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Civil Appeal No. 19 of 1954.
Appeal from the judgment and decree dated April 8, 1949 of the Patna High Court, in Appeal from Original ]Decree No. 116 of 1947, arising out of the judgment and decree dated the February 28, 1947, of the Sub Judge at Begusarai in Title Suit No. 14/14 of 1944/45.
L. K. Jha and B. K. Sinha, for the appellant.
G. section Pathak, B. Sen, B. K. Saran and R. C. Prasad, for respondent No. 1. section D. Sekhri, for respondents Nos. 3 and 4. 1959.
September 7.
The Judgment of the Court was delivered by DAS GUPTA J.
Though a member of questions, some of fact and some of law were originally raised in this suit for pre emption, the main question for consideration in this appeal from the judgment of the 665 High Court of Patna, reversing the decree for preemption granted by the Trial Court, the Subordinate Judge of Monghyr, is the question on which the High Court based its decision of reversal.
That question is whether the ceremonies essential for exercising the right of pre emption were properly performed.
Issue No. 9 in which this question was raised is in these words: " Did the plaintiff perform the ceremonies of Talab E Mowasibat and Talab E Ishtashad as required by law ?" The plaintiff Radha Prasad Singh brought this suit for pre emption in respect of 5 items of property described in Schedule B of the plaint which along with certain other properties were sold by the Defendant 2nd Party Mst.
Jogeshwari Kumari alias Jageshwari Kumari widow of Babu Ganga Prasad Singh deceased and daughter of Babu Narsingh Prasad Singh by a deed executed on November 18, 1943, at Moghra and registered on November 23, 1943, at Monghyr.
The Trial Court held that the plaintiff had failed to prove that he was a co sharer in respect of Item 2 of Schedule B. As regards the other 4 Items of properties he held that the plaintiff was a co sharer and as already indicated he gave the plaintiff a decree for pre emption in respect of these 4 Items.
The sale deed is in favour of the defendant first party, Gajadhar Singh.
It is no longer disputed, however, that Gajadhar Singh was a mere Benamidar and the real purchaser by this deed was Babu Lakshmi Prasad Singh, his son Satya Narayan Singh and others.
A dispute was raised as to whether 4 annas 5 gandas odd share of Mauza, Majhaul Kilan Shri Ram, was sold or the entire 8 annas odd share of the vendor was sold.
It has been held by both the Courts below that the plaintiff 's original case that the 4 annas 5 gandas odd share of Majhaul Kilan Shri Ram was sold is not correct and that really 8 annas odd share, the entire interest of the vendor in this property was sold by the deed, but that after the registration of the sale deed it was tampered with and by an act of forgery the 666 8 annas odd share was altered fraudulently to 4 annas 5 gandas.
It was after the defendant 's pleading in the written statement that 8 annas odd gandas of this Mauza was sold and not 4 annas odd gandas as mentioned in Schedule B, that the plaintiff prayed for and obtained an amendment of the plaint by which an alternative prayer for pre emption in respect of 8 annas odd share of this Mauza was made.
But for this amendment it is obvious the prayer for pre emption could not be granted as being only for a partial pre emption, once it has been found that 8 annas odd gandas were sold and not 4 annas odd gandas.
One question which was therefore raised whether the amendment was rightly granted by the Trial Court.
The question that the suit as brought was for partial pre emption was also raised from another aspect, viz., that though the sale of this Mauza, Majhaul Kilan Shri Ram, was of all villages Asli Mai Dakhili, i.e., original with dependencies, there is no prayer for pre emption in this suit in respect of Dakhili villages.
As already indicated, however, the main question in controversy was whether the essential ceremonies required in law, i.e., Talab E Mowasibat and Talab E Ishtashad, were performed in accordance with law.
A regards this the plaintiff 's case is that he came to know of this sale by his co sharer Jogeshwari for the first time on January 2, 1944, at about 11 a.m. when Jadunath Singh, a resident of Majhaul, informed him of this and that he at once completed the formality of Talab E Mowasibat in the presence of some persons and that shortly after this he went to the properties of Tauzis 1130, 4201, and 1136, and also Mauza Bugurgabad and performed Talab E Ishtashad, that he went then to the residence of the purchaser Gajadhar Singh at Matihani on January 3, 1944, and again performed the Talab E Ishtashad ; and that very day he started for the residence of the vendor and performed the Talab E Ishtashad there on January 4, 1944.
The defence was that the story of any such ceremonies having been performed is wholly untrue and that, in fact, the plaintiff had knowledge of the sale 667 from long before January 2, 1944, he having been a rival bidder for the purchase of those very properties.
A detailed story of a proclamation by beat of drums of the proposed sale by Bindeshwary and the plaintiff 's attempt to secure the property at the sale was set out by the defendant in the written statement and was sought to be proved by his witnesses.
The Trial Court disbelieved the. defendant 's story on this point.
He also rejected the defence allegation that the plaintiff was himself responsible for the forgery that was committed in respect of the deed of sale by altering the statement of the share in Majhaul Kilan Shri Ram that was sold, from 8 annas odd gandas to 4 annas odd gondas.
On these findings he held the plaintiff 's suit was not barred by estoppel.
Proceeding then to the consideration of the question whether the plaintiff 'came to know of the sale in favour of the first defendant for the first time on January 2, 1944, from Jadunath as alleged, the learned Judge has accepted the evidence given by the plaintiff and Jadunath on this point and held that the plaintiff 's case that he received information for the first time on that day was true.
He also accepted the evidence of the plaintiff as regards the requisite ceremonies having been duly performed.
The very important question that arose for the decision of the Court was whether the plaintiff 's story that he came, to know of the sale for the first time from Jadunath on January 2. 1944, is true.
The Trial Court held that it was true.
On this point the High Court came to a, contrary conclusion.
The learned judges of the High Court were of opinion that the evidence of witness Jadunath was wholly unacceptable and that the plaintiff 's evidence that he came to know of the alleged sale on January 2, 1944, could not be accepted.
After pointing out that the whole basis of the plaintiffs claim that he performed 'the ceremonies of Talab E Mowashibat and Talab E Ishtashad was without substance, they examined the evidence as regards the performance of the ceremonies and held that this evidence was also not acceptable, 668 The question in dispute before us is thus a pure question of fact, viz., whether the plaintiff came to know of the sale for the first time on January 2, 1944, and thereupon performed the ceremonies of Talab E Mowasibat and Talab E Ishtashad.
The main contention raised by Mr. Jha, who appeared in support of the appeal is that in considering this question of fact the High Court approached the question from a wrong point altogether and was not justified in reversing the judgment of the Trial Court on that point.
The question as to what should be the right approach for a Court of Appeal in deciding a question of fact already decided in one way by the Judge in the Court of the first instance has often engaged the attention of the courts, though the views expressed have not been uniform.
Emphasis has been laid in some cases on the importance of the Court of Appeal deciding for itself the question of fact when the appeal is on facts, though remembering that it should not lightly do so not having had the advantage which the Trial Judge had of seeing the witnesses.
, More emphasis has been laid in other cases on the importance of not reversing the Trial Judge 's findings of fact without compelling reasons.
All the Courts in all the cases have stressed the rule which the courts of appeal should observe for themselves: that a Judge sitting on appeal not having had the opportunity of seeing and hearing the witnesses should think twice and more than twice before reversing the findings of fact arrived at by the Trial Court who has had that opportunity.
To say that however is not to say that the Court of Appeal will never reverse a finding of fact of the Trial Court.
In Shunmugaroya Mudaliar vs Manikka Uudaliar (1), Lord Collins pointed out that: "It is always difficult for judges who have not seen and heard the witnesses to refuse to adopt the conclusions of fact of those who have; but that difficulty is greatly aggravated where the Judge who heard them has formed the opinion, not only that their inferences are unsound on the balance (1) (1909) L.R. 36 I.A. 185.
669 of probability against their story, but they are not witnesses of truth.
" In the same judgment Lord Collins referred approvingly to the judgment delivered by Lindley, Master of the Rolls, in the Court of Appeal in the case of Coghlan vs Cumberland (1) which set out the limitations of the rule : " even where the appeal turns on a question of fact, the Court of appeal has to bear in mind that its duty is to rehear the case, and the Court must reconsider the materials before the Judge with such other materials as it may have decided to admit.
The Court must then make up its own mind, not disregarding the judgment appealed from, but carefully weighing and considering it; and not shrinking from overruling it if on full consideration the Court comes to the conclusion that the judgment is wrong.
When, as often happens, much turns on the relative credibility of witnesses who have been examined and cross examined before the Judge, the Court is sensible of the great advantage he has had in seeing and hearing them.
It is often very difficult ' to estimate correctly the relative credibility of witnesses from written depositions and when the question arises which witness is to be believed rather than another; and that question turns on manner and demeanour, the Court of Appeal always is, and must be, guided by the impression made on the Judge who saw the witnesses.
But there may obviously be other circumstances, quite apart from manner and demeanour, Which may shew whether a statement is credible or notand these circumstances may warrant the Courtin differing from the Judge, even on a question offact turning on the credibility of witnesses whom the Court has not seen.
" Almost the same view was expressed by Lord Thankerton in Watt (or Thomas) vs Thomas (2 ) : " I. Where a question of the fact has been tried by a Judge without a jury and there is no question if misdirection of himself by the Judge, an appellate (1)(1898) 1 Ch. 704.
(2) (1947) I All E.R. 582.
85 670 court which is disposed to come to a different conclusion on the printed evidence should not do so unless it is satisfied that any advantage enjoyed by the Trial Judge by reason of having seen and heard the witnesses could not be sufficient to explain or justify the trial judge 's conclusions.
The appellate Court may take the view that, without having seen or heard the witnesses, it is not in a position to come to any satisfactory conclusion on the printed evidence.
The appellate Court, either because the reasons given by the Trial Judge are not satisfactory, or because it unmistakably so appears from the evidence, may be satisfied that he has not taken proper advantage of his having seen and heard the witnesses, and the matter will then become at large for the appellate court.
It is obvious that the value and importance of having seen and heard the witnesses will vary according to the class of case, and, it may be, the individiual case in question.
" These observations were cited with approval by Lord Reid in Bonmax vs Austin Motor Co., Ltd., (1).
(See also the observations of Mokerjee, J., in Laljee Mahomed vs Girlder (2).
This question of the proper approach of the Court of Appeal to decisions on questions of fact arrived at by the Trial Court was considered by this Court in Sarju Pershad vs Raja Jwaleshwari Pratap Narain Singh(3).
Mukherjea, J., while delivering the judgment of the Court observed: " In such cases, the appellate court has got to bear in mind that it has not the advantage which the trial Judge had in having the witnesses before him and observing the manner in which they deposed in Court.
This certainly does not mean that when an appeal lies on facts, the appellate court is not competent to reverse a finding of fact arrived at by the trial judge.
The rule is and it is nothing more than a rule of practice that when there is conflict of oral evidence of the parties on any matter in issue and the decision hinges upon the credibility of (1) (1955) I All E.R. 326.
(2) Cal.
(3) [1950]S.C.R.781,784.
671 the witnesses, then unless there is some special feature about the evidence of a particular witness which has escaped the trial judge 's notice or there is a sufficient balance of improbability to displace his opinion as to where the credibility lies, the appellate court should not interfere with the finding of the trial Judge on a question of fact.
" The position in law, in our opinion, is that when an appeal lies on facts it is the right and the duty of the Appeal Court to consider what its decision on the question of facts should be; but in coming to its own decision it should bear in mind that it is looking at the printed record and has not the opportunity of seeing the witnesses and that it should not lightly reject the Trial Judge 's conclusion that the evidence of a particular witness should be believed or should not be believed particularly when such conclusion is based on the observation of the demeanour of the witness in Court.
But, this does not mean that merely because an appeal court has not heard or seen the witness it will in no case reverse the findings of a Trial Judge even on the question of credibility, if such question depends on a fair consideration of matters on record.
When it appears to the Appeal Court that important considerations bearing on the question of credibility have not been taken into account or properly weighed by the Trial Judge and such considerations including the question of probability of the story given by the witnesses clearly indicate that the view taken by the Trial Judge is wrong, the Appeal Court should have no hesitation in reversing the findings of the Trial Judge on such questions.
Where the question is not of credibility based entirely on the demeanour of witnesses observed in Court but a question of inference of one fact from proved primary facts the Court of Appeal is in as good a position as the Trial Judge and is free to reverse the findings if it thinks that the inference made by the Trial Judge is not justified.
Turning now to the instant case we find that the Trial Judge having seen and heard Jadunath and the plaintiff, believed their evidence on the point of information being given to plaintiff by Jadunath about the 672 sale on January 2, 1944, at about II a.m.
It does not, however, appear that the learned Trial Judge arrived at his conclusion on the basis of the demeanour of these witnesses having created a favourable impression on his mind as to their credibility.
In scrutinising the evidence of the plaintiff and of Jadunath it must be borne in mind that the case of the plaintiff is that on January 2, 1944, certain information having been received by him, he performed the formalities.
There is no case that the formalities were performed on any other date.
Therefore, if the story of the communication of information on January 2, 1944, is not established then the whole case of the plaintiff must fail.
Jadunath 's evidence on this point was: " On 2 1 44 I told Radha Babu at his house in Manjhaul that Maghrawalli Jugeshwari Kumari had sold away her Milkiat to Gajadhar Rai of Matihani, this was about 11 a.m. Radha was startled to hear this and standing up said: "Jo jo jaidad Babu Gajadhar Singh hath (then says Maghrawalli Mussammat Jageshwari Kumari ne jo jo jaidad Babu Gajadhar Singh ka liath becha hai uske kharidne ka haq mere.
Ham Kharida, Ham Kharida, Ham Kharida.
Talab Mowashibat karte hain.
Babu Jagdamba Prasad aur Babu Narayan Prasad gabah rahie.
I came to know from a man of Chitral, I kos from Matihani that gajadhar had a marriageable grandson.".
Mention should be made in this connection also of the evidence of Jagdambi Prasad: "On 2 1 44 I had been to plaintiff 's house at 10 30 a.m.
Babu Narayan Prasad Singh, a pleader of Samastilpur was at plaintiff 's house at the time .
Jadunath Singh told Radha Prasad that Musanimat Jagesliwari Kumari of Maghra had sold away her property in Manjhaul to Gajadhar Singh of Matihani.
As soon as Jadunath Singh said this Radha Prasad Singh was startled, stood up and said: I have a right to purchase this property.
I have purchased; I have purchased; I have purchased.
673 You Jagdamba Prasad Singh, you Narayan Prasad Singh and you Jadunath Singh, bear witness to this fact.
He uttered these words thrice." In deciding the question whether the information from Jadunath was the first information received by the plaintiff the Trial Judge had necessarily to consider whether the story that Jadunath came to know of the sale and brought this information on to the plaintiff on January 2, 1944, at about 11 a.m. was true or not.
In arriving at a decision on the point it was necessary for him to consider the probabilities of the story, of Jadunath having gone to Gajadhar 's house in search of a bridegroom and that there Gajadhar Singh informed him of the sale and then of the probability of the story that he would be taking upon himself the task of going to the plaintiffs house immediately on return to his village to convey this information, the probability of the story as to how the plaintiff reacted to the account and also the question of discrepancy.
It does not appear that the learned Trial Judge took any of these matters into consideration.
All that he says about Jadunath 's credibility is that his evidence had been criticised on the ground that he was one of plaintiff 's witnesses in the previous suit brought by him against Satya Narain Singh 's ancestors and that is in his opinion was not a valid ground for discarding the evidence of Jadunath Singh.
We agree with the learned Judge that the mere fact that Jadunath was one of the plaintiff 's witnesses in the previous suit brought by him against Satya Narain Singh 's ancestors about 33 years ago would not by itself be a valid reason for discarding his testimony.
The fact that this was not a valid reason for discarding his testimony does not, however, absolve the Court of the duty of testing the witness 's testimony on the touch stone of probability.
The learned judges of the High Court applied that touch stone and came to the conclusion that Jadunath was not a witness of truth.
It is clearly a case where the words used by Lord Thankerton that the Trial Judge had not taken proper advantage of his having seen and heard the witnesses, and the matter would become at large for the appellate 674 court, should apply.
Here was a witness who could not be considered to be wholly independent.
For, on his own showing he took the trouble of going to plaintiff 's house after what may be taken to be an arduous country in an unsuccessful search for a bridegroom, to inform the plaintiff of a matter in which he himself had no interest a witness who had figured, though many years ago, in a pre emption suit brought by the same person.
These facts made close scrutiny of the witness 's account necessary before the Judge could say just by looking at him that he was a witness of truth.
That scrutiny is conspicuous by its absence.
Taking his evidence as a whole we find that his story that after coming to know of the sale in question he went to the house of Gajadhar, the first defendant, at village Matihani to make enquiries about a marriage proposal in respect of his daughter with his grandson and that it was in that connection that Gajadhar spoke to him about his purchase.
But it is curious that in his examination in chief this witness came straight to his account of 'coming to the plaintiff 's house on January 2, 1944, and informing him about the sale by Jogeshwari of her Milkiat to Gajadhar without saying a word as to his visit to Gajadhar 's house, to the purpose of his visit and the manner in which Gajadhar gave him the information, or even the detailed nature of the information.
It was in cross examination that he disclosed that he went to Gajadhar 's house for "barthuari".
It is in vain that we look into his evidence, whether in examination in chief or in cross examination, for the exact information given by Gajadhar.
It has to be remembered in this connection that it is no longer disputed that Gajadhar himself had no interest in these properties and was a mere Benamidar.
Even if Gajadhar 's own account that he was completely in the dark about these transactions be left out of account it was necessary for the Court to consider how far it was probable that Gajadhar would put on Jadunath a false story of purchase by himself of properties.
It was urged that this Gajadhar did with a view to raise the Tilak which he could thus obtain.
675 Jadunath himself has not said anything about the negotiations about Tilak but one Mahabir Ray has said that when he was going to the fields Gajadhar called him and there lie heard Gajadhar demanding a higher Tilak stating that he had recently purchased properties at Majhaul from Mussammat.
Jadunath himself does not mention having seen this Mahabir at Gajadhar 's house.
Jadunath claims to have gone to his house with a servant.
Mahabir has not mentioned the presence of this servant.
The question whether a man like Mahabir who was a total stranger to the plaintiff would be called by Gajadhar to hear such talks also requires the serious consideration of the Court.
The Trial Judge does not appear to have given the slightest consideration to this aspect of the matter.
The learned judges of the High Court thought that there was no reason that Gajadhar would go out of his way to convey the information to Jadunath that he had purchased the Milkiat of Jogeshwari, the defendant No. 2.
It is difficult not to agree to this estimate of probability.
Even more important was the question of probability as regards the story of the plaintiff 's reaction when the information is said to have been given to him.
Both Jadunath and Jagdambi say that the plaintiff was startled on getting information of the sale and at once uttered the words which have been set out already of the Talab E Mowsibat.
What would a man of ordinary prudence not to speak of the man of property and with experience of previous litigation like the plaintiff would do under such circumstances ? There cannot be any two opinions on this question.
He may consider it unwise to ask his informant any further question before making the first Talab, i.e., Talab E Mowasibat.
Once that was completed he would ply his informant with questions as to where he got this information, what the information exactly was, what properties had been sold, what the consideration was, and other connected questions.
In this case, according to the evidence of Jadunath no such questions were asked by the plaintiff.
In his examination in chief, Jadunath says: 676 " He (plaintiff) asked his syce to bring his tandom.
He told Jagdamba Babu that he would go to make talab e isthashad and asked him to accompany him.
While they were boarding the tandom Jai Prakash Narayan came that way.
Radha Babu asked him also to accompany him.
The same night Radha Babu met us at my house at 8 p.m.
He asked me where I had obtained the information about the sale.
" From this evidence it is clear that though Jadunath was at the place until the Tandom bad been brought and the plaintiff and Jagdamba got into the Tandom and Jai Prakash Narayan also arrived, no question was put by the plaintiff to Jadunath in this behalf.
It has to be noted that the plaintiff went to Jadunath 's house the same night at 8 p.m. and the only question which was asked was: Where he had obtained the information about the sale and nothing was asked about what properties had been sold or for how much had they been sold.
In cross examination Jadunath made the further statement in these words: " When I broke the news Radha Prasad did not ask me where I had received the information, or who had purchased the properties; what properties had been purchased or what the consideration was.
" Such conduct on the part of Jadunath is incredible and any Judge of facts with experience of normal human conduct could have no hesitation in coming to the conclusion that things could not have happened in the way Jadunath has described.
Mr. Jha, the learned Counsel for the appellant, urged that it would be unfair to base any conclusion on the supposed improbability or unnaturalness of such silence on the part of the plaintiff without having given him an opportunity to explain why be acted in this peculiar manner.
It has to be noticed, however, that Jadunath had been examined and cross examined on January 9, 1947, and when the plaintiff was put in the Witness Box on the following day, i.e., January 10, 1947, the lawyer who examined him had before him the fact that Jadunath 's evidence had brought out this strange silence on the part of the plaintiff after he had been informed of the 677 sale.
It was his duty to obtain from Radha Prasad an explanation of such conduct.
But he put no questions to Radha Prasad about this.
The obvious reason is that Radha Prasad had no explanation to offer and the lawyer knowing this kept quiet.
It appears to us that the learned judges of the High Court of Patna were right in attaching great importance to this conduct of the plaintiff and were justified when they thought that this was an improbable story and rejected, in disagreement with the Trial Judge Jadunath 's evidence altogether.
Mention has to be made of another circumstance which was noticed in the High Court judgment.
That is as regards the exact information which is said to have been given by Jadunath.
Jadunath 's own account in the examination in chief is that he "told Radha Babu at his house in Majhaul that Maghrawalli Jugeshwari Kumari had sold away her Milkiat to Gajadhar Rai of Motihani.
In his cross examination he first said : " The information I gave was in these terms: Maghrawali Musammat apni Jaidad Babu Gajadhar Singh Motihani wale ke chan bech dia." and then correcting himself said: " Babu Gajadhar Singh ne kaha ki Maghrawali Musammat ki jaidad kharid kia.
" It is not possible for anybody to remember exactly the words used by himself many years ago and it is reasonable to say that there was no substantial difference between the account given by him of this matter in his examination in chief and in cross examination.
It is interesting to remember, however, that in paragraph 4 of the plaint, it was stated that the information that Jadunath gave was: " That the defendants 2nd and 3rd parties had sold the properties entered in Schedule B of this plaint, along with other properties to the defendant 1st party, under a registered deed of sale.
" According to Jadunath 's evidence he does not appear to have mentioned the defendant 3rd parties as the sellers nor gave any details to show that the properties 86 678 entered in Schedule B were covered by the sale nor that there was a registered deed of sale.
Turning to the evidence on the plaintiff and Jagdamba as regards the information said to have been given by Jadunath we find that Jagdamba says: " Jadunath Singh told Radha Prasad that Musammat Jogeshwari Kumari of Maghra had sold away her property in Majhaul to Gajadhar Singh of Motihani.
" According to the plaintiff himself the information which Jadunath gave was that Gajadhar Singh had purchased the Majhaul properties from the Maghrawali Musammat.
An examination of Schedule B shows that while the first 3 items were properties in Mauza Majhaul, the 4th item is a property in Buzurgabad while the 5th item is a property in Mauza Dundit.
There appears to be no reason to think that these properties 4 and 5 could be even loosely be considered to be properties in Majhaul or Majhaul Properties.
Commenting on Jagdamba 's evidence on this point Mr. Justice Sinha, who delivered the leading judgment stated : " Plaintiff 's witness No. 2 has stated that Jadunath told the plaintiff that the second defendant had sold her property in Majhaul to the first defendant.
If that is so, it is a little difficult to under.
stand how they went to Bugurgabad or to the other items of property to perform the ceremonies, if they ever did so.
" It is strange that there should be such discrepancy between the evidence of Jadunath himself and the plaintiff and Jagdamba as to what actually was said.
But if Jagdamba 's account such as is supported by the plaintiff himself, is true then there is no acceptable explanation as to why the plaintiff could think of going to Bugurgabad at all as he and his witnesses say, he did.
It was the duty of the Trial Judge to take into account these several considerations in testing the credibility of the account given by Jadunath, the plaintiff and Jagdambi that Jadunath informed the plaintiff on January 2, 1944 about the sale.
He did not do so, The learned judges of the High Court as a 679 Court of Appeal were in duty bound to consider these questions before accepting the decision of the learned Trial Judge.
The criticism that the approach of the learned judges of the High Court was wrong is therefore wholly without foundation.
The learned judges of the High Court rightly took these matters into consideration and the decision they arrived at on these considerations that the Trial Judge 's assessment of the evidence was wrong and that Jadunath was not a witness of truth and that the account given by the plaintiff that the information was conveyed to him by Jadunath on January 2, 1944, should not be accepted is clearly right.
Once this decision is reached it is unnecessary to consider the further question whether any ceremonies were performed at all on 2nd, 3rd or 4th January, 1944, as stated by the plaintiff and his witnesses.
Even if they were, they would be of no assistance to the plaintiff as the plaintiff had failed to show that it was on January 2, 1944, that he received the information about the same.
It is unnecessary for us therefore to decide the further question that appears to have been raised, viz., that even if the evidence as regards the performance of the two Talabs i. e., Talab E Mowashibat and Talab E Ishtashad is accepted at its face value the requirements of the law have not been fulfilled.
The High Court held that the plaintiff had failed to prove that the words used by him at the time of the making of the second demand of Talab E Ishtashad were sufficient to draw the attention of the witnesses to the specific properties in respect of which he was demanding his right of pre emption.
We express no opinion whether this view of the learned judges of the High Court is correct or not.
We also express no opinion on the two other questions, viz., whether the Trial Court acted in accordance with law in granting leave to the plaintiff to amend his plaint so as to include the alternative prayer for pre emption in respect of 8 annas odd share of Tauza No. 1130 instead of 4 annas odd share as originally claimed and also whether the suit was bound.
to fail because there was 680 no prayer for pre emption for the Dakhili villages of Tauza No. 1130.
In our opinion the plaintiff having failed to prove that the information of the sale was conveyed.
to him by Jadunath on January 2, 1944, the suit 'was rightly dismissed by the High Court.
This appeal is, therefore, also dismissed with costs.

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Although it is well settled that a court of appeal should not lightly disturb a finding of fact arrived at by the trial judge who had the opportunity of observing the demeanour of the witnesses and hearing them, that does not mean that an appellate court hearing an appeal on facts can never reverse such a finding.
Where the decision on a question of fact depends on a fair consideration of matters on record, and it appears to the Appeal Court that important considerations have not been taken into account and properly weighed by the trial judge, and such considerations clearly indicate that the view taken by the trial judge is wrong, it is its duty to reverse the finding even if it involves the disbelieving of witnesses believed by the trial court.
Where again the trial judge omits to properly weigh or take into account 664 important considerations bearing on the credibility of witnesses or the probability of their version, which point the other way, it is the duty of the court of appeal to reverse the findings of the trial Court.
If the question of fact does not solely depend on the credibility of witnesses for its determination, but is one of inference from proved facts, on a consideration of probabilities, the court of appeal stands in the same position as the trial court and is free to reverse its findings.
Shunmugayoya Mudaliay vs Manikka Mudaliar, (1909) L.R. 36 I.A. 185; Coghlan vs Cumberland, (1898) i Ch.
704; Wall (Thomas) vs Thomas, (1947) i All E.R. 582; Bonmax vs Austin Motor Co. Ltd. (1955) i All E.R. 326; Sayju Pershad vs Raja jwaleshwari Pratap Narain Singh, (195I) I.L.R. and Laljee Mohomet vs Girlder, , referred to.
Consequently, where, as in the present case, the plaintiff brought a suit for pre emption and the question for determination was one of fact, namely, whether the plaintiff had performed the essential ceremonies of Talab E Mowasibat and Talab E Ishtashad, and the trial court believed his witnesses, not because it had been impressed by their demearour, and the High Court in appeal disbelieved them in the light of the probabilities of the case and reversed the decision of the trial court.
Held, that it was not correct to contend that the way in which the High Court had approached the case was wrong or that its decision was not justified.


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Special Leave Petition No. 1900 of 1981 etc.
From the Judgment and order dated 3.2.1981 of the Allahabad High Court in C.M.W.P. No. 1924 of 1981.
P.P. Rao, Ambrish Kumar, Mrs. Rani Chhabra, M. Qamaruddin, Mrs. Qamaruddin, A.K. Srivastava, B.B. Tawakley, Mrs. Subhadra, S.N. Singh, C.K. Ratnaparkhi, S.K. Gupta, Uma Dutt, C.P. Lal, M.K. Garg, and Lokesh Kumar for the Petitioners.
Anil Dev Singh, O.P. Rana, B.P. Maheshwari, Mrs. section Dikshit, P.K. Pillai, R. Ramachandran, A.K. Srivastava, S.C. Birla, section Wasim, A. Qadri, N.N. Sharma, Shakeel Ahmad and K.K. Gupta for the Respondents.

Output:
% In exercise of the powers conferred by Section 239(2)(E)(a) of the Uttar Pradesh Kshetra Samiti and Zila Parishads Adhiniyam, 1961, various Zila Parishads framed a bye law, providing that right to trade in carcass utilisation in the rural area of the respective Zila Parishads shall be put to public auction.
Such activities comprised of taking of the carcass of dead animals to a specified place, skinning of the carcass, storage of bones and skins, curing and dyeing of such skins and preparation of leather goods.
In a writ petition challenging the validity of the said bye law, a Single Judge of the High Court struck down the latter part of the bye law framed by one of the Zila Parishads, providing for farming out of the privilege of utilisation and disposal of carcass of dead animals, on the ground that it created a monopoly in favour of an individual or group of individuals.
A Division Bench reiterated that view in two writ petitions filed before it, and distinguished the decision of this Court in State of Maharashtra vs Mumbai Upnagar Gramodyog Sangh, ; taking a contrary view on the ground that the restrictions were reason able within the meaning of article 19(6), in the context of the thickly populated metropolitan city.
The correctness of the said decision of the Division Bench was open to question.
Another Division Bench referred the matter to a Full Bench, which expressly repelled the aforesaid view, and held that it was competent for the Zila Parishads to frame such bye laws in exercise of the powers conferred by section 239(2)(E)(a) of the Act.
539 Against the various judgments and orders of the High Court, special leave petitions and appeals by special leave challenging the constitutional validity of the aforesaid bye law, were filed in this Court.
In SLP(C) No. 1900 of 1981, this Court, in order to protect the interests of persons traditionally engaged in the work of skinning, tanning etc., directed the State Government to frame a Model Scheme for carcass utilisation in the Etawa district at the village panchayat level on an experimental basis, and passed certain incidental directions as to the price payable for skins, bones and horns.
As nothing further was done, in partial modification of its earlier orders, this Court directed the Zila Parishad, Etawa to issue licence to any person who applied for the same.
In the meantime, the Government of Uttar Pradesh issued a Circular dated June 7, 1986 stating that in future the licences for disposal of carcass of animals should be granted only to registered industrial cooperative societies formed by the persons engaged in this work.
Disposing of the Special Leave Petitions and civil appeals, ^ HELD: It is plain upon the reading of the Circular dated June 7, 1986 issued by the State Government that the contract system envisaged by the impugned bye law framed by the different Zila Parishads in the State has been virtually abandoned, and the State Government proposes to replace the system of auction by a system of licensing, giving preferential right to cooperative societies consisting of members of the traditional occupation, for the disposal of carcass of dead animals.
[544E F] In view of the subsequent policy decision taken by the State Government, the present controversy no longer survives.
It would be open to different Zila Parishads, in view of the directive of the State Government, to frame the appropriate Bye laws consistent with and for the implementations of the policy declared by the State Government.
The Zila Parishads, while considering the question, shall keep in view the directions issued by this Court on April 15, 1983, and also the order passed introducing the licence system in the Zila Parishad, Etawa on an experimental basis.[544F G] For a meaningful effectuation of the policy decision of the Government, which is taken in the larger interests of a sizeable segment of the weaker sections of the society, it is of utmost importance that the 540 work of formation of cooperative society of the members of the traditional occupation, who lack the will and the ability to organise themselves, should be taken up by the social welfare department of the State Government and every effort should be made to bring the members of the traditional occupation within the fold of these cooperative societies.
The social welfare department shall take effective steps to organise such cooperative societies.
[544H; 545A B] Wherever it is not possible to implement the policy decision and there is likely to be a loss of revenue or other compelling reason, it would be open to the Zila Parishads, as a purely transitory measure and with the prior concurrence of the State Government, to arrange for carcass utilisation by auction if the Bye laws permit such auction.
It is only where, for any compelling reason, the said policy decision cannot be implemented effectively in any area, that the concerned Zila Parishad could, with the prior sanction of the State Government, continue the present contract system subject to such variation as may be necessary till the cooperative societies are formed.
[545C D1]


Input:
ivil Appeal No. 626 of 1961.
Appeal by special leave from the judgment and order dated November 18, 1959, of the Andhra Pradesh High Court in Writ Petition No. 922 of 1956.
T.V.R. Tatachari and P.D. Menon, for the appellants.
K. Bhimasankaram and T. Satyanarayana, for the respondent.
April 10.
The Judgment of the Court was delivered by SHAH J.
On March 10, 1955, the Deputy Inspector General of Police, State of Andhra, passed an order dismissing the respondent (who was a sub inspector of police appointed on probation) from service.
On appeal to the Inspector General of Police, the order was altered into one of removal from service.
The respondent then.
moved the High Court of Andhra pradesh by a petition under article 226 of the Constitution for a writ of certiorari or other appropriate 27 writ or direction quashing the proceedings of the Inspector General of Police including his order dated September 24, 1955, and the order of the Deputy Inspector General of Police dated March 10, 1955, and for such other orders as the Court may deem fit.
The High Court quashed the two impugned orders.
Against the order passed by the High Court, this appeal is preferred with special leave.
It is necessary to set out in some detail the facts which gave rise to the departmental proceedings against the respondent resulting in his removal from service.
The respondent was at the material time in charge of the police station Kodur, Visakhapatnam District.
On February 18, 1954, an offence of house breaking and theft was reported at the police station and was registered on February 19,1954.
It was recited in the report of the Village Munsif of Vechalam that one Durgalu who was then absconding was suspected to be the offender.
This Durgalu was apprehended by the Village Munsif of Kalogotla on March 5, 1954, and was handed over to the Village Munsif of Vechalam, who in his turn sent Durgalu to Kodur police station with village servants V. Polayya, Vechalapu Simhachalam, Kodamanchali Simhachalam and Koduru Sumudram.
It is the case of the State that Durgalu was handed over to the respondent on the night of March 5, 1954, but no written acknowledgment in token of having received Durgalu from the village servants was given by the respondent, nor was any entry posted in the station diary, and Durgalu was thereafter confined in the police station from the night of March 5, 1954, without any order from a Magistrate remanding him to police custody.
On March 7, 1954, the ' respondent entrusted charge of the police station to a head constable and left for Kakinada on casual leave for five days.
He returned to Kodur on March 12, 1954.
After the departure of the respondent, 28 some constables arrested one Reddy Simhachalam and brought him to the police station in the evening of March 7, 1954.
It is the case of the State that as a result of torture by police constables Nos.
1199, 363 and 662, Reddy Simhachalam became unconscious.
The dead body of Reddy Simhachalam was found floating in a well near the police station on the morning of March 9, 1954, and an enquiry into the circumstances in which the death took place was commenced by the Revenue Divisional Officer, Narsipatnam.
In the enquiry, Durgalu made a statement that he had witnessed the torture of Reddy Simhachalam, in the police station, by the three constables.
Police constables Nos.
1199, 363 ' and 662 were then charged before the Sub Magistrate, Chodavaram, for offences under sections 304(2) and 201 read with section 114 I.P. Code, for causing the death of Reddy Simhachalam by torturing him and for causing disappearence of the evidence of his death.
Before the Sub Magistrate, Durgalu retracted his earlier statement and stated that the statement that he was an eye witness to the torture of Reddy Simhachalam was untrue and that he was induced to make that statement by the police.
He deposed that he had escaped from the custody of the village servants before he reached the police station Kodur on March 5, 1954, and that he was re arrested on March 8, 1954.
The Sub Magistrate discharged the police constables holding that once Durgalu the only eye witness turned hostile, there was no direct evidence on which even a prima facie case could be made out against them.
The record of the case before the Sub Magistrate was called by the Sessions Judge, Visakhapatnam, suo motu.
The Sessions Judge held it proved on the evidence that Durgalu was arrested on March 5, 1954 and was taken to the police station Kodur and was wrongfully confined since that date in the police station, and the story of Durgalu before the Sub Magistrate that after he was arrested on March 5, 1954 and was taken to the 29 Kodur village on that very day he had escaped from custody and that he remained in his village Vechalam could not be believed.
A departmental enquiry was commenced in May 1954: against the respondent.
The charge in the disciplinary proceedings against the respondent after it was amended ran as follows : "Reprehensible conduct in wrongfully confining a K.D, Chandana Durgalu accused in Cr.
No.17/54: of Kodur Police Station from the night of 5 3 54: to 7 3 1954: in the Police Station when he went on five days casual leave. ' ' To the charge was appended a "statement of facts" reciting inter aria, that Durgalu was apprehended by the Village Munsif, Kaligotla and was handed over to the Village Munsif, Vechalam, that Durgalu was sent by the latter with the written report with the assistance of village servants, that on the same night the latter handed over Durgalu to the respondent in the police station Kodur at about 12 mid night, with the report of the Village Munsif and demanded acknowledgment but the acknowledgment was refused by the respondent, and that the respondent did not mention these facts in any of the station records and wrongfully confined Durgalu in the police station till March 7, 1954:, when he proceeded on casual leave for five days.
This, the "statement of facts" added, constituted grave and reprehensible conduct and hence the charge.
The respondent submitted an explanation in which he submitted that Durgalu was not handed over to him on March S, 1954:, as alleged nor at any time before he proceeded on March 7, 1904:, on casual leave.
His plea was that when he proceeded on leave he entrusted charge of the police station to the head constable leaving instructions to trace Durgalu and to take action.
30 The Deputy Superintendent of Police held the departmental enquiry and submitted his report on October 27, 1954, setting out the evidence of the witnesses examined on behalf of the State and the respondent, and summing up the conclusion by reciting that the evidence in the case for the State made out a strong case against the respondent, that it was established that Durgalu was arrested on March 5, 1954, and was sent by the Village Munsif to Vechalam who in his turn sent him with the village servants to the police station Kodur, and Durgalu was handed over to the respondent on the night o.f March 5, 1954, that the story of Durgalu that after he was arrested on March 5, 1954, he escaped from the custody of the village servants and was again arrested on March 8, 1954, was false.
The report then concluded "All these facts go to show that he was arrested on the 5th without a shadow of doubt, but if the judgment of the learned Court which is based on the retracted statement of Durgalu is considered the 'sacred truth ' the delinquent may have benefit of doubt.
" This report was considered by the authority competent to impose punishment and a provisional conclusion that the respondent merited punishment of dismissal for the charges held established by the report was recorded.
A copy of the report of the Enquiry Officer was sent to the respondent and he was called upon to submit his representation against the action proposed to be taken in regard to him.
The respondent submitted his representation which was considered by the Deputy Inspector General of Police, Northern Range, Waltair.
That Officer referred to the evidence of witnesses for the State about the arrest of Durgalu on March 5, 1954, and the handing over of Durgalu to the respondent on the same day.
He observed that the evidence of Durgalu 'that after he was arrested on March 5: 1954, he had made good his escape and was again arrested on March 8, 1954, could not be accepted.
Holding that the charge 31 against the respondent was serious and had on the evidence been adequately proved, in his view the only punishment which the respondent deserved was of dismissal from the police force.
In appeal the Inspector General of Police accepted the evidence of the witnesses who had deposed that they had handed over Durgalu to the respondent on March 5, 1954.
In his view the respondent had "betrayed gross dishonesty and lack of character in falsifying the records by omitting to write what he had done and what happened in the police station, thereby .proving himself thoroughly dishonest and untrustworthy," and "showing himself unfit to hold the responsible post of a SubInspector of police," and that "his records as a probationary Sub Inspector of police are generally unsatisfactory.
and he has earned a reputation for inefficiency and lack of interest in work for weakness in dealing with his subordinates, which are all attributes that militate against his becoming useful SubInspector of Police.
" But taking into consideration his young age and inexperience, the Inspector General of Police reduced the order of dismissal into one for removal from service.
In the departmental proceeding a simple question of fact fell to be determined viz.
whether Durgalu was arrested on March 5, 1954, and was delivered over by the village servants to the respondent at police station Kodur on the night of March 5, 1954.
There is no dispute that Durgalu was arrested on March 5, 1954, and was sent by the Village Munsif, Vechalam with his report to the police station Kodur.
The only question in dispute was whether Durgalu was handed over to the respondent on March 5, 1954, as stated by the witnesses for the State.
The case of the State was accepted by the Deputy Inspect.or .General of Police who passed the order of dismissal and the Inspector 32 General of Police in appeal.
But the High Court declined to accept this view of the evidence.
In so doing, with respect it must be observed, the High Court assumed to itself jurisdiction which it did not possess.
The High Court was of the view that the conclusion of the departmental authorities was vitiated, because the Enquiry Officer dealt with the evidences of witnesses for the State, and the witnesses for the respondent separately, and the Deputy Inspector General of Police and the Inspector General of Police did not in recording their orders refer to all the evidence led before the Enquiry Officer and they "failed to appreciate the full significance of the rule concerning the onus of proving.
The rule meant that everything essential to the establishment of a charge lies on the person, who seeks to establish the charge.
It further means that the two sets of evidence in the case must not be examined separately in order to ascertain first whether those for establishing the charge have proved it and then to examine the defence in order to see how far the conclusions are unjustified.
The better approach, which has been described as the golden thread in the web of criminal law is to examine the law, the whole evidence in order to ascertain how far the liability of the person proceeded against has been established beyond reasonable doubt".
The High Court then observed that ordinarily the conclusions on questions of fact by a body or tribunal in a proceeding under article 226 of the Constitution are accepted by the High Court but that general rule does not apply "whenever an important principle of jurisprudence is discarded in reaching such findings", and since the fundamental rule that a person should be punished only after the entire evidence in the case had been considered and he is found liable beyond reasonable doubt, had not been followed, the conclusions of the departmental authorities were vitiated.
The High Court again observed that the orders passed by the departmental authorities were vitiated because of two 33 other matters: (i) that the Enquiry Officer declined to summon and examine two witnesses for the defence even though a request in that behalf was made; and (ii) that there was no charge against the respondent of "falsifying the record by omitting to write what he had done or what happened in the police station", and he had not been given an opportunity of meeting such a charge and therefore the respondent had no fair hearing consistent with the principles of natural justice.
There is no warrant for the view expressed by the High Court that in considering whether a public officer is guilty of the misconduct charged against him, the rule followed in criminal trials that an offence is not established unless proved by evidence beyond reasonable doubt to the satisfaction of the Court, must be applied, and if that rule be not applied, the High Court in a petition under Art, 226 of the Constitution is competent to declare the order of the authorities holding a departmental enquiry invalid.
The High Court is not constituted in a proceeding under article 226 of the Constitution a Court of appeal over the decision of the authorities holding a departmental enquiry against a public servant: iris concerned to determine whether the enquiry is held by an authority competent in that behalf, and according to the procedure prescribed in that behalf, and whether the rules of natural justice are not violated.
Where there is some evidence, which the authority entrusted with the duty to hold the enquiry has accepted and which evidence may reasonably support the conclusion that the delinquent Officer is guilty of the charge, it is not the function of the High Court in a petition for a writ under article 226 to review the evidence and to arrive at an independent finding on the evidence.
The High Court may undoubtedly interfere where the departmental authorities have held the proceedings against the delinquent in a manner inconsistent with the 34 rules of natural justice or in violation of the statutory rules prescribing the mode of enquiry or where the authorities have disabled themselves from reaching a fair decision by some considerations extraneous to the evidence and the merits of the case or by allowing themselves to be influenced by irrelevant considerations or ;where the conclusion on the very face of it is so wholly arbitrary and capricious that no reasonable person could ever have arrived at that conclusion, or on similar grounds.
But the departmental authorities are, if the enquiry is otherwise properly held, the sole judges of facts and if there be some legal evidence on which their findings can be based, the adequacy or reliability of that evidence is not a matter which can be permitted to be canvassed before the High Court in a proceeding for a writ under article 226 of the Constitution.
The Enquiry Officer had accepted the evidence of witnesses for the Sate that Durgalu was handed over to the respondent on March 5, 1954, and the observation that the respondent may have the benefit of doubt if the judgment of the Magistrate is considered "sacred truth" appears to have been made in a somewhat sarcastic vein, and does not cast any doubt upon the conclusion recorded by him.
The Enquiry Officer appears to have stated that the judgment of the Magistrate holding a criminal trial against a public servant could not always be regarded as binding in a departmental enquiry against that public servant.
in so stating, the Enquiry Officer did not commit any error.
The first ground on which the High Court interfered with the order of the punishing authorities is therefore wholly unsustainable.
The two other grounds on which the High Court also based its conclusion, namely, refusal to summon and examine witnesses for the respondent and holding the respondent guilty of a charge of which he had no 35 notice are equally without substance.
It appears that the respondent desired to examine police constables Nos. 178, 506 and 569 to prove that Durgalu was not in the lock up till March 8, 1954.
Police constable No. 506 was examined as a witness for the respondent, and the Enquiry Officer has not accepted his evidence.
The other two witnesses were neither summoned nor examined, but it appears from the record that on September 20, 1954, the respondent promised to produce the witnesses whom he had cited in his defence.
At the hearing dated September 26, 1954, three witnesses were examined by the respondent and the respondent was given another opportunity to secure the presence of the remaining defence witnesses.
On September 27, 1954 police constable 506 was examined and it appears that the respondent expressed his desire not to examine any more witnesses.
In the proceeding of the Enquiry Officer there is a note that "your defence witnesses have been examined and such documents you required have been produced and exhibited".
The respondent subscribed his signature in acknowledgment of the correctness of that recital.
He did not raise any objection in the representation made by him before the Deputy Inspector General of Police when notice was issued on him to show cause why he should not be punished.
In the memo of appeal to the Inspector General of Police, it was submitted by the respondent that the police witnesses were to be summoned by the Enquiry Officer, and that he did not summon them.
It was also submitted that the statement signed by the respondent was only in respect of private witnesses, and not police witnesses.
But the endorsement made by the Enquiry Officer is not susceptible of any such interpretation, which refers to all witnesses for the respondent.
The record does not show that an application for summoning the police witnesses was made and the Enquiry Officer in breach of the rules declined to summon them.
We are in the light of this evidence 36 of the view that the respondent did not, after the examination of police constable No. 506, desire to examine the two police constables Nos. 178 and 569, whom he.
originally wanted to examine.
It was next urged that the findings recorded were not in respect of the charge which the respondent was called upon to answer.
The charge against the respondent was that he had wrongfully confined Durgalu on March 5, 1954, to March 7, 1954, in the police station.
In the statement of facts which accompanied the charge sheet it was stated in express terms that the respondent had not recorded in any of the diaries of the police station that Durgalu was handed over to him on March 5, 1954.
The charge and the "statement of facts" form part of a single document on the basis of which proceedings were started against the respondent and it would be hypercritical to proceed ' on the view that though the respondent was expressly told in the statement of facts which formed part of the charge sheet, that he had failed to record that Durgalu was handed over to him, that ground of reprehensible conduct ' was not included in the charge, and on that account the enquiry was vitiated.
No objection appears to have been raised before the Deputy Inspector General or even the Inspector General of police, that there was infirmity in the charge on that account, and that infirmity had prejudiced the respondent in the enquiry.
The respondent had full notice of the charge against him, and he examined witnesses in support of his defence and made several argumentative representations before the Deputy Inspector General, the Inspector General of Police and the Government of Andhra Pradesh.
In our Judgment the proceedings before the departmental authorities were regular and were not vitiated on account of any breach of the rules of natural justice.
The conclusions of the departmental 37 officers were fully borne out by the evidence before them and the High Court had no jurisdiction to set aside the order either on the ground that the "approach to the evidence was not consistent with the approach in a criminal case," nor on the ground that the High Court would have on that evidence come to a different conclusion.
The respondent had also ample opportunity of examining his witnesses after he was informed of the charge against him.
The conclusion recorded by the punishing authority was therefore not open to be canvassed, nor was the liability of the respondent to be punished by removal from service open to question before the High Court.
The appeal is allowed and the order passed by the High Court is set aside.
The petition filed by the respondent is dismissed.
There will be no order as to costs.
The order as to costs passed by the High Court will stand.
Appeal allowed.

Output:
The respondent was a Sub Inspector of Police in charge 01 a police station.
One D, suspected of having committed an offence, was apprehended by the village Munsif and was sent to the police station.
He was handed over to the respondent.
The respondent declined to give a written acknowledgment of having received 1)and made no entries in the station diary regarding him.
D was confined in the police station for several days without being produced before a Magistrate.
A departmental inquiry was started against him for reprehensible conduct in wrongfully confining D.
The defence set up by him was that D had never been handed over to him because he had escaped while on his way to the police station.
The Deputy Superintendent of Police, who held the enquiry, found him guilty of the charge.
The Deputy Inspector General of Police gave him a show cause notice and after considering his explanation ordered that he be dismissed from service.
On appeal, the Inspector General of Police modified the order of dismissal and converted it into one for removal from service.
The respondent filed a writ petition before the High Court challenging the validity of the order and the High Court quashed the orders.
Held that the High Court had no jurisdiction to interfere with the orders.
The High Court was wrong in its view that in a departmental enquiry the rule followed in a criminal trial that an offence is not established unless proved by evidence beyond reasonable doubt to the satisfaction of the court must be applied and that if such a rule was not applied the high court could set aside the order of the departmental authority in exercise of its power .under article 226 of the constitution.
The High Court does not sit as a court of appeal over the decision of the authority holding a departmental enquiry: 26 it has only to see whether the enquiry has been held by a competent authority and according to the procedure prescribed and whether the rules of natural justice have been observed.
Where there is some evidence which the authority has accepted and which evidence may reasonably support the conclusion that the officer is guilty, it is not the function of the High Court exercising its jurisdiction under article 226 to review the evidence and to arrive at an independent finding on the evidence.
If the enquiry has been properly held the question of adequacy or reliability of the evidence cannot be convassed before the High Court.
In the present case, the proceedings before the departmental authorities were regular, no rules of natural justice were voilated, the conclusions were borne out by the evidence and the respondent had ample opportunity of examining his witnesses.
Therefore, the conclusions of the punishing authority were not open tO be questioned before the High Court.


Input:
Civil Appeal No. 1275 of 1979 Appeal by Special leave from the Judgment and Order dated 891 the 27th March, 1979 of the Allahabad High Court in Civil Misc.
Writ No. 1416 of 1977.
Mr. E.C. Agarwala, Advocate for the Appellant.
Mr. J. P. Goyal, Mr. section R. Jain and Mr. Rajesh, for the Respondent.
The Judgment of the Court was delivered by MISRA, J.
The present appeal by special leave against the judgment of the Allahabad High Court dated 27th of March, 1979 centers round a shop No. 270 situate in Grouceganj, Bulandshahr.
This shop was owned by Ratan Lal and Naubat Singh was a tenant of the shop.
Nabuat Singh died on 31st of August, 1974.
He had no male issue but had four daughters, all of whom were married and were residing with their husbands outside Bulandshahr.
He also left behind his widow who was residing in village Rampur, district Bulandshahr.
He was carrying on some business in the disputed shop during his lifetime.
On his death Ratan Lal, the landlord, filed an application under section 12 read with section 16 of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act 1972 (for short, referred to hereinafter as 'the U.P. Act No. 13 of 1972 ') for a declaration that the shop was vacant and he required the same for his personal need.
The application was resisted by Jaspal Singh, the present appellant, on the ground that he was the heir of Naubat Singh deceased and was in occupation of the disputed shop; that on 4th of July 1973 Naubat Singh before his death executed a will conveying all his rights and properties including the tenancy rights in the disputed shop to him; that he had been helping Naubat Singh in his business s for the last several years and remained in continuous possession of the disputed shop after the death of Naubat Singh and so he was entitled to get the benefit of s.14 of the U.P. Act No. 13 of 1972.
The Rent Control and Eviction officer rejected the application holding that Jaspal Singh the, appellant, had been living with the deceased Naubat Singh and was also assisting him in doing the business in the disputed premises to the full knowledge of the landlord, and so he was entitled to get the tenancy rights under section 14 of the U.P. Act No. 13 of 1972, as it stood prior to its amendment made by U.P. Act No. 28 of 1976.
892 Feeling aggrieved the landlord preferred a revision before the District Judge, Bulandshahr,, which was transferred to the Additional District Judge, who dismissed the same on 8th of July, 1976.
He, however, did not agree with the finding of the Rent Control and Eviction officer that Jaspal Singh was entitled to the benefit of original section 14 of the U.P. Act No. 13 of 1972 but since even after the death of Naubat Singh, on 31st of August 1974 Jaspal Singh had been permitted to continue in possession of the premises he got the benefit of amended section 14, as amended by U.P. Act No. 28 of 1976.
Undaunted by his failures, the landlord filed a petition under article 226 of the Constitution challenging the orders of the two authorities below.
The High Court endorsed the finding of the Additional District Judge that Jaspal Singh could not get the benefit of the unamended section 14 of the U.P. Act No. 13 of 1972 inasmuch as on the date immediately preceding the commencement of the Act, i.e., on 14th July, 1972 Naubat Singh was very much alive and admittedly he was the tenant of the premises in question and as such no question of regularisation of Jaspal Singh as tenant could arise.
The High Court also held that Jaspal Singh was not even entitled to get the benefit of the amended section 14 as it stood amended by the U.P. Act No.28 of 1976, which came into force on 5th of July, 1976.
According to the High Court the benefit of amended section 14 would be available to Jaspal Singh, the appellant, only when he was living in the premises with the consent of the landlord provided that no proceedings for his eviction were pending.
The landlord, however, in the instant case immediately after the death of Naubat Singh started the proceedings for the release of the premises in 1974.
The High Court took exception to the assumption of the learned Additional District Judge regarding the consent of the landlord.
According to the High Court consent of the landlord cannot be assumed or presumed, it must be proved as a fact but there was no proof of the consent of the landlord.
The High Court alter construing the scheme and the various provisions of the Act also held that the appellant could not be an heir on the basis of the will executed by Naubat Singh nor could Naubat Singh execute any will in respect of the tenancy rights.
On these findings the High Court held the possession of Jaspal Singh to be unauthorised.
Consequently, the High Court allowed the writ petition and quashed the orders of the authorities below and directed the Rent Control and Eviction officer to decide the release application afresh in accordance with the law.
Jaspal Singh has not approached this Court by special leave, and the counsel for the appellant has reiterated the same points before us.
893 The first question which calls for consideration is whether Jaspal Singh, the appellant is entitled to the benefit of the unamended and amended section 14 of the rent Act.
It would be appropriate at this stage to read the old unamended and amended section 14 of the Act.
Section 14 as it stood originally in the U.P. Act No. 13 of 1972 read: "14.
Regularisation of occupation of existing tenants.
Notwithstanding anything contained in and general order made under sub section (2) of section 7 of the old Act, any tenant in occupation of a building with the consent of the landlord immediately before the commencement of this Act, not being a person against whom proceedings under section 7 A of the old Act are pending immediately before such commencement, shall be deemed to be in authorised occupation of such building.
Section 14 of the Act as amended by the U.P. Act No. 28 of 1976 reads: "14.
Regularisation of occupation of existing tenants.
Notwithstanding anything contained in this Act or any other law for the time being in force, any licensee (within the meaning of Section 2 A) or a tenant in occupation of a building with the consent of the landlord immediately before the commencement of the Uttar Pradesh Urban Buildings (Regulation of Letting, Rent. and Eviction Amendment) Act, 1976 not being a person against whom any suit or proceeding for eviction is pending before any court or authority on the date of such commencement shall be deemed to be an authorised licensee or tenant of such building.
" A bare perusal of section 14 as it stood prior to its amendment in 1976 would indicate that in order to get the benefit of this section a person must satisfy that (1) he was a tenant in occupation of a building with the consent of the landlord immediately before the commencement of this Act and that he was not a person against whom proceedings under section 7A of the old Act are pending immediately before such commencement, i.e., on 14th July, 1972 (date of commencement of the Act being 15 July, 1972).
Admittedly Naubat Singh was the tenant of the shop on the date immediately preceding the commencement of the Act (i.e., 15th July, 1972) and he was alive 894 and therefore no question of Jaspal Singh being regularised as a tenant arises.
In order to attract section 14 as it stood after the amendment in 1979, Jaspal Singh had to prove that he was a licensee or a tenant with the consent of the landlord immediately before the commencement of the U.P. Act No. 28 of 1976 which came into force on 5th July, 1976.
At the relevant time, however, the application for release filed by the landlord against Jaspal Singh was pending in court of Additional District Judge by way of revision petition wherein the landlord Ratan Lal had contested the claim of tenancy by Jaspal Singh.
The appellant, therefore, could not get the benefit of amended 5.
14 as well and the High Court was right in so holding.
This leads us to the next contention that the appellant is a tenant within the meaning of section 3(a) of Act No. 13 of 1972: "3.
In this Act, unless the context otherwise require (a) "tenant" in relation to a building, means a person by whom its rent is payable, and on the tenant 's death (1) in the case of a residential building, such only of his heirs as normally resided with him in the building at the time of his death; (2) in the case of a non residential building, his heirs:" The appellant would be a tenant within the meaning of section 3 (a) only when he is an heir.
The appellant is not a son but only a nephew of Naubat Singh.
He, however, claims to be an heir on the basis of a will executed by Naubat Singh conveying all his rights and properties including the tenancy rights in respect of the disputed shop in his favour and that he had been helping Naubat Singh in his business for the last several years and continued to remain in possession of the shop even after the death of Naubat Singh.
Accordingly he was entitled to the benefit of section 14.
We have already dealt with the question whether the appellant was entitled to the benefit of section 14 as it stood prior to its amendment in 1976 and also of the amended provisions of section 14 and we have negatived the contention of the appellant.
Therefore, the precise question for consideration would be whether the appellant is an heir within the meaning of section 3(a) on the basis of the will executed in his favour by Naubat Singh.
There seems to be a cleavage of opinion on this point in various High 895 Courts.
The Allahabad High Court in Smt.
Rukmani Devi vs III Addl.
District Judge, Kanpur and Munni Lal vs Smt.
Shiva Devi held that the question as to who are heirs of the deceased tenant, will be decided in accordance with the personal law of the tenant, as this Act does not lay down the list of heirs on whom the tenancy should devolve.
Tn some of the Rent Control Acts list of the heirs has been specified for the purpose of devolution of tenancy on the death of the tenant.
A Division Bench of the Punjab and Haryana High Court in Gulzara Singh vs Smt.
Tej Kaur on the other hand held: "Generally speaking 'heirs ' are those persons whom the law declares to be entitled to the estate of a deceased person, and in common legal parlance the word 'heir ' like the expression 'heir at law ' undoubtedly connotes and is suggestive of a person who succeeds to the estate in case of intestacy under the statutes of succession.
But in common speech this word is also not infrequently used to indicate those who come in any manner to the ownership of any property by reason of the death of the owner or persons upon whom the property devolves on the death of another either by law or by will.
" In other words, it is indicative of persons entitled by will or otherwise to share the estate of the deceased.
It is thus true that technically the word 'heir ' may be distinguish able from the word 'legatee ' but it is also at times used in its more general and comprehensive sense as indicating the person upon whom the property devolves on the death of another and hence when the intent is clear the word 'heir ' may well be treated as equivalent to 'Legatee ' or devised '.
The true scope, effect and significance of this word is, there fore, in all cases a question of intention which has to be determined principally on a consideration of the objection and purpose of the statute in which it is used." Thus, the word 'heir has been construed both in a wider as well as in a narrower sense.
Which sense will be applicable to the facts of a particular case will depend upon the intention and scheme of a particular legislation in which the question occurs.
This will also 896 raise an allied question whether the tenancy rights could be devised by a will.
It will be relevant at this stage to refer to material provisions of the Act.
The word 'family ' has been defined in section 3(g) of the Act: (g) "family" in relation to a landlord or tenant of a building, means, his or her (i) spouse, (ii) male lineal descendants, (iii)such parents, grand parents and any unmarried or widowed or divorced or judicially separated daughter or daughter of a male lineal descendant, as may have been normally residing with him or her, and includes, in relation to a landlord, any female, having a legal right of residence in that building;" Section 11 deals with the prohibition of letting without allotment order.
It reads: "Save as hereinafter provided, no person shall let any building except in pursuance of an allotment order issued under Section 16." Section 12 deals with a deemed vacancy of building in certain cases and reads: "(1) A landlord or a tenant of a building shall be deemed to have ceased to occupy the building or a part thereof (a) he has substantially removed his effects therefrom, or (b) he has allowed it to be occupied by any person who is not a member of his family, or (c) in the case of a residential building, he as well as members of his family have taken up residence, not being temporary residence, elsewhere.
897 (2) In the case of non residential building, where a tenant carrying on business in the building admits a person who is not a member of his family as a partner or a new partner, as the case may be, the tenant shall be deemed to have ceased to occupy the building.
" Section 13 provides for restrictions on occupation of building without allotment or release, and reads: "Where a landlord or tenant ceases to occupy a building or part thereof, no person shall occupy it in any capacity on his behalf, or otherwise then under an order of allotment or release under Section 16, and if a person so purports to occupy it, he shall, without prejudice to the provisions of Section 31, be deemed to be an unauthorised occupant of such building or part.
" Section 15 casts an obligation on the landlord or the tenant to intimate vacancy to the District Magistrate.
Section 16 deals with allotment and release of a vacant building.
Section 20 puts a bar of suit for eviction of a tenant except on specified grounds enumerated therein.
From a survey of these provisions it will be clear that if a tenant parts with possession of the premises in his possession, the same would be treated as vacant.
There are restrictions in the case of a residential building that the tenant will live only with the members of his family and after he has allowed the same to be occupied by any person who is not a member of his family, the tenant shall be deemed to have ceased to occupy the building.
In the case of a non residential building, when a tenant is carrying on business in the building, admits a person who is not a member of his family as a partner or a new partner, as the case may be, the tenant shall be deemed to have ceased to occupy the building.
If a tenant subjects the premises, he is able to ejectment.
Obviously, therefore, there are restrictions placed by the Act on the right of the tenant to transfer or sublet the tenancy rights and he can keep possession of the building or premises for himself and for the purpose of his family, for his business and for the business of his family members.
He obviously, cannot be allowed to transfer a tenancy right.
A fortiori, the scheme of the Act does not warrant the transfer of the tenancy right to be effective after his lifetime.
Thus, the appellant was neither a tenant of the disputed shop nor he was an heir of Naubat Singh, the 898 original tenant.
Besides, on a plain reading of the will it is evident that the will has been executed in respect of other properties including his business but not in respect of the tenancy rights.
The High Court also recorded a finding to the effect that there was no will in respect of the tenancy rights of the disputed shop.
Having given our anxious consideration to the questions involved in the case we see no reason to differ from the finding of the High Court.
The appeal is accordingly dismissed but in the circumstances of the case the parties are allowed to bear their own costs.
M.L.A. Appeal dismissed.

Output:
Section 14 of the U.P. Urban Buildings (Regulation of Letting Rent and Eviction) Act (For short, the Act) as it stood prior to its amendment in 1976 and also after its amendment by the U.P. Act No. 28 of 1976 deals with regularisation of occupation of existing tenants.
The unamended section 14 of the Act provided that a person must satisfy two conditions in order to get the benefit of this section, namely, (i) that he was a tenant in occupation of a building with the consent of the landlord immediately before the commencement of this Act and (ii) that he was not a person against whom proceedings under section 7A of the old Act are pending immediately before such commencement.
The amended section 14 of the Act lays down that a person shall be deemed to be an authorised licensee or tenant of building if (i) any licensee or tenant is in occupation of a building with the consent of the landlord immediately before the commencement of the Act as amended by the U.P. Act No. 28 of 1976 and (ii) that he was not a person against whom any suit or proceeding for eviction is pending before any court or authority on the date of such commencement.
Section 3(a) of the Act provides that a tenant in relation to a building means a person by whom its rent is payable, and on the tenant 's death, in the case of a non residential building, his heirs.
On the death of Naubat Singh a tenant in a shop situated in Bulandshahr, the landlord started eviction proceedings section 12 read with section 16 of the Act for the release of his shop.
The appellant a nephew of the deceased tenant, resisted the eviction application on the grounds: (i) that he was entitled to get the benefit of the amended and/or unamended section 14 of the Act since he had been helping the deceased tenant in his business for the last several years and remained in continuous possession of the disputed shop after his death; and (2) that he was an heir of the deceased tenant on the basis of a will executed by the deceased tenant in his favour and therefore be was a tenant within the meaning of section 3(a) of the Act.
890 The Rent Control and Eviction officer rejected the application holding that the appellant was entitled to get the tenancy rights under the unamended section 14 of the Act.
In revision the Additional District Judge held that, since even after the death of Naubat Singh on 31st August 1974, the appellants been, permitted to continue in possession of the premises, he got the benefit of amend ed section 14 of the Act and therefore dismissed the revision petition.
Thereupon the landlord filed a writ petition under Article 226 in the High Court against the orders of the two authorities below.
The High Court negatived all the contentions of the appellants, allowed the writ petition and quashed the orders of the authorities below and directed the Rent Control and Eviction officer to decide the release application afresh in accordance with the law.
Hence this appeal by special leave.
Dismissing the appeal, ^ HELD: (1) Admittedly Naubat Singh was the tenant of the shop on the date immediately preceding the commencement of the Act, that is, 15th July 1972 and he was alive and therefore no question of the appellant being regularised as a tenant arises.
The appellant also could not get the benefit of amended sec.
14, since at the relevant time the application for release filed by the landlord against the appellant was pending in the court of Additional District Judge by way of revision petition wherein the landlord had contested the claim of tenancy by appellant.
[893 H; 894, B C] (2) The word 'heir ' has been construed both in a wider as well as in a narrower sense.
Which sense will be applicable to the facts of a particular case will depend upon the intention and scheme of a particular legislation in which the question occurs.
[895 G] Smt.
Rukmani vs III Addl.
District Judge, Kanpur (1) and Munni Lal vs Smt.
Shiva Devi 1981 ARC (S.N. 13); referred to Gulzara Singh vs Smt.
Tej Kaur, AIR 1961 Punjab 288, approved.
(3) It is clear from a survey of ss 3(g), 11, 12,13 and 15 of the Act that there are restrictions placed by the Act on the right of the tenant to transfer or sublet the tenancy rights and he can keep possession of the building or premises for himself and for the purpose of his family, for his business and for the business of his family members.
He obviously cannot be allowed to transfer a tenancy right.
A fortiori, the scheme of the Act does not warrant the transfer of the tenancy right to be effective after his lifetime.
[897 G H] (4) In the instant case, the appellant was neither a tenant of the disputed shop nor he was an heir of the deceased tenant since he is not a member of the family of the deceased tenant as defined section 3(g) of the Act.
Besides, on a plain reading of the will it is evident that the will has been executed in respect of other properties including his business but not in respect of the tenancy right.
There fore, this Court sees no reason to differ from the finding of the High Court.
[898 A B]


Input:
Civil Appeal No. 3066 of 1987.
From the Judgment and Order dated 9.7.1986 of the Punjab and Haryana High Court in R.S.A. No. 163 of 1978.
Mala Ram Ghana and Dalveer Bhandari for the Appellant.
M.S. Gujral and Dr. Meera Aggarwal for the Respondents.
The Judgment of the Court was delivered by SABYASACHI MUKHARJI, J.
Special leave granted.
The High Court in its judgment and order dated 9th July, 1986, has observed that the question of limitation has been canvassed before the High Court.
The High Court expressed the view that there was a lot of conflict between the various High Courts on the interpretation of Article 54 of the Limitation Act which governed the point of limitation.
The High Court, however, did not decide this question and expressed the view that due to passage of time prices of lands had gone up sky high and it would be unjust to enforce the agreement of sale entered into.
In other words, it appears that without deciding the question whether the claim of the plaintiff was barred by limitation or not, the High Court exercised its discretion in refusing to grant the relief on the ground that there has been good deal of delay and the parties would suffer if specific performance of the agreement was granted.
It appears from the facts that in this case the major portion of the agreed price had been paid long time ago and the balance thereof was to be paid at the time of execution of the documents was a sum of Rs. 75 only.
It further appears that possession of the premises was with the appellant for all these years in part performance of the agreement.
In those circumstances, the principle upon which the High Court refused to exercise its discretion, in our opinion, was not applicable and such discretion was not proper.
The High Court exercised discretion on wrong principles.
See in this connection Madamsetty Satyanarayana vs G. Yellogi Rao & Two others; , ; Dr. Jiwan Lal & Ors.
vs Brij Mohan Mehra & Another, ; and see also the observation in Debendra Nath Mandal vs Sakhilal Kar & Ors., AIR 1950 Calcutta 526 In that view of the matter, we cannot sustain the exercise of discretion in the manner done by the High Court.
This, however, does 1101 not decide the matter because the High Court declined to go into the facts and decide the question of limitation on merits, the High Court took the view in exercise of its discretion.
Since we are not sustaining the High Court 's exercise of discretion hence the order and the Judgment of the High Court are set aside but the matter is remanded to the High Court for its decision on the merits.
The matter should be disposed of by the High Court as early as possible.
The appeal is accordingly allowed with no order as to costs.
P.S.S. Appeal allowed.

Output:
% Under an agreement of sale entered into by respondents the appellant had paid the major portion of the agreed price long time ago and the balance thereof that was to be paid at the time of execution of the documents was a sum of Rs. 75 only.
Possession of the premises was with the appellant for all these years in part performance of the agreement.
Upon failure of the respondents to execute documents of title, the appellant sought specific performance of the agreement.
The respondents canvassed the question of limitation before the High Court.
The High Court, however, without deciding that question took the view that due to passage of time prices of lands had gone up sky high and it would be unjust to enforce the agreement of sale.
Allowing the appeal by special leave, ^ HELD: The High Court exercised discretion on wrong principles.
Without deciding the question whether the claim of the plaintiff was barred by limitation or not it proceeded to refuse to grant the relief on the ground that there has been good deal of delay and the parties would suffer if specific performance of the agreement was granted.
This principle was not applicable to the facts of the case and the exercise of discretion was not proper.
The matter remanded to the High Court for decision in merits.
[1100G; E; 1101B] Madamsetty Satyanarayana vs G. Yellogi Rao & Ors.
, ; ; Dr. Jiwan Lal & Ors.
vs Brij Mohan Mehra & Anr., ; and Debendra Nath Mandal vs Sakhilal Kar & Ors., AIR 1950 Calcutta 526, referred to.


Input:
ivil Appeal No. 3119 of 1984.
From the Judgment and Order dated 20.9.1982 of the Delhi High Court in S.A.O. No. 181 of 1979.
Dr. Y.S. Chitale and Mukul Mudgal for the Appellant.
R.K. Garg, Gopal Singh, L.R. Singh and Mrs. Vimal Sinha for the Respondent.
The Judgment of the Court was delivered by: PATHAK, CJ.
This is a landlady 's appeal by special leave arising out of proceedings for the ejectment of the respondent tenant.
The appellant let out the premises in suit to the respondent on 1 September, 1962, the rent being stipulated as payable in advance.
With effect from 1 January, 1972 the rent payable was Rs. 515 per month.
On 29 November, 1972, the contractual tenancy was determined by notice.
The re spondent received a notice on 7 May, 1976 calling upon him to pay the arrears of rent.
The rent in fact had been re ceived upto 31 March, 1976 and, therefore, when the notice of demand was served on the appellant, rent for the months of April and May 1976 had fallen due.
The rent was payable in advance.
On 13 May, 1976, the respondent offered a bank draft of Rs.515 to the appellant.
The appellant refused to accept it.
Two days later, the respondent sent the same bank draft by registered post.
The appellant 746 received the bank draft and retained it.
On 7 June, 1976, the appellant wrote to the respondent informing him that his tender was not valid.
On 11 June, 1976, the appellant sent another bank draft for Rs.515 to the landlady, and this draft again was neither encashed nor returned.
On 2 August, 1976, the appellant filed an application for ejectment out of which the present appeal arises.
After filing the application for ejectment, the appellant informed the respondent that both the bank drafts sent by him were lying uncashed.
The Additional Controller, Delhi, dismissed the eviction petition holding that the tenant was not in default.
The Rent Control Tribunal, Delhi, noted that the rent was pay able in advance in accordance with the agreement between the parties, that the respondent had earlier enjoyed the benefit of section 14(2) of the Act, that when the notice of demand was served on 7 May, 1976 the arrears of rent for the months of April and May 1976 had arisen, that the bank draft sent on 13 May, 1976 related to the rent of April 1,976 only, that as the rent for the month of May 1976 had also become due but had not been tendered, the landlady was justified in not accepting the tender, and that when the respondent again sent a draft on 11 June, 1976 to cover the rent for the month of May 1976 the rent for the month of June 1976 had also fallen due but was not tendered.
Holding that the respondent had not tendered the arrears of rent due up to date within two months of the notice of demand, the Tribunal held that the ground of non payment of rent stood estab lished.
The Tribunal noted that the rent had not been paid for the months of April, May and June 1976 in advance for each month and, therefore, the respondent had committed three consecutive defaults.
That being so, the Tribunal observed, the respondent was not entitled to the benefit of section 14(2) again.
In second appeal, the High Court reversed the decision of the Rent Control Tribunal and dismissed the application for ejectment upon the finding that the notice demanding the arrears of rent related to the months of April and May 1976, and as one draft had been sent on 13 May, 1976 and another on 11 June, 1976 representing a total of two months ' rent, and as this rent had been paid within two months of the service of notice of demand, it must be taken that the rent due at the time of the service of notice of demand had been tendered by the respondent to the appellant.
The High Court proceeded on the view that section 14(1)(a) of the Act made out a ground for eviction only where the tenant had neither paid nor tendered the whole of the arrears of rent legally recov erable from him within two months of the date on 747 which a notice of demand for the arrears of rent was served on him by the landlord, the arrears being the rent due on the date of the notice.
In this case, the High Court said, as the notice called for payment of the arrears due for the months of April and May 1976 and the bank drafts were ten dered within the period indicated in the notice, the notice was satisfied and no default could be said to have been committed in terms of section 14(1)(a) of the Act.
Accordingly, the High Court allowed the appeal and dismissed the applica tion for ejectment.
It is urged before us by learned counsel for the appel lant that section 14(1)(a) of the Act contemplates the payment or tender of the whole of the arrears of rent legally recovera ble from the tenant on the date when the demand notice is sent including the rent which has accrued after service of the demand notice.
When the notice was sent on 7 May, 1976, rent for the months of April and May 1976 had become due, and as two months was given for payment of the arrears, it would include also the rent which had accrued during the said period of two months.
We are not satisfied that there is substance in the contention.
The arrears of rent envis aged by section 14(1)(a) of the Act are the arrears demanded by the notice for payment of arrears of rent.
The arrears due cannot be extended to rent which has fallen due after serv ice of the notice of demand.
In this case, the two bank drafts representing the arrears of rent covered by the notice of demand had been tendered within two months of the date of service of the notice of demand.
The High Court is fight in the view taken by it.
We are not satisfied that the construction placed by B.C. Misra, J. in Jag Ram Nathu Ram vs Shri Surinder Kumar, S.A.O. No. 52 of 1975 decided on 28 April, 1976 and in S.L. Kapur vs Dr. Mrs. P.D. Lal, All India Rent Control Journal 1975 p. 322 lays down the control law on the point.
In the result, the appeal fails and is dismissed but there is no order as to costs.
P.S.S. Appeal dismissed.

Output:
The respondent tenant fell into arrears of rent for two months consecutively.
The rent was payable in advance.
He was served with a notice of demand, within seven days of which he sent a bank draft purporting to be the rent for the first month, and within a month another bank draft for the like amount.
The landlady neither encashed nor returned them.
After the notice period she filed an application for his ejectment.
The Rent Controller held that the tenant was not in default.
The Tribunal, however, found that when the notice of demand was served the arrears of rent for the two months had arisen, that the bank draft sent thereafter related to the rent for the first month only, that as the rent for the second month had also become due but had not been tendered, the landlady was justified in not accepting the tender, and that when the respondent again sent a draft for the second month the rent for the third month had also fallen due but was not tendered.
It thus took the view that the respondent had not tendered the arrears of rent due up to date within two months of the notice of demand, and held that the ground of non payment of rent stood established.
Allowing the appeal, the High Court took the view that section 14(1)(a) of the Delhi Rent Control Act, 1958 made out a ground for eviction only where the tenant had neither paid nor tendered the whole of the arrears of rent legally recov erable from him within two months of the date on which a notice of demand was served on him by the landlord, the arrears being the rent due on the date of the notice.
As in the instant case, the notice called for payment of the arrears due for the two months and the bank drafts were tendered within the period indicated in the notice, the notice was satisfied.
Dismissing the appeal by special leave, the Court, 745 HELD: The arrears of rent envisaged by section 14(1)(a) of the Delhi Rent Control Act are the arrears demanded by the notice for payment.
The arrears of rent due cannot be ex tended to rent which has fallen due after service of the notice.
[747DE] In the instant case, the two bank drafts representing the arrears of rent covered by the notice of demand had been tendered within two months of the date of service of the notice.
The High Court was, therefore, right in the view taken by it.
[747DE] Jag Ram Nathu Ram vs Shri Surinder Kumar, S.A.O. No. 52 of 1975 and S.L. Kapur vs Dr. Mrs. P.D. Lal, All India Rent Control Journal, [1975] 322, overruled.