PETITIONER:
GOVINDBHAI GORDHANBHAI PATEL & ORS.
Vs.
RESPONDENT:
GULAM ABBAS MULLA ALLIBHAI & ORS.
DATE OF JUDGMENT17/12/1976
BENCH:
SINGH, JASWANT
RAY, A.N. (CJ)
BEG, M. HAMEEDULLAH
CITATION:
1977 AIR 1019 1977 SCR (2) 511
1977 SCC (3) 179
ACT
Indian Contract Act, 1872, s. 56, doctrine of frustra-
tion, when applicable.
Bombay Tenancy and Agricultural Lands Act, 1948, s.
63(1), Permission for sale, whether administrative, judicial
or quasi-judicial act.
Civil Procedure Code, doctrine of res judicata, whether
applicable to proceeding dismissed for formal defect Wheth-
er debars authority exercising concurrent jurisdiction from
entertaining subsequent proceedings for same relief.
HEADNOTE
The respondents agreed to sell their agricultural land
to the appellants. The title deeds and possession of the
land were given to the appellants and both parties jointly
applied to the District Deputy Collector, Thana Prant, under
s. 63 of the Bombay Tenancy and Agricultural Lands Act,
1948, seeking permission for the sale. The permission was
refused on the ground that the intending purchaser had
failed to obtain a certificate from the Collector under Rule
36(f) of the Bombay Tenancy and Agricultural Lands Rules
1956, that he intended to take to the profession of agricul-
ture and was capable of cultivating land personally. The
appellants thereafter obtained the requisite sanction from
the Additional Collector, Thana, in spite of the respond-
ents’ non-cooperation. A suit by the respondents for de-
claring the agreement void in law was decreed by the Trial
Court. In appeal, the High Court opined that the Prant
Officer’s refusal to permit the sate had rendered the agree-
ment impossible of performance.
Allowing the appeal, the Court.
HELD: (1) The parties are governed by s. 56 of the
Contract Act according to which a contract becomes void only
if something supervenes after its execution which renders it
impracticable or impossible of performance. The order of
the Prant Officer was not of such a catastrophic character.
[519A-C]
Satyabrata Ghose v. Mugneeram Bangur & Co. & Anr. [1954]
SCR 310; Smt. Sushila Devi & Anr. v. Hari Singh & Ors.
[1971] 2 S.C.C. 288 and Tamplin Steamship Co. Lid v. Anglo-
Mexican Petroleum products Co. Ltd. [1916] 2 A.C. 397, 403,
applied.
Joseph Constantine Steamship Line Ltd. v. Imperial
Smelting Corporation Ltd. [1942] A.C. 154 at 168, referred
to.
(2) The function which the Collector or the authorised
officer discharges under the proviso to s. 63(1) of the
Bombay Tenancy and Agricultural Lands Act is an administra-
tive one and not judicial or quasi-judicial. [519G-H]
The State of Madras v. C.P. Sarathy & Anr. AIR 1953 S.C.
53; A.K. Bhaskar v. Advocate General AIR 1962 Kerala 90;
Shantanand v. Advocate General AIR 1955 All. 372; Shrimali
Lal v. Advocate General AIR 1955 Raj. 166 and Abdul Kasim v.
Md. Dawood AIR 1961 Mad. 242. similarity marked.
(3) The dismissal of a proceeding by an authority not on
merits but merely on account of a formal defect will not
attract the applicability of the general principles of res
judicata and will not debar the authority exercising concur-
rent jurisdiction from entertaining the subsequent proceed-
ings for the same relief and passing proper orders on
merits. [520 F-H]
Putali Mehati v. Tulia I.L.R. 3 Bom. 223 and Pethaparu-
mal v. Murugandi 18 Mad. 466, applied.
512
JUDGMENT
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1860 of 1968.
(Appeal by Special Leave from the Judgment and decree
dated the 29th January, 1968, of the Bombay High Court in
Appeal No. 472/ 60).
