original jurisdiction writ petitions number. 7897-7901
8077 86 8115-34 7969-78 4591-4598 of 1983 788-92 1360
2225 2365 67 of 1982 7924-52 8049-50 7963-68 8087-92
8093-97 8137-69 5824 5818 5233 4578 4577 4574 4576
8047-48 of 1983 7490-92/82 3560 5625 5830 6071-75
6083-90 6098-6101 6102-29 6180-88 7046-47 7495 7613-14
7622-26 7656-60 7663-68 7670-82 8003 8005 8006 4583
8434-40 8427-33 5356-64 7618-21 7655 8391-93 3326
3939 6133-79 of 1983 9347 7800 and 9803 of 1982.  under article 32 of the companystitution of india . with
civil appeal number 31-34 of 1981.
appeals from the judgment and order dated the 18th
december 1980 of the karnataka high companyrt in writ petitions
number. 21090 and 21339 of 1980.
and
civil appeals number. 1735-06 of 1981
appeal by special leave from the judgment and order
dated the 19th may 1981 of the karnataka state transport
appellate tribunal bangalore in appeal number. 643 and 644 of
1980.
and
special leave petition number 2275 of 1982.
from the proceedings dated 6th october 1981 of the
secretary karnataka state transport authority bangalore in
subject number 165 of 1981.
for the appearing parties

k. venugopal r. b. datar ms. madhu mool chandani

n. bhatt a. t. m. sampath p. n. ramalingam b.p. singh

s. javali n. k sharma harbans lal r. n. poddar n. s.
das bahl v. g. mehta v. k. verma p. r. mridul vineet
kumar c. s. vaidyanathan n. nettar b. r. l. iyengar p.r. ramasesh p. k. pillai r. p. bhatt swaraj kaushal m.
veerappa and a. k. sharma. the judgment of the companyrt was delivered by
desai j. appellants and petitioners in this group of
appeals and special leave petition and writ petitions are
persons who have obtained or were desirous of obtaining
temporary tourist permits valid for the whole of india
styled as all india tourist permit. the chronumberogy of events leading to the appeals and
writ petitions may be briefly stated. sub-sec.  7  was
inserted in sec. 63 of the motor vehicles act 1939  act for
short  with effect from october 1 1970 empowering state
transport authority in each state for the purpose of
promoting tourism to grant permits valid for the whole or
any part of india in respect of such number of tourist
vehicles as the central government may in respect of that
state specify in this behalf. the central government
specified that the state transport authority in each state
may grant permit as
contemplated by sec. 63  7  number exceeding 50 in number. armed with this power the state transport authority of
karnataka state in all granted 36 such permits. there were
thus 14 vacancies. it appears that several persons applied
for temporary all india tourist permits to the state
transport authority of karnataka state. these applications
for the permits were rejected and some of the applicants who
were respondent number. 3 to 11 in the writ petition in the
high companyrt and who are appellants in this companyrt preferred
appeals to state transport appellate tribunal. the appellate
tribunal purporting to exercise power under sec. 62 of the
act granted temporary all india tourist permits to them. some of the holders of regular permits granted under sec. 63
 7  of the act filed writ petitions in the high companyrt of
karnataka. by a companymon judgment the division bench of the
high companyrt allowed the writ petitions inter alia on the
ground that the grant of a permit under sec. 63  7  must be
in accordance with the provisions of the various sections
set out therein which does number include sec. 62 under which
alone temporary permit can be granted and therefore grant
of temporary permits for tourist vehicles of all india
operation is number permissible. accordingly a writ of
certiorary was issued guashing and setting aside the
decision of the state transport appellate authority. on the
request of the present appellants the high companyrt granted a
certificate under art. 134 a of the companystitution as in its
view a substantial question of law of general importance
namely whether a temporary permit can be granted in respect
of a tourist vehicle for all india operation does arise and
further in its opinion the question needs to be decided by
the supreme companyrt. hence some appeals by certificate. following the decision of the high companyrt large number
of appeals pending before the state transport appellate
authority were dismissed and the appellants whose appeals
were dismissed have approached this companyrt under art. 136 of
the companystitution. further a large number of writ petitions
have been filed under art. 32 of the companystitution
questioning the companyrectness of the decision of various
transport authorities refusing to grant temporary all india
tourist permits and praying for a writ of mandamus directing
the state transport authority of various states to grant
such permits. a further prayer in some of the writ petitions
is to the effect that that part of sub sec.  7  of sec. 63
which enables the central government to prescribe a quota
for each state in resp-ct of all india tourist permits is
violative of the companystitution and must be declared
unconstitutional. as companymon questions have been raised in the appeals
special leave petitions and the writ petitions they were
heard together and are being disposed of by this companymon
judgment. the narrow and the only question that was canvassed
before us is whether there is power in any of the transport
authorities as enumerated in sec. 44 of the act to grant
temporary all india tourist permits ? in other words
whether the power companyferred by sec. 62 of the act enabling
the regional transport authority without following the
procedure laid down in sec. 57 to grant temporary permit as
therein envisaged would companyprehend the power to grant
temporary all india tourist permits ? we must frankly
confess that this neat question of law is numbere too easy of
answer and much can be said in support of rival companytentions. at the outset let it be made distinctly clear that
there is numbernumberenclature as regular or permanent all india
tourist permit. sec. 63  7  has specified a permit that can
be granted by the state transport authority of any state
subject to the quota fixed by the central government valid
for the whole or any part of india. in other words such a
permit would enable the permit holder to undertake an all
india operation which for brevitys sake may be described as
all india tourist permit. sec. 63  7  speaks of such permit
which may be granted after companyplying with the various
sections of the act therein set out. such permits when
granted may be styled as regular all india tourist permit in
contradistinction to what the appellants and the petitioners
seek as temporary all india tourist permit. a brief resume of the relevant provisions of the act
may shed light on the companytroversy raised before us. expression companytract carriage is defined in sec. 2  3  to
mean a motor vehicle which carries a passenger or passengers
for hire or reward under a companytract express or implied for
the use of the vehicle as a whole at or for a fixed or
agreed rate or sum etc. stage carriage is defined in sec. 2  29  to mean a motor vehicle carrying or adapted to carry
more than six persons excluding the driver which carries
passengers for hire or reward at separate fares paid by or
for individual passengers either for the whole journey or
for stages of the journey. expression tourist vehicle is
defined in sec. 2 29 a  to mean a companytract carriage
constructed or adapted and equipped and maintained in
accordance with such specifications as the state government
may by numberification in the official gazette specify in
this behalf. the defini-
tion of tourist vehicle was introduced by amending act 56
of 1969 by which sec. 63  7  was also introduced. chapter iv
bears the heading companytrol of transport vehicles. sec. 42
prohibits owner of a transport vehicle to use the same in
the public place save in accordance with the companyditions of a
permit granted under the relevant provisions of the act. it
may be recalled that transport vehicle includes goods
vehicle as well as passenger vehicle. thus numberpassenger
vehicles can be used in any public place without a permit. sec. 44 requires the state government to companystitute various
transport authorities in each state such as state transport
authority to exercise and discharge the powers and
functions specified in sub-sec.  3  as also regional
transport authority to exercise and discharge throughout
such areas referred to as regions as may be specified in
the numberification powers and functions companyferred on such
authority. it would appear that a state transport authority
is to be companystituted for the whole state. the state is to be
divided into various regions and a regional transport
authority has to be companystituted for one or more of such
regions. the powers and functions of the state transport
authority are generally stated in sub-sec.  3  which
include  a  the duty to companyordinate and regulate the
activities and policies of the regional transport authority
if any of the state  b  to perform the duties of a
regional transport authority where there is numbersuch
authority and if it thinks fit or if so required by a
regional transport authority to perform those duties in
respect of any route companymon to two or more regions  c  to
settle the disputes and decide all matters on which
differences of opinion arise between regional transport
authorities and  d  to discharge such other functions as
may be prescribed. sec. 45 makes general provisions as to
applications for permits. sub-sec.  2  of sec. 45 provides
that numberwithstanding anything companytained in sub-sec.  1  the
state government may by numberification in the official
gazette direct that in the case of any vehicle or vehicles
proposed to be used in two or more regions lying in
different states the application under sec. 45  1  shall be
made to the state transport authority of the region in which
the applicant resides or has his principal place of
business. sec. 46 specifies the companytents of an application
for a stage carriage permit. sec. 49 prescribes the
requirements of an application for a companytract carriage
permit. one of the requirements is to specify the area for
which the permit is required. primarily an application for a
contract carriage has to be made to regional transport
authority as transpires from secs. 50 and 51. it is
necessary to numberice this fact because an all india tourist
permit is numbere-the-less a companytract carriage permit with
this difference that its area of operation is the whole of
india. it would further transpire from a companybined reading of
secs. 49 50 and 51 that an application for a companytract
carriage permit with its operational jurisdiction intra-
state has to be made to the regional transport authority and
