be pleaded by the party in support of the case set up by it. The object and purpose of pleading is to enable the adversary party to know the case it has to meet…. In such a case it is the duty of the court to ascertain the substance of the pleadings to determine the question.”
Also See: Syyad Mohammad versus Fateh Bahadur, (1894-95) 22 IA 4 PC; Sidiq Lal Shah v. Saran, 2003(8)SCC 740.

In J.K. Iron & Steel Co. Ltd. Kanpur v. The Iron and Steel Mazdoor Union, Kanpur : AIR 1956 SC 231, our Apex Court held as under:

“It is not open to the Tribunals to fly off at a tangent and, disregarding the pleadings, to reach any conclusions that they think are just and proper.”

Pleadings should be Precise in Easement: Why?

Kerala High Court, in Ibrahimkutty Koyakutty v. Abdul Rahumankunju Ibrahimkutty, AIR1993 Ker 91, 1992 (1) Ker LT 775, (1993) ILR(Ker) 1 KER 331 (K.S. Paripoornan, J.), it is held as under:

“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.”

The court quoted Gale on Easements (15th Edn.) (Pages 415) which reads as under:

“Under the present system of pleading, it is conceived that, whether the section be brought against the servient owner or a stranger, a party cannot safely allege his right to an easement generally, but should state specifically the manner in which he claims title to the easement, whether by grant (actual or lost), prescription at common law, or under the Prescription Act, and in many cases it is advisable to plead, alternatively, a title by all three methods.”

It was also pointed out that in Surendrasingh v. Phirosahah, AIR 1953 Nagpur 205, a Division Bench of their Lordships Sinha C.J. and Hidayatullah, J. stated, at page 206 (para 9), that the pleadings in a case dealing with easement have to be very precise. Their Lordships quoted the following passage from Peacock – “Law Relating to Easements in British India” Third Edn., at page 608:

“As an easement is not one of the ordinary rights of ownership, it is necessary that either Party claiming or relying on an easement should plead the nature of his title thereto so as clearly to show the origin of the right, whether it arises by statutory prescription, or express or implied grant, or the old common law method of a lost grant“.

Mulla – Code of Civil Procedure (14th Edn.) Volume II, at page 986, states the law thus :

“Easement — A party claiming or relying on an easement should plead the nature of the title thereto, so as to clearly show the origin of the right, whether it arises by statutory prescription or express or implied grant, or the old common law method of a lost grant.”

Finally K.S. Paripoornan, J. remanded the case holding as under:

“Though it is belated, I do not think that the plaintiffs should be put out of court due to a technical error or mistake that has crept in the proceedings. If the plaint is amended, the appellants/defendants should be given an opportunity to file additional written statements.”

Sec. 60 (b) Easement Act: Specific Contention Needed

Pleading and evidence are insisted in cases which claimed ‘irrevocable licence’ under Sec. 60 (b) Easement Act. See:

R. Mohan v. Sarat Chandran Nair, 2016-4 KHC 318; 2016-4 KLT 15.
Ramesh Raghunath v. Pandurangrao Ambadasrao Ratnalikar, 2006-4 BomCR 910 (Plea and evidence necessary, though right not claimed in “specific words”)
Zila Panchayat Etah v. Om Prakash Shah, 01 Sep 2017 2017 0 Supreme(SC) 1418

In Zila Panchayat Etah v. Om Prakash Shah, 01 Sep 2017; 2017 0 Supreme(SC) 1418, it is held as under:

“13. Thus, in our view, even as per the pleadings of the plaintiff, the suit could not have been decreed. Apart from that, we find that the findings recorded by the trial court as to the ownership of plaintiffs are wholly perverse and impermissible. The documentary evidence could not have been discarded in the method and manner in which it has been done. There was absolutely nothing to rebut the Nazul Khasra or the records maintained by the municipality and Zila Parishad. The appellant had pleaded Survey numbers in its written statement very clearly and had adduced evidence in this regard. There was absolutely nothing to discard the documentary evidence adduced by the appellant and rely upon oral ipse dixit evidence of the plaintiff-respondent. There is statutory presumption of correctness of revenue entries which has not been rebutted in the instant case. The plaintiff-respondent was claiming his ownership on the property in question, but no documentary evidence had been adduced on his behalf indicating that they were the owners of the property in question. Absence of entry in relevant documents of ownership also negates case of plaintiffs. Thus the property in question was clearly under the ownership of the Government. Even assuming that it belonged to the ancestors of the plaintiff, once the land had been given to run a school, which had been constructed on the land by District Board, obviously licence could not have been revoked. It was admitted by the plaintiff, Om Prakash Shah, that the property in question is plot No.212. The record indicates that it is owned by respondent-plaintiff.
14. Thus we find no legal basis to sustain the judgment and decree passed by the courts below, the same are wholly unsustainable. An attempt has been made by the plaintiff to illegally usurp the valuable property of the school. Suits were frivolously filed without any right, title or interest.”

In Shankar v. Gangabai, AIR 1976 SC 2506, the Supreme Court observed as under:

“Paced with this difficulty, learned counsel for the appellant was driven to raise points on which there is no pleading, no issue and naturally no satisfactory evidence. The first of such contentions raised by Mr. Bal is that the appellant must be deemed to be a licensee of the respondent and since he has executed work of a permanent character on the land involving heavy expenses, the licence would be irrevocable under S.60 (b) of the Easements Act, 1882 only one more thing need be stated: even assuming that the appellant has executed work of a permanent character on the land it cannot be said that he has done so acting upon the licence“, as required by S.60 (b) of the Basements Act. If be really improved the land by executing a work of a permanent character, be did so in the belief that being a tenant he will become a statutory purchaser of the land, or that the oral agreement of sale will one fine day be implemented The execution of work would therefore be in his capacity as a tenant or a prospective purchaser and not in his capacity as a licensee”. (Quoted in: Kesavan Nair Vs Narayanan Nair, 27 Oct 1988 1988 2 KLT 1006)

In R. Mohan v. Sarat Chandran Nair, 2016-4 KHC 318; 2016-4 KLT 15, it is held as under:

“It is submitted by the learned counsel for the appellant that the engineering workshop is conducted in a makeshift shed. I have carefully gone through the averments in Ext.B2. It does not spell out any authorisation to the respondent to make a permanent structure. In the absence of such a stipulation in Ext.B2 and in the absence of evidence before the courts below that he had incurred expenses for construction of a shed for running a workshop, the courts below are not justified in holding that the respondent is entitled to get the benefit of Section 60(b) of the Act. Therefore, the contention of appellant that the lower courts erred is sustainable. Hence the substantial question of law is to be answered in favour of the appellant.”

In Gujarat Ginningand Manufacturing Co. Ltd., Ahmedabad v. Moti Lal Hirabhai Spinning and Manufacturing Co. Ltd., Ahmedabad, AIR 1936 PC 77, protection of S. 60(b) of the Act was invoked by a party who had made constructions on his own land and not on the land of the licenser and in that factual backdrop the Privy Council held that the expression “acting upon the license” must mean “acting upon a right granted to do upon the land of the grantor something which would be unlawful in the absence of such right.” A man does not “acting upon a license” execute works and incur expense upon his own property as that he can do without any ones license. (Referred to in: Ram Sarup Gupta v. Bishun Narain Inter College, AIR 1987 SC 1242; 1987-2 SCC 555)

Issues, and not Pleadings as such, guide in adducing evidence

The court decides the matters on the issues framed. Sitaram v. Radhabai, AIR 1968 SC 534, Gappu Lal v. Thakur Sripada, (1969)1 SCC 92 , Vishwanath Agarwal v. Sibitribera, 2009(15) SCC 593.

The object of framing of issues is to ascertain the points in dispute and pinpoint the matters for determination by the court. It is also not to surprise the parties at the trial. It is the issues, and not pleadings as such, guide in adducing evidence by the parties.