R.P. Bhatt, B.R. Agarwala and Janendra Lal, for the appel-
lants.
Sachin Chaudhary, Prakash Mehta, Ravinder Narain and
K.L. John of M/s. 1. B. Dadachanji & Co. for the respond-
ents.
The Judgment of the Court was delivered by--
JASWANT SINGH, J. This appeal by special leave which is
directed against the judgment and decree dated January 29,
1968, of the High Court of Judicature at Bombay involves a
question of the applicability or otherwise of the doctrine
of frustration embodied in section 56 of the Contract Act
which to use the words of Viscount Maugham in Joseph Con-
stantine Steamship Line Limited v. Imperial Smelting Corpo-
ration Ltd. (1) "is only a special case of the discharge of
contract by an impossibility of performance arising after
the contract was made" or to use the language of Mukherjea,
J. in Satyabrata Ghose v. Mugneeram Bangut & Co. & Anr.(2)
"is really an aspect or part of the law off discharge of
contract by reason of supervening impossibility or illegali-
ty of the act agreed to be done and hence becomes within the
purview of section 56 of the Indian Contract Act."
The facts giving rise to this appeal lie in a short
compass and may be briefly stated: The respondents who are
the owners of four plots of agricultural land admeasuring 7
acres and 13 gunthas and a bungalow standing thereon situate
in village Majwade, near Pokhran Talao Road, Thana, having
bought the same from Homi D. Dubash under a sale deed dated
September 9, 1953 agreed to sell the same to the appellants
in lieu of Rs. 25,000/- vide agreement dated May 16, 1957,
relevant clauses whereof provided as follows :--
"5. If the purchasers shall insist on
any requisitions or objections as to the
title, evidence of title, conveyance, posses-
sion, receipt of rent or any other matters on
the abstract of or this agreement or connected
with the sale which the Vendors shall be
unable or on any ground unwilling to remove or
comply with, the Vendors shall be at liberty
notwithstanding any negotiation or litigation
in respect of such requisition or objection,
to give to the Purchasers or their Solicitors
notice in writing of their intention to re-
scind the contract for sale unless such
requisition or objection be withdrawn and if
such notice be given and the requisition or
objection be not withdrawn within ten days
after the day on which the notice was sent,
the contract shall, without further notice be
rescinded. The Vendors shall thereupon return
to the purchasers the deposit but without any
interest,costs of investigating the title or
other compensation or payment whatever.
(1) [1942] A.C. 154, 168. (2)
[1954] S.C.R. 310.
513
6. if the title be not approved by the
Purchaser’s attorneys or if the purchase is
not completed within the said period of two
months owing to any default on the Vendors’
part, it shall be at the option of the Pur-
chaser to rescind this agreement and in that
event the Purchaser shall be entitled to
receive back the earnest money from the Ven-
dors, together with out of pocket costs
incurred in the preparation of this agree-
ment and investigation of title, advertise-
ment, Bataid, correspondence etc. But in
ease of the Vendors wilful default the Ven-
dors shall also pay to the Purchasers interest
at 6% per annum on the amount of earnest
money from the date hereof fill the date of
return of the earnest money and all costs of
the Purchasers.
7. If the sale is not completed within time
provided for completion owing to the fault of
the Purchaser, the Vendors shall be entitled
to put an end to this contract and to for-
feit the earnest money."