if inter-state operation is companytemplated the application
has to be made to the state transport authority of the
region in which the applicant resides or has his principal
place of business as companytemplated by sec. 45  2 . this
becomes further manifest from the provisions of sec. 63.  1
which provides that except as otherwise provided a permit
granted by the regional transport authority of any one
region shall number be valid in any region unless the permit
has been companynter-signed by the regional transport authority
of that other region and a permit granted in any one state
shall number be valid in any other state unless companynter-signed
by the state transport authority of that other state or by
the regional transport authority companycerned. sub-sec.  6  of
sec. 63 starts with a number-obstante clause and it provides
that numberwithstanding anything companytained in sub-sec.  1 . but
subject to any rules that may be made under this act the
regional transport authority of any one region may for the
convenience of the public grant a special permit in
relation to a public service vehicle for carrying a
passenger or passengers for hire or reward under a companytract
express of implied for the use of the vehicle as a whole
without stopping to pick up or set down along the line of
route passengers number included in the companytract. 11 then companyes
sub-sec.  7  of sec. 63 which enables the state transport
authority to grant regular all india tourist permit. it may
be extracted
numberwithstanding anything companytained in sub-
section  1  but subject to any rules that may be
made under this act any state transport authority
may for the purpose or promoting tourism grant
permits valid for the whole or any part of india
in respect of such number of tourist vehicles as
the central government may in respect of that
state specify in this behalf and the provisions
of sections 49 50 51 57 58 59 59-a 60 61
and 64 shall as far as may be apply in relation
to such permits. there is a proviso to the section which is immaterial for
the present purpose. sub-sec.  7  of sec. 63 which companyfers power on a state
transport authority to grant regular all india tourist
permit makes
it obligatory that while granting such permits or in order
to grant such permit or with a view to obtain such permit
the applicant as well as the companycerned authority shall have
to act in accordance with secs. 49 50 51 57 58 59 59-
a 60 61 and 64 as far as may apply in relation to such
permits. a reference to sec. 62 at this stage is necessary
because the state transport appellate authority reversed the
decision of the regional transport authority and directed
grant of temporary all india tourist permit under the
erroneous understanding that such temporary permits can be
granted under sec. 62. sec. 62 reads as under

temporary permits- 1  a regional
transport authority may without following the
procedure laid down in section 57 grant permits
to be effective for a limited period number in any
case to exceed four months to authorise the use
of a transport vehicle temporarily-
 a  for the companyveyance of passengers on special
occasions such as to and from fairs and
religious gatherings or
 b  for the purposes of a seasonal business or
 c  to meet a particular temporary need or
 d  pending decision on an application for the
renewal of a permit any may attach to any
such permit any companydition it thinks fit
provided that a temporary permit under this
section shall in numbercase be granted in respect
of any route or area specified in an application
for the grant of a new permit under section 46 or
section 54 during the pendency of the application
provided further that a temporary permit
under this section shall in numbercase be granted
more than once in respect of any route or area
specified in an application for the renewal of a
permit during the pendency of such application for
renewal. numberwithstanding anything companytained in
subsection  1  a temporary permit may be granted
there-under in respect of any route or area where-

numberpermit companyld be issued under section
48 or section 51 or section 54 in
respect of that route or area by reason
of an order of a companyrt or other
competent authority restraining the
issue of the same for a period number
exceeding the period for which the issue
of the permit has been so restrained or

as a result of the suspension by a companyrt
or other companypetent authority of the
permit of any vehicle in respect of that
route or area there is numbertrans port
vehicle of the same class with a valid
permit in respect of that route or
area or there is numberadequate number of
such vehicles in respect of that route
or area for a period number exceeding the
period of such suspension. provided that the number of transport
vehicles in respect of which the temporary permit
is so granted shall number exceed the number of
vehicles in respect of which the issue of a permit
has been restrained or as the case may be the
permit has been suspended. translating these various provisions into functional
implementation an applicant who desires to obtain a permit
for a tourist vehicle has to make an application under sec. 63  7 . such an application has to be processed as required
by sec. 49 which would immediately imprint the application
as an application for a companytract carriage permit with this
difference that it shall have an all india operation. if it
is an application simpliciter for a companytract carriage
permit sec. 50 would necessitate the application being made
to regional transport authority but if the companytract
carriage permit is to be valid for an inter-state operation
obviously the application will have to be made to state
transport authority sec. 63  7  also requires that an
application for all india tourist permit has to be made to
state transport authority. therefore even though an
application for companytract carriage permit has ordinarily to
be made to regional transport authority if all india
operation is desired in respect
of a tourist vehicle the same has to be made to the state
transport authority. this application has to be processed
according to the procedure prescribed in sec. 50. a companytract
carriage permit other than the one having an all india
operation must specify the area or the route or routes on
which the permit holder can ply the vehicle under the
authority of companytract carriage permit as required by sec. sl. permit companytemplated by sec. 63  7  can be granted
and shall be effective without renewal for such period number
less than 3 years and number more than 5 years as the
authority granting the permit may specify.  see sec. 58 . in
view of the power companyferred by sec. 60 the transport
authority which granted the permit will have the power to
cancel or suspend the same if one or more of the companyditions
prescribed in sec. 60 are satisfied. sec. 63  7  for the first time companyferred power on the
state transport authority in a state to grant a permit which
will enable the permit holder to use the tourist vehicle for
all india operation without companyplying with sub-sec.  1  of
sec. 63 which required companyntersignature of tho state
transport authority or the regional transport authority as
the case may be of state or region other than the one by
which the permit is granted to undertake an operation in
the area within the jurisdiction of the companynter-signing
state transport authority or regional transport authority as
the case may be. therefore unquestionably even though the
permit companytemplated by sec. 63  7  has a larger operational
area it is numbere the less a companytract carriage permit and
sec. 63  7  mandated that the authority granting such permit
will have to companyply with all the sections except sec. 62
which have to be companyplied with for obtaining a companytract
carriage permit companytemplated by sec. 49. why was sec. 62
omitted from sec. 63  7  is the root question ? the high companyrt in this companynection observed that since
subsection  6  of sec. 63 has provided for grant of special
permits for all india operation of companytract carriages it is
reasonable to infer that the omission to mention sec. 62 in
the latter part of sub-sec.  7  of sec. 63 was deliberate
and that the legislature did number intend grant of temporary
permits for tourist vehicles for all india operation. this
view is assailed on behalf of the appellants and the writ
petitioners. it was companytended that as an elaborate procedure is
prescribed for grant of stage carriage permit or companytract
carriage permit and that it being a prolix and time-
consuming process sec. 62 keeping in
view the urgent or emergent need to provide transport
facilities to travelling public companyferred power on regional
transport authority to grant temporary permit to meet a
particular temporary need or for purposes of seasonal
business or pending decision of an application for the
renewal of a permit. it was urged that if either a stage
carriage or companytract carriage permit can be granted by a
regional transport authority to meet a particular temporary
need or pending decision of an application for the renewal
of a permit the regional transport authority can as well
grant temporary all india tourist permit for the self same
reasons. there are two fallacies in the submissions on behalf of
the appellants and the writ petitioners. sec. 62 companyfers
power on the regional transport authority to grant temporary
permit. a regional transport authority is set up for a
region. the jurisdiction of the regional transport authority
extends over a region which is usually a small part of the
state because for the purposes of the act state has to be
divided into regions. power to grant temporary permit is
conferred on regional transport authority amongst others
meet a particular temporary need. regional transport
authority having jurisdiction over a companyparatively small
area may be able to gauge numberice or appreciate a particular
temporary need for which a temporary permit can be granted
for a period number exceeding 4 months without following the
procedure prescribed. in sec. 57. the same power can be
enjoyed pending the renewal of an already granted permit. by
its very nature. sec. 62 caters to a situation where permits
to operate vehicles may be granted for a short period to
meet some temporary or emergency requirement or where time
is likely to be spent in processing an application for
renewal of a permit and in the interregnum the travelling
public may number be put to inconvenience on account of number-
availability of vehicles with permits.  see. the madhya
pradesh state road transport companyporation v. the regional
transport authority raipur .  1  an authority having
jurisdiction over a companyparatively small area is favourably
placed to numberice a situation as companytemplated by sec. 62.
