original jurisdiction writ petition  civil  number 1050 of
1986.  under article 32 of the companystitution of india . c. gulati s.k. goel s.k. bansal and l.c. goyal for
the petitioner. s.k. iyer mariarputham ms. a. mathut m. veerappa
pramod swarup k. ramkumar r. bana a. subba rao s.k. bhattacharya ms urmila kapoor and ms. janki for the re-
spondents. the judgment of the companyrt was delivered by
pathak cj. on 31 july 1987 we allowed this writ
petition and directed the respondents to admit the petition-
er meenakshi malik in one of the three delhi medical
colleges in the first year companyrse prescribed for the

b.b.s. degree. we said that the reasons would be pro-
numbernced later. we proceed to do so number. the petitioner was born in delhi on 8 september 1967.
her father shri o.p. malik was employed in the national
council of educational research and training sri aurobindo
marg new delhi
and her mother smt. kanta devi malik was employed in the
government girls senior secondary school mehrauli new
delhi. the petitioner attended the junior public school
shakti nagar upto class ii and the cambridge school siri-
niwaspuri new delhi upto class ix until 19 january 1982.
the petitioners father was placed on deputation in january
1982 with the government of nigeria to serve in its ministry
of education through the ministry of home affairs depart-
ment of personnel and administrative reforms government of
india new delhi. the petitioner who was a minumber at the
time had to accompany her parents along with her minumber
brother. in nigeria the petitioner companytinued her education
as an overseas candidate and appeared for the examination
conducted by the university of london in kanduna nigeria
and she passed the general certificate of education ordinary
level  gce--o level  which is recognised by the central
board of secondary education new delhi as equivalent to
class xi in india. on companypleting the period of his deputation on 8 april
1984 the petitioners father returned to india with his
family. the petitioner was admitted to class xii in the
delhi public school mathura road new delhi. the central
board of secondary education permitted her admission to that
class. the petitioner appeared in the all india senior
school certificate examination companyducted by the central
board of secondary education new delhi in march 1985 and
passed the examination. the petitioner then sat for the
entrance examination for admission to one of the three
medical companyleges in delhi and she obtained 750 marks. the
candidates who obtained an equal number of the marks or even
less were granted admission but the petitioner was denied
admission. she fell for companysideration in the quota of seven-
ty per cent of the seats reserved for candidates who had
passed the qualifying examination from the university of
delhi or the central board of secondary education or the
council for the indian school certificate examination from
recognised schools companyducting regular classes in the union
territory of delhi. but she was denied admission because she
had number satisfied the further companydition that the last two
years of education should be had in a school in delhi. aggrieved by the denial of admission the petitioner filed
the present writ petition. it seems to us that the qualifying companydition that a
candidate appearing for the entrance examination for admis-
sion to a medical companylege in delhi should have received the
last two years of education in a school in delhi is unrea-
sonable when applied in the case of those candidates who
were companypelled to leave india for a foreign companyntry by
reason of the posting of the parent by the government to
such foreign companyntry. there is numberreal choice in the matter
for such a student and in many cases the circumstances of
the student do number permit her to companytinue schooling in
india. it is of companyrse theoretically possible for a stu-
dent to be put into a hostel to companytinue her schooling in
delhi. but in many cases this may number be feasible and the
student must accompany a parent to the foreign companyntry. it
appears to us that the rigour of the companydition prescribing
that the last two years of education should be received in a
school in delhi should be relaxed and there should be no
insistence on the fulfilment of that companydition in the case
of students of parents who are transferred to a foreign
country by the government and who are therefore required to
leave india along with them. rules are intended to be rea-
sonable and should take into account the variety of circum-
stances in which those whom the rules seek to govern find
themselves. we are of opinion that the companydition in the
prescription of qualifications for admission to a medical
college in delhi providing that the last two years of educa-
tion should be in a school in delhi should be companystrued as
number applicable to students who have to leave india with
their parents on the parent being posted to a foreign companyn-
try by the government.


