Appeal No. 1940 of 1967.

Appeal by special leave from the judgment and order dated April 17, 27, 1967 of the Gujarat High Court in Civil Revision Application 328 of 1967.

section T. Desai and I. N. Shroff for the appellants.

M. P. Amin, P. M. Amin, P. N. Dua and J. B. Dadachanji, for respondent No. 1.

R. P. Kapur, for respondents Nos. 2 and 3.

The Judgment of the Court was delivered by Shah, J.

By insistence upon procedural wrangling in a com paratively simple suit pending in the Court of Small Causes at Ahmedabad the parties have effectively prevented all progress in the suit during the last six years.

A building in the town of Ahmedabad used as a cinematograph theatre belonged originally to Messrs. Popatlal Punjabhai.

estate of the owners and on August 19, 1954, the receivers ,estate of the owners and on August 19, 1954, The receivers granted a lease of the theatre on certain terms and conditions to two persons, Raval and Faraqui.

By an agreement dated November 27, 1954, between Raval and Faraqui on the one hand and Messrs. Filmistan Distributors (India) Private Ltd. hereinafter called "Filmistan on the other hand, right to exhibit cinematograph films was granted to the latter on certain terms and conditions.

"Filmistan" instituted suit No. 149 of 1960 in the Court of the Civil Judge (Senior Division) at Ahmedabad against Raval and Faraqui and two other persons claiming a declaration that it 437 was entitled pursuant to the agreement dated November 27, 1954, to exhibit motion pictures in the theatre.

By an order dated December 1, 1960 the suit was disposed of as compromised.

It was inter alia agreed that Raval and Faraqui were bound and liable to allow Filmistan to exercise its "exhibition rights" in the theatre; that Raval and Faraqui, their servants and agents were not to have any right to exhibit any picture in contravention of the terms and conditions of the agreement dated November 27, 1954; and that Raval and Faraqui shall "execute and register" an agreement in writing incorporating the said agreement with the variation as to rental.

Pursuant to this agreement, a fresh agreement was executed on December 1, 1960.

On September 1, 1963, Filmistan filed suit No. 1465 of 1963 in the Court of Small Causes at Ahmedabad, inter alia, for a declaration that as sub lessee or as lessee under law it was entitled to obtain and remain in possession of the theatre and to exhibit cinematograph films and to hold "entertainment performances" etc.

in the theatre, and that one Shabeer Hussain Khan Tejabwala had no right, title or interest in the theatre, that the defendants in the suit be ordered to hand over vacant and peaceful possession of the theatre, and the defendants, their servants and agents be restrained by an injunction from interfering directly or indirectly with its rights to obtain and remain in possession of the theatre or any part thereof and to exercise its right of exhibiting "motion pictures" and entertainment performances etc.

This suit was filed against the receivers in insolvency of the owners of the theatre, against Raval and Faraqui, against Tejabwala and also against Baldevdas Shivlal who claimed to be the owner of the theatre.

The suit was based on the claim by Filmistan as lessees or sub lessees of the theatre and was exclusively triable by the Court of Small Causes by virtue of section 28 of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947.

Three sets of written statements were filed against the claim made by Filmistan, but no reference need be made thereto, since at this stage in deciding appeal the merits of the pleas raised by the defendants are not relevant.

After issues were raised on June 20, 1966, the plaint was amended and additional written statements were filed by the Defendants.

The learned Judge was then requested to frame three additional issues in view of the amended pleadings : the issues were: 1.

Whether in view of the said consent decree in suit No. 149 of 1960 defendants Nos. 5 and 6 are debarred on principles of res judicata from agitating the question that the said document dated November 27, 1954 as confirmed by their letter dated January 31, L13 Sup.

CI/69 17 438 1955 and further confirmed by document dated December 1, 1960 is not a lease? 12.

Whether in view of the said consent decree, defendants 5 and 6 are estopped from contending and leading any evidence and putting questions in crossexamination of plaintiffs witnesses to show that the said document dated November 27, 1954 as confirmed by their letter dated January 31, 1955 and further confirmed by document dated December 1, 1960 is not a lease ? 13.

Whether in respect of the terms of the said consent decree as also of the said document dated November 27, 1954, as confirmed by their letter dated January 31, 1955 and further confirmed by document dated December 1, 1960 defendants Nos. 5 and 6 are debarred from leading any evidence of the, plaintiffs witnesses in view of section 92 of the Evidence Act ?" In drawing up the additional issues not much care was apparently exercised : whether a party is entitled to lead evidence or to put questions in cross examination of the plaintiff 's witnesses cannot form the subject matter of an issue.

Filmistan then applied to the Court of Small Causes for an order that issues Nos. 11, 12 & 13 be tried as preliminary issues.

The learned Judge observed that the issues were not purely of law, that in any event the case or any part thereof was not likely to be disposed of on these issues, and that ordinarily in "appealable cases" the Court should, as far as possible, decide all the issues together and that piecemeal trial might result in protracting the litigation.

He also observed that the issues were not of law going to the root of the case and were on that account not capable of being decided without recording evidence.

A revision application against that order was dismissed in limine by the High Court of Gujarat.

When the case reached hearing and the evidence of a representative of Filmistan was.

being recorded, counsel for the defendants asked in cross examination the question whether the "agreement between the plaintiff and defendant Nos. 5 and 6 was a commercial transaction and was not a lease ?" The question was objected to by counsel appearing for Filmistan.

Thereafter elaborate arguments were advanced and the Trial Judge passed an order disallowing the objection.

The objection to the question raised by Filmistan was not that it related to a matter to be decided by the Court and on which the opinion of witnesses was irrelevant.