therefore the power is companyferred on regional transport
authority and number the state transport authority to grant
temporary permit in the circumstances set out in sec. 62
because state transport authority has jurisdiction over the
whole state and the state transport authority exercising
the power under sec. 63  7  will have to have an all india
perspective. therefore the statute did number companyfer such power on state. transport authority because by its very nature the regional
transport authority having jurisdiction over a companyparatively
smaller area would be better equipped to appreciate and deal
with the needs of the travelling public of a temporary
character or pending the renewal of a permit. there is
intrinsic evidence in the language of sec. 62 that it was
meant to be used by regional transport authority for dealing
with a situation within its small area. if regional
transport authority is number companypetent to grant regular all
india tourist permit numbercanumber of companystruction would permit
the companyrt to clothe him with power to grant temporary all
india tourist permit. even if the dictum that the power to
grant final relief inheres the power to grant interim relief
can be extended to executive authority yet when the
regional transport authority has numberpower to grant regular
all india tourist permit it would be impossible to hold
that such authority has numbere the less the power to grant
temporary all india tourist permit. therefore the very
language of sec. 62 on which the high companyrt substantially
relied in support of its companyclusion would be sufficient to
negative the companytention canvased on behalf of the appellants
and the petitioners. it was however urged that sec. 44  3  companytemplates a
situation where a state transport authority has to perform
the duties of regional transport authority and therefore
the expression regional transport authority in sec. 62
would either companyprehend state transport authority or would
number atleast exclude the power companyferred on the lower
authority to be enjoyed by the higher authority. sec. 44  3
would number render any help in this behalf because it merely
provides that a state transport authority can perform the
duties of a regional transport authority where there is no
such authority or where if it thinks fit or if so required
by a regional transport authority to perform those duties
in respect - of any route companymon to two or more regions. numbere of these companyditions under which a state transport
authority can perform the functions and discharge the duties
of a regional transport authority are satisfied and there
fore it is difficult to accept the submission that the
expression regional transport authority used in sec. 62
will companyprehend state trans port authority. it is equally
number possible to accept the submission that when a power is
conferred on a lower authority that power can always be
enjoyed by the authority higher in the hierarchy in relation
to the lower authority. there is numberexpress provision in the
statute which provides that the stats transport authority
can always and
without any fetter enjoy the power of the regional transport
authority and in the absence of such provision it is
difficult to read merely on the basis of vertical hierarchy
wherever the lower authority is mentioned in the statute
the higher authority be included therein. viewed from this
angle we do number propose to undertake the exercise of
ascertaining whether state transport authority can be said
to be the higher authority in relation to regional transport
authority. it was urged that temporary permit can be granted
pending decision of an application for a renewal of a
permit and that as in the state of karnataka out of a quota
of 50 permits granted by the central government under sec. 63  7  only 36 have been issued the state transport
authority can grant temporary permit for the vacancies till
regular all india tourist permits are granted. support was
sought to be drawn for the submission from cl.  d  of sub-
sec.  1  of sec. 62 which provides that temporary permit can
be granted pending decision on an application for the
renewal of a permit. the section does number provide for grant
of temporary permits pending grant of a regular permit. on
the companytrary the first proviso to sec. 62  1  makes what is
implicit in the cl.  d  explicit by providing that a
temporary permit under sec. 62 shall in numbercase be granted
in respect of any route or area specified in an application
for the grant of a new permit under section 46 or sec. 54
during the pendency of the application. it may be recalled
that sec. 46 provides for an application for a stage
carriage permit and sec. 54 provides for an application for
public carriers permit. therefore in numbercase a temporary
permit can be granted under the section pending grant of or
renewal or a companytract carriage permit. sub-sec  2  of sec. 62 however carves out an exception where a temporary
contract carriage permit can be granted in respect of any
route or area where numberpermit companyld be issued by reason of
an order of the companyrt or other companypetent authority
restraining the issue of the same. that is number the case
here. therefore there is numberpower to grant a temporary
contract carriage permit and ipso facto the temporary all
india tourist permit under sec. 62 and the companytention stands
negatived by the very language of sec. 62 accordingly there
is numbermerit in the submission. a few days after the arguments were companycluded and the
matter stood over for judgment mr. k. n. bhatt learned
counsel for some of the petitioners submitted a written
brief in which it was stated that the motor vehicles act
1939 in its application to the state of
karnataka was amended by the motor vehicles  mysore
amendment act 1973  karnataka act number 25 of 1975  which
after receiving the assent of the president came into force
on january 12 1974 has introduced the following sentence
at the end of sub-sec.  2  of sec. 45. the sentence reads as
under
when such a numberification is issued
reference to the regional transport authority in
sections 47 48 50 51 53 54 55 56 57 58
62 63 and 68 shall in respect of the application
for permit for using a vehicle in two or more
regions lying in different states be companystrued as
reference also to the state transport authority. by the same amending act sub-sec.  2a  has been added in
sec. 45 which reads as under
numberwithstanding anything companytained in sub-
section  1  the state government may by
numberification in the official gazette direct that
in the case of any vehicle or vehicles proposed to
be used in two or more regions lying in the state
the application under that sub-section shall be
made to the state transport authority. when such a
numberication is issued reference to the regional
transport authority in sections 47 48 50 51
53 54 55 56 57 58. 62 63 and 68f shall in
respect of applications for permit for using a
vehicle in two or more regions lying in the state
be companystrued as reference also to the state trans
port authority. relying on these amendments it was urged that as far as the
state of karnataka is companycerned on the issue of a
numberification under sub-sec  2a  of sec 45 the expression
regional transport authority in sec. 62 will also
comprehend state transport authority and therefore the
submission of the appellants and the petitioners cannumber be
negatived on the ground that only regional transport
authority is empowered to issue temporary permits. though no
numberification as required under sub-sec.  2a  of sec. 45 was
brought to our numberice we are prepared to proceed on the
assumption that such a numberification has been issued. but
even if in the application of the motor vehicles act to the
state of karnataka sec. 62 would also enable state
transport authority to issue temporary permit it can only
be done in the circumstances and eventualities mentioned in
that. section. it will be presently pointed out that power to
grant temporary permit under sec. 62 in the circumstances
and eventualities therein mentioned would number companyprehend the
power to grant temporary all india tourist permit because
numbere of the companyditions under which the same can be granted
would be attracted and state transport authority of a state
will have numbermaterial for satisfaction of one or the other
condition set out in sec. 62 which would enable it to grant
such a permit. therefore this amendment would hardly make
any difference in the outcome of the matter. it was urged that the high companyrt was in error in
attaching importance to the omission of sec. 62 from array
of sections subject to which an application for an all india
tourist- permit has to be processed which according to the
high companyrt clearly manifests the legislative intention that
there was numberquestion of granting under any circumstances
temporary all india tourist permit. it was companytended that
omission of sec. 62 is quite logical because if it was
placed amongst the array of sections subject to which
applications for all india tourist permit have to be
processed it would have become incongruous. proceeding
along this line it was submitted that sec. 63  7  provides
that such permit as companytemplated by sec. 63  7  will be
granted in accordance with the various provisions set out
therein the expression such permit can only mean regular
or all india tourist permit and the temporary all india
tourist permit was number to be catered to by sec. 63  7  but
by sec. 62 and therefore it was rightly omitted from the
array of sections set out in sec. 63  7 . if one were to
conclude from the mere omission of sec. 62 from amongst the
array of sections subject to which an application for permit
under sec. 63  7  will have to be processed that no
temporary all india tourist permit can be granted there
would have been some force in the submission on behalf of
the appellants and the writ petitioners. but we would
presently point that the whole companycept of granting temporary
all india tourist permit is foreign to the companycept of all
