Tax Reference Cases Nos. 3 to 5 of 1975 Tax Reference under Section 257 of the Income tax Act, 1961 made by the Income tax Appellate Tribunal, Cuttack Bench, Cuttack P.A. Francis, Champat Rai and Miss A. Subhashini for the Appellant.

C.S.S. Rao for the Respondent.

The Judgment of the Court was delivered by 308 PATHAK, J.

: These references under s.27(1) of the have been made by the Income Tax Appellate tribunal, Cuttack Bench at the instance of the Commissioner of Wealth Tax, Orissa for the opinion of this Court on the following question of law: "Whether on the facts and in the circumstances of the case, the Wealth Tax Officer was in law justified in including in the net wealth of the assessee interest due on accrual basis (though not realised) on the outstandings of the money lending business, the accounts of the assessee being maintained on cash basis ?" The respondent assessee was assessed to wealth tax for the assessment years 1965 66, 1966 67 and 1967 68 (the respective valuation dates being March 31, 1965, March 31, 1966 and March 31, 1967), in the status of a 'Hindu Undivided Family.

In each of the assessments, the Wealth Tax Officer included a sum of Rs. 1,50,000 estimated as the accrued interest on the assessee 's money lending investments.

The assessee appealed to the Appellate Assistant Commissioner and urged that as it maintained its books of account in accordance with the cash system of accounting the accrued interest on the money lending investments could not be included in the wealth tax assessments.

The contention found favour with the Appellate Assistant Commissioner, and accordingly he deleted the additions of Rs. 1,50,000 representing accrued interest.

In doing so the Appellate Assistant Commissioner followed "Commissioner of Wealth tax Bihar and Orissa vs Vysyaraju Badreenarayana Moorthy Raju (Orissa)(1), The Wealth Tax Officer appealed to the Appellate Tribunal and contended that accrued interest was liable to be included in the wealth tax assessments of the assessee.

The Wealth Tax Officer sought support from a judgment of the Andhra Pradesh High Court in Vedreva Venkappa Rao vs Commissioner of Wealth tax(2) A.P.

The Appellate Tribunal observed that the judgment of the Orissa High Court was binding on it, and accordingly by a consolidated order dated April 3, 1972, it dismissed the appeals.

The Commissioner of Wealth Tax applied under sub section

(1) of section 27 of the Wealth (1) (2) 309 Tax Act for a reference of the cases to this Court in view of the conflict of opinion between the Orissa High Court and the Andhra Pradesh High Court, and so these references have been made.

The question can be disposed of shortly.

Under section 3 of the Wealth Tax Act, wealth tax is charged for every assessment year in respect of the net wealth of the assessee on the corresponding valuation date.

The expression "net wealth" is defined by cl.

(m) of s.2 of the Act as "the amount by which the aggregate value . .

Of all the assets, wherever located, belonging to the assessee on the valuation date. is in excess of the aggregate value of all the debts owed by the assessee on the valuation date. " According to the scheme of the Wealth Tax Act, the net wealth of an assessee has to be determined as it obtains on a particular date.

That is the "valuation date".

Clause (q) of s 2 defines the expression "valuation date" as follows: ; "(q) Valuation date, in relation to any year for which an assessment is to be made under this Act, means the last day of the previous year as defined in (Section 3) of the Income Tax Act, if an assessment were to be made under that Act for that year; Provided that (i) Where in the case of an assessee there are different previous years under the Income Tax Act for different sources of income, the valuation date for the purposes of this Act shall be the last day of the last of the previous years aforesaid, (ii) in the case of a person who is not an assessee within the meaning of the Income Tax Act, the valuation date for the purposes of this Act shall be the 31st day of March immediately preceding the assessment (z year; (iii)where an assessment is made in pursuance of section 19A, the valuation date shall be the same valuation date as would have been adopted in respect of the net wealth of the deceased if he were alive.

" 310 The computation of the net wealth of an assessee calls for a determination of his assets and debts as on the valuation date.

The definition embodied in the substantive part of cl.

(q) of s.2 indicates that broadly Parliament has fixed upon the last day of the "previous year", as defined under the Income Tax Act, as the valuation date.

The figure of net wealth of the assessee at the end of the "previous year" takes into account the financial activities of the assessee during that "previous year".

His financial activities during that period determine how his net wealth on a particular valuation date differs from his net wealth on the immediately preceding valuation date.

There is an obvious advantage in adopting as the valuation date the last day of a period which is also the relevant period under the Income Tax Act.

The reasons for defining the valuation date in terms of the last day of the income tax "previous year" stop there.

The system of accounting, mercantile or cash or hybrid, is of no relevance for the purpose of determining the assets of the assessee.

That appears plainly from the definition or "net wealth" which speaks of "the aggregate value. of all the assets" belonging to the assessee on the valuation date.

All the assets of the assessee, bar those expressly excepted by the statute, are to be taken into account, and it is immaterial whether the assessee employs one system of accounting or another.

There is clear indication that the assets to be considered are not circumscribed by any consideration of the particular system of accounting adopted by the assessee.

The assets are not confined to cash.

(I) of s.7 as the estimated price, which, in the opinion of the Wealth Tax Officer, the asset would fetch if sold in the open market on the valuation date.

In other words, it would be the estimated open market value of the rights in the property which constitute the asset.

When we speak of the value of a property, on a legal plane we refer to the value of the rights in that property.

It is apparent that what accrues as a right also falls to be included within the assets of an assessee under the Wealth Tax Act.

That being so, the conclusion is inescapable that even though the accounts of the assessee are maintained on cash basis interest due on accrual basis, though not realised, on the outstandings of the money lending business are liable to be included in the net wealth of the assessee.

In this view of the matter, we approve of the opinion expressed by the Andhra Pradesh High Court in Vedrevu Venkappa Rao (supra) 311 and in Commissioner of Wealth Tax, A.P. I vs Pachigolla Narasimha Rao(1) and the Calcutta High Court in Dipti Kumar Basu vs Commissioner of Wealth Tax, West Bengal(2) and hold that the view taken by the Orissa High Court in Commissioner of Wealth tax vs Vysyaraju Badreenarayana Moorthy Raju (Orissa) (supra) and by the Karnataka High Court in A. T. Mirji vs Commissioner of Wealth Tax, Karnataka(3) cannot be accepted.

In the result, the question is answered in the affirmative, in favour of the Revenue and against the assessee.

There is no order as to costs.

Summary: The respondent assessee was assessed to wealth tax for the assessment years 1965 66, 1966 67 and 1967 68, in the status of a Hindu Undivided Family '.

Summary: In each of the assessment years, the Wealth Tax Officer included a sum of Rs. 1.5 lakhs estimated as the accrued interest on the assessee 's money lending investments.

Summary: The assessee appealed to the Appellate Assistant Commissioner, con tending that as the books of account were maintained in accordance with the cash system of accounting, the accrued interest on the money lending investment could not be included in the Wealth Tax assessments, the Appellate Assistant Commissioner following the decision of the Orissa High Court in Commissioner of Wealth tax Bihar and Orissa vs Vysyaraju Badreenarayana Moorthy Raju (Orissa) (1971)79 ITR 330 deleted the additions representing accrued interest.

Summary: The Wealth Tax Officer, appealed to the Appellate Tribunal and con tended that the accrued interest was liable to be included in the Wealth Tax assessment of the assessee, relying on the judgment of the Andhra Pradesh High Court in Vedrevu Venkappa Rao vs Commissioner of Wealth Tax A.P.

Summary: The Appellate Tribunal dismissed the appeal, as it was bound by the decision of the Orissa High Court.

Summary: The Commissioner of Wealth Tax applied under Section 27(1) of the Wealth Tax Act, 1957 for a reference to the Supreme Court in view of the conflict of opinions between the Orissa High Court and the Andhra Pradesh High Court and the question: "Whether the Wealth Tax Officer was justified in including in the net wealth of the assessee, interest due on accrual basis (though not realised) on the outstandings 307 of the assessee 's money lending business, the accounts being maintained on cash," was referred to this Court.

Summary: ^ HELD: 1.

Summary: Even though the accounts of the assessee are maintained on cash basis interest due on accrual basis, though not realised, on the out standings of the money, lending business is liable to be included in the net wealth of the assessee.

Summary: [310G] 2.

Summary: The value of a property refers to the value of the rights in that property.

Summary: What accrues as a right also falls to be included within the assets of an assessee under the Wealth Tax Act 1957.

Summary: [310F] 2.1.

Summary: That appears plainly from the definition of "net wealth" which speaks of "the aggregate value. of all the assets" belonging to the assessee on the valuation date.

Summary: [310 C D] 3.

Summary: The assets are not confined to cash.

Summary: Where the asset is an asset other than cash, its value is determined pursuant to sub section (I) of section 7 as the estimated price, which, in the opinion of the Wealth Tax Officer, the asset would fetch if sold in the open market on the valuation date.

Summary: It would be the estimated open market value of the rights in the property which constitute the asset.

Summary: [310E F] Vedrevu Venkappa Rao vs Commissioner of Wealth tax A.P. , Commissioner of Wealth, Tax.

Summary: A.P_I. vs Pachigolla Narasimha Rao, and Dipta Kumar Basu vs Commissioner oz Wealth Tax, West Bengal, , approved.

Summary: Commissioner of Wealth tax Bihar and Orissa vs Vysyaraju Badreenarayana MoorthY Raju (Orissa) and A.T. Mirji vs Commissioner of Wealth Tax, Karnataka, Over ruled.


Civil Appeal No. 1709 of 1988.

From the Judgment and Order dated 9.10.1987 of t he Central Administrative Tribunal Chandigarh in Appln.

T. 1055 of 1986.

WITH (SLP (Civil) No. 6998 of 1988) V.C. Mahajan, Mrs. Indu Goswami, C.V. Subba Rao, P. Parmeshwaran for the Appellant in C.A. No. 1709 of 1988.