The objection was raised as 439 an attempt to reopen the previous decision given by the Trial Judge refusing to try issues Nos. 11, 12 & 13 as preliminary issues.

Counsel for Filmistan contended that an enquiry into the nature of the legal relationship arising out of the agreement dated December 1, 1960 "was barred by the principle of res judicata and estoppel under the provisions of section 92 of the Evidence Act", since the question was already concluded by the consent decree in suit No. 149 of 1960.

The Trial Judge observed that he had carefully gone through the consent decree and the registered agreement dated December 1, 1960, and he found that the consent decree had not decided that the transaction between the parties of the year 1954 was in the nature of a lease; that in the plaint in the earlier suit it was not even averred that the rights granted were in the nature of leasehold rights; that suit No. 149 of 1960 was for declaration of the rights of Filmistan to exhibit motion pictures, in the theatre under the agreement dated November 27, 1954, and for an injunction restraining the defendants from violating the said rights of Filmistan under the agreement; and that the agreement dated December 1, 1960 was "not plain enough to exclude the oral evidence of the surrounding circumstances and conduct of the parties to explain its terms and language".

Accordingly he held that the question asked in cross examination of the witnesses for Filmistan intended to secure disclosure of the surrounding circumstances and conduct of the parties in order to show in what manner the language of the document was related to the existing facts, could not be excluded.

The Court also rejected the contention that there was any bar of estoppel, and held that evidence as to the true nature of the transaction was not inadmissible by virtue of section 92 of the Evidence Act.

Filmistan feeling dissatisfied with the order invoked the revisional jurisdiction of the High Court of Gujarat under section 115 of ' the Code of Civil Procedure.

The revision petition was entertained and elaborate arguments were advanced at the Bar.

The High Court referred to a number of authorities and observed that the correctness of the findings of the Trial Court on issues Nos. 12 and 13 may not be examined in exercise of the powers under section 115 of the Code of Civil Procedure.

The Court proceeded to, observe : "The question then arises for consideration whether in fact the subordinate Court has decided the question of res judicata", and that "it is true that the jurisdiction of the Court of mall Causes to decide disputes between a tenant and his landlord and falling within the purview of section 28 of the Bombay Rent Control Act is derived from section 28 of the said Act, but at the same time if an issue is in fact barred by res judicata, then the Court has no 440 jurisdiction on principles of res judicata to go into that question or to decide that question over again to the extent to which the Court, viz., the trial court in the instant case, proposed to go into that question and allow the whole question, that was closed once for all by consent decree of December 1, 1960, to be reopened, it is proposing to exercise the jurisdiction which is not vested in it by law.

It is not open to any Court of law to try an issue over again or reopen the same if an earlier decision operates as res judicata.

Once the jurisdiction of the Court has been taken away, any proposal to reopen the question closed by the earlier decision would be exercise of jurisdiction which is not vested in the Court by law and to that extent the decision would become revisable, even if it is the decision as to the res judicata of an issue", and concluded "It is not open to me in revision at this stage to express any opinion about the rights and contentions of the parties with reference to the agreement of December 1, 1960.

But the only thing that can be said is that so far as the agreement of November 27, 1954, is con cerned, it must be held, in view of the consent decree of December 1, 1960, that that document of November 27, 1954, created a lease. .

The consent decree must be held to create a bar of res judicata as far as the question of document of November 27, 1954, creatin g a lease is, concerned.

The learned Judge will not proceed with the trial".

By section 115 of the Code of Civil Procedure the High Court is invested with power to call for the record of any case decided by any Court subordinate to such High Court and in which no appeal lies thereo, if such subordinate court appears (a) to have exercised a jurisdiction not vested in it by law, or (b) to have failed to exercise a jurisdiction so vested, or (c) to have acted in the exercise of its jurisdiction illegally or with material irregularity, and to make such order in the case as it thinks fit.

Exercise of the power is broadly subject to three important conditions (1) that the decision is of a Court subordinate to the High Court; (2) that there is a case which has been decided by the subordinate Court; and (3) that the subordinate Court has exercised jurisdiction not vested in it by law or to have failed to exercise a jurisdiction so vested, or to have acted in the exercise of its jurisdiction illegally or with material irregularity.

441 In the present case the Court of Small Causes had only decided that a question seeking information about the true legal relationship arising out of the document could be permitted to 'be put to the witnesses for Filmistan.

The Court gave no finding expressly or by implication on the issue of res judicata or any other issue.

In the view of the Trial Court the question whether the legal relationship arising out of the agreement dated December 1, 1960 was in the nature of a lease or of other character had to be decided at the trial and the previous judgment being a judgment by consent , 'could not operate as res judicata", for, it was not a decision of the Court, and that the consent decree in suit No. 149 of 1960 had not decided that the agreement dated March 27, 1954, was of the nature of a lease, and that in the plaint in that suit it was not even averred that it was a lease.

The Trial Judge in overruling the objection did not decide any issues at the stage of recording evidence : he was not called upon to decide any issues at that stage.

The observations made by him obviously relate to the arguments advanced at the Bar and can in no sense be regarded even indirectly as a decision on any of the issues.

But the High Court has recorded a finding that the agreement dated November 27, 1954, created a lease and that the consent decree operated as res judicata.

A consent decree, accord ing to the decisions of this Court, does not operate as res judicata, because a consent decree is merely the record of a contract between the parties to a suit, to which is superadded the seal of the Court.

A matter in contest in a suit may operate as res judicata only if there is an adjudication by the Court : the terms of section II of the Code leave no scope for a contrary view.

Again it was for the Trial Court in the first instance to decide that question and there after the High Court could, if the matter were brought before it by way of appeal or in exercise of its revisional jurisdiction, have decided that question.