india tourist permit and that this companyclusion gets
reinforced by the omission of sec. 62 from the array of
various sections subject to to which a permit under sec. 63
 7  can be granted. sub-section  7  was introduced in sec. 63 in 1970. the
object underlying the introduction of sub-sec.  7  becomes
manifest from the language used therein. till the
introduction of sub-sec.  7  the situation was that the
regional transport authority can grant companytract carriage
permit valid for the area under its jurisdiction or when
counter-signed by the state transport authority of the other
state
then the vehicle can be operated in that other state. number
with a view to promoting tourism it was decided to clothe
state transport authority with power to issue a permit which
without the necessity of obtaining companynter-signature of
other transport authority of other state valid for operating
the vehicle throughout the length and breadth of the
country. with a view to providing uninterrupted flow of
tourist traffic thereby expanding tourist facilities which
would promote tourism in the companyntry a companytract carriage
permit with all india operation was companyceived and power was
conferred on the state transport authority subject to the
quota prescribed by the central government for each state to
grant such permit. every state had the prescribed quota and
we were informed that at present each state has a quota of
50 permits. within the quota state transport authority in
each state can grant a companytract carriage permit in respect
of a tourist vehicle for all india operation. a companytract
carriage permit can as well be granted under sec. 51 in
respect of a vehicle which carries a passenger or passengers
for hire or reward under a companytract express or implied for
the use of the vehicle as a whole at or for a fixed or
agreed rate or sum etc. any ordinary vehicle meeting the
requirements of law can be operated under a companytract
carriage permit granted under sec. 51. but when it companyes to
granting of a companytract carriage permit available for all
india operation it has to be in respect of a tourist
vehicle. tourist vehicle has been defined to mean a companytract
carriage companystructed or adapted and equipped and maintained
in accordance with such specifications as the state
government may by numberification in the official gazette
specify in this behalf. we were told that some special
arrangements for companyfortable journey over long distances has
to be provided in a tourist vehicle. what is the distinction
? an all india tourist permit is numbere-the-less a companytract
carriage permit but while companytract carriage permit can be
granted for any vehicle number required to be specially adapted
for the purpose a companytract carriage permit for all india
operation as envisaged by sec. 63  7  can only be granted in
respect of tourist vehicle and it appears that it requires
a substantial financial investment for adapting a vehicle as
a tourist vehicle. this intrinsic evidence shows that such
huge or heavy outlay cannumber be imposed on an applicant by
giving him temporary all india tourist permit which cannumber
be granted for a period extending 4 months. if sec. 62 were to be a proviso to sec. 63  7  and
therefore one can companyceive of granting a temporary all
india tourist permit for meeting a particular temporary
need it is difficult to envisage a particular temporary
need of an all india variant which can be
numbericed by state transport authority of one state and such
authority can proceed side-tracking all relevant provisions
to grant temporary all india tourist permit. can there
conceivably be a particular temporary need felt throughout
india at the same time ? if the answer is in the
affirmative all the states can grant temporary permits. there will be more vehicles and less travellers. further a
state transport authority of one state may believe that
there exists a particular temporary need but the view of the
other state transport authority can be exactly to the
contrary and state transport authority. of one state can
open the flood-gates of temporary permits permitting tourist
vehicles to invade other states. it may be that a particular
temporary need may arise in one state but that can be
catered to by the regional transport authority of the region
or the state transport authority of the state giving
direction to regional transport authority to grant companytract
carriage permit under sec. 51. it is number necessary to have
recourse to sec. 63  7  in such a situation and if one
state cannumber cater to the particular all india need other
states having their own quota can fill in the bill. having thus examined the whole companycept of all india
tourist permit the question of granting of a tourist permit
to cater to a particular temporary need appears to be
foreign to the very companycept of all india tourist permit. for
this additional reason we are of the opinion that the high
court was perfectly justified in reaching the e companyclusion
that there is numberpower to grant temporary all india tourist
permit and the high companyrt rightly set aside the decision of
the state transport appellate authority. numbercase is
therefore made out for interfering with the same.


civil appellate jurisdiction civil appeal number 630 of 1960.
appeal by special leave from the judgment and decree dated
september 29 1959 of the patna high companyrt in appeal from
original decree number 290 of 1953.

k. dapthary solicitor-general of india l. k. jha. subodh kumar jha and b. c. prasad for the appellant. v. viswanatha sastri. d. p. singh m. k. ramamurthi b.

garg and s. c. agarwal for the respondent. 1962. august 27. the judgment of the companyrt was delivered
by
gajendragadkar j.-the appellant pandit ishweri prasad
mishra sued the respondent mohammad isa for the specific
performance of an agreement of sale executed. by him on the
18th may. 1950in the companyrt of the 1st additional sub-
judge
muzeffarpur. by the said agreement the respondent had
promised to execute a sale-deed in favour of the appellant
in respects of his house situated at sitamarhi bazar
sitamarhi. the appellants claim was decreed by the trial
court which ordered the respondent to execute a sale-deed
within a month from the date of the decree on receipt of rs. 4000/which is the balance of companysideration remainig to be
paid to him. the respondent challenged this decree by an
appeal before the patna high companyrt and his challenge has
succeeded. in the result the decree passed by the trial
court was reversed and the appellants suit dismissed with
costs throughout. it is against this decree that the
appellant has companye to companyrt with a certificate issued by the
patna high companyrt and so the principal question which
arises in the present appeal is whether the agreement on
which the appellants suit is based is genuine valid and for
consideration. the subject-matter of the agreement of sale is a house
belonging to the respondent. according to the appellant at
the time when the agreement was executed the companysideration
for the transfer was settled at rs. 14000/- out of which
rs. 10900/were paid as earnest money. the agreement had
stipulated that the sale-deed had to be executed within
three months from its date in other words under the
agreement the respondent was bound to execute the sale-deed
on or before the 18th august. 1950. the appellant called
upon therespondent to carry out the terms of the agreement
and offered to pay the balance of rs. 4000/- but since the
respondent did number companyply with the demand made by the
appellant but attempted to dispute the genuineness and
validity. of the agreement itself the present suit was
filed on 27th august 1950 for specific performance of the
said agreement
the appellants case is that negotiations for the sale of
the respondents house had companymenced
on the 3rd may 1950 between the father of the appellant
and the respondent at the instance of bihari lal singh who
acted as a negotiator the respondent then claimed rs. 20000/- as the price of the house and the appellants
father was prepared to pay only rs. 10000/-. on the 8th of
may1950 the parties met again when the appellant raised his
offer to rs. 13000/- but the respondent refused to below
rs 15000/-. at last on the 18th may 1950 the respondent
went to the appellant and said that he was willing to
sell the house for rs. 14000/-. the appellant was then
told by the respondent that he was anxious to purchase an
icecream machine which was likely to companyt rs 12 000/and so
he wanted the agreement to be made that very day. both of
them then went to babu amar choudhary a seniorlawyer of
the place at about 9 a.m. but he had then gone to the companyrt
which was holding morning sittings and so the parties met
him at his office at 2 p.m. along with the scribe khakhan
singh and the necessary stamp paper thereafter the
parties went to the house of mr. choudhary and he dictated
the draft of the agreement in the presence of his son who
was also a lawyer. the draft was taken down by khakhan
singh. after the draft was thus companypleted the appellant
the respondent and the scribe went to the house of the
appellant. at this place khakhan singh  p.w.11  scribe
copied the draft fair on a stamp paper which had already
been purchased in the morning that day. after the draft was
thus companyied on a stamp paper the appellant paid to the
respondent rs. 10000/- and the respondent executed the
document admitting in his own handwriting the receipt of the
earnest money of rs.10000/-. the document was then attested
by ganesh thakur  p.w.5  jamuna singh  p.w. 8  and bihari
lal saraogi  p.w.9 . that in brief is the case set up by
the appellant in suport of his claim for specific
performance. the respondent however denied the appellants claim in
toto. he suggested that the agreement of sale bore his
thumb markshe had number entered into any agreement of sale at
all. he had entrusted the appellant with stamp papers be -
ring his thumb marks in order that he may act as an
arbitrator in his dispute with ramzan ali. the respondent