Pursuant to the aforesaid agreement, the respondents’
attorneys delivered the documents of title to the appellants
attorneys on May 17, 1957 for investigation of title and in
the third week of May, 1957 the respondents gave possession
of the aforesaid property to the appellants in part perform-
ance of the said agreement. On August 22, 1957, the re-
spondents and the appellants made a joint ,application to
the District Deputy Collector, Thana Prant, under section 63
of the Bombay Tenancy and Agricultural Lands Act, 1948
(hereinafter referred to as ’the Act’) seeking permission to
sell and purchase the aforesaid agricultural land. Section
63 of the Act reads:
"63. (1) Save as provided in this Act-
(a) no sale (including sales in execution
of a decree of a Civil Court or for recovery
of arrears of land revenue or for sums
recoverable as arrears of land revenue), gift,
exchange or lease of any land or interest
therein, or
(b) no mortgage of any land or interest
therein, in which the possession of the mort-
gaged property is delivered to the mortga-
gee,
shall be valid in favour of a person who is
not an agriculturist (or who being an agricul-
turist will after such sale, gift, exchange,
lease or mortgage, hold land exceeding two-
thirds of the ceiling area determined under
the Maharashtra Agricultural Lands (Ceiling on
Holdings) Act, 1961 or who is not an agri-
cultural labourer):
Provided that the Collector or an officer
authorised by the State Government in this
behalf may grant permission for such sale,
gift, exchange, lease or mortgage, on such
conditions as may be prescribed ........"
It may be mentioned that the conditions alluded to in
the proviso to the above quoted section 63 have been pre-
scribed by Rule 36
514
of the Bombay Tenancy and Agriculutral Lands Rules, 1956
(hereinafter referred to as ’the Rules’) the relevant por-
tion whereof is to the following effect:
"36. Conditions on which permission for
sale, etc., of land under section 63 may be
granted.--
(1) The Collector or other officer
authorised under the proviso to sub-section (1
) of section 63 shall not grant permission for
sale, gift, exchange, lease or mortgage of any
land in favour of a person who is not either
an agriculturist or agricultural labourer or
who, being an agriculturist, cultivates per-
sonally laud not less than the ceiling area
whether as owner or tenant or partly as owner
and partly as tenant unless any of the follow-
ing conditions are satisfied........
(f) the land is required for cultivating
it personally by a person, who, not being an
agriculturist, intends to take to the profes-
sion of agriculture and to whom the Collector
after having regard to the order of priority
mention in clause (c) of sub-section (2) of
section 32-P, has given a certificate that
such person intends to take to the profession
of agriculture and is capable of cultivating
land personally; ...... "
By means of communication No. TNC.48 dated December 8,
1958, the Prant Officer, Thana, informed the respondents
that their request to sell the aforesaid lands to appellant
No. 1 could not be granted as the intending purchaser had
not obtained the certificate from the Collector to the
effect that "he intends to take to the profession of agri-
culture and is capable of cultivating land personally." On
January 21, 1959, the respondents’ attorneys wrote to the
appellants informing them that no effect could be given to
the aforesaid agreement of sale dated May 17, 1957 as the
permission under the Act to sell the suit property had been
refused by the Prant Officer by his letter dated December 8,
1958 (supra) for appellant No. 1’s failure to obtain the
certificate to the effect that he intended to take to the
profession of agriculture and was capable of cultivating
land personally. The respondents’ attorneys also called
upon the appellants by means of the said communication to
return the tite deeds adding that on the return of the title
deeds, the earnest money paid by them at the time of execu-
tion of the aforesaid agreement would be returned to them.
On March 4, 1959, the appellants’ advocate wrote to the
respondents’ attorneys requesting them to authorise the
appellants to approach the higher authorities for securing
the necessary permission. On March 14, 1959, the respond-
ents’ attorneys wrote to the appellants’ attorneys evasively
replying that no useful purpose would be served by approach-
ing the higher authorities having regard to the provisions
of the Act. On the respondents’ refusal to cooperate with
the appellants in the matter of obtaining permission or
sanction under the Act, appellant No. 1 made an application
to the Collector, Thana District, Thana on April 8, 1959,
bringing the above mentioned facts to his notice and re-
questing him to grant him a certificate of an agriculturist
and the necessary permission to purchase the aforesaid plots
of land. Acceding to the request of appellant No. 1, the
Additional Collector. Thana
515
by his order dated June 6, 1959 granted to the former the
requisite certificate under Rule 36 of the Rules as also the
permission to purchase the aforesaid plots of land from the
respondents as required under section 63(1) of the Act read
with Rule 36 of the Rules. The said order ran as follows
:--
No.