M.K.D. Namboodary for the Petitioner in SLP (Civil) N o. 6998 of 1988.

S.M. Ashri and Mahabir Singh for the Respondents.

The Judgment of the Court was delivered by K. JAGANNATHA SHETTY, J.

The civil appeal, by speci al leave, and the connected SLP raise an important issue as to the power of the Central Administration Tribun al ("Tribunal") to examine the adequacy of penalty awarded by the competent authority to a Government servant in discipl i nary proceedings.

Short factual background is this: Parmanand Respondent in the appeal was a Time Keeper in Beas Sutlej Link Project, Sundernagar.

He was incharge of preparing the pay bills and other bills of the work charg ed employees of the project.

It was alleged that he maSte r minded and prepared the pay roll pertaining to 'T ' Token of Central Survey Division, Sundernagar for the month of M ay 1969 and entered the name of one Shri Ashok Kumar, Token N o. 59 T at serial No. 10 on page 2 of the relevant pay roll.

He made this entry with ulterior motive to withdraw the pay of Ashok Kumar for the month of May 1969, even though Ash ok Kumar was not working in that Division.

A bogus identi ty card in the name of Ashok Kumar T.No.

59 T with the sign a tures of the issuing officer was also prepared by the r e spondent although it was not his duty to prepare the ident i ty card.

The said fictitious identity card was used by o ne Suraj Singh, cleaner T. No. 210 K of Beggi Tunnelling Div i sion for the purpose of withdrawing the pay of Ashok Kuma r.

While Suraj Singh by impersonation was receiving the pay of Ashok Kumar, he was recognised by the Cashier since he kn ew him personally.

There then started an enquiry followed by departmental proceedings against three persons includi ng the respondent herein.

The Personnel Officer of the 23 BSL Project was appointed as Inquiry Officer.

The enqui ry was conducted under the Punjab Government Servants Condu ct Rules, 1966.

The Inquiry Officer framed charge against the responde nt in the following terms: "That the said Shri Parma Nand, while working as Time Keeper in Time Keeping Sub Division of Beas Sutlej Li nk Project, Sundernagar during the month of May 1969 failed to maintain absolute integrity and devotion to duty in as mu ch as he falsely marked the attendance of Shri Ashok Kuma r, Token No. 59 T in the Pay Roll of Control Survey Divisi on for the month of May 1969, which resulted in fictitio us drawal of Rs.238 90 as pay of the said Shri Ashok Kumar.

He also prepared a bogus identity card in the name of the abo ve Shri Ashok Kumar and initiated it below the signatures of issuing officer and this identity card Was used by Sh ri Suraj Singh, Cleaner (Token No. 210 K), Boggi Tunnelli ng Division, at the time of attempting to receive the pay of Shri Ashok Kumar from the Cashier.

" After a detailed enquiry against the respondent and t wo others, the Inquiry Officer found all the three guilty of the charge framed against each of them.

The report of e n quiry was forwarded to the competent authority who aft er giving an opportunity of being heard dismissed the respon d ent from service.

The other two persons were let off wi th minor punishments of withholding two or three future incr e ments in their pay scales.

The respondent moved the High Court of Himachal Prade sh under Article 226 challenging the findings of Inquiry off i cer as well as the order of dismissal passed by the comp e tent authority.

During the pendency of the writ petition, a Bench of the Central Tribunal at Chandigarh was constitut ed under the Administrative Tribunal Act, 1985.

Consequentl y, the said writ petition stood transferred to the Tribunal by operation of section 29 of that Act.

The Tribunal upon consideration of the matter agre ed with the findings recorded by the Inquiry Officer that t he respondent was the master mind behind the scheme to defra ud the project.

The Tribunal observed: "Since the applicant had.

access to the records which 24 were fabricated at the relevant time the Inquiry Officer h ad come to the conclusion that the applicant was the mast er mind behind the scheme to defraud the Project.

In view of the foregoing, it cannot be termed th at the finding returned by the Inquiry Officer is without a ny evidence.

" It was also observed that there was no denial of a reasonable opportunity for the respondent to set up prop er defence.

After reaching this conclusion, the Tribunal pr o ceeded to examine the adequacy of penalty awarded to t he respondent.

This is how the Tribunal dealt with that que s tion: "Lastly, it was argued on behalf of the applicant that t he punishment awarded to him is disproportionate to the gravi ty of the charge proved against him and is in stark contrast to the punishment awarded to his other three colleagues in whose cases, only future increments were stopped, the max i mum being for three years in respect of Shri Sain Ditt a, Clerk.

The finding regarding the applicant being t he master mind behind the attempt to defraud the Project a p pears to have weighed.

with the disciplinary authority whi le dismissing the applicant from service.

An appreciation of the evidence, as done in the preceding pages, would sh ow that the applicant had entered the name of Shri Ashok Kum ar in the pay roll for May 1969 and so far as other eviden ce against him is concerned, it is mostly of a circumstanti al nature.

There is no direct or expert evidence that it was he who had marked the attendance of Shri Ashok Kumar in the p ay roll for May 1969 or that it was he who had initiated t he identity card.

The evidence against him is circumstantial in as much as the pay roll was under his custody and he cou ld have access to the identity cards.

Under these circu m stances, the evidence that the applicant was the only mast er mind who sought to defraud the project of the funds cann ot be termed to be direct.

" The Tribunal concluded: "As such it is a case where the applicant shou ld not be measured with a different yardstick than the other s, who have been punished along with applicant.

In the intere st of 25 justice, it is necessary to modify the punishment awarded to the applicant.

We, therefore, direct that the punishment of dismissal awarded to the applicant be reduced to that of stopping of his five increments which he had earned for a period of five years, in terms of clause (iv) of Rule 11 of the Central Civil Services (Classification, Control a nd Appeal) Rules, 1965.

There will be no order as to costs.

T he respondents shah comply with this order within four mont hs from its receipt and pay all consequential benefits to t he applicant.

" The Tribunal seems to suggest that the respondent w as not the only master mind to commit the fraudulent act a nd there were others too, and as such, he should not be mea s ured with a different yardstick.

The Tribunal however, h as held that the respondent was guilty of entering the name of Ashok Kumar in the pay roll of May 4969.

Yet it modified t he punishment to fall in line with that of others whose pa rt inthe fraudulent act was evidently not similar in nature.

Being aggrieved by the reduction of penalty, the Uni on of India has preferred the Civil Appeal No. 1709 of 198 8.

Parma Nanda seeking a complete exoneration from the char ge has preferred the SLP No. 6998 of 1988.

The question which has to be decided, therefore, is whether the Tribunal has power to modify the penalty award ed to the respondent when the findings recorded as to h is misdemeanour is supported by legal evidence.

To put in oth er words, whether the Tribunal could interfere with the penal ty awarded by the Competent authority on the ground that it is excessive or disproportionate to the misconduct proved? T he answer to the question cannot be determined without refe r ence to the scope of judicial review in the pre Tribun al period.

It is also necessary to remember the purpose f or which the Tribunal came to be established.

Before the Trib u nal was constituted, the Courts were exercising judici al review of administrative decisions in public services.

Th is judicial review was sought to be taken awary by the Const i tution (42nd Amendment Act, 1976).

By this amendment, Art i cles 323A and 323B were introduced in the Constitutio n, thereby opening altogether a new chapter in our Administr a tive law.

Article 323A(1) which is relevant for our purpo se is confined to matters relating to the public services.

It provides power to Parliament to enact law for establishme nt of Administrative Tribunals for adjudication of disput es with regard to service matters.

The service matters are of 26 persons appointed to the public service and posts.

T he public service and posts may be in connection with t he affairs of the union or of any State.

The law to be enact ed by Parliament may also cover persons appointed in the loc al or other authority or of any corporation owned or controll ed by the Government.

There should be only one Tribunal for t he Union of India and one for each State or for two or mo re States put together.

The law cannot provide for hierarchy of Tribunals.

In pursuance of Articles 323A(1) the Parliame nt enacted the Administrative Tribunal Act, 1985 ("The Act").

We may briefly examine the statutory framework.

Secti on 4 of the Act provides for establishment of Central Admini s trative Tribunal as well as State Administrative Tribuna l.

It also provides power to constitute Benches of the Centr al Administrative Tribunal.

Sections 5 to 11 deal with t he composition of Tribunals and Benches thereof and terms of office of the Chairman, Vice Chairman and other member section Section 14 provides powers and authority to the Centr al Administrative Tribunal.

Section 15 deals with the simil ar power and authority of the State Administrative Tribuna l. Section 16 refers to the powers of a Joint Administrati ve Tribunal.

Section 22 states that the Tribunal shall not be bound by the procedure laid down in Code of Civil Procedur e, 1908, but shall be guided by the principles of natur al justice and subject to other provisions of the Act and of any Rules made thereunder.

The Tribunal could also regula te its own procedure including the fixing of places and time of enquiry and deciding whether to sit in public or in privat e. Sub section 2 of sec.

22 requires the Tribunal to deci de every application made to it as expeditiously as possibl e. Ordinarily, the Tribunal shall decide every application on a perusal of documents and written representations and aft er heating such oral arguments as may be advanced.

Section 27 provides for execution of orders.

Section 28 excludes t he jurisdiction of all Courts except the Supreme Court.

Secti on 29 directs transfer of cases pending in courts to the Trib u nal for adjudication.

In pursuance of the provisions of the Act, the Centr al Government has established the Central Administrative Trib u nal with a Bench at Chandigarh whose order has been cha l lenged before us.

It is now necessary to examine in detail the amplitu de of powers of the Tribunal.

Section 14, so far materia l, provides: "14.