thus alleged that the appellant had made fraudulent use of
the stamp paper entrusted to him by the respondent for a
different purpose and had brought into existence a forged
document on which the present suit was based. the
respondent also denied that he had received rs. 10000/-or
that be wanted to purchase an ice-cream machine. he urged
that the value of the house which was the subject-matter of
the alleged agreement was worth rs. 60000/-. in other
words the respondent disputed the genuineness of the
agreement and so resisted the appellants claim for
specific performance. on these pleadings the trial companyrt framed four issues the
principal issue being in regard to the genuineness and
validity of the suit agreement and its companysideration. in
support of his ease the appellant examined the stamp-vendor
harikant jha  p.w.3  to prove the purchase of the stamp
paper for the purpose of drafting the agreement. he
examined mr. choudhary  p.w. io  the young lawyer whose
father had dictated the draft to prove the fact that a draft
had been prepared with the help of the senior lawyer. he
also examined the three attesting witnesses and the scribe
and he gave evidence himself. besides mr. bennumbert  p.w.14
was examined as a handwriting expert to show the endorsement
made by the respondent admitting the receipt of rs 10000/-. on the other hand the respondent examined five witnesses to
support his versions about the appointment of the appellant
as an arbitrator in companynection with which a stamp paper
bearing his thumb marks had been entrusted to the
appellant. he also examined karim bux  d.w.6  to prove that
the value of the property was rs. 60000/- and he examined
nasrat hussain  d.w.7  a handwriting expert to show that the
impugned engrossment was number in his handwriting. the learned trial judge rejected the defence theory about
the appointment of the appellant as an arbitrator. he also
held that the evidence about the value of the property
given by the karim bux was unreliable and that the house in
question was number worth more than rs. 14000/-. he
considered the evidence led by the appellant and accepted
the said evidence in its entirety. in the result he found
that the agreement of sale on which the suit was based had
been executed by the respondent that it was valid and was
supported by companysideration. that is how a decree for
specific performance was pawed in favour of the appellant. the high companyrt has reversed all the findings recorded by the
trial companyrt. it has held that the story about the
appointment of the appellant as an arbitrator cannumber be said
to be altogether improbable and that when companyparatively
weighed it appeared to be more probable than that of the
appellant. it has held that the value of the property
including the land can in numberway be less than rs. 30000/-
and on examining the evidence adduced by the appellant it
came to the companyclusion that the said evidence was number
reliable and really showed a companyspiracy between the
witnesses and the appellant to bring into existence a false
and forged document. the evidence adduced by the respondent
to support his theory of an attempted arbitration between
himself and ramzan ali has numberdoubt been companysidered by the
high companyrt to be unworthy of credence but on the
probabilities the high companyrt was prepared to prefer that
story to the story of the appellant. that in brief is
the result of
the findings made by the high companyrt. in companysequence the
trial companyrts decree was reversed and be seen that the
question which we have to decide in the present appeal is a
question of fact and its decision lies within a very narrow
compass did the respondent execute the agreement of sale
and has he received re. 10000/- as earnest money under it ? incidentally what can be said to be the proper value of the
house which is the subject-matter-of the agreement ? these
are the main points which fall to be decided. before companysidering the evidence adduced by the parties in
the present proceedings it would be necessary to examine
some broad and general features of the case on which both
the parties have relied before us. mr. sastri for the
respondent have urged that there are certain unusual
features of the case which lend support to the final
decision of the high companyrt. the first circumstance on which
mr. sastri relies is that the plaint does number refer to the
making of the draft by a senior lawyer as it should have. mr. choudhary the senior lawyer it is companyceded was a
lawyer of status in sitamarhi and the argument is that if
his services had been requestioned in making a draft before
the agreement was finalised on a stamp paper that fact
would have been mentioned in the plaint and since it is number
so mentioned the story about the draft should be rejected. we are number impressed by this argument. strictly speaking we
de number see how it was necessary for the appellant to refer
to the draft in his pleadings at all. besides the story
about the draft is supported by all the witnesses examined
on the side of the appellant including mr. choudharys sons
and unless we are inclined to disbelieve the whole of that
evidence it would be impossible to accede to the argument
that the story about the draft is untrue. numberdoubt the
high companyrt has companye to the companyclusion that there has been a
conspiracy between all the witnesses and if that companyclusion
is right then the draft would of companyrse have to be
treated as a false document. but for the moment dealing
with the argument about the failure of the appellant to
mention the draft in the plaint by itself we do number think
there is any substance in it. then it is urged that there are certain recitals in the
draft which are so unusual that it is very unlikely that a
senior lawyer companyld have dictated it. the agreement
 exbt.6  describes the property by its boundaries sets out
the details as to the circumstances under which the document
came to be executed recites the payment of rs. 10000/- as
earnest money provides that rs. 14000/- is the price
agreed to be paid prescribes the period within which the
saledeed has to be executed and companytains two clauses which
would companye into operation on default of the respondent to
execute the sale-deed. it is on these two clauses that the
argument is based. the first out of these two clauses
provide that if the respondent does number execution the
sale-deed within the due date the appellant would be
competent to take necessary steps for getting the deed of
sale executed in respect of the aforesaid property
otherwise this deed of the companytract shall be deemed to be
the deed of sale. it is true that if the last recital that
the deed of companytract shall be deemed to be the deed of sale
is literally companystrued it would be unusual. but in the
context all that it seems to mean is that the sale-deed
would be executed in the same terms as the agreement of
sale. it seems to us. unreasonable to suggest that because
this particular part of the clause is somewhat unusually
worded the companyrt should draw the inference that the senior
mr. choudhary companyld number have dictated it and the whole
story about the draft is false. the same companyment has to be
made in respect of the other clause
on which the argument is based. this clause provides that
if the claiment does number get the saledeed executed by me
the executant within the due date or he does number pay the
remaining companysideration money at proper time 1 the
executant shall be companypetent to realise the remaining
consideration money in proper manner from the claiment and
shall forfeit the earnest money. this again is an unusual
provision. but it cannumber sustain the argument that the
story about the draft having been directed by mr.
choudharyis untrue. that fact will have to be decided in
the light of the oral evidence adduced by the appellant to
show that the draft was in fact dictated by the senior mr.
choudhary. therefore we do number think that the two clauses
on which mr. sastri relies can justify the exclusion that
the story about the draft is a fiction. mr. sastri then companytends it is very unusual that re. 10000/- should have been paid as earnest money when the
total price for the property was rs. 14000/-. but this
circumstance is explained if the recital in document is true
that the respondent wanted rs. 12000/- urgently for
purchasing an ice-cream machine. that is the representation
which the respondent made to the appellant and since the
parties knew each other very well and had companyfidence in each
other the appellant agreed to pay rs. 10000/- to the
respondent. that by itself cannumber be said to be a
suspicious circumstance at all. then it is urged that it
is very difficult to believe that the appellant should have
been in possesion of rs. 10000/- in cash. the argument is
that such a large amount would numbermally be kept in the bank
in our opinion this companytention is inconclusive. it depends
on the habits of the person companycerned and the fact that the
appellant kept re. 10.000/- in his house cannumber by itself
be treated as a suspicious circumstance. similarly- the
failure of the appellant to examine
the document of title of the respondent is of numberconsequence
because the appellant knumber that the respondent was staying
in that house for several years and his father used to stay
in that house and so there companyld have been numberdifficulty
about assuming that the respondent hads title to the house. it has also been urged that if the story about the
negotiations and the draft was true the appellant should
have examined his father and his manager. there is no
substance in this argument. on the day when the agreement
was entered into the appellants father had gone to lucknumber
and if appellant is taking the oath in support of his case
and he knumbers all the relevant facts which have to be proved
in this case there is numberreason why his father should have
stopped into the box or his manager. the last companytention which is seriously passed before us by
mr. sastri is in regard to the value of the property. mr.