In our judgment, the High Court had no jurisdiction to record any finding on the issue of res judicata in a revision application filed against an order refusing to uphold an objection to certain question asked to a witness under examination.

The true nature of the order brought before the High Court and the dimensions of the dispute covered thereby apparently got blurred and the High Court proceeded to decide matters on which no decision was till then recorded by the Trial Court, and which could not be decided by the High Court until the parties had opportunity to lead evidence thereon.

It may also be observed that by ordering that a question may properly to put to a witness who was being examined, no case was decided by the Trial Court.

The expression "case" is not limited in its import to the entirety of the matter in dispute in an action.

442 This Court observed in Major section section Khanna vs Brig.

F. J. Dillon(1) that the expression "case" is a word of comprehensive import : it includes a civil proceeding and is not restricted by anything contained in section 115 of the Code to the entirety of the proceeding in a civil court.

To interpret the expression "case" as an entire proceeding only and not a part of the proceeding imposes an unwarranted restriction on the exercise of powers of superintendence and may result in certain cases in denying relief to the aggrieved litigant where it is most needed and may result in the perpetration of gross injustice.

But it was not decided in Major section section Khanna 's case(1) that every order of the Court in the course of a suit amounts to a case decided.

A case may be said to be decided, if the Court adjudicates for the purposes of the suit some right or obligation of the parties in controversy; every order in the suit cannot be regarded as a case decided within the meaning of section 115 of the Code of Civil Procedure.

The order passed by the High Court is set aside and the Trial Court is directed to proceed and dispose of the suit.

We trust that the suit will be taken up early for hearing and disposed of expeditiously.

We recommend that the form of the issues Nos. 11, 12 and 13 will be rectified by the learned Trial Judge.

Filmistan will pay the costs of the appeal in this Court and in the High Court.

G.C. Appeal allowed.

Summary: R and F who held a cinema building in Ahmedabad on lease entered on November 27, 1954 into an agreement with respondent No. 1 giving the latter a right to exhibit cinematograph films in the said building.

Summary: Later respondent No. 1 filed 'suit No. 149 of 1960 to assert his right to exhibit films in the building.

Summary: The suit resulted in a compromise decree.

Summary: In pursuance of the compromise a further agreement dated December 1, 1960 was executed between the parties.

Summary: However in 1963 respondent No. 1 again filed a suit claiming as a sub lessee or as lessee a right to exhibit films in the said building and praying that the defendants be restrained from interfering with that right.

Summary: The suit was filed under section 28 of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 in the Court of Small Causes.

Summary: In this suit respondent No. 1 asked the court to try additional issues Nos. 11, 12 and 13 as preliminary issues.

Summary: In issue No. 11 the question raised was whether the consent decree in the earlier suit operated as res judicata so that R & F could not question that the agreements between them and respondent No. 1 constituted a lease.

Summary: Issue No. 12 raised the question whether in view of the consent decree R & F were estopped from leading evidence and asking questions in cross examination to show that the said agreements did not constitute a lease.

Summary: Issue No. 13 raised the question whether section 92 of the Indian Evidence Act debarred R & F from leading evidence to the effect that the documents in question did not constitute a lease.

Summary: The Trial Court refused to try these as preliminary issues and its order was upheld by the High Court.

Summary: At the hearing of the case when the counsel for the defendants sought to ask a witness for respondent No. 1 whether the agreement dated November 27, 1954 was a commercial transaction and not a lease respondent No. 1 objected to the question.

Summary: The objection was disallowed by the trial court.

Summary: In revision under section 115 of the Code of Civil Procedure the High Court did not interfere with the trial court 's order in respect of issues Nos. 12 and 13.

Summary: In respect of issue No. 11, the High Court held that the agreement dated November 27, 1954 must in view of the consent decree in suit No. 149 of 1960 be held to be a lease, and that the consent decree created a bar of res judicata in respect of the issue whether the said agreement created a lease.

Summary: The defendants appellants appealed to this Court.

Summary: HELD : (i) The High Court had no jurisdiction to record any finding on the issue of res judicata in a revision application filed against an order refusing to uphold an objection to certain question asked to a witness under examination.

Summary: The Court erred in proceeding to decide matters on which no decision was till then recorded by the trial court and which could not be decided by the High Court until the parties had opportunity of leading evidence thereon.

Summary: (ii) By ordering that a question may properly be put to a witness who was examined, no case was decided by the Trial Court within the meaning of section 115 of the Code of Civil Procedure.

Summary: The expression 'case ' is not limited in its import to the entirety of the matter in dispute in a proceeding.

Summary: Such an interpretation may result in certain cases in denying relief to the aggrieved litigant where it is most needed.

Summary: But equally, it is not every order of the court in the course of a suit that amounts to a case decided.

Summary: A case may be said to be decided only if the court adjudicates, for the purpose of the suit, some right or obligation of the parties in controversy.

Summary: [441H 442C] Major section section Khanna vs Brig.

Summary: F. J, Dillon, [1964] 4 S.C.R. 409, referred to.

Summary: (iii) A consent decree, according to the decisions of this Court, does not operate as res judicata, because a consent decree is merely the record of a contract between the parties to, a suit, to which is superadded the seal of the court.

Summary: A matter in contest in a suit may operate as res judicata only if there is an adjudication by the court : the terms of section 1 1 of the Code leave no scope for a contrary view.


ivil Appeal No. 4649 of 1989.

From the Judgment and Order dated 26.7.1988 of the Allahabad High Court in Review Application No. 27(W) of 1988.

Anil Dev Singh and Mrs. section Dikshit for the Appellants.