CB/TNC, 1800
Collector’s
Office, Thana,
Thana, 6th
June, 1959.
Read: Application of the applicant Shri G.G.
Patel, dated the 8th April, 1959.
Read: Papers ending with Mamlatdar, Thana’s
No. TNC. SR. 400 dated the 11th May, 1959.
ORDER
A certificate is hereby granted to Shri
Govindbhai Gordhanbhai Patel residing at House
No. 404, Majiwade, Taluka Thana on his appli-
cation dated 8th April, 1959 under subclause
’C’ of clause 1 of Rule 36 that he intends to
take to the profession of Agriculture. After
having gone through the merits of the priority
list mentioned in clause (C) of section 2 of
section 32-P, through the Mamlatdar Thana,
permission is hereby granted to Shri Govindb-
hai Gordhanbhai Patel to purchase the land
mentioned below from Shri Ibrahim Ismail
Jetpurwala etc. under section 63(1) read with
Rule 36 under the Bombay Tenancy and Agricul-
tural Lands (Amendment) Act, 1955 on the
conditions as mentioned under :-
Village S. No. H. No.
Area
Majiwade 415 Part
6-51/4
289 2 (Part)
0-36 1/2
280 1 (Part)
0-7
280 4
0-5
7- 13
3/4
Conditions :--
Permission to purchase the land mentioned
above is granted subject to the condition
that if the applicant Shri G.G. Patel ceases
to cultivate the land personally or transfers
his interest in the said land by sale, gift,
exchange, lease or mortgage without the
previous sanction of the Collector, the
permission given under sub-section ( 1 ) of
section 63 shall be deemed to have been
cancelled.
Sd/ -
For Addition-
al Collector,
Tha na"
516
On June 25, 1959, the appellants’ attorneys addressed a
communication to the respondents’ attorneys forwarding
therewith a copy of the aforesaid order No. CB/TEC/1800
dated June 6,1959, made by the Additional Collector, Thana
granting permission to appellant No. 1 for the purchase of
the aforesaid plots of land and requesting the respondents
to let them know as to when their clients would desire to
complete the sale and further asking them whether they had
got the property transferred to their names in the records
of the Collector of Thana, whereupon the respondents’ advo-
cate by his letter dated June 30, 1959 addressed to the
appellants’ attorneys replied saying that his clients could
not take notice of the aforesaid permission. Thereafter the
respondents served a notice on the appellants on August 25,
1959 calling upon them to return the title deeds and to
restore possession of the aforesaid property. Thereupon,
the appellants’ advocate wrote to the respondents attorneys
on November 24, 1959 pointing out to them that appellant No.
1 having obtained the requisite sanction from the Collector,
the respondents were bound to complete the sale and to
execute the conveyance in favour of appellant No. 1 and that
the aforesaid agreement could not be put an end to in the
manner in which the respondents were attempting to do. Not
heeding the aforesaid communication of the appellants dated
November 24, 1959, the respondents filed a civil suit, being
suit No. 36 of 1959 on November 17, 1959 in the Court of the
Civil Judge, Senior Division, Thana, for declaration that
the aforesaid agreement dated May 16, 1957 was void in law
and of no legal effect and for possession of the aforesaid
property as also for compensation at the rate of Rs. 150/-
per mensem for wrongful retention of the property from June,
1957 till delivery of possession thereof. In spite of the
stout resistance put up by the appellants, the trial Court
decreed the suit in favour of the respondents subject to
their paying to the appellants or depositing in Court the
earnest money of Rs. 5,000/- and the compensation amount
of Rs. 882.25 holding inter alia that the aforesaid agree-
ment dated May 16, 1957 which was void ab initio being
violative of section 63 of the Act was discovered by the
respondents to be void in June, 1957 when they found that
the permission under section 63 of the Act was necessary.