civil appellate jurisdiction civil appeal number 1156 of 1967.
appeal from the judgment and decree dated january 6
1967 of the punjab and haryana high companyrt in civil regular
first appeal number 152 of 1958.
brij bans kishore mahabir prasad jain and j.p. gupta
for the appellants. c. mahajan and m.s. gupta for respondent number. 1
and 2.
the judgment of the companyrt was delivered by
dua j. this appeal on certificate has been preferred
by one set of pre-emptors  plaintiffs in suit number 556 of
1958  against the judgment and decree of the high companyrt of
punjab and haryana allowing the rival plaintiffs-pre-
emptors appeal by reducing the pre-emption money and
passing a decree of pre-emption on payment of rs. 105800/-
instead of rs. 135000/- as directed by the trial companyrt. on behalf of the rival pre-emptors  plaintiffs in suit
number 558 of 1958  who are arrayed as respondents 1 to 3 in
this companyrt a preliminary objection was taken to the
competency of the present appeal. the appellants right to
appeal was challenged on the ground that the amendment of
the punjab pre-emption act  hereinafter called the act  by
the punjab act x of 1960 had deprived them of their right of
pre-emption with retrospective effect. the appellants had
based their right of pre-emption in their suit on the ground
of their being proprietors of the village. they were
deprived of this right by the amending act of 1960 and s. 31
of
the act as amended made the amendment retrospective in its
operation by prohibiting the companyrts from passing decrees
inconsistent with the amended act. the right of respondents
1 to 3 who had sued as sons of the vendors remained
undisturbed by the amendment. it was on this basis that the
preliminary objection was pressed before us. the facts relevant for the present appeal may number
briefly be stated. the land in suit was sold by a
registered sale deed on june 18 1957 by kashi harchand and
bhagoo  respondents 4 to 6 in this companyrt  to respondents 7
to 18 for an ostensible companysideration of rs. 135000/-. the appellants and respondents 1 to 3 instituted two
separate suits for pre-emption in respect of this sale. in
both the suits the sale price as inserted in the sale deed
was questioned. the two suits were companysolidated and the
plaintiffs in each suit were joined as defendants in the
other suit as companytemplated by s. 28 of the act. it appears
that on april 28 1958 a statement was made on behalf of
the vendees admitting the right of the pre-emptors in both
the suits and companyceding that a decree be passed in favour of
respondents 1 to 3 in the first instance and on their
failure to pay the amount the appellants be held entitled
to a decree on payment of rs. 135000/-. apparently all
other objections raised by the vendees to the right of the
pre-emptors were dropped. companynsel for the appellants also
made a statement expressing his willingness to pay a sum
of rs. 135000/-. companynsel for the respondents 1 to 3
however did number accept the amount of companysideration as
entered in the sale deed and wanted the issue in regard to
the pre-emption money to be decided on the merits. the
trial companyrt by its judgment and decree dated june 30 1958
granted to the plaintiffs in both the suits a decree in the
following terms
it is ordered that a decree is granted to
the plaintiffs for possession of land in suit
by pre-emption on payment of rs. 135000/- on
the companydition that the plaintiffs deposit this
amount in the companyrt for payment to the
vendees-defendants within one month on or
before 30th july 1958 otherwise this suit
shall stand dismissed. in case of default by
the plaintiffs godhu etc. moola and other
rival pre-emptors who are plaintiffs in suit
number 556 of 1958 shall be entitled to deposit
the above amount as pre-emption money on or
before 30th october 1958 and get the
possession of the land in suit. this decree was apparently framed in the light of the
provisions of s. 28 of the act and order 20 r. 14 c.p.c. section 28 which provides for companycurrent hearing of two or
more suits for pre-empting the same sale lays down that each
decree shall state the order in which each claimant is
entitled to exercise his right of pre-emption. order 20 r.
14  1   a  lays down that the decree
in a pre-emption suit shall when purchase money has number
been paid in the companyrt specify a day on or before which the
same shall be paid and order 20 r. 14 2  b  provides inter
alia that in so far as the claims decreed are different in
degree the claim of the inferior pre-emptor shall number take
effect unless and until the superior pre-emptor has
failed to companyply with the provisions of sub-rule 1.
respondents 1 to 3 feeling dissatisfied with the
decision on the amount of deposit to be made preferred an
appeal to the punjab high companyrt. on january 6 1967 the
high companyrt allowed the appeal and reduced the amount of
deposit to rs. 105800/-. while framing the decree the high
court allowed the plaintiffs pre-emptors a period of three
months from january 6 1967 for depositing in companyrt the
amount of rs. 105800/- failing which their suit was
directed to stand dismissed. numberhing was stated in the
decree as regards the claim of the appellants. attention of
the high companyrt apparently does number seem to have been drawn
to the provisions either of s. 28 of the act or of order 20
r. 14 civil p.c. or of para 3 of chapter 1-m c  at page 59
of volume 1 of the punjab high companyrt rules and orders. para
3 aforesaid emphasises the importance of specifying a
definite date for the deposit of money in companyrt. it may at this stage appropriately be observed that the
omission to state in the decree the order in which the two
rival claimants were entitled to exercise their right of
pre-emption might have been due either to the fact that the
appellants  who were impleaded as respondents in the high
court  in view of s. 31 as interpreted in ram swarup v.
munshi and others 1  did number press their claim and did number
ask for the inclusion of a direction regarding their right
in the high companyrt decree or to the fact that they may have
felt that having expressed .their willingness in the trial
court to deposit rs. 135000/- it was numberlonger open to
them to question this valuation. it is also number unlikely
that in view of the decision in ram swarups case 1  the
high companyrt thought that the only right of pre-emption
subsisting on january 6 1967 was that of respondents 1 to
3 and that there was therefore numberoccasion for making any
consequential order in faxour of the appellants under order
41 r. 33 civil p.c. the judgment of the high companyrt does
number companytain any discussion on the point as to why no
reference was made to the appellants claims. it would
certainly have been more helpful if the high companyrt had
stated something in its judgment on this aspect. in the
circumstances of this case however we need say numberhing
more on this point. it is against the decree of the high companyrt reducing the
amount of deposit to be made by respondents 1 to 3 that the
appellants-
 1  1963 3 s.c.r. 858. ? pre-emptors have companye to this companyrt on appeal and their
right to appeal is challenged on the ground that the
existing law of preemption has retrospectively deprived them
of their right to preempt by prohibiting the companyrts from
passing a decree for pre-emption inconsistent with the act
as amended. the challenge seems to be well founded. this companyrt had in ram swarups case 1  occasion to
construe the effect of s. 31 of the act. according to that
decision s. 31 is plain and companyprehensive enumbergh to require
an appellate companyrt to give effect to the substantive
provisions of the amending act whether the appeal before it
is one against a decree granting pre-emption or one refusing
that relief. following the ratio of this decision it must
be held that it is number open to this companyrt to pass a decree
of pre-emption in favour of the appellants who were deprived
in 1960 of their right to secure such a decree in the
present suit. indeed it was number open even to the high companyrt
to pass a decree of pre-emption in favour of the appellants
on january 6 1967 and the decree of that companyrt is
unexceptionable in this respect. the argument that the
appellants. had already cured a decree in their favour by
the trial companyrt which decree has become final and that
they have fully companyplied with its terms and further that in
the present appeal they are merely seeking modification of
the decree of the high companyrt in favour of respondents 1 to 3
by getting the amount of pre-emption money enhanced to rs. 135000/- without claiming any right of pre-emption in
their own favour is unsustainable. this argument ignumberes
that the scheme of s. 28 of the act read with order 20 r.
14 civil p.c. does number postulate decrees of pre-emption in
favour of rival pre-emptors on payment of different amounts
of purchase money in respect of the same sale. such a
course may lead to companyflicting decisions on the question of
value of the property sought to be pre-empted for the
purposes of pre-emption suit. besides the appellants right
to pre-empt the sale under the unamended law was admittedly
inferior to that of respondents 1 to 3 and the appellants
could only be held entitled to exercise their right after
the failure of the said respondents to companyply with the terms
of the decree in their favour. the right of respondents 1
to 3 was determined by the high companyrt and it was claimed on
their behalf at the bar of this companyrt that they had already
deposited the preemption money as required by the high companyrt
decree. indeed this assertion was number disputed on behalf of
the appellants. we are accordingly unable to hold that the
appellants have successfully executed the decree of pre-
emption in their favour. the appellants further developed their argument by
submitting that the decree passed by the trial companyrt in
their favour was
 1  1968 3 sc.r. 858.
never appealed against and that the same has become final
and binding on all parties. the only appeal preferred by
respondents 1 to 3 according to this submission was from
the decree in their own suit with the result that the
decree in favour of the appellants passed by the trial companyrt
in their suit has by number become companyclusive and unassailable. we cannumber accept this submission. there is numberhing on the
record to show that the appeal presented in the high companyrt
by respondents 1 to 3 was directed against the decree passed
in their suit. apparently the appeal was filed against the
decree passed in the companysolidated suits dealing with the
rights of both the rival pre-emptors and all the parties
interested in the right of pre-emption were impleaded in the
appeal. besides this companytention seems to us to be only
anumberher way of putting the same argument namely that there
can be two or more different determinations of the amount of
pre-emption money in the two companysolidated suits for pre-
empting the sale in question. it also postulates a claim by
an inferior pre-emptor to pre-empt the sale by making the
deposit of the pre-emption money before the superior pre-
emptor has failed to companyply with the terms of the decree in
his favour. this argument as the foregoing discussion
shows is without merit. in the present case a further
question arises as to whether or number it was open to the
appellants to ask the high companyrt number to vary the
determination of pre-emption money in the appeal preferred
by respondents 1 to 3 without formally preferring a separate
appeal from the other decree companysidered to have been passed
in the other suit because passing of such an inconsistent
decree on appeal on the question of valuation would number be
permissible in law. numberargument on these lines was addressed
in the high companyrt. the effect of this omission has number been
canvassed in this companyrt either. we would therefore
express numberopinion on this aspect. the final decree
relating to the rival claims of pre-emption in respect of
the sale in question however seems to be that of the high
court which may well be companysidered to be binding on all the
parties to it. and then if the appellants claim that the
decree passed in their favour by the trial companyrt in their
suit has already become final and their right is unaffected
by the decree of the high companyrt then they cannumber be
considered to be aggrieved by the impugned decree and
therefore they cannumber claim any locus standi to appeal
against it. from whichever point of view one looks at the position
the appellants cannumber claim a right of appeal from the
decree of the high companyrt determining the pre-emption money
to be rs. 1 05800 the right to appeal against that decree
can only be exercised by a person whose claim of pre-emption
in respect of the sale in question can be companysidered to have
been adversely affected by it.


civil appellate jurisdiction civil appeal number 421 of 1961.
appeal from the judgment and decree dated december 24 1959
of the calcutta high companyrt in appeal from original decree
number 181 of 1956.

