PETITIONER:
BIRBAL SINGH
Vs.
RESPONDENT:
KEDAR NATH SHARMA
DATE OF JUDGMENT02/11/1976
BENCH:
CHANDRACHUD, Y.V.
GUPTA, A.C.
CITATION:
1977 AIR 1 1977 SCR (2) 1
1976 SCC (4) 691
ACT
Representation of the People Act, 1951 Sec.
123(4)--Corrupt practice-Publishing false and defamatory
Pamphlets & editorial approach in appreciating oral evidence
about commission of corrupt practice in election petition.
Evidence Act, 1872--Testimony of interested witnesses
whether can be rejected out right.
HEADNOTE
In the Rajasthan Legislative Assembly elections held in
March,1972, the respondent defeated the appellant by a
margin of over 22000 votes. The appellant filed an elec-
tion petition in the Rajasthan High Court challenging the
election of the respondent alleging that the respondent and
his election agent committed the following corrupt prac-
tices.
(1) A pamphlet containing defamatory and
false statements touching the personal
character of the appellant was distributed by
the respondent and his election agent in a
meeting on 23-2-72 at Nehru Park.
(2) Several copies of a Weekly newspaper
called Patal Shakti dated 27-2-1972
containing a scurrilous editorial were
distributed by the respondent and his election
agent at a meeting of the Socialist Party held
at Public Park on 27-2-1972.
The High Court dismissed the election petition filed by
the appellant. The High Court discarded the evidence of the
appellant’s witnesses on the ground that they were interest-
ed witnesses.
This Court by consent of parties remitted the following two
additional issue to the High Court with liberty to the
parties to lead evidence on those issues.
(1) Whether the pamphlet was printed at the
instance and with the consent of the
respondent and whether the payment for that
pamphlet was made by his election agent ?
(3) Whether the editorial in Patal Shakti
was read over in the meeting of 27-2-1972 by
Vijay Kumar Talwar in the presence of the
respondent.
The High Court after remand held in favour of the respondent
on both the issues.
Dismissing the appeal under section 116A of the Repre-
sentation of the People Act, 1951,
HELD: 1. It is matter of common occurrence in election
petitions that parties manage to collect a large volume of
oral evidence in support of allegations of corrupt practice.
Very often, the allegations are connected and are attempted
to be established with the evidence of partisan witnesses,
On rare occasions when the allegations are true, untrue
evidence is led to strengthen the charges.
[4D-E]
2. The High Court should not have brushed aside the evidence
of the appellant’s witnesses merely on the ground. that
they belong.to the, same party as the appellant or that they
were otherwise interested in his success in the
2--1458SCI/76
2
election. Interested witnesses are not necessarily false
witnesses though the fact that the witness has a personal
interest or stake in the matter must put the court on its
guard. The evidence of such witnesses must be subjected to
a closer scrutiny and the Court may in a given case be
justified in rejecting that evidence unless it is corrobo-
rated from an independent source. The reasons for corrobo-
ration must arise out of the context and the texture of
evidence. Even interested witnesses may be interested in
telling the truth to the Court and, therefore, the Court
must assess the testimony of each important witness and
indicate its reasons for accepting or rejecting it. A broad
and general comment that a particular witness is an election
agent of a candidate cannot therefore be relied on is not
a judicial assessment of evidence. Evidence can be assessed
only after a careful analysis. [4F-H]
3. Since the High Court rejected the evidence of the
appellant on the omnibus ground that the witnesses were
interested, this Court went through the relevant evidence
and on a consideration of that evidence came to conclusion
that it is impossible to accept the allegations of corrupt
practice made against the respondent. [5A-B]
4. The allegations that the respondent and his agent
distributed the pamphlet in the meeting held at the Nehru
Park was disbelieved by this Court on the following grounds:
(a) The meeting was addressed by the Prime
Minister and over a lakh of people were
present. It is fantastic to think that in a
meeting called by the rival party which was so
largely attended the respondent and his
election agent would be so foolish as to
distribute a scandalous pamphlet.
(b) None of the recipients of the highly
defamatory document took any action after
receiving it.
(c) It is impossible to accept the
allegation of the appellant that the
pamphlets were distributed to the Additional
District Magistrate and the Circle Officers
who were present at that meeting in their
official capacity.
(d) Neither the Additional District
Magistrate nor the Circle Officer produced a
copy of the pamphlet nor did they take any
action on the pamphlet.