Yogeshwar Prasad, Vijay Hansaria, Sunil K. Jain, S.K. Jain for the Respondents.

The Judgment of the Court was delivered by VENKATARAMIAH, CJ.

The Respondent, Arun Govil had been granted a permanent commission in the Indian Air Force and was working as a Pilot Officer.

In the year 1972 he was declared unfit by a Medical Board and was, therefore, inval idated from I.A.F. The Government of India issued a scheme for the benefit of ex military officials.

The State of Uttar Pradesh also adopted the same scheme.

Under that scheme the ex military officials were appointed on Contract basis for a fixed term which could be extended from time to time subject to the suitability of the official concerned but not beyond 58 years of age.

Pursuant to the said scheme the State of Uttar Pradesh appointed the respondent as the Secretary, Zila Sainik Board, Unnao on 20th of August, 1979.

Paragraph 2 of the said order of appointment issued on 20th August, 1979 reads thus: "The appointment shah be on contract for a period of one 241 year w.e.f.

the date of assumption if it is not terminated earlier by giving a one month 's notice by the Hon 'ble Gover nor or on paying one month 's salary in lieu thereof or by giving one month 's notice, by the Officer.

" The respondent was required to furnish his acceptance of the terms and conditions contained in the said order includ ing the above term relating to the period of appointment and on his accepting the terms and conditions he was appointed as the Secretary in the District Soldiers Board in the district of Unnao in the State of Uttar Pradesh '.

The said term was extended retrospectively, first upto 20th August, 1982 by an order passed in September, 1981 and it 'was again extended upto 31st March, 1983 by an order made in February, 1983.

Again the term was extended upto 30th of August, 1985 by an order dated 1st June, 1983.

All these orders of exten sion were couched almost in the same language.

The relevant part of the last of such orders, namely, the order dated 1st June, 1983 reads as follows: "Sir, With reference to your letter No. 1020/Sa.

A.D.M./141, Dated 31.3.1982 on the above subject I am directed to say that the terms of the officers mentioned under para 2 who were appointed w.e.f.

the date mentioned in para 4 (has expired).

The Governor is therefore pleased to accord his sanction to extend the period of the contract upto the period mentioned under para 5 subject to the condi tion that their service tenure shall expire on completion of 58 years of age in case the same is completing earlier during the extended period.

No. Name and Date of Date of Recommen place of appoint expiry dation appoint ment of con extend ment tract the contract 1to 12 13 Ex Pilot 21.8.79 31.3.83 1.4.83 Arun Govil, 30.8.85 Unnao 14 to 21 242 2.

During the extended period of the contract conditions of service of officers shall remain same as are mentioned under their Appointment Order.

Letters of accept ance of relevant conditions of service to be obtained from these officers must be submitted to the Government at an early date.

" It is thus seen that the appointment of the respondent was indisputably in the nature of contract and under the last order of appointment refened to above he was entitled to continue in office in the post in question till 30th of August, 1985 and not beyond that date unless there was a further extension.

But on 29.3.1985 the service of the 1st Respondent was terminated by the issue of a notice and payment of one month 's salary.

The order was to be effective from the date of receipt of termination order and no charges were men tioned therein against the 1st respondent.

The respondent aggrieved by the said order of termina tion filed a Writ Petition on the file of the High Court of Allahabad in Writ Petition No. 3 164 of 1985.

A Division Bench of the High Court found that the order of termination that had been served on the respondent was an invalid one since it had been issued on the basis of Vigilance Report and no opportunity had been given to the respondent to show cause why such action should not be taken against him.

It is not necessary to set out all the reasons given by the High Court for setting aside the order of termination.

The High Court, however, held that the termination order could not be sustained and the Writ Petition was liable to be allowed.

The High Court further issued a direction to the effect that the respondent was entitled to salary upto the period he was entitled to remain in service.

In the instant case the respondent was entitled to be in service till 30th of Au guSt, 1985 unless there was a further extention.

In the Penultimate paragraph of the judgment the High Court further stated: "It is open for the opposite parties to con sider the claim of the petitioner for continu ation in service or of fresh appointment and no observations in this regard are being made by this Court.

" The judgment was delivered on 24.3.1988.

243 The respondent who was not satisfied by the order allow ing the Writ Petition as stated above preferred a Review Petition before the High Court contending that he was enti tled to be reinstated in service on the pronouncement of the Judgment on 24.3.

1988 notwithstanding the fact that his term of office had come to an end on 30th of August, 1985 as stated above and no further order of extention had been passed by the Governor.

In support of the Review Petition the respondent relied on an interim order which had been passed by the High Court during the pendency of the Writ Petition on 10th of July, 1986 which reads thus: "The post will be kept vacant and in case the petitioner succeeds in his Petition it would be made available forthwith to the petitioner by way of an appointment.

" The contention of the respondent was that the said interim order entitled him to be reinstated in service irrespective of the fact whether the Governor had extended the period of his appointment beyond 30th of August, 1985.

The High Court allowed the Review PetitiOn on 26.7.1988 and made an order reinstating the Respondent in service which reads as follows: "This is an application for review of our Judgment dated 24.3.1988 by which we allowed the Writ Petition filed by the Petitioner with certain directions.

It seems that when the writ petition was decided, our attention was not drawn towards the interim order dated 10.7.1986 passed by learned single Judge in which it was provided that one post will be kept vacant and in case the petitioner suc ceeds in his petition it would be made avail able forthwith to the petitioner by way of his appointment.

The petitioner has pointed out inaccuracy in the second paragraph of the operative part of the judgment which says that: "It is open for the opposite parties to consider the claim of the petitioner for continuation in service or of fresh appoint ment and no observations in this regard are being made by this Court."" Aggrieved by the above order made on review which di rected the State of Uttar Pradesh, the appellant herein, to reinstate the respondent in service, the State Government has filed this apeal by special leave.