Aggrieved by the judgment and decree of the trial Court,
the appellants took the matter in appeal to the High Court
of Bombay but their appeal remained unsuccessful. The High
Court held that the aforesaid agreement to sell was not void
ab initio as section 63 of the Act itself envisaged sale
etc. in favour of a nonagriculturist with the permission of
the Collector or an officer authorised by the State Govern-
ment in that behalf subject to the conditions which may be
prescribed and Rule 36 of he Rules prescribed only a certif-
icate by the relevant authority to the effect that the
intending purchaser intended to adopt the profession of an
agriculturist. The High Court, however, opined that the
aforesaid agreement became incapable of being performed on
December 8, 1959 when the Prant Officer declined permission
to the respondents to sell the property to the appellants.
Rejecting the contention advanced on behalf of the appel-
lants the effect that the aforesaid letter dated January 21,
1959 written by the respondents to the appellants did not
terminate or rescind the agreement, the High Court further
held that the said letter amounted to cancellation of the
agreement.
517
Appearing in support of the appeal, Mr. Bhatt, counsel
for the appellants, has vehemently urged that the aforesaid
order passed by the Prant Officer refusing permission to the
respondents to sell the lands did not make the contract
impossible of performance; that the said order was merely
administrative in character and did not bar the making of
the second application by the appellants under section 63 of
the Act; that the said agreement was subsisting on June 25,
1959 when the appellants obtained the requisite permission
and the certificate from the Additional Collector, Thana,
and that section 56 of the Indian Contract Act was not
attracted in the present case as the contract had not become
impossible of performance.
Mr. Sachin Chaudhary, counsel for the respondents, has,
on the other hand, contended that the agreement became
impossible of performance and as such void on December 8,
1958, when the Prant Officer refused to permit the respond-
ents to sell the suit property to the appellants, and that
the Prant Officer who had co-ordinate jurisdiction with the
Collector under section 63 of the Act having refused to
grant permission to the respondents to sell the suit proper-
ty by his order dated December 8, 1958, which was of quasi-
judicial character and had not been set aside either in
appeal or revision, it was not open to the Collector to
grant the permission to the appellants.
Two questions arise for determination in this case---(1)
whether the order of the Prant Officer dated December 8,
1958, rendered the aforesaid agreement dated May 16, 1957
impossible of performance and as such void under section 56
of the Indian Contract Act and (2) whether in view of the
aforesaid order of refusal by the Prant Officer, Thana dated
December 8, 1958, the Additional Collector, Thana, was not
competent to grant the sanction and the certificate under
section 63 of the Act and Rule 36 of the Rules. The answer
to the first question depends on the construction of the
expression ’impossible of performance’ occurring in section
56 of the Indian Contract Act which lays down:
"56. An agreement to do an act impossi-
ble in itself is void--A contract to do an act
which after the contract is made, becomes
impossible, or, by reason of some event which
the promisor could not prevent, unlawful,
becomes void when the act becomes impossible
or unlawful.
Where one person has promised to do
something which he knew, or, with reasonable
diligence, might have known, and which the
promisee did not know to be impossible or
unlawful, such promisor must make compensation
to such promisee for any loss which such
promise sustains through the non-performance
of the promise."
The meaning of the aforesaid expression ’impossible of
performance’ as used in the above quoted section would be
clear from the, following observation made by Lord Loreburn
in Tampfin Steamship
518
Co. Ltd. v.Anglo-Mexican Petroleum Products Co. Ltd(1)
403 which is generally considered to contain a classic and
terse exposition of the law relating to frustration:
"The parties shall be excused if sub-
stantially the whole contract becomes impossi-
ble of performance or in other words imprac-
ticable by some cause for which neither was
responsible."
We find ourselves in complete accord with this view
which also finds support from the decisions of this Court in
Satyabrata Ghose v. Mugneerarn Bangur and Co. and Anr.
