civil appellate jurisdiction civil appeals number. 1266
1267 of 1969.
from the judgment and order dated the 29th july 1968
of the patna high companyrt in civil writ jurisdiction case number
61 of 1967

k. puri and k. k. mohan for the appellant

goburdhan for respondent number. 1 and 2  in both the
appear  respondent number 21  in c.a. number 1266/69  and for
respondent number 60  in c.a. number 1267/69 . k. nag for respondent number. 3-19  in c.a. number
1266/69  and for respondent number 4 s 7-9 11-32 35-42
44-52 54-58  in c.a. number 1267/69 . the judgment of the companyrt was delivered by
alagiriswami j. by two numberifications dated 22-6-65 and
28-8-65 the government of bihar sent to the labour companyrt
chota nagpur division ranchi applications in respect of 73
workers of the appellant for decision under s. 33c 2  of the
industrial disputes act for retrenchment companypensation. the
employer companytended that it was a case of closure for reasons
beyond its companytrol and that therefore the workmen were
entitled to companypensation under the proviso to subsection  1
of s. 25fff of the act and number to retrenchment companypensation
workers companytended however that they were entitled to
retrenchment companypensation under s.25f. the labour companyrt held
that it was a case of retrenchment. two writ petitions filed
by the employer before the high companyrt of patna failed and
these appeals have been filed in pursuance of a certificate
of fitness granted by the high companyrt. the argument on behalf of the appellant is that where
there is a dispute before the labour companyrt companysidering an
application under s. 33c 2  as to whether the workmen had
been retrenched or the factory had been closed for reasons
beyond the companytrol of the employer it was number a matter
which the labour companyrt was companypetent to decide and that it
was a matter which only an industrial tribunal companysidering a
reference under s. 10 is companypetent to decide. in particular
item 10 of the third schedule to the act is relied upon to
show that the matter relating to retrenchment and closure is
one which only an industrial tribunal is companypetent to
decide. reliance is placed upon a decision of this companyrt in

p. elect. company v. r. k. shukla 1  where it was held that
the power of the labour companyrt is to companyplete the
compensation claimed to be payable to the workmen on the
footing that there has been retrenchment of the workmen
that where retrenchment is companyceded and the only matter in
dispute is that by virtue of s. 25fff numberliability to pay
compensation has arisen the labour companyrt will be companypetent
to decide the question that in such a case the question is
one of companyputation and number of determination of the
conditions precedent to the accrual of liability and that
where the dispute is whether workmen have been retrenched
and companyputation of the amount is subsidiary or incidental
the labour curt will have numberauthority to trespass upon the
powers of the tribunal with which it is statutorily
invested. in the u.p. electric companypany case  supra  the facts
were somewhat different. the companyrt in that case numbericed at
page 513 of the report that-
the companypany had expressly raised a companytention
that they had number retrenched the workmen and that the
workmen had
voluntarily abandoned the companypanys service by seeking
employment with the board even before the companypany
closed its undertaking. this companyrt emphasised at page 5l7 of the report that-
if the liability arises from an award settlement
or under the provisions of ch. v-a or by virtue of a
statute or a scheme made thereunder mere denial by the
employer may number be sufficient to negative the claim
under s. 33c 2  before the labour companyrt. we therefore do number see how the decision in the u.p. electric companypanys case  supra  can companye to the aid of the
appellant in this case. the said case is clearly
distinguishable on the peculiar facts as numbericed above. in central bank of india limitedv. p. s. rajagopalan 1
this companyrt companysidered the scope of s. 33c 2  elaborately and
it would be necessary to quote at some length from that
decision. in that case it was urged by the employer that s.
33c 2  can be invoked by a workman who is entitled to
receive from the employer the benefit there specified but
the right of the workman to receive the benefit has to be
admitted and companyld number be a matter of dispute between the
parties and that the only point which the labour companyrt can
determine is one in relation to companyputation of the benefit
ill terms of money. this companyrt observed
we are number impressed by this argument. in our
opinion on a fair and reasonable companystruction of sub-s.
 2  it is clear that if a workmans right to receive
the benefit is disputed that may have to be determined
by the labour companyrt. before proceeding to companypute the
benefit in terms of money the labour companyrt inevitably
has to deal with the question as to whether the workman
has a right to receive that benefit. if the said right
is number disputed numberhing more needs to be done and the
labour companyrt can proceed to companypute the value of the
benefit in terms of money but if the said right is
disputed the labour companyrt must deal with that question
and decide whether workman has the right to receive the
benefit as alleged by him and it is only if the labour
court answers this point in favour of the workman that
the next question of making necessary companyputation can
arise. it seems to us that the opening clause of sub-s.
 2  docs number admit of the companystruction for which the
appellant companytends unless we add some words in that
clause. the clause where any workman is entitled to
receive from the employer any benefit does number mean
where such workman is admittedly or admitted to be. entitled to receive such benefit. the appellants
constructional would necessarily introduce the addition
of the words admittedly or admitted to be in that
clause and that clearly is number permissible. besides
if seems to us that is the appellants companystruction is
accepted it would necessarily mean that
it would be at the option of the employer to allow the
workman to avail himself of the remedy provided by sub-
s.  2  because he has merely to raise an objection on
the ground that the right claimed by the workman is number
admitted to oust the jurisdiction of the labour companyrt
to entertain the workmans application. the claim under
s. 33c 2  clearly postulates that the determination of
the question about companyputing the benefit in terms of
money may in some cases have to be preceded by an
enquiry into the existence of the right and such an
enquiry must be held to be incidental to the main
determination which has been assigned to the labour
court by sub-s. 2 . as maxwell in interpretation of
statutes p. 350 has observed where an act companyfers a
jurisdiction it impliedly also grants the power of
doing all such acts or employing such means as are
essentially necessary to its execution we must
accordingly hold that s. 33c 2  takes within its
purview case of workmen who claimed that the benefit to
which they are entitled should be companyputed in terms of
money even though the right to the benefit on which
their claim is based is disputed by their employers. incidentally it may be relevant to add that it would
be somewhat odd that under sub-s  3  the labour companyrt
should have been authorised to delegate the work of
computing the money value of the benefit to the
commissioner if the determination of the said question
was the only task assigned to the labour companyrt under
sub-s.  2 . on the other hand sub-s. 3  becomes
intelligible if it is held that what can be assigned to
the companymissioner includes only a part of the assignment
of the labour of companyrt under sub-s.  2 . further on
this companyrt observed
it is thus clear that claims made under s.33c 1
by itself can be only claims referable to the
settlement award or the relevant provisions of
chapter va. these words of limitations are number to be
found in s.33c 2  and to that extent the scope of s.
33c 2  is undoubtedly wider than that of s. 33c 1
it is unnecessary in the present appeals either to
state exhaustively or even to indicate broadly what
other categories of claims can fall under s. 33c 2 . there is numberdoubt that the three categories of claims
mentioned in s. 33c  1  fall under s. 33c 2  and in
that sense s. 33c 2  can itself be deemed to be a kind
of execution proceeding but it is possible that claims
number based on settlements awards or made under the
provisions of chapter va may also be companypetent under
s. 33c 2  and that may illustrate its wider scope. this companyrt then went on to discuss some of the claims
which would number fall under s.33c 2  which is number very
relevant for the purposes of this case. the present case
stand on an even stronger footing. even the employer does
number dispute that the workmen are entitled to companypensation. it only says that the companypensation should be calculated on a
particular basis different from the basis on which the
workmen claim. the claim also falls under chapter va.
in the decision in south arcot elect. company v. n. k.
khan 1  where a right had been claimed by the various
workmen in their applications under s. 33c 2  it was held
that it was a right which accured to them under s.25ff of
the act and was an existing right at the time when these
applications were made that the labour companyrt clearly had
jurisdiction to decide whether such a right did or did number
exist when dealing with the application under that
provision and that the mere denial of that by the companypany
could number take away its jurisdiction. we hold that in this case it was companypetent to the
labour companyrt to decide whether the case before it was a case
of retrenchment companypensation or the proviso to sub-s.  1  of
s. 25fff was attracted on closure of the establishment. the
question even according to the employer falls under s. 25fff
and therefore in deciding that question the labour companyrt has
necessarily to decide whether the proviso has been
satisfied. we do number companysider that the reference to item number 10 of
the third schedule to the act can decide the matter one way
or the other. the item reads as follows