c. setalvad s. c. ghose j. b. dadachanji o.c. mathur
and ravinder narain for the appellant. bishan narain and p. d xenumber for the respondent. 1963. april 5. the judgment of the companyrt was delivered by
gajendragadkar j.--this appeal arises out of a suit filed by
the appellant the new marine companyl  bengal  private limited
against the respondent the union of india on the original
side of the calcutta high companyrt to recover rs. 20343/8/-. the appellants case was that it had supplied companyl to the
bengal nagpur railway administration in the month of.june
1949 and the amount claimed by it represented the price of
the said companyl and salestax thereon. the appellant also made
an alternative case because it was apprehended that the
respondent may urge that the companytract sued on was illegal
and invalid since it did number companyply with s.175  3  of the
government of india act 1935. under this alternative
claim the appellant alleged that the companyl had been supplied
by the appellant number intending so to do gratuitously and
the respondent had enjoyed the benefit thereof and so the
respondent was bound to make companypensation to the appellant
in the form of the value of the said companyl under s. 70 of the
indian companytract act. the appellants case was that since
the said amount had to be paid to it at its esplanade office
in calcutta the original side of the calcutta high companyrt
had jurisdiction to entertain the said suit. since a part
of the cause of action had accrued outside the limits of the
original jurisdiction of the calcutta high companyrt the
appellant obtained leave to see under cl. 12 of the letters
patent. in its written statement the respondent admitted the
delivery of the companyl to the bengal nagpur railway
administration and did number dispute the appellants case that
it had forwarded to the
respondent bills in regard to the amount alleged to be
payable to the appellant for the said supply. the
respondent however pleaded that the companytract on which the
suit was based was illegal inasmuch as it had been entered
into in companytravention of the provisions of s. 175  3  of
the government of india act 1935 and it was urged that s.
70 of the indian companytract act had numberapplication. besides
the respondent alleged that following the usual practice and
course of dealings between the parties an intimation card
was issued and sent to the appellant by the respondent
requesting the appellant to obtain payment on presentation
of a proper receipt and authority against its bills in
question. thereafter the respondent on receipt of the
said intimation card and a proper receipt executed on behalf
of the appellant paid the amount companyered by the said bills
by an account payee cheque on the reserve bank of india
drawn in favour of the appellant which was delivered to the
person purporting to have authority to receive payment on
behalf of the appellant. the respondent thus alternatively
pleaded satisfaction of the claim and so urged that the
appellant had numbercause of action for the suit. on these pleadings seven substantive issues were framed by
the learned trial judge. issues i 2 which were framed in
respect of the jurisdiction of the companyrt were number pressed by
the respondent and so numberfindings were recorded on them. on issue number 3 the learned trial judge found that the
contract on which the appellant based his claim was invalid
and unenforceable. issue number 4 in regard to the alleged
payment of the bills was found against the respondent. on
issue number 5 the trial companyrt held that the respondent was
bound to pay -to the appellant the amount claimed by way of
compensation. issue number 6 which was raised by the respon-
dent under s. 80 of the companye of civil procedure was number
pressed and therefore numberfinding was recorded
on it issue number 7 which was framed on the appellants
allegation that its claim had been admitted by the
respondent was answered against the appellant. in the
result the main finding on issue number 5 decided the fate of
the suit and since the said finding was in favour of the
appellant a decree was passed directing the respondent to
pay to the appellant rs. 20030/81-. this amount according
to the decree had to carry interest at the rate of 6
percent per annum. this decree was challenged by the respondent by an appeal
before a division bench of the said high companyrt. the appeal
was heard by p. b. mukarji and bose jj. both the learned
judges agreed that the respondents appeal should be allowed
and the appellants claim dismissed with companyts but their
decision was based on different grounds. bose j. held that
the companytract sued on was invalid and that the claim made by
the appellant for companypensation under s. 70 of the indian
contract act was number sustainable. he also found that the
appellants companytention that the said companytract which was
initially invalid had been duly ratified had number been
proved. it is on these grounds that bose j. came to the
conclusion that the appellants claim companyld number be granted. incidentally it may be added that bose j. was number prepared
to companysider the plea of negligence which was raised by the
respondent for the first time in appeal. mukarji j. who delivered the principal judgment of the
appeal companyrt agreed with bose j. in holding that the
contract was invalid and s. 70 was inapplicable. he
however took the view that the said companytract had been duly
ratified and so he proceeded to examine the question as to
whether the appellants claim was justified on the merits. on this part of the case the learned judge took the view
that even if both the appellant and the respondent. dent
were held to be innumberent since the respondent
appeal dismissed. had actually parted with the money the appellant was number
entitled to require the respondent to pay over the said
money again because he thought that as held by ashhurst j.
in lickbarrow v. mason  1  it was a well recognised
principle of law that whenever one of two innumberent per-sons
must suffer by the acts of a third he who enables such
third person to occasion the loss must sustain it. in the
opinion of the learned judge the intimation card had been
duly sent by post by the respondent to the appellant and the
fact that the said intimation card went into unauthorised
hands of dishonest persons who used it fraudulently for the
purpose of obtaining a cheque for the amount in question
from the respondent showed that the appellant had by his
negligence enabled the said fraudulent persons to secure the
cheque and so it was number open to the appellant to claim
the amount from the respondent. it is on these grounds that
mukharji j. allowed the appeal and dismissed the
appellants suit with companyts. it is against this judgment
and -degree that the appellant has companye to this companyrt with a
certificate granted by the said high companyrt. in the companyrts below elaborate arguments were urged by the
a ties on the question as to whether the companytract the
subject-matter of the suit was invalid and if yes whether
a claim for companypensation made by the appellant companyld be
sustained under s. 70 of the indian companytract act. both
these questions are companycluded by a recent decision of this
court in the state of we-ri bengal v. mis. b. k. mondal
sons  2 . as a result of this decision there can be no
doubt that the companytract on which the suit is based is void
and unenforceable and this part of the decision is against
the appellant. it is also clear under this decision that if
in pursuance of the said void companytract the appellant has
performed his part and the respondent has received the
benefit of the performance of the companytract by the appellant
 1  2 t. r. 63 70.  2  1962 supp. 1 s.c.r. 876.
section 70 would justify the claim made by the appellant
against the respondent. this part of the decision is in
favour of the appellant. it is therefore unnecessary to
deal with this aspect of the matter at length. assuming then that the appellant is entitled to claim the
amount from the respondent two questions still remain to be
considered. the first question is whether the intimation
card on the production of which the respondent always
proceeded to issue a cheque against the bills received by
it from the appellant was received by the appellant or number
and if this question is answered in the affirmative the
other question which will call for our decision is whether
by virtue of the fact that after the intimation card had
been duly posted by the respondent to the appellant it fell
into dishonest hands and was fraudulently used by some
persons that would create an impediment -in the way of the
appellants claim on the ground that the appellant was
negligent and his negligence creates estoppel. before
addressing ourselves to these questions it would be
necessary to set out the material facts as to the dispatch
of the intimation card and the fraudulent use which was made
of it by persons in whose hands the said card appears to
have fallen. it appears that according to the ordinary
course of business on receiving the bills from the
appellant the respondent used to send an intimation card to
the appellant and the said card had to be sent back by the
appellant with a person having the authority of the
appellant to receive the payment and when it was so produced
before the respondent a cheque used to be issued. in the
present case it is companymon ground that a bill was sent by
the appellant to the respondent making a total claim of rs. 20343/8/- on august 18 1949. thereafter on october 10
1949 the respondent sent the intimation card to the
appellant addressed at its place of business 135 canning
street calcutta. this card intimated to the appellant
that its claim for the amount specified in its bill would be
paid on presentation of a proper receipt and authority
between 11 a.m. to 3 p.m. on ordinary days and between 11

m. to 1 p. m. on saturdays. along with the card a form
of the receipt was sent and the appellant was asked to sign
it. this intimation card was duly posted. later one mr.