Jurisdiction, powers and authority of t he Central Administrative Tribunal: 27 (1) Save as otherwise expressly provided in th is Act, the Central Administrative Tribunal shall exercise, on and from the appointed day, all the jurisdiction, powers a nd authority exercisable immediately before that day by a ll courts (except Supreme Court) in relation to: (a) recruitment, and matters concerning recrui t ment, to any All India Service or to any civil service of the Union or a civil post under the Union or to a po st connected with defence or in the defence services, being in either case, a post filled by a civilian; (b) all service matters concerning Similar are the powers and authority of the State Ser v ice Tribunal under sec.

15 and Joint Administrative Tribun al under sec.

16. ' The expression "all courts" in this connection includ es civil courts and High Court but not the Supreme Court.

T he powers of the Supreme Court for obvious reasons have be en expressly kept undisturbed.

The powers of the High Cour ts under Article 226, in so far as they are exercisable in relation to service matters stand conferred on the Tribun al established under the Act.

The powers of other ordina ry civil courts in relation to service matters to try all sui ts of a civil nature excepting suits of which their cognizan ce either expressly or impliedly barred also stand conferred on the Tribunal.

This position becomes further clear by secs.

27, 28 a nd 29 of the Act.

Section 27 provides for finality of t he orders of the Tribunal.

Section 28 excludes the jurisdicti on of courts except the Supreme Court, or any Industrial Trib u nal, Labour Court, concerning service matters.

Section 29 provides for automatic transfer of all pending proceedin gs in the High Court under Articles 226 and 227, relating to service matters (except appeals) to the Tribunal for adjud i cation.

Likewise, suits and other proceedings pending befo re a Court or other authority relating to service matters al so stand transferred to the Tribunal for determination.

The Act thus excludes the jurisdiction, power and a u thority of all Courts except the Supreme Court and confe rs the same on the Tribunal in relation to recruitment a nd service matters.

Section 3(2) 28 comprehensively defines 'service matters ' to mean all ma t ters relating to conditions of service including the disc i plinary matters.

From an analysis of secs.

14, 15, 16, 27, 28 and 29, it becomes apparent that in the case of proceedings transferr ed to the Tribunal from a civil court or High Court, the Trib u nal has the jurisdiction to exercise all the powers whi ch the civil court could in a suit or the High Court in a wr it proceeding could have respectively exercised.

In an origin al proceedings instituted before the Tribunal under sec.

1 9, the Tribunal can exercise any of the powers of a civ il court, or High Court.

The Tribunal thus could exercise on ly such powers which the Civil Court or the High Court cou ld have exercised by way of judicial review.

It is neither le ss nor more.

Because, the Tribunal is just a substitute to t he civil court and High Court.

That has been put beyond t he pale of controversy by this Court while upholding constit u tional validity of the Act in S.P. Sampat Kumar vs Union of India & Ors., ; In this backdrop, we may consider the main question th at we have set out at the beginning of the judgment.

Mr. Mah a jan, learned counsel for the Central Government urged th at the Tribunal has no powers to interfere with the punishme nt imposed by the disciplinary authority on the ground that it is disproportionate to the proved misdemeanour.

He al so urged that if the enquiry held against the delinquent off i cer was proper with the findings supported by evidence the n, the Tribunal cannot substitute its own judgment to modi fy the punishment awarded.

Mr. Ashri, learned counsel for t he respondent, however, justified the discretion exercised by the Tribunal in awarding the lesser punishment.

We do n ot think that we could accept so bold a submission made for t he respondent, nor can it be sustained by other consideratio n.

Indeed, the contention for the respondent is unsustainab le in view of the decisions of this Court.

In State of Orissa vs Bidyabhushan, [1963] Suppl 1 S CR 648 the enquiry was conducted against the petitioner on several charges and eventually he was dismissed from ser v ice.

The Orissa High Court found that the findings on two of the charges were bad being in violation of the principles of natural justice.

The findings on the remaining charges we re however, found to be justified.

The High Court remitted t he matter to the Government for fresh consideration for awar d ing a proper punishment.

The High Court observed: "That the findings in respect of charges l(a) and l(e) 29 should be set aside as being opposed to the rules of natur al justice, but the findings in respect of charges l(c) a nd l(d) and charge 2 need not be disturbed.

It will be th en left to Government to decide whether, on the basis of the se charges, the punishment of dismissal should be maintain ed 'or else whether a lesser punishment would suffice." The Supreme Court reversed this order on the ground th at if the dismissal could be supported on any finding as to substantial misdemeanour for which the punishment cou ld lawfully be imposed, it was not for the.

Court to consid er whether that ground alone would have weighed with the a u thority dismissing the public servant.

Shah, J. observed ( at 665 666): " . . in our view the High Court had no pow er to direct the Governor of Orissa to reconsider the order of dismissal.

The constitutional guarantee afforded to a publ ic servant is that he shall not be dismissed or removed by an authority subordinate to that by which he was appointed, a nd that he shall not be dismissed or removed or reduced in ra nk until he has been given a reasonable opportunity of showi ng cause against the action proposed to be taken in regard to him.

The reasonable opportunity contemplated has manifest ly to be in accordance with the rules framed under Article 3 09 of the Constitution.

But the Court in a case in which an order of dismissal of a public servant is impugned, is n ot concerned to decide whether the sentence imposed, provid ed it is justified by the rules, is appropriate having rega rd to the gravity of misdemeanour established.

The reaso ns which induce the punishing authority, if there has been an enquiry consistent with the prescribed rules, is not just i fiable; nor is the penalty open to review by the court.

If the High Court is satisfied that if some but not all of t he findings of the Tribunal were "unreasonable", the order of the Governor on whose powers by the rules no restrictions in determining the appropriate punishment are placed, w as final, and the High Court had no jursidiction to direct t he Governor to review the penalty, for as we have alrea dy observed the order of dismissal passed by a competent a u thority on a public servant, if the conditions of the co n stitutional protection have been complied with, is n ot justifiable.

Therefore if the order may be supported on a ny finding as to substantial misdemeanour for which the 30 punishment can lawfully be imposed, it is not for the cou rt to consider whether that ground alone would have weigh ed with the authority in dismissing the public servant.

T he court has no jurisdiction if the findings of the enqui ry officer or the Tribunal prima facie make out a case of misdemeanour, to direct the authority to reconsider th at order because in respect of some of the findings but not a ll it appears that there had been violation of the rules of natural justice.

The High Court was, in our judgment, in error in directing the Governor of Orissa to reconsider t he question." In Dhirajlal Girdharilal vs Commissioner of Income ta x, AIR 1956 SC 271, Mehar Chand Mahajan, C.J., while deali ng with a reference application against an order of Income T ax Tribunal under the Indian Income Tax Act had struck slight ly a different note (at 273): "The learned Attorney General frankly conced ed that it could not be denied that to a certain extent t he Tribunal had drawn upon its own imagination and had made u se of a number of surmises and conjectures in reaching i ts result.

He however, contended that eliminating the irrel e vant material employed by the Tribunal in arriving at i ts conclusion, there was sufficient material on which t he finding of fact could be supported.

In our opinion, th is contention is not well founded.

It is well established th at when a court of facts acts on material, partly relevant a nd partly irrelevant, it is impossible to say to what exte nt the mind of the court was affected by the irrelevant mater i al used by it in arriving at its finding.

Such a finding is vitiated because of the use of inadmissible material a nd thereby an issue of law arises.

" This proposition in Dhirajlal 's case was explained a nd the statement of law in Bidyabhushan 's case was affirmed in State of Maharashtra vs B.K. Takkamore & Ors., ; It was case of supersession of the Corporation.

T he show cause notice issued to the corporation mentioned t wo grounds for supersession.

One of the grounds was held to be irrelevant.

This Court, however, upheld the order of supe r session stating that the order cannot be set aside f or reason that one of the grounds is found to be non existe nt or irrelevant if another ground by itself was serious enou gh to supersede the Corporation.

Bachawat, J., said (at 594): 31 "The principle underlying these decisions appea rs to be this.

An administrative or quasi judicial order bas ed on several grounds, all taken together, cannot be sustain ed if it be found that some of the grounds are non existent or irrelevant, and there is nothing to show that the authori ty would have passed the order on the basis of the other rel e vant and existing grounds.

On the other hand, an order bas ed on several grounds some of which are found to be non exis t ent or irrelevant, can be sustained if the court is sati s fied that the authority would have passed the order on t he basis of the other relevant and existing grounds, and t he exclusion of the irrelevant or non existent grounds cou ld not have affected the ultimate opinion or decision.

" This principle again receives support from the decisi on of in Zora Singh vs J.M. Tandon, AIR 1971 SC 1537.

The re the Chief Settlement Commissioner cancelled the allotment of land made to a person but the High Court allowed the wr it petition quashing the order of the Chief Settlement Commi s sioner and directing him to proceed to decide the case on merits.

The Commissioner re heard the entire case as direc t ed by the Court but came to the same conclusion as befo re and reaffirmed his earlier decision canceling the allotmen t.

The person unsuccessfully moved the High Court with a wr it petition challenging the order of the Commissioner a nd finally appealed to the Supreme Court.

In dismissing th at appeal, Shalat, J., made inter alia, the following observ a tions (at 1540): "The High Court was right in holding that even if there were amongst the reasons given by the Commissione r, some which were extraneous, if the rest were relevant a nd could be considered sufficient, the Commissioner 's concl u sions would not be vitiated.

The principle that if some of the reasons relied on by a Tribunal for its conclusion tu rn out to be extraneous or otherwise unsustainable, its dec i sion would be vitiated, applies to cases in which the co n clusion is arived at not on assessment of objective sati s faction.

The reason is that whereas in cases where t he decision is based on subjective satisfaction if some of t he reasons turn out to be irrelevant or invalid, it would be impossible for a superior court to find out which of t he reasons, relevant or irrelevant, valid or invalid, h ad brought about such satisfaction.

But in a case where t he conclusion is based on objective facts and evidence, such a difficult 32 would not arise.

If it is found that there was legal ev i dence before the Tribunal even if some of it was irrelevan t, a superior court would not interfere if the finding can be sustained on the rest of the evidence.