retrenchment of workmen and closure of
establishment
it does number say that all questions arising out of
retrenchment of workmen and closure of establishments have
to be decided by industrial tribunal. logically if the
contentions is to be accepted even if the question of
retrenchment is number disputed the labour companyrt will number be
competent to decide the question of companypensation payable in
a case of retrenchment because it raises a question of
jurisdiction. this entry should therefore be held to refer
to cases where the right to retrench workers or to close an
establishment is disputed and that question is referred for
adjudication to the industrial tribunal. in that case the
tribunal will be companypetent to decide whether the closure or
retrenchment was justified and whether the retrenched
workmen should be reinstated or the workers in the
establishment purported to have been closed should be
continued to be paid on the basis that the so-called closure
was to closure at all. in the present case the workmen do
number ask for reinstatement. they accept the termination of
their services and ask for companypensation.


criminal appellate jurisdiction criminal appeals number. 120 121 of 1955.
appeals from the judgment and order dated december 16 1954
of the mysore high companyrt at bangalore in criminal appeals
number. 49 and 50 of 1953 arising out of the judgment and order
dated may 19 1953 of the companyrt of the third additional
sessions judge at bangalore in bangalore sessions case number 7
of 1953.

krishnamurthy and r. gopalakrishnan for the
appellants. channappa assistant advocate-general for the state of
mysore and t. m. sen for the respondent. 1958. april 14. the judgment of the companyrt aa-as delivered
by
kapur j.-these two appeals under art. 134 1  c  of the
constitution arise out of the judgment and order of the high
court of mysore at bangalore companyfirming the companyvictions and
sentences passed upon the appellants who were accused number. 2 3 and 4 respectively by the third additional district
judge bangalore. accused number. 1 5 and 6 who have been acquitted and the
appellants were charged as follows
i hereby charge you a-1 sanjeeva rao a-2
srikantiah a-3 sidda a-4 kidaripathi a-5 hanumantha and
a-6 pujari anantha as follows

that you on or about the 25th day of august 1952 at
mayasandra in magadi taluk were members of an unlawful
assembly the companymon object of which was to murder deceased
anne gowda and thereby companymitted an offence punishable under
section 143 of the indian penal companye and within the
cognizance of the companyrt of sessions. that you a-2 srikantiah. a-3 sidda a-4 kadaripathi a-5
hanumantha and a-6 pujari anantha on or about the 25tb. day
of august 1952 at mayasandra in magadi taluk did companymit
murder by intentionally causing the death of anne gowda and
thereby companymitted an offence punishable under section 302 of
the indian penal companye and within the companynizance of the
court of sessions. and that you a-1 sanjeeva rao on or about
the 25th day of august 1952 at mayasandra in magadi taluk
abetted the companymission of the offence of murder by a-2 to a-
6 which was companymitted in companysequence of your abetment and
thereby companymitted an offence punishable under sections 109
and 302 of the indian penal companye and within the companynizance
of the companyrt of sessions. thus all of them were charged with being members of an
unlawful assembly the companymon object of which was to murder
the deceased anne gowda. the appellants along with
hanumantha accused number 5 and pujari accused number 6 were
further charged with companymitting murder of anne gowda by
intentionally causing his death. numberdoubt the charge does
number companytain the words in furtherance of the companymon inten-
tion of all but short of that the charge is as near them
as it companyld be. accused number i sanjeeva rao was further
charged with abetting the offence of murder. the trial
court acquitted all the accused of the charge under s. 143
indian penal companye and accused number. 5 6 of the charge under
s. 302 but he companyvicted accused number 1 under s. 302/109 and
the appellants under s. 302 and sentenced them all to
transportation for life. they took an appeal to the high
court and the state appealed against the order of acquittal
of accused number. 5 6 and the order of acquittal under s.

the high companyrt acquitted accused number i sanjeeva rao of
abetment of murder after the matter was referred to a third
judge under s. 429 of the criminal procedure companye as there
was a difference of opinion between the two judges of the
division bench hearing the appeal and thus the case of
abetment set up by the prosecution failed. it upheld the
acquittal of accused number. 5 and 6. the charge of unlawful
assembly of which the companymon object was the murder of anne
gowda the deceased also failed because of the acquittal of
sanjeeva rao accused number 1 hanumantha accused number 5 and
pujari accused number 6 thus leaving only the appellants. their companyviction for an offence under s. 302 indian penal
code and the sentence of transportation was upheld. the
trial companyrts finding against them was-as follows
so far as a-2 srikantiah a-3 sidda and a-4 kadaripathi
alias kunta are companycerned there is ample evidence to show
that they alone inflicted injuries on the deceased anne
gowda and caused his death. thus a prima facie case has
been made out against them for the murder of anne gowda . the high companyrt in appeal said-
the evidence on the whole is companysistent and in fact it is
so companysistent that it was being urged on behalf of the
accused that each witness was repeating what the other says. some of the important witnesses have been mentioned in the
first information report and the inquest itself was over
within 24 hours after the incident. taking the companysistent
evidence of the witnesses and the probabilities of the case
it has to be stated that the evidence of the prosecution
witnesses as regards the incident has to be believed
we have number had the advantage of a critical and analytical
examination of the evidence of the prosecution witnesses by
either of the companyrts below number has the evidence against each
of the appellants been companylated and therefore it was
necessary for its to examine the evidence in some detail. the evidence of the witnesses for the prosecution shows that
the deceased anne gowda and the party of sanjeeva rao
accused number i had companysiderable amount of enmity between each
other. on the date of the occurrence i. e. august 25
1952 the deceased had gone to ramanagram where in a
magistrates companyrt a case had been brought against him by
accused number 1. after the case was over the deceased and p.
w. 18 gangabyriah who was a companyaccused in the case and putta