(e) The election agent of the respondent is
an advocate and the respondent had won 3
consecutive assembly elections by a good
margin. It is impossible that these two old
hands would so openly and incontrovertibly
lend an easy ground for the success of a
possible election petition.
(f) Although the matter was remanded no
proper evidence was led by the appellant. The
appellant tried to lead evidence on facts
which even if proved would not decide the
issue in his favour.
[5B-H,
6A-C]
5. The Court negatived the appellant’s contention that
the editorial was published with the consent of the respond-
ent or his agent for the following reasons:
(a) Gyan Devi Talwar the mother of Vijay Kumar Talwar is
styled as the Director of Patal Shakti. Raj Kumar Sethi is
said to be the Chief Editor of the weekly while Vijay Kumar
Talwar is an Assistant Editor. The proceedings of the
meetings of the Congress workers of 18-2-1972 show that
the said meeting which was called by the party to which the
appellant belonged was attended amongst others by Gyan Devi
Talwar, Rat Kumar Sethi, Madan Lal Kanda, Chandram Sherpal
one of the Assistant Editors of Patal Shakti. The said
meeting resolved unanimously to support the candidature of
the appellant.
3
(b) Gyan Devi Talwar had called a meeting
of the Trade Union workers to support the
appellant’s candidature.
(c) Seeing that persons closely connected
with the Journal had taken a prominent part in
the appellant’s election campaign, it is
absurd to think that these very persons would
be parties to the publication of the
editorial.
(d) The receipt of Rs. 2000/- alleged to
have been paid by the respondent for
publication of the editorial is uninspiring.
(e) Raj Kumar Sethi has perjured himself on
several important points.
(f) The letter of the appellant alleged to
have been addressed to the editor and the
reply of the editor are got up documents
prepared for supporting the appellant’s case
that the editorial was published at the
instance of the respondent.
(g) Raj Kumar Sethi was pliable and could
for consideration be made to say different
things at different times.
(h) The evidence of the appellant suffers
from serious infirmities.
(i) The evidence of the other witnesses
only shows that several witnesses conspired to
create false evidence. [6E-H, 7A-H, 8A-H,
9A-C]
JUDGMENT
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1118 of 1973.
(From the Judgment and Order dated 30-3-1973 of the
Rajasthan ’High Court in Election Petition No. 5/72).
B.L. Bhargava, S.N. Bhargava, S.K. Jain, I. Makwana
and S.M. Jain, for the Appellant.
G.N. Lodha, J.S. Rustogi and S.S. Khanduja for the Respond-
ent.
The Judgment of the Court was delivered by
CHANDRACHUD, J.--In the general elections to the
Rajasthan ’Legislative Assembly held in March 1972 from the
Ganganagar constituency, the respondent who was sponsored by
the Samyukt Socialist Party defeated the appellant, a
Congress (R) candidate, by over 22000 votes. The appel-
lant filed Election petition No. 5 of 1972 in the Rajasthan
High Court challenging the election of the respondent on
the ground of corrupt practices committed by him and his
election agent Bhragirath Singh. The petition having been
dismissed the election petitioner has filed this appeal
under section 116A of the Representation of the People Act,
1951.
We are concerned in this appeal with two corrupt prac-
tices said to have been committed by the respondent. It is
alleged, firstly, that a pamphlet (Ex. 1 ) was distributed
by the respondent and his election agent in a meeting held
on February 23, 1972 at Nehru Park, Ganganagar. The second
corrupt practice alleged against the respondent is that
several copies of a weekly newspaper called "Patal Shakti"
dated February 27, 1972 containing a scurrilous editorial
were distributed by the respondent and his election agent at
a meeting of the Socialist ’Party held a, Public Park,
Ganganagar on the 27th.
4
The editorial is also said to have been read out in the
meeting by one Vijay Kumar Talwar. The allegations con-
tained in the editorial and in the pamphlet (Ex. 1) to which
the editorial refers are indisputably defamatory of the
appellant. The editorial (Ex. 2) contained in the Patal
Shakti is alleged to have been written at the instance of
the respondent and in a manner, paid for by him.
This appeal had come up for hearing on August 6, 1975
when by consent of parties two additional issues were remit-
ted by this Court to the High Court, with liberty to the
parties to lead evidence on those issues. The first issue
was whether the pamphlet (Ex. 1) was .printed at the in-
stance and with the consent of respondent and whether the
payment for that pamphlet was made by his election agent
Bhagirath Singh. The second issue remitted to the High
Court was whether the editorial (Ex. 2) in Patal Shakti was
read over in the meeting of February 27, 1972, by Vijay
Kumar Talwar in the presence of the respondent. By its
judgment dated April 8, 1976, the High Court after consider-
ing the fresh evidence led by the parties held in favour of
the respondent on both the issue. Those findings are chal-
lenged by the appellant in this appeal.