It is not disputed that the scheme under which the respond ent 244 had been appointed provided for an appointment by contract for a specified term which could be extended from time to time and that the term of the respondent had been extended on different occasions after his first appointment and he was not entitled to continue in service beyond 30th August, 1985 unless there was a further extension.

Clauses 6 & 7 of the first order of appointment stated that the respondent was entitled to the leave admissible for temporary employees and for other matters he was to be treated as a temporary Government employee during the tenure of his office.

The appellant government never accepted the position that the respondent was entitled to be treated as a regular employee who had a vested right to continue to hold the post till he attained 58 years of age.

The true position that emerges from the material on record is that the respondent was employed only under a contract which specified the term of his appointment which extended only Upto 30th of August, 1985.

Since it is admitted that no order of 'extension had been sanctioned by the Governor beyond 30th August, 1985, the respondent was entitled to the salary and allowances due to him till 30th of August, 1985 if the order of termination of service served on him on 29.3.

1985 was found to be an invalid one.

It is on this basis that the High court had while setting aside the order of termination by its order dated 24.3.1988 directed that the respondent was entitled to salary upto the period he was entitled to remain in service and further observed that it was open for the opposite parties to consider the claim of the respondent for continu ation in service or of fresh appointment and no observations in this regard were made by the Court.

A reading of the Judgment of the High Court dated 24.3.1988 shows that the respondent had not urged before the High Court that the order of appointment issued in his case was not in the nature of a contract and the subsequent orders extending his period of appointment till 30th of August, 1985 were liable to be ignored and that he should be treated as a person regularly appointed in Government service entitled to con tinue till he completed the age of 58 years.

Even the order passed on Review on 26.7.1988 does not make out that the respondent had put forward at that stage such a case.

His only case was that the interim order that had been passed on 10.7.86 entitled him to be reinstated in service even though there was no order of extension of service.

If the respond ent was really aggrieved by the Judgment dated 24.3.1988 he should have preferred an appeal before this Court and that he did not do but on the other hand he proceeded to file a Review Petition claiming to be reinstated in service on the slender ground that the interim order conferred on him a right to continue in service beyond 30th of August, 1985 even though his service had not been extended by the Gover nor of Uttar Pradesh.

245 In the circumstances, we feel that while the High Court was right in disposing of the Writ Petition on 24.3.

1988 declaring that the respondent was entitled to salary upto the period he was entitled to remain in service, i.e., 30th August, 1985 it was not right in making an order on Review on 26.7.1988 relying upon the interim order dated 10.7.1986 which in the circumstances could not have the effect of controlling the jurisdiction of the High Court to dispose of the Writ Petition on merits as it did on 24.3.1988.

We, therefore, set aside the order dated 26.7.1988 passed by the High Court on review and restore the Judgment dated 24.3.1988 passed in the Writ Petition.

The interim order did not and could not amount to a direction that the respondent was entitled to be reinstated in service irrespective of the merits of the case and the extent of his right.

The order passed on review is wholly unsustainable.

We, however, make it clear that what we have stated above does not affect in any way what the High Court has stated in the penultimate paragraph of the Judgment dated 24.3.1988 which reads thus: "It is open for the opposite parties to con sider the claim of the petitioner for continu ation in service or the fresh appointment and no observations in this regard are being made by this Court.

" The appeal is accordingly allowed.

No costs.

T.N.A. Appeal allowed.

Summary: Pursuant to a scheme enacted for the benefit of ex military officials the appellant State appointed the re spondent on 20.8.1979 as Secretary Zila Sainik Board on contract basis for a specified period which was further extended upto 30.8.1985.

Summary: On 29.3.1985 the services of the respondent were terminated.

Summary: The respondent filed a writ petition before the High Court challenging the termination order.

Summary: By an order dated 24.3.1988 the High Court set aside the termination order holding that the respondent was entitled to salary upto the period he was entitled to remain in service i.e. upto 30.8.1985.

Summary: The respondent preferred a Review Petition before the High Court contending that pursuant to the interim order dated 10.7.1986 passed by the High Court he was entitled to be reinstated in service even though there was no order of extension of service.

Summary: By an order dated 26.7.1988, the High Court allowed the Review Petition directing the appellant State to reinstate the respondent in service.

Summary: Hence this appeal by the State.

Summary: Allowing the appeal and setting aside the order passed on Review, this Court, HELD: 1.

Summary: In the instant case, the appointment of the respondent was indisputably in the nature of contract and under tile order of appointment he was entitled to continue in office in the post in question till 30th of August, 1985 and not beyond that date unless there was a further exten sion.

Summary: Since no order of extension had been sanctioned by 240 the Governor beyond 30th August, 1985 the respondent was entitled to the salary and allowances due to him till 30th of August, 1985 if tile order of termination of service was found to be an invalid one.

Summary: [242B; 244C] 1.1 The High Court was right in disposing of the Writ Petition on 24.3.1988 declaring that the respondent was entitled to salary upto the period he was entitled to remain in service, i.e. 30th August, 1985.

Summary: But it was not right in making an order on Review on 26.7.1988 relying upon the interim order dated 10.7.1986 which ' in the circumstances could not have the effect of controlling the jurisdiction of the High Court to dispose of the Writ Petition on merits as it did on 24.3.1988.

Summary: [245A B] 2.

Summary: The interim order passed by the High Court did not and could not amount to a direction that the respondent was entitled to be reinstated in service irrespective of the merits of the case and the extent of his right.