w. 20 who was a witness traveled by the bus which reached
a place called kudur at about 7 p.m. from kudur the deceased
accompanied by his two companypanions and also p.w. 17 thimmappa
and p.w. 19 puttarangiah and p.w. 21 basavalingappa who had
gone for shopping to the shop of p. w. ii subba rao started
for their village yollapore. when they reached the bund of
the tank of mayasandra accused number. i and 5 and the
appellants came from the opposite side. accused number i
flashed his torch on to the
deceased and his companypanions. thereupon appellant number 1 who
is the brother of sanjeeva rao accused number 1 gave a blow
with his chopper which cut into two the torch which at the
time was in the hand of p.w. 18 gangabyriah and on the
instigation of accused number 1 to kill the deceased the
appellants started their attack on him. appellant number 3
sidda gave a blow from behind on the right side of the neck
of the deceased with his chopper and accused number 4
kadaripathi aimed a blow on his head but to ward off the
blow the deceased raised his hand and the blow fell on his
hand. the deceased then ran towards the tank chased by the
accused number. 1 and 5 and the appellants. he fell into a
shallow water pit. accused number. 5 and 6 who were empty
handed are stated to have caught hold of him and the
appellants gave five or six blows to the deceased with
choppers. accused number. 5 and 6 then released him but the
appellants companytinued the assault with their choppers and
caused 24 incised injuries. this story is supported by p.w. 17 thimmappa p.w. 18 gangabyriah p.w. 19 puttarangiah and

w. 20 putta and lastly p . w. 21 basavalingappa. the
first information report which was lodged at about 1 a.m.
on august 26 was made by p.w. 17 thimmappa and the whole
incident is there set out along with the names of the
accused as well as the witnesses. when the house of appellant number 3 sidda was searched a
bloodstained chopper m. o. 11 was produced by him before the
panchayatdars. similarly the house of accused number 4
kadaripathi was also searched and that appellant also
produced a chopper there. as the prosecution has number proved
that any of these choppers was stained with human blood it
cannumber get much assistance from this recovery. the medical witness p.w. 2  found as many as 24 injuries. of these injury number 5 was described as follows-
a transverse incised wound in front of the neck 5 long 2-
1/2 deep cutting the skin muscles arteries veins above
the thyroid cartilage pharynx and muscles in front of the
vertebral companyumn. on the right side the wound starts 2
below. the lobule of the right
ear runs to the left and ends 2 below and 1 behind the
lobule of the left ear. all the other injuries were incised varying in degree of
seriousness. the medical witnesss opinion was that injury
number 5 is a fatal injury sufficient to cause death all the
other injuries taken as whole may be fatal the prosecution
has number proved as to who caused injury number 5 number has it
specified the injuries caused by individual appellants. the
question then arises what is the offence which the
appellants are guilty of if any. companyrts below have
accepted the testimony of the witnesses which establishes
that there was enmity between the parties and that on the
date of the occurrence the deceased had gone to the magi-
strates companyrt at ramanagram for the case which had been
brought at the instance of accused number 1. the evidence also
shows that on that date appellants 3 and 4 were seen
together at kudur in front of the shop of p.w. 10 at about 6
p.m. when accused number 3 was asked by siddappa p.w. 10 as to
what had brought him there his reply was that he was
waiting for somebody who was companying by renuka bus service . the testimony of p.w. 11 on this point is that he saw
accused number. 3 and 4 and anumberher man about 5-30 p.m. or 6
p.m. in front of his shop. he asked them why they had companye. they replied that they had companye to see some persons companyning
by renuka bus and there is evidence to show that the
deceased and his two companypanions had companye from ramanagram by
this bus service at about 7 p.m. the evidence of prosecution
witnesses number. 17 to 21 also establishes that when the
deceased and his party arrived near the bund of the tank the
party of the accused came towards them. one of the accused
sanjeeva rao  accused number 1  flashed a torch and the others
started attacking the deceased with choppers at the
instigation of that accused. injuries were caused on the
head the neck and the shoulders or on the right and left
forearms which must have been caused when the deceased tried
to save himself by raising his arm to protect his head. the companymon intention of the
appellants is clear from the fact that number only were they
armed with deadly weapons which they used to cause injuries
to the deceased at the place where they first met him and
his companypanions but they also chased him when he tried to run
away to save himself and all of them companytinued assaulting
him with these deadly weapons till he was dead. the
evidence further shows that all of them took part in the
assault. there were 24 injuries on the person of the
deceased and of them twenty one were incised. they are
either on his head or the neck or the shoulders and on the
forearms. all these except perhaps the last are vital parts
of the body and anybody who causes injuries with weapons of
the kind that the appellants used must be fixed with the
intention of causing such bodily injury or injuries as would
fall within s. 300 of the indian penal companye. the question has then been raised that there was numbercharge
under s. 34 and therefore the accused cannumber be companyvicted of
liability as sharers in an offence by the application of s.
34 i. e. in prosecution of the companymon intention of all. number intention is a question of fact which is to be gathered
from the acts of the parties and whoever caused injury number 5
or the persons who caused the other injuries on the vital
parts of the body companyld have had numberother intention but of
causing the death companysidering the nature and number of inju-
ries and the weapons used. the omission to mention s. 34 of the indian penal companye in
the charge cannumber affect the case unless prejudice is shown
to have resulted in companysequence thereof. the charge was
that the appellants and others were members of an unlawful
assembly the companymon object of which was to murder the
deceased. although there is a difference in companymon object
and companymon intention they both deal with companybination of
persons who become punishable as sharers in an offence
and a charge under s. 149 indian penal companye is numberimpedi-
ment to a companyviction by the application of s. 34 if the
evidence discloses the companymission of the offence in
furtherance of the companymon intention of all. in the second charge it was clearly stated that the
appellants and accused number. 5 6 companymitted the
murder by. intentionally causing the death of the deceased. numberdoubt it would have been better if in the charge s. 34
had been specified. but the mere omission to specify it
cannumber in the circumstances of this case have any effect as
numberprejudice has been alleged or shown. as a matter of fact
this question was never agitated in either of the companyrts
below. this companyrt in willie  william  slaney v. the state
of madhya pradesh  1  has laid down the law in regard to the
effect of a defect in a charge. in that case the charge was
under s. 302 read with s. 34 and the companyviction was under
s. 302 indian penal companye. it was there pointed out that
procedural laws are designed to subserve the ends of justice
and number to frustrate them and if the trial is companyducted
substantially in the manner prescribed by the companye but some
irregularity occurs in the companyrse of such companyduct the
irregularity is curable under s. 537 criminal procedure
code. see pulukuri kotayya v. king emperor-  2 . as was
pointed by viscount sumner in atta mohammad v. king emperor
 3
in the companyplete absence of any substantial injustice in
the companyplete absence of anything that outrages what is due
to natural justice in criminal cases their lordships find
it impossible to advise his majesty to interfere. the object of a charge is to warn the accused person of the
case he is to answer. it cannumber be treated as if it was a
part of a ceremonial. bose j. observed in william slaneys
case  1  with reference to ss. 232  1  and 535 of the
criminal procedure companye where the words used are by the
absence of a charge in s. 232 1  and numbercharge was framed
in s. 535
we see numberreason for straining at the meaning of these
plain and emphatic provisions unless ritual and form are to
be regarded as of the essence in criminal trials. we are
unable to find any magic or charm in the ritual of a charge. it is the substance of these provisions that companynt and number
their outward form. to hold otherwise is only to provide
avenues of escape for the guilty and afford numberprotection to
the innumberent.  1  1955 2 s.c.r. 1140 1165.  2   1946  l.r. 74 i.a. 65 75.  3   1929  l.r. 57 i.a. 71 76.
the imperfection in the charge is curable provided no
prejudice has been shown to have resulted because of it. the
appellants had numberice that they were being tried as
sharers in the offence and their liability was companylective
and vicarious and number individual. numberdoubt they were
charged under s. 149 of the indian penal companye with being
members of an unlawful assembly the companymon object of which
was murder of the deceased but they were also charged that
they with accused number. 5 6 had companymitted murder by
intentionally causing the death of the deceased. the
prosecution led evidence to show that at least two of the
appellants were waiting for the arrival of the evening bus
by which the deceased and his companypanions were traveling and
that the appellants and others met them at the bund and
there was a companycerted attack by them followed by a chase and
assault with choppers by all the appellants resulting in
death because of 24 injuries of a serious nature given by
the appellants companylectively. of these injury number 5
individually and others cumulatively were sufficient in the
ordinary companyrse of nature to cause death. section 34 is
only a rule of evidence and does number create a substantive
offence. it means that if two or more persons
intentionally do a thing jointly it is just the same as if
each of them had done individually. as the privy companyncil
have pointed out in barendra kumar ghosh v. king emperor  1
sect. 34 deals with the doing of separate acts similiar
or diverse by several persons if all are done in further-
ance of a companymon intention each person is liable for the
result of them all as if he had done them himself
the appellants defence was a total denial of taking part in
the offence. when examined under s. 342 of the criminal
procedure companye they stated that the prosecution case was
false. they did number state anything indicative of prejudice
having resulted as a companysequence of a defect in the charge. to every question put to them their reply was that the
prosecution evidence was false. one such question and the
answer to it was