(supra) and Smt. Sushila Devi and Anr. v. Hari Singh and
Ors.(2) where it was held that the performance of a contract
becomes impossible if it becomes impracticable from the
point of view of the object and the purpose which the par-
ties had in view and if an untoward event or change of
circumstances totally upsets the very foundation upon which
the parties rested their bargain, it can very well be said
that the promisor found it impossible to do the act which he
promised to do. It would be advantageous at this stage to
refer to the following observations made by Mukherjee, J.
Satyabrata Ghose v. Mugneerarn Bangur and Co. and Anr
(supra) which is a leading authority on the subject of
frustration:
"The first paragraph of the section lays
down the law in the same way as in England.
It speaks of something which is impossible
inherently or by its very nature, and no one
can obviously be directed to perform such an
act. The second paragraph enunciates the law
relating to discharge of contract by reason of
supervening impossibility or illegality of the
act agreed to be done. The wording of this
paragraph is quite general and though the
illustrations attached to it are not at
all happy, they cannot derogate from the
general words used in the enactment. This
much is clear that the word "impossible" has
not been used here in the sense of physical or
literal impossibility. The performance of an
act may not be literally impossible but it may
be impracticable and useless from the point of
view of the object and purpose which
the .parties had in view; and if an untoward
event or change of circumstances totally
upsets the very foundation upon which the
parties rested their bargain, R can very well
be said that the promisor found it impossible
to do the act which he promised to do.
Although various theories have been
propounded by the Judges and jurists in Eng-
land regarding the judicial basis of the
doctrine of frustration, yet the essential
idea upon which the doctrine is based is that
of impossibility of performance of the con-
tract: in fact impossibility and frustration
are often used as interchangeable expres-
sions. The changed circumstances, it is
said, make the performance of the contract
impossible and the parties are absolved from
the further
(1) [1916] 2 A.C. 397. (2) [1971] 2
S.C.C. 288.
519
performance of it as they did not promise.
to. perform an impossibility."
In the instant case, there is no term or condition in
the agreement in question which stipulates that the agree-
ment would be treated as having become impracticable on the
refusel of the Prant Officer to grant the permission under
section 63 of the Act. The parties are,’ therefore, gov-
erned purely by section 56 of the Contract Act according to
which a contract becomes void only if something supervenes
after its execution which renders it impracticable. On the
contention advanced on behalf of the respondents, the ques-
tion that arises is whether the above quoted order of the
Prant Officer, Thana Prant, dated December 8, 1958, rendered
the contract impracticable. The answer to this question is
obviously in the negative. The said order, it will be
noted, was not of such a catastrophic character as can be
said to have struck at the very root of the whole object and
purpose for which the parties had entered into the bargain
in question or to have rendered the contract impracticable
or impossible of performance. A careful perusal of the
order would show that it was neither conclusive nor was it
passed on the merits of the aforesaid application. The
permission was refused by the Prant Officer only on the
technical ground that the appellants had not obtained the
requisite certificate as contemplated by rule 36(f) of the
Rules. It did not in any way prohibit the appellants from
making a fresh application to the Collector, Thana Prant,
who in view of the Phraseology of section 63 of the Act read
with clause (f) of rule 35 of the Rules appears to be the
only authority competent to grant the requisite certificate.
The said order also did not put any fetter on the appellants
to apply to the Collector or the Additional Collector for
grant of the requisite permission for sale and purchase of
the land after obtaining the aforesaid certificate. We,
are, therefore, clearly of the opinion that no untoward
event or change of circumstances supervened to make the
agreement factually or legally impossible of performance so
as, to attract section 56 of the Contract Act.