The appeal is devoid of substance and this we feel
constrained to say in spite of a careful argument advanced
on behalf of the appellant by Shri M.B.L. Bhargava. In view
of some of the fundamental circumstances to which we will
presently refer, it is unnecessary to discuss fully the
evidence of each one of the witnesses examined by the par-
ties on the two corrupt practices attributed to the respond-
ent. It is a matter of common occurrence in election peti-
tions that parties manage to collect a large volume of oral
evidence in support of the allegations of corrupt practice.
Very often, the allegations are concocted and are attempted
to be established with the evidence of partisan witnesses.
On rare occasions when the allegations are true untrue
evidence is led to strengthen the charges.
Several witnesses were examined by the appellant for
proving that in a meeting held on February 23, 1972 the
pamphlet (Ex. 1) was distributed by the respondent and his
election agent. We agree with the learned counsel for the
appellant that the High Court should not have brushed aside
the evidence of those witnesses on the mere ground that they
belonged to the same party as the appellant or were
otherwise interested in his success in the election.
Interested witnesses are not necessarily false witnesses
though the fact that the witness has a personal interest or
stake in the matter must put the court on its guard. The
evidence of such witnesses must be subjected to a closer
scrutiny and indeed the court may in a given case be justi-
fied in rejecting that evidence unless it is corroborated
from an independent source. But the reasons for corrobora-
tion must arise out of the context and texture of evidence.
Even interested witnesses may be interested in telling the
truth to the court and therefore the court must assess the
testimony of each important witness and indicate its reasons
for accepting or rejecting it. A broad and general comment
that a particular witness is an election agent of a candi-
date and cannot therefore be relied upon is not a judicial
assessment of evidence.
5
Evidence can be assessed only after a careful analysis.
Since the High Court has, by and large, rejected the evi-
dence led by the appellant on the omnibus ground that the
witnesses are interested, we have gone through the relevant
evidence with the help of the respective counsel. It is on
a careful consideration of that evidence that we reached
the conclusion that it is impossible to accept the allega-
tion of corrupt practice made against the respondent.
The first allegation against the respondent is that
he and his election agent Bhagirath Singh distributed the
pamphlet (Ex. 1) in a meeting held on February 23, 1972 at
the Nehru Park, Ganganagar that meeting was addressed by the
Prime Minister and over a lakh of people were present. It
is fantastic to think that on the heels of such a largely
attended meeting convened under the auspices of the rival
party, the respondent and his election agent would be so
foolish as to distribute a scandalous pamphlet of the type
in issue. It is also difficult to believe that none of the
recipients of this highly defamatory document took any
action after receiving it. In a town seized by election
fever, the poll being just a few days ahead, it is impossi-
ble that even rival partymen looked at the incident with
such cool unconcern. Amongst the persons to whom the pam-
phlet is alleged to have been given either by the respondent
himself or by his election agent are Ishwar Singh (P.W. 7)
and Arjun Singh (P.W. 20). Ishwar Singh was. an Additional
District Magistrate whereas Arjun Singh was. the Circle
Officer. Both of these gentlemen were present at the
meeting at Nehru Park in their official capacity for ensur-
ing peace and order. It strains one’s credulity to believe
that the respondent ’and his election agent would take the
imprudent risk of distributing the pamphlet to these high
Government officers. Neither Ishwar Singh nor Arjun Singh
was able to produce a copy of the pamphlet nor indeed did
either of them take any steps whatsoever after the alleged
receipt of the Pamphlet. Bhagirath Singh, the election
agent of the respondent, is an advocate by profession while
the respondent had won three consecutive Assembly elections
in 1962, 1967 and 1972. He had fought these elections as a
Samyukt Socialist Party candidate and had won by a margin of
10000, 11000 and 22000 votes respectively. It is impossible
in the very nature of things that these two old hands would,
so openly and incontrovertibly, lend an easy ground for the
success of a possible election-petition.