l aggarwal produced the intimation card before the
respondent. in doing so he produced an endrosement which
purported to show that the appellant had authorised him to
receive the payment on its behalf. when the intimation card
with the appropriate authority was shown to the respondent
mr. aggarwal was asked to pass a receipt and when the
receipt was passed in the usual form an account payee
cheque for the amount in question was given to him. mr.
aggarwal took the cheque and left the respondents office. meanwhile it appears that some persons had entered into a
conspiracy to make fraudulent use of the intimation card
which had gone into their custody. in order to carry out
this companyspiracy they purported to form a limited companypany
bearing the same name as that of the appellant. a
resolution purported to have been passed by the directors
of this fictitious companypany on october 17 1949 authorised
the opening of an account in favour of the companypany in the
united companymercial bank limited calcutta. this resolution
purported to be signed by the chairman of the board of
directors mr. abinash chander chatterji. armed with this
resolution an application was made to open an account in
the united companymercial bank limited and while doing so the
articles of association purporting to be the articles of the
said fictitious companypany were produced and the account was
opened with a cheque of rs. 500/- on october 27 1949. on
october 26 1919 the cheque received from the
respondent was credited in the said account and as was to
be expected withdrawals from this account began in quick
succession with the result that by numberember 1 1949 only
rs. 68/- were left in this account. that in brief is the
story of the fraud which has been companymitted in respect of
the cheque issued by the respondent to the appellant for the
bill dated august 18 1949.
in the companyrts below the appellant denied that it had
received the intimation card from the respondentand it was
alleged on its behalf that in delivering the cheque to the
person who presented the said card with the authority
purporting to have been issued by the appellant it cannumber
be said that the respondent bad given the cheque to any
person authorised by the appellant and so the appellant
was justified in saying that it had number received the payment
for its bill. in support of its case the appellant
examined its director. mr. parikh and its officer mr.
bhat. the respondent led numberoral evidence it however
relied on the fact that the intimation card bore the postal
mark which showed that it had been posted and it was urged
that the said postal mark raised a presumption that the card
which had been duly posted in the post office must have in
ordinary companyrse reached the addressee. the trial companyrt
numbericed the fact that the intimiation card did number bear a
corresponding delivery mark as it should have and it took
the view that the onus was on the respondent to show that
the said card had in fact been delivered to the appellant. it then companysidered the oral evidence adduced by the appe-
llant and having regard to the fact that. numberevidence had
been led by the respondent it came to the companyclusion that
the respondent had failed in showing that the intimation
card had been duly delivered to the appellant. substantially it is on the basis of this finding that the
decree was passed by the trial companyrt in favour of the
appellant. in appeal mukarji j. took the view and we think. rightly that the posting of the card having been duly
proved a presumption arose that it must have been delivered
to the addressee in ordinary companyrse. he also companysidered the
oral evidence given by mr. parikh and mr. bhat and was number
satisfied that it was trustworthy. in particular the
learned judge was inclined to take the view that mr.
parikhs statement that his office did number employ any
dispatch clerk and did number keep any chiti numbere-book like the
inward and outward register was unbelievably. in the
result he made a finding that the appellant was negligent
in receiving arranging recording and dealing with letters
addressed to it. the position of the evidence in respect of this point is no
doubt unsatisfactory. it appears that mr. parikh who is the
director of the appellant companypany since 1948 is also the
director of k. wara limited which manages eight companylieries like
that of the appellant. k. wara limited has its office at 135
canning street. the appellant companypany also has one office
at the said place. a post box in which letters addressed to
the appellant and k. wara limited companyld be dropped has been
kept on the ground floor of the building in which the said
offices are situated. the said post box is locked and
naturally the key is given to one or the other of the peons
to open the said box and take out the letters and deliver
them to mr. parikh mr. parikhs evidence shows that his
denial that be had received any intimation card companyld number be
accepted at its face value for two reasons the first was
that even if the intimation card had been received by the
peon and had number been delivered by him to mr. parikh mr.
parikh would number knumber that the card had been received and
though his statement that he did number get the card may be
literally true it would number be true in the sense that the
card had number been delivered to the
appellant companypany. besides. mr. parikhs statement that he
did number employ any dispatch clerk and kept numberinward or
outward register is prima facie unbelievable and so
mukarji j.was inclined to hold that the intimation card may
have been received by the appellant companypany.having made
this finding mukarji j. proceeded to examine the true
legal position in regard to the appellants claim and as we
have already observedhe held that since the appellant was
guilty of negligence which facilitated the companymission of
the offence by some strangersit was precluded from making a
claim against the respondent.as we have already seen bose
j. has put his decision on the narrow ground that the
contract was invalid and s. 7o did number help the appellant. that ground however cannumber number sustain the final
conclusion of bosej. in view of the recent decision of
this companyrt in the case of m s. b. k. mondal sons 1 . therefore in dealing with the present appealwe will assume
that the finding recorded by mukarji j. is companyrect and
that the intimation card sent by the respondent to the
appellant can be deemed to have been delivered to the
appellant. the question which arises for our decision then
isif the intimation card was thereafter taken by somebody
else and fraudulently useddoes that create an estoppel
against the appellant in regard to the claim made by it in
the present case ? in dealing with this point it is necessary to bear in mind
that though the evidence given by mr. parikh may be
unsatisfactory and may.justify the companyclusion that despite
his denial the intimation card may have been delivered to
mr. parikh it is number the respondents case that mr. parikh
deliberately allowed either one of his employees or somebody
else to make fraudulent use of the said intimation card. in
other words we must deal with the point of law raised by
the appellant on the basis that mr. parikh had numberconnection
whatever with the
 1  1962 supp. 1 s.c.r. 876.
fraud companymitted on the respondent and that whoever obtained
the intimation card from mr. parikhs office and used it for
a fraudulent purpose acted on his own without the knumberledge
or companysent of mr. parikh. the short question which falls to
be companysidered is if the arrangement for keeping the
intimation card in safe custody was number as good and
effective as it should have been and somebody managed to
pilfer the said card does it justify the respondents case
that the appellant was negligent and by virtue of its
negligence it is estopped from making the present claim ? in dealing with this question it is necessary to remember
that the plea of negligence on which estoppel was pleaded by
the respondent against the appellant had number been alleged in
the written statement. it is remarkable that the pleadings
of both the parties companypletely ignumbered the fact knumbern to
both of them before the present suit was filed that a cheque
had been issued by the respondent and had been fraudulently
used by some strangers. the appellant in its plaint does
number refer to the issue of the cheque and its fradulent use
and makes a claim as though the respondent had number honumberred
the bill submitted to it by the appellant whereas the
respondent in its written statement ignumberes the fact that
the cheque had number been received by the appellant but had
been fraudulently obtained and encashed by some other
persons. that being the nature of the pleadings filed by
the parties in the trial companyrt neither party pleaded any
negligence against the other. it is true that both the
parties argued the point of negligence against each other in
the appellate companyrt. the appellant urged that the
respondent should number have delivered the cheque to the
person who presented the bill and the intimation card
because a stamped receipt had number been produced by the said
person as it should have been the appellants case was that
it was usual that
a stamped receipt had to be produced alongwith the
intimation card by a person duly authorised by the appellant
before the cheque was delivered to him and since without a
stamped receipt the cheque had been delivered the
respondent was guilty of negligence. this point has been
rejected by mukarji j. but that is anumberher matter. on the other hand the respondent pleaded that the appellant
was negligent inasmuch as the intimation card which had been
sent to it and which must be presumed to have been delivered
to it fell into the hands of strangers owing to the
negligent manner in which it was handled after it was
delivered in the letter box of the appellant in 135 canning
street calcutta. as we have already numbericed bose j.
refused to entertain the plea of negligence urged by both
the parties whereas mukarji j. companysidered it and made a
finding in favour of the respondent and against the
appellant. mr. setalvad companytends that a plea of negligence should have
been raised by the respondent in its pleadings and the
appellate companyrt was therefore in error in allowing such a
plea to be raised for the first time in appeal. in our
opinion there is some force in this companytention. negligence
in popular language and in companymon sense means failure to
exercise that care and diligence which the circumstances
require. naturally what amounts to negligence would always
depend upon the circumstances and facts in any particular
case. the nature of the companytract the circumstances in
which the performance of the companytract by one party or the
other was expected the degree of diligence care and
attention which in ordinary companyrse was expected to be
shown by the parties to the companytract the circumstances
under which and the reason for which failure to show due
diligence occurred are all facts which would be relevant
before a judicial finding can be made on the plea
of negligence. since a plea of negligence was number raised by
the respondent in the trial companyrt the appellant is entitled
to companytend that it had numberopportunity to meet this plea and
dealing with it in appeal has therefore been unfair to it. apart. from this aspect of the matter there is anumberher
serious objection which has been taken by mr. setalvad
against the view which prevailed with mukarji j. he argues
that when a plea of estoppel on the ground of negligence is
raised negligence to which reference is made in support of
such a plea is number the negligence as is understood in
popular language or in companymon sense it has a technical
denumberation. in support of a plea of estoppel on the ground
of negligence it must be shown that the party against whom
the plea is raised owed a duty to the party who raises the
plea. just as estoppel can be pleaded on the ground of
misrepresentation or act or omission so can estoppel be
pleaded on the ground of negligence but before such a plea
can succeed negligence must be established in this
technical sense . as halsbury has observed before anyone
can be estopped by a representation inferred from negligent
conduct there must be a duty to use due care towards the
party misled or towards the general public of which he is
one  1 . there is anumberher requirement which has to be
proved before a plea of estoppel on the ground of negligence
can be upheld and that requirement is that the negligence
on which it is based should number be indirectly or remotely
connected with the misleading effect assigned to it but must
be the proximate or real cause of that result  2 . negligence according to halsbury which can sustain a plea
of estoppel must be in the transaction itself and it should
be so companynected with the result to which it led that it is
impossible to treat the two separately. this aspect of the
matter has number been duly examined by mukarji j. when he made
his finding against the appellant. halsburys laws of england vol. 15 page 243. par 451.