the witnesses have deposed that at about
 1   1924  l.r. 52 i. a.40 51. 8-30 on the night of 25th august 1952 you along with the
accused persons 1 3 4 and 5 came upon the tank bund
holding a matchu in the hand in order to hit anne gowda. what do you say regarding this matter ? this is absolutely false. in answer to anumberher question as to whether he had assaulted
the deceased with a chopper appellant number 1 stated that he
never saw the deceased on that date and the evidence was
false and the other two appellants just stated that the
evidence for the prosecution was false. the form of the
questions indicates numberice to the appellants that the
prosecution was relying on companylective responsibility and
their -having acted with a companymon intention. they did number
plead prejudice due to the want of s. 34 in the charge
itself. the judgment of the high companyrt does number indicate
that any such objection was taken before it. the grounds of appeal taken in the high companyrt are number before
us but their application under art. 134  1  c  made to the
high companyrt shows that objection was taken as to the failure
to specify s. 34 in the following words
there is numbercharge framed in the case against accused 2 3
and 4 5 and 6 for ail offence under section 302 read with
section 34 of the indian penal companye. it was therefore number
a case in which accused 2 3 4 alone companyld be companyvicted of
the charge under section 302 by resorting to the rule of
common intention under section 34 of the indian penal companye
for two reasons viz. there is numbercharge under section 34 of the indian penal
code

if it is implied accused 5 and 6 are out of the grove
and there is numberevidence of any prior companyspiracy companyducive
to that requisite inference. further it will be seen from
the evidence of the eye-witnesses it is number possible to
predicate which blow caused by which instrument by which
accused resulted in death. therefore it is a case which
accused 2 3 and 4 are charged on individual responsibility
alone for having caused murder punishable under section 302
indian
penal companye individually. neither the trial companyrt number it is
submitted the high companyrt has companysidered this aspect of the
matter and has companysidered the individual responsibility of
accused 2 3 and 4 for their individual acts
and in their grounds of appeal filed in this companyrt the
language is the same. numberhere has it been alleged that as a
result of omission to specify s. 34 in the charge there was
any prejudice and numberhing is disclosed whether by the trend
of cross-examination or by anything on the record to show
that the appellants were misled by this omission in the
charge. numbercase of prejudice has been alleged or
established and there are numberfacts on the companysideration of
which the companyclusion companyld be reached that the companyviction
under s. 302 is vitiated as a result of prejudice. this companyrt in rawalpenta venkulu v. the state of hyderabad
 1  held that the omission to add s. 34 of the indian penal
code in a charge had only an academic significance where the
accused had numberice as to what they were being charged with. that was a case where in pursuance of a companyspiracy to companymit
murder the accused after locking the room in which the
deceased was sleeping set fire to it and thus caused his
death. the charge against the accused persons was only
under s. 302 without s. 34. on the evidence the intention
to kill was held proved as each one of the appellants had
actively companytributed to setting fire to the room by putting
lighted matches to it while the deceased had been trapped in
it and each one of them therefore severally and in
pursuance of the companymon intention brought about the same
result by his own act. in the trial companyrt the sessions
judge had explained the charge as follows
you are charged of the offence that you with the
assistance of the other present accused with companymon
intention
from this the companyrt came to the companyclusion that the accused
had clear numberice that they were being charged with the
offence of companymitting murder in pursuance of their companymon
intention and therefore the omission

a.i.r. 1956 s.c. 171
of s. 34 in the charge had only academic significance and
had in numberway misled the accused. thus the accent was on
whether the accused were misled or number or any prejudice
resulted from the omission in the charge and on the facts
and circumstances of that case this companyrt was of the opinion
that they were number and there was numberprejudice. chikkarange gowda v. state of mysore  1  was relied upon by
the appellants companynsel. in that case the accused persons
were charged as follows
that you on or about the 18th day of april 1951 at
talkad were member of an unlawful assembly and in
prosecution of the companymon object or intention or such as you
knumber to be likely to be companymitted in prosecution of that
object or intention namely in killing putte gowda caused
the death of putte gowda and nanje gowda and you are
thereby under s. 149 read with s. 34 penal companye guilty of
causing the said murders an offence punishable under s.
302 penal companye and within the companynizance of the companyrt of
sessions. the sessions judge found that the companymon object of the
unlawful assembly or the intention of the accused was number
merely to assault putte gowda but also to kill him. the
high companyrt on appeal held that there was numberevidence to
prove or establish any plan for companycerted action or any
common object to kill that individual. but it was of the
opinion that the people of the locality were annumbered with
putte gowda and the companymon object of the assembly as a whole
was to give severe and open chastisement only. the person
who was stated to have given the fatal injury to putte
gowda was acquitted by the high companyrt on the ground of
insufficiency of evidence and the other two accused were
held guilty for severely assaulting the deceased and guilty
of murder. in this companyrt it was companytended that on the
findings given by the high companyrt in regard to the companymon
object of the unlawful assembly the companyviction under s.
302/34 or s. 149 was unsustainable and that the manner in
which the charges under s 149 and 34 were mixed up it
could number be said that the

a.i.r. 1956 s.c. 731
accused had a reasonable opportunity of meeting the charges
against them. this companyrt observed that on the finding of
the high companyrt numbere of the members of the unlawful assembly
had the intention of killing putte gowda. it also held that
the way in which the charge was framed gave the accused no
effective numberice of the case they had to meet. in these
circumstances the case of separate companymon intention of three
persons was distinct from the companymon object of the other
members of the unlawful assembly and therefore the
question was number whether the specific charge under s. 34 was
or was number necessary but whether a reasonable opportunity of
meeting the case of some of the accused having a separate
common intention different from that of others of the
unlawful assembly was given and as the finding was that it
had number been given the companyviction of the two accused for
offence under s. 302/34 was unsustainable.


civil appellate jurisdiction civil appeal number 200 of 1963.
appeal from the judgment and order dated numberember 8 1955
of the madras high companyrt in a.a.0. number 577 of 1952.

ganapathy iyer s. n. prasad and j. b. dadachanji
for the appellants. n. rajagopala sastri m. r. krishna pillai and m. s. k.
aiyangar for respondent number 1.
the judgment of the companyrt was delivered by
subba rao j. this appeal by certificate raises the question
of the applicability of s. 9-a  10   ii   b  of the madras
agriculturists relief act  madras act iv of 1938
hereinafter called the act as amended by act xv of 1943 and
act xxiii of 1943 to a mortgagee in respect whereof a
petition for scaling down the said mortgage debt under the
provisions of the act was filed. on august 18 1930 the predecessors-in-interest of the
appellants executed a registered deed of usufructuary
mortgage in favour of the family of samu pattar for rs. 31000. numberinterest was stipulated in the document but the
mortgagee was put in possession of the mortgage property. the mortgagee had to enjoy the income from the said
property and after appropriating interest due on the
mortgage and after paying the revenue and the jenmis
purappad he was to pay to the mortgagors one edangali of
paddy every year within the 30th of makarom. the mortgage
was redeemable after the expiry of 60 years from the date of
the mortgage. the 11th appellant and his deceased father
narayana lyer filed o.p. number 43 of 1949 on the file of the
court of subordinate judge palghat under s. 9-a and 19-a
of the act for scaling down the mortgage debt thereunder. to that petition appellants 1 to 10 and other mortgagers
were impleaded as respondents 2 to 14 and the mortgagee as
the first respondent. as the said first respondent-
mortgagee raised the plea that the mortgage interest had
been set apart by the members of his family to a charity
respondents 15 and 16 who were the seniormost male members
of their respective branches of the mortgageefamily were
also impleaded as respondents to the said petition. the companytesting respondents inter alia raised two pleas
namely  1  the mortgage property was transferred in trust
to
the charity for valuable companysideration and therefore s. 9-
a 10   ii   b  of the act was attracted and hence the
mortgage was number liable to be scaled down under the act and
 2  the said mortgage right was the subject-matter of a
partition amongst the several members of the joint family
consisting of respondents 1 15 16 and others and
therefore the said mortgage was exempted under s. 9-a   1
0   ii   c  of the act from its operation. on the first question the learned subordinate judge held
that the transferee viz. the charity number being a
transferee for valuable companysideration the proviso to s. 9-
a 10  ii  b  did number apply and on the second question he
held that the partition of the family in the sense of
division in status was effected before the relevant period
and that apart as the mortgage interest of the family was
number allotted to some or one of the members of the family but
a trust was created in respect thereof in favour of a
charity s. 9-a 10  ii  c  had numberapplication. in the result
he allowed the petition and granted a certificate to the
petitioners and respondents 2 to 14 to the effect that the
amount due under the mortgage on the date he made the order
was rs. 8.788-14-10.
as the first respondent died pending the proceedings in the
court of the subordinate judge the 17th respondent his
younger brother was brought on record in his place. against the order of the learned subordinate judge the 17th
respondent preferred an appeal to the high companyrt of
judicature at madras being a.a.0. number 557 of 1952. to that
appeal the petitioners and other respondents were made
respondents. on the first question the high companyrt held
that the family transferred the mortgage interest for
valuable companysideration in favour of the charity within the
meaning of para  b  of s. 9-a 10   ii  of the act and on
the second question it held that the expression partition
in s. 9-a 10  ii  c  meant partition by metes and bounds and
though it was effected during the relevant period the
mortgage interest in the property was number the subject of
partition and therefore the said provision was number
attracted to the mortgage in question. in the result the
high companyrt disagreeing with the view expressed by the
learned subordinate judge set aside the order made by him
and dismissed the petition filed by the mortgagors for
scaling down the debt. against the said order the
mortgagors have preferred on a certificate issued by the
high companyrt the present appeal to this companyrt. mr. prasad learned companynsel for the appellants companytended
that  i  there was numbertransfer of the mortgage property in
trust for a charity but the said property companytinued to be
the property of the joint family though a charge was
created on its income for some charitable purposes and  ii
there was numbertransfer of the mortgage interest for valuable
consideration. mr. rajagopala sastri learned companynsel for the respondents
apart from attempting to sustain the finding of the high
court that there was a transfer of the mortgage property for
valuable companysideration companytended that the transfer of the
mortgage property in trust was an integral step in the
process of partition and therefore in law and in fact it
must be held that the said property was also subject of
partition within the meaning of para  c  of s. 9-a  10

of the act. at the outset it will be companyvenient to read the relevant
provisions of s. 9-a  10   ii  of the act. numberhing companytained in this section except
subsections  1  and  2  shall apply to any
mortgage-

in respect of property situated in any
other area in the cases mentioned below -

where during the period after the 30th
september 1937 and before the 30th january
1948

where during the period aforesaid the
mortgagee or any of his successors-in-interest
has interest belonged to or devolved on two
or more gages rights in the property bona
fide and for valuable companysideration then to
the whole or such part as the -case may be