The additional issue on which a finding was called for
by this Court is whether the payment for the pamphlet was
made by Bhagirath Singh. It is amusing that in spite of a
fresh opportunity accorded by this Court to the appellant to
prove his case, what he did was to lead evidence to make
nonsense of the additional issue. Instead of showing that.
the charges of printing. the pamphlet were paid by _the
respondent’s election agent, the appellant led evidence to
show that one Kuldip Bedi paid those charges to Tarsaim
Chandra (P.W. 24) who is alleged to have printed the pam-
phlet. Tarsaim Chandra did not produce any receipt for the
payment and offered the flimsy explanation that he had given
his printing press for running to a person called Mehar
Singh who had not returned to him the records of the press.
The appellant had cited Kuldip Bedi as a witness but did not
examine
6
him and the appellant’s counsel conceded fairly that there
is no evidence on the record to show that Kuldip Bedi bears
any connection with the respondent. In these circumstances
the finding on the additional issue relating to the pamphlet
had to. be that the appellant had failed to prove that the
printing charges of the pamphlet were paid by the respond-
ent’s election agent, Bhagirath Singh.
Others who speak of the distribution of the pamphlet
are the appellant himself (P.W. 1 ), Khetpal ( P.W.
10), Gulab Rai (P. W. 11), Devi Datt (P.W. 12), Nathuram
(P.W. 13) and Madan Lal Kanda (P. W. 16) besides of course
Ishwar Singh, the Additional District Magistrate (P.W. 7)
and Arjun Singh the Circle Officer (P.W. 20). The evidence
of these witnesses has been rejected by the High Court and
for reasons which we have mentioned above we feel that the
High Court was perfectly justified in refusing to place
reliance on the evidence of these interested witnesses who
told an utterly incredible story to the court. Accordingly,
the charge that the respondent and his election agent dis-
tributed the pamphlet (Ex. 1) must fail.
Coming to the second charge of corrupt practice, the
case of the appellant is that the editorial which appeared
in the "Patal Shakti" of February 27 was written at the
instance of the respondent and that the issue of the news-
paper was read and distributed at a meeting of the Socialist
Party which was held at Public Park, Ganganagar, on the 27th
itself. The matter contained in the editorial is highly
defamatory and we entertain but little doubt that anyone who
reads the editorial would carry an ugly impression of the
appellant’s political image. But the question for decision
is whether the respondent is responsible for the publica-
tion and whether as stated in additional issue No, 2 which
was remanded to the High Court, the editorial was read over
by Vijay Kumar Talwar in the meeting of the 27th in the
presence of the respondent.
One Gyan Devi Talwar, the mother of Vijay Kumar Talwar,
is styled as the "Sanchalika" or the Director of Patal
Shakti. Raj Kumar Sethi is said to be the Chief Editor of
the weekly, while Vijay Kumar Talwar is an Assistant Editor.
Learned Counsel for the appellant has naturally placed
great reliance on the evidence of Raj Kumar Sethi (PW. 5)
who, being the Chief Editor of the newspaper, should be in
the best position to know whether the defamatory matter
which appeared in the issue of February 27 was inserted at
the instance. of the respondent. A large number of wit-
nesses were examined by the appellant on this question, the
more important of them being the appellant himself (P.W. 1),
Raj Kumar Sethi (P.W. 5), Madan Lal Kanda (P.W, 10), Radhey
Shyam (P.W. 17), Om Prakash (P.W. 18), Harbeant Singh (P.W.
21), Banwari Lal (P.W. 22) and Avinash (P.W. 23). These
witnesses, we feel no doubt, have concocted an utterly
false story as will be transparent from the following cir-
cumstances.
On February 18, 1972 a meeting of about 300 Congress
workers was held in the Block Congress Committee, Gangana-
gar. The proceedings of that meeting are recorded in the
minutes, Ex. A/24, which
7
were produced by Kesho Ram Garg (P.W. 12), who has been
the Secretary of the Congress Committee since 1975. The
appellant’s counsel objected to the admissibility of the
document but no such objection having been taken in the
trial court, we are unable to entertain it here. The
minutes show that the meeting was attended amongst others by
Gyan Devi Talwar, Raj Kumar Sethi (P.W. 5), Madan Lal Kanda
(P.W. 16), Om Prakash (P.W. 18), Harbeant Singh (P.W.
21), Banwari Lal (P.W. 22), Chand Ram Sherwal, one of the
Assistant Editors of Patal Shakti and by Manphool Singh an
ex-Deputy Minister in Rajasthan who is the brother of the
appellant. The meeting resolved unanimously to support the
candidature of the appellant. In this context it is diffi-
cult to believe that the newspaper of which Gyan Devi Talwar
was the Director and Raj Kumar Sethi is its Chief Editor
could possibly be persuaded to print and publish an editori-
al so highly defamatory of a candidate in whose success they
were so keenly interested. The second circumstance which
has an important bearing on this question is that on Febru-
ary 20, 1972 Gyan Devi Talwar had called a meeting of
Trade Union Workers for supporting the appellant’s candida-
ture. That meeting was attended, amongst others, by Raj
Kumar Sethi and Vijay Kumar Talwar, the main speaker being
Gyan Devi herself. The weekly, ’Patal Shakti’ was started
on the eve of the elections on January 26, 1972 the object
of starting the journal being obviously to undertake an
election campaign on behalf of the Congress (R) candidates.
Seeing that persons closely connected with the journal had
taken a prominent part in the appellant’s election-campaign,
it is absurd to think that ’these very persons would be
parties to the printing and publication of the editorial.
Raj Kumar Sethi says in his evidence that the respondent
paid him 200 rupees as the price of the publication and this
is attempted to be corroborated by the production of the
counterfoil of a receipt showing that the newspaper had
received 200 rupees from the respondent on the 27th. The
receipt, however, apart from being otherwise uninspiring
says that the amount was paid for charges of an advertise-
ment. The argument of the appellant’s counsel that the
editorial was in the nature of an advertisement in favour of
the respondent is too naive for our acceptance. Besides, it
is not likely that the respondent would pay Rs. 200 under a
receipt and create evidence against himself to show that
he was a party to the defamatory publication.
Raj Kumar Sethi has perjured himself on several impor-
tant points. In his enthusiasm to support the cause of the
appellant, he said his evidence ’that copies of the news-
paper were distributed in a meeting held at Nehru Park.
The election petition speaks of a meeting in Public Park and
it is common ground that the two places are distinct and
separate. Raj Kumar Sethi’s sense of honour can be as-
sessed in reference to the fact that a creditor had to file
a suit for a paltry sum of Rs. 450 against him and after a
decree was passed in that , suit execution proceedings had
to be commenced to recover the amount.
8
It is alleged by the appellant that on seeing ’the
editorial he sent a letter, Ex. 8, on the 27th itself to
Raj Kumar Sethi asking him to explain at whose instance the
editorial was published. Raj Kumar wrote a reply (Ex. 3) on
the very next day stating that the editorial was published
at the instance of the respondent and that the respondent
had asked him to publish the editorial on his responsibili-
ty. Both Ex. 3 and Ex. 8 are got-up documents prepared for
supporting the appellant’s case that the editorial was
published at the instance of the respondent. We have
already indicated that in the very nature of things it is
impossible that Raj Kumar Sethi, Gyan Devi Talwar and Vijay
Kumar Talwar who were interested in the success of the
appellant would permit a publication, so highly defamatory
of the appellant.
There is an extremely interesting aspect of this matter
to which we must refer. During the pendency of the election
petition on October 23, 1972 Raj Kumar Sethi made an affi-
davit stating that he was an active member of the Congress,
that he had supported the appellant in the elections held in
1972, that the letter (Ex. 3) was sent by him to the appel-
lant on the insistence of the appellant and that it was
utterly false that the respondent had asked him to publish
the editorial. Confronted by this affidavit, to which his
attention was pointedly drawn in cross-examination, he
trotted out the story that his lawyer, Kesho Ram Garg, had
taken the affidavit from him by making a misrepresentation
that the document was a deed of compromise. Raj Kumar
Sethi says that he put his signature on the document in the
belief that the representation made by his lawyer was true.
In one part of his evidence he said that he had put his
signature on the document voluntarily, believing in the
representation made by his lawyer. Quite a different
version was given by him later that he was forced to sub-
scribe to the document. How false the story is can be
judged from the fact that Kesho Ram Garg, who is alleged to
have deceived him, was still representing him in the execu-
tion petition filed against him. The witness had the
temerity to write a letter, Ex. A/3, to the Chief Justice of
Rajasthan complaining that an affidavit was obtained from
him by fraud and misrepresentation. It is obvious that the
witness was pliable and could for consideration be made to
say different things at different times.
