Birbal Singh Vs. Kedar Nath Sharma
 INSC 277 (2 November 1976)
CITATION: 1977 AIR 1 1977 SCR (2) 1 1976 SCC
CITATOR INFO :
R 1992 SC 891 (32)
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
Evidence Act, 1872--Testimony of interested
witnesses whether can be rejected outright.
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 election petition in the Rajasthan
High Court challenging the election of the respondent alleging that the
respondent and his election agent committed the following corrupt practices.
(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
(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 interested 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 Representation 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.
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
corroborated from an independent source. The reasons for corroboration 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
(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
(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
(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.
5. The Court negatived the appellant's
contention that the editorial was published with the consent of the respondent
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
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,
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 Respondent.
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 appellant 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 practices 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 contained 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 remitted 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 instance
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
considering the fresh evidence led by the parties held in favour of the
respondent on both the issue. Those findings are challenged by the appellant in
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 parties on the
two corrupt practices attributed to the respondent. It is a matter of common
occurrence in election petitions 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 justified in rejecting that evidence unless it is corroborated from
an independent source. But the reasons for corroboration 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 candidate and cannot therefore be relied upon is not a
judicial assessment of evidence.
5 Evidence can be assessed only after a
Since the High Court has, by and large,
rejected the evