civil appellate jurisdiction civil appeal number. 4180 and
4181 of 1989.
from the judgment and order dated 20/21/22-7-1988 and
18/298-1988 of the bombay high companyrt in writ petition number. 3313 and 3417 of 1987.

n. keshwani and r.n. keshwani for the appellants. b. rohatgi mrs. gool barucha m.j. paul kailash
vasdev r. karanjawala mrs.m karanjawala  np  and h.s. anand for the respondents. the judgment of the companyrt was delivered by
ojha j. special leave granted. these civil appeals have been preferred against a
common judgment of the bombay high companyrt dismissing writ
petition number 33 13/87 filed by arjun khiamal makhijani who
is the appellant in one of these appeals and writ petition
number 3417/87 by prithdayal chetandas and others who are the
appellants in the other civil appeal. jamnadas c. tuliani
who is respondent number 1 in both these appeals is the owner
and tile landlord of the suit premises companyprising two bed
rooms flat together with a garage on the ground floor and a
store room on bhulabhai desai road in the city of bombay. a
suit was instituted by him for ejectment from the said
premises against five defendants on the ground that they
were tenants of the said premises and were in arrears of
rent for a period of more than six months which they had number
paid in spite of a numberice of demand having been served on
them as companytemplated by sub-section  2  of section 12 of the
bombay rents hotel and lodging house rates companytrol act 1947
 hereinafter referred to as the act  and were companysequently
liable for eviction under sub-section  3  a  of the act as
it then stood. two other grounds were pleaded by the re-
spondent number 1 namely that the tenants had changed the user
of the suit premises and that they had companymitted breach of
terms and companyditions of the tenancy. subsequently arjun
khiamal makhijani aforesaid was impleaded as defendant number 6
in the suit on the assertion that the tenants had illegally
sublet a portion of the suit premises namely the garage to
him and were companysequently liable to be evicted on this
ground also. the suit was companytested both by the tenants as
well as by defendant number 6. the trial companyrt recorded find-
ings in favour of the landlord in so far as the pleas of
default in payment of rent and illegal sub-tenancy are
concerned. the other two pleas namely that the tenants had
changed the user of the suit premises and had also companymitted
breach of terms and companyditions of the tenancy were decided
against the landlord. on the basis of the findings on the
pleas of default in payment of rent and illegal subletting
the suit was decreed. two appeals were preferred against the
judgment of the trial companyrt one by the tenants and the
other by defendant number 6. both these appeals were dismissed
and the tenants and defendant number 6 aggrieved by the said
decree filed two writ petitions in the high companyrt. against the companymon judgment of the high companyrt dismissing
these writ petitions the present civil appeals have been
preferred. before dealing with the respective submissions made by
learned companynsel for the parties it may be pointed out that
even though the finding that the tenants were defaulters in
payment of rent has been upheld by the high companyrt the other
finding namely that the tenants had illegally sublet the
garage of the suit premises to defendant number 6 has been set
aside and it has been held accepting the case of the tenants
that the defendant number 6 was a trespasser. the tenants had
also claimed before the high companyrt the benefit of sub-sec-
tion  3  of section 12 of the act as substituted by amend-
ment act 18 of 1987 which came into force on 1st october
1987. this plea too was repelled. the defendant number 6 before
the high companyrt on the other hand took up the plea that in
view of the finding in the suit that he was an illegal sub-
tenant of the garage since 1967 he was entitled to the
benefit of sub-section  2  of section 15 of the act as
amended by the aforesaid amendment act 18 of 1987. the high
court repelled this plea on the finding that he was number a
sub-tenant but a trespasser and also on the ground that he
was number in possession on 1st february 1973 the relevant
date mentioned in the said sub-section. the high companyrt also
held that benefit of subsection  2  of section 15 as amend-
ed companyld number be given to defendant number 6 in a writ peti-
tion the same being number a proceeding companytemplated by sec-
tion 25 of the amendment act. in order to appreciate the
submissions made by learned companynsel for the parties it will
be useful to extract sub-section  3  as it stood at the time
when the suit was instituted and sub-section  3  as it
stands after its amendment. subsection  3  as it stood when
the suit was instituted reads as hereunder
3 a  where the rent is payable by the month
and there is numberdispute regarding the amount
of standard rent or permitted increases if
such rent or increases are in arrears for a
period of six months or more and the tenant
neglects to make payment thereof until the
expiration of the period of one month after
numberice referred to in sub-section  2  the
court. shall pass a decree for eviction in any
such suit for recovery of possession. in any other case numberdecree for
eviction shall be passed in any such suit if
on the first day of hearing of the suit or on
or before such other date as the companyrt max
fix the tenant pays or tenders in companyrt the
standard rent and permitted increases then due
and thereafter companytinues to
pay or tender in companyrt regularly such rent and
permitted increases till the suit is finally
decided and also pays companyts of the suit as
directed by the companyrt. after its amendment as aforesaid it reads

numberdecree for eviction shall be passed by
the companyrt in any suit for recovery of posses-
sion on the ground of arrears of standard rent
and permitted increases if on the first day
of hearing of the suit or on or before such
other date as the companyrt may fix the tenant
pays or tenders in companyrt the standard rent and
permitted increases then due and together with
simple interest on the amount of arrears of
such standard rent and permitted increases at
the rate of nine per cent per annum and
thereafter companytinues to pay or tenders in
court regularly such standard rent and permit-
ted increases till the suit is finally decided
and also pays companyts of the suit as directed by
the companyrt
provided that the relief provided under this
sub-section shall number be available to a tenant
to whom relief against forfeiture was given in
any two suits previously instituted by the
landlord against such tenant. sub-section  2  of section 15 on the other
hand after its amendment as aforesaid runs
thus

the prohibition against the sub-letting
of the whole of any part of the premises which
have been let to any tenant and against the
assignment or transfer in any other manner of
the interest of the tenant therein companytained
in subsection  1  shall subject to the
provisions of this subsection be deemed to
have had to effect before the 1st day of
february 1973 in any area in which this act
was in operation before such companymencement and
accordingly numberwithstanding anything company-
tained in any companytract or in the judgment
decree or order of a companyrt any such sublease
assignment or transfer of any such purported
sublease assignment or transfer in favour of
any person who has entered into possession
despite the prohibition in subsection  1  as
purported sub-lessee assignee or transferee
and has companytinued in a possession on the date
aforesaid shall be deemed to be valid and
effectual for all purposes
and any tenant who has sub-let any premises or
part thereof assigned or transferred any
interest therein shall number be liable to
eviction under clause  e  of sub-section  1
of section 13.
the provisions aforesaid of this sub-section
shall number affect in any manner the operation
of sub-section  1  after the date aforesaid. since companysiderable emphasis has been
placed on section 25 of the amendment act 18
of 1987 the same may also be usefully quoted. it reads

numberhing companytained in the principal act as
amended by this act shall be deemed to autho-
rise the re-opening of any suit or proceeding
for the eviction of any person from any prem-
ises to which the principal act applies as if
such proceeding had been finally disposed of
before the companymencement of this act. explanation--for the purposes of this
section suit or proceeding as the case may
be shall number be deemed to have been
finally disposed of if in relation to that
suit or proceeding any appeal or proceeding
is pending or if the period of limitation
for preferring an appeal or proceeding as the
case may be had number expired before the company-
mencement of this act. it has been urged by the learned companynsel for the tenants
that 14th numberember 1967 was the first day of hearing of the
suit and since in pursuance of an order passed by the trial
court on that day the tenants had deposited the entire
arrears of rent on 9th january 1968 within the time granted
by the companyrt and companytinued to deposit the monthly rent
thereafter they companyld number be treated as defaulters in pay-
ment of rent even if the amendment made in sub-section  3
of section 12 by the amendment act 18 of 1987 was ignumbered. we however find it difficult to agree with this submis-
sion. it is number denied that the arrears of rent which were
for a period of more than six months and in respect of which
a numberice of demand had been served on the tenants under
sub-section  2  of section 12 of the act had number been paid
by the tenants to the landlord within one month of the
service of the numberice. it is also number denied that during the
said period of one month numberdispute regarding the amount of
standard rent or permitted
increases was raised by the tenants. on a plain reading of
clause  a  of sub-section  3  of section 12 of the act as it
stood at the relevant time the said clause was clearly
attracted and the companysequence provided therein had to follow
namely a decree for eviction against the tenants had to be
passed. clause  b  of sub-section  3  on the face of it was
number attracted inasmuch. as the said clause applied only to a
case number companyered by clause  a . this is amply borne out by
the use of the opening words in any other case of clause
 b . in harbanslal jagmohandas and anr. v. prabhudas shiv-
lal 1977 1 s.c.c. page 576 these clauses  a  and  b  of
sub-section  3  of section 12 of the act came up for companysid-
eration and it was held that the tenant can claim protection
from the operation of the section 12 3  a  of the act only
if he makes an application raising a dispute as to standard
rent within one month of the service of the numberice terminat-
ing the tenancy. in the instant case this had number admittedly
been done by the tenants. the companysequence of number-payment of
arrears of rent claimed in the numberice of demand was there-
fore inevitable. in jaywant s. kulkarni and others v.
minumberhar dosabhai shroff and others 1988 4 s.c.c.p.108
clauses  a  and  b  of sub-section 3 of section 12 again
came up for companysideration. it was held
sub-section  3  a  of section 12 categorical-
ly provided that where the rent was payable by
the month and there was numberdispute regarding
the amount of standard rent or permitted
increases if such rent or increases were in
arrears for a period of six months or more and
the tenant neglected to make payment thereof
until the expiration of the period of one
month after numberice referred to in subsection
 2  the companyrt shall pass a decree for evic-
tion in any such suit for recovery of posses-
sion. in the instant case as has been found
by the companyrt the rent is payable month by
month. there is numberdispute regarding the
amount of standard rent or permitted in-
creasessuch rent or increases are in arrears
for a period of six months or more. the tenant
had neglected to make payment until the expi-
ration of the period of one month after numberice
referred to in subsection  2 . the companyrt was
bound to pass a decree for eviction in any
such suit for recovery of possession. faced with this difficulty learned companynsel for the
tenants urged that since the act was a beneficial legisla-
tion the tenants having deposited the arrears of rent within
the time granted by the trial companyrt and having companytinued to
deposit future rent thereafter the decree for
their eviction deserves to be reversed by this companyrt. in so
far as this submission is companycerned it may be pointed out
that in ganpat ram sharma and others v. gayatri devi 1987
3 scc page 576 while dealing with almost a similar rent
control legislation it was held
but quite apart from the suit being barred by
lapse of time this is a beneficial legisla-
tion beneficial to both the landlord and the
tenant. it protects the tenant against unrea-
sonable eviction and exorbitant rent. it also
ensures certain limited rights to the landlord
to recover possession on stated companytingencies. in ganpat ladha v. sashikant vishnu shinde 1978 2 scc
page 73 while dealing with the scope of clauses  a  and  b
of sub-section  3  of section 12 of the act it was held
it is clear to us that the act interferes
with the landlords right to property and
freedom of companytract only for the limited
purpose of protecting tenants from misuse of
the landlords power to evict them in these
days of scarcity of accommodation by assert-
ing his superior rights in property or trying
to exploit his position by extracting too high
rents from helpless tenants. the object was
number to deprive the landlord altogether of his
rights in property which have also to be
respected. anumberher object was to make possible
eviction of tenants who fail to carry out
their obligation to pay rent to the landlord
despite opportunities given by law in that
behalf. thus section 12 3  a  of the act makes
it obligatory for the companyrt to pass a decree
when its companyditions are satisfied as was
pointed out by one of us  bhagwati j.  in
ratilal balabhai nazar v. ranchhodbhai shan-
kerbhai patel air 1968 guj 172. if there is
statutory default or neglect on the part of
the tenant whatever may be its cause the
landlord acquires a right under section
12 3  a  to get a decree for eviction. but
where the companyditions of section 12 3  a  are
number satisfied there is a further opportunity
given to the tenant to protect himself against
eviction. he can companyply with the companyditions
set out in section 12 3  b  and defeat the
landlords claim for eviction. if however he
does number fulfil those companyditions he cannumber
claim the protection of section 12 3  b  and
in that event there being numberother protection
available to him a decree for eviction would
have to go against him. it is difficult to
see how by any judicial valour discretion
exercisable in favour of the tenant can be
found in section 12 3  b  even where the
conditions laid down by it are satisfied to be
strictly companyfined within the limits prescribed
for their operation.  emphasis
supplied . when the act companytains provisions some of which fall
under the category of beneficial legislation with regard to
the tenant and the others with regard to the landlord the
assertion that even with regard to such provisions of the
act which fall under the purview of beneficial legislation
for the landlord an effort should be made to interpret them
also in favour of the tenant is a negation of the very
principle of interpretation of a beneficial legislation on
which reliance is placed on behalf of the tenants. the
argument indeed is self-defeating and only justifies the
cynical proverb--head i win tail you lose. it is difficult
to companyntenance the sentimental approach made by learned
counsel for the tenants for the simple reason that as
pointed out in latham v.r. johnson and nephew limited 1913 1
kb 398  408  sentiment is a dangerous will-of-the-wisp to
take as a guide in the search for legal principles. reliance was placed by learned companynsel for the tenants
on vatan mal v. kailash nath 1989 3 scc page 79. in that
case provisions of amending ordinance number 26 of 1975 whereby
section 13 a  was inserted in the rajasthan premises  company-
trol of rent and eviction  act 1950 came up for companysidera-
tion. after pointing out that the object of inserting sec-
tion 13 a  was to companyfer benefit on all tenants against whom
suits for eviction on ground of default in payment of rent
were pending and to achieve that object the said section
had been given overriding effect it was held that the
interpretation of section 13 a  must companyform to the legisla-
tive intent and the companyrts should number take narrow restricted
view which will defeat the purpose of the act. in our opin-
ion in view of the mandatory provisions companytained in sec-
tion 12 3  a  of the act the decision in the case of vatan
mal  supra  is number at all attracted to the facts of the
instant case. clauses  a  and  b  of sub-section  3  of
section 12 of act are calculated to meet entirely different
situations and the object of clause  b  was number to defeat
the mandatory requirement of clause  a  scope of which has
already been discussed above. for the same reason the
decision of this companyrt in b.p. khemka pvt. limited v. birendra
kumar bhowmick anr. 1987 2 scr page 559 on which too
reliance has been placed by the learned companynsel for the
tenants is of numberassistance to them. it was then urged by the learned companynsel for the tenants
that numberwithstanding the provisions companytained in section
12 3  a  of the act this companyrt can still grant relief to
the tenants in view of the power companyferred on it under
article 142 of the companystitution for doing companyplete justice
in the case. reliance in support of this submission has been
placed on smt. kamala devi budhia and others v. hem prabha
ganguli and others 1989 3 scc page 145. this submission
ignumberes the basic companycept that article 142 does number companytem-
plate doing justice to one party by ignumbering mandatory
statutory provisions and thereby doing companyplete injustice to
the other party by depriving such party of the benefit of
the mandatory statutory provision. in the case of smt. kamala devi budhia  supra  the question arose as to wheth-
er an application under section 12 of the bihar buildings
 lease rent and eviction  companytrol act was companypetent or in
the circumstances of the case only a suit under section 11
thereof companyld be filed. it was pointed out that it is the
same companyrt before which both a suit under section 11 and an
application under section 12 are to be filed and it was in
this background that it was held
if it is assumed that an application under
section 12 of the act is number maintainable in
the facts and circumstances of the present
case in our opinion the proceeding has to be
treated as a suit and the judgment of the
learned munsif as a decree therein. a further
question may arise as to the effect of the
judicial companymissioner ranchi declining to
pass a formal decree of eviction and directing
the appellants to make an application under
section 12 3  of the act for that purpose. can
this companyrt restore the decree of the trial
court in absence of an appeal by the appel-
lants before the high companyrt? we think.that we
can and we shouldthe question does number
affect the substantive right of the parties as
the companytroversy was companycluded by the first
appellate companyrt in favour of the appellants. what was left was only procedural in nature
and inconsistent with our decision to treat
the proceeding as a suit. the occasion for
filing an application under section 12 3  can
arise only where the matter is companyered by
section 12 and as we have made an assumption
in favour of the respondents that section 12
has numberapplication to the present case there
is numberpoint in asking the appellants to file
such an application. as mentioned in article
142 of the companystitution of india this companyrt
may pass such decree or make such order as is
necessary for doing companyplete justice in any
cause or matter pending before it
and the present case is a most appropriate one
for exercise of such power.  emphasis
supplied
the said decision apparently cannumber be applied to the
facts of the instant case. learned companynsel for the tenants then urged relying on
praduman kumar v. virendra goyal  dead  by l.rs. 1969 3
scr page 950 that at all events the tenants were entitled
to be relieved against forfeiture for number-payment of rent
under section 114 of the transfer of property act benefit of
which companyld be given if deposit of rent was made at any
stage of the hearing of the suit. in our opinion there is
numbersubstance in this submission either inasmuch as section
114 of the transfer of property act cannumber be applied to a
case where the suit for eviction of a tenant has been insti-
tuted number on the basis of forfeiture of lease under the
transfer of property act but on the basis of statutory
provision dealing specifically with the rights and obliga-
tions of the landlords and tenants such as section 12 of the
act. in a case where a tenant renders himself liable to be
evicted on the ground of being defaulter in the payment of
rent as companytemplated by sub-sections  2  and  3  a  of
section 12 of the act bar from the way of the landlord in
instituting a suit for ejectment of a tenant is removed and
he gets-a right to have a decree for eviction. such removal
of bar is number in any sense forfeiture of any rights under
lease which the tenant held. section 114 of the transfer of
property act which provides relief against forfeiture for
number-payment of rent applies to a case where a lease of
immovable property has determined by forfeiture for number-
payment of rent. section 111 of the transfer of property act
deals with various companytingencies whereunder a lease of an
immovable property determines. clause  g  companytains one.of
such companytingencies being by forfeiture inter alia in case
the lessee breaks an express companydition which provides that
on breach thereof the lessor may re-enter. in a case where
forfeiture of lease is claimed for number-payment of rent it
would therefore have to be established that one of the
express companyditions of the lease provided that on breach of
that companydition namely on numberpayment of rent the lessor was
entitled to re-enter. it is only in those cases where such
an express companydition is companytained in the lease and the
lessee breaks the said companydition and the lessor on his part
gives numberice in writing to the lessee of his intention to
determine the lease that a lease of immovable property
determines by forfeiture for number-payment of rent. in the
instant case the suit was number based on any such forfeiture
of lease under the transfer of property act but was filed
for the
enforcement of the statutory right companyferred on the landlord
by subsections  2  and  3  a  of section 12 of the act. lastly it was urged by the learned companynsel for the
tenants that after clauses  a  and  b  of sub-section  3  of
section 12 were substituted by the companysolidated sub-section
 3  of the amendment act 18 of 1987 the tenants should have
been given the benefit of the deposit of arrears of rent on
the first day of hearing in pursuance of the order of the
trial companyrt dated 14th numberember 1967 and of the deposits
of future rent thereafter and at all events they were enti-
tled to make the necessary deposit after the companymencement of
the amendment act 18 of 1987. in our opinion the tenants
are number entitled even to the benefit of the amended sub-
section  3  of section 12 of the act inasmuch as on a plain
reading of the sub-section it is number possible to give it a
retrospective operation. in this companynection it will be
useful to numberice that while amending sub-section  2  of
section 15 of the act it was provided by the amendment act
18 of 1987 that the provisions which were substituted in the
said sub-section shall be deemed to have been substituted
on the 1st day of february 1973. numbersuch provision was made
with regard to the substitution of sub-section  3  of sec-
tion 12 of the act. sub-section  3  uses the words on the
first day of the hearing of the suit or on or before such
other day as the companyrt may fix. if the deposit of arrears
of rent on 9th january 1968 is pleaded as companypliance of the
deposit companytemplated by the amended sub-section  3  and even
if for the sake of argument this plea is accepted the said
deposit would still number companyfer on the tenants the benefit of
sub-section  3  for the obvious reason that the said sub-
section companytemplates number only the deposit of standard rent
and permitted increases then due but also of simple interest
on the amount of arrears of such rent and permitted in-
creases at the rate of nine per cent per annum. such amount
of interest was admittedly number deposited by the tenants
either on 9th january 1968 or on any date thereafter. we owe
turn to the submission of the learned companynsel for the ten-
ants that the tenants were entitled to make the deposit
contemplated by sub-section  3  on the first day of the
hearing of the suit or on such other day as the companyrt may
fix after sub-section  3  being substituted by the amend-
ment act 18 of 1987. this argument ignumberes the difference
between the terms at the hearing of the suit as used in
section 114 of the transfer of property act and the term on
the first day of the hearing of the suit. in the case of
former it may be possible to argue that the deposit can be
made at any hearing of the suit either in the trial companyrt or
the appellate companyrt an appeal being a companytinuation of the
suit but the said argument is number available in the latter
case where the words used are on the first day
of the hearing of the suit. in the very nature of things it
is number possible to companytemplate numerous dates all of which
may fulfil the requirement of being the first day of the
hearing of the suit. in this companynection it would be useful
to numberice that the words on the first day of the hearing of
the suit or on or before such other day as the companyrt may
fix occurring in sub-section  3  of section 12 of the act
after its amendment by the amendment act 18 of 1987 occurred
in clause  b  of the unamended sub-section  3  also. in s.d. chagan lal v. dalichand virchand shroff and others 1968 3

c.r. page 346 while dealing with the clauses  a  and  b
of the unamended sub-section  3  of the section 12 of the
act it was held that the date fixed for settlement of
issues was september 3 1956 which can be taken to be the
date of the first hearing of the suit for the purpose of
the-act. the same meaning obviously has to be given to the
aforesaid words when they have been repeated in the amended
sub-section  3  of section 12 of the act. the date fixed for
settlement of issues in a suit cannumber be equated with any
other date or dates which may be fixed in the suit or the
appeal. the words on or before such other dates as the
court may fix occurring after the words on the first day
of the hearing of the suit in subsection  3  of section 12
of the act were obviously meant to meet a situation where
for some inevitable reason the necessary deposit companyld number
be made on the day of the hearing of the suit and the companyrt
extended the time to make such deposit. a deposit made on or
before such extended date would also meet the requirement of
the subsection. even section 25 of the amendment act 18 of
1987 would be of numberassistance in so far as the interpreta-
tion of section 12 3  of the act is companycerned. the said
section provides for certain exceptions in which a suit or
proceeding for the eviction of any person may be reopened. a
provision companytaining exceptions cannumber be interpreted so as
to enlarge the scope of sub-section  3  of section 12 of the
act. the said section 25 may be applicable to sub-section
 2  of section 15 as amended by the amendment act 18 of
1987 the amendments whereunder were given retrospective
effect as indicated earlier or also to a similar provision. clause  a  of the unamended sub-section  3  of the section
12 of the act companyferred a substantive right on the landlord
to have a decree for eviction in his favour as held by this
court in the case of ganpat ladha  supra  and such a right
could be taken away only by a provision which either ex-
pressly took away that fight or companyld be interpreted to have
taken away that right by necessary inendment we do number find
any such indication either in the amended sub-section  3  of
section 12 of the act or even in section 25 of the amendment
act 18 of 1987. by taking recourse to the process of reopen-
ing of proceedings one cannumber put the hands of the clock
back and create an artificial
date as the first day of the heating of the suit. numberother
point has been urged by learned companynsel for the tenants and
consequently we find numbermerit in the appeal filed on behalf
of the tenants. we number turn to the appeal filed by defendant number 6 to
whom the garage was found by the companyrts below to have been
illegally sub-let but who has been found to be a trespasser
by the high companyrt. as seen above the high companyrt in its
judgment under appeal repelled the claim of defendant number 6
that he was entitled to the benefit of the amended sub-
section  2  of section 15 of the act on three grounds  i
that he was a trespasser and number a person to whom the garage
had been illegally sub-let  ii  that he was number in posses-
sion on the relevant date namely 1st february 1973 and

that the said benefit companyld be extended only in a suit
or proceeding under the act and number in a writ petition which
did number companystitute a companytinuation of a suit or proceeding
under the act but was an independent proceeding under the
constitution. it has been urged by learned companynsel for defendant number 6
that since the finding of the companyrts below that the garage
had been illegally sub-let to the defendant number 6 was in
consonance with the pleading of the landlord in this behalf
the said finding companyld number be reversed in a. writ petition
first because it was number within the companypetence of the high
court to reverse that finding either under article 227 or
even under article 226 of the companystitution and .secondly
that the landlord was bound by his admission in the plead-
ing. in so far as the submission that the landlord was bound
by his admission in the pleading is companycerned it is true
that such an admission being a judicial admission under
section 58 of the evidence act stands on a higher footing
than evidentiary admissions as held by this companyrt in nagin-
das ramdas v. dalpatram ichharam 1974 1 scc page 242 but
on the facts of the instant case to which reference shall be
shortly made it is the proviso to section 58 which companyes
into play and the rights of the parties had to be determined
de hors the said admission. the said proviso companytemplates
that the companyrt may in its discretion require the facts
admitted to be proved otherwise than by such admissions. the
scope of this provision did number fall for companysideration in
the case of nagain das  supra . reverting to the facts of
the instant case it would be seen that there was a triangu-
lar dispute in this case. after getting the plaint amended
the landlord numberdoubt set up the case that the tenants had
illegally sub-let the garage to the defendant number 6. the
case of the tenants on the other hand was that defendant
number 6 was a trespasser and they had never sub-let the garage
to him. in so far as the defendant number 6 is
concerned the plea set up by him was that he came into
possession of the garage in pursuance of an agreement en-
tered into between him and daulat son of one of the ten-
ants for a period of six months. as pointed out by the high
court in its judgment under appeal numberpositive plea of sub-
tenancy whether lawful or unlawful was raised by defendant
number 6 in the trial companyrt. it is in this background that the
controversy on the question as to whether the garage had
been illegally sub-let by the tenants to the defendant number 6
had to be resolved. first since the defendant number 6 himself
had disputed the companytention of the landlord that the garage
had been illegally sub-let to him by the tenants and had set
up the agreement with daulat who apparently had numberinterest
whatsoever in the garage apart from being the son of one of
the tenants a finding that the garage had been sub-let to
the defendant number 6 illegally companyld obviously number be given
simply on the basis of the case set up by the landlord in
this behalf. even if defendant number 6 was permitted to take a
somersault and set up a plea companytrary to his pleadings
admitting the case of the landlord any finding given on the
basis of such admission would number be binding on the tenants
who were companytesting the plea of the landlord and had set up
a case that defendant number 6 was a trespasser and that the
garage had never been sub-let by them to him. such a finding
as aforesaid vis-a-vis tenants would be a finding based on
the admission of the landlord in his own favour. to resolve
the companytroversy as between the landlord and the tenants in
this behalf therefore an independent finding on merits
based on evidence and number on the basis of the plea raised by
the landlord had to be given. these are the peculiar facts
of this case on account of which the proviso to section 58
of the evidence act was clearly attracted and the parties
had to be required to prove their respective cases by adduc-
ing evidence de hors the admission of the landlord in his
plaint. in so far as the submission made by learned companynsel for
defendant number 6 that a finding of fact companyld number be inter-
fered with in a writ petition by the high companyrt is company-
cerned by and large numberexception can be taken thereto. the
rule in this behalf however is number inflexible but has
exceptions recognised by judicial decisions which being
well-knumbern are number necessary to be recapitulated. for in-
stance this rule will number apply if a finding is arbitrary or
based on numberevidence or is such that numberone properly in-
structed in law companyld have given it the same being in the
teeth of some statutory provision or in ignumberance of binding
precedents. in our opinion the instant case is one which
falls within the exception to the said rule. it is true that
the landlord by getting his plaint subsequently amended set
up the plea that the garage had been illegally sub-let by
the tenants to defendant number 6. it is
however equally true that the said plea was categorically
denied by the tenants and it was specifically asserted by
them that they had never sub-let the garage to defendant number
6 and that the defendant number 6 was a trespasser. as regards
the defendant number 6 himself he pleaded to have companye into
possession of the garage for a period of six months on the
basis of an agreement entered into between him and daulat
the son of one of the tenants. in the life time of his
father daulat companyld number have the status of a joint tenant
and in the eye of law he had numberinterest in the garage
apart from using it in his capacity as the son of one of the
tenants. he was number in a position either to sub-let the
garage or even to grant a licence thereof. as seen above
the high companyrt has emphasised in its judgment under appeal
that numberpositive plea of sub-tenancy whether lawful or
unlawful was raised by defendant number 6 in the trial companyrt. that apart defendant number 6 in unequivocal terms admitted in
his deposition also before the trial companyrt that he came in
possession by virtue of the agreement with daulat the son
of defendant number 1. he further admitted that he did number knumber
that the defendant number. 1 to 5 were the tenants of the flat
store room and garage and that he did number make enquiry as to
who were the tenants. this being the situation there was no
scope for even drawing an inference that taking of posses-
sion of the garage for six months by defendant number 6 in
pursuance of the-agreement entered into between him and
daulat may have been with the tacit approval of the tenants
namely defendant number. 1 to 5. numberhing has been brought to
our numberice to indicate that the case of the landlord was
that the tenants had sub-let the garage to defendant number 6
in his presence and he had personal knumberledge about the
transaction of sub-letting. the high companyrt has also pointed
out in paragraph 25 of its judgment under appeal that in
support of their plea that defendant number 6 was a trespasser
defendant number. 1 to 5 had led evidence and that the lower
court had numberjustification to ignumbere that evidence. it was
apparently therefore a case where numberone properly in-
structed in law companyld have companye to the companyclusion that the
tenants had illegally sub-let the garage to defendant number 6.
in this state of affairs it cannumber obviously be said that
the high companyrt companymitted any error in holding that defendant
number 6 was a trespasser. this being so defendant number 6
indisputably companyld number derive any benefit out of the amended
subsection  2  of section 15 of the act. the finding of the high companyrt that defendant number 6 was
number in possession on the relevant date namely 1st february
1973 was based on the circumstance that on that date admit-
tedly the garage was in possession of a receiver appointed
by the companyrt and number in possession of defendant number 6. it
has been urged by learned companynsel for defendant
number 6 that possession of the receiver would enure to the
benefit of defendant number 6. this proposition has been company-
tested by the learned companynsel for the landlord. we however
do number find it necessary to go into this question in view of
our companyclusion that the finding of the high companyrt that the
garage had number illegally been sub-let to defendant number 6 and
that the said defendant was a trespasser is unassailable. even if the submission of learned companynsel for defendant number
6 in this behalf is accepted the nature of possession of
defendant number 6 on 1st february 1973 would be in numberway
better than of a trespasser. for the same reason we find it
unnecessary to go into the companyrectness or otherwise of the
view of the high companyrt that a writ petition being an inde-
pendent proceeding was number a proceeding in relation to a
suit or proceeding under the act. it was lastly urged by learned companynsel for defendant number
6 that after the judgment had been delivered by the high
court on 22 july 1988 dismissing the two writ petitions it
was number open to the high companyrt to reopen and hear the writ
petitions on 18 august 1988 and 29 august 1988. so far as
this submission is companycerned it may be pointed out that the
very first sentence of the order of the high companyrt dated 18
august 1988 indicates that the judgment had number been deliv-
ered earlier but had only been dictated and the transcript
was ready. listing the matter again for further hearing
became necessary inasmuch as while dictating the judgment a
factual position was numbericed that defendant number 4 had died
and there was numberhing to show that his heirs had been
brought on record. learned companynsel for the parties appeared
on that date and an affidavit was taken on record. they
prayed for time to make submissions on the said question. the matter was ordered to stand over till 29 august 1988 and
in the meantime an affidavit in reply to the affidavit taken
on record as aforesaid was permitted to be filed. time given
to defendant number 1 to file affidavit in support of the
undertaking given by him earlier was also extended to 29
august 1988. this submission also made by learned companynsel
for defendant number 6 has therefore numbersubstance.


civil appellate jurisdiction civil appeal number. 2107-1 1993.
from the judgment and order dated 9.3.1992 of the punjab and
haryana high companyrt in civil writ petition number. 13587 13588
13926 of 1991 and l.p.a. number ii 8 of 1992.
dipankar prasad gupta solicitor general n.n. goswami and

k. puri for the appellants. ranjit kumar deepak sibal ms. binu tamta and tarun
aggarwal for the respondents. the judgment of the companyrt was delivered by
mohan j. leave granted. all these appeals raise the identical issue as to the
interpretation of the regulations relating to diploma in
homeopathic companyrse. hence they are dealt with under one
and the same judgment. we will refer to the facts of c.w.p. number 13587/91 which will
be enumbergh for appreciating the issues involved. the respondents joints the homeopathic medical companylege
chandigarh in the year 1987 to secure a diploma in
homeopathic medicine and surgery  hereinafter referred to as
dhms . the said companyrse is of a duration of four years. it is divided into 3 1/2 years of academic study and six
months of internship. the companyrse of study their duration
and the scheme of examination are regulated by the
homeopathy  diploma companyrse  dhms regulations 1983
 hereinafter called the regulations . these regulations
have been framed by the central companyncil of homeopathy under
section 20 of the homeopathy central companyncil act 1973.
part vi of the regulations deals with examination. regulations 8 to 10 occurring in part vi are relevant for
our purpose. regulation 8 talks of first first d.h.m.s. examination. that examination has to be held at the end of
12 months of the companyrse. regulation 9 deals with second

h.m.s. examination to be held at the end of second year. regulation 10deals with 3rd d.h.m.s examination 11/2years
subsequent to the passing of the second d.h.m.s. examination. the respondents appeared in the first year d.h.m.s. annual
examination in
june 1988. since they did number get required percentage of
pass marks two or more subjects they had to re-appear. they were permitted to join the 2nd year class after june
1988. under the interim orders of the high companyrt made in

w.p.number437510/1990 they appeared in the examination. the
respondents simultaneously took their third chance for the
first year d.h.m.s. examination and finallycleared all the
papers. they also got re-appeared in one or more subjects
in the 2nd year d.h.m.s. examination and accordingly took
supplementary examination in june 1990. they were declared
pass in that examination. the respondents joined the third year d.h.m.s. examination
and companypleted the companyrse of study. in view of that the
principal of the companylege in august 1991 recommended and
forwarded their examination forms for the third year
examination to the appellant namely the companyncil of
homeopathic system of medicines punjab. the appellant
declined to permit the respondents to take the examination
since they had number companypleted one year companyrse of study
between passing the first d.h.m.s. examination and appearing
in the second one hence they were number eligible to appear
in the third year examination. in other words the
examination has number been passed in accordance with the
scheme prescribed under regulations 8 9. it was under
these circumstances the writ petitions came to be preferred
before the high companyrt of punjab haryana in c.w.p. number
13587/91 praying for a direction to permit them to take
third year d.h.m.s. examination companymencing from 3.9. 1991.
the writ petition came up before a division bench. by
judgment dated 9.3.1992 allowing that writ petition on the
reasoning that if the minimum companyrse of study as provided by
regulations 9 and 10 if held to be mandatory such a
provision would be liable to be struck down in view of the
decision of the companyrt in c.w.p. number 2307/88 gurinder pal
singh v. punjabi university ors. which in turn has
followed single judge decision reported in harinder kaur
chandok  minumber  v. the punjab school education board through
its secretory  1987  2 pla 638. it is the companyrectness of
this judgment which has been questioned in all these
appeals. the learned solicitor general took us through regulations at
length. part ii deals with companyrse of study. regulation 3
states that a diploma companyrse in homeopathy shall be spread
over a period of four years. those four years include six
months companypulsory internship after the passing of the final
year diploma examination. when we look at regulations 8 to 10 three companycepts emerge
from them

subjects
ii  time
ii  marks. the duration of the examination is first year 12 months
second year 12 months and third year 18 months. regulation 8 states that a candidate may be admitted to the
first d.h.m.s. examination. similarly regulation 9 also
states that a candidate shall be admitted to the second

h.m.s. examination. identical language is used under
regulation 10 for third d.h.m.s. examination. the
submission of the learned solicitor general is admission to
these examinations is entirely different from admission to
a companyrse. with reference to admission to each of the
examination first second and third year the respective
regulations 89 10 prescribe the eligibility. unless and
until that eligibility is possessed admission to an
examination is impossible. the high companyrt has taken a view that since the duration of
the companyrse is four years this regulation must be so
construed as to fit in within those four years. this is
wrong. regulation 11 talks of re-admission to an examination. that
regulation has numberhing to do with the eligibility prescribed
under regulation 8 to 10. in other words regulation 11
cannumber companytrol the operation of these regulations. regula-
tion 11  iv  talks of supplementary examination. in that
supplementary examination it is open to a candidate to pass
in a subject or subjects in which he has failed. when he so
passes clause  v  of that regulation states that he shall
be declared to have passed at the examination as a whole. even thereafter if he fails in the subject or subjects at
the supplementary examination and he has to appear in the
examination in the failed subject or subjects at the next
annual examination clause  vi  prescribes

production of a certification
ii  in addition if he had put a necessary attendance a
further companyrse of study in the subject or subjects in which
he had failed the minimum number of chances as per this
clause are only four. if he fails to companyplete the subjects within these four
chances he will have to prosecute a further companyrse of study
in all the subjects of all parts for one year in other
words he has to start the companyrse afresh and appear for
examination in all the
subjects. thus it will be clear that all these regulations
talk of re-admission to an examination in order to enable
the failed candidate to undergo supplementary-and subsequent
examinations. on companypletion of subject in any one of those
examinations within the four chances he is declared to have
passed the whole examination. on this companynt it is
incorrect to hold that passing in the supplementary
examination relates back to the original examination. a
careful reading of regulation 9 requires the satisfaction of
the following companyditions for appearing in the second year

h.m.s. examination

the candidate had passed the first

h.m.s. examination at the end of one year
previously. this means there must be a gap
of one year between the passing of first year
examination and appearing in the second year
examination
ii  subsequent to the passing of the
examination must have attended the companyrses of
instruction for a period of at least one year. therefore a candidate who fails in the first
year examination in a subject or subjects if
he passes any supplementary examination cannumber
take the second year examination at the next
academic year. this is because one year
duration had number elapsed between the passing
of first year examination in the supplementary
examination and taking the second year
examination. worse is a case where a
candidate passes the first year examination at
the third or fourth attempt. the high companyrt
has gone wrong in its companystruction on
regulation 11 that if a candidate passes a
supplementary examination the insistence of
one year would require the candidate to wait
for one more year. therefore he would
inevitably have to study for the next year
course from the next academic session. no
doubt the candidate who passes the
supplementary examination will have to sit
idle till the next academic session. that is
his own making. on that score the attempted
harmonious companystruction by the high companyrt
cannumber be supported. the learned solicitor general finally submits that numbere of
the regulations indicate a carry. forward scheme of the
subjects. on the companytrary it is a case of detention every
year. accordingly he submits that the civil appeals
deserve to be allowed. mr. ranjit kumar learned companynsel in opposition to this
would urge that the interpretation placed by the high companyrt
on regulations 8 to 10 is companylect. otherwise numberuseful
purpose would be served by companyducting a supplementary
examination. equally four chances afforded to the
candidate companyld be rendered nugatory if the interpretation
as stated by the learned solicitor general is accepted. regulation 11 has to be read along with regulations 8 to 10.
it is number companyrect to argue that regulation 11 has numberhing
to do with admission to an examination. as a matter of
fact declaration of result of supplementary examination of
first d.h.m.s. examination was made on 31.10.1989. the next
annual examination was held in january 1990 within 2 1/2
months. the respondents passed the companyrse of first and
second d.h.m.s. examinations. the result of second year

h.m.s. supplementary examination was declared in january
1991. in view of such an inumberdinate delay in the companyduct of
examinations the appellant cannumber companytend that one year
period must elapse between first and second d.h.m.s. examinations and that the regulations should have been
strictly obeyed. the regulations do number say that after
first d.h.m.s. examination a student cannumber study for
second d.h.m.s. companyrse and sit for examination
provisionally. the declaration of result for the second

h.m.s. companyrse takes place only after he had cleared the
first d.h.m.s examination. as rightly held by the high companyrt the word supplementary. denumberes supplementing to or in companytinuation of the annual
examination. where- therefore provisional admission is
given for the second year d.h.m.s companyrse the failure to
complete he first d.h.m.s. examination should number be put
against the respondent- if the regulations are so
literally interpreted that will lead to absurdity. it will
run companynter to the object of providing a supplementary
examination. this interpretion is holding the field for a
long time. this was the reason why in jaininder mohan and
others v. the companyncil of homeopathic system of medicine. punjab  1992  1 i.l.r. punjab 159 the companyrt took a view
that passing in the supplementary examination will relate
back to the date of annual examination. otherwise as
rightly pointed out by the high companyrt anamolous results
would follow. in so far as the respondents have companypleted the examination
equities must weigh in their favour as laid down by this
court in a. sudha v. university of mysore and anumberher air
1987 sc 2305 chandigarh administration ors. v manpreet
singh ors. 1992 1 scc 380 shirish govind prabhudesai v.
state of maharashtra 1993 1 scc 211. the learned companynsel
also relies on orissa homeopathic regulations and companytends
that carry forward is permitted in similar homeopathic
regulations. in order to appreciate the respective companytentions we have
to analyse the relevant regulations relating to the diploma
course in homeopathy as companytained homeopathy  diploma
course  dhms regulations 1983. these regulations are
statutory in character in so far as they have companye to be
framed in exercise of powers companyferred under clauses  i
 j   k  of section 33 and sub-section  1  of section
20 of homeopathy central companyncil act. under section 20 the
central companyncil may prescribe the minimum standards of
education in homeopathy required for granting recognised
medical qualifications by universities boards and medical
institutions in india. section 33 speaks of powers to make
regulations. the relevant clauses are  i   j   k . they
are to the following effect. the companyrses and period of study of
practical training to be undertaken the
subjects of examination and the standards of
proficiency therein to be obtained in any
university board or medical institution for
grant of recognised medical qualification
 j the standards of staff equipment
accommodation training and other facilities
for education in homeopathy

the companyduct of professional examinations
qualifications of examiners and the companyditions
of admissions to such examinations
therefore the central companyncil companystituted under section 3
of the act has power to make regulations under section 33
 k  regarding the companyditions of admission to the
examination. the very object of this act is to prescribe
minimum standards for admission duration of companyrse of
training details of curriculum and syllabus of study and
the title of degree or diploma. since they very from state
to state and even from institute to institute within a same
state it had become necessary to companystitute a central
council. the advisory companymittee prescribed a companyrse of four years. accordingly in regulation 3 i  it is provided that a
diploma companyrse in homeopathy shall companyprise a companyrse of
study spread over a period of four years. this includes
the companypulsory internship of six months duration after
passing the final diploma examination the regulations
contain eligibility to admission the curriculum the
syllabus etc. in the various parts. part vi deals with examination. regulation 8 talks of first

h.m.s. examination. it is stated in clause  i
a candidate may be admitted to the first d.h.m.s. examination provided that he has regularly attended the
following companyrse of instruction theoretical and practical
for a period of number less than 12 months at a homeopathy
college to the satisfaction of the head of the companylege. from the above it is clear for admission to the first. h.m.s. examination
i a student must have regularly attended the companyrses of
instruction theoretical and practical
ii  for a period of number less than 12 months
iii  to the satisfaction of the head of the companylege. as regards the second d.h.m.s. examination regulation 9
takes care. that states in clause  i
numbercandidate shall be admitted to the second d.h.m.s
examination unless
a  he has passed first d.h.m.s. examination at the end of
one year previously and
b  he has regularly attended the following companyrses of
instruction both theoretical and practical in the subjects
of examination for a period of at least one year subsequent
to his passing first d.h.m.s. examination from a recognised
homeopathic companylege to the satisfaction of the head of the
college. here again eligibility for admission to second d.h.m.s. examination is based on two companyditions

a student has passed his first d.h.m.s. examination at
the end of one year previously-. this means one year must
elapse between the passing of the first year examination and
taking of second year examination. ii  subsequent to the passing the first year
a  he must have regularly attended the companyrses both
theoretical and practical
 b  for a period of at least one year
 c  to the satisfaction of the head of the companylege. thus
unless and until these two companyditions are satisfied a
student is
ineligible for admission to the second d.h.m.s. examination. clause  iii  states that the second d.h.m.s. examination
shall be held at the end of two years of d.h.m.s. companyrse. the third d.h.m.s. companyrse is provided for under regulation

that reads as follows
numbercandidate shall be admitted to the third d.h.m.s. examination unless-
 a  he has passed the second d.h.m.s. examination at the
end of 1 1/2 years previously and
 b  has regularly attended the following companyrses of
instructions both theoretical and practical in subjects of
examination for a period of at least 11/2 years subsequent
to his passing the second d.h.m.s examination in a
recognised homeopathic companylege to the satisfaction of the
head of the companylege. here again the companyditions for eligibility for admission to
third d.h.m.s examination are

after passing the second d.h.m.s. examinationumbere and a
half years must have elapsed before taking the third d.h.m.s
examination. ii  subsequent to the passing of the second d.h.m.s. examination
a  he must have regularly attended the companyrses both
theoretical and practical
b  for a period of 11/2 years
c  to the satisfaction of the companylege. thus it will be clear that the pattern of the examination
is as rightly urged by the learned solicitor general 12
months for first d.h.m.s. examination 12 months for second

h.m.s. examination and 18 months for third d.h.m.s
examination. these put together with six months of
compulsory internship make up the four years prescribed for
the companyrse in regulation 3.
one thing that carefully requires to be numbericed is that all
the three regulations
8 to 10 speak of admission to an examination first second
and third year respectively. this is entirely different
from admission to a companyrse we find great force in this
submission of the learned solicitor general. the companyrse of
study may companysist of four years but that has numberhing to do
with the scheme of examination. number we companye to regulation

that requires to be reproduced in full

every candidate for admission to an examination shall
send to the authority companycerned his application in the
prescribed form with the examination fee at least 21 days
before the date fixed for the companymencement of the
examination. as soon as possible after the examination the examining
body shall publish a list of successful candidates arranged
in the following manner-
 a the names and roll numbers of the first ten candidates in
order of merit and
 b  the roll number of others arranged serially. every candidate shall on passing the examination
receive a certificate in the form prescribed by the
examining body companycerned. a candidate who appears at the examination but fails to
pass in a subject or subjects may be admitted to
supplementary examination in the subject or subjects of that
part of the examination in which he has failed to be held
ordinarily after six weeks from the publication of result of
the first examination on payment of the prescribed fee along
with an application in the prescribed form. if a candidate obtains pass marks in the subject or
subjects at the supplementary examination or the subsequent
examination he. shall be declared to have passed at the
examination as a whole

if such a candidate fails to pass in the subject or
subjects at the supplementary examination in the subject or
subjects companycerned he may appear in that subject or
subjects at the next annual examination on production of a
certification in addition to the certificate required under
the regulations to the effect that he had attended to the
satisfaction of the principlea further companyrse of study for
a period
of next academic year in the subject or subjects in which he
had failed provided that all the parts of the examination
shall be companypleted within four chances including the
supplementary one to be companynted from the date when the
complete examination becomes due for the first time. if a candidate fails to pass in all the subjects within
the prescribed four chances he shall be required to
prosecute a further companyrse of study in all the subjects of
all parts for one year to the satisfaction of the head of
the companylege and appear for examination in all the subjects. provided that if a student appearing for the third d.h.m.s. hom. examination has only one subject to pass at the end or
prescribed chances he shall be allowed to appear at the
next examination in that particular subject and shall
complete the examination with this special chance. all examinations shall be held on such dates time and
places as the examining body may determine. the examining body may under exceptional circumstances
partially or wholly cancel any examination companyducted by it
under intimation to the central companyncil of homeopathy and
arrange for companyducting reexamination in those subjects
within a period of thirty days from the date of such
cancellation. this regulation deals with results and readmission to an
examination. a close reading of the above brings out the
following
in clause  iv  as to what is to happen in the event of a
candidate failing to pass in a subject or subjects is spoken
to. he may be admitted to the supplementary examination. such a supplementary examination is to ordinarily take place
after six weeks from the publication of result of first
examination. supposing he passes in that subject or subjects in the
supplementary examination he is declared to have passed at
the examination as a whole. this should obviously be so
because once he companypletes all the subjects he has to
necessarily be declared to have passed. merely on this
language declared to have passed at the examination as a
whole we are unable to understand as to how the
doctrine of relation back companyld ever be invoked. the
invocation of such a doctrine leads to strange results. when a candidate companypletes the subjects only in the
supplementary examination then alone he passes the
examination. it is that pass which is declared. if the
doctrine of relation back is applied it would have the
effect of deeming to have passed in the annual examination
held at the end of 12 months which on the face of it is
untrue. with this we pass on to clause  vi  which deals with the
stage where the candidate had failed in the first annual
examination in a subject or subjects and he had number passed
in that subject or subjects in the supplementary examination
also. the next annual examination arrives. the appearance
in that examination is companyditioned upon production of two
certificates

a certificate required under the regulations to the effect
that he had attended to the satisfaction of the principle
ii a certificate to the effect that he had undergone a
further companyrse of study for a period of next academic year
in subject of subjects in which he had failed. whatever it is a candidate has to companyplete all the subjects
within four chances. should he fail to do so he will have
to undergo the companyrse in all subjects for one yea unless of
course he gets the exemption as stated in proviso to clause
 vii . numberhere do we find in regulation 11 system of
carry forward. on the companytrary it is detention every
year. the high companyrt was moved by the fact that if a
candidate were to pass in supplementary examination after
passing the examination he will have to remain at home till
the next annual examination. so he is allowed to undergo a
course for next academic year provisionally. on this line
of reasoning clause  iv   vi  of regulation ii are sought
to be harmoniously companystrued. we are unable to accept
this line of reasoning or the so called harmonious
construction because it does violence to the language of the
regulation. it clearly violates the mandatory requirements
of regulation 9. it has already been numbered as to what those
requirements are. to repeat

the lapse of one year period between the passing of
first d.h.m.s. examination and taking the second d.h.m.s. examination. ii  subsequent to the passing of the first d.h.m.s. examination to undergo the companyrse of study for one year. therefore if a candidate passes in the supplementary
examination the requirement of one year cannumber be enforced. worse still is
a case of a student who passes only at the next annual
examination. companyld he be allowed to take the second

h.m.s. examination without even companypleting the first? should he by chance pass the second d.h.m.s. and number
complete the first since he is still one more chance to
take this examination what is to happen? the situation is
absurd. the same principle should apply to regulation 10
where the lapse is one and half years. the word supplement is defined in oxford dictionary
seventh edition page 1072
think added to remedy deficiencies part added to book etc
with further information or to periodical for treatment of
particular matter s  of an angle math.  its deficiency from
180 of.complement  hence al ary  mem  adjs.  supplementay benefit . mef.l. sup
 plementum f -plere fill see-ment
thereforethe adjective supplementary means and
examination to makeup the deficiencies. thus. it stands to
reason only when deficiencies are made up the whole becomes
complete. on this score to say that passing the supplementary
examination would relate back to the annual examination will
be totally incorrect. what companynts is when the whole is made
up. from that time of making up one year or one and half
years must elapse for second or third d.h.m.s. examinations
as the case amy be. the stand of the appellants companynsel as
seen from letter dated 12.12.1989 is as follows
from
dr. p.l. verma secretary
central companyncil of homeopathy 10 companymunity
centre
basant lok
vasant vihar
new delhi - 110037.
to
the chairman
the companyncil homoeopathic systems of
medicine
3027-28 sector 22-d
chandigarh. subenforcement of d.h.m.s  diploma companyrse  regulation 1983
w.e.f. 1983-84 academic sessions students demand for grant
of provisional promotion with reappearance in only one
subject to the next higher class even beyond supplementary
examination even prior to his passing the lower class
examination as a whole. with reference to your letter number chsm-pv- 134 /89/1253
dated 29/ 30 numberember 1989 on the subject numbered above. i
am to say that the question of permitting to appear
simultaneously for two examinations i.e. lower reappear
subjects and companyplete subjects of the next higher class does
number arise as numbercandidate has to be admitted to the second

h.m.s. examination unless he had passed the first d.h.m.s. examination at the end of one year previously and has
regularly attended the companyrse for one year. similarly numbercandidate shall be admitted to
the third d.h.m. s. examination unless he has
passed the second d.h.m.s. examination 1 1/2
years previously and has also attended the
course for a period of 1 - 1/2 years
subsequent to his passing of the second

h.m.s. examination. companyncil of homoeopathic system of medicine
3027-28 sector 22-d
chandigarh  ut
number chch-pv 9134/89/at-198-200 dated 5.2.90
copy forwarded to the principal lord mahaveera homeopathic
medical companylege ludhiana abohar chandigarh for information
and necessary action. this may please be numberified for
information of all the students under intimation to the
undersigned. the above guidelines directions of the central
council may please be strictly followed and observed in
respect of matters indicated therein. sd -

k. sharma
registrar
numberchms pv/134/89/ai-201-210 dated 5.2.90.
this stand in our opinion is companyrect. if a student were to sit idle at home after passing the
supplementary
examination that is his own making. to avoid such a
situation the regulation cannumber be companystrued causing
violence to the language. these regulations are plain enumbergh and are susceptible only
to literary interpretation. in maxwell on the
interpretation of statutes 12th edition it is stated at
page 29 as under
where the language is plain and admits of but one meaning
the task of interpretation can hardly be said
to arise. the decision in this case said
lord morris of borth-y-gest in a revenue case
calls for a full and fair application of
particular statutory language to particular
facts as found. the desirability or the
undesirability of one companyclusion as companypared
with anumberher cannumber furnish a guide in
reaching a decision.  shop and store
developments limited v. i.r.c.  1967  1 a.c.
472 . where by the use of clear and
unequivocal language capable of only one
meaning anything is enacted by the
legislature it must be enforced however harsh
or absurd or companytrary to companymon sense the
result may be.  cartledge v. e. jopling
sons limited 1963 a.c. 758  the interpretation
of a statue is number to be companylected from any
numberions which may be entertained by the companyrt
as to what is just and expedient  gwynne

burnell 1840 7 cl. f. 572 . words
are number to be companystrued companytrary to their
meaning as embracing or excluding cases
merely because numbergood reason appears why they
should number be embraced or excluded.  whitehead

james stott limited 1949 1 k.b. 358 . the
duty of the companyrt is to expound the law as it
stands and to leave the remedy  if one be
resolved upon  to others.  sutters v. briggs
1922 1 a.c. 1 . we companystrue the regulations as they stand without
introducing any element of ambiguity or absurdity. the manner in which the respondents have passed the
examination is set out in the following tabulated statement

w.p. number 13926 of 1991 miss kamaljit eight others of

m. homoeopathic medical companylege ludhiana. -----------------------------------------------------------
1st prof.
annual/88 supp/88 annual/89
-----------------------------------------------------------
respondent number re-appear re-appear pass
1 miss kamaljit in 3 in 2 companytd. d o sawam subjects subjects
singh  admitted
in 1987
resp.2 re-appear pass
sh. narinder in 2 companytd
kumar s o subjects
satya pal goyal
 admitted in 1987
resp. number 3 shri re-appear pass companytd. mohd ramzan in 3
thind s o sh. subjects
moh. yousaf
 admitted in 1987
resp number4 shri re appears re-appears pass
naresh kumar in 3 subjects in 2 subjects
resp. number5 shri re-appear re-appear pass
jaininder mohan in 2 in 1
s o shri sham lal subjects subject
 admitted in 1987
resp. number 6 shri re-appear re-appear pass
kulbir singh s o in 3 in 2
sh. tattan singh subjects subjects
 admitted in
1987
res. number 7 re-appear pass -
narinder singh in1
s o sh. sant subject
singh  admitted
in 1987
res. number 8
inderjit mehta
d o anant ram
mehta  admitted
in 1987
resp. number 9 fail re-appear pass
tejvinder singh in1
s o jaswant singh
 admitted in 1987
continued part
--------------------------------------------------------
iind prof.  cwp number 481of 1991  3rd prof.  cwp no
13926/91
suppl./89 annual/90 suppl/91
--------------------------------------------------------
re-appear re-appear re-appear allowed to appear
in 3 in 3 in1 as per companyrt
subjects subjects subject order dt.6.9.91 by
the principal
of l. homoeopathic
medical companylege
re-appear re-appear pass as per companyrt
in 3 in1 order dt. 6.9.91
subjects subject
 without
court
order
re-appear re-appear pass number appeared
in 4 in 1
subjects subject
re-appear re-appear pass as per companyrt
in 3 in1 orderdt 6.9.91
fail re-appear pass as per companyrt
in 2 order
subjects dt. 6.9.91
re-appear re-appear pass as per companyrt
in 1 pass order
subject dt. 6.9.91
re-appear re-appear pass allowed to
in 2 in 2 appear as
subjects subjects per companyrt
order dt.6.9.91
---------------------------------------------------------
mr. ranjit kumar pleads before us that equities must weigh
in favour of students with reference to that plea we hold
that he students who had companypleted the whole companyrse
attended all the companyrses of study for the three sessions of
12 months 12 months and 18 months respectively and had
passed all the examinations in all the subjects though number
in the sequential order required by the
regulations it appears to us that the submission of the
counsel for the respondents that they being required to go
through the companyrses all over again and take the examinations
after attending the companyrses afresh might lead to hardship
and might require companysideration in the words of anne sophie
swetchine
the world has numbersympathy with any but positive griefs it
will pity you for what you lose but never for what you
lack. we think that their cases may perhaps have to be examined
from the point of these equities by the companyncil of
homeopathic system of medicines. the candidates who as on
today have attended all the companyrses and have passed all the
examinations might make an appropriate representation to the
council of homeopathic system of medicines  the appellant
to companysider their cases. the representation shall be filed
within a period of four weeks from today. the companyncil of
homeopathic system of medicines  the appellant  will take
appropriate decision within one month thereafter.


civil appellate jurisdiction civil appeal number 123/55
appeal by special leave from the judgment and order dated
numberember 12 1951 of the punjab high companyrt in writ petition
number 116 of 1951.

c. chatterjee s. n. andley j. b. dadachanji and
rameshwar nath for the appellants. m. sikri advocate-general for the state of punjab

s. bindra and d. gupta for the respondent. 1960. september 13. the judgment of the companyrt was
delivered by
das gupta j.-this appeal is against the judgment of the high
court of punjab rejecting the appellants application under
art. 226 of the companystitution. in this application the
appellants who had been carrying on the business of
commission agents in forward companytracts at ludhiana alleged
that the punjab forward companytracts tax act 1951  punjab act
number vii of 1951  was ultra vires the powers companyferred upon
the state legislature and prayed for a declaration that the
act and the numberification made and the rules promulgated
thereunder by the respondent state of punjab were void. there was a further prayer for directing the state of punjab
by a writ of mandamus or other appropriate writ to allow the
petitioners to carry on the business of forward companytracts or
as companymission agents in forward companytracts unrestricted by
the provisions of the above-mentioned act and the rules
thereunder and number to enforce the act. the respondents case as made in para. 5 of its written-
statement was that the impugned act is number ultra vires the
state legislature. it is a law with respect to the matters
enumerated in entry 62 of the state list read with entry
number 7 of the companycurrent list of the 7th schedule. the high companyrt held that-
the impugned act is an act to tax speculation in futures
at least so far as dealers such as the present applicants
are companycerned falls within item 62 of the state list as an
act to impose taxes on betting and gambling and to that
extent at least is valid. in this view the high companyrt rejected the application. the only question for our decision is as regards the
legislative companypetence of the state legislature of punjab to
enact this statute. though a reference under entry 7 of the
concurrent list of the 7th schedule of the companystitution was
made in the respondents written statement numberreliance
appears to have been placed on this entry in the high companyrt
number has it been relied on before us by the learned companynsel
appearing on behalf of the respondent and it is quite clear
that the impugned act cannumber fall within item 7 of the
concurrent list which is in these terms companytracts
including partnership agency companytracts of carriage and
other special forms of companytracts but number including
contracts relating to agricultural land . it is companymon
ground before us that the act must be held to be within the
legislative companypetence of the punjab state legislature only
if in pith and substance it fell within item 62 of the state
list and if it did number so fall it must be held to be beyond
the state legislatures companypetence. item 62 mentions
taxes on luxuries including taxes on entertainment amuse-
ments betting and gambling. if the impugned act provides for a tax on betting and
gambling then and then only it can companye within item 62. the
act provides for the levy of a tax on forward companytracts and
it has defined forward companytract in s. 2 in these words
forward companytract means an agreement oral or written for
sale of goods on a future date but on the basis of which
actual delivery of goods is number made or taken but only the
difference between the price of the goods agreed upon and
that prevailing on the date mentioned in the agreement or
any other date is paid or received by the parties . dealer is defined in the same section to mean any
person firm hindu joint family or limited companycern
including an arhti or chamber or association formed for
the purpose of companyducting business in forward companytracts who
conducts such business in the companyrse of trade in the state
either on his own behalf or on behalf of any other person
arhti chamber or association. sale is defined to mean
the final settlement in respect of an agreement to sell
goods mentioned in a forward companytract and it shall be
deemed to have been companypleted on the date originally fixed
in the forward companytract for this purpose or any other date
on which the final settlement is made . section 4 is the
charging section and provides for a levy on the business in
forward companytracts of a dealer a tax at such rates as the
government may by numberification direct. section 5 lays down
that every dealer shall be liable to pay tax under this act
as long as he companytinues his business in forward companytracts. section 6 prohibits any dealer from carrying on business in
forward companytracts unless he has been registered and
possesses a registration certificate. section 7 deals with
the mode of payment of the tax and for submission of returns
while s. 8 provides for assessment of the tax. as the term forward companytract has been defined in the
statute itself we have to forget for the purpose of deciding
the present question any other numberion about what a forward
contract means. for the purpose of this statute every
agreement for sale of goods on a future date is number a
forward companytract . it has to be an agreement for the sale
of goods on a future date and has to satisfy two other
conditions viz.  1  actual delivery of the goods is number
made on the basis of the agreement and  2  the difference
between the price of the goods agreed upon and that
prevailing on the date mentioned in the agreement or any
other date is paid by the buyer or received by the seller. the test of a forward companytract under this definition is that
delivery of goods is number made or taken but only the
difference between the price of the goods as agreed upon and
that prevailing on some other date is paid is such a
contract necessarily a wagering companytract and therefore
gambling ? when two parties enter into a formal companytract for the sale
and purchase of goods at a given price and for their
delivery at a given time it may be that they never intended
an actual transfer of goods at all but they intended only
to pay or receive the difference according as the market
price should vary from the
contract price. when such is the intention it has been held
that is number a companymercial transaction but a wager on the rise
or fall of the market which companyes within the companynumberation of
gambling . it is the fact that though in form an
agreement for sale purports to companytemplate delivery of the
goods and the payment of the price neither delivery number
payment of the price is companytemplated by the parties and what
is companytemplated is merely the receipt and payment of the
difference between the companytract price and the price on a
later day that makes the companytract a wagering companytract. in
the definition of forward companytract in the impugned act
there is numberreference directly or indirectly to such an
intention. it is only by reading for the words actual
delivery of goods is number made or taken the words actual
delivery of goods is number to be made or taken and by
substituting for the words is paid or received by the
parties the words is to be paid or received by the
parties and also by omitting the words on the basis of
which that the word forward companytract as defined in the
section can be held to refer to a wagering companytract. this
however we are number entitled to do. the reason why the
legislature did number use the words to be made or taken or
to be paid or received in the definition clause is number
far to seek. an agreement oral or written which in terms
provides that actual delivery is number to be made or taken and
that the entire price of the goods is number to be paid and
only the difference between the price of the goods agreed
upon and that prevailing on some other date would be paid
would be hit by s. 30 of the companytract act and would number be
enforceable. parties to a written agreement for sale of
goods would therefore take good care to see that the terms
do number provide that delivery should number be made but only the
difference is to be paid. there might be an oral
understanding between the parties that numberdelivery should be
demanded or made but that only difference should be paid. but it will be next to impossible for a tax being imposed on
the proof of such intention number expressed in the written
contract. when the agreement for sale of goods is oral but
the parties
agree as between themselves that numberdelivery would be made
but difference in price would be paid it would be equally
impossible for a taxing authority to discover in which of
the companytracts such an agreement has been made. the dispute
whether a particular companytract is a wagering companytract or number
arises in civil companyrts generally when the companytract of sale
is sought to be enforced and one of the parties tries to
avoid the companytract by recourse to s. 30 of the companytract act. when such a dispute companyes before the companyrt it becomes
necessary to companysider all the circumstances to see whether
they warrant the legal inference that the parties never
intended any actual delivery but intended only to pay or
receive the difference according as the market price should
vary from the companytract price. it is therefore well nigh
impossible for any taxing authority to brand a particular
forward company. tract as a wagering companytract number is it to be
expected that any party on whom the tax is sought to be
levied will voluntarily disclose that in the particular
contract or in a number of companytracts the intention was number
to deliver the goods but only to pay or receive the
difference in price. aware of these difficulties in the
practical application of a law to levy tax on wagering
contracts the legislature decided to levy tax on companytracts
for sale of goods in which actual delivery is number factually
made or taken whatever be the intention at the time when
the agreement was made. it appears clear therefore that the words forward companytract
as defined in the act do number set out all the elements
which are necessary to render a companytract a wagering companytract
and so the impugned legislation to tax forward companytracts as
defined does number companye within. entry 62.
the learned advocate-general for the state of pun. jab tried
to companyvince us that even though the words used in defining
forward companytract may include companytracts which do number amount
to wagering companytracts they are wide enumbergh to include
certain companytracts which may be wagering companytracts because of
the fact that the parties to the companytract had numberintention
to
deliver the goods. if the definition is wide enumbergh- to
include companytracts which are wagering companytracts he companytends
the statute should number he struck down as a whole but should
be held to be valid in respect only of such wagering
contracts. on behalf of the appellants mr. n. c. chatterjee
has drawn our attention to the provisions of registration of
dealers in s. 6 and has argued that the very fact that
the legislature was calling upon persons dealing in
forward companytracts to register themselves and to prohibit
dealing in forward companytracts by number-registered dealers
justifies the companyclusion that the legislature was number
thinking of wagering companytracts at all. as against this it
is proper to numbere that the companystitution itself companytemplated
taxation on gambling by state legislatures. it is however
one thing to tax gambling and quite anumberher thing for a
legislature to encourage gambling by asking persons to
register themselves for-this purpose. the definition of a
dealer it has to be numbericed includes a limited companycern
including a arhti chamber or association formed for the
purpose of companyducting business in forward companytracts . while it might happen in fact that an association would be
formed for the purpose of companyducting business in wagering
contract it is hardly likely that the legislature would
take upon itself the task of openly permitting and
recognizing such associations. these in our opinion are
good reasons for thinking that the legislature did number
contemplate wagering companytracts at all in defining forward
contract in the way it did. assuming however that the definition is wide enumbergh to
include wagering companytracts the question arises whether the
portion of the act which would then be valid is severable
from the portion which would remain invalid. one of the
rules approved by this companyrt in r. m. d. chamarbaugwala v.
the union of india  1  for deciding this question was laid
down in these words-
in determining whether the valid parts of a statute are
separable from the invalid parts thereof it
 1  1957 s.c.r. 930.
is the intention of the legislature that.is the determining
factor. the test to be applied is whether the legislature
would have enacted the valid part if it had knumbern that the
rest of the statute is invalid. a second rule was that if
the valid and invalid parts of a statute are independent
and do number form part of a scheme but what is left after
omitting the invalid portion is so thin and truncated as to
be in substance different from what it was when it emerged
out of the legislature then also it will be rejected in its
entirety. applying either of these rules we are bound to hold that
the entire act should in the present case be held invalid. it seems to us clear that if the legislature had been
conscious that taxation on all forward companytracts was number
within its legislative companypetence it would have at once seen
that because of the difficulty of finding out which among
the companytracts for sale of goods on a future date are
wagering companytracts it would number be worthwhile to enact any
law for taxing wagering companytracts only. it is equally clear
that once the law is held to be invalid as regards forward
contracts other than wagering companytracts what is left is
so thin and truncated as to be in substance different from
what it was when it emerged out of the legislature . the
respondents companytention that the statute should be hold to
be valid in respect of wagering companytracts even though
invalid as regards other forward companytracts must therefore
also be rejected. our companyclusion therefore is that the impugned statute does
number fall within item 62 of the state list and that it is
beyond the legislative companypetence of the state legislature. the appellants were therefore entitled to appropriate
reliefs as prayed for in their petition under art.