The evidence of the appellant Birbal Singh suffers from
equally serious infirmities. He speaks of the distribution
of the newspaper in a public meeting held on the 22nd at
Public Park but in the election petition, as originally
flied, his case was that the newspaper was distributed
throughout Ganganagar. The election petition also mentioned
that the editorial was read at the meeting but the allega-
tion that it was distributed to several hundred persons is a
later improvement. The meeting at which the newspaper was
distributed was held under the auspices of the Socialist
Party which renders it unlikely that the appellant had at-
tended the meeting. And if the appellant was present it
the meeting, it seems to us strange that even after noticing
that he defamatory matter which had appeared in the morn-
ing’s editorial was being freely distributed, he left the
meeting without a protest. It
is interesting that the appellant did not say in his exami-
nation-in-chief that he attended the particular meeting in
which the newspaper was distributed. It occurred to him
for the first time in his cross-examination to say that he
was present at the meeting and was an eye-witness to the
distribution of the newspaper.
Ex. 5, which is a draft of the editorial, is said to be
in the hand of Chand Ram Sherwal, an Assistant Editor of
Patal Shakti. Chand Ram was not examined in the case.
Chand Ram was present in the meeting of the 18th February
which unanimously supported the candidature of the appel-
lant. This makes it difficult to believe that he would
write. out the draft so highly defamatory of the appellant.
Why Vijay Kumar Talwar who was also interested in the appel-
lant’s election and who is the son of the Director of the
newspaper should sign the draft is more than we can under-
stand.
The evidence of the other witnesses like Madan Lal
Kanda, Radhey Shyam, Om Prakash, Harbeant Singh, Banwari Lal
and Avinash can carry the matter no further except perhaps
to show that not one or two but several witnesses conspired
to create false evidence to show that the editorial which
appeared in the Patal Shakti of February 27, 1972 was
written at the instance of the respondent and that Vijay
Kumar Talwar read it out in a public meeting.
Accordingly, we are in entire agreement with the High
Court that no reliance can be placed on the testimony of the
witnesses examined by the appellant to prove the charges of
corrupt practice against the respondent. Not only are the
charges not proved beyond a reasonable doubt, but we are of
the opinion that there is no substance whatsoever in the
charges.
Consequently, we confirm the judgment of the High Court
and dismiss the appeal with costs.
P.H.P. Appeal
dismissed.
10
MUNICIPAL CORPORATION OF DELHI
V.
SURESH CHANDRA JAIPURIA & ANR.
November 3, 1976
[A. N. RAY, C.J., M.H. BEG AND JASWANT SINGH, JJ.]
Civil Procedure Code Sec. 115--Concurrent decisions on
question of interference by High Court, whether justified
SpeCific Relief Act, 1963 S. 41 (h) application.
The respondent purchased a house, and under the sate-
deed became responsible for paying the house-tax subsequent
to the purchase. On his failure to pay the same, the appel-
lant corporation started proceedings against him for the
realisation of dues. In the course of a suit for permanent
injunction, the respondent’s application for an interim
injunction was rejected by two courts. On further appeal,
the High Court granted him interim injunction on the ground
that there was a prima facie case even though agreeing with
the appellate court that the balance of convenience was
against such grant.
Allowing the appeal the Court
HELD: 1. Section 41 (h) of the Specific Relief Act,
1963, lays down that an injunction, which is a discretionary
equitable relief, cannot be granted when an equally effica-
cious relief is obtainable in any other usual mode or pro-
ceedings except in cases of breach of trust. [13E-F]
2. While exercising its jurisdiction under s. 115 the
High Court is not competent to correct assumed erroneous
findings of fact. The High Court had itself erred plainly
both in holding that the courts below had not taken a cor-
rect view of the prima facie case which existed here and
that the question of balance of convenience was irrelevant.
[12C-D, 13F-G]
3. High Court had overlooked legally possible grounds of
interference under section 115 C.P.C. [14-A-B]
Baldevdas Shivlal & Anr. v. Filmistan Distributors
(India) P. Ltd. & Ors. [1970] 1 SCR 435; D.L.F. Housing and
Construction Co. P. Ltd. New Delhi v. Sarup Singh & Ors.,
[1970] 2 SCR 368; The Managing Director (MIG) Hindustan
Aeronotics Ltd. Balanagar, Hyderabad & Anr. v. Ajit Prasad
Tarway, Manager (Purchase and Stores) Hindustan Aeronotics
Ltd. Balanagar, Hyderabad, A.I.R. 1973 S.C. 76; applied.
M/s Mechelec Engineers & Manufacturers v. M/s Basic
Equipment Corporation [1977] 1 S.C.R. 1060 referred to.