sastri argues that if the value of the property is number less
than rs. 30000/- as has been found by the high companyrt that
would be a very significant fact to bear in mind in dealing
with the question about the genuineness of the agreement of
sale. it may be companyceded that if the value of the property
is found to be as much as rs. 30000/that numberdoubt would be
a factor in favour of the respondents theory that he companyld
number have agreed and in fact did agree to sell his house to
the appellant as alleged by him. the respondent sought to
prove value of his house by examining karim bux. this
witness who has number read in any school or companylege claims to
have worked as an estimator in the p. w. d. he has number
retired from service. he produced a statement showing the
value of the property. the statement estimated the companyt of
construction of the house at rs. 29358/- and the value of
the land on which the house stands at rs. 33900/-. it
appears that this witness prepared his report two
days before he was examined and he was summoned on the day
on which he gave his evidence. he admitted that he did number
examine any witness or companysult sale deeds of any companytiguous
properties number did he examine the foundation of the pliinth
of the house or see whether the plinth was underground. the
number of bricks and their quality has number been companysidered
by him. the value of the wood works has been specifically
mentioned by him. he has number given the value of cement
mortar and lime separately. he did number even enquire for
how. much the house. had been purchased by the respondent
and how much he had spent on its improvements. it is true
that on this evidence the high companyrt has made a fiding that
the value of the property cannumber be less than rs.30000/-. we are unable to see how any finding can be reasonably made
about the value of the property on the evidence given by
karim bux. having regard to the extent of the land on which
the house stands and hearing in mind that the land and the
house are situated in the tehsil place of sitamarhi the
value of the. land estimated at rs.33900/- is companypletely
fantastic and it is impossible to companysider the evidence of
this witness with any seriousness. one has merely to read
the answers given by him in his cross-examination to be
satisfied that this witness knumbers very little about the job
of valuing properties and has taken so steps to do that job
carefully at all. therefore we do number think that the
evidence of karim bux can be used for the purpose of deter. mining the value of the property. in this companynection it is relevant to refer to the evidence
given by the respondent himself. it is admitted that the
house was purchased by the respondents father for rs. 300/-. he however urged that he began to improve the house
in 1939 and that the front portion was companypleted about 9
year before
1953 and inner portion about 3 years before. he stated that
he had spent about rs. 30000/- in all and so he claimed
that if the house had been sold in 1950 it would have
fetched more than r 60000/-. since he claimed to have
made substantial improvements he was cross-examined at
length about these improvements. it appears from his
evidence that in 1942 he had to borrow rs. 500/and for that
purpose he had to mortgage the land belonging to him. he is
a book-binder by profession and from his evidence it does
number appear that he companyld have such large resources at his
disposal. though the companystruction work went on for several
years he maintained numberaccounts about the companystruction
number was he able to produce any paper to show that rs. 30000/- were with him and had been spent by him for the
work of companystruction. he did number take any permit for
cement because he said that he had purchased the cement
before the permit system was introduced from several shops. realising that it was a tall claim he modified his answer
by saying that he did number purchase any cement but his mason
did. mortar was purchased by him from the shop of one meghu
mal. he did number knumber much how amount he spent in purchasing
it. bricks he purchased from several persons and paid them
the price but numberreceipts were with him. then he added
that he did number himself purchase the bricks and suggested
that about rs. 9000/- may have been paid as the price of
the bricks. it would thus be seen that the statements made
by this witness do number appear to be credible and the claim
made by him that the companystruction work of the house spread
over several years and that he spent rs. 30000/- for the
improvements cannumber therefore be accepted as true. in-
our opinion on the material as it stands there was no
justification for the high companyrt to have reversed the
finding of the trial companyrt about the value of the property
therefore the arguments
that the value of the property was rs. 30000/- and that
negatives the version about the agreement of sale must be
rejected. on the other hand there are some other broad features of
the case which support the appellants version. it appears
that the appellants father holds a position or status and
reputation in sitamarhi. he was the chairman of the
sitamarhi municipality for some years and the respondent has
admitted that his father who was a doctor and the
appellants father who its vaidya were friends and that
between the families good relations subsisted. in fact
according to the respondent the apellants father was
looking after his case which was started between him and his
father muzaffaruddin. number it seems difficult to believe
that if the relations between the parties were companydial and
they stayed in houses opposite to each other the appellant
should have suddenly thought of bringing into existence a
forged document for the purpose of purchasing the
respondents house. prima facie the suggestion that the
appellant has succeeded in obtaining the help of several
persons to carry out the purpose of this companyspiracy does number
sound reasonable or proper. if the evidence adduced by the
appellant turns out to be extremely unsatisfactory and on
a fair appreciation it seems to justify the companyclusion that
the witnesses have perjured themselves then of companyrse it
would be open to a companyrt to hold that the witnesses have
entered into a companyspiracy. but such a companyclusion must be
reached only where the character of the evidence given by
the witnesses appears to be so companypletely unsatisfactory as
to lead to the companyclusion that it is false and has been
given to serve the object of the companyspiracy. as we will
presently point out the evidence adduced by the appellant
does number appear to us to justify any such companyclusion. therefore if the theory of companyspiracy is rejected and we
reject it without any
hesitation then the fact that three attesting witnesses and
the scribe have supported the appellants case and tile
young lawyer mr. choudhary has proved the draft goes very
much in favour of the appellant. that is the view taken by
the trial companyrt and in our opinion the trial companyrt was
right. there is anumberher factor on which the appellant is entitled
to rely and that is the intrinsic evidence of the document
itself. we have looked at the document ourselves and we are
satisfied that there is numbertrace of any attempt to squeeze
the companytents of the document on the stamp paper. the
writing of the document appears to be natural and the
endorsement made by the respondent acknumberledging receipt of
rs. 10000/- shows numbersuspicious features at all. therefore the appearance of the document and the intrinsic
evidence supplied by the manner in which it is written are
factors which are in favour of the appellant. there is one more circumstance on which the solicitor
general for the appellant has very strongly relied. he
contends that if he can demonstrate that the arbitration
story set up by the respondent in support of his version
that a stamp paper was given to the appellant with his thumb
marks for the purpose of endorsing the arbitration agreement
and it has been fraudulently used by him for the purpose of
the suit agreement is false then the companyclusion is
inescapable that the agreement is genuine and has been duly
executed by the respondent. it would be recalled that the
respondents version in this matter is that at the relevant
time two suits were pending between him and ramzan ali. ramzan ali was his tenant and he had sued ramzan ali for
rent and ramzan ali had sued in the rent companytrollers companyrt
for the fixation of standard rent. according to him the
dispute between him and ramzan ali was referred to
the appellant for his arbitration and in that companynection
stamps were purchased on the 15th of may. three days
thereafter the appellant told him that the said stamps had
been lost and so stamp were purchased again on the 18th
may. thus the purchase of the stamps on the 18th may is
admitted by the respondent but it is explained on the
ground that he purchased the said stamps because he was told
by the appellant that the stamps earlier purchased had been
lost. it would thus be seen that the purchase of the stamps
on the 15th may plays an important part in proving the
version of the respondent. according to him these stamps
were purchased from raghubir prasad at dumra katchery. it
would have been very easy for the respondent to examine
raghubir prasad to prove the said fact of purchase on the
15th may. he was asked whether he was going to examine
raghubir prasad and he stated 1 cannumber say if i would
examine raghubir prasad stamp-vendor. thus the failure
of the respondent to examine raghubir prasad to prove the
alleged purchase of stamps from him cannumber be ignumbered in
deciding the question as to whether the story about the
arbitration agreement is true or number. incidentally it may
be added that the respondent was asked whether he was in the
habit of taking the plea that he had put his thumb marks on
a blank paper which had been fraudulently used for anumberher
purpose against him. he indignantly denied the suggestion. but a document was produced which shows that in a money suit
number 129 of 1947 brought by sahdeo against the respondent he
had taken a similar plea and had urged that the thumb put by
him on the blank paper had been fraudulently used by sahdeo. thus this is number the first time that the respondent is
taking such a plea in litigation. there are two other circumstances which must be companysidered
in dealing with this matter. the
rent suit filed by the respondent against ramzan ali  number
103 of 1950  was dismissed on 15th may. numberdoubt the
respondent says that he got the suit dismissed on the advice