Summary: The order passed on review is wholly unsustainable.


: Criminal Appeal No 133 of 1975.

Appeal from the Judgment and order dated 3 2 1978 of the Andhra Pradesh High Court in Crl.

A. No. 628/73.

R. Nagarathnam for the Appellant.

P. Parmeswara Rao and G. N. Rao for the Respondent.

The Judgment of the Court was delivered by CHINNAPPA REDDY, J.

This appeal has been filed under Section 2(a) of the .

The appellant was acquitted by the learned Additional Sessions judge, Chittoor of an offence under Section 302, Indian Penal Code.

The acquittal was reversed by the High Court of Andhra Pradesh and the appellant was convicted under Section 302 Indian Penal Code and sentenced to suffer imprisonment for life.

365 The deceased Subhadramma was the wife of the appellant.

They were married about one and a half years before the occurrence.

About three months before the occurrence the deceased gave birth to a female child in the house of the accused at Cherlopalle.

After the ninth day the mother and child, according to customary practice, were taken by the mother of the deceased to her house at Krishna Kalva.

Cherlopalle is about 25 miles from Krishna Kalva.

The accused used to visit his wife and often used to stay in the house of the deceased 's mother.

After about one and a half months the, accused asked his mother in law and brother in law to send his wife to his place.

They replied that she had only delivered a child recently and that she would be sent to her husband 's house in the fifth month.

On 18th December, 1972, according to the case of the prosecution the accused once again requested his mother in law to send his wife to his house.

This time he also brought with him P.W. 8, an elderly gentleman from his village.

His mother in law P.W. 2 told him that she would send the girl in the fifth month as she had not yet regained her health after delivery.

The accused and P. W. 8 went away.

That evening the accused again came to the house of his mother in law.

After dinner all of them went to sleep.

The house consisted of only one room.

The accused, the deceased, her brother P.W. 1, her mother P.W. 2 and her grand mother P.W. 3 were all sleeping in the room.

In the middle of the night P.Ws. 1, 2 and 3 were awakened by the cry "Amma" raised by Subhadramma.

On waking up they saw the accused sitting by the side of the deceased with a knife in his hand.

They found the deceased bleeding profusely from the left side of her chest.

P.W. 1 put his foot on the hand in which the accused was holding the knife.

The accused dropped the knife which was then picked up by the grand mother P.W. 3.

Attracted by the cries raised by the P.Ws. 1 to 3, the neighbourers P. Ws. 4, 5, 6 and others came there.

They caught hold of the accused and tied him to a pole in front of the house by means of a rope.

Some of the villagers who had gathered there also gave a beating to the accused P.W. proceeded to the house of P.W. 9 the Village Munsif and reported the occurrence to him.

P. W. 1 affixed his thumb impression on the report exhibit P. 1 prepared by P. W. 9.

P. W. 9 then proceeded to the house of P.W. 1 where the blood stained knife M.O. 1 was handed over to him.

Thereafter, P. W. 9 prepared his own report exhibit P. 4 and sent it alongwith exhibit P. 1 and M.O. 1 to the Police Station at Renigunta.

P. W. 14, the Sub Inspector of Police registered the First Information Report at 5 A. M. on 19th December, 1972 and went ahead with the further investigation which was later taken over by the Inspector of Police P.W. 15.

When the Police officers went to the village, they 366 found the accused tied to a pole.

They arrested him and found that he had injuries on his person.

They got him examined by a Doctor.

After holding the inquest the dead body was sent for postmortem examination.

The Medical Officer, P. W. 12 who conducted the autopsy, found on the dead body a stab wound over the left axila 6 cms.

below the arm pit 1.75 cms x 0.5 cm.

nearly horizontal.

The stab injury had gone through the third intercostal space and through the upper lobe of the left lung in an upward and medial direction.

The upper lobe of the left lung had been cut through and through,, and had collapsed.

P. W. 13 the Medical officer who examined the accused found several abrasions and contusions on the person of the accused.

There was no fracture.

After completing the investigation the Police laid a chargesheet against the accused and he was duly tried.

The plea of the accused was one of denial.

In the Committing Court the accused was content with a bare denial but in the Court of Sessions he stated that he went to the house of his mother in law at about 10 p.m.

On 18th December, 1972.

P. Ws. 1 and 2 taunted him saying "we are maintaining you and your wife, yet you come at any time you like` '.

They insulted him.

There was an altercation.

P.W. 3 hit him with a stone near his left eye.

P. W. 1 beat him with a stick two or three times.

He felt giddy and was about to lose consciousness.

P. W. 1 came upon him with a knife to stab him.

The deceased intervened and interposed herself between P.W. 1 and the accused.

She received a stab injury.

Seeing his wife injured, he fell down unconscious.

He regained consciousness next morning.

The Learned Sessions Judge held that the prosecution had failed to establish any motive and that the evidence of the prosecution witnesses was 'discrepant, conflicting and improbable. ' He thought that the prosecution had made an attempt to improve its case which was originally based on circumstantial evidence to made it appear as if P.W. 3 had also seen the stabbing.

He commented on the failure of the Police to seize the mat or bedding on which the deceased was sleeping.

He referred to the evidence of me Doctor who stated that the injury found on the deceased could have been caused even if she was standing.

The learned Sessions Judge thought that when there were two divergent versions given by the prosecution and the defence and when two views were possible, the benefit of doubt should be given to the accused.

He, therefore, acquitted the accused.

The High Court reversed the finding of acquittal.

The learned Judges pointed out that there was no reason to doubt the testimony of P. Ws. 1 to 3 and that the discrepancies noticed by the learned Sessions 367 Judge were of a minor character.