The answer to the second question turns on the answer
to two subsidiary questions (i) whether in according or
declining to accord permission under the proviso to section
63 (1) of the Act, the Collector or the officer authorised
by the State Government in that behalf acts in an adminis-
trative capacity or a judicial or a quasi-judicial capaci-
ty and (ii) whether the aforesaid order dated December 8,
1958 passed by the Prant Officer, Thana was one on merits or
otherwise. Turning to the question (i), it has to be ob-
served that there is nothing in section 63 of the Act to
indicate that in exercising his jurisdiction under the
proviso to sub-section (1) of the section, the Collector or
the authorised officer has to act judicially or in conformi-
ty with the recognised judicial norms. There is also
nothing in the aforesaid Section of the Act requiring the
Collector or the authorised officer to determine any ques-
tion affecting the right of any party. The function which
the Collector or the authorised officer discharges under
the aforesaid proviso is, therefore, an administrative one
and not judicial or quasi-judicial. It will be apposite to
advert to a few decisions 17 --1546 SCI/76
520
bearing on the matter. In A.K. Bhaskar v. Advocate
General(1) a full Bench of the Kerala High Court held that
the decision of the Advocate General granting or refusing
to grant the sanction under section 92 of the Civil Proce-
dure Code was neither judicial nor quasijudicial notwith-
standing the fact that he has to form an opinion and come to
conclusion one way or the other. To the similar effect are
the decisions of Allahabad and Rajasthan High Courts in
Shantanand v. Advocate General(2) and Shrimali Lal v. Advo-
cate General(3). In Abdul Kasim v. Md. Dawood(4) it was held
that in granting or withholding sanction to file a suit
under section 55(2) of the Muslim Wakfs Act, 1954, the Wakf
Board does not act in, a judicial or quasijudicial capacity
but only in an administrative capacity. In The State of
Madras v.C.P. Sarathy and Anr.(5). It was held by this Court
that the act of the Government in making a reference under
section 10 of the Industrial Disputes Act was merely an
administrative act and the fact that the Government before
making a reference under section 10(1) of the Act had to
satisfy itself on the facts and circumstances brought to its
notice that an industrial dispute existed did not make the
act judicial or quasi-judicial.
In regard to question (ii), it may be stated that al-
though the Prant Officer may have been exercising concurrent
jurisdiction with the Collector, Thana Prant, he did not
pass any orders on the merits of the previous application
made by the respondents and endorsed by the appellants
seeking permission to sell and purchase the suit property.
The order, as already stated, was passed by him on the
ground that the intending purchaser had not obtained the
certificate required under rule 36(f) of the Rules. It is
well recognised that the dismissal of a proceeding by an
authority not on merits but merely on account of a formal
defect will not attract the applicability of the general
principles of Res judicata and will not debar the authority
exercising concurrent jurisdiction from entertaining the
subsequent proceedings for same relief and passing proper
orders on merits. (See Putali Meheti v. Tulja.(6) where the
rejection of a previous suit for the plaintiff’s omission to
produce a certificate of the Collector under section 6 of
the Pensions Act was held not to bar a second suit on the
same cause of action, and Pethaperumal v. Murugandi(7)
where rejection of the first suit for recovery of money for
plaintiff’s failure
(1) A.I.R. 1962 Ker. 90. (2) A..I.R. 1955 All. 372
(3) A.I.R. 1955 Raj. 166. (4) A..I.R. 1961 Mad. 244.
(5) A.I.R. 1953 S.C. 53 (6) I.LR. 3 Born. 223.
(7) 18 Mad. 466.
521
to produce succession certificate was held not to bar a
second proceeding for the same relief. We are, therefore,
of the opinion that the previous order passed by the Prant
Officer being merely an administrative order and not having
been passed on the merits of the case, it did not, in the
absence of a statutory prohibition, impair the power of the
Collector to pass the impugned order on the merits of the
matter under proviso to section 63 (1) of the Act on the
grant of the requisite certificate under rule 36(f) of the
Rules.
For the foregoing reasons, we allow the appeal, set
aside the judgments and decrees passed by the Courts below
and dismiss the respondents’ suit but in the circumstances
of the ease without any order as to costs.
M.P. Appeal allowed.