Dewan Daulat Ram Kapur v. New Delhi Municipal Committee
& Anr. ILR 1973 (1) Delhi 363 distinguished.
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1202 of 1976.
Appeal by Special Leave from the Judgment and Order
dated the 21st Feb. 1975 of the Delhi High Court in Civil
Revision No. 479 of 1974.
F.S. Nariman, B.P. Maheshwdri and Suresh Sethi, for
the Appellant.
11
Mahendra Narain Advocate of Rajendra Narain & Co., for
the Respondent.
The Judgment of the Court was delivered by
BEG. 3. After issuing a notice to show cause why special
leave should not be granted, this Court granted, on 13th
October, 1976, the leave prayed for to appeal against the
judgment and order of a learned Judge of the Delhi High
Court. That Court had interfered under Section 115 Civil
Procedure Code, with the concurrent findings of the Trail
Court and the Appellate Court in this case that, as the
plaintiff could not make out a prima facie case, no interim
injunction could be granted to the respondent to restrain
the appellant, the Municipal Corporation of Delhi, from
realising a sum of Rs. 27,216/on account of house tax from
the plaintiffs pending the disposal of a suit for a perma-
nent injunction. This Court directed a hearing of this
appeal on 28th October, 1976. Accordingly, the appeal is
now before us.
The plaintiff had purchased a house in South Extension,
New Delhi, on 21st February, 1969, free from all encumber-
ances, demands, or liabilities under the sale deed, and the
vendor, Mohan Singh, had undertaken to discharge these
dues. It was, therefore, decided in a previous suit that
the defendant-appellant could not recover the whole amount
sought to be recovered as house tax from him. The respondent
was absolved from liability for the period before the sale.
But, the plaintiff was liable to pay the tax for the period
after the purchase. He had also paid Rs. 6,992/-. It
appears that proceedings for realisation of dues subsequent
to the purchase had then been taken by the appellant
corporation. The plaintiff’s suit for a permanent injunc-
tion was brought on the ground that this assessment of
house tax had proceeded on an erroneous basis.
It is matter of admission between the parties that the
house on which the house tax was levied had not been let to
any tenant since its construction. The Trail Court had
found that, from the plaintiff’s statement of accounts of
tax, it appeared that the demand which was being recovered
from him was in respect of the period subsequent to 31st
March. 1969 and was based on a rateable value of Rs.
37800/per annum which had been provisionally adopted subject
to results of proceedings in Courts of appropriate jurisdic-
tion as to what the correct basis of assessment was. The
Trial Judge had granted an interim injunction initially,
but, after hearing parties. had vacated it on 18th October,
1973, as he had found that no prima facie case was made out
to grant it.
On an appeal by the plaintiff, the Appellate Court,
after considering all the questions raised before it, dis-
missed the appeal. It gave the following finding on the
question of balance of convenience raised before it:
"The balance of conveniences is also in favour of the
defendant. The defendant renders services as a civic body
most of the amount which it spends has to come from
12
owners of property in.the form of property taxes. If the
plaintiffs do not pay the property tax then the defendant
might not be able to carry out its duty. The plaintiffs
have also been unable to show that they would suffer
irreparable injury if an injunction is not granted. to them.
If they ultimately prove that they are not liable to pay
full amount demanded by the defendant as property tax
then the plaintiffs could compel the defendant either to
refund the amount realised in excess or to adjust the mount
recovered in excess towards property tax for future years.
The plaintiffs do not suffer irreparable injury if they arc
not granted the temporary injunction."
The High Court, while agreeing with the view of the
Appellate Court that the balance of convenience was in
favour of discharging the interim injunction, held that, as
there was a prima facie case that the assessment had been
erroneously made, the principle of balance of convenience
did ’not apply here. The learned Judge thought that the
principles of assessment applicable to such cases had been
already laid down by the Full Bench of the Delhi High Court
in Dewan Daulat Ram Kapur v. New Delhi Municipal Committee &
Anr.(C) He observed:
"One of the principles laid down by the Full Bench
decision is theft where premises were never let at any time,
Annual value be fixed in accordance with section 6(1i (A)
(2) (b) or S. 6(1) (B) (2) (b) by ascertaining market value
of land and reasonable cost of construction. The facts
noticed above, but missed by the Courts below, prima facie
establish that the property was never let out; the prima
facie materials which are available, inclusive of what the
D.M.C. itself had conceded, show the plaintiffs were occupy-
ing the property for their own use. The plaintiffs’ case
therefore, prima facie, falls within the above principle.
