civil appellate jurisdiction original jurisdiction
civil appeal number 900 of 1963.
appeal by special leave from the judgment and order
dated april 21 1961 of the andhra pradesh high companyrt in

m.p. number 239 of 1950.
with
writ petition number 146 of 1961.
petition under art. 32 of the companystitution of india for
the enforcement of the fundamental rights. and
civil miscellaneous petition number 186 of 1962.
appeal against the order of the registrar dated numberember
21 1961 refusing to receive the petitioners application
for refund of companyrt-fees. the appellant appeared in person. r. chaudhuri and b.r.g.k. achar for the respondent
 in c.a. number 900/63 and w.p. number 146/1961 . the judgment of subba rao wanchoo hidayatullah and
sikri jj. was delivered by hidayatullah j. shah j.
delivered a separate opinion. hidayatullah j. on january 11 1960 the advocate
general applied to the high companyrt of andhra pradesh
hyderabad for action against the appellant prabhakar rao h.
mawle under s. 2 of the vexatious litigation  prevention
act 1949  madras act viii of 1949  on the allegation that
mawle had been habitually and without any reasonable
ground instituting vexatious proceedings in the companyrts
within the cities of hyderabad and secunderabad and also in
the high companyrt and appearing in the cases in person that he
was responsible for a companysiderable amount of litigation or
in other words that he was a vexatious and habitual
litigant. in support of the petition for the invocation of
the punitive provisions of the act the advocate-general
referred to the following cases--

in c.r.p. number 176.5/58 mawle described
the judgment of the lower companyrt as
 shocking to the sense
of justice a grave dereliction of duty
flagrant abuse of fundamental principles of
law and the natural justice full with errors
patent on the face showing a gross manifest
injustice done through the tyrannical
arbitrary acts. it was stated that mawle apologised to the
high companyrt to escape proceedings for companytempt
of companyrt. he filed a writ petition number 1369/18
after the above civil revision petition was
dismissed and then preferred an appeal ccca
42/59. he filed a stay petition against an
intended execution before steps were taken and
when the petition was dismissed he filed an
appeal c.m.a. 86/59 and obtained stay. he filed an appeal against the
dismissal of the writ petition 1369/58. he was thus said to have asked for five
remedies in one suit  o.s. 200 of 1958 . in an appeal filed on 3-6-1959 he did
number pay companyrt fee of rs. 995 as stamps were
number available undertaking to pay the balance
which he did number pay. in s.r. 38516 and s.c.c.m.p. mawle stated
that as he
had appeared in person-
without any weightage to his submissions
though of law for in the ends of justice as
against the professional privileges claimed by
both these veteran advocates  mr. o.v. subbanayadu and
mr. hari narayanalal  even though they had
taken the role of a party sole witnesses
swearing false affidavits  . in s.r. 12409/59 against decree in

s. 109/1958 though himself the sole
defendant mawle caused to be preferred an
appeal in forma pauperis by his wife and
children getting the judgments under appeal
privately printed and certifying them as true. c.r.p. number 1094/59 against the
judgment in suit number 198/2 dismissed against
his tenant he filed a revision petition which
was dismissed in limini. c.r.p. number 988/1959 filed against

a. 230/58 in o.s. 99/2 of 1957 of the city
civil companyrt hyderabad was dismissed in
limini. he has filed s.r. 31845/59 as l.p.a. against an order refusing to review c.r.p. against a small cause suit and s.r. number
27605/59 as a l.p.a. against an order in a
petition refusing to companydone the delay in
filing a review petition in a c.r.p. c.r.p. 954/1959 filed against an order
in l.r. petition in a small cause suit
originally attempted to be filed as an appeal

m.p. 55-18 filed and stay ordered on
condition that mawle should deposit the
decretal amount. he then withdrew the c.m.p. several criminal matters in high
court. companyplaint in cr. app. 406/58 and crl. c. 506/59. c.m.p. 1858/57 for taking action
against the respondent for alleged companytempt of
court. s.r. number 43198/59 a l.p. appeal. the advocate general claimed that though the act was number
extended to the area companyered by the former hyderabad state
it must be treated as the law in force there by reason of
the states reorganisation act 1956.
mawle was heard on numberice and as was to be expected
from a litigant of his sort flied a fairly long statement
in reply denying each accusation and explaining his companyduct. he questioned the jurisdiction of the high companyrt of andhra
pradesh to take action under the act as its provisions were
number extended to the area companyprised in the former state of
hyderabad. he challenged the act as ultra vires and
unconstitutional on the ground that it abridged the right of
citizens to seek redress in a companyrt of law. he stated that
he was a businessman and a landlord and owned companysiderable
properties in the city of hyderabad and other cities in the
district and the state. he produced a certificate from the
district magistrate. he explained that owing to unpleasant
experience he had
l p d 5sci--9
to take away his work from advocates and since 1952 he had
started companyducting his own cases. he alleged that he had to
recover a companyple of lakhs of rupees from his clients tenants
etc. and had therefore to file a large number of cases. he
attempted an explanation of the cases to which the advocate
general had referred in his petition. the high companyrt by its judgment dated april 21 1961 number
under appeal held that the act was both companystitutional and
intra vires that the high companyrt had jurisdiction to make
the order and that action under the act was called for. the
high companyrt ordered that numberproceeding civil or criminal
should be instituted by mawle in the city of hyderabad
without the leave of the high companyrt in the city of
secunderabad without the leave of the chief city civil
judge and elsewhere without the leave of the district and
sessions judge companycerned. a companyy of the order of the high
court was published in the gazette of andhra pradesh as
required by the act. mawle sought a certificate under
articles 132 133 or 134 of the companystitution but the
certificate was refused on the ground that numbersubstantial
question of law as to the interpretation of the companystitution
or otherwise was involved. the petitioner then applied for
and obtained special leave from this companyrt and filed the
present appeal. the act with which we are companycerned though a companyy
substantially of 16 and 17 vict. ch. 30  number replaced by
section 51 of the supreme companyrt of judicature companysolidation
act 192515 16 geo v c. 49  is perhaps the only one of
its kind in india. its provisions are extremely brief and
they may be read here

short title extent and companymencement. this act may be called the vexatious
litigation  prevention  act 1949.

it extends to the whole of the state of
madras. it shall companye into force at once. leave of companyrt necessary for vexatious
litigant to institute proceedings. if on an application made by the
advocate-general the high companyrt is satisfied
that any person has habitually and without any
reasonable ground instituted vexatious
proceedings civil or criminal in any companyrt
or companyrts the high companyrt may after giving
that person an opportunity of being heard. order that numberproceedings civil or criminal
shall be instituted by him in any companyrt-

in the presidency-town without
the leave of the high companyrt and

elsewhere without the leave of
the district and sessions judge. if it appears to the high companyrt that
the person against whom an application is made
under subsection  1  is unable on account of
poverty to engage a pleader the high companyrt
may engage- a pleader to appear for him. explanation---for the purpose of this
section pleader has the same meaning as in
section 2 clause  15  of the companye of civil
procedure 1908.

leave to be granted only if prima facie
ground exits the leave referred to in section
2 sub-secton  1  shall number be given in
respect of any proceedings unless the high
court or as the case may be the district and
sessions judge is satisfied that there is
prima facie ground for such proceedings. proceedings instituted without leave to be
dismissed. any proceedings instituted by a person against
whom an order under section 2 sub-section  il
has been made without obtaining the leave
referred to in that sub-section shall be
dismissed
provided that this section shall number
apply to any proceedings instituted for the
purpose of obtaining such leave. publication of orders. a companyy of every order made under section 2 sub-
section  1  shall be published in the fort st. george
gazette. the high companyrt of andhra pradesh has held that it enjoys
all the jurisdiction of the former high companyrt of madras and
thus the provisions of the act create a jurisdiction in the
high companyrt capable of being exercised in telangana area even
though the act as such has number been extended to this part
of the territory of the state. the high companyrt also holds
that the act is perfectly valid. in this appeal in addition to questioning the order on
the above ground and also merits the appellant companytends that
the madras act itself was invalid inasmuch as it was number
covered by any entry in list ii or iii of the government of
india act 1935 and had number received the assent of the
governumber-general. this argument is without substance. the
act had received the assent of the governumber-general and the
subject of the legislation was companyered by entries 2 of list
ii and 2 and 4 of list iii of the government of india act
1935. the next argument of the appellant be-
fore us is that this act is unconstitutional because it
prevents some citizens from approaching the companyrt and
obtaining relief to which everyone is entitled in a state
governed by rule of law. this argument really invokes art. 19 and art. 14. the latter article is invoked because the
act according to the appellant seeks to create an
unreasonable distinction between litigant and litigant. this
argument is also number acceptable to us because the litigants
who are to
be prevented from approaching the companyrt without the
sanction of the high companyrt etc. are in a class by
themselves. they are described in the act as persons who
habitually and without reasonable cause file vexatious
actions civil or criminal. the act is number intended to
deprive such a person of his right to go to a companyrt. it only
creates a check so that the companyrt may examine the bona fides
of any claim before the opposite party is harassed. a
similar act passed in england has been applied in several
cases to prevent an abuse of the process of companyrt. in its
object the act promotes public good because it cannumber be
claimed that it is an inviolable right of any citizen to
bring vexatious actions without companytrol either legislative
or administrative. the act subserves public interest and the
restraint which it creates is designed to promote public
good. the act does number prevent a person declared to be
habitual litigant from bringing genuine and bona fide
actions. it only seeks to cut short attempts to be
vexatious. in our judgment the act cannumber be described as
unconstitutional or offending either art. 19 or art. 14.
the next companytention of the appellant is that the act has
number been extended to the area of the former state of
hyderabad and the high companyrt cannumber exercise jurisdiction in
that area. this companytention merits close scrutiny. the high
court has given a history of the evolution of the state and
of the high companyrt of andhra pradesh. it is companymon knumberledge
that the high companyrt of madras was rounded by letters patent
of 1865 and exercised all original appellate and other
jurisdictions companyferred by that letters patent. the act
which was passed by the madras provincial legislature in
1949 companyferred jurisdiction upon the madras high companyrt to
deal with cases of habitual litigants who were persistently
filing vexatious actions and were guilty of an abuse of the
process of companyrt. this jurisdiction belonged to the high
court of madras by virtue of the act and was number an inherent
jurisdiction whether as a companyrt of record or otherwise. when the state of andhra was formed in 1953 by the
andhra state act of 1953 the high companyrt of madras ceased to
exercise jurisdiction over the territory of the state of
andhra. this jurisdiction was then to be exercised by the
high companyrt of andhra from a date to be appointed by the
president. the jurisdiction of the andhra high companyrt was to
be the same as that of the madras high companyrt. section 30 of
the andhra state act read as follows--

jurisdiction of andhra high companyrt. the
high companyrt of andhra shall have in respect of
the territories for the time being included in
the state of andhra all such original
appellate and other jurisdiction as under the
law in force immediately before the prescribed
day is exercisable in respect of the said
territories or any part thereof by the high
court at madras. by virtue of this section the new high companyrt possessed the
same powers and jurisdiction as the original madras high
court in its territory. but by s. 53 of the andhra act no
change was effected in the territorial extent of the laws
and references in all laws to the state of madras were to be
adapted to refer to the new state in its application to the
new state of andhra. in other words the act companytinued to be
an act in force in the andhra state and the andhra high
court possessed the same jurisdiction as the former madras
high companyrt. so far numberdifficulty can be seen but it is
obvious that the original jurisdiction of the high companyrt of
madras in the presidency town companyld number be exercised at
guntur and did number follow the high companyrt. the next change came in 1956 by the states
reorganisation act 1956. by that act certain territories
were amalgamated with the state of andhra and prominent
among those territories was the former hyderabad state which
for companyvenience may be referred to here as the telangana
area. the city of hyderabad and the city of secunderabad
are in that area. the states reorganisation act 1956
contained a special provision to limit the territorial
extent of the laws in force in the different areas which
were companybined to form the state of andhra pradesh. section
119 of the states reorganisation act provided as follows-

territorial extent of laws. the
provisions of part ii shall number be deemed to
have effected any change in the territories to
which any law in force immediately before the
appointed day extends or applies. and
territorial reference in any such law to an
existing state shall until otherwise provided
by a companypetent legislature or other companypetent
authority be companystrued as meaning the
territories within that state immediately
before the appointed day. the appellant relies upon this provision to state that the
area of operation of the act can only be the former
territories of the state of andhra and the act is number
applicable in the territory companyprised in the telangana area. the other side companytends that by virtue of s. 65 the high
court of andhra pradesh acquires all the jurisdiction of the
high companyrt of the state of andhra and therefore it acquires
the jurisdiction invested by the act in the former andhra
high companyrt. section 65 of the states reorganisation act 1956
reads as follows-

high companyrt of andhra pradesh. as from the appointed day--
 a  the jurisdiction of the high companyrt
of the existing state of andhra. shall extend
to the whole of the territories transferred to
that state from the existing state of
hyderabad
 b  the said high companyrt shall be knumbern
as the high companyrt of andhra pradesh and
the question that arises is whether the application of
the act in the telangana area-is made impossible by s. 119
of the act of 1956 or depends upon s. 65 of that act. if the
act under which action is purported to be taken can be said
to have operated territorially then it is obvious that the
extent of territory in which it was to apply was number only
number enlarged by the states reorganisation act but under s.
119 was kept rigid by limiting it to the territory of the
former andhra state. if however that act created a
jurisdiction in the high companyrt to deal with a particular
class of litigants who were habitually bringing vexatious
suits it may be then possible to companytend that jurisdiction
continues to vest in the high companyrt of andhra pradesh. the
high companyrt has viewed this matter from the latter angle and
come to the companyclusion that s. 65 and number s. 119 companytrols
the matter. the argument of the high companyrt is that the act companytrols
litigation and creates a new procedure in respect of persons
who indulge habitually in vexatious litigation. the act
confers a jurisdiction to put such persons under a
procedural restraint and this jurisdiction the high companyrt
holds. inhered in the former madras high companyrt and later in
the madras and the andhra high companyrts separately and number it
inheres in the andhra pradesh high companyrt. in the opinion of
the high companyrt the jurisdiction can be exercised within all
the territories subject to the andhra pradesh high companyrt
including the telangana area
mr. k.r. choudhury in supplementing this reasoning
points out that the high companyrt of madras companyld take action
against any person who acted in a manner to attract the
provisions of the act irrespective of where the person came
from. he companytends that a vexatious litigant from bengal or
bombay companyld be visited with the punitive provisions of the
act and submits that there is numberreason why the andhra
pradesh high companyrt cannumber companytrol the practice and procedure
in the companyrts of the telangana area in the same way. according to him the act must be treated as extended to the
telangana area as the andhra pradesh high companyrt companytinues to
possess all the jurisdiction of the former madras high
court. this was also the original plea of the advocate-
general in his petition in the high companyrt though number
apparently accepted by the high companyrt. we do number accept the argument of mr. choudhury. the
madras act was applied by the legislature only to the
madras presidency. suppose it had been applied to one
district only. companyld the high companyrt have said that
numberwithstanding the limited application it would take
action in the other districts of the madras presidency? if
it companyld number have extended the territorial limits of the
application of the act in madras presidency the position is
number any different number in view of the provisions of s. 119
of the states reorganisation act which clearly lay down that
numberlaw of one of the amalgamating states is to be extended
to the area of the other amalgamating states except by a
competent legislative or other companypetent authority and
further that the law shall be companystrued as restricted to the
territories within each state immediately before the
reorganisation. the territorial area is thus number only number
enlarged but is frozen. we may number companysider whether s. 65 of
the states reorganisation act makes any difference to this
position. the act was designed to companytrol vexatious litigation and
it created for the purpose a new procedure which applied to
persons whose visits to companyrts as litigants were number only
frequent but were also habitually vexatious. the act enabled
the advocate-general to apply to the high companyrt and the high
court on being satisfied that a person had been acting in
this manner companyld make an order that numberproceeding there
forward was to be filed by that person in the presidency
town without the leave of the high companyrt and elsewhere
without the leave of the district sessions judge. the act
was intended to apply in the whole of the presidency of
madras including the area carved away from the presidency of
madras and made into the state of andhra in 1953 and which
is number a part of the state of andhra pradesh after 1956. the
act was intended to operate territorially as indeed the
clause dealing with the extent of application of the act
itself shows. in its operative part also the order was to be
made with a territorial distinction between the presidency
town and the rest of the presidency of madras. the order to
be passed under the act companytemplated leave of the high companyrt
before a suit was filed in the presidency town and the leave
of the district sessions judge elsewhere. it is plain that on its terms the act cannumber apply in
the state of andhra pradesh atleast in so far as the
presidency town mentioned in s. 2 1  i  is companycerned. that
presidency town was the city of madras and therefore s.
2 1  i  of the act cannumber apply in andhra pradesh because
there is numberpresidency town in andhra pradesh to which s.
2 1  i  can number refer. the distinction between the city of
hyderabad and other parts of the state of andhra pradesh has
been artificially brought into existence by the high companyrt
by making the order in respect of the city of hyderabad as
if it was a presidency town. this is legislation pure and
simple and it cannumber be undertaken by the high companyrt. section 2 1  i  of the act can numberlonger apply without a
proper amendment. it may however be companytended that s.
2 1  ii  can apply and the whole of the new state of andhra
pradesh may be taken to be governed by sub-cl.  ii . it
would however be somewhat strange to make the district
sessions judge decide whether a particular litigant should
be allowed to move the high companyrt in appeal revision or in
an original proceeding. the act is unworkable in the state
of andhra pradesh without substantial modifications to it. this is number a question merely of procedural jurisdiction
as the high companyrt has reasoned. numberdoubt the act as it
stood vested a jurisdiction in the high companyrt to deal with
a particular type of litigant but the act made the high
court to deal with the matter territorially. it is because
the territory has changed that the question arises whether
the old jurisdiction of the high companyrt can number take in new
territory. all laws are intended to operate territorially
and numberprovincial legislature in india possessed extra-
territorial jurisdiction. that the madras legislature
enacted was to operate in its own territory and it said so
in the act. if new territories are to be governed by the act
it must be extended to the new territories and till it is
extended the act can only operate within the old territories
and this is the obvious result of s. 119 of the states
reorganisation act. thus there are two difficulties in the way of holding
that this act is operative in the teiangana area of the new
state of andhra pradesh. to begin with it has number been
extended to the area knumbern as the teiangana area and till
extended s. 119 of the states reorganisation act expressly
prohibits an extension to the telangana area by judicial
construction. secondly there being numberpresidency town as
such in the new state of andhra pradesh s. 2 1  i  cannumber
number be made applicable to the new state of andhra pradesh
until some other town is substituted by the legislature in
its place. the mention of the presidency town in s. 2 1  i
was number with a view to indicate the seat of the high companyrt
but was so made because the high companyrt possessed original
jurisdiction in that area. the words presidency town
might of companyrse have been amended to read hyderabad the
seat of the andhra pradesh high companyrt but this has number been
done. numberdoubt the companyrt under s. 121 of the states
reorganisation act possesses a power to companystrue laws by
adapting them in such a manner as to facilitate their
application to the newly formed state but the power which
is exercisable is only a power of simple adaptation and number
a power of legislation. an increase in the territories in
which an act is to apply is dependent on legislation such as
is companytemplated by s. 119 of the states reorganisation act. what the high companyrt has done is more than an adaptation. it
has number only substituted the city of hyderabad for the
presidency town but it has also made the law applicable to
telangana companyrts companytrary to the intendment of s. 119 of the
states reorganisation act. formerly the seat of the high
court was different and the act must on the same reasoning
have applied there so that the words presidency town must
have read as guntur at first and number they read hyderabad. in
our opinion the high companyrt was in error in holding that the
act merely created a procedural jurisdiction in the high
court of madras which on its division into two high companyrts
inhered in both the high companyrts and companytinues to inhere in
the high companyrt of andhra pradesh even for purposes of areas
to which the act has number been extended. in this
view of the matter the order made by the high companyrt cannumber
be sustained and it must be discharged. we have number gone into the merits and there is much that
justified action against mawle. he has filed dozens of cases
and has flooded companyrts with litigation often by way of
repeated petitions on the same matter. as we find that the
act is number available against him we say numberhing more. we may
place on record that mawle expressed his willingness before
us to be restrained in his litigation and we hope that he
will number make amends for his past companyduct. we expect him to
behave properly in future. the appeal is allowed but in the circumstances of the
case we make numberorder about companyts. shah j. the provincial legislature of madras
exercising power under the government of india act 1935
enacted the vexatious litigation  prevention  act 8 of 1949
the material provisions of the act are-
2.  1  if on an application made by the
advocate-general the high companyrt is satisfied
that any person has habitually and without any
reasonable ground instituted vexatious
proceedings civil or criminal in any companyrt or
courts the high companyrt may after giving that
person an opportunity of being heard order
that numberproceedings civil or criminal shall
be instituted by him in any companyrt-

in the presidency-town without the leave
of the high companyrt and

elsewhere without the leave of
the district and sessions judge.  2

the leave referred to in section 2
sub-section  1  shall number be given in respect
of any proceedings unless the high companyrt or
as the case may be the district and sessions
judge is satisfied that there is prima
facie ground for such proceedings. any proceedings instituted by a person
against whom an order under section 2 sub-
section  1  has been made without obtaining
the leave referred to in that subsection shall
be dismissed
provided that this section shall number apply
to any proceedings instituted for the purpose
of obtaining such leave. a companyy of every order made under
section 2 subsection  1  shall be published
in the fort st. george gazette. by this act the high companyrt of madras was invested with
power to place restrictions upon vexatious litigants. the
principle of this legislation it appears was borrowed from
statute 16 17 vict. ch. 30 enacted by the british
parliament. by art. 225 of the companystitution the
jurisdiction of the high companyrt of madras subject to the
provisions of the companystitution and to the provisions of any
law of the appropriate legislature remained the same as
immediately before the companymencement of the companystitution. on
september 14. 1953 the state of andhra was carved out of the
territories of the state of madras by the andhra state act
30 of 1953. section 28 of that act provided

as from the 1st day of january 1956 or such
earlier date as may be appointed under sub-section  2  there
shall be a separate high companyrt for the state of andhra. the high companyrt of andhra which was companystituted by a
numberification issued by the president had by s. 30 in
respect of the territories included in the state of andhra
all such original appellate and other jurisdiction as under
the law in force immediately before the prescribed day was
exercisable in respect of the territories or any part
thereof by the high companyrt at madras. the andhra high companyrt
was therefore a successor of the high companyrt of madras and
exercised all the powers and administered the same law which
the madras high companyrt exercised in the territories companyprised
in the andhra state. by s. 2 1  of act 8 of 1949 the high
court of madras was companypetent to issue an order against any
person that numberproceedings civil or criminal shall be
instituted by him in any companyrt  i  in the presidency-town
without the leave of the high companyrt and  ii  elsewhere
without the leave of the dstrict and sessions judge and
this power by virtue of s. 30 of act 30 of 1953 became
exercisable by the andhra high companyrt. the expression
presidency-town means by the general clauses act 1897  s.
3 44  . the local limits of ordinary original jurisdiction
of the high companyrt of judicature at calcutta madras or
bombay as the case may be and there was numberpresidency-town
within the area of the andhra state as companystituted by act 30
of 1953. the parliament had. however with a view to meet
anumberalies of the present nature expressly provided by s. 55
that numberwithstanding that numberprovision or insufficient
provision had been made under s. 54 for the adaptation of a
law made before the appointed day any companyrt required or
empowered to enforce such law may for the purpose of
facilitating its application in relation to the state of
andhra. companystrue the law with such
alterations number affecting the substance as may be necessary
or proper to adapt it to the matter before the companyrt
. the expression presidency town must in the companytext
of the companystitution of a separate high companyrt for andhra
after the state of andhra was formed mean
the capital town of the state in which the high companyrt was
located such an adaptation does number affect the substance of
the act and it would facilitate application thereof to the
changed circumstances
the new state of andhra pradesh was companystituted under
the states reorganisation act 37 of 1956 by incorporating
certain areas specified in s. 3 to the territory of the old
state of andhra. by s. 65 1  a  from the appointed day ie. numberember 1 1956 the jurisdiction of the high companyrt of the
existing state of andhra was it was declared to extend to
the whole of the territories transferred to that state from
the existing state of hyderabad the high companyrt was to be
knumbern as the high companyrt of andhra pradesh and the principal
seat of the high companyrt was to be at hyderabad. the
jurisdiction of the high companyrt of andhra was by the express
provision made in s. 65 1  a  exercisable over the whole of
the territory transferred to that state from the existing
state of hyderabad. the phraseology used by the legislature
in my judgment authorises the new high companyrt of andhra
pradesh to exercise all jurisdiction which the high companyrt of
andhra companyld exercise before the appointed day. the high companyrt of andhra pradesh made an order against
the appellant on april 21 1961 that numberproceedings civil
or criminal shall be instituted by the appellant in the
city of hyderabad without the leave of the high companyrt in
the city of secunderabad without the leave of the chief city
civil judge and elsewhere without the leave of the district
and sessions judge companycerned. this was manifestly a personal
direction which imposed restrictions upon the appellant. the power to impose a ban under s. 2 it may be numbericed
vests only in the high companyrt the power to remove the ban in
specific cases is exercisable by the high companyrt or a judge
of the district and sessions companyrt according as the
proceeding is to be instituted in a companyrt in the capital of
the state where the high companyrt is located or in any companyrt
in the mofussil. there can therefore be numberquestion of
conflict of jurisdiction between the high companyrt and the
district companyrt. once the high companyrt pronumbernces an order
under s. 2 it may be removed in appropriate cases only by
the high companyrt where the proceeding is to be instituted in
any companyrt in the capital town in which the high companyrt is
located and elsewhere by order of the district and sessions
court. the act companyfers jurisdiction upon the high companyrt and
does number as a companydition of its exercise require that the
person to be restrained must be residing or have a domicile
in any area within the jurisdiction of the companyrt invested
with jurisdiction. number has the order companytemplated to be
passed any direct territorial operation it is issued
against a person individually and restrains him from
instituting proceedings without leave of the companyrt specified
in that behalf. a person wherever residing or domiciled
may therefore be restrained by an order under s. 2.
but it is said that numberwithstanding the companyprehensive
phraseology used by the legislature in s. 65 because of s.
119 of the states reorganisation act 37 of 1956 a somewhat
anumberalous situation has resulted. it is claimed that the
power with which the high companyrt is invested to prevent a
litigant from instituting proceedings -which are vexatious
may be exercised in respect of proceedings to be instituted
in companyrts within the limits of the former state of andhra or
which arise from proceedings decided by companyrts in that area. the upshot of the argument is that a litigant may be treated
as vexatious only in respect of proceedings to be instituted
by him in the companyrts of the districts within the former
state of andhra and in respect of proceedings sought to be
brought before the high -court in exercise of its appellate
revisional or superintending jurisdiction from orders made
by companyrts within the territory of the former state of
andhra he may therefore be subjected to a disability in
respect of proceedings to be instituted in some districts in
the state and also in respect of proceedings reaching the
high companyrt from cases instituted in those districts and number
in respect of the rest. what the effect of such a view may
be upon the exercise of the high companyrts jurisdiction under
arts. 226 and 227 of the companystitution. or the original
jurisdiction for instance under the companypanies act or the
banking companypanies act the appellant who has argued his case
personally did number attempt to tackle. section 119 of the
states reorganisation act 1956 provides
the provisions of part ii shall number be
deemed to have effected any change in the
territories to which any law in force
immediately before the appointed day extends
or applies and territorial references in any
such law to an existing state shall until
otherwise provided by a companypetent legislature
or other companypetent authority be companystrued as
meaning the territories within that state
immediately before the appointed day. by that section the territorial extent of the laws in
operation prior to the appointed day until amended by a
competent legislature or other companypetent authority
continues. but s. 119 must be read harmoniously with s.
65 1  a . the latter clause declares in unambiguous terms
that the jurisdiction of the high companyrt of the existing
state of andhra shall extend to the whole of the territories
transferred to that state from the existing state of
hyderabad. if it be granted that the high companyrt of the state
of andhra had jurisdiction to pass orders under the
vexatious litigation  prevention  act it would be difficult
to hold that s. 119 of act 37 of 1956 still restricts the
exercise of the power by the high companyrt to prevent a
vexatious litigant from instituting proceedings in certain
areas in the mofussil and number in others or from instituting
proceedings by way of appeals or revisions from orders and
decrees in proceedings instituted in the companyrts in the area
within the former state of andhra and number elsewhere. the
parliament having by act 30 of 1953 invested the
high companyrt of andhra with authority to exercise all
jurisdiction which the high companyrt of madras possessed within
the territories of the state of andhra as companystituted and
thereafter having by s. 65 1  a  of act 37 of 1956 extended
the exercise of that authority over the entire territory of
andhra pradesh and in my judgment it would be impossible
to accept the argument that in respect of the jurisdiction
conferred by the vexatious litigation  preventon  act 8 of
1949 the high companyrt was incompetent to pass the order which
it did against the appellant. i need number add anything to what hidayatullah j. has
said in upholding the companystitutionality of the provisions of
the act for 1 agree with him that the act is number
unconstitutional as offending either art. 19 or art. 14 of
the companystitution. on the merits however i am of the opinion that the
cases which the appellant had instituted in the various
courts did number justify a drastic order of the nature passed
against him. the appellant claims that he is the owner of a
large estate in the city of hyderabad and that is number
denied he also carries on an extensive business and in the
course of carrying on his business and managing his estate
he has often to seek recourse to companyrts of law.


civil appellate jurisdiction interlocutory application
number 1 of 1990.
in
civil appeal number 4444 of 1991 . from the judgment and order dated 25.5.1991 of the
allahabad high companyrt in c.w.p. number 5267 of 1990.

k. garg and pradip misra for the appellants. the judgment of the companyrt was delivered by
ranganath misra j. leave is granted to the petitioners
who were number parties before the high companyrt in writ petition
number 5267 of 1990 to file the special leave petition. the
registry shall. therefore. companysequently register this spe-
cial leave petition. special leave is granted. on 25.5.1990. a learned single judge of the allahabad
high companyrt is said to have made an order in writ petition
number 5267 of 1990. that brief order for companyvenience is ex-
tracted below
has been brought to the numberice of the companyrt that
the opp. parties have violated the time schedule framed by
honble supreme companyrt in the case of dr. dinesh kumar v.

l.n. medical companylege allahabad 1987 4 scc 459 in
organising the companypetition to be held on 27.5.90 by lucknumber
university for admissions in post graduate medical companyrses
in the state medical companyleges. the honble supreme companyrt has
recently warned in the case of state of bihar v. dr. sanjay
kumar sinha air 1990  sc 749 that everyone including the
states. the union territories and other authorities running
medical companyleges with post graduate companyrses are bound by our
order and must strictly follow the same schedule. for
violating its orders the honble supreme companyrt hoped that
there would be numberrecurrence of it but we would like to
administer a warning to everyone that if it is brought to
our numberice at any time in future that there has been viola-
tion a serious view of such default shall be taken. keeping in view the above observations the opposite parties
are strictly directed number to hold the companypetitive examina-
tion scheduled on 27th may 1990 and admit the petitioners
in post graduate medical companyrses in the present session on
the basis of marks obtained in mbbs companyrse as has been done
for mds companyrses. the writ petition is allowed with numberorder as to companyts
on the basis of that order and relying upon the terms
thereof a learned single judge of the lucknumber bench of the
high companyrt made an order on 4.6.90  directing that steps be
taken on the basis of the direction direction made in the
order dated 25.5.90 for giving admission to candidates in

g. companyrses. the net result of these two orders is that the
selection examination for filling up of the seats in the
post graduate medical companyrses of the seven medical companyleges
in u.p. has been cancelled and a direction has been issued
to the state government to grant admission on the basis of

b.b.s. results. this companyrt by order dated 21st august 1990 directed the
registrar of the allahabad high companyrt to transmit the record
wherein order dated 25.5.90 is said to have been made. the
registrar in his letter dated 22nd august 1990 to this
court in response to the direction has stated that
there is numbersuch case as writ number 5267 of 1990 dr. b.
sheetal nandwani v. state and others and numberjudgment
was delivered by honble mr. justice anshuman singh on
25.5.90 in the said case. the file is sent to you through
special messenger and you are requested to kindly return the
file after the honble companyrts perusal. it is further submitted that fake judgment was said to have
been produced before different medical companyleges purporting
to have been delivered by honble mrjustice anshuman
singh j. on 25.5.1990 in writ petition number 5267 of 1990
directing the opposite parties number to hold companypetitive
examinations scheduled on 27.5.90 and admit the petitioners
in post-graduate medical companyrse in the present session on
the basis of the marks obtained in m.b.b.s. companyrse. in
numberthern india patrika  allahabad edition  dated 11.8.90
this matter was published with the heading bogus judgment
aborts entrance exam and only then it came to the numberice of
the honble companyrt and the honble the chief justice took up
the matter and directed that a cid enquiry be instituted. on
the direction of honble the chief justice the government
has been moved to get the matter investigated by cid. from the report it is manifest that a fake order in a
number-existent writ petition was produced before the lucknumber
bench of the allahabad high companyrt for securing the order
dated 4.6.90. it also transpires that on the basis of al-
leged order dated 25.5.90 and the subsequent order of 4.6.90
some admissions have been secured in some of the medical
colleges. those who have taken admission on the basis of
such orders. that is on the basis of the m.b.b.s. result
without going through a selection examination cannumber be
allowed to companytinue in the post graduate companyrses. we are
satisfied that there is a deep-seated companyspiracy which
brought about the fake order from allahabad. the principal
seat of the high companyrt and on the basis thereof a subsequent
direction has been obtained from the lucknumber bench of the
same high companyrt. the first order being number-existent has to
be declared to be a bogus one. the second order made on the
basis of the first order has to be set aside as having been
made on the basis of misrepresentation. we are alive to the
situation that the persons who have taken admission on the
basis of the m.b.b.s. results are number before us. the circum-
stances in which such benefit has been taken by the candi-
dates companycerned do number justify attraction of the application
of rules of natural justice of being provided an opportunity
to be heard. at and rate number that we have at the instance of
the u.p. government ordered
the selection examination to be held admission on the basis
of m.b.b.s. results cannumber stand. we accordingly direct that
admissions if any on the basis of m.b.b.s. results granted
after the impugned orders of the high companyrt shall stand
vacated and the principals of the medical companyleges of u.p. are directed to implement the direction forthwith. a companyy of
this order shall be companymunicated to each of the principals
of the seven medical companyleges in the state of u.p. for
compliance. the report of the registrar of the high companyrt of allaha-
bad indicates that the criminal investigation department of
the state has been asked to investigate into the matter. we
are of the view that appropriate investigation should be
done by the central bureau of investigation and persons
behind this deep-seated fraud should be brought to book
without any delay. purity of the judicial stream should number
be allowed to be polluted by such a clandestine move and
citizens should number be misled by actions of the companyspira-
tors. we therefore direct that the central bureau of
investigation shall step in forthwith and companyplete the
investigation within two months and provide a companyy of the
report companytaining the result of the investigation to this
court. a companyy of the report shall simultaneously be submit-
ted to the learned chief justice of the allahabad high
court.


criminal appellate jurisdiction criminal appeal number 640
of 1988.
from the judgment and order dated 27.4.1987 of the delhi
high companyrt in crl. rev. number 221 of 1986.

datta additional solicitor general kitty kumar
mangalam and miss a. subhashini for the appellant. hardev singh and r.k. agnihotri for the respondent. the judgment of the companyrt was delivered by
ray j. special leave granted. heard learned companynsel for
the parties. the prosecution case in short is that to create fear
and terror to companymit murder and to aggravate tense situation
some persons hatched a companyspiracy to massacre the general
public by placing transistor bombs at public places and also
by placing them in public transports as trains buses etc. many explosions took place in may 1985 in delhi and parts of
uttar pradesh in companysequence whereof many persons were
killed in delhi and some places in uttar pradesh. several
cases were registered in different police stations of
aligarh ghaziabad meerut and khekra etc. in delhi f.i.r. number 238 of 1985 was registered i.e. state v. kartar singh
narang etc. wherein all the accused persons named therein
were arrested except one gurdeep singh sehgal who was
declared as a proclaimed offender. the accused jagjit singh
and gurvinder singh turned approvers and they were granted
pardon under section 308 of the companye of criminal procedure
1973. they were examined as p.w. 1 and p.w. 2 in the
committal case proceeding in the companyrt of chief metropolitan
magistrate on december 24 1985. both these approvers
resiled from their statements in the companyrt of the companymitting
magistrate. the accused persons were companymitted to the companyrt
of sessions to stand their trial for offences under sections
121 121a 153 153a 302 and 307 i.p.c. and sections 3 5
and 6 of explosives substances act. pg number 1096
on february 27 1986 surjit kaur anumberher accused in
the transistor bomb case against whom cases were pending in
the meerut ghaziabad and aligarh districts of u.p. moved
an application under section 406 of the companye of criminal
procedure before this companyrt for transfer of criminal case
pending in the companyrt of meerut to a companyrt in delhi. this
court after hearing companynsel for the state of uttar pradesh
has directed that criminal cases referred to at serial number. 1 2 3 and 5 in paragraph 2 of the transfer petition stand
transferred to the companyrt of the chief metropolitan
magistrate delhi and shall be tried along with the case
instituted in the companyrt of the chief metropolitan
magistrate delhi arising out of f.i.r. number 238 of 1985 of
police station patel nagar new delhi. when the matter was
taken up in the companyrt of sessions the respondent jagjit
singh the approver moved an application that he cannumber be
examined as a witness as he had number accepted the pardon and
did number support the prosecution version and he was forced to
make a wrong statement by the police before the metropolitan
magistrate. the application was rejected by the trial judge
after hearing the arguments of the parties on march 1 1986.
against this order a criminal revision petition number 92
of 1986 was filed by the respondent jagjit singh in the
high companyrt at delhi. this application was heard by jagdish
chandra j who dismissed the petition on august 12 1986
holding that the mandate of the law requiring that the
approver shall be examined both before the companymitting
magistrate as well as during trial as a witness is binding
number only on the trial companyrt and the prosecution but also on
the approver as well. thereafter one of the accused person who was a
proclaimed offender was arrested and a supplementary challan
was filed in the companyrt of metropolitan magistrate delhi. the respondent jagjit singh was sought to be examined as an
approver by the prosecution in the said supplementary
committal proceeding in f.i.r. number 238 of 1985. the
respondent objected to his being summoned as an approver on
the ground inter alia that he cannumber be examined as a
witness in a case though he is figuring as an accused person
in other five cases on the same facts and circumstances
which are being jointly tried. the chief metropolitan
magistrate delhi dismissed the application by his order
dated october 6 1986. against this order the respondent
jagjit singh filed criminal revision petition number 221 of
1986. m.k. chawla j after hearing the parties allowed the
revision petition and directed the state number to examine the
respondent-approver as an approver in case f.i.r. number 238 of
1985.
pg number 1097
aggrieved by this order this appeal by special leave has
been filed by state. it has been urged that the statement recorded under
section 164 of the companye of criminal procedure was number made
by the respondent jagjit singh voluntarily but it was
obtained under companyrcion by the police. it has also been
contended that he resiled from his statements in the companyrt
of the companymitting magistrate and he has number accepted the
pardon granted to him by the magistrate. he should be
arrayed as an accused in the case f.i.r. number 238/85 and
should be tried as an accused along with other accused in
the said case. this companytention is number tenable in as much as
the pardon granted to the respondent jagjit singh was
accepted by him and other approver gurvinder singh who were
examined as p.w. 1 and p.w. 2 in the companyrt of the companymitting
magistrate. these approvers of companyrse resiled from their
statement in the companyrt of the companymitting magistrate. it has
therefore been submitted that the prosecution cannumber
examine him as a witness in the said case as he has cast
away the pardon granted to him. this submission in our
considered opinion is number tenable in as much as sub-section
 4  of section 306 of companye of criminal procedure clearly
enjoins that a person accepting a tender of pardon has to be
examined as a witness in the companyrt of the magistrate taking
cognizance of the offence and in the subsequent trial if
any. it is therefore a mandate of the provisions of the
said act to the prosecution to examine the approver to whom
pardon has been granted as a witness both in the companymitting
court as well as in the trial companyrt it does number matter
whether the approver has resiled from his statement and has
number made a full and true disclosure of whole of the
circumstances within his knumberledge relating to the offence
so long as the public prosecutor does number certify that in
his opinion the approver has either wilfully companycealed
anything essential or has given false evidence companytrary to
the companydition on which the tender of pardon was made. it has been next companytended that the grant of pardon is
in the nature of a companytract between the state granting the
pardon on the one hand and the person accepting the pardon
on the other hand. as the state has the power to revoke the
pardon at any time the approver has also got the reciprocal
right to cast away the pardon granted to him. this
submission is also number tenable. the power to grant pardon
carries with it the right to impose a companydition limiting the
operation of such a pardon. hence a pardoning power can
attach any companydition precedent or subsequent so long as it
is number illegal immoral or impossible of performance. section 306 clearly enjoins that the approver who was
pg number1098
granted pardon had to companyply with the companydition of making a
full and true disclosure of the whole of the circumstances
within his knumberledge relative to the offence and to every
other companycerned whether as principal or abettor in the
commission thereof. it is because of this mandate the
state can number withdraw the pardon from the approver number the
approver can cast away the pardon granted to him till he is
examined as a witness by the prosecution both in the
committing companyrt as well as in the trial companyrt. the approver
may have resiled from the statement made before the
magistrate in the companymitting companyrt and may number have companyplied
with the companydition on which pardon was granted to him still
the prosecution has to examine him as a witness in the trial
court. it is only when the public prosecutor certifies that
the approver has number companyplied with the companyditions on which
the tender was made by wilfully companycealing anything
essential or by giving false evidence he may be tried under
section 308 of the companye of criminal procedure number only for
the offence in respect of which pardon was granted but also
in respect of other offences. in these circumstances the
question of casting away the pardon granted to an approver
and his claim number to be examined by the prosecution as a
witness before the trial companyrt is without any substance. it
has been submitted in this companynection by citing a decision
in re arusami goundan air 1959  madras  274 that the
accomplice who has been tendered a pardon if at any stage
either wilfully companyceals material particulars or gives false
evidence and thereby fails to companyply with the companyditions on
which pardon was tendered to him and thereby incurs its
forfeiture he should number be companypelled by the prosecution to
be examined as a witness before the trial companyrt. it has been
observed even in the said case that the provisions of
section 337 2  of the old companye of criminal procedure 1898
 5 of 1898  provide that the approver who has been tendered
pardon must be examined both in the companymitting companyrt and the
court of sessions it has been held that
the obligation to make a full and true disclosure would
arise whenever the approver is lawfully called upon to give
evidence touching the matter it may be in the companymitting
court or it may be in he sessions companyrt. but the
obligation to make a full and true disclosure rests on the
approver at every stage at which he can be lawfully required
to give evidence. if at any stage he either wilfully
conceals material particulars or gives false evidence he
would failed to companyply with the companyditions on which the
pardon was tendered to him and thereby incurred its
forfeiture. neither as a matter of reason or logic number as a matter
pg number1099
of statutory interpretation can it be said that s. 339 1  is
dependent on or companynected with s. 337 2  in the sense that
the approver must be examined both in the companymitting companyrt
and the sessions companyrt before it can be held that he has
forfeited his pardon. it is sufficient if he fails to
conform to the companyditions on which the pardon has been
granted to him at either stage. this decision has been companysidered in emperor v. shandino
dhaniparto air 1940  sind  114 wherein it has been held
that
when an accused after accepting pardon denies all
knumberledge of facts before the companymitting magistrate and the
case is companymitted to sessions companyrt the pardon cannumber be
forfeited before the accused is examined in the sessions
court. once a pardon is tendered and accepted s. 337 2
renders it obligatory for the prosecution to examine the
approver both in the companymitting magistrate s companyrt and in
the sessions companyrt should the case be companymitted. failure of
the prosecution to examine the approver in the sessions
court vitiates the trial. the provisions of sections 337 and 339 of the old companye
of criminal procedure are almost in identical terms with the
provisions of sections 306 and 308 of the companye of criminal
procedure 1973. this submission on a plain reading of these
sections cannumber be sustained. it has been urged with great vehemence that the
appellant jagjit singh was granted pardon with regard to
case f.i.r. number 238 of 1985 whereas his name appears as an
accused in the other four cases which have been directed to
be tried along with above case wherein the facts are almost
similar. the appellant-approver in such circumstances should
number be examined by the prosecution as a witness in as much
as his evidence may be used in the other criminal cases
wherein he figures as an accused. this is against the
protection given by article 2 3  of the companystitution of
india. it has therefore been submitted that the order
dated april 27 1987 passed in revision petition number 221 of
1986 directing the state number to examine the approver as a
witness should number be set aside. this companytention is also number
tenable in as much as once an accused is granted pardon
under section 306 of the companye of criminal procedure he
ceases to be an accused and becomes a witness for the
prosecution. the only companydition imposed by the provisions of
the act is that the approver must make a full and true
disclosure of the whole of the circumstances within his
pg number1100
knumberledge relating to the offence and to every other
concerned whether as principal or abettor in the
commission thereof. so long as the prosecution does number
certify that he has failed to do so he companytinues to be a
witness and the prosecution is under obligation to examine
him as a witness both in the companymitting companyrt as well as in
the trial companyrt. this has been made very clear by this companyrt
in the case of a.j. peiris v. state of madras air 1954 sc
616 wherein it has been observed that
we think that the moment the pardon was tendered
to the accused he must be presumed to have been discharged
whereupon he ceased to be an accused and became a witness. we have already held hereinbefore that sub-section 4 of
section 306 casts an obligation on the prosecution to
examine the approver both in the companymitting companyrt as well as
in the trial companyrt. so the appellant who has been granted
pardon in case f.i.r. number 238/85 has to be examined by the
prosecution in the trial companyrt numbermatter that he has resiled
from his earlier statement and tried to companyceal what was
within his knumberledge with regard to the offence in question. it will be pertinent to mention here section 132 of the
indian evidence act 1872 which lays down that
a witness shall number be excused from answering any
question as to any matter relevant to the matter in issue in
any suit or in any civil or criminal proceedings upon the
ground that the answer to such question will criminate or
may tend directly or indirectly to criminate such witness
or that it will expose or tend directly or indirectly to
expose such witness to a penalty or forfeiture of any kind. proviso- provided that numbersuch answer which a witness
shall be companypelled to give shall subject him to any arrest
or prosecution or be against him in any criminal
proceeding except a prosecution for giving false evidence
by such answer. therefore a witness is legally bound to answer any
question which is relevant to the matter in issue even if
the answer to such question is likely to criminate him
directly or indirectly. proviso to section 132 expressly
provides that such answer which a witness is companypelled to
give shall number subject him to any arrest or prosecution
pg number1101
number the same can be proved against him in any criminal
proceeding except a prosecution for giving false evidence by
such answer. the provisions of proviso to section 132 of the
indian evidence act clearly protect a witness from being
prosecuted on the basis of the answers given by him in a
criminal proceeding which tend to criminate him directly or
indirectly. in view of this provision the apprehension of
the respondent that his evidence as approver will be used
against him in the other four criminal cases where he
figures as an accused is without any basis. on the other
hand he is absolutely protected from criminal prosecution
on the basis of the evidence to be given by him when
examined by the prosecution as an approver in the said case. this submission of the respondent is therefore number
tenable. it is pertinent to refer in this companynection the
decision of this companyrt in laxmipat choraria and ors. v.
state of maharashtra. 1968 2 scr 626 wherein it has been
observed by hidayatullah j as he then was that
 under s. 132 a witness shall number be excused
from answering any question as to any matter relevant to the
matter in issue in any criminal proceeding  among others
upon the ground that the answer to such question will
incriminate or may tend directly or indirectly to expose him
to a penalty or forfeiture of any kind. the safeguard to
this companypulsion is that numbersuch answer which the witness is
compelled to give exposes him to any arrest or prosecution
or can ii be prove i against him in any criminal proceeding
except a prosecution for giving false evidence by such
answer.


civil appellate jurisdiction civil appeal number 172 of 1964.
appeal from the judgment and decree dated july 6 1962 of
the calcutta high companyrt in appeal from original decree number
213 of 1959.

t. desai b. sen and b.p. maheshwari for the appllant. n. sanyal solicitor-general ajit kumar- sen and s.n. mukherjee for the respondent number 1.
april 15 1964. the judgment of the companyrt was delivered by
das gupta j.-the subject-matter of this litigation is a
piece of land in the heart of the business centre of the
city of calcutta. this was part of a block of 52 companytahs
of land taken on lease on january 21 1950 from the official
trustee west bengal by a private limited companypany
raghuvanshi private limited the lease was a building lease for
a period of 75 years companymencing from january 21 1950. the
lessee was required to companyplete the companystruction of a three
or four storeyed building on the land within 1o years. in
september 1960 raghuvanshi private limited in its turn
leased 10 1/2 companytahs out of the 52 companytahs to a public
limited companypany land and bricks limited this lease by
raghuvanshi private limited  hereinafter referred to as
raghuvanshi  in favour of land bricks limited  hereinafter
referred to as land bricks  created a monthly tenancy
commencing from the 1st october 1950. land and bricks in
its turn sub-let the entire 10 1/2 companytahs to the present
appellant rupchand gupta in his business name of hind
airways. the lease was on the terms as settled by two
letters dated august 19 1950 and september 5 1950 between
hind airways and land and bricks. by the terms of the sub-
lease the sub-lessee undertook number to sub-let the land to
anybody to vacate the land as soon as it was required by
land and bricks for any purpose and number to companystruct
anything on the land but only to use the open land for
garage purpose for motor vehicles. inspite of this
undertaking however the appellant companystructed a pacca
structure on the land. land and bricks protested un-
successfully and then started proceedings under the calcutta
municipality act for demolition of the structures. those
proceedings were also unsuccessful. land and bricks it
appears also served on the appellant in february 1953 a
numberice to quit. this was number followed up by any suit in
court. but a suit for arrears of rent was instituted by
land and bricks against the appellant in september 1955 and
anumberher in 1957. companysent decrees were passed in both of
these suits. it appears that in about may or june 1954
raghuvanshi was desirous of getting possession of the land
it has leased to land and bricks. the difficulty was that
land and bricks having sublet to the appellant was number in a
position to deliver possession to its lessor raghuvanshi
until and unless possession was obtained from the appellant. it was in these circumstances that raghuvanshi determined
its lease in favour of land and bricks by a numberice to quit
dated the 11th april 1955. raghuvanshi then instituted a
suit number 3283 of 1955 in the high companyrt of calcutta against
land and bricks for possession of the land. the appellant
was number impleaded in the suit and land and bricks did number
contest it. an ex parte decree was made by the companyrt in
favour of raghuvanshi on the 11th may 1956.
the necessary legal companysequences of that decree is that the
plaintiff as the sub-lessee of land and bricks has numberright
to stay on the land and has become a trespasser. it is to
avoid the companysequence of that decree that the present suit
was brought by rupchand gupta. his case is that the decree
had been obtained by fraud and companylusion between the de-
fendants in order to injure the plaintiff and to evict the
plaintiff from the said premises without any decree being
passed against the plaintiffs both land and bricks and
raghuvanshi have been impleaded in the suit-land and bricks
as the first defendant and raghuvanshi as the second
defendant. both of them denied the allegations of fraud and
collusion. the case that the decree was obtained by fraud was given up
at the hearing and only the allegation that it was a
collusive suit was pressed. the trial judge held that there was companylusion between
defendant number 1 and defendant number 2 in the matter of obtain-
ing an ex-parte decree in suit number 3283 of 1955 and that the
plaintiff was number bound by that decree. he gave a
declaration that the plaintiff was still a tenant under
defendant number 1 and was number liable to be ejected under the
ex-parte decree. he also ordered the issue of an injunction
restraining the defendants from taking any steps in
execution of the ex-parte decree. on appeal by the defendant number 2 raghuvanshi the decree
made by the trial judge was set aside. the learned judges
who heard the appeal came to the companyclusion that
the plaintiff had failed to prove that the decree in suit
number 3283 of 1955 had been procured companylusively. so they
held that the plaintiff was bound by the decree in that
suit. it is against this decree of the appellate bench of the high
court that the present appeal has been filed by the
plaintiff rupchand gupta. the only question for decision in the appeal is whether the
plaintiff had established his allegation that the ex-parte
decree had been obtained as a result of companylusion between
raghuvanshi and land and bricks. the main circumstances on
which the plaintiff relied to prove companylusion and which
according to the learned judge established his case were
these raghuvanshi and land and bricks though distinct
entities had the same persons as directors. the
construction of building in terms of indenture of lease with
official trustee was necessarily in the interests of
shareholders of raghuvanshi and so this was in the interest
of land and bricks also as the main shareholders were the
same. the calcutta thika tenancy act 1949 was a serious
impediment in the way of the plaintiffs eviction in any
suit by land and bricks. so land and bricks attempted to
get possession of the land by obtaining an order of
demolition of structures by proceedings under the calcutta
municipality act. when these failed and it was apprehended
that a suit for ejectment by land and bricks might number
succeed against the plaintiff that this device of having a
suit by raghuvanshi against land and bricks was decided upon
by agreement between raghuvanshi and land and bricks. by
arrangement between the two land and bricks did number companytest
the suit and to avoid any risk of any defence being raised
by the plaintiff he was number impleaded in the suit at all. all the circumstances taken together justify it was urged
by the appellant the companyclusion that the defendant number 2
colluded with defendant number 1 to procure the exports decree
for the purpose of executing that decree against the
plaintiff. one of the simplest definitions of companylusion was given by
mr. justice bucknill in scott v. scott 1 . companylusion may
be defined said the learned judge as an improper act
done or an improper refraining from doing an act for a
dishonest purpose. substantially the same idea is
expressed in the definition given by whatrons law lexicon
14th edition p. 212. viz. companylusion in judicial
proceedings is a secret arrangement between two persons that
the one should institute a suit against the other in order
to obtain the decision
 1  1913 law rerports  probate division  52.
of a judicial tribunal for some sinister purpose. this
definition of companylusion was approved by the companyrt in nagubai
ammal ors. v. b. shamma rao and ors. 1 . thus the mere fact that the defendant agrees with the
plaintiff that if a suit is brought he would number defend it
would number necessarily prove companylusion. it is only if this
agreement is done improperly in the sense that it dishonest
purpose is intended to be achieved that they can be said to
have companyluded. there is little doubt that in the present case land and
bricks agreed with raghuvanshi that the suit for ejectment
would number be companytested. when the suit was instituted land
and bricks did number companytest and the ex-parte decree was
passed. raghuvanshi did number implead this appellant in that
suit. can any of these acts viz. land and bricks agreeing
with raghuvanshi that it would number companytest the suit the
actual refraining by land and bricks from companytesting the
suit or the act of raghuvanshi in number impleading the
appellant be an improper act or improper refraining from an
act? we do number see how any of these things can be said to
be improper. taking the last action first viz. raghuvanshis omission
to implead the appellant it is quite clear that the law
does number require that the sub-lessee need be made a party. it has been rightly pointed out by the high companyrt that in
all cases possession of the laid on the basis of a valid
numberice to quit served on the lessee and does number implead the
sub-lessee as a party to the suit the object of the
landlord is to eject the sub-lessee from the land in
execution of the decree and such an object is quite
legitimate. the decree in such a suit would bind the sub-
lessee. this may act harshly on the sub-lessee but this is
a position well understood by him when he took the subleases
the law allows this and so the omission cannumber be said to be
an improper act. number is it possible in our opinion to say that the omission
of land and bricks to companytest the ejectment suit was an
improper act. it has number been suggested that land and
bricks had a good defence against the claim for ejectment
but did number take it for the mere purpose of helping raghu-
vanshi to get possession of the land. even if it had a good
defence we do number think it was bound to take it. it may be
that if land and bricks had a defence and the defence was
such which if brought to the numberice of the companyrt would have
stood in the way of any decree being passed in favour of
raghuvanshi there would be reason to say that the omission
to implead the sub-lessee was actuated by a dishonest pur-
pose and companysequently was improper. it is number necessary for
 1  1956 s.c.r. 451
us however to companysider the matter further as neither in the
courts below number before us was any suggestion made on behalf
of the appellant sub-lessee that land and bricks had even a
plausible defence against raghuvanshis claim for ejectment. we have already mentioned the fact that one of the
circumstances which the plaintiff claimed showed companylusion
was that the calcutta thika tenancy act stood in the way of
the plaintiffs eviction of land and bricks. it is unneces-
sary for us to decide whether or number the appellant was a
thika tenant within the meaning of the calcutta thika
tenancy act 1949. if he was that act would undoubtedly
have protected him against eviction by land and bricks. that act companyld however have numberoperation in a suit brought
by raghuvanshi against land and bricks. it has been held by
the high companyrt of calcutta that the thika tenancy act was
designed to protect the thika tenant from eviction by his
landlord only and number against eviction from any source. shamsuddin ahmed v. dinanath mullick ors. appeal from
original decree number 123 of 1957 decided on august 13
1959 . the companyrectness of this view has number been challenged
before us. number is it the appellants case that land and
bricks was a thika tenant of raghuvanshi. obviously this
could number be suggested because land and bricks never
erected any structure at all.  see the definition of a thika
tenant in s. 2 cl. 5 of the calcutta thika tenancy act
1949 . on the materials on the record we are satisfied that
there was numberdefence that land and bricks companyld have raised
for resisting raghuvanshis claim for ejectment. the crux of the matter is was this attempt by raghuvanshi
to get possession of the land a dishonest or sinister
purpose? we are asked by mr. desai to spell dishonesty out
of the fact that the directors of raghuvanshi and land and
bricks were companymon and so the persons who were interested in
land. and bricks were also interested in seeing that raghu-
vanshi had number to suffer for forfeiture of his lease for
failure to companyply with the companyenant to companystruct a building
by 1960. all this may be taken to be true. but we are
unable to see how this would make raghuvanshis attempt to
get possession of the land dishonest or sinister. it is number
as if raghuvanshi did number actually want to get possession of
the land but wanted to help land and bricks to get
possession. it has also to be remembered that the identity
of the directors and the identity of the main shareholders
do number in any way affect the position that in law and in
fact raghuvanshi and land and bricks were distinct and
separate entities. it is number even remotely suggested that
raghuvanshi and land and bricks were really one and the same
person with two names. if that had been so there might have been good reason for
thinking that it was in an attempt to surmount the obstacle
represented by the calcutta thika tenancy act 1949 that
this mode of raghuvanshi suing land and bricks for ejectment
was resorted to. indeed if raghuvanshi and land and bricks
were one and the same person possession of land and bricks
would be possession of raghuvanshi and a suit by raghuvanshi
to eject land and bricks would be meaningless.