No Adjudication, If No Issue

In Kalyan Singh Chouhan v. CP Joshi, AIR 2011 SC 1127, the Apex Court held that no courts decide a suit on a matter/point on which no issue has been framed. It is to ascertain/shorten the area of dispute and pinpoint the points required to be determined by the court, so that no party at the trial is taken by surprise. The court referred following decisions:

Sayad Muhammad. v. Fatteh Muhammad20 (1894-95) 22 Ind. App. 4 (PC)
Raja Bommadevara Venkata v. Raja Bommadevara Bhashya, (1902) 29 Ind. App. 76 (PC);
Siddik Mohd. Shah v. Saran, AIR 1930 PC 57;
Sita Ram v. Radha Bai, AIR 1968 SC 535;
Gappulal v. Thakurji Shriji Dwarkadheeshji, AIR 1969 SC 1291; and
Biswanath Agarwalla v. Sabitri Bera, (2009) 15 SCC 693.

With reference to the following decisions, in Kalyan Singh Chouhan v. CP Joshi, AIR 2011 SC 1127, it was also pointed out that there may be exceptional cases wherein the parties proceeded to trial fully knowing the rival case and led all the evidence not only in support of their contentions but in refutation thereof by the other side; and in such an eventuality, it would not be permissible for a party to submit that the proceedings stood vitiated. The decisions were the following:

Nagubai Ammal v. B. Shama Rao, AIR 1956 SC 593;
Nedunuri Kameswaramma v. Sampati Subba Rao, AIR 1963 SC 884;
Kunju Kesavan v. M.M. Philip, AIR 1964 SC 164;
Kali Prasad Agarwalla v. M/s. Bharat Coking Coal Ltd., AIR 1989 SC 1530;
Sayed Akhtar v. Abdul Ahad, (2003) (7) SCC 52; and
Bhuwan Singh v. Oriental Insurance Co., AIR 2009 SC 2177.

“All other cases in which particulars may be necessary“

Order 6 rule 4 of the CPC enumerates the following:

misrepresentation,
fraud,
breach of trust,
willful default,
undue influence and
“all other cases in which particulars may be necessary”.

Following are the matters that commonly come for consideration of court under the head, “other cases in which particulars may be necessary”:

Injury,
Damages,
Illegality,
Collusion,
Victimisation,
Mala-fides,
Bias,
Unconstitutionality,
trust,
consent,
Irregularity.

In short, in pleadings, wherever it is required to make clear ‘abstract’ propositions, it must have been done; otherwise it will be termed ‘vague pleading’.

Illegality

While dealing with a matter pertaining to recount of votes, referring Apex Court decisions_(f.n.3), it was held in Indira Devi v. State of Bihar, 2019-1 Pat LJR 670, that the vague pleadings that illegality was committed while counting the ballot papers and that there were improper acceptance of invalid votes and improper rejection of valid votes, were not sufficient to invoke the jurisdiction of the court.

Kerala High Court, in St. Marys Orthodox Church v. Thankamani Rajan, 2016-1 Ker LT(SN) 38, while considering the issue as to grant the licence/permission to construct a cemetery it was observed, referring various Supreme court decisions_(f.n.4), as under:

“36. Therefore, while challenging the decision making process of a public authority, as in the instant case, as to its legality, propriety or reasonableness, it is not sufficient that the averments should be in generalised terms as if the entire decision making process is vitiated by illegality or impropriety, etc. or that none of the legal formalities or official formalities has been complied with by the decision maker, etc. But the factual foundation for such challenge should be cogently and precisely pleaded in the plaint so as to disclose a specific and concrete case as to how the decision has been vitiated by any illegality or impropriety or unreasonableness, etc. Mere pleading in generalised terms that none of the legal procedural formalities have been complied with or that the provisions of statutory formalities have been blatantly violated, etc. will not do and that the pleadings should be precise and cogent as stated above. The essence of fair play in a civil trial demands this aspect. It is only then that the opposite side can be called upon to prepare the defence properly so that they can have reasonable opportunity to frame a defence and plead the averments in their written statement of objections to the plaint accordingly in such civil proceedings. So also, the defendants could then get a reasonable opportunity to know as to the type of evidence that they are called upon to let in, in order to meet the specific allegations and averment in the plaint. In the instant case, there are no specific and concrete pleadings in the plaint that the Municipality has not referred the matter to the District Collector for his approval before the Municipality had taken the impugned decision. So also, there is no pleading or averment in the plaint, in precise and concrete terms, as to the D.M.O. had not conducted any inspection or committed any procedural lapses before making the recommendation to the Municipality. Therefore, it is totally impermissible in law for the plaintiffs to let in any evidence on that aspect of the matter. Even if any evidence has been let in on those aspects of the matter, it is the duty of the court not to take into consideration any such evidence in view of the conclusive legal position settled as stated above. Therefore, on this ground alone, the trial court and the lower appellate court have committed a grave error in holding that the official defendants (statutory authorities concerned) have violated the statutory provisions and that they have not complied with the legal formalities, etc. on the basis of the evidence so let in the instant trial. Therefore, the said finding of both the courts below is tainted by grave error and illegality and is liable to be reversed by this Court.”

Coercion

When collusion is taken as a ground in a case, full particulars thereof are to be pleaded. In Varanaseya Sanskrit Vishwavidyalaya v. Rajkishore Tripathi, AIR 1977 SC 615, invoking Order VI, Rule 4, CPC and referring Bishundeo v. Seogeni Rai, AIR 1951 SC 280, it was held as under:

“General allegations are insufficient even to amount to an averment of fraud of which any court ought to take notice, however strong the language in which they are couched may be, and the same applies to undue influence and coercion.”

Fraud and Collusion

While considering Order VI Rule 4 of CPC in K.S. Mariyappa v. K.R. Siddalinga Setty, AIR 1989 Kar 425, it was observed that in the absence of necessary particulars pleaded by the plaintiffs regarding fraud and collusion, it was not possible to hold that the plaint contains necessary averments as to fraud and collusion. The Court held further as under:

“Such a bald and general allegation without material particulars in the light of rule 4 of Order 6 of the Code of Civil procedure cannot be held to be sufficient to lead to an issue. Mere general allegation that an act or the deed is vitiated by fraud and collusion is no plea of fraud and collusion. Material particulars such as when and how and who and in what manner and for what purpose the fraud was practised and who colluded with whom and in what manner and with what object or purpose etc., must be averred.”

Fraud must be pleaded and proved. Without substantiating materials fraud cannot be merely assumed. See: Taluk Vyavasaya Coolie Sangham v. K. Suresh Reddy, (2003) 7 SCC 667; Joint Collector Ranga Reddy District v. D. Narsing Rao, (2015) 3 SCC 695.

Charge of Victimisation

Charge of victimisation must not be vague or indefinite. It is an amalgam of facts as well as inferences and attitudes. It is to be established by safe and sure evidence. Mere allegations, vague suggestions and insinuations are not enough (Bharat Iron Works v. Bhagubhai Balubhai Patel, AIR 1976 SC 98. Referred to in Raja Ram v. Jai Prakash Singh, AIR 2019 SC 4374; 2019 8 SCC 701).

Mala-fides and Bias

In State of Bihar v. P.P. Sharma, JT 1992 (2) SC 147 : 1992 (Suppl. 1) SCC 222 it is held that mere assertion or a vague or bald statement as to mala fides, is not sufficient and that it is well settled that the burden of proving mala fide is on the person making the allegations and the burden is ‘very heavy’ [See also: E.P. Royappa v. State of TN, 1974 (4) SCC 3]. It is also pointed out that there is every presumption in favour of the administration that the power has been exercised bona fide and in good faith; and that the allegations of mala fide are often more easily made than made out and the very seriousness of such allegations demands proof of a high degree of credibility. Further, the Apex Court referred to Krishna Iyer, J. in Gulam Mustafa v. State of Maharashtra [1976 (1) SCC 800] where it was stated:

‘It (mala fide) is the last refuge of a losing litigant.’

In State of M.P. v. Nandlal Jaiswal [JT 1986 (2) SC 701 : 1986 (4) SCC 566], the Supreme Court emphasised the need for furnishing full particulars of allegations suggesting mala fides as under:

“In the first place it is difficult to appreciate how any such observation could be made by the learned Judge without any foundation for the same being laid in the pleadings. It is true that in the writ petitions the petitioners used words such as ‘mala fide’, ‘corruption’ and ‘corrupt practice’ but the use of such words is not enough. What is necessary is to give full particulars of such allegations and to set out the material facts specifying the particular person against whom such allegations are made so that he may have an opportunity of controverting such allegations.”

Malafides – Vague general allegations are not sufficient. (2018(2) KLT 236).

Insufficient Pleadings – No Investigation

In Bishundeo Narain v. Seogeni Rai, AIR 1951 SC 280: 1951 SCR 548, it was observed as under:

“… In cases of fraud, undue influence and coercion, the parties pleading it must set forth full particulars and the case can only be decided on the particulars as laid. There can be no departure from them in evidence. General allegations are insufficient even to amount to an averment of fraud of which any court ought to take notice however strong the language in which they are couched may be and the same applies to undue influence and coercion.” : Quoted in Raja Ram v. Jai Prakash Singh, AIR 2019 SC 4374; 2019-8 SCC 701).

In Smt. Swaran Lata v. Union of India [(1979) 3 SCC 165], the Apex Court held that in the absence of particulars, the Court would be justified in refusing to conduct an investigation into the allegations of malafides. The court said:

“In our view, the allegations in the writ petition are not sufficient to constitute an averment of mala fides or bias on the part of either the Chandigarh Administration or, in particular, against Dr. 0. S. Sehgal sufficient to vitiate the appointment of respondent 6. No mala fides as such are imputed against the Union Public Service Commission. The court would be justified in refusing to carry on investigation into allegations of mala fides, if necessary particulars of the charge making out a prima facie case are not given in the writ petition. The burden of establishing mala fides lies very heavily on the person who alleges. …. The appellant further averred that she had, in her representation dated 1/05/1975, alleged that after the interview she had overheard Dr. 0. S. Sehgal talking to the third lady member, saying as to ‘how they could take this lady’, meaning the appellant, ‘as the Principal’ and, therefore, she felt that she was a victim of the machination of Dr. Sehgal. There is nothing on record to substantiate such general and vague allegations of the appellant as to mala fides or bias on the part of Dr. Sehgal.”

Referring above decisions, in Mutha Associates v. State of Maharashtra, (2013) 14 SCC 304: 2013-2 Ker LT 1103, the Apex Court observed as under:

“39. The law regarding pleading and proof of ‘malice in fact’ or mala-fides as it is in common parlance described is indeed settled by a long line of decisions of this Court. The decisions broadly recognise the requirement of allegations suggesting “malice in fact” to be specific and supported by necessary particulars. Vague and general averments to the effect that the action under review was taken mala-fide would not therefore suffice. Equally well settled is the principle that the burden to establish that the action under challenge was indeed mala-fide rests heavily upon the person making the charge; which is taken as quasi criminal in nature and can lead to adverse consequence for the person who is proved to have acted mala-fide. There is in fact a presumption that the public authority acted bona-fide and in good faith. That presumption can no doubt be rebutted by the person making the charge but only on cogent and satisfactory proof whether direct or circumstantial or on admitted facts that may support an inference that the action lacked bona-fides and was for that reason vitiated. The third principle equally sanctified by judicial pronouncements is that the person against whom the charge is made must be impleaded as a party to the proceedings and given an opportunity to refute the charge against him.”
“45. The charge of malafides levelled against the appellant, Mr. Rane, the then Minister was not supported by any particulars. The writ petition filed by APMC did not provide specific particulars or details of how the decision taken by minister was influenced by Mutha Associates or by any other person for that matter. The averments made in the writ petition in that regard appeared to be general and inferential in nature. Such allegations were, in our opinion, insufficient to hold the charge of ‘malice in fact’ levelled against the minister proved.”

In Ratnagiri Gas & Power Pvt. Ltd. v. RDS Projects Ltd., AIR 2013 SC 200; 2013-1 SCC 524 the Apex Court, pointing out the requirement of assertions in the writ petition and the presence of the officers concerned, held as under:

“The law casts a heavy burden on the person alleging mala fides to prove the same on the basis of facts that are either admitted or satisfactorily established and/or logical inferences deducible from the same. This is particularly so when the petitioner alleges malice in fact in which event it is obligatory for the person making any such allegation to furnish particulars that would prove mala fides on the part of the decision maker. Vague and general allegations unsupported by the requisite particulars do not provide a sound basis for the court to conduct an inquiry into their veracity.”

In Kamalakanta Mohapatra Vs. Pratap Chandra Mohapatra, AIR 2010 Ori 13, it is held as under:

The words “undue influence”, “fraud” and “misrepresentation” are cognate vices and may in part overlap in some cases, they are in law distinct categories and in view of Order 6, Rule 4 read with Order 6, Rule 2 of the Code of Civil Procedure required to be separately pleaded, with specificity, particularity and precision. In other words general allegations made in the plaint does not tantamount to particulars required to be pleaded under the said provision of the Code. The Constitution Bench of the Supreme Court in the case of Ladli Parshad Jaiswal v. The Karnal Distillery Co. Ltd. Karnal, reported in AIR 1963 SC 1279 observed that under Order 6, Rule 4 of the Code of Civil Procedure, in all cases where a party takes a plea of undue influence, particulars thereof should be unambiguously stated in the pleadings so as to enable the adversary to controvert the same. A vague and general plea to that effect would not serve the purpose and the pleading must be always very specific and precise in nature. This rule has been evolved with a view to narrow down the controversy and protect the party charged with improper conduct from being taken by surprise.
In the case of Afsar Shaikh v. Soleman Bibi, reported in AIR 1976 SC 163, the Supreme Court has reiterated the same principle and had clearly held that in a case where there are allegations with regard to fraud, undue influence and misrepresentation the said allegation/facts must be specifically indicated in the pleadings. Keeping in mind the provision of Order 6, Rule 4 of the Code of Civil Procedure, if the averments made in the plaint are examined it reveals that the basic requirement of Order 6, Rule 4 of the Code of Civil Procedure was not kept in mind while making the allegations and the same appear to be more on the basis of surmises and conjectures rather than cogent facts.
So far as the nature of proof of undue influence, fraud or misrepresentation are concerned in he case of Balabhadra Nisanka v. Suka Dibya, reported in 38 (1972) CLT 325, it was held by this Court that ‘fraud’ in a civil proceeding must be established beyond reasonable doubt as in a criminal proceeding. So far as the evidence to establish fraud is concerned, it is held by this Court in the case of Bira Jena v. Tauli Dei, respondent in 38 (1972) CLT 39 : (AIR 1972 Ori 143) that unless the particulars of fraud are pleaded in the plaint, no evidence should be allowed to be led in the suit and if any such evidence has unwittingly been introduced without any pleading, it must be ruled out of consideration. In other words, the standard of proof to establish fraud should be beyond all reasonable doubt. After discussing the evidence threadbare the appellate Court had clearly come to a conclusion that the same does not satisfy the basic requirement of mandatory requirement of law. Even otherwise in the absence of pleadings, the evidence adduced had to be ignored.”

In Balan v. Manoharan Master, 1988 (1) KLT 717, where a candidate said to have ‘consented’ a ‘corrupt practice’, it is held that without the objectionable part of the speech of the candidate being made available in pleading, proof in that respect was not possible.

Damages: Issue will be framed, without denial

As shown above, Order VIII Rule 3 gives an exemption to strict ‘denial’ with regard to the claim of ‘damages’. Why? J. B. Ross v. C. R. Screven, AIR 1917 Cal 269 explained as under:

“(O. 8, R 3, CPC) puts the burden on the plaintiff, whether or not the defendant denies in such a case an issue is necessary.” (Quoted in – Indore Malwa United Mills Ltd. Vs Ramkaran Ghisslal, AIR 1963 MP197. Also see: W. Jaya-raghavan v. The Leo Films, 1948 61 LW 173; 1948 1 MLJ 209)

In Fateh Chand Vs. Balkishan, AIR 1963 SC 1405, it was observed that the ‘Legislature has sought to cut across the web of rules and presumptions under the English common law’ with regard to the compensation to be awarded in case of breach of contract. Section 74 speaks as to ‘reasonable’ compensation. It is pointed out that this proposition as to ‘reasonable’ compensation, and thereby the intervention of court to fix the reasonable amount, laid down in Section 74, is a deliberate deviation from the English Common Law which allows forfeiture of genuine pre-estimated damages, by the affected party.

Damages (in general) are of three kinds

First, nominal
Second, general damages
Third, special damages.

Read Blog: Law on Damages in Defamation Cases

General Damages can be Awarded if failed to prove Special Damages

Court may, in proper cases, award ‘general damages’ even if the plaintiff failed to prove Special Damages; because, general damages need not be pleaded specifically, inasmuch as law will presume, without direct proof, the natural or probable consequence of an illegal or improper act. (Minor Veeran Vs. T. V. Krishna-moorthy, AIR 1966 Ker 172. Quoted with approval a passage from Law of Pleadings by Mogha.)

It was held by the Supreme Court of India in Maula Bux Vs. Union of India AIR 1970 SC 1955, that ‘forfeiture of earnest money under a contract for sale of property, if the amount is reasonable, does not fall within Section 74’. That is, when the forfeiture clause in a contract refers to a nominal (thereby reasonable) sum alone, as earnest money, it does not provide for an ‘amount to be paid in case of such breach’, or amount to imposing a penalty. In such cases of forfeiture of reasonable (nominal) earnest money, it is immaterial ‘whether or not actual damage or loss is proved’.

Proper parties must be before the court

In All India State Bank Officers’ Federation v. Union of India: (1997) 9 SCC 151 it is observed as under:

“22. There is yet another reason why this contention of the Petitioners must fail. It is now settled law that the person against whom mala fides are alleged must be made a party to the proceeding. … Neither the Chairman nor the Directors, who were present in the said meeting, have been impleaded as Respondents. This being so the Petitioners cannot be allowed to raise the allegations of mala fides, which allegations, in fact, are without merit.”

Adverse inference for non-production (by the Other Party), only on considering pleadings

Generally, it is the duty of the party to lead the best evidence in his possession even though onus of proof do not lie on him, and he is not called upon to produce the said evidence; and the Court will draw adverse inference under Section 114(g) of the Evidence Act if such evidence is withheld. But this rule cannot be applied blindly. Mere non-production of documents would not result in adverse inference, invariably. It is held in Union of India v. Ibrahim Uddin, (2012) 8 SCC 148 _(f.n.5), as under:

“16. Thus, in view of the above, the law on the issue can be summarised to the effect that, issue of drawing adverse inference is required to be decided by the court taking into consideration the pleadings of the parties and by deciding whether any document/evidence, withheld, has any relevance at all or omission of its production would directly establish the case of the other side. The court cannot lose sight of the fact that burden of proof is on the party which makes a factual averment. The court has to consider further as to whether the other side could file interrogatories or apply for inspection and production of the documents etc. as is required under Order XI CPC. Conduct and diligence of the other party is also of paramount importance.”

Parties to plead facts, not law; Court can take ‘Inferences’

Plaint should contain plain facts; not law. In M. Sankaranarayanan, IAS v. State of Karnataka. AIR 1993 SC 763, the Apex Court observed that the Court may ‘draw a reasonable inference of mala fide from the facts pleaded and established’ (It is quoted in Coal India Ltd. v. Ananta Saha, (2011) 5 SCC 142).

In E.P. Royappa v. State of T.N., 1974 (4) SCC 3, the Apex Court held as under:

“The Court would, therefore, be slow to draw dubious inferences from incomplete facts placed before it by a party, particularly when the imputations are grave and they are made against the holder of an office which has a high responsibility in the administration.”

Kerala High Court, in Balan v. Manoharan Master, 1988 (1) KLT 717, it is observed (in a case where the candidate in an election said to have ‘consented‘ a ‘corrupt practice’) as under:

“On a material fact the petitioner cannot request the court to make an inference without supporting pleading. When pleading is absent proof is also not possible. Without the objectionable portions of the speeches being made available proof in that respect is also not possible.”

No hyper-technical view

No hyper-technical view can be taken in analysing pleadings. See:

M. Chinnasamy v. K. C. Palanisamy, AIR 2004 SC 541; 2004-6 SCC 341
Ponnala Lakshmaiah v. Kommuri Pratap Reddy, AIR 2012 SC 2638.

In Leela Amma v Aravindaksha Menon, the Kerala High Court, 2012 2 KHC 169, held as under:

“The Court below was taking a hyper-technical view regarding the pleadings of the appellants. The object and purpose of pleadings is to enable the adverse party to know the case it has to meet. For a fair trial it is imperative that the party should state the essential material facts so that the other party may not be taken by surprise. At the same time pleadings should receive a liberal construction and no pedantic approach should be adopted so as to defeat justice on hair-splitting technicalities. The Court must find out whether in substance, the parties knew their respective case and the issues upon which they went to trial. Once it is found that in spite of the deficiency in the pleadings, the parties knew the case which arose for resolution and they proceeded to trial on those issues and adduced evidence in support of their respective versions, it would not be open to a party to question the absence of pleadings (Vide –
Kedar Lal v. Hari Lal, 1952 KHC 297 : AIR 1952 SC 47 : 1952 SCR 179 : 1952 (1) MLJ 431;
Bhagawati Prasad v. Shri. Chandramauli, 1966 KHC 493 : AIR 1966 SC 735 : 1966 (2) SCR 286 : 1966 ALJ 799 : 1967 BLJR 158 : ILR 1966 (1) All 796;
Ram Sarup Gupta v. Bishun Narain Inter College, 1987 KHC 965 : AIR 1987 SC 1242 : 1987 (2) SCC 555.;
Smt. Rajbir Kaur v. M/s.. S. Chokosiri and Co., 1989 KHC 1032 : AIR 1988 SC 1845 : 1989 (1) SCC 19. and
Para 15 of Prasanth v. Kalyani, 2007 (2) KHC 451 : 2007 (2) KLT 992 : ILR 2007 (2) Ker. 164 : 2007 (1) KLJ 910.”

Parties need not plead – Court can take ‘Presumptions’

In PRS Hospital Killipalam, Thiruvananthapuram v. P. Anil Kumar, 2021-1 Ker 287, it is held as under:

“Order 6 rule 13 of the CPC, which entitles that the parties need not plead any matter of fact which the law presumes in his favour, or as to which the burden of proof lies upon the other side.”

Order VI Rule 4 of CPC requires pleading with specificity, particularity and precision

In Ranganayakamma v. K.S. Prakash: AIR 2005 Kar 426; 2006 (3) Kar. L.J. 177, it is observed (relying on Kanchawwa v. Amagonda, AIR 2003 Kar. 434) that Order VI Rule 4 of Code of Civil Procedure is of a distinct category in law, requiring pleading with specificity, particularity and precision. It is pointed out that general allegations – using the words “fraud” and “misrepresentation” etc. – will not be sufficient; it should be shown – how fraud was played and misrepresentation occasioned. (Referred to in: K. V. Shivakumar v. National Institute of Mental Health And Neuro Sciences, 2016-4 AIR Kar R 754; ILR 2016 Kar 3114)

Undue Influence: Simple Pleading by Plaintiff may cast Burden on Defendant

In Chandrika Babu v. Sudhakaran, 2013 4 KLT(SN) 103 it is pointed out that the Apex Court’s judgment in Joseph John Peter Sandy’s case, AIR 2013 SC 2028; (2013) 3 SCC 801, would show that the required materials should be placed before the court in support of the plea to draw an inference of undue influence.

Even if a person is in a fiduciary relationship with another and his conduct in looking after the other in old age may have influenced the thinking of the other, that per se cannot lead to the only irresistible conclusion that the person was therefore in a position to dominate the will of the deceased. The onus would shift only after the plaintiff would have established a prima-facie case under Section 16 of the Contract Act read with Section 111 of the Evidence Act (Anil Rishi v. Gurbaksh Singh, AIR 2006 SC 1971; (2006) 5 SCC 558: referred to in Raja Ram v. Jai Prakash Singh, AIR 2019 SC 4374; 2019-8 SCC 701).

In Subhas Chandra Das Mushib v. Ganga Prosad Das Mushib, AIR 1967 SC 878; 1967 (1) SCR 331, it was observed that there was no presumption of imposition merely because a donor was old and weak. Mere close relation also was insufficient to presume undue influence. Influence and undue influence were distinguished in this decision as under:

“It must also be noted that merely because the parties were nearly related to each other no presumption of undue influence can arise. As was pointed out by the Judicial Committee of the Privy Council in Poosathurai v. Kappanna Chettiar, (1919) 47 IA 1, AIR 1920 PC 65.
“It is a mistake (of which there are a good many traces in these proceedings) to treat undue influence as having been established by a proof of the relations of the parties having been such that the one naturally relied upon the other for advice and the other was in a position to dominate the will of the first in giving it. Up to that point “influence” alone has been made out. Such influence may be used wisely, judiciously and helpfully. But whether by the law of India or the law of England, more than mere influence must be proved so as to render influence, in the language of the law, undue.”
“Before, however, a court is called upon to examine whether undue influence was exercised or not, it must scrutinise the pleadings to find out that such a case has been made out and that full particulars of undue influence have been given as in the case of fraud. See Order 6, Rule 4 of the Code of Civil Procedure. This aspect of the pleading was also given great stress in the case of Ladli Prasad Jaiswal v. Karnal Distillery, Co., AIR 1963 SC 1279; (1964) 1 SCR 270 above referred to. In that case it was observed (at p. 295):
“A vague or general plea can never serve this purpose; the party pleading must therefore be required to plead the precise nature of the influence exercised, the manner of use of the influence and the unfair advantage obtained by the other.”

(Quoted in Raja Ram v. Jai Prakash Singh, AIR 2019 SC 4374; 2019-8 SCC 701)

In Krishna Mohan Kul @ Nani Charal Kul v. Pratima Maity, AIR 2003 SC 4351; 2004 KHC 903 (SC), the Supreme Court held as under:

“When fraud, mis-representation or undue influence is alleged by a party in a suit, normally, the burden is on him to prove such fraud, undue influence or misrepresentation. But, when a person is in a fiduciary relationship with another and the letter is in a position of active confidence the burden of proving the absence of fraud, misrepresentation or undue influence is upon the person in the dominating position, he has to prove that there was fair play in the transaction and that the apparent is the real, in other words, that the transaction is genuine and bona fide. In such a case the burden of the proving the good faith of the transaction is thrown upon the dominant, party, that is to say, the party who is in a position of active confidence. A person standing in a fiduciary relation to another has a duty to protect the interest given to his care and the Court watches with jealousy all transactions between such persons so that the protector may not use his influence or the confidence to his advantage. When the party complaining shows such relation, the law presumes everything against the transaction and the onus is cast upon the person holding the position of confidence or trust to show that the transaction is perfectly fair and reasonable, that no advantage has been taken of his position.
This principle has been engrained in Section 111 of the Indian Evidence Act, 1872 …. …..”When the relation between the donor and donee at or shortly before the execution of the gift has been such as to raise a presumption that the donee had influence over the donor, the Court sets aside the gift unless the donee can prove that the gift was the result of a free exercise of the donors will….
15. The corollary to that principle is contained in Clause (3) of Section 16 of the Indian Contract Act, 1872 (in short Contract Act).

In a subsequent decision in Raja Ram v. Jai Prakash Singh, AIR 2019 SC 4374; 2019-8 SCC 701 the Apex Court distinguished Krishna Mohan (supra) on fact that the executant in that case was indisputably over 100 years of age, witnesses to the document were ‘not in existence’ and the witnesses proved that he was paralytic and virtually bedridden; and none of the witnesses could substantiate that the executant had put his thumb impression.

Pleading in Invalidation of a Statute

In Assam State Electricity Board v. Bharat Hydro Power Corporation Ltd., 1999-1 Gau LJ 142, 1999-1 Gau LR 249, the importance of pleading in invalidation of a statute was considered. It was held that he pleading must be specific and not vague. It is pointed out that if the pleadings were vague, the Court should not consider the alleged allegation regarding violation of the constitutional or other provisions. The following decisions were referred to:

1. Amrit Banaspati Company Limited Vs. UOI, (1995) 3 SCC 335;
2. The III Income Tax Officer, Mangalore Vs M. Damodar Bhat, AIR 1969 SC 408,
3. The Municipal Board Maunath Bhanjan v. Swadeshi Cotton Mills, U.J (SC) 1977 P. 180
4. S.R. Tewari v. The District Board, Agra, AIR 1964 SC 1680.
5. The Hamdard Dcnvakhana (Wakf) Delhi v. The Union of India, AIR 1965 SC 1167
6. M/s. Motilal Padampat Sugar Mills . v. The State of UP, AIR 1979 SC 621
7. Narendra Bahadur Singh v. State of U.P., AIR 1977 SC 660
8. Bharat Singh V. State of Haryana, AIR 1988 SC 2181
9. M.K. Balakrishna Menon v. The Assistant Controller of Estate Duty, AIR 1971 SC 2392
10. Ratanlal Nath and Ors. V. State of Tripura, 1997 (III) GIT (SC) 8

Substantial justice should be preferred as against technicalities

Our Apex Court, in Sathyanath v. Sarojamani, (2022) 7 SCC 644, quoted Sugandhi v. P. Rajkumar, (2020) 10 SCC 706, where it is held – ‘if the procedural violation does not seriously cause prejudice to the adversary party, Courts must lean towards doing substantial justice rather than relying upon procedural and technical violations. It is not to be forgotten that litigation is nothing but a journey towards truth which is the foundation of justice and the Court is required to take appropriate steps to thrash out the underlying truth in every dispute’. It was held in Sugandhi v. P. Rajkumar, (2020) 10 SCC 706, as under:

“9. It is often said that procedure is the handmaid of justice. Procedural and technical hurdles shall not be allowed to come in the way of the court while doing substantial justice. If the procedural violation does not seriously cause prejudice to the adversary party, courts must lean towards doing substantial justice rather than relying upon procedural and technical violation. We should not forget the fact that litigation is nothing but a journey towards truth which is the foundation of justice and the court is required to take appropriate steps to thrash out the underlying truth in every dispute. Therefore, the court should take a lenient view when an application is made for production of the documents under sub-rule (3).”

In Management, ICICI Bank Limited v. Presiding Officer, Central Government Industrial Tribunal cum Labour Court, 2020-2 LLJ 453, it was observed by the Madras High Court that the substantial justice should be preferred as against technicalities in law. It was pointed out that the Court, while exercising extraordinary jurisdiction under Article 226 of the Constitution it was not only acting as a Court of law but also as Court of justice. It is further held that when the Court finds that substantial justice is not done to a party in a particular case, it can extend its arms and do slight tinkering of law, of course, without damaging its scope and object, for the purpose of moulding the relief and to meet the ends of justice. The Madras High Court relied on the Apex Court decision in a civil suit relating to adoption in Laxmibai v. Bhagwantbuva, 2013 (4) SCC 97, where it was observed as follows:

“When substantial justice and technical considerations are pitted against each other, the cause of substantial justice deserves to be preferred and the courts may in the larger interests of administration of justice may excuse or overlook a mere irregularity or a trivial breach of law for doing real and substantial justice to the parties and pass orders which will serve the interest of justice best.”

(This decision is referred to in MRF Limited v. Ministry of Corporate Affairs, 2018-2 CTC 353 and Arun Mondal v. Director, Directorate of Health Services, AIR 2016 Cal 141.)

Admission in pleading cannot be so Dissected

In Sainaba Umma v. Moideenkutty, ILR 1988-1 (Ker) 206; 1987-2 KLT 59 it is observed as under:

“The Privy Council in the decision in Motabhoy Mulla Essabhoy v. Mulji Haridas (42nd. App.103) observed:
- “It is permissible for a tribunal to accept part and reject the rest of any witness’s testimony. But admission in pleading cannot be so dissected, and if it is made subject to a condition it must either be accepted subject to the condition or not accepted at all.”
The same view is expressed in the decision of the Calcutta High Court in Fateh Chand Murlidhar v. Juggilal Kamlapai (AIR 1955 Cal. 465). Following these decisions a Division Bench of the Calcutta High Court in J. Mc. Gaffin v. LIC of India (AIR 1978 Cal. 125) stated at page 127:
- “These decisions, in our opinion, indicate that when a statement on admission is made in pleading together with further statement centering round, depending and standing on and conditional upon that admission, all the statements are to be taken and considered together in respect of such pleading.”
The Supreme Court in Hanumant v. State of M. P (AIR. 1952 SC. 343) stated at page 350:
- “An admission must be used either as a whole or not at all.”

See Blog: PLEADINGS IN ELECTION MATTERS

Foot Notes:

Bishundeo Narain v. Seogeni Rai, AIR 1951 SC 280; Ladli Prashad Jaiswal v. Karnal Distillery, Co., AIR 1963 SC 1279; Subhash Chandra Das v. Ganga Parsad Das, AIR 1967 SC 878; Varanasaya Sanskrit Vishwavidalaya v. Dr. Raj Kishore Tripathi, AIR 1977 SC 615; Jai Parkash Power Ventures v. State of HP, ILR 2017-6 HP 210.
Bishundeo Narain v. Seogeni Rai, AIR 1951 SC 280; Raja Ram v. Jai Prakash Singh, AIR 2019 SC 4374; Ladli Prasad Jaiswal v. Karnal Distillery, Co., AIR 1963 SC 1279.
Ram Sewak Yadav v. Hussain Kamil Kidwai, AIR 1964 SC 1249, Dr. Jagjit Singh v. Giani Kartar Singh, AIR 1966 SC 773, Beliram Bhalaik v. Jai Beharilal Khachi, (1975) 4 SCC 417, Suresh Prasad Yadav v. Jai Prakash Mishra, (1975) 4 SCC 822, Bhabhi v. Sheo Govind, (1976) 1 SCC 687, S. Raghbir Singh Gill v. S. Gurcharan Singh Tohra, (1980) Supp1 SCC 53, P.K.K. Shamsudeen v. K.A.M. Mappillai Mohindeen, (1989) 1 SCC 526, Vadivelu v. Sundaram, (2000) 8 SCC 355, VS Achuthanandan v. P J Francis (2001) 3 SCC 81, andM. Chinnasamy v. K. C. Palanisamy, (2003) 10 SCALE 103.
M/s. Trojan & Co. v. RM. N.N. Nagappa Chettiar, AIR 1953 SC 235; Ram Sarup Gupta v. Bishun Narain Inter College, AIR 1987 SC 1242; Om Prakash Gupta v. Ranbir B. Goyal, AIR 2002 SC 665; Ishwar Dutt v. L.A Collector, AIR 2005 SC 3165; State of Maharashtra v. Hindustan Construction Co., AIR 2010 SC 1299; Kalyan Singh Chouhan v. C.P. Joshi, AIR 2011 SC 1127; Bachhaj Nahar v. Nilima Mandal, AIR 2009 SC 1103; Union of India v. Ibrahim Uddin, 2012 (3) KLT SN 73 SC; (2012) 8 SCC 148.
In Union of India v. Ibrahim Uddin, (2012) 8 SCC 148, the Apex Court considered the following decisions: Mt. Bilas Kunwar v. Desraj Ranjit Singh, AIR 1915 PC 96; Mahant Shri Srinivas Ramanuj Das v. Surjanarayan Das, AIR 1967 SC 256; Smt. Indira Kaur v. Shri Sheo Lal Kapoor, AIR 1988 SC 1074; Kamma Otukunta Ram Naidu v. Chereddy Pedda Subba Reddy, AIR 2003 SC 3342, Mohinder Kaur v. Kusam Anand, (2000) 4 SCC 214; Takhaji Hiraji v. Thakore Kubersing Chamansing, AIR 2001 SC 2328; Municipal Corporation, Faridabad v. Siri Niwas, AIR 2004 SC 4681; A. Jayachandra v. Aneel Kaur, AIR 2005 SC 534; R.M. Yellatti v. Assistant Executive Engineer AIR 2006 SC 355; Pratap Singh v. State of M.P., AIR 2006 SC 514; Ramrati Kuer v. Dwarika Prasad Singh, AIR 1967 SC 1134, Ravi Yashwant Bhoir v. District Collector, Raigad, AIR 2012 SC 1339.

End Notes:

HC Interference in Second Appeal if Vitiated by Perversity, Misreading of Evidence etc.

In Divyagnakumari Harisinh Parmar v. Union of India, September 24, 2025 (Neutral Citation: 2025 INSC 1145), our Apex Court examined the jurisdiction of the High Court in a second appeal under Section 100 of the CPC. The Apex Court held as under:

“40. At the very outset of our analysis on this issue, it becomes necessary to peruse Section 100 of the CPC, which provides that an appeal would lie before the High Court, from every decree passed in appeal by any court subordinate to the High Court, if it is satisfied that the case involves a ‘substantial question of law’. The provision further elucidates that “nothing in this sub-section shall be deemed to take away or abridge the power of the Court to hear, for reasons to be recorded, the appeal on any other substantial question of law, not formulated by it, if it is satisfied that the case involves such question.”
41. The legislative intent underlying Section 100 of the CPC is therefore unambiguous. It demarcates the jurisdiction of the High Court in second appeal to instances where a substantial question of law is involved, thereby precluding interference with concurrent findings of fact recorded by the courts below. This Court has, through a consistent line of authority, clarified that such a restriction is not absolute. The High Court may justifiably exercise its jurisdiction in a second appeal where the findings of the subordinate courts are vitiated by perversity, misreading of evidence, or a manifest disregard of settled legal principles ( Neelakantan v. Mallika Begum, (2002) 2 SCC 440).”
The Supreme Court also referred to: Hero Vinoth v. Seshammal, (2006) 5 SCC 545, and Madhukar Nivrutti Jagtap v. Pramilabai Chandulal Parandekar, (2020) 15 SCC 731.

When the High Court will interfere with the concurrent findings

In Hero Vinoth v. Seshammal, (2006) 5 SCC 545, the Supreme Court has delineated the contours of interference with concurrent findings of fact in the exercise of jurisdiction under Section 100 CPC as under:

“19. It is not within the domain of the High Court to investigate the grounds on which the findings were arrived at, by the last court of fact, being the first appellate court. It is true that the lower appellate court should not ordinarily reject witnesses accepted by the trial court in respect of credibility but even where it has rejected the witnesses accepted by the trial court, the same is no ground for interference in second appeal when it is found that the appellate court has given satisfactory reasons for doing so.
In a case where from a given set of circumstances two inferences of fact are possible, the one drawn by the lower appellate court will not be interfered by the High Court in second appeal. Adopting any other approach is not permissible. The High Court will, however, interfere where it is found that the conclusions drawn by the lower appellate court were
- erroneous being contrary to the mandatory provisions of law applicable or
- its settled position on the basis of pronouncements made by the Apex Court, or
- was based upon inadmissible evidence or
- arrived at by ignoring material evidence.
24. The principles relating to Section 100 CPC relevant for this case may be summarised thus:
.(i) An inference of fact from the recitals or contents of a document is a question of fact. But the legal effect of the terms of a document is a question of law. Construction of a document involving the application of any principle of law, is also a question of law. Therefore, when there is misconstruction of a document or wrong application of a principle of law in construing a document, it gives rise to a question of law.
(ii) The High Court should be satisfied that the case involves a substantial question of law, and not a mere question of law. A question of law having a material bearing on the decision of the case (that is, a question, answer to which affects the rights of parties to the suit) will be a substantial question of law, if it is not covered by any specific provisions of law or settled legal principle emerging from binding precedents, and, involves a debatable legal issue. A substantial question of law will also arise in a contrary situation, where the legal position is clear, either on account of express provisions of law or binding precedents, but the court below has decided the matter, either ignoring or acting contrary to such legal principle. In the second type of cases, the substantial question of law arises not because the law is still debatable, but because the decision rendered on a material question, violates the settled position of law.
(iii) The general rule is that High Court will not interfere with the concurrent findings of the courts below. But it is not an absolute rule. Some of the well-recognised exceptions are where the courts below have ignored material evidence or acted on no evidence; the courts have drawn wrong inferences from proved facts by applying the law erroneously; or the courts have wrongly cast the burden of proof. When we refer to “decision based on no evidence“, it not only refers to cases where there is a total dearth of evidence, but also refers to any case, where the evidence, taken as a whole, is not reasonably capable of supporting the finding.” (Quoted in: Divyagnakumari Harisinh Parmar v. Union of India, September 24, 2025; Neutral Citation: 2025 INSC 1145)

Read in this cluster (Click on the topic):

Civil Suits: Procedure & Principles

Evidence Act

Constitution

Contract Act

Easement

Club/Society

Trusts/Religion

How to Contradict a Witness under Sec. 145, Evidence Act

Saji Koduvath, Advocate, Kottayam.

Introduction

Sec. 155 of the Evidence Act provides for impeaching the credit of a witness by various ways. Clause (3) gives one manner ‘by proof of former statements inconsistent with any part of his evidence which is liable to be contradicted’. Sec. 145 is the provision that lays down the mode to cross examine the witness with reference to his previous writing.

Sec. 145 reads as under:

“145. Cross-examination as to previous statements in writing.—A witness may be cross-examined as to previous statements made by him in writing or reduced into writing, and relevant to matters in question, without such writing being shown to him, or being proved; but, if it is intended to contradict him by the writing, his attention must, before the writing can be proved, be called to those parts of it which are to be used for the purpose of contradicting him.”

Sec. 145 Enables to Contradict Witnesses with his previous statements:

Without the (previous) writing being shown to him.
Without such writing being proved.
When the writing is used to contradict the witness and his attention is called to those parts of it (that are to be used for contradicting), the writing need not be shown to the counsel of the witness (or other side) for his perusal.
The writing need not be one that is admissible in evidence (it can be unstamped, even if it requires stamp; or unregistered, even if it requires registration).
Material ‘omissions’ (in the previous writings) may amount to contradiction.

Conditions for invoking Sec. 145:

The writing must be a ‘previous’ one.
The (previous) writing must be of that witness himself.
It must be relevant to matters in question
If it is intended to contradict the witness by the writing, “his attention must be called” to those parts of it which are to be used for the purpose of contradicting him.
If the witness denies (or says that he does not remember) such previous statement it can be proved, subsequently (for impeaching the credit of the witness).
If the writing is not ‘ready with’ the cross examiner while the attention of the witness is called to those parts used for the purpose of contradicting him, the cross examiner must have ‘undertaken’ to prove the document, and the Court must have given the permission as envisaged in Sec. 136 of the Evidence Act.

Section 136 Evidence Act reads as under:
- _{Judge to decide as to admissibility of evidence:}
- _{When either party proposes to give evidence of any fact, the Judge may ask the party proposing to give the evidence in what manner the alleged fact, if proved, would be relevant; and the Judge shall admit the evidence if he thinks that the fact, if proved, would be relevant, and not otherwise.}
- _{If the fact proposed to be proved is one of which evidence is admissible only upon proof of some other fact, such last-mentioned fact must be proved before evidence is given of the fact first-mentioned, unless the party}_undertakes_{to give proof of such fact, and the Court is satisfied with such undertaking.}
- _{If the relevancy of one alleged fact depends upon another alleged fact being first proved, the Judge may, in his discretion, either permit evidence of the first fact to be given before the second fact is proved, or require evidence to be given of the second fact before evidence is given of the first fact.}

When document is to be proved, original or other admissible copy must be produced

When a document used to contradict is to be proved (that is, if the witness deny the previous statement), original or other admissible copy must be produced.
Though statement in an inadmissible document can be used for contradiction (without showing him), if the witness is to be cross examined showing him his previous ‘unstamped’ statement (especially when it is with respect to his signature – used by showing the document) it must be an ‘admissible’ one as regards stamp, inasmuch as Sec. 35 of the Indian Stamp Act, 1899 directs that no instrument chargeable with duty shall be ‘admitted’ in evidence ‘for any purpose’ by any person having by law or consent of parties authority to receive evidence (V. Madhusudhan Rao v. S. Nirmala Bai, AIR 2019 AP 93; SMS Tea Estates Pvt. Ltd. v. M/s. Chandmari Tea Co. (2011) 14 SCC 66 – followed in Naina Thakkar v. Annapurna Builders, (2013) 14 SCC 354).
- Note: Now, this matter (qua – arbitration clause in an agreement) is pending consideration before a Constitutional Bench as referred to by N. N. Global Mercantile Private Limited v. Indo Unique Flame Limited, 2021 SCC Online 13). As of now, unstamped or improperly stamped documents can be used only after paying stamp duty (with or without penalty, as the case may be).
- Read Blog: Unstamped & Unregistered Documents and Collateral Purpose
But, an unregistered compulsory-registrable-document can be ‘used’ and ‘admitted’ under Sec. 145, as it is a ‘collateral purpose’ [Section 49 of the Registration Act itself allows it – to use such documents for ‘collateral purpose’. See: K.B. Saha and Sons Private Limited v. Development Consultant Limited, (2008) 8 SCC 564; S. Kaladevi vs V.R. Somasundaram (2010) 5 SCC 401].
Even if the ‘right to give evidence’ of a party ‘is over’, the courts will allow that party to ‘prove’ the document (under the second limb of Sec. 145), subsequently. For example – If the contradiction arises when the defendants’ witness is cross examined, the plaintiff can adduce evidence without ‘reopening’ his evidence (for, this provision is a statutory one).

Important points to be noted while invoking Sec. 145

If the witness admits the previous statement, no question as to ‘producing’ or ‘proving’ or ‘marking’ the same arises for consideration.
The purposes of invoking sec. 145 are only to test the veracity of the statement made by a witness in his examination-in-chief, and also to impeach his credit (Tahsildar Singh v. The State of UP, AIR 1959 SC 1012) under Sec. 155 (3).
Even if the document or the contradicting part is marked, and it is proved (for the purpose of contradicting him), it cannot be read in evidence; because, such writing will not be a substantive evidence (and the purpose of this provision is only impeaching the credit of the witness).
The court has to allow the cross examiner to produce and prove the previous statement, if the witness denies such previous statement, even if technically his ‘evidence is over’ (it being statutory right).
It is not obligatory to produce advanced copies of documents sought to be introduced for the limited purpose of cross-examination (Mohammed Abdul Wahid v. Nilofer, 2024-2 SCC 144).
When an ‘omission’ is to be proved, the ‘specific part’ of the previous statement, where the omission ought to have been naturally stated, should be ‘put’ to the witness, for his explanation, if any. (See: Tahsildar Singh v. The State of UP, AIR 1959 SC 1012 – “if made, would have been recorded”). It is for 2 reasons:
1. The section itself requires “his attention must be called to those parts of it which are to be used for the purpose of contradicting him”. It is to satisfy the principles of ‘natural justice’.
2. The witness has a right to explain admissions under Sec. 31.
  - ^{Evidence Act Sec. 31 reads: “Admissions not conclusive proof, but may estop.: Admissions are not conclusive proof of the matters admitted, but they may operate as estoppels under the provisions hereinafter contained.”}
If the cross examiner does not seek ‘explanation’ while putting the “those parts of (the previous statement) which are to be used for the purpose of contradicting him” the counsel who conducted the chief examination can seek the ‘explanation, if any’, in re-examination, on that contradictory-part (in the light of Sec. 31).
‘Cross Examination’ in Sec. 145 includes ‘cross examination’ showing the signature of the witness in the ‘previous statement’. (That is, a witness can be compelled to ‘refresh’ the document under Sec. 159.)
Under Sec, 145, there will be no difference between a party to a suit as a witness, and a witness simpliciter(Mohammed Abdul Wahid v. Nilofer, 2024-2 SCC 144).
Admission in a sale deed is ‘Substantive Evidence’; It need not be Confronted: In Murlidhar Bapuji Valve v. Yallappa Lalu Chougule, AIR 1994 Bom 358 (an often quoted decision), it was held that it was well settled law that an “admission” of a party (in a sale deed) was liable to be considered as substantive evidence even if the party made the admission was not confronted with the statement.
Judicial Admissions and Admissions in Pleadings: In Nagindas Ramdas v. Dalpatram Iccharam, AIR 1974 SC 471, it was held by the Supreme Court as under:

“26. Admissions if true and clear are by far the best proof of the facts admitted. Admissions in pleadings or judicial admissions admissible under Section 58 of the Evidence Act, made by the parties or their agents at or before the hearing of the case, stand on a higher footing than evidentiary admission. The former class of admissions are fully binding on the party that makes them and constitute a waiver of proof. They by themselves can be made the foundation of the rights of the parties. On the other hand evidentiary admissions which are receivable at the rival as evidence are by themselves not conclusive. They can be shown to be wrong.” (Quoted in: Sangramsinh P. Gaekwad v. Shantadevi P. Gaekwad: AIR 2005 SC 809, 2005 (11) SCC 314.)

Contradictory Part has to be Marked

In Rajendra Singh v. State of Bihar, 2000-4 SCC 298,AIR 2000 SC 1779, it is pointed out as under:

“But if the witness during trial is intended to be contradicted by his former statement then his attention has to be drawn to those parts of the statement which are required to be used for the purpose of contradicting him before the said statement in question can be proved as provided under Section 145 of the Evidence Act. On scrutinising the evidence of DW-1, we find that the Magistrate who is supposed to have exhibited the document in his cross-examination categorically admitted that neither any signature nor seal of either of the Chief Judicial Magistrate or of his office on the statement Exhibit B.”

How to Contradict a witness with a previous document

Modal Questions – 1 (Contradiction)
- (Dispute is with regard to the width of a way; and in Chief Examination before the Civil Court the witness says that the width of the way is 15 feet and the way exists for the last more than 20 years.)
Is not the way there had been made only 10 years back and the width of the way was 7 feet alone?
(No.)
Did you file a complaint before the Executive Magistrate on …….. ……. with respect to the disputed way?
(Yes.)
I put it to you that you wrote in the complaint (only) that “Myself and my three neighbours use this 7 feet way for the last 10 years and it is the only way to our houses”?
(No; I didn’t write.)
- The cross examiner can produce a certified copy of the complaint (or request the court to issue summons to the Office of the Executive Magistrate to produce the Complaint); and thus it can be proved that the witness is not trustworthy.
- If required (for disputing the correctness by the other side), the witness can be recalled also, for proving the document after getting the certified copy (or original).
- By proving the Complaint the following are not proved:
  1. Width of the way is/was 7 feet or it is 10 years old.
  2. The witness admitted the width as 7 feet, or the age as 10 years.
- The only thing that can be proved is the statement of the witness before the court as to width and age of the way is not creditworthy.
Modal Questions – 2 (Omission)
- (Dispute is with regard to the age of the way to a residential building; and in Chief Examination before the Civil Court the witness says that the building was in existence 25 years back.).
Weren’t you a Candidate in the Panchayath Election held 15 years back?
(Yes.)
Did you file an affidavit before the RO, stating your assets?
(Yes.)
Did you state in the affidavit that you owned a house?
(Yes.)
Have you anything to explain if I put it to you that you wrote in the affidavit that “I have 15 cents of property and ‘cultivation’ therein”; and you omitted to state the existence of the ‘house’?
(I did not omit; I had stated about the house also.)
Can you recognise the affidavit seeing a certified copy from the RO?
(Yes.)
(Handing over the certified copy, for refreshing memory) Isn’t it the certified copy of the affidavit?
(Yes.)
Isn’t it correct that you did not state about the house in the affidavit?
(Yes.)
- The cross examiner cannot seek to mark the document (even if it had already been produced and remains in the court file), because it is (i) relevant only under Sec. 145 – to contradict the witness, and (ii) the document is admitted by the witness.
- Note:
- 1. Here it is used not as a ‘fact in issue’ or ‘relevant fact’ admissible under Sec. 5 of the Evidence Act.
- 2. Assume, the cross examiner uses the document directly, otherwise than using it under Sec. 145 (that is, without putting contents first and seeking clarification), it can be used as a substantive document if it had already been produced at relevant time – or with permission of the court, with notice to the other side.

Read in this Cluster (Click on the topic):

Book No, 1 – Civil Procedure Code

Power of attorney

Title, ownership and Possession

Principles and Procedure

Land Laws/ Transfer of Property Act

Evidence Act – General

Contract Act

Easement

Stamp Act

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Book No. 2: A Handbook on Constitutional Issues

Book No. 3: Common Law of CLUBS and SOCIETIES in India

Book No. 4: Common Law of TRUSTS in India

General Principles
Dedication and Vesting
Trustees and Management
Breach of Trust
- Breach of Trust and Removal of Trustees
Suits by or against Trusts
- Suits By or Against Trusts and Trustees
- Remedies Under Sec. 92 CPC
Law on Hindu Religious Endowments
- Philosophy of Idol Worship
Temples, Gurudwaras, Churches and Mosques – General
- Legal Personality of Temples, Gurudwaras, Churches and Mosques
Constitutional Principles
Ayodhya and Sabarimala Disputes
- Ayodhya Disputes: M. Siddiq case – Pragmatic Verdict
- Sabarimala Review Petitions & Reference to 9-Judge Bench
- SABARIMALA REVIEW and Conflict in Findings between Shirur Mutt Case & Durgah Committee Case
General