Failure to perceive the above had resulted in the Courts
below declining to exercise jurisdiction vested in them in
the manner it should have been exercised".
Hence, the learned Judge interfered and granted the
interim injunction prayed for by the plaintiff.
Mr. F.S. Nariman, appearing for the appellant Corpora-
tion,’ points out that Dewan Daulat Ram Kapur’s case (supra)
was one where premises had been let, but, in the case before
us, it was a matter or admission by both sides that the
premises had never been let out to a tenant. Section 6(1)
(A) (2) (b) of the Delhi Rent Control Act relates to cases
where standard rent has to be fixed of residential premises
let out at any time on or after 2nd June, 1944. And, Section
6(1) (B) (2) (b) of the Delhi Rent Control Act relates to
premises other than residential premises which had been let
out at any time after 2nd June, 1944. The Full Bench deci-
sion of the Delhi High Court in Dewan Daulat Ram Kapur’s
case (supra)
(1) I.L.R. 1973 (1) Delhi p.363.
13
was that it was not incumbent on the Corporation to ascer-
tain the hypothetical standard rent of premises in accord-
ance with the provisions of the Rent Act in order to fix the
annual value or rateable value where premises had been let
but no standard rent had been fixed and assessment was
sought to be made on the basis of agreed rent. It was also
decided there that in eases before the High Court on that
occasion, reasonable cost of construction as well as the
market price of land to be taken into account in assessing
the property tax.
It is difficult for us to, see what bearing the provi-
sions cited from the Delhi Rent Control Act or the Full
Bench decision of the High Court could have on the case now
before us. It seems 10 us that Mr. Nariman is correct in
submitting that the learned Judge of the High Court had
himself misapprehended the law in holding that the Courts
below had failed to. find a prima facie case because of a
misconception of law. However as no one has appeared on the
date of the final hearing on behalf of the respondent, who
had appeared through Counsel to answer the show cause notice
issued by this Court before granting special leave, we
refrain from deciding the question whether the provisions
cited by the learned Judge of the Delhi High Court have any
bearing on the case before us or not. This is a matter which
will be decided in the suit itself. We, therefore, leave it
expressly open for determination.
Mr. Nariman, learned Counsel for the Corporation, is we
think, on very firm ground in contending that balance of
convenience could not be ignored in such cases and that the
learned Judge of the High Court erred in holding that it
could be.
It also seems that the attention of the learned Judge
was not directed towards section 41 (h) of the Specific
Relief Act, 1963, which lays down that an injunction, which
is a discretionary equitable relief, cannot be granted when
an equally efficacious relief is obtainable in any other
usual mode or proceeding except in cases of breach of trust.
Learned Counsel for the appellant Corporation points out
that there was the ordinary machinery of appeaL, under
section 169 of the Delhi Municipal Corporation Act, 1957,
open to the assessee respondent. It had not even been found
that the respondent was unable to deposit the necessary
amount before filing the appeal. However, we abstain from
deciding the question whether the suit is barred or not on
this ground. All we need say is that this consideration also
has a bearing upon the question whether a prima facie case
exists for the grant of an interim injunction.
In M/s. Mechelec Engineers & Manufacturers v. M/s.
Basic Equipment Corporation(D, also we found very recently
that, as in the ease before us now, a learned Judge of the
Delhi High Court had overlooked the principles governing
interference under Section 115 Civil Procedure Code laid
down by this Court in Baldevdas Shivlal & Anr. v. Filmistan
Distributors (Indict) (P) Ltd. & Ors.(2); D.L. Housing &
(1) [1977] I S,C.R. 1060. (2) [1970] 1 S, C.R. 435.
14
Construction Co. Pvt. Ltd. New Delhi v. Sarup Singh &
Ors(1).; The Managing Director .(MIG) Hindustan Aeronautics
Ltd. Balanagar, Hyderabad & .Anr. v.Ajit Prasad Tarway,
Manager (Purchase & Stores) Hindustan Aeronautics Ltd.,
Balanagar, Hyderabad.(2). We direct the attention of the
learned Judges concerned to the law declared by this Court.
We allow this appeal and set aside the judgment and order
of the Delhi High Court and restore that of the Appellate
Court. The parties will bear their own costs in this
Court.
M.R. Appeal allowed.
(1) [1970] 2 S.C.R. 368.
(2)A.I.R. 1973 S.C. 76.
15