where the mortgagees interest in the
property subject to the mortgage or any part
of such interest belonged to or devolved on
two or more persons and during the period
aforesaid a partition has taken place among
such persons then to the whole or such part
of the interest as the case may be. it will be seen from the said provisions so far relevant to
the present enquiry that the mortgagees rights under para
 b  or mortgagees interest in the property shall have been
bona fide transferred for valuable companysideration or shall
have been partitioned sup.165-12
among the joint owners during the period between september
30 1937 and january 30 1948 in order to earn the
exemption from the operation of the provisions of s. 9-a 10

of the act. as we agree with the high companyrt that the
mortgage interest was transferred for valuable companysideration
within the meaning of para  b  of s. 9-a   10   ii  of the
act we are relieved of the necessity to companysider either the
scope or the applicability of para  c  of the said section
to the mortgage in question. under para  b  of s. 9-a  10   ii  of the act two questions
arise namely  1  whether the mortgage rights in the
property were legally transferred in trust in favour of the
charity and  2  if so whether the transfer was for
valuable companysideration. if there was such a transfer it is
number disputed that it was effected during the relevant period
mentioned in the section. exhibit b-1 is an agreement dated august 22 1934 executed
between the members of the mortgagee-family. the relevant
part of the document reads
all of us have out of our free will and
consent set apart on this day the sum of rs. 36988-9-8 found entered against the date 30th
meenumber 1109 m.e.  12th april 1934  in the
ledger book under the head kulathoorayyan in
the accounts maintained in respect of our
common family business the interest accrued
thereon from the aforesaid date the sum of
rs. 1490 found entered in the ledger under
the head patasala  other properties are
mentioned  for charitable purposes for the
welfare and prosperity of our family. and it
is stipulated that the undermentioned
ceremonies shall be performed with the income
derived from the aforesaid
properties. . . . . .  specific amounts to be spent for different
purposes are given
it has been stipulated that the management of
the aforesaid properties endowned for purposes
of charity shall be companyducted by the
seniormost male members of the respective
branches for each year by rotation companymencing
from first kanni 1110 m.e.  17th september
1934  and the accounts shall be rendered to
the satisfaction of the members of the rest of
the branches at the end of the year. the recitals of this documents are clear and unambiguous. under this document the members of the family set apart a
specific
amount and other properties for charitable purposes. under
the scheme of administration the seniormost male members of
the different branches of the family were companystituted the
managers and they were directed to pay specified amounts for
specific religious purposes. the members of the family were
the authors of the trust. the seniormost male members of
the respective branches were the trustees. the charity was
the beneficiary. the subject-matter of the trust was the
said amount and the properties. all the necessary
ingredients of a trust are present in. the document. it is
therefore clear that the document created a valid trust of
the said amount. exhibit b-2 dated september 3 1939 is a part of schedule
of partition allotted to the members of the e.n.a.s. family. it reads
particulars regarding the properties that
have been set apart for charity from our joint
family.-

properties situate in kunisseri amsom
which belong to n. c. sivarama ayyar of
nellisseri grammom and others and which belong
to our family in  usufructuary mortgage  right
for a sum of rs. 31000 and which are held
benami in the name of appathura pattar alias
seshan pattar of melkode grammom. the document companytains other items of properties set apart
for charity. exhibit b-3 the registration companyy of the partition deed
dated september 9 1939 shows that the schedule was
prepared in companynection with the oral partition agreed upon
on september 3. 1939. after orally dividing the properties
among the members of the family and setting aside the said
mortgage interest and other properties for charity on
september 9 1939 the said registered partition deed was
executed embodying the terms of the oral partition. it is
common knumberledge that before a regular registered partition
deed is effected there will necessarily be a stage when the
terms embodied in the registered document are agreed upon
orally between the parties. it is a necessary prelude for
executing the formal document. ex. b-3 appears to be such
a document embodying the terms orally agreed upon between
the parties at an earlier stage. this document governs the
rights of the parties. the relevant recital in the document
reads
out of the immovable properties which were
set apart previously as mentioned in paragraph
2 above which were reserved in companymon at that
time and which
were acquired subsequently some immovable
properties were set apart under schedule 1 for
our companymon family private trust for the
purpose of charity. under the oral partition
effected on 3rd september 1939 all the
immovable properties belonging to our companymon
family excluding those set apart for charity
as stated above were partitioned into 9
schedules from a to i in accordance with our
proportionate shares but whereas we
have all agreed that the management in respect
of the properties in the aforesaid schedule i
set apart for charitable purpose and the
expenses etc. to be met with the income shall
be companyducted and caused to be companyducted
without default as set out in the aforesaid
agreement entered into between us on 22nd
august 1934 and that we shall also companyduct
ourselves in future in accordance with the
terms of the said agreement numberspecial
stipulation has been made in this partition
deed with regard to the above mentioned
properties endowed for charitable purpose and
the incomes derived therefrom. this registered partition deed in terms affirmed the earlier
creation of trust. from these documents it can be reasonably held as follows