The High Court observed that the learned Sessions Judge had magnified the importance to be attached to minor discrepancies.

The High Court also concluded from the medical evidence that it was more probable that the deceased was stabbed when she was lying down.

Accepting the evidence of P. Ws. 1 to 3 which was corroborated by the evidence of P. Ws. 4 and 5 who came to the scene soon afterwards, the High Court convicted the accused under Section 302 and sentenced him as aforesaid.

In this appeal the learned Counsel for the appellant argued that the accused had no motive to kill his wife and that his version was more probable than the version of the prosecution.

He submitted that the version of the accused that the occurrence took place at about 10 p.m. was substantiated by what was mentioned in exhibit P. 15 the wound certificate given by P.W. 13 the Medical officer in respect of the injuries which he found on the person of the accused.

He urged that the knife was not seized by the Police under any seizure Memo nor was the knife sent to any finger print expert.

He urged that at the reasons given by the learned Sessions Judge had not been met by the High Court.

He also contended that two views were possible on the evidence and the accused was entitled to the benefit of doubt.

We have perused the relevant evidence as well as the judgments of the Sessions Judge and the High Court.

We are unable to find any substance in the submissions made by the, learned Counsel for the appellant.

The High Court was well justified in commenting that the discrepancies on the basis of which the Trial Court rejected the evidence of P. Ws. 1, 2 and 3 were of a minor character and that they have been unduly magnified by the learned Sessions Judge.

The discrepancies were in regard to which of them woke up first, where was the lantern and which of the neighbours came first to the scene on hearing their cries.

The High Court was also right in holding that the medical evidence supported the prosecution version and not the defence version.

Merely because the Medical Officer stated that the victim could have received the injury if she was standing, it did not follow that the injury could have been received in the circumstances mentioned by the accused.

The injury was inflicted with great force and its direction was upward.

The location of the injury was 6 cms.

below the arm pit on the left side.

According to the accused the deceased received the injury when she placed herself between P. W. 1 and himself.

We do not think that an injury of the nature received by the deceased could have been caused in the manner suggested by the accused.

The injury must have been caused in the manner suggested by the prosecution that 368 is, when the deceased was lying on her right side.

It is true that the accused did not have any deep motive to kill the deceased.

It is obvious that he must have been upset by the persistent refusal of the brother and mother of the deceased to send her with him to his house.

He probably attributed the refusal to reluctance on the part of his wife to accompany him straightaway.

We may also refer here to the comment of the learned Counsel for the appellant that realizing that the motive would assume considerable importance if the case was one based on circumstantial evidence, the prosecution tried to make P. W. 3 depose as if she had witnessed occurrence.

We do not think that the comment is justified.

P.W. 3, an old woman of 69 years, stated in her evidence that she saw the accused who was sitting by the side of the deceased on the cot make a gesture as if he was stabbing the deceased and that the deceased cried out 'Amma. ' In cross examination she stated that she did not remember if she had told the Police that the accused made a gesture as if he was stabbing the deceased.

The Inspector of Police P. W. 15, however, stated that P. W. 3 did not state before him that she saw the accused making a gesture as if he was stabbing the deceased.

We do not think that we will be justified in rejecting the evidence of all the prosecution witnesses on the basis of this statement of P. W. 3.

At the worst the so called improvement made by her may be rejected but no more.

We are unable to discover any good reason to reject the evidence of P. Ws. 1 to 3 or the evidence of P. Ws. 4 and 5.

We are afraid the learned Sessions Judge allowed himself to be assailed by airy and fanciful doubts.

We are satisfied that the High Court was justified in interfering with the order of acquittal.

The learned Counsel for the appellant advanced the usual argument submitted in all cases where an order of acquittal is reversed, namely, that where two views of the evidence are possible, the accused is entitled to the benefit of the doubt arising from the two views and that where the Trial Court has taken a possible view and acquitted the accused, the High Court should not interfere with the order of acquittal merely because another view is also possible.

The principles are now well settled.

At one time it was thou ht that an order of acquittal could be set aside for "substantial and compelling reasons" only and Courts used to launch on a search to discover those "substantial and compelling reasons".

However, the 'formulae ' of "substantial and compelling reasons", "good and sufficiently cogent reasons" and "strong reasons" and the search for them were abandoned as a result of the pronouncement of this Court in Sanwat Singh & Ors.

vs State of Rajasthan(1).

In Sanwat Singh 's case, this Court harked (1) A.l.

R. 369 back to the principles enunciated by the Privy Council in Sheo Swarup vs Emperor(1) and re affirmed those principles.

After Sanwat Singh vs State of Rajasthan, this Court has consistently recognised the right of the Appellate Court to review the entire evidence and to come to its own conclusion, bearing in mind the considerations mentioned by the Privy Council in Sheo Swarup 's case.

Occasionally phrases like 'manifestly illegal ', grossly unjust ', have been used to describe the orders of acquittal which warrant interference.

But, such expressions have been used more, as flourishes of language, to emphasise the reluctance of the Appellate Court to interfere with an order of acquittal than to curtail the power of the Appellate Court to review the entire evidence and to come to its own conclusion.

In some cases Ramabhupala Reddy & Ors.

v The State of A.P.(2), Bhim Singh Rup Singh vs State of Maharashtra(3) it has been said that to the principles laid down in Sanwat Singh 's case may be added the further principle that "if two reasonable conclusions can be reached on the basis of the evidence on record, the Appellate Court should not disturb the finding of the Trial Court".

This, of course, is not a new principle.

It stems out of the fundamental principle, of our criminal jurisprudence that the accused is entitled to the benefit of any reasonable doubt.

If two reasonably probable and evenly balanced views of the evidence are possible, one must necessarily concede the existence of a reasonable doubt.

But, fanciful and remote possibilities must be left out of account.

To entitle an accused person to the benefit of a doubt arising from the possibility of a duality of views, the possible view in favour of the accused must be as nearly reasonably probable as that against him.

If the preponderance of probability is all one way, a bare possibility of another view will not entitle the accused to claim the benefit of any doubt.

It is, therefore, essential that any view of the evidence in favour of the accused must be reasonable even as any doubt, the benefit of which an accused person may claim, must be reasonable. "A reasonable doubt", it has been remarked, "does not mean some light, airy, insubstantial doubt that may flit through the minds of any of us about almost anything at some time or other, it does not mean a doubt begotten by sympathy out of reluctance to convict; it means a real doubt, a doubt founded upon reason"(4).

As observed by Lord Denning in Miller vs Minister of pensions(5) "Proof beyond a reasonable doubt does not mean proof beyond a shadow of a doubt.

(1) 61 I.A. 389.

(2) A.I.R. 1971 S.C. 460.

(3) A.l.

R. (4) Salmon J. in his charge to the jury in R. V. Fantle reported in (5) 370 The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice.

If the evidence is so strong against a man as to leave only a remote possibility in his favour, which can be dismissed with the sentence 'of course it is possible but not in the least probable ' the case is proved beyond reasonable doubt, but nothing short of that will suffice".

In Khem Karan & Ors.

vs State of U.P. & Anr.(1).

, this Court observed: "Neither mere possibilities nor remote possibilities nor mere doubts which are not reasonable can, without danger to the administration of justice, be the foundation of the acquittal of an accused person, if there is otherwise fairly credible testimony".

Where the Trial Court allows itself to be beset with fanciful doubts, rejects creditworthy evidence for slender reasons and takes a view of the evidence which is but barely possible, it is the obvious duty of the High Court to interfere in the interest of justice, lest the administration of justice be brought to ridicule.

That is what the High Court has done in this case.

The appeal is dismissed.

P. B. R. Appeal dismissed.

Summary: The appellant was charged with the offence of committing the murder of his wife.

Summary: The trial court acquitted him on the ground that the prosecution had failed to establish any motive for the offence, that the evidence of the prosecution witnesses was discrepant, conflicting and improbable and that when two views were possible on the basis of two divergent versions given by the prosecution and the defence, the benefit of doubt should be given to the accused.

Summary: The High Court reversed the order of acquittal and convicted and sentenced the appellant to imprisonment for life on the view that the trial court had magnified the importance to be attached to the discrepancies which were of a minor nature In appeal to this Court it was contended on behalf of the appellant that in all cases where two views of the evidence were possible the accused was entitled to the benefit of doubt arising from the two views and that on this principle the High Court should not have interfered with the order of acquittal merely because another view was also possible.

Summary: Dismissing the appeal: ^ HELD : (1) Where the trial court allows itself to be beset with fanciful doubts, rejects creditworthy evidence for slender reasons and takes a view of the evidence which is but barely possible, it is the obvious duty of the High Court to interfere in the interest of justice, lest the administration of justice be brought to ridicule.

Summary: [370D] (2) After the decision of this Court in Sanwat Singh vs State of Rajasthan ; this Court has consistently recognised the right of the appellate court to review the entire evidence and to come to its own conclusion bearing in mind the considerations mentioned by the Privy Council in Sheo Swarup vs Emperor (61 T.A. 389).

Summary: Occasionally phrases like "manifestly illegal", "grossly unjust have been used to describe the orders of acquittal which warrant interference.

Summary: But such expressions have been used more as flourishes of language to emphasise the reluctance of the appellate court to interfere with an order of acquittal than to curtail the power of the appellate court to review the entire evidence and to come to its own conclusion.

Summary: In two other cases it has been held that to the principles laid down in Sanwat Singh 's case may added the further principle that if two 364 reasonable conclusions could be reached on the basis of the evidence on record the appellate court should not disturb the finding of the trial court.

Summary: This principle stems out of the fundamental principle of our criminal jurisprudence that the accused is entitled to the benefit of any reasonable doubt.

Summary: If two reasonably probable and evenly balanced views of the evidence are possible one must necessarily concede the existence of a reasonable doubt.

Summary: But fanciful and remote possibilities must be left out of account.

Summary: To entitle an accused person to the benefit of a doubt arising from the possibility of duality of views, the possible view in favour of the accused must be as nearly reasonably probable as that against him.

Summary: It is, therefore essential that, any view of the evidence in favour of the accused must be reasonable even as any doubt, the benefit of which an accused person may claim, must be reasonable.

Summary: A reasonable doubt does not mean some light, airy, insubstantial doubt that may flit through the mind of a Judge about almost anything at any time or other, it does not mean a doubt begotten by sympathy out of reluctance to convict, it means a real doubt, a doubt founded upon reason.

Summary: "Proof beyond a reasonable doubt" does not mean proof beyond a shadow of doubt The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice.

Summary: If the evidence is so strong against a man be to leave only a remote possibility in his favour which can be dismissed with the sentence, "of course it is possible but not in the least probable," the case is proved beyond reasonable doubt but nothing short of that will suffice.

Summary: [369A G] Sanwat Singh vs State of Rajasthan, ; applied.

Summary: Ramabhupala Reddy & Ors.

Summary: vs The State of A.P., AIR 1971 SC 460, Bhim Singh Rup Singh vs State of Maharashtra, AIR 1974 SC 286, Miller vs Minister of Pensions, [1947] 2 All.

Summary: E.R. 372; Khem Karam & Ors.

Summary: vs State of U.P. & Anr., referred to.