The reason is that in a writ petition for certiorari, the superior court does n ot sit in appeal, but exercises only supervisory jurisdictio n, and therefore, does not enter into the question of suff i ciency of evidence.

There was, in our view, legal eviden ce before the Commissioner upon which he was entitled to re st his finding that the copies relied on by the appellant we re not genuine." The view taken in Bidyabhushan case has been repeated ly affirmed and reiterated in Railway Board vs Niranjan Sing h; , at 552; O.P. Gupta case AIR 1970 SC 679 a nd Union of India vs Sardar Bahadur, A ny doubts as to the incapacity of the Court to review t he merits of the penalty must vanish when we read the remar ks of Mathew, J., in Sardar Bahadur 's case (at 225): "A disciplinary proceeding is not a criminal tria l.

The standard of proof required is that of preponderance of probability and not proof beyond reasonable doubt.

If t he inference that Nand Kumar was a person likely to have off i cial dealings, with the respondent was one which reasonab le person would draw from the proved facts of the case, t he High Court cannot sit as a court of appeal over a decisi on based on it.

Where there are some relevant materials whi ch the authority has accepted and which materials may reason a bly support the conclusion that the officer is guilty, it is not the function of the High Court exercising its jurisdi c tion under article 226 to review the materials and to arrive at an independent finding on the materials.

If the enquiry h as been properly held the question of adequacy or reliabili ty of the evidence cannot be convassed before the High Court.

" The learned Judge also said (at 227): "Now it is settled by the decision of this Court in State of Orissa vs Bidyabhushan Mohapatra, that if the ord er of a punishing authority can be supported on any finding as to substantial misdemeanour for which the punishment can be imposed, it is not for the Court to consider whether the 33 charge proved alone would have weighed with the authority in imposing the punishment.

The Court is not concerned to decide whether the punishment imposed, provided it is just i fied by the rules, is appropriate having regard to t he misdemeanour established." So much is, we think, established law on the scope of jurisdiction and the amplitude of powers of the Tribuna l.

However, of late we have been receiving a large number of appeals from the orders of Tribunals Central a nd States complaining about the interference with the penal ty awarded in the disciplinary proceedings.

The Tribunals se em to take it within their discretion to interfere with t he penalty on the ground that it is not commensurate with t he delinquency of the official.

The law already declared by this Court, which we reiterate, makes it clear that t he Tribunals have no such discretion or power.

We must unequivocally state that the jurisdiction of t he Tribunal to interfere with the disciplinary matters or punishment cannot be equated with an appellate jurisdictio n.

The Tribunal cannot interfere with the findings of t he Inquiry Officer or competent authority where they are n ot arbitrary or utterly perverse.

It is appropriate to rememb er that the power to impose penalty on a delinquent officer is conferred on the competent authority either by an Act of legislature or rules made under the provisoto Article 309 of the Constitution.

If there has been an enquiry consiste nt with the rules and in accordance with principles of natur al justice what punishment would meet the ends of justice is a matter exclusively within the jurisdiction of the compete nt authority.

If the penalty can lawfully be imposed and is imposed on the proved misconduct, the Tribunal has no pow er to substitute its own discretion for that of the authorit y.

The adequacy of penalty unless it is malafide is certain ly not a matter for the Tribunal to concern with.

The Tribun al also cannot interfere with the penalty if the conclusion of the Inquiry Officer or the competent authority is based on evidence even if some of it is found to be irrelevant or extraneous to the matter.

Our attention was drawn to the decision of this Court in Bhagat Ram vs State of Himachal Pradesh, 2.

We do not consider that this decision is of any assistan ce to support the contention urged for the respondent.

The re the facts found were entirely different.

This Court, aft er considering the matter was of opinion that the appella nt therein was not offered a reasonable opportunity to defe nd himself and accordingly the enquiry and consequential ord er of 34 removal from service were found to be bad.

Ordinarily, whe re the disciplinary enquiry is shown to have been held in violation of principles of natural justice, the enqui ry would be vitiated and the order based on such enquiry wou ld be quashed with liberty to hold fresh enquiry.

But th at procedure was not adopted by this Court since the char ge against appellant was found to be a very minor infraction of duty in checking hammer marks of trees.

That negligence, if any, caused no loss to the Government, for, the man w ho resorted unauthorised felling of trees, had compensated t he Department.

The appellant was a low paid class IV Governme nt servant.

Considering all these facts this Court felt that it would not be fair to direct a low paid class IV employee to face the hazards of a fresh enquiry.

This Court in t he interest of justice and fair play thought that a min or penalty would be sufficient.

Accordingly, two incremen ts with future effect, of the appellant were ordered to be withheld.

This decision is, therefore, no authority for t he proposition that the High Court or the Tribunal has juri s diction to impose any punishment to meet the ends of ju s tice.

It may be noted that this Court exercised the equit a ble jurisdiction under Article 136 and the High Court or Tribunal has no such power or jurisdiction.

We may however, carve out one exception to this propos i tion.

There may be cases where the penalty is imposed und er clause (a) of the second proviso to Article 311(2) of t he Constitution.

Where the person, without enquiry is di s missed, removed or reduced in rank solely on the basis of conviction by a criminal court, the Tribunal may examine t he adequacy of the penalty imposed in the light of the convi c tion and sentence inflicted on the person.

If the penal ty impugned is apparently unreasonable or uncalled for, havi ng regard to the nature of the criminal charge, the Tribun al may step in to render substantial justice.

The Tribunal m ay remit the matter to the competent authority for reconsider a tion or by itself substitute one of the penalties provid ed under clause (a).

This power has been conceded to the cou rt in Union of India vs Tulsiram Patel, ; whe re Madon, J., observed (at 501 502): "Where a disciplinary authority comes to know th at a government servant has been convicted on a crimin al charge, it must consider whether his conduct which has l ed to his conviction was such as warrants the imposition of a penalty and, if so, what that penalty should be . . 35 "The disciplinary authority must, however, bear in mind th at a conviction on a criminal charge does not automatical ly entail dismissal, removed or reduction in rank of the co n cerned government servant.

Having decided which of the se three penalties is required to be imposed, he has to pa ss the requisite order.

A government servant who is aggriev ed by the penalty imposed can agitate in appeal, revision or review, as the case may be, that the penalty was too seve re or excessive and not warranted by the facts and circu m stances of the case.

If it is his case that he is not t he government servant who has been in fact convicted, he c an also agitate this question in appeal, revision or review.

If he fails in the departmental remedies and still wants to pursue the matter, he can invoke the court 's power of jud i cial review subject to the court permitting it.

If the cou rt finds that he was not in fact the person convicted, it wi ll strike down the impugned order and order him to be reinsta t ed in service.

Where the court finds that the penalty i m posed by the impugned order is arbitrary or grossly exce s sive or out of all proportion to the offence committed or not warranted by the facts and circumstances of the case or the requirements of that particular government service t he court will also strike down the impugned order.

Thus, in Shankar Dass vs Union of India this Court set aside t he impugned order of penalty on the ground that the penalty of dismissal from service imposed upon the appellant was whi m sical and ordered his reinstatement in service with fu ll back wages.

It is, however, not necessary that the cou rt should always order reinstatement.

The court can inste ad substitute a penalty which in its opinion would be just a nd proper in the circumstances of the case.

" The last contention that the respondent fails into t he category of a workman and the Tribunal could exercise t he powers of an industrial court for giving appropriate reli ef is unavailable in this case, since the respondent had ma de his choice of forum and was even otherwise dealt with und er the Government Servants (Conduct) Rules which are undispu t edly applicable to him.

In the light of the principles to which we have call ed attention and in view of the aforesaid discussion, the ord er of the Tribunal imposing a lesser penalty on the responde nt cannot, therefore, be sustained.

He was found guilty of t he charge framed against him.

He 36 was a party to the fraudulent act for self aggrandisemen t.

He prepared bogus documents for withdrawal of salary in t he name of Ashok Kumar who was not working in his Division.

He has thus proved himself unbecoming and unworthy to hold a ny post.

Any sympathy or charitable view on such officials wi ll not be conducive to keep the streams of administration pu re which is so vital for the success of our democrary.

In the result, we allow the appeal and set aside t he order of the Tribunal.

Consequently, the SLP of the respon d ent is dismissed.

In the circumstances of the case howeve r, we make no order as to costs.

T.N.A. Appeal allowed and Petition dismissed.

Summary: The respondent, in the appeal, was in charge of prepa r ing the pay bills of the employees of the Beas Sutlej Li nk Project.

Summary: He, along with other two employees, was charg ed with the fraudulent act of withdrawal of Rs.238.90 by pr e paring a bogus pay bill and identity card in the name of a fictitious person.

Summary: An enquiry was conducted against all t he three employees under the Punjab Government Servants Condu ct Rules, 1966 and the Inquiry Officer found all the thr ee guilty of the charge framed against each of them.

Summary: The comp e tent authority accepted the findings of the Inquiry Offic er and after giving an opportunity of being heard imposed t he penalty of dismissal on the respondent.

Summary: Minor penalty of with holding two or three future increments was imposed on each of the other two employees.

Summary: The respondent challeng ed the finding of the Inquiry Officer as well as the order of dismissal by filing a writ petition in the High Court of Himachal Pradesh.

Summary: Subsequently the writ stood transferred to the Central Administrative Tribunal under the 20 provisions of the Administrative Tribunal Act, 1985.

Summary: T he Tribunal agreed with the findings recorded by the Inqui ry Officer to the effect that the respondent was guilty of t he charge but modified the punishment by reducing the punis h ment of dismissal imposed to that of stopping his fi ve increments on the ground that the respondent was measur ed with a different yardstick than the other two employee section Against the aforesaid order of the Tribunal appeals we re filed before this Court; (a) by the Union of India conten d ing that the tribunal has no powers to interfere with t he punishment imposed by the disciplinary authority on t he ground that it is disproportionate to the proved misdeme a nour, and (b) by the respondent seeking a complete exoner a tion from the charge.

Summary: While allowing the appeal of the Union and dismissi ng the Special Leave Petition of the respondent the Court s et aside the order of the Tribunal, and, HELD: 1.

Summary: Under the provisions of the Administrati ve Tribunal Act, 1985 the powers of the High Courts und er Article 226, in so far as they are exercisable in relati on to service matters stand conferred on the Tribunal esta b lished under the Act.

Summary: The powers of other ordinary civ il Courts in relation to service matters to try all suits of a civil nature excepting suits of which their cognisan ce either expressly or impliedly barred also stand conferred on the Tribunal.

Summary: The Act thus excludes the jurisdiction, pow er and authority of all Courts except the Supreme Court a nd confers the same on the Tribunal in relation to recruitme nt and service matters.

Summary: The Tribunal is just a substitute to the civil Court and High Court.

Summary: The Tribunal thus cou ld exercise only such powers which the civil Court or the Hi gh Court could have exercised by way of judicial review.

Summary: It is neither less nor more.

Summary: [27D E; 28B C1 S.P. Sampat Kumar vs Union of India & Ors., ; referred to; 2.

Summary: The jurisdiction of the Tribunal to interfere wi th the disciplinary matters or punishment cannot be equat ed with an appellate jurisdiction.

Summary: The Tribunal cannot inte r fere with the findings of the Inquiry Officer or compete nt authority where they are not arbitrary or utterly pervers e.

Summary: The power to impose penalty on a delinquent officer is conferred on the competent authority either by an Act of legislature or rules made under the proviso to Article 3 09 of the Constitution.

Summary: If there has been an enquiry consiste nt with the rules and in accordance with principles of natur al justice what punishment would meet the 21 ends of justice is a matter exclusively within the jurisdi c tion of the competent authority.

Summary: If the penalty can lawful ly be imposed and is imposed on the proved misconduct, t he Tribunal has no power to substitute its own discretion f or that of the authority.

Summary: The adequacy of penalty unless it is malafide is certainly not a matter for the Tribunal to concern with.

Summary: The Tribunal also cannot interfere with t he penalty if the conclusion of the Inquiry Officer or t he competent authority is based on evidence even if some of it is found to be irrelevant or extraneous to the matte r. [33D F] State of Orissa vs Bidyabhushan, [1963] (Suppl.) 1 S.C.R. 648; Dhirajlal Girdharilal vs Commissioner of Income Tax, A.I.R. 1955 S.C. 271; State of Maharashtra vs B.K. Takkamore & Ors.

Summary: , ; ; Zora Singh vs J.M. Tandon, A.I.R. 1971 S.C. 1537; Railway Board vs Nira n jan Singh; , ; State of U.P. vs O. P. Gupta, A.I.R. 1970 S.C. 679 and Union of India vs Sarda rr Bahadur, , applied.

Summary: Bhagat Ram vs State of Himachal Pradesh, [1983] 2 S.C. C. 442, distinguished.

Summary: There is one exception to this proposition.

Summary: There m ay be cases where the penalty is imposed under clause (a) of the second proviso to Article 311(2) of the Constitutio n.

Summary: Where the person, without enquiry is dismissed, removed or reduced in rank solely on the basis of conviction by a criminal court, the Tribunal may examine the adequacy of t he penalty imposed in the light of the conviction and senten ce inflicted on the person.

Summary: If the penalty impugned is appa r ently unreasonable or uncalled for, having regard to t he nature of the criminal charge, the Tribunal may step in to render substantial justice.

Summary: The Tribunal may remit t he matter to the competent authority for reconsideration or by itself substitute one of the penalities provided und er clause (a).

Summary: [35E F] Union of India vs Tulsiram PateI, 8, applied.

Summary: Since the respondent had made his choice of forum a nd was even otherwise dealt with under the Government Serva nt (Conduct) Rules which are applicable to him it cannot be held that he falls into the category of a workman empoweri ng the Central Administrative Tribunal to exercise the powe rs of an Industrial Court for giving appropriate relief.

Summary: [35 F G] 22


Appeal No. 1695 of 1993.

From the Judgment and Order dated 5.4.1991 of the Bombay High Court in S.C.A. Nos. 27 and 31 of 1988.

G.L. Sanghi Dhruv Mehta, Guru Raikar, S.K. Mehta and Arvind Verma for the Appellants.

BA Masodkar, Dr. R.B. Masodkar and KL.

Taneja for the Respondents.

The Judgment of Court was delivered by AHMADI, J. Special leave granted.

The appellants are the legal representatives of the deceased plaintiff Inacio Martins who died pendente lite.

He had on October 26, 1968 instituted a suit No. 157 of 1968 for a declaration and an injunction to restrain the defendants from dispossessing him from the property known as 'Palmar Oiteral do Predio Aivao ' comprising seven lots of coconut grove situated at Caranzalem belonging to defendant No. 2.

The said suit was dismissed on Match 28, 1974 on the ground that the plaintiff was no more in possession of the suit property and, therefore, a suit for a mere declaration simpliciter could not lie.

On the dismissal of the said suit the original plaintiff filed another suit No. 114/74 on May 6, 1974 for restoration of possession on the ground that he was the lawful tenant of the said property and since he had not been dispossessed,in accordance with law the defen dants who were mere trespassers were liable to be evicted.

The plaintiffs case in the plaint was that he was the lessee in respect of seven lots on an annual rent of Rs. 3600 payable in advance in three instalments; that he had paid the rent upto the end of December, 1967 and the first installment of 1968 but the owner, defendant No. 2, in collusion with defendant No. 1 executed a deed of lease in favour of the latter effective from January 1, 1968 on the strength whereof defendant No. 1 claimed to have assumed possession of the property sometime in the second week of June, 1968 without his tenancy having been lawfully terminated.

The plaintiff, therefore, contended that defendant No. 1 was a trespasser in the property and was liable to be evicted therefrom.

He, therefore, sought possession of the property in respect of which he claimed to be a lessee.

1020 The defendants, besides contending that the suit was barred on the principle of res judicata and/or constructive res judicata as found in Order 2 Rule 2(3) of the Code of Civil Procedure, averred that on the expiry of the lease at the end of December, 1967 the lease stood terminated by efflux of time and defendant No. 2 was, therefore, entitled to let out the property to defendant No. 1 and hence the latter was in lawful possession of the said property The plaintiffs allegation that he was forcibly dispossessed was denied.

The defendants, therefore, contended that the suit was not maintainable and deserved to be dismissed.

The Trial Court upheld the plaintiffs contention that the property was demised to him and he was the lawful tenant thereof till his possession came to be disturbed sometime in June, 1968.

The Trial Court also found that the plaintiff had paid a sum of Rs. 1200 to defendant No.2 through his employee Dattu Kenkro by way of advance rent for the year commencing from January 1, 1968.

The Trial Court, therefore, held that the plaintiff was wrongly dispossessed by defendant No. 1 in collusion with defendant No.2 and decreed the suit for eviction on September 25, 1985.

Against the said decree both the defendants preferred an appeal No. 82/85.

The First Appellate Court concurred with the findings recorded by the Trial Court and dismissed the appeal on March 25, 1986.

Feeling aggrieved by the order of dismissal of the appeal, the defendants preferred separate Second Appeals Nos.

27/88 and 31/88 which came to be allowed on April 5, 1991.

Interfering with the concurrent findings recorded by the two courts below the High Court came to the conclusion that the courts below had applied the wrong test and had based their findings on the question of tenancy and dispossession on mere conjectures.

It, therefore, held that the findings were perverse and it was open to the High Court in Second Appeal to interfere with the said findings.

It also held that the suit was barred by res judicata as well as Order 2 Rule 2(3) of the Code of Civil Procedure.

Lastly it noticed that during the pendency of the suit the Goa, Daman & Diu Agricultural Tenancy Act, 1964 (hereinafter called 'the Act ') was amended by Act 17 of 1976 dated October 14,1976 known as the Fifth Amendment which was brought into effect from April 20, 1976 by which the definition of 'agriculture ' was changed and the expressions 'garden ' and 'garden produce ' were defined by the insertion of sub sections (7A).

& (7B) to suction 2 which rendered the Civil Court without jurisdiction.

The High Court, therefore, held that the decree passed by the Civil Court was unsustainable.

On these findings the High Court allowed the appeals and 1021 reversed the decree of the Trial Court with no order as to costs.

It is against this order of the High Court that the present appeal by special leave is preferred.

Before we deal with the impact of the Act as amended by Act 17 of 1976 we may first deal with the two technical grounds on which the High Court has dismissed the suit.

The first ground on which the High Court dismissed the suit is that the suit was barred by the principle of res judicata in view of the dismissal of the former suit No. 157/68.

That suit was for a declaration that the plaintiff was a lessee and for an injunction to restrain the defendants from interfering with his possession of the suit property.

The foundation for that suit was that the plaintiff who claimed to be a lessee in respect of the demised property apprehended his forcible dispossession therefrom.

With a view to preventing any such action on the part of the defendants he instituted the suit for an injunction to restrain them from so doing.

That suit, however, came to be dismissed as the Trial Court came to the conclusion that the plaintiff was no more in possession of the property in respect of which he claimed to be a lessee.

It was only thereafter that the plaintiff filed the suit for restoration of his possession.

In the subsequent suit the plaintiff contended that he had been forcibly dispossessed sometime in the second week of June, 1968 contrary to law even though his tenancy was subsisting and he had paid the first installment of rent for the year 1968.

He, therefore, contended that the lease stated to have been created in favour of defendant No. 1 by defendant No. 2 was a sham and bogus document set up with a view to supporting their illegal action in dispossessing him.

The High Court, in the backdrop of these facts, came to the conclusion that the subject matter of the second suit was directly and substantially in issue in the previous suit between the same parties and hence regardless of the relief claimed the second suit was clearly barred by res judicata.

This finding of the High Court is difficult to sustain.

Section 11 of the Code of Civil Procedure provides that 'no court shall try any suit or issue in which the matter directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such court '.

It is not the finding of the High Court that in the previous suit the question regarding the tenancy of the plaintiff was determined against the plaintiff.

As the record stands the only ground on which the previous suit 1022 was dismissed was the technical ground that a suit for a mere declaration cannot lie without claiming possession once it is found that the plaintiff had lost possession.

Injunction could not be granted to the plaintiff against dispossession as he had already been dispossessed.

The court came to the conclusion that a mere declaration of his status as a tenant could not be granted unless the consequential relief for possession was prayed.

It was for this technical reason that the suit was dismissed.

It is, therefore, difficult to comprehend how the High Court came to the conclusion that the subject matter of the second suit was directly and substantially in issue in the previous suit.

It would have been a different matter if in the previous suit the court had decided the question of status as lessee against the plaintiff, in which case, perhaps, it could be argued that the second suit based on the factum of tenancy was not maintainable.

It is only when the subject matter of any suit is directly and substantially in issue in the previous suit that the subsequent suit would be barred by res judicata if the competent court trying it had decided the issue regarding tenancy against the plaintiff.

The High Court has concluded against the plaintiff on this point in paragraph 31 which reads as under: Thus it is compelling to acknowledge that the subject matter of the second suit was directly and substantially in issue in the previous suit between the same parties.

The facts of the case clearly reveal that the res invoked in both the suits is the same.

The lite is also the same.

Hence the relief by itself is neither material nor relevant for the direct adjudication of the real issue.

The relief is only a consequence.

Therefore the second suit is to be deemed as barred by res judicata. ." With respect it is difficult to accept this line of reasoning.

As stated earlier, the first suit was dismissed on a technical ground that the suit for a mere declaration without seeking consequential relief of possession could not lie.

In that suit the issue regarding the status of the plaintiff as a lessee was not settled once for all and hence that issue could not be stated to be barred by res judicata in the subsequent suit brought by the lessee for possession the demised property.

We are, therefore, of the opinion that the High Court was wrong in holding that the second suit was barred by res judicata.

1023 The next contention which found favour with the High Court was based on the language of Order 2 Rule 2(3) of the Code of Civil Procedure.

The submission regarding constructive res judicata was also based on this very provision.

Now Order 2 concerns the framing of a suit.

Rule 2 thereof requires that the plaintiff shall include the whole of his claim in the framing of the suit.

Sub rule (1) of Rule 2, inter alia, provides that every suit shall include the whole of the claim which the plaintiff is entitled to make in respect of the cause of action.

If he relinquishes any claim to bring the suit within the jurisdiction of any court he will not be entitled to claim that relief in any subsequent suit.

However, sub rule (3) of Rule 2 provides that a person entitled to more than one relief in respect of the same cause of action may sue for all or any of such reliefs; but if he omits, except with the leave of the court, to sue for all such reliefs he shall not afterwards sue for any relief so omitted.

It is well known that Order 2 Rule 2 CPC is based on the salutary principle that a defendant or defendants should not be twice vexed for the same cause by splitting the claim and the reliefs.

To preclude the plaintiff from so doing it is provided that if he omits any part of the claim or fails to claim a remedy available to him in respect of that cause of action he will thereafter be precluded from so doing in any subsequent litigation that he may commence if he has not obtained the prior permission of the court.

But the Rule does not preclude a second suit based on a distinct cause of action.

It may not be out of place to clarify that the doctrine of res judicata differs from the rule embodied in Order 2 Rule 2, in that, the former places emphasis on the plaintiff 's duty to exhaust all available grounds in support (if his claim while the latter requires the plaintiff to claim all reliefs emanating from the same cause of action.

The High Court is, therefore, clearly wrong in its view that the relief claimed is neither relevant nor material.

Now, in the fact situation of the present case, as we have pointed out earlier, the first suit was for an injunction and not for possession of the demised property.

The first suit was dismissed on the technical ground that since the plaintiff was not in de facto possession no injunction could be granted and a suit for a mere declaration of status without seeking the consequential relief for possession could not lie.

Once it was found that the plaintiff was not in actual physical possession of the demised property, the suit had become infructuous.

The cause of action for the former suit was not based on the allegation that the possession of the plaintiff was forcibly taken sometime in the second week of June, 1968.

The allegation in the former suit was that the plaintiff was a lessee and his 1024 possession was threatened and, therefore, he sought the court 's assistance to protect his possession by a prohibitory injunction.

When in the course of that suit it was found that the plaintiff had in fact been dispossessed, there was no question of granting an injunction and the only relief which the court could have granted was in regard to the declaration sought which the court held could not be granted in view of the provisions of Specific Relief Act.

Therefore, the cause of action for the former suit was based on an apprehension that the defendants were likely to forcibly dispossess the plaintiff.

The cause of action for that suit was not on the premise that he had in fact been illegally and forcibly dispossessed and needed the court 's assistance to be restored to possession.

Therefore, the subsequent suit was based on a distinct cause of action not found in the former suit and hence we do not think that the High Court was right in concluding that the suit was barred by Order 2 Rule 2(3) of the Code of Civil Procedure.

It may be that the subject matter of the suit was the very same property but the cause of action was distinct and so also the relief claimed in the subsequent.

suit was not identical to the relief claimed in the previous suit.

The High Court was, therefore, wrong in thinking that the difference in the reliefs claimed in the two suits was immaterial and irrelevant.

In the previous suit the relief for possession was not claimed whereas in the second suit the relief was for restoration of possession.

That makes all the difference.

We are, therefore, of the opinion that the High Court was completely wrong in the view that it took based on the language of Order 2 Rule 2(3) of the Civil Procedure Code.

The Act was enacted on 16th October, 1964 to provide for the regulation of the terms of tenancy with respect to agricultural lands in the Union Territory of Goa, Daman & Diu and for matters connected therewith.

The definition of the various terms employed in the statute have been set out in section 2 thereof The expression 'agriculture ' is defined in sub section (1A) to include horticulture and raising of food crops, grass or garden produce, but not allied pursuits, meaning thereby rearing or maintaining plough bulls, breeding of livestock, dairy farming, poultry farming, grazing on grounds reserved for the purpose and such other pursuits connected with agriculture as may be prescribed.

Sub sections (7A) and (7B) which came to be incorporated by the Fifth Amendment read as under : "7A. 'Garden ' means land used primarily for growing 1025 coconut trees, arecanut trees, cashewnut trees or mango trees; 7B. 'garden produce ' means any produce from a garden.

" It will be seen from the aforesaid definitions that land used primarily for growing coconut trees falls within the expression 'garden ' and any produce therefrom would be covered by the expression 'garden produce ' Since garden produce is included within the definition of agriculture in sub section (1A) of section 2 it is clear that land used primarily for growing coconut could be described as agricultural land.

Sub section (11) (i) defines land inter alia to mean land which is used for agriculture or which is capable of being so used but is left fallow.

Section 2(23) defines a tenant to mean 'a person who on or after the date of commencement of this Act holds land on lease and cultivates it personally and includes a person who is deemed to be a tenant under this Act '.

Section 7 posits that if any question arises whether any person is a tenant or should be deemed to be a tenant under the Act, the Mamlatdar shall after holding an enquiry decide such question.

Section 8(1) stipulates that no tenancy of any land shall be terminated and no person holding as tenant shall be liable to be evicted therefrom save as provided under the Act.

Sub section (2) of section 8 next provides that where any person as is referred to in section 4 (deemed tenant) has been evicted from the land on or after 1st July, 1962 such person shall be entitled to recover immediate possession of the land in the manner prescribed by or under the Act unless the landlord proves that the termination of tenancy was in the manner authorised by section 9.

Even in cases of threatened wrongful possession section 8A says that any tenant in possession of any land or dwelling house who apprehends that he may be dispossessed contrary to the provisions of this Act may apply in the prescribed manner to the Mamlatdar for an order safeguarding his right to possession.

Section 9 lays down the modes of termination of tenancy which are (a) by the tenant surrendering his right to the landlord in the manner provided in section 10; or (b) by the landlord terminating the tenancy on the grounds specified in section 11; or (c) under any other specific provision of the Act.

Section 18 lays down the procedure for taking possession.

It says that a tenant entitled to possession of any land under any of the provisions of the Act may apply in writing for such possession to the Mamlatdar.

It will be seen from the aforesaid provisions that the forum created for determination of the question whether a person is a 1026 tenant or a deemed tenant under the Act is the Mamlatdar.

Ever where a tenant apprehends that his possession is likely to be interfered with contrary to the provisions of the Act he can make an application in the prescribed manner to the Mamlatdar for safeguarding the, same.

So also where a tenant is evicted illegally, section 8(2) permits him to approach the Mamlatdar for recovery of possession.

Unless the tenancy is terminated in the manner provided by section 9, the law precludes the landowner from terminating the tenancy and obtaining possession of the land from the tenant.

Section 58 bars the jurisdiction of courts.

Sub section (2) thereof provides that save as otherwise provided in the Act no court shall have jurisdiction to settle, decide or deal with any question which is by or under this Act required to be settled, decided or dealt with by the Mamlatdar and no order passed by him under the Act shall be questioned in any civil or criminal court.

It will thus be seen that the Act sets up an independent machinery and invests the Mamlatdar with jurisdiction to decide questions such as : (i) Whether any person is a tenant or should be deemed to be a tenant under the Act? (ii) Whether the possession of any tenant in regard to any land or dwelling house is threatened and if so, whether an order safeguarding the same is required? (iii) Whether the tenancy of any deemed tenant is legally terminated and if no, whether the tenant evicted from the land held by him as such is entitled to restoration of possession? The jurisdiction of the civil court is specifically barred by sub section (2) of Section 58 from settling, deciding or dealing with any question which is by or under the Act required to be settled, decided and dealt with by the Mamlatdar.

There can, therefore, be no doubt that after the Fifth Amendment became effective in regard to land used primarily for growing coconut trees and garden produce, the jurisdiction of the civil court was ousted by virtue of section 58(2) of the Act.

The suit in question was instituted on May 6, 1974 i.e. before the Fifth Amendment was brought into force.

Thus the amendment came into force during the pendency of the suit.

The question, therefore, is what is the effect of the Fifth Amendment on pending litigation? No provision is 1027 made in the Act in that behalf.

The High Court concluded that since 'there is nothing in the language of sections 7 and 58 of the.

Act which is primarily a welfare legislation to indicate that it should not be applied retrospectively there is no question that its applicability should be necessarily prospective.

Proceeding further the High Court takes the view that even after the Fifth Amendment came into force the plaintiff had not applied to the Mamlatdar for possession of the land within the period allowed by Section 18 of the Act and had, therefore, allowed the first defendant to become a deemed purchaser of the suit property on the strength of his tenancy.

Since the civil court had lost jurisdiction to decide the suit, the High Court dismissed it.

We may now proceed to examine whether this view taken by the High Court is correct.

From the above discussion it emerges that the Civil Court undoubtedly had jurisdiction under section 9 of the Code of Civil Procedure to try and grant eviction till the Fifth Amendment became effective.

After that amendment came into force, the provisions of the Act became applicable to the lands in question which were primarily used for growing coconut trees and receiving produce therefrom.

By virtue of section 7 any question whether a person is a tenant or a deemed tenant was required to be decided by the Mamlatdar and the jurisdiction of the Civil Court stood ousted by section 58(2) of the Act.

The question is whether this subsequent change in the law deprived the Civil Court of jurisdiction which it undoubtedly possessed on the date of the institution of the suit.

Three situations, therefore, develop in the context of the provisions of the Act as amended by the Fifth Amendment, namely, (i) the Civil Court retains jurisdiction or (ii) the Civil Court is precluded from deciding, even incidentally, questions failing within the ambit of section 7 of the Act or (iii) the Civil Court 's jurisdiction is wholly ousted.

Since the Act is silent as to the fate of pending litigation after the Fifth Amendment the situation arising on the amendment of the Act must be decided on first principles.

If a suit is filed to recover possession of agricultural land from a trespasser and no dispute arises, the adjudication whereof is required to be done by the special machinery set up under the Act, the Civil Court will continue to have jurisdiction.

If, however, the defendant raises a dispute which is required to be resolved by the special machinery under the Act, a question will arise what procedure the Civil Court should adopt.

There may arise a situation where the entire dispute pending before the Civil Court can be adjudicated by the special machinery only and not the Civil Court, what procedure the 1028 Civil Court follow in such a situation? In the case of the first mentioned situation there is no difficulty as the Civil Court will continue to have jurisdiction to settle and decide the dispute and grant appropriate relief The problem arises in the two other situations where the jurisdiction of the Civil Court is partly or wholly ousted.

Take the case of suit where possession of agricultural land is sought on the plea that the defendant is a trespasser and the defendant contends that he is a tenant.

The question of the defendant 's tenancy in respect of agricultural land would be within the exclusive jurisdiction of the Mamlatdar under section 7 read with section 58(2) of the Act.

In such a situation what procedure should the Civil Court follow ? Now take a case where the entire dispute falls within the exclusive jurisdiction of the special machinery under the Act and had the litigation commenced after the Fifth Amendment was brought into force it could not have been instituted in a Civil Court.

In that case what procedure should the Civil Court follow? These are the questions which arise for determination.

Before we answer those questions we must decide on the impact of the Fifth Amendment on pending litigation.

The question whether the Fifth Amendment is prospective or retrospective really recedes in the background if we examine the question from the angle whether the Civil Court can decide any question falling within the jurisdiction of the special forum under the Act in a pending litigation in the absence of an express provision in that behalf.

If the question of tenancy in regard to agricultural land cannot be decided by the Civil Court under the Act and there is no express saving clause permitting the Civil Court to decide the same, it is obvious that any decision rendered by the Civil Court would be without jurisdiction.

A similar situation did arise in the context of another statute.

In Shah Yograj Kuverji Oil Mills and Ginning Factory vs Subhash Chandra Yograj Sinha, ; = ; the facts were that the landlord had filed a suit for eviction on April 25, 1957 in the regular court, i.e., the Court of the Joint Civil Judge (Junior Division), Erandol, which admittedly had jurisdiction to pass a decree for possession of the demised premises.

However, during the pendency of the suit, a notification was issued under section 6 of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947, (hereinafter called 'the Rent Act ') applying Part II of the Act to areas where the property in question was situate.

The tenants claimed protection of section 12 in Part 11 of the Rent Act which deprived the landlord of the right of possession under certain circumstance 1029 The question which arose for consideration was whether the tenants were entitled to the protection of section 12 in pending cases and if yes, its effect.

Since section 12 of the Rent Act was held to be prospective, the question which arose for consideration was whether its protection could be extended to tenants in pending litigation.

This court pointed out that the point of time when sub section (1) of Section 12 operates is when the court is called upon to pass a decree for eviction.

Thus, said this Court the language of the sub section applies equally to suits pending when Part 11 comes into force and those to be filed subsequently.

The contention of the landlord that the operation of section 12(1) is limited to suits filed after the Rent Act comes into force in a particular area was not accepted.

Applying the same principle to the facts of the present case, we have no hesitation in concluding that the provisions of the Fifth Amendment would apply to pending suits also.

However, the Act does not preclude the institution of a suit by a tenant for restoration of possession from a trespasser.

If the defendant who is sued as a trespasser raises a plea of tenancy, a question arises whether his plea of tenancy can be decided by the Civil Court as incidental to the grant of relief for possession or is the Civil Court precluded from deciding the same in view of section 7 read section 58(2) of the Act.

As pointed out earlier, section 7 in terms states that if any question arises whether any person is a tenant or should be deemed to be a tenant under the Act, the Mamlatdar shall decide such question.

The jurisdiction is, therefore, vested in the Mamlatdar under section 7 of the Act and section 58(2) specifically bars the jurisdiction of all other courts to settle, decide or deal with any question which is by or under the Act required to be settled, decided or dealt with by the Mamlatdar.

Section 8(2) has limited operation where a person referred to in section 4 has been evicted on or after 1st July, 1962.

In that case he would be entitled to recover immediate possession of the land in the manner prescribed by or under the Act unless it is shown that his tenancy was terminated in the manner authorised by section 9.

In the present case, the plaintiff came to court contending that even though his lease was not terminated as provided by section 9 of the Act, defendant No.1 had dispossessed him by an act of trespass.

He, therefore, sought possession of the demised property from the trespasser, defendant No.1.

He impleaded the owner of the land as defendant No.2 on the plea that she had colluded with defendant No.1.

Defendant No.1 raised a contention in his written statement that he was lawfully inducted as a tenant in the lands in question 1030 by the owner, defendant No.2.

In other words, he disputed the plaintiff 's contention that, he was a trespasser and pleaded tenancy.

If his plea was found to be well founded, he would be entitled to retain possession but not otherwise.

Therefore, the question which arose in the suit was whether defendant No.1 proved that he was a tenant in respect of the land in question.

This question could not be gone into by the Civil Court in view of the clear language of section 7 read with section 58(2) of the Act.

What procedure should the court follow in such situations? It would not stand to reason to non suit the plaintiff who had filed the suit in a competent court having jurisdiction to try the same merely because of the subsequent change in law.

The proper course, therefore, would be one which was followed by the Bombay High Court in Bhimaji Shankar Kulkami vs Dundappa Vithappa Udapudi & Anr., ; = ; That was a case arising under the provisions of the Bombay Tenancy and Agricultural Lands Act, 1948.

The lands in question were agricultural lands.

Section 29(2) of that law provided that no landlord shall obtain possession of any land or dwelling house held by a tenant except under an order of the Mamlatdar on an application made in that behalf in the prescribed form.

Section 70(b) next provided that for the purposes of the Act, one of the duties and functions to be performed by the Mamlatdar is to decide whether a person is a tenant or a protected tenant or a permanent tenant.

Section 85(1) laid down that no Civil Court shall have jurisdiction to settle, decide or deal with any question which is required to be settled, decided or dealt with by the Mamlatdar under the statute.

The law was silent as to how a dispute of this nature raised in a suit filed for eviction on the footing that the defendant is a trespasser should be dealt withby the Civil Court.

This question squarely arose for consideration by the Bombay High Court in Dhondi Tukaram vs Hari Dadu AIR 1954 Bom 100 ILR wherein that court observed as under: "Therefore, we hold that in a suit filed against the defendant on the footing that he is a trespasser if he raises the plea that he is a tenant or a protected tenant, the Civil Court would have no jurisdiction to deal with that plea. .

We would, however, like to add that in all such cases where the Civil Court cannot entertain the plea and accepts the objection that it has no jurisdiction to try it, it should not proceed to dismiss the suit straightaway.

We think that the proper procedure to adopt in such cases 1031 would be to direct the party who raises such a plea to obtain a decision from the Mamlatdar within a reasonable time.

If the decision of the Mamlatdar is in favour of the party raising the plea, the suit for possession would have to be dismissed, because it would not be open to the Civil Court to give any relief to the landlord by way of possession of the agricultural land.

If, on the other hand, the Mamlatdar rejects the plea raised under the Tenancy Act, the Civil Court would be entitled to deal with the dispute on the footing that the defendant is a trespasser.

" Pursuant to the court 's recommendation, the Bombay Legislature introduced section 85A which provided that if in any suit instituted in a Civil Court issues which are required to be settled, decided and dealt with by any authority patent to settle, decide and deal with the same arises, the Civil Court shall stay the suit and refer such issues to such competent authority for determination under the statute.

Unfortunately even under the Act with which we are concerned the Legislature though aware of section 85A has not chosen to make any provision for dealing with such situations.

We are, therefore, of the opinion that it would be just and fair that the issue whether defendant No.1 was a tenant in respect of the lands in question should be referred to the Mamlatdar for decision and after his decision is received by the Civil Court if the issue is held against defendant No.1, the Civil Court may consider passing of a decree in eviction but if on the other hand he is held to be tenant, the Civil Court may be required to dismiss the suit.

One further situation which may arise under the provisions of the Act may be taken note of.

The impact of the Fifth Amendment may give rise to a situation where the remedy lies entirely under the Act and may have to be taken in the manner prescribed by or under the Act.

For example, where a person who is a deemed tenant under section 4 of the Act if evicted from the land on or after ' 1st July, 1962 his remedy under section 8(2) is to approach the authority under the Act for recovery of possession of the land of which he has been dispossessed.

In such a situation the remedy may not be the one available in the case of a tenant other than a deemed tenant whose case is not governed by section 8(2) of the Act.

But in the case of a deemed tenant who has been evicted from the land on or after 1st July, 1962 since a remedy has been provided under 1032 the Act, the Jurisdiction of the Civil Courts stands wholly barred by virtue of Section 58 (2) of the Act.

In such a situation the Civil Court would not be competent to pass any order for restoration of possession to the deemed tenant.

His remedy would, therefore, to be entirely under the Act.

This is just by way of an illustration.

If such a situation arises what procedure should the court follow in a pending suit which was instituted in a competent court having jurisdiction at the date of its institution.

It would seem unfair to non suit the plaintiff altogether for no fault of his own.

We think, in such a situation where the entire dispute falls outside the Civil Court 's jurisdiction on account of the change in law the proper course would be to follow in spirit the procedure outlined in Order 7 Rules 10 and 10A of the Code of Civil Procedure.

Since the paper book in this appeal does not contain the original plaint and the written statement and counsel were unable to enlighten us on the actual nature of the pleadings we have tried to indicate the procedure to be followed by the Civil Court on illustrative fact situations.

In the circumstances, we are left with no alternative but to remit the matter to the Trial Court with a direction to follow the course that may be found appropriate in the fact situation arising out of the pleadings in this case and the nature of the questions required to be determined for grant or refusal of relief claimed in the suit.

We would like to make it clear that the hypothetical situations may or may not apply to the fact situation that may emanate of the pleadings in this case and it would be for the Trial Court to determine the course of action to be adopted in the light of the guidelines indicated hereinabove.

In view of the foregoing discussion, we allow this appeal, set aside the order of the High Court which in either case lacked jurisdiction to decide the question regarding tenancy on merits and remit the matter to the Trial Court for further orders in the light of the observation hereinabove made.

Having regard to the peculiar facts and circumstance, of the case, we make no order as to costs.

R.P. Appeal allowed.

Summary: The plaintiff, predecessor in interest of the appellants, flied a suit for a declaration and an injunction to restrain the defendant respondents from dispossessing him from a certain property comprising of a coconut grove.

Summary: The trial court dismissed the suit holding that the, plaintiff was no more in possession of the suit property, and, therefore, a suit for a mere declaration simplicitor could not lie.

Summary: Consequently, the plaintiff flied another suit for restoration of possession.

Summary: His case was that he was a tenant of the suit property, whereof defendant No. 2 was the owners ' and 1016 that he was forcibly dispossessed by defendant No. 1, in collusion with defendant No. 2, without his tenancy having been lawfully terminated.

Summary: It was alleged that the defendants were trespassers and liable to be evicted.

Summary: The defendants, besides raising the pleas of res judicata and/or constructive res judicata purported to be based on Order 2 Rule 2(3) of the Code of Civil Procedure, contended that defendant No. 1 was in lawful possession of the suit property as the same was let out to him by defendant No. 2 after the lease in favour of the plaintiff stood terminated by efflux of time, and the suit, as such, was not maintainable.

Summary: The trial court decreed the suit holding that the suit property was demised to the plaintiff as he was the lawful tenant thereof, and defendant No. 1 in collusion with defendant No. 2 wrongfully dispossessed him.

Summary: The appeal riled by the defendants was dismissed by the first appellate court.

Summary: The second appeals filed by the defendants were allowed by the High Court holding that the suit was barred by res judicata as well as Order 2 Rule 2(3) C.P.C.

Summary: The High Court also held that during the pendency of the suit as a result of the amendment of the Goa, Daman and Diu Agricultural Tenancy Act, 1964 by Act 17 of 1976, known as the Fifth Amendment, the definition of 'agriculture ' was changed and the suit property came to be covered within the expression 'agricultural land ' which rendered the civil court without jurisdiction and the decree passed by it unsustainable.

Summary: Aggrieved, the heirs and legal representatives of the plaintiff, filed the appeal by special leave.

Summary: Allowing the appeal, this Court, HELD: 1.1 A subsequent suit would be barred by res judicata only when the subject matter of the suit was directly and substantially in issue in the previous suit.

Summary: [p. 1022 C] 1.2.

Summary: The first suit was dismissed on a technical ground that the suit for a mere declaration without seeking consequential relief of possession could not lie.

Summary: In that suit the issue regarding the status of the plaintiff as a lessee was not settled once for all and hence that issue could not be stated to be barred by res judicata in the subsequent suit brought by the lessee for possession of the demised property.

Summary: The High Court was not right in holding 1017 that the second suit was barred by res judicata.

Summary: 1022 F H] 2.1.

Summary: Order 2 Rule 2 CPC is based on,the salutory principle that a defendant or defendants should not be twice vexed for the same cause by splitting the claim and the reliefs.

Summary: It does not preclude a second suit based.

Summary: on a distinct cause of action.

Summary: [p. 1023 C E] 2.2.

Summary: The doctrine of res judicata differs from the rule embodied In Order 2 Rule 2, in that, the former places emphasis on the plaintiff 's duty to exhaust all available grounds in support of his claim while the latter requires the plaintiff to claim all reliefs emanating from the same cause of action.

Summary: [p. 1023 E] 2.3.

Summary: The cause of action for the former suit was based on an apprehension that the defendants were likely to forcibly dispossess the plaintiff.

Summary: The suit was for an injunction and not for possession of the demised property.

Summary: It was not on the premise that the plaintiff had in fact been illegally and forcibly dispossessed and needed the court 's assistance to be restored to possession.

Summary: Therefore, the subsequent suit was based on a distinct cause of action not found in the former suit.

Summary: The High Court was not right in concluding that the suit was barred by Order 2 Role 2(3) of the Code of Civil Procedure, and that the difference in the reliefs claimed in the two suits was immaterial and irrelevant.

Summary: In the previous suit, the relief for possession was not claimed whereas in the second suit the relief was for restoration of possession.

Summary: That makes all the difference.

Summary: [pp. 1023 F, 1024 B D] 3.1.

Summary: The impact of the Fifth Amendment on pending litigation is that the question of tenancy in regard to agricultural land cannot be decided by the civil court under the Act and there being no express saying clause permitting the civil court to decide the same, any decision rendered by the civil court would be without jurisdiction.

Summary: The change in law deprived the civil court of jurisdiction which it undoubtedly possessed on the date of the institution of the suit.

Summary: Thus, the provisions of the Fifth Amendment would apply to pending suits also.

Summary: [pp. 1027 D E; 1028 D E; 1029 C] Shah Bhojraj Kuverji Oil Mills and Ginning Factory vs Subhash Chandra Yograj Sinha; , , relied on.

Summary: The Act does not preclude the institution of a suit by a tenant 1018 for restoration of possession from a trespasser.

Summary: [p. 1029 C] 3.3.

Summary: If a suit Is riled to recover possession of agricultural land from a trespasser and no dispute arises, the adjudication whereof is required to be done by the special machinery set up under the Act, the civil court will continue to have jurisdiction.

Summary: [p. 1027 F G] 3A.

Summary: If possession of agricultural land is sought on the plea that the defendant is a trespasser and the defendant contends that he is a tenant, the claim of tenancy by defendant cannot be gone into by the civil court in view of the clear language of S.7 read with section 58(2) of the Act In such a situation, it would not stand to reason to non suit the plaintiff who had flied the suit in a competent court having jurisdiction to try the same, merely because of the subsequent change in law.

Summary: The proper course, therefore, would be that the issue whether the defendant was a tenant should be referred to the Mamlatdar for decision and, after his decision is received by the civil court, if the issue is held against the defendant, the civil court may consider passing of a. decree.

Summary: for eviction but if, on the other hand, he is held to be a tenant, the civil court may be required to dismiss the suit [pp. 1029 F H; 1030 A B; 1031 D E] Bhimaji Shankar Kulkam vs Dundappa Vithappa Udapudi & Anr., ; =. ; and Dhondi Tukaram vs Hari Dadu, AIR 1954 Bom.

Summary: 100 = ILR , relied on.

Summary: The impact of Fifth Amendment may give rise to a situation where a deemed tenant under s.4 of the Act is evicted from the land on or after 1st July, 1962; his remedy under s.8(2) is to approach the authority under the Act for recovery of possession of the land of which he has been disposed, and jurisdiction of the civil court stands wholly barred by virtue of s.58(2) of the Act as it would not be competent to pass any order for restoration of possession to the deemed tenant.

Summary: If such a situation arises in a pending suit which was instituted in a competent court having jurisdiction at the date of its institution, it would be unfair to non suit the plaintiff altogether for no fault of his own and the proper course would be to follow in spirit the procedure outlined in Order 7, Rules 10 and 10A, C.P.C. [pp. 1031 F H; 1032 A B] 4.

Summary: The High Court lacked jurisdiction to decide the question regarding tenancy on merits.

Summary: Its order is set aside and the matter is remitted to 1019 the trial court to determine the course of action to be adopted in accordance with the guideline indicated hereinabove.

Summary: [p. 1032 D F]