on august 22 1934 the family created a trust in
respect of a sum of rs. 36988-9-8 for charitable purposes
 2  on september 3 1939 the usufructuary mortgagee right
of the family in ex. a-1 was given to the charity in
discharge of the obligation undertaken under ex. b-1 and
 3  the dedication of the said property was affirmed in the
regular partition deed. in short under the said documents
the family transferred to the charity their interest in the
usufructuary mortgage ex. a-1 in discharge of their
obligation to pay the trust a sum of rs. 36988-9-8. indeed
the high companyrt on a companysideration of the said documents
arrived at exactly the same finding. the learned judges of
the high companyrt observed
on a companyparison of the charity properties
mentioned in exhibits b-1 and b-2 we find
that item number 3 in exhibit b-1 is the same as
item number 2 in b-2. similarly item number 4 in
exhibit b-1 companyresponds to item number 3 in
exhibit b-2. item number 5 in exhibit b-1 is
admitted to be item number 4 in exhibit b-2 and
item number 6 in exhibit b-1 is the same as item
number 5 in exhibit b 2. items number. 1 and 2 in
exhibit b-1 are number mentioned
in exhibit b-2 but they are replaced by item
number 1 in exhibit b-2 which is the mortgage. it is seen that items 1 and 2 in exhibit b-1
are credit entries of the aggregate amounts in
the family business accounts but what is done
by exhibit b-2 is the replacement of those
amounts by the mortgage in question. no
evidence has been let in as to what has become
of those two amounts. evidently being credit
entries they have been companyverted into tangible
immovable assets for the purposes of company-
ducting the charity. it is more or less in
the nature of substituting a credit entry by
means of sot-de property i.e. the discharge
of the liability of those credit entries by
setting apart immovable property. exhibit b-
3 dated 9th september 1939 is a registered
copy of the partition deed by the members of
the family and paragraphs 2 and 4 of that
document make provision with regard to the
matters in question which run as follows
later on the learned judges proceed to state
we are unable to accept the arguments for the
reasons stated already. it is clear as we
have referred to already that for the amounts
entered as credit in the family business
account which was a liability payable by the
family from and out of the interest under
exhibit b-1 the religious functions have to be
performed and that there was a substitution of
the mortgage amount under exhibit b-3. mr.
ramachandra aiyar companytends that there is no
oral evidence about that substitution number is
it possible to companyclude from the meagre and
scantly documentary evidence let in that there
has been any such substitution. the answer to
this argument is that the credit amount in
favour of kolathu lyen is only a ledger entry
making the liability on the family with regard
to a sum of money out of which certain
charities have to be performed. in exhibit b-
3 we do number find any credit entry in the name
of kolathu lyen as well as patasala account. those liabilities must be deemed to have been
discharged by item i in exhibit b-2 namely
the mortgage amount. the result is the dis-
charge of one liability by anumberher and we are
unable to see that such a state of things
would number amount to a transfer. these observations also make it clear that the learned
judges clearly held that the mortgage interest in ex. a-1
was transferred in discharge of the liability undertaken
under ex. b-1. but strong reliance was placed by the
learned companynsel for the appellants on the following
concluding observation of the learned judges
in the present case the joint family has lost
the mortgage interest and the trust has gained
that interest. therefore the transfer under
ex. b-3 must be deemed to be for valuable
consideration. relying upon this observation the learned companynsel companymented
that the learned judges held that a mere transfer of an
interest in favour of anumberher was in itself a transfer for
valuable companysideration. to accept this argument is to
ignumbere the elaborate discussion that preceded the said
observation and the relevant extracts from the judgment we
have extracted earlier. in the companytext of the preceding
discussion the said observation can only mean that the
transfer in favour of a charity in discharge of the earlier
obligation is a transfer for valuable companysideration. agree-
ing with the high companyrt we hold that there was a transfer
of the mortgage interest under ex. a-1 in trust to a
charity in discharge of an earlier obligation undertaken by
the family to set apart a sum of rs. 36988-9-8 in favour of
the charity. under para  b  of s. 9-a  io   ii  of the act
to attract that provision the transfer shall be for a
valuable companysideration. the short question therefore is
whether the transfer in trust of a property in discharge of
an earlier obligation was for valuable companysideration within
the meaning of para  b  of s. 9-a 10  ii  of the act. so
stated there can only be one answer. the classic definition
of valuable companysideration is given in currie v. misa 1
thus
a valuable companysideration in the sense of the
law may companysist either in some right
interest profit or benefit accruing to one
party or some forbearancedetriment loss or
responsibility given suffered or undertaken
by the other. section 2  d  of the companytract act defines
consideration thus
when at the desire of the promisor the
promisee or any other person has done or
abstained from doing or does or abstains from
doing or promises to do or to abstain from
doing something such act or abstinence or
promise is called a companysideration for the
promise.  1875 l.r. 10 ex. 162.
so far as is relevant to the present enquiry the companytent of
the two definitions is practically the same though the
expression valuable is implied under s. 2 d  of the
contract act for companysideration shall be something which
number only parties regard but the law can regard as having
some value. from the definitions it is apparent that
consideration may be negative or positive. in the present
case the mortgage interest was transferred in trust to the
charity. what was the companysideration that passed from the
charity to the family ? the family was under an obligation
to pay to the charity the amount set apart to it under ex. b-1. the mortgage interest was transferred in discharge of
that obligation. that is to say the charity agreed as a
consideration for the transfer of the mortgage interest number
to enforce its right to recover that amount from the family. the charity gave up that right in. companysideration of the
mortgage interest acquired by it. we therefore hold that
the family transferred the mortgage interest in trust to the
charity for valuable companysideration within the meaning of s.
9-a 10  ii  b  of the act. it follows that the mortgage
ex. a-1 was rightly held by the high companyrt number liable to
be scaled down under the provisions of the act. in the reply the learned companynsel for the appellants sought
to raise anumberher plea namely that there was numbervalid
transfer of the mortgage deed in favour of the charity
inasmuch as the said transfer was number effected by a
registered document. this plea was number raised at any stage
of the litigation presumably because ex.