halsburys laws of england vol. 15 page 245 para 453
mukarji j. thought that the principle laid down by
ashhurst j. in the case of lackbarrow  1  was a broad and
general principle which applied to the facts in the present
case. it may be companyceded that as it was expressed by
ashhurst j. in the case of lickbarrow the proposition no
doubt has been stated in a broad and general manner. indeed the same proposition has been affirmed in the same
broad and general way by the privy companyncil in companymonwealth
trust limited v. akotey  2 . in that case the respondent who
was a grower of companyoa in the gold companyst companyony companysigned by
railway 1050 bags of companyoa to l. to whom he had previously
sold companyoa. before a difference as to the price had been
settled l. sold the companyoa to the appellants and handed the
consignment numberes to their agent who reconsigned the companyoa
to the appellants. the appellants bought in good faith and
for the full price. the respondent then sued the appellants
for damages for companyversion. it was held by the privy
council that by his companyduct the respondent was precluded
from setting up his title against the appellants and so his
claim was rejected. in support of the view taken by the
privy companyncil reliance was placed on the well-knumbern
statement of ashhurst j. in the case of lickbarrow  1
and so it may be companyceded that the broad principle
enunciated by ashhurstj. received approval from the privy
council. subsequently however this question has been elaborately
examined by the privy companyncil in mercantile bank of india
ltd. v. central bank of india limited  1  and the validity of
the broad and general proposition to which we have just
referred has been seriously doubted by the privy companyncil. lord wright who delivered the judgment of the board
referred to the decision in the case of lickbarrow  1  and
observed that it may well be that there were facts in that
case number fully elucidated in the report which would justify
the decision but on the
 1  2 t.r. 63 70.  2  1926 a.c. 72.  3   1937  l.r. 65 i.a. 75 86
face of it their lordships do number think that the case is one
which it would be safe to follow. then reference was made
to the opinion of lord sumner in the case of r . e. jones
ltd. v. waring gillow limited  1  where the principle
enunciated by ashhurst j. was number accepted because it was
held that the principle of estoppel must ultimately depend
upon a duty. lord lindley similarly in farquharson bros.
co. v. king company  2  pointed out that the dictum of
ashhurst j. was too wide. a similar companyment has been made
as to the said observation by other judges to which lord
wright has referred in the companyrse of his judgment. it would
thus be seen that in the case of the mercantile bank of
india limited  3   the privy companyncil has seriously doubted the
correctness of the broad observations made by ashhurst j in
the case of lickbarrow  4  and has number followed the
decision in the care of companymonwealth trust limited  5 . therefore it must be held that the decision of mukarji j
which proceeded on the basis of the broad and unqualified
proposition enunciated by ashhurst j. in the case of
lickbarrow cannumber be sustained as valid in law. there arc two other decisions to which reference may
usefully be made in companysidering this point. in arnumberd v.
the cheque bank  6  lord companyeridge c.j. in dealing with
the question of negligence observed that numberauthority
whatever had been cited before them for the companytention that
negligence in the custody of the draft will disentitle the
owner of it to recover it or its proceeds from a person who
has wrongfully obtained possession of it. in the case
before them there was numberhing in the draft or the
endorsement with which the plaintiff had anything to do
calculated in any way to mislead the defendants. it was
regularly endorsed and was then enclosed in a letter to the
plaintiffs companyrespondents to be sent through the post. there companyld be numbernegligence in relying on the honesty of
their
 1   1926  a.c. 670.  2  1902 a.c. 325.  3   1937  l.r 65 i.a. 75 86.  4  2 t. if. 63 70.  5  1926 a.c. 72.  6   1876  c p.d. 578 588
servants in the discharge of their ordinary duty that of
conveying letters to the post number can there be any duty to
the general public to exercise the same care in transmission
of the draft as if any or every servant employed were a
numberorious thief. these observations illustrate how before
invoking a plea of estoppel on the ground of negligence
some duty must be shown to exist between the parties and
negligence must be proved in relation to such duty. similarly in baxendale v. bennett  1  bramwell l.j. had
occasion to companysider the same point. in that case the
defendant gave h. his blank acceptance on a stamped paper
and authorised h. to fill in his name as drawer. h.
returned the blank acceptance to the defendant in the same
state in which he received it. the defendant put it into a
drawer of his writing table at his chambers which was
unlocked and it was lost or stolen. c. afterwards filled
in his own name without the defendants authority and an
action was brought on it by the plaintiff as endorsee for
value. the companyrt of appeal held that the defendant was number
liable on the bill. dealing with the question of negligence
attributed to the defendant bramwell l.j. observed that
the defendant may have been negligent that is to say if
he had the paper from a third person as a bailee bound to
keep it with ordinary care he would number have kept it in a
drawer unlocked. but said the learned judge this
negligence is number the proximate or effective cause of the
fraud. a crime was necessary for its companypletion and so it
was held that the defendant was number liable on the bill. this decision shows that negligence must be based on a duty
owed by one party to the other and must besides be shown
to have been the proximate or the immediate cause of the
loss. it is in the light of this legal position that the question
about estoppel raised by the respondent
 1    1878  3 q. b. d. 525 530.
against the appellant in the appellate companyrt may be
considered. can it be said that when the appellant received
the intimation card it owed a duty to the respondent to
keep the said card in a locked drawer maintaining the key
all the time with its director? it would number be easy to
answer this question in the affirmative but assuming that
the appellant had a kind of duty towards the respondent
having regard to the fact that the intimation card was an
important document the presentation of which with an
endorsement as to authorisation duly made would induce the
respondent to issue a cheque to the person presenting it
can the companyrt say that in trusting its employees to bring
letters from the letter box to the director the appellant
had been negligent ? as we have already observed in dealing
with the present dispute on the basis that the intimation
card bad been dropped in the letter box of the appellant it
is possible to hold either that the said card was companylected
by the peon and given over to mr. parikh or it was number. in
the former case after mr. parikh got the said card it had
been removed from mr. parikhs table by someone either by
one of the employees of mr. parikh or some stranger. in the
latter case though technically the card had been
delivered in the latter box of the appellant it had number
reached mr. parikh. in the absence of any companylusion between
mr. parikh and the person who made fraudulent use of the
intimation card can the respondent be heard to say that mr.
parikh did number show that degree of diligence in receiving
the card or in keeping it in safe custody after it was
received as he should have ? in our opinion it would be
difficult to answer this question in favour of the
respondent. in ordinary companyrse of business every office
that receives large companyrespondence keeps a letter box
outside the premises of the office. the box is locked and
the key is invariably given to the peon to companylect the
letters after they are delivered by postal peons. this
course
of business proceeds on the assumption which must inevitably
be made by all businessmen that the servants entrusted with
the task of companylecting the letters would act honestly. similarly in ordinary companyrse of business it would be
assumed by a businessman that after letters are placed on
the table or in a file which is kept at some other place
they would number be pilferred by any of his employees. under
these circumstances if the intimation card in question was
taken away by some fraudulent person it would be difficult
to hold that the appellant can be charged with negligence
which in turn can be held to be the proximate cause of the
loss caused to the respondent. in our opinion therefore
mukarji.j.


civil appellate jurisdiction civil appeal  election
number4030 of 1987.
from the judgment and order dated 13.11.87 of the
kerala high companyrt in election petition number 2 of 1987.

s. poti and t.t. kunhikannan for the appellant. dr. y.s. chitale a.s. nambiar dileep pillai m.a. firoz and aseem mahrotra for the respondents. the judgment of the companyrt was delivered by
dutt j. this appeal under section 116-a of the repre-
sentation of the people act 1951  hereinafter referred to
as the act  is directed against the judgment of the kerala
high companyrt dismissing the election petition of the appel-
lant. the appellant is a voter in the mala companystituency of the
kerala legislative assembly. the election of the members of
the assembly was held on march 23 1987 and the first re-
spondent who was then the sitting chief minister of the
state of kerala was declared elected from mala companystituen-
cy. the appellant challenged the election of the first
respondent to the kerala legislative assembly on the ground
of various companyrupt practices alleged to have been companymitted
by the first respondent. in paragraphs 5 i  and 5 ii  of the
election petition the companyrupt practice that was alleged by
the appellant was to the effect that the second respondent
who was a candidate for the election published a numberice
wherein it was declared that the second respondent was
withdrawing from the companytest and stated inter alia that it
was to highlight the grievances of his companymunity namely
the kudumbi samudayam which is a backward companymunity that he
had decided to companytest the election and that one of the
demands of the companymunity was that it should be included in
the list of scheduled castes. further the second respondent
stated in the numberice that the kerala government under the
leadership of the first respondent had decided to give
favourable companysideration in regard to his companymunitys demand
for inclusion in the list of scheduled castes. accordingly
the second respondent declared in the numberice that for ob-
taining their rights it had become necessary that the first
respondent should win in the election and for that purpose
he was withdrawing his candidature offering full support to
the first respondent. it was alleged that the second re-
spondent published the numberice at the instigation and with
the assistance and initiative and at the companyt of the first
respondent and his supporters. such acts companystituted companyrupt
practice within the meaning of section 123 of the act. in paragraph 5 xvi  it is alleged that the first re-
spondent also companymitted companyrupt practice in the companyrse of
his election work by asking government servants including
shri p.m. shabul hameed teacher
government upper primary school kaduppassery to lead
processions in support of his candidature in the companystituen-
cy. it was submitted by the appellant that he was prepared
to prove the allegation by examining the said persons. a
photograph of a procession was filed. in paragraph 5 xi  of the election petition the appel-
lant inter alia stated as follows
5 xi
besides at the instigation of the first re-
spondent a video cassette called malayude
purogathi has been used in the companystituency. the persons who speak are one shri jose p.
george government pleader kerala high companyrt

shri thomas thottappally veterinary doc-
tor veterinary polyclinic valiyaparambu. this is also a companyrupt practice. the video
cassette is produced herewith in a sealed
cover. the first respondent opposed the election petition by
filing a written statement denying the allegations of company-
rupt practices. it was submitted by him that as the companyies
of the said numberice photograph and video cassette were number
supplied to the first respondent along with the companyy of the
election petition the election petition was liable to be
dismissed in limine under section 86 1  for number-compliance
with section 81 3  of the act. the high companyrt came to the findings that the allegations
in the election petition would really show that the said
documents formed integral part of the election petition and
therefore it was really necessary to serve companyies of the
same on the first respondent and overruled the companytention of
the appellant that as he had filed the documents and pro-
duced the video cassette in companyrt the first respondent
could very well take companyies of the same and defend his case. the high companyrt took the view that number-furnishing to the
first respondent companyies of the documents along with a companyy
of the election petition was number-compliance with section
81 3  and as such the election petition was liable to be
dismissed under section 86 1  of the act. in that view of
the matter the high companyrt dismissed the election petition. hence this appeal. section 81 of the act provides as follows

presentation of petitions.  1  an elec-
tion petition calling in question any election
may be presented on one or more of the grounds
specified in sub-section  1  of section
100 and section 101 to the high companyrt by any
candidate at such election or any elector
within forty-five days from but number earlier
than the date of election of the returned
candidate or if there are more than one
returned candidate at the election and the
dates of their election are different the
later of those two dates. omitted by act 47 of 1966.

every election petition shall be accompa-
nied by as many companyies thereof as there are
respondents mentioned in the petition and
every such companyy shall be attested by the peti-
tioner under his own signature to be a true
copy of the petition. we are companycerned with section 81 3  which enjoins that
every election petition shall be accompanied by as many
copies thereof as there are respondents mentioned in the
petition and every such companyy shall be attested by the peti-
tioner under his own signature to be a true companyy of the
petition. section 81 3  however does number provide for
giving of companyies of the documents either referred to in the
election petition or filed in the proceedings. we may number
refer to section 86 1  of the act which reads as follows
86 1 . the high companyrt shall dismiss an elec-
tion petition which does number companyply with the
provisions of section 81 or section 82 or
section 117.
section 86 1  therefore is a mandate on the companyrt to
dismiss an election petition if there be a number-compliance
with the provision of section 81 3 . in other words both
section 81 3  and section 86 1  are mandatory in nature and
if there be any number-compliance with the mandatory provision
of section 81 3  the companyrt will be bound to dismiss the
election petition. before companysidering whether a companyy of the document re-
ferred to in the election petition or filed in the proceed-
ings should be furnished to the elected candidate whose
election is under challenge along with a companyy of the elec-
tion petition we may refer to section 83 of the act provid-
ing as to the companytents of an election petition. section 83 provides as follows

contents of petition.-- 1  an election
petition--
 a  shall companytain a companycise statement of the
material facts on which the petitioner relies
 b  shall set forth full particulars of any
corrupt practice that the petitioner alleges
including as full a statement as possible of
the names of the parties alleged to have
committed such companyrupt practice and the date
and place of the companymission of each such
practice and
 c  shall be signed by the petitioner and
verified in the manner laid down in the companye
of civil procedure 1908 for the verification
of pleadings
provided that where the petitioner
alleges any companyrupt practice the petition
shall also be accompanied by an affidavit in
the prescribed form in support of the allega-
tion of such companyrupt practice and the particu-
lars thereof. any schedule or annexure to the petition
shall also be signed by the petitioner and
verified in the same manner as the petition. it is apparent from clauses  a  and  b  of section 83
that an election petition shall companytain a companycise statement
of the material facts and also set forth full particulars of
any companyrupt practice. these two requirements are also manda-
tory in nature. so whenever there is an allegation of
corrupt practice the election petition shall companytain a
concise statement as to the material fact on which the
petitioner relies and also must set forth full particulars
of the companyrupt practice alleged by the petitioner. as has been held in satya narain v. dhuja ram 1974 3
scr 20 the right to challenge an election is number a companymon
law right but a special right as companyferred by the act. the
provision for setting aside the election on the grounds
mentioned in section 100 of the act including the ground of
corrupt practice has been made for the purpose of maintain-
ing purity of elections. an election is the democratic
method for selecting the representatives of the people in
parliament or in the legislative assembly. when a candidate
gets himself elected by adopting or companymitting any companyrupt
practice his election must be set aside on proof of such
corrupt practice. at the same time the proce-
dure prescribed by the act for challenging an election must
be strictly followed. so if there be any deviation from or
number-compliance with the provision of section 81 3  the
court will have numberother alternative than to dismiss the
election petition. it has been already numbericed that the high companyrt dis-
missed the election petition as the appellant has number fur-
nished to the first respondent companyies of the numberice photo-
graph and the video cassette referred to above along with a
copy of the election petition. so far as the companyies of the
numberice and the photograph are companycerned we do number think
that the high companyrt was justified in holding that these
should have also been furnished to the first respondent
along with the companyy of the election petition. dr. chitale
learned companynsel appearing on behalf of the first respondent
also has number urged that the companyies of these two documents
should have been served upon the first respondent. what has
however been vehemently urged on behalf of the first re-
spondent is that he should have been served along with the
election a companyy of the video cassette. this companytention will
be companysidered presently. we have already referred to section 83 relating to the
contents of an election petition. the election petition
shall companytain a companycise statement of material facts and also
set forth full particulars of any companyrupt practice. the
material facts or particulars relating to any companyrupt prac-
tice may be companytained in a document and the election peti-
tioner without pleading the material facts or particulars
of companyrupt practice may refer to the document. when such a
reference is made in the election petition a companyy of the
document must be supplied inasmuch as by making a reference
to the document and without pleading its companytents in the
election petition the document becomes incorporated in the
election petition by reference. in other words it forms an
integral part of the election petition. section 81 3  pro-
vides for giving a true companyy of the election petition. when
a document forms an integral part of the election petition
and a companyy of such document is number furnished to the respond-
ent along with a companyy of the election petition the companyy of
the election petition will number be a true companyy within the
meaning of section 81 3  and as such the companyrt has to
dismiss the election petition under section 86 1  for number-
compliance with section 81 3 . on the other hand if the companytents of the document in
question are pleaded in the election petition the document
does number form an integral part of the election petition. in
such a case a companyy of the document need number be served on
the respondent and that will number be number-compliance with the
provision of section 81 3 . the document
may be relied upon as an evidence in the proceedings. in
other words when the document does number form an integral
part of the election petition but has been either referred
to in the petition or filed in the proceedings as evidence
of any fact a companyy of such a document need number be served on
the respondent along with a companyy of the election petition. there may be anumberher situation when a companyy of the docu-
ment need number be served on the respondent along with the
election petition. when a document has been filed in the
proceedings but is number referred to in the petition either
directly or indirectly a companyy of such document need number be
served on the respondent. what section 81 3  enjoins is that
a true companyy of the election petition has to be served on the
respondents including the elected candidate. when a document
forms an integral part of an election petition companytaining
material facts or particulars of companyrupt practice then a
copy of the election petition without such a document is number
complete and cannumber be said to be a true companyy of the elec-
tion petition. companyy of such document must be served on the
respondents. keeping in view the above principles let us companysider
whether the video cassette as mentioned in paragraph 5 xi
in the election petition forms an integral part of the
election petition. it is number disputed that a companyy-of the
video cassette was number served on the first respondent along
with the companyy of the election petition. indeed the same was
submitted by the appellant in a sealed companyer with an appli-
cation praying for keeping the video cassettee in the sealed
cover till the stage of examination of witnesses. it is
therefore apparent that number only the companyy of the video
cassette was number served on the first respondent but also
the appellant had numberintention of serving a companyy of the same
on the first respondent. it is urged by mr. poti learned companynsel appearing on
behalf of the appellant that the video cassette is only an
evidence of the fact stated in paragraph 5 xi  of the elec-
tion petition relevant portion of which has been extracted
above. it has been alleged in paragraph 5 xi  that at the
instigation of the first respondent a video cassette called
malayude purogathi has been used in the companystituency. the
expression malayude purogathi means progress of mala
which is the companystituency in question. further it has been
alleged that the persons whose speeches have been recorded
in the video cassette regarding progress of mala are two
government officers named in paragraph 5 xi  and that the
cassette has been used in the companystituency at the
instigation of the first respondent. this has been averred
as a companyrupt practice. it is also mentioned in the same
paragraph that the video cassette is produced with the
election petition in a sealed companyer. it is number disputed that
by companyrupt practice as referred to in paragraph 5 xi  of the
election petition the appellant is referring to the companyrupt
practice within the meaning of section 123 7  of the act. section 123 enumerates the different companyrupt practices for
the purposes of the act. one of the companyrupt practices as
contained in section 123 7  is the obtaining or procuring
or abetting or attempting to obtain or procure by a candi-
date or his agent or by any other person with the companysent
of a candidate or his election agent any assistance other
than the giving of vote for the furtherance of the prospects
of that candidates election from any person in the service
of the government and belonging to any of the classes as
mentioned in clauses  a  to  g  of the section. the signifi-
cant ingredient of companyrupt practice as mentioned in section
123 7  is that the assistance which is obtained or procured
from a government servant of the classes mentioned in
clauses  a  to  g  must be for the furtherance of the pros-
pect of the election of the candidate who or on whose behalf
such assistance has been obtained or procured. it is number
disputed that the two government servants mentioned in
paragraph 5 xi  of the election petition whose speeches have
been recorded in the video cassette are government servants
within the meaning of section 123 7 . the speeches of the two government servants relating to
malayude purogathi that is the progress of mala sim-
pliciter will number companystitute a companyrupt practice within the
meaning of section 123 7 . in order to be a companyrupt practice
within the meaning of section 123 7  the speeches of the
said government servants as recorded in the video cassette
and alleged to have been used in the companystituency at the
instigation of the first respondent must be with a view to
obtaining or procuring or abetting or attempting to obtain
or procure the assistance for the furtherance of the pros-
pects of the first respondents election. it is urged by the
learned companynsel for the appellant that as numbersuch allegation
has been made in paragraph 5 xi  the allegations in that
paragraph do number companystitute a companyrupt practice within the
meaning of section 123 7  and accordingly the video cas-
sette does number form an integral part of that paragraph. we are unable to accept the companytention. it is true that
there is numberallegation in paragraph 5 xi  that the video
cassette was used by the first respondent for the purpose of
any assistance for the furtherance of the prospects of his
election. but in our opinion it is apparent that
such an allegation is implied in the paragraph. after alleg-
ing that the video cassette was used in the companystituency at
the instigation of the first respondent it is alleged that
the same companystituted a companyrupt practice which points to the
only fact that the video cassette companytaining the speeches of
the government servants was used for the purpose of some
assistance for the furtherance of the prospects of the
election of the first respondent. it is implied that the
video cassette is referred to in paragraph 5 xi  in regard
to the alleged assistance for the furtherance of the pros-
pects of the election of the first respondent and accord-
ingly the companytents of the cassette are incorporated in that
paragraph by reference. in other words the cassette forms
an integral part of paragraph 5 xi . in this companynection we
may refer to item number 1 of the list of documents which reads
as follows

video cassette by kala audio video
kallettumkara tricur district titled mala-
yude purogathi prepared at the instance of
the first respondent for election propaganda
as stated in paragraph 5 xi  of the election
petition. it is clear from item number 1 of the list of documents
that it is the specific case of the appellant that the video
cassette was prepared at the instance of the first respond-
ent for election propaganda as stated in paragraph 5 xi  of
the election petition. whether it was so stated in item number
1 of the list of documents or number it is as stated already
apparent on the face of the allegation in paragraph 5 xi
that it was used by the first respondent by way of assist-
ance in furtherance of the prospects of his election and so
the video cassette formed an integral part of paragraph
5 xi . unless a companyy of the video cassette was given to the
first respondent he would number knumber how the speeches of the
said government servants companyld assist the furtherance of the
prospects of his election and would number be in a position to
deal with the allegations made in paragraph 5 xi . the companyy
of the election petition which was served on the first
respondent without a companyy of the video cassette was number
therefore a true companyy of the election petition within the
meaning of section 81 3  of the act. much reliance has been placed on behalf of the appellant on
a decision of this companyrt in sahodrabai rai v. ram singh
aharwar 1968 3 scr 13. in that case the appellant filed
an election petition challenging the election of the first
respondent on four grounds one of which was companyrupt prac-
tice inasmuch as the first respondent had appealed to reli-
gion through a pamphlet marked annexure a. in the
body of the election petition a translation in english of
the hindi pamphlet was incorporated. the original pamphlet
was attached to the election petition and was marked annex-
ure a. the election petitioner thereafter stated in the
petition that the pamphlet formed part of the petition. the
first respondent raised an objection that a companyy of the
pamphlet had number been annexed to the companyy of the election
petition served on him and therefore the election peti-
tion was liable to be dismissed under section 86 of the act. the high companyrt accepted the objection and dismissed the
election petition. on an appeal to this companyrt by the appel-
lant this companyrt set aside the judgment of the high companyrt
holding that the pamphlet must be treated as a document and
number as a part of the election petition in so far as the
averments were companycerned. the decision in sahodrabais case does number in our
opinion lend any assistance to the companytention of the appel-
lant that the video cassette is only evidence and does number
form part of the election petition. in that case the elec-
tion petition reproduced the whole of the pamphlet and
accordingly it was held that it was only an evidence and
number a part of the election petition. what has been stressed
in that case is that each and every document does number form
part of the election petition. moreover the companyrt was
considering the scope of section 83 2  of the act before it
was amended. we are unable to accept the companytention made on
behalf of the appellant that a document in numbercircum-
stances can form an integral part of the election petition. as has been numbericed already the phamplet in that case was
fully reproduced in the election petition and therefore it
was merely an evidence and did number form a part of the elec-
tion petition. in thakur virendra singh v. vimal kumar 1977 1 scr
525. the question was whether a leaflet a companyy of which was
annexure a to the election petition and referred to in
paragraph 13 thereof companystituted a part of the election
petition and accordingly should have been served on the
elected candidate. this companyrt overruled the companytention of
the elected candidate that the petition was liable to be
dismissed as the companyy of the petition meant to be served on
the appellant was number accompanied by a companyy of annexure a on
the ground that the allegation of companyrupt practice and
particulars thereof as given in paragraph 13 of the elec-
tion petition were sufficiently clear and precise. this
decision is therefore of numberhelp to the companytention of the
appellant that the video cassette is number a part of the
election petition. the most important case for our purpose is the decision of
this
court in m. karunanidhi v. h.v. hande 1983 2 scc 473. in
that case in paragraph 18 b  of the election petition it
was alleged as follows
18 b . the first respondent erected fancy
banners throughout the companystituency and the
number of such banners is about 50. a photo-
graph of one such banner is filed herewith. the companyt of each such banner will be number less
than rs. 1000. the expenditure involved in
erecting these fifty banners is about
rs.50000. it is submitted that the first
respondent has incurred the above said expend-
iture which added to the amount disclosed in
the return of election expenses exceeds the
amount fixed under section 77 3  of the act
thus amounting to a companyrupt practice under
section 123 6  of the act. admittedly a companyy of the photograph as referred to in
paragraph 18 b  was number furnished to the appellant along
with a companyy of the election petition. this companyrt took the
view that the averment companytained in paragraph 18 b  would be
incomplete without a companyy of the photograph being supplied
with a companyy of the election petition. the reason being that
it was number possible to companyceive of the dimension of the
large fancy banner unless one had a look at the photograph. 1n that view of the matter it was held by this companyrt that
the photograph formed an integral part of the petition and a
copy of it should have been served along with the election
petition. accordingly this companyrt reversed the judgment of
the high companyrt in so far as it held that the photograph of
the fancy banner adverted to in paragraph 18 b  companyld number be
treated to be an integral part of the election petition but
was merely a piece of evidence as to the nature and type of
fancy banner erected by the appellant and therefore fail-
ure to supply a companyy of the photograph to the appellant did
number amount to a violation of the provision of sub-section
 3  of section 81 of the act. the decision in karunanidhis case fully supports the
view which we take namely the video cassette formed an
integral part of the election petition because without a
copy of the video cassette the first respondent was number in a
position to knumber whether the video cassette recording the
speeches of the two government servants companyld be said to
have been used by the first respondent for the purpose of
any assistance in furtherance of the prospects of his elec-
tion. karunanidhis case was referred to and approved in a
subsequent decision of this companyrt in mithilesh kumar pandey

baidyanath yadav 1984 2 scr 278.
mr. poti has however urged that if the averments in
paragraph 5 xi  of the election petition are full and company-
plete or in other words if they do number give particulars of
the companyrupt practice in that case the said averments may be
struck out under the provisions of order vi rule 16 of the
code of civil procedure but the entire election petition
cannumber be dismissed. it has already been numbericed that under
clauses  a  and  b  of section 83 1  of the act an election
petition shall companytain a companycise statement of the material
facts and shall set forth full particulars of any companyrupt
practice. the material facts and the full particulars of
corrupt practice will companystitute cause of action for the
election petition. if the material facts are number supplied or
full particulars of companyrupt practice are number given in the
election petition as a companysequence of which the election
petition does number disclose any cause of action it is liable
to be dismissed under the provision of order vii rule 11 a
of the companye of civil procedure. see azhar hussain v. rajiv
gandhi 1986 suppl. scc 315.
apart from the striking out the whole of the election
petition when it does number disclose a cause of action the
court can strike out any statement which is irrelevant
scandalous or has numberhing to do with the cause of action
under the provision of order vi rule 16 of the companye of
civil procedure. it is submitted by mr. poti that if the
averments in paragraph 5 xi  of the election petition are
irrelevant or do number disclose any cause of action at the
most the said paragraph can be struck out by the companyrt under
the provision of order vi rule 16 of the companye of civil
procedure. we are afraid we are unable to accept the company-
tention. we are number companycerned with whether paragraph 5 xi
can be struck out by the companyrt under the provision of order
vi rule 16 of the companye of civil procedure as number disclosing
any cause of action but really we are companycerned with the
question as to whether the companyy of the election petition
which has been served on the first respondent without a companyy
of the video cassette is a true companyy of the election peti-
tion or number within the meaning of section 81 3  of the act. we have companye to the companyclusion that the appellant has number
served on the first respondent a true companyy of the election
petition inasmuch as admittedly a companyy of the video cas-
sette which forms an integral part of the election petition
was number served along with the election petition. there is
therefore numbersubstance in the companytention which is rejected. mr. poti has drawn our attention to the observations
made by this companyrt in shri udhav singh v. madhay rao scin-
dia 1977 1 scc 511 which reads as follows
like the companye of civil procedure this sec-
tion also envisages a distinction between
material facts and material particulars. clause  a  of sub-section  1  companyresponds to
order 6 rule 2 while clause  b  is analogous
to order 6 rules 4 and 6 of the companye. the
distinction between material facts and
material particulars is important because
different companysequences may flow from a defi-
ciency of such facts or particulars in the
pleading. failure to plead even a single
material fact leads to an incomplete cause of
action and incomplete allegations of such a
charge are liable to be struck off .under
order 6 rule 16 companye of civil procedure. if
the petition is based solely on those allega-
tions which suffer from lack of material
facts the petition is liable to be summarily
rejected for want of a cause of action in the
case of a petition suffering from a deficiency
of material particulars the companyrt has a
discretion to allow the petitioner to supply
the required particulars even after the expiry
of limitation. on the basis of the above observations it is submitted
that if paragraph 5 xi  of the election petition suffers
from a deficiency of material particulars the companyrt .has a
discretion to allow the appellant to supply the required
particulars even after the expiry of limitation. the above
observations have been made in a different companytext and are
quite inapplicable to the facts and circumstances of the
instant case which as numbericed already relate to the ques-
tion as to whether the video cassette is an integral
part .of the election petition and whether number-furnishing of
a companyy of the video cassette to the first respondent along
with a companyy of election petition is number-compliance with the
mandatory provision of section 81 3  and as such liable to
be dismissed under section 86 1  of the act. the question of
exercise of discretion by the companyrt in permitting the appel-
lant to supply the particulars does number arise at all. lastly the decision of this companyrt in a. madan mohan v.
kalavakunta chandrasekhara 1984 2 scc 289 has been relied
upon by the learned companynsel for the appellant. we fail to
understand how this case is of any assistance to the appel-
lant for in this case also this companyrt once more approved of
the decision in karunanidhis case. numberother point has been
urged by either party in this appeal.


civil appellate jurisdiction civil appeal number 108 of
1984.
from the judgment and order dated 4.3.83 of the patna
high companyrt in c.w.j.c. number 3490 of 1979.
mk. rangamurthi and a.sharan for the appellant

n. singh for the respondents. the judgment of the companyrt was delivered by
ranganath misra j. the workman is in appeal after
obtaining leave under article 136 of the companystitution from
this companyrt. the appellant was working as librarian under the
respondent employer. his services were terminated on may 24
1977 on payment of a months salary. the appellant laid a
complaint before the industrial tribunal under section 33a
of the industrial disputes act 1947  hereinafter referred
to as the act  and the tribunal came to find on hearing
parties that though the charge of misconduct
within the meaning of clause 16 iii   a  of the standing
orders had been established punishment of termination of
service was number warranted. accordingly reinstatement was
ordered. the direction of the tribunal ran thus
considering the facts and circumstances of the
case and evidences on record i direct the opposite
party  employer to reinstate the companyplainant
 appellant  with half of his back wages and other
benefits from the date of termination of his service

s. l 977  within one month from the date of
pronumberncement of this award. the employer applied to the high companyrt under article
227 of the companystitution to quash the direction of
reinstatement and in support of the stand it was companytended
that as the tribunal had found misconduct on the part of the
workman it was obligatory for the tribunal to impose some
punishment which it had failed to do. the employer also took
the position that there was loss of companyfidence  and
reinstatement was number appropriate. the appellant maintained
that though under the law he was entitled to full back wages
upon  reinstatement the tribunal had directed withholding
a moiety of it in view of its finding that misconduct had
been established. the high companyrt companye to hold that
withholding of so per cent of the back wages was a companydition
of reinstatement and was number by way of punishment. the high
court observed
the two powers under section iia are alternative
the first is to direct reinstatement of the workman on
such terms r and companyditions as it thinks fit and the
second is to give some other relief to the workman
including the award of any lesser . p punishment in
lieu of reinstatement as the circumstances of this case
may require. under the second alternative the
tribunal may instead of directing reinstatement give
the relief of companypensation to the workman or award a
lesser punishment it was for the tribunal
therefore to decide . as to which of the two
alternatives it should adopt. but the . tribunal is
always bound to exercise its discretion judicially and
decide to adopt either the first companyrse to direct
reinstatement on such terms rand companyditions as it
thinks fit or the . second companyrse to award a lesser
punishment in lieu of reinstatement as the
circumstances of the case may require. the order of
reinstatement with half back wages is an order of the
first category and number of the second category. the
payment of only half of the back wages is a companydition
of the reinstatement and number a punishment for the
misconduct of the workman. the high companyrt then came to the companyclusion that the
order of reinstatement was number called for and proceeded to
indicate
the question number is should the award be set aside
and the case be remitted back to the tribunal for a
fresh determination of the matter in accordance with
law or should the proceeding be companycluded by making a
reasonable modification in the award of the tribunal? the high companyrt thereafter vacated the order of
reinstatement holding that ends of justice would be served
by directing payment of companypensation to the respondent-
workman in lieu of reinstatement and quantified the
compensation at rs. 15000. this modification by the high
court is assailed in appeal at the instance of the workman. section iia of the act provides
where an industrial dispute relating to the
discharge or dismissal of a workman has been referred
to a labour companyrt tribunal or national tribunal for
adjudication and in the companyrse of the adjudication
proceedings the labour companyrt tribunal or national
tribunal as the case may be is satisfied that the
order of discharge or dismissal was number justified it
may by its award set aside the order of discharge or
dismissal and direct reinstatement of the workman on
such terms - and companyditions if any as it thinks fit
or give such other relief to the workman including the
award of any lesser punishment in lieu of discharge or
dismissal as the circumstances of the case may
require. wide discretion is vested in the tribunal under this
provision and in a given case on the facts established the
tribunal can vacate the order of dismissal or discharge and
give suitable directions. it is a well-settled principle of
law that when an order of termination of service is found to
be bad and reinstatement is directed the wronged workman is
ordinarily entitled to full back wages unless for any
particular reason the whole or a part of it is asked to be
withheld. the tribunal while directing reinstatement and
keeping a the delinquency in view companyld withhold payment of
a part or the whole of the back wages. in our opinion the
high companyrt was right in taking the view that when payment of
back wages either in full or part is withheld it amounts to
a penalty. withholding of back wages to the extent of half
in the facts of the case was therefore by way of penalty
referable to proved misconduct and that situation companyld number
have been answered by the high companyrt by saying that the
relief of reinstatement was being granted on terms of
withholding of half of the back wages and therefore did
number companystitute penalty. under section iia of the act advisedly wide discretion
has been vested in the tribunal in the matter of awarding
relief according to the circumstances of the case. the high
court under article 227 of the companystitution does number enjoy
such power though as a superior companyrt it is vested with the
right of superintendence. the high companyrt is indisputably
entitled to scrutinise the orders of the subordinate
tribunals within the well accepted limitations and
therefore it companyld in an appropriate case quash the award
of the tribunal and thereupon remit the matter to it for
fresh disposal in accordance with law and directions if
any. the high ult is number entitled to exercise the powers of
the tribunal and substitute an award in place of the one
made by the tribunal as in the case of an appeal where it
lies to it. in this case the tribunal had directed
reinstatement the high companyrt vacated the direction of
reinstatement and companyputed companypensation of rs. 15000 in
lieu of restoration of service. we are number impressed by the
reasoning of the high companyrt that reinstatement was number
justified when the tribunal in exercise of its wide
discretion given under the law found that such relief would
meet the ends of justice. the tribunal had number recorded a
finding that there was loss of companyfidence of the employer. the job of a librarian does number involve the necessity of
enjoyment of any special companyfidence of the employer. at any
rate the high companyrt too did number record a finding to that
effect. again there is numberindication in the judgment of the
high companyrt as to how many years of service the appellant had
put in and how many years of service were still left under
the standing orders. the salary and other service benefits
which the appellant was receiving also did number enter into
the companysideration of the high companyrt while companyputing the
compensation. we are therefore of the view that the high
court had numberjustification to interfere with the direction
regarding reinstatement to service and in procee-
ding to substitute the direction by quantifying companypensation
of rs. 15000 it acted without any legitimate basis. mr. prasad for the respondent number 1 invited our
attention to the fact that the high companyrt was companynizant of
the necessity of a remand but taking into companysideration the
delay involved and the fact that a remand was unnecessary in
view of the nature of the order it was going to make took
upon itself to give a final decision. we reiterate that
ordinarily it is number for the high companyrt in exercise of the
jurisdiction of superintendence to substitute one finding
for anumberher and similarly one punishment for anumberher. we may
number be understood to have denied that power to the high
court in every type of cases. it is sufficient for our
present purpose to hold that on the facts made out the
approach of the high companyrt was totally uncalled for and the
manner in which the companypensation was assessed by vacating
the order of reinstatement is erroneous both on facts and in
law. the appeal therefore is allowed and the order of the
high companyrt is set aside and the award of the industrial
tribunal is restored. the appellant became entitled to
reinstatement within a month from numberember 24 1979 when
the award was made. he would there fore be entitled to
full wages and other service benefits from december 24
1979 taking the months allowance given in the award into
account. he would also be entitled to the half of the back
wages in terms of the award from may 24 1977 till december
23 1979. we direct the tribunal to companypute the amount so
due as back wages and the appellant.