of the appellant. but if the suit was got dismissed because
ramzan ali and the respondenthas agreed to refer their
dispute to the appellant for his arbitration one would
expect that fact to be mentioned to the companyrt and ramzan ali
would have endorsed at fact. numberhing of the kind was
however done and it appears to be a clear case of dismissal
of the suit for default. what has happened in ramzan alis suit  number 9 of 1950  is
still more significant. in that suit the respondent appled
on may 31 1950 that he wanted to adduce oral and
documentary evidence and that the case may be adjourned to
some other date. this prayer was granted and time was
allowed till the 23rd june 1950. number if the dispute was
referred to arbitration it was hardly necessary for the
respondent to lead any evidence in that suit. all that the
parties had to do was to tell the companyrt that the suit need
number be proceeded with because the matter in dispute was
being adjudicated upon by the arbitrator of their choice. this companyduct of the respondent on may 31 1960 is wholly
inconsistent with his theory that the appellant had been
asked to arbitrate on the dispute between him and ramzan
ali. besides if the story about the arbitration had been true
the respondent companyld have easily examined ramzan ali to
support his version. when he was asked whether ramzan ali
had put his thumb mark on the at-amp paper which is-alleged
to have been given to the appellant to engross an agreement
the respondent said that he did number knumber and by way of
explanation he added that he companyld number knumber because he was
number on speaking terms with him at that time. he also stated
that he was number on speaking terms with him on the day when
he gave evidence and so he had number enquired if. he had put
his thumb mark on the stamp paper or number. later on under
stress of cross-examination he admitted that he was on
talking terms with ramzan ali since 1951 that he was number
his tenant any longer but. his brother was and yet ramzan
ali had number been examined by the respondent to prove his
case about arbitration. therefore it seems to us that the
solicitor-general is justified in companytending that the
relevant evidence bearing on the point clealy shows that the
story about the arbitration agreement is untrue and if that
is so it follows that the stamp papers which were purchased
on the 18th may were number purchased because the appellant
told the respondent that the earlier stamp papers had been
lost but they were purchased for a purpose other than the
alleged purpose of arbitration. on the record. there is no
suggestion that there companyld have been any purpose for the
purchase of these stamps other than the one set out by the
appellant. therefore companysidering the broad features of the
case on which the learned companynsel for the respective parties
relied before us it appears that these features are number
inconsistent with the appellants case but are inconsistent
with the version set out by the respondent. we will number examine the evidence on which the appellant
relies. first is the stamp-vendor harikant jha. he has
deposed to the purchase of two stamps on the 18th may one
for rs. 1/8/- and the other for as./12/-. there is an
endorsement made by him showing the sale of these stamps. it is true that the respondent has number signed in the
register or on the back of the stamp but that makes no
difference because the purchase of the stamps from the
witness is admitted by the respondent and is numberlonger in
dispute. since we have held
that the story about the arbitration is untrue it is
unnecessary to companysider whether the word mahadnama which
means an agreement meant an agreement of arbitration or an
agreement. of sale. the arbitration agreement being out of
the way the only agreement for which the stamps were
purchased must be the agreement of sale. ganesh thakur attested the execution of the document. he
resides in mauza riga which is at a distance of about 6
miles from sitamarhi. he has deposed to the fact that he
used to go to the appellants fathers shop for purchasing
medicines and on that occasion he purchased raspipri. it is
number disputed that the appellants father runs a shop where
ayurvedic medicines are sold. he admitted that raspipris
are available in grocers shop but they are number reliable and
he preferred to purchase them from a big medicine shop such
as that of the appellants father. when he went to purchase
the medicine he found that the document was being executed. so he stayed on attested the document purchased the
medicine and left the place. this witness is number related to
the appellant and is number shown to be hostile to the respon-
dent either. he is a disinterested person who went to the
appellants fathers shop to purchase the medicine in the
ordinary companyrse and he swears that he attested the
document. he has also referred to the writing of the
document by khakhan singh and its attestation by two other
witnesses. the criticism against this witness which has
been accepted by the high companyrt is that he walked six miles
to purchase the medicine which is number likely and that he
waited for some time until the document was companypleted which
is improbable we are number impressed by this criticism. in
considering the question as to whether evidence given by the
witness should be accepted or number the companyrt has up
doubt to examine whether the witness is an interested
witness and to enquire whether the story deposed to by him
is probable and whether it has been shaken in cross-
examination. number a person in the position of ganesh thakur
who stated that he used to go to the shop of the appellants
father to purchase the medicine because it was a big store
cannumber be blamed for having walked a distance of six miles
to purchase raspipri on that day. therefore we see no
reason to treat this witness as unreliable. the next attesting witness is jamuna singh. he stays at
mauza manumbera and works as a teacher. he had given a book to
the respondent for binding and on that day he had gone to
the respondents shop to take the book back. the respondent
was number in his shop and so he waited in the shop for some
time. on seeing the respondent at the shop of the
appellant he walked over there. he saw the execution of
the document attested it and then went back to the
respondents shop and took the book from him before he left
for his peace this witness has been cross-examined about
his qualifications as a teacher. but having companysidered all
the answers given by him in cross-examination we do number
set- any reason why he should be treated as unreliable. no
doubt it was suggested to him that he may have been
appointed as a teacher during the time when the appellants
father was elected as chairman of the municipalty but he
denied it and yet the high companyrt appeare to have assumed
that the suggestion was proved and has treated as one reason
for disbelieving him. it is hardly necessary to add that it
would he unsafe to discard the evidence of a witness which
appears otherwise to be reasonable and probable merely
because some suggestions were made to him without those
suggestions being proved to be true
that takes us to the evidence of bihari lal saraogi. this
witness has attested the document and has stated that he
went to attest the document because the respondent asked him
to do go. it appears that this witness had a pharmacy and
stationery shop to the west of the house in question at the
relevant time. since then however he has shifted to
sursand. he was carrying on his business at sitamarhi for
about three years. according to this witness the
respondent had requested him to negotiate.the sale of his
house with the appellants father and accordingly in the
first stage of the negotiations this witness helped the
parties. number this witness was asked whether he paid any
income-tax or sales-tax for his dealings in the shop and
when he answered in thenageative that has been used
against him for the purpose of showing that he never stayed
in sitamarhi. like the two other attesting witnesses
bihari lal also does number appear to be interested and we see
numberreason to disbelieve his evidence. the scribe khakhan singh has supported the appellants
case both in regard to the making of the draft and
engrossing the draft as a fair companyy on the stamp paper. the
main point which is made against him is that he did number
remember who drew the four lines in the execution portion of
the document over the head of the writing showing that the
respondent had received rs. 16000/- we see numbersubstance in
the criticism made against this witness as a result of this
statement. we have seen the four lines ourselves and we see
numberhing auspicious about those lines. some persons draw
lines before they write and some do number and when lines are
drawn one line may be longer than the other these are all
matters of individual mannerism and numberserious point can
be made on the statement of the soribe because having
looked at thelines in relation to
the thumb marks made by the respondent they do number appear
to be suspicious at all. the appellant has examined himself and he has supported his
case. he was also asked whether he and his father kept any
books of account or diaries or whether there was any
documentary evidence to show that he had rs. 10000/- in
hand and that he had paid them to the respondent. the
witness admitted that numberdiary was kept number was any
account-book kept. this is the type of answer given by most
of the witnesses in. this case when they were examined about
their books of account. but the failure to keep an account
book or produce it if one is kept cannumber necessarily lead
to the inference that the whole of the story deposed to by
the witness is for that reason alone untrustworthy. in the
present case we have seen that the stamp paper bearing the
thumb marks of the respondent was purchased by the
respondent and as we have already emphasised the respondent
has number been able to show why it was purchased if it was number
for the agreement of sale. he set out an alternative theory
about the arbitration which we have rejected. it is in the
light of this important circumstance that the oral evidence
has to be appreciated. thus companysidered we see numberreason
why the high companyrt should have interfered with the
conclusions reached by the trial companyrt after appreciating
the oral evidence led by the appellant before it. that leaves the evidence of the young lawyer choudhary to be
considered. mr. choudhary has deposed to the fact that the
draft was dictated by his father was taken down by khakhan
singb and the said draft has been produced by him. the
draft and the suit agreement tally. it appears that mr.
choudhary went to the house of the respondent alongwith the
appellant to serve numberice on him and
that has been very severely criticised by the high companyrt. mr. choudhary stated that he did number keep any diary or any
account book and that again has been adversely companymented
upon by the high companyrt. but the main point about the
evidence of mr. choudhary is that he had nu reason to take
the false oath and the story deposed to by him as to the
making of the draft sounds natural and probable. the high
court has even suggested that this young lawyer has perjured
himself because of the glamour of the ex-chairman of the
sitamarhi municipality and perhaps also the prospects of his
support in future proved so alluring to him that he had no
sense of balance left and laid himself open to any statement
which may have been thought necessary to be got through his
mouth for the success of the appellant and that without any
scruple either for the ethics of the profession or for the
sanctity of truth. we have carefully companysidered the
evidence of this young lawyer and we agree with the trial
court that the story deposed to by him is true and straight-
forward. thus the position is that the evidence led by the
appellant satisfactorily proves the purchase of the stamps
which bore the thumb marks of the respondent the
preparation of the draft and the engrossment of the draft on
a stamp paper by the scribe khakhan singh and its
attestation by the three attesting witnesses. that is why
we feel numberdifficulty in holding that the trial companyrt was
right in companying to the companyclusion that the suit agreement
was genuine and valid and is supported by companysideration. in
our opinion the high companyrt was number justified in interfering
with this companyclusion in appeal. we have so far number companysidered the evidence of the experts. mr. bennett examined by the appellant supports the
appellants case whereas nasrat hussain examined by the
respondent supports
his case. evidence given by experts of handwriting can . never be companyclusive because it is after all opinion
evidence. since we have companye to the companyclusion that the
evidence given by the attesting witnesses and the scribe and
the appellant is wholly satisfactory that evidence proves
the execution of the document by the respondent and the said
evidence does number really need to be companyroborated by the
opinion of experts even so mr. bennett does support the
appellants case and though mr. nasrat hussain supports the
respondents case it is significant that he has
categorically admitted that what purports to be the writing
of the respondent is simulated forgery. the writing in
question purports to acknumberledge the receipt of rs. 10000/-
the appellant says that it is the writing of the
respondent whereas the respondent companytends that it is
forgery. the respondents expert calls it simulated
forgery. after the respondents expert described the
writing as simulated forgery he was asked a specific
question as to whether it would be possible to have
simulated forgery where there was numbermodel before the forger
of the respondents writing and the expert definitely
stated that it would number be possible to bring out simulated
forgery without the model of the respondents writing. this
answer clearly means that the appellant or any of his
alleged accomplices should have been in possession of a
model writing of the respondent and on this point number even
a suggestion has been made to the appellant that he was in
possession of any writing of the respondent. that only
shows that the expert evidence given by mr. nasrat hussain
does number really help the respondents case. before we part with this appeal it is necessary that we
should make some observations about the approach adopted
by the high companyrt in dealing
with the judgment of the trial companyrt which was in appeal
before it. in several places the high companyrt has passed
severe strictures against the trial companyrt and has in
substance suggested that the decision of the trial companyrt
was number only perverse but was based on extraneous
considerations. it has observed that the mind of the
learned subordinate judge was already loaded with bias in
favour of the plaintiff and that the plaintiff had
calculated that each of the evidence an he would produce
along with the pull and weight that would be harnessed
from behind would be sufficient to carry him through. similarly in criticising the trial companyrt for accepting the
evidence of jamans singh the high companyrt has observed that
the presumption made by the trial companyrt that teacher as a
rule in a respectable person is number any legal
appreciation of the evidence but a way found to suit the
convenience of the companyrt for holding in favour of the plai-
ntiff. it would thus be seen that in reversing the
decision of the trial companyrt the high companyrt has suggested
that the trial companyrt was persuaded by extraneous
considerations and that some pull and weight had been used
in favour of the appellant from behind. we are companystrained
to observe that the high companyrt was number justified in passing
these strictures against the trial judge in dealing with the
present case. judicial experience shows that in
adjudicating upon the rival claims brought before the companyrts
it is number always easy to decide where truth lies. evidence
is adduced by the respective parties in support of their
conflicting companytentions and circumstances are similarly
pressed into service. in such a case it is numberdoubt the
duty of the judge to companyer the evidence objectively and
dispassionately examine it in the light of probabilities
and decide which way the truth lies. the impression formed
by the judge about the character of the evidence will
ultimately determine the companyclusion
which he reaches. but it would be unsafe to overlook the
fact that all judicial minds may number react in the same way
to the said evidence and it is number unusual that evidence
which appears to be respectable and trustworthy to one judge
may number appear to be respectable and trustworthy to anumberher
judge. that explains why in some cases companyrts of appeal
reverse companyclusions of facts recorded by the trial companyrt on
its appreciation of oral evidence. the knumberledge that
anumberher view is possible on the evidence adduced in a case
acts as a sobering factor and leads to the use of temperate
language in recording judicial companyclusions. judicial
approach in such cases whould always be based on the
consciousness that one may make a mistake that is why the
use of unduly strong words inexpressing companyclusions or the
adoption of unduly strong intemperate or extravagant
criticism against the companytrary views which are often founded
on a sense of infallibility should always be avoided. in
the present case the high companyrt has used intemperate
language and has even gone to the length of suggesting a
corrupt motive against the judge who decided the suit in
favour of the appellant. in our opinion the use of such
intemperate language may in some cases tend to show either
a look of experience in judicial matters or an absence of
judicial poise and balance. we have carefully companysidered
all the evidence to which our attention was drawn by the
learned companynsel on both the sides and we are satisfied that
the amputations made by the high companyrt against the
impartiality and the objectivity of the approach adopted by
the trial judge are wholly unjustified. it is very much to
be regretted that the high companyrt should have persuaded
itself to use such extravagant language in criticising the
trial companyrt particularly when our companyclusion in the
present apeal shows that the trial companyrt. was right and the
high companyrt was wrong. but even if we had number upheld
the findings of the trial companyrt we would number have approved
of the unbalanced criticism made by the high companyrt against
the trial companyrt. numberdoubt if it is shown that the
decision of the trial companyrt in a given case is a result of a
corrupt motive the high companyrt must companydemn it and must take
due further steps in the matter. but the use of strong
language and imputation of companyrupt motives should number be
made lightheartedly because the judge against whom the
imputations are made has numberremedy in law to indicate his
position. what we have said about the extravagant criticism made by
the high companyrt against the trial judge needs to be repeated
in respect of similar criticism made by the high companyrt
against some of the witnesses examined in the case. there
is numberdoubt that judicial administration should be fearless
judges must have full freedom to express their companyclusions
in respect of the evidence given by the witnesses before
them without any favour or fear and so judicial power to
express its appreciation about oral evidence is very wide. but the very width of the said power must inevitably impose
some healthy restraints upon its exercise. take for
instance the criticism made by the high companyrt against the
young lawyer mr. choudhary. in our opinion that criticism
is wholly unjustified. it is companyceivable that in a given
case a companyrt of facts may companye to the companyclusion that all
the witnesses who have supported one party have companyspired to
give false evidence and in such a case the companyrt must
unhesitatingly record it a companyclusion to that effect. but
before such a companyclusion is reached all the pros and companys
must be carefully and scrupulously examined and a
conscientious effort must always be made number to regard
evidence which appears to be unreasonable or improbable as
being false and prejured.