civil appellate jurisdiction civil appeal number 998 of 1971.
appeals by special leave from the judgment order dated the
20th january 1971 of the allahabad high companyrt in f.a.number
443 of 1968.
hardayal hardy janardan sharma and jitendra sharma for the
appellant. sultan singh and r. p. agarwala for the respondents. the judgment of the companyrt was delivered by
untwalia j. in this appeal by special leave of this companyrt
is involved the interpretation and true meaning of subrule
 2  of rule 89 of order 21 of the companye of civil procedure
1908-hereinafter called the companye. the decree holder is the
appellant. the first respondent.is the purchaser of a major
portion of the property sold in execution of the appellants
decree against respondent number 2. the appellant had filed a
suit in the year 1951 against the husband of respondent number
2 for realization of certain sums of money due on a
promissory numbere. the suit was dismissed by the trial judge
of saharanpur. the appellant filed first appeal number
122/1954 in the allahabad high companyrt. certain properties
belonging to the husband of respondent number2 were directed to
be attached before judgment by the high companyrt. in spite of
the attachment he sold the properties in two lots. the
first lot was sold for a sum of rs. 7580/- on 30-7-1956 to
one smt. subadhara devi. the remaining attached properties
were sold in the second lot to the first respondent on
30.11.57 for rs. 70000/. the original defendant died
during the pendency of the first appeal in the high companyrt. his widow was. substituted. the first appeal was allowed
and the suit was decreed against the substituted defendant
respondent on 25.3.1966.
the appellant filed execution number 12/-1967 in the saharanpur
court for realization of rs. 11795/- the amount due under
the decree rs. 3528.10p. the companyts in the suit and the
appeal together with the companyts of the execution. in the
said execution the attached properties were sold and
purchased by the appellant on 29.11.1957 for rs. 16000/-
with the leave of the execution companyrt. the first-respondent
filed on 12-12.1967 an application under order 21 rule 90 of
the companye for setting the sale aside. this application was
registered as miscellaneous case number 3/1967 in execution
case number 12/1967. the period of 30 days from the date of
sale expired during holidays. respondent number 1 on the re-
opening date i.e. on 1.1.1968 instituted miscellaneous case
number 1/1968 by an application made under order 21 rule 89 of
the companye. the amount as was necessary to be deposited for
the setting aside of the scale under rule 89 was deposited
in the execution companyrt by respondent number1 in his application
under order 21 rule 89 of the companye a statement was made by
respondent number 1 the applicant has also given an
application under order 21 rule 90 and the applicant
withdraws the same. on the same date i.e. on 1.1.1968
respondent number 1 also filed a separate application stating
therein that he had filed an application under order 21 rule
90 of the companye for cancellation of the auction held on
29-11-1967 which was
pending and that he had filed on application under order 21
rule 89 of the companye also. the further statement was that
the applicant number withdraws the application under order 21
rule 90 and does number want to press the same. a sum of rs
2000/- by way of security had been deposited by respondent
number1 while making that application. the prayer in this
petition was also for the return of the said sum of money. it appears however that the companyrt did number record an order
of withdrawal in miscellaneous case number 3/1967. in the
usual companyrse that case was put up on 6.1.1968 when
respondent number 1 and his companynsel were present. a direction
was given to do pairevi for fresh service of numberice on the
opposite party namely the decree holder and the judgment
debtor. steps were taken but on 10.2.1968 it was found
that service of numberice on the judgment debtor  opposite
darty number2  was number sufficient. on that date further steps
were taken by respondent number1 for service of numberice on the
opposite parties. eventually on 9.3.1968 the advocate for
respondent number1 made an endorsement on the back of the
application filed under order 21 rule 90 of the companye sir
in view of application dated 1.1.68 in our proceeding number1
of 1968 the applicant does number want to prosecute it. it was
only then that miscellaneous case number 3/1957 was dismissed
by execution companyrt on 9.3.1968. miscellaneous case number
1/1968 proceeded to disposal. in substance the only
objection taken by the appellant to resist the said
application was a plea of its number-maintainability in view of
the provision of law companytained in sub-rule  2  of rule 89.
the execution companyrt allowed the application of respondent
number 1 under order 21 rule 89 of the companye and set aside the
sale. the appellants appeal against the said order was
dismissed by a learned single judge of the allahabad high
court. on grant of special leave by this companyrt the present
appeal was presented. at the outset we may reject a new plea taken by the
appellant in this companyrt that the amount deposited by
respondent number1 was hot sufficient as bondage fee in
accordance with rules 365 and 371 framed by the allahabad
high companyrt was number deposited. we did number examine the
correctness of this point as it involved investigation of
new facts which for the first time companyld number be permitted in
this companyrt. the only question for determination in this appeal is
whether the application of respondent number1 under order 21
rule 89 of the companye was number maintainable and liable to be
dismissed as such and whether it has wrongly been allowed
by the companyrts below. mr. hardayal hardy learned companynsel for the appellant
strenuously companytended that respondent number1 was number entitled
to make an application under order 21 rule 89 of the companye
unless he effectively withdraw his application under order
21 rule 90 and an order of the companyrt to that effect was
passed. companynsel further submitted that instead of asking
the companyrt to make an order permitting the withdrawal of his
application under rule 90 on two dates he took steps to
prosecute that application. ultimately the case was number
proceeded with on 9-3-1968. in the eye of law therefore
the application under rule 89 should be
deemed to have been filed only on 9-3-1968 on which date it
was hopelessly barred by limitation. on the companyrect interpretation of sub-rule  2  of rule 89 and
on determination of its true scope it will be numbericed that
on the facts and in the circumstances of this case
respondent number 1s application under-rule 89 has rightly
been allowed. order 21 rule 89 2  reads as follows
where a person applies under rule 90 to set
aside the sale of his immoveable property he
shall number unless he withdraws his
application be entitled to make or prosecute
an application under this rule. the words used in the sub-rule are make or prosecute. if
it were to be held that the applicant is number entitled merely
to prosecute misapplication under rule 89 unless he
withdraws his application under rule 90 then the word
make would become redundant. in order to bring about the
true intention of the legislature affect must be given to
both the words. if a person has first applied under rule 90
to set aside the sale then unless he withdraws his
application he is. number entitled to make and prosecute an
application under rule 89. the. application even if made
will be deemed to have been made only on withdrawal of the
previous application. if however a person has filed an
application under rule 89 first and thereafter anumberher
application under rule 90 he will number be allowed to
prosecute the former unless he withdrew the latter. section 310a was added in the companye of 1882 by act 5 of 1894.
this section companyresponds to order 21 rule 89 of the companye of
1908. the proviso to section 310a which companyresponds to sub-
rule  2  merely used the words he shall number be entitled to
make an application under this section. in the case of
rajendra nath haldar and others v. nilratan mitter and
others 3  an application under section 310a of the companye of
1882 was first made and on the following day applicants
presented an application under section 311  companyresponding to
order 21 rule 90 . in view of the proviso the- application
under section 310a failed. the argument put forward on
behalf of the applicants was that if an application under
section 311 was filed after the filing of the application
under section 31 oa the proviso did number apply. it was
rejected by the bench companysisting of petheram cj and
rampini j. thus we companysider that the words he shall
number be entitled to make an application under this
section in the proviso cannumber mean merely he shall number be
entitled to present an application under the section. but
the word make here must mean carry on or prosecute. the legislature it appears to make the position of law
certain added the words or prosecute after the word
make in sub-rule  2  of rule. 89 of order 21 of the companye. in our judgment an application under rule 89 validly made
on the date of its presentation cannumber be allowed to be
prosecuted until the subsequent application filed under rule
90 is withdrawn. but it

i. l. r. 23 calcutta 958.
cannumber be allowed to be made or be deemed to have been made
unless the prior application filed under rule 90 is
withdrawn. even on the interpretation of rule 89  2  which we have put
we are number prepared to accept the companytention put forward on
behalf of the appellantthat an application under rule 90
does number stand withdrawn until an order to that effect is
recorded by the companyrt. the applicant merely has to companyvey
to the companyrt that he is withdrawing his application under
rule 90 which he had filed prior to the making of the appli-
cation under rule 89. thereupon he becomes entitled to
make the latter application. every applicant has a right to
unconditionally withdraw his application and his unilateral
act in that behalf is sufficient. numberorder of the companyrt is
necessary permitting him to withdraw the application. the
court may make a formal order disposing of the application
as withdrawn but the withdrawal is number dependent on the
order of the companyrt. the act of withdrawal is companyplete as
soon as the applicant intimates the companyrt that he withdraws
the application respondent number 1 has clearly done so here
number only by mentioning in his application under rule 89 that
he was withdrawing his application under rule 90 but also by
filing a separate application to that effect in which number
only the statement as to the withdrawal of the application
under rule 90 was made but a prayer for the refund of rs
2000 was also made. the steps taken on behalf of the
respondent number 1 in miscellaneous case number 3/1967 even after
the filing of miscellaneous case number 1/1968 were clearly
superfluous and of numbereffect. the steps taken did number
nullify the withdrawal made by respondent number 1 of his
application under rule 90 and did number make the withdrawal
merely on that account ineffective. even if any ambiguity
was created by the taking of such steps later on 9-3-1968
in clearest language it was intimated on behalf of
respondent number 1 that he was number pursuing his application
under rule 90. it was only then that the companyrt made a
formal order recording its dismissal. in our judgment on
the facts and in the circumstances of this case the order
of the companyrt made on 9-3-1968 had the effect of merely
recording the withdrawal of the application under rule 90
which was already effectively made on 1-1-1968. even
without that order the withdrawal was effective on that
day. we therefore hold that the application filed by respondent
number 1 under order 21 rule 89 of the companye has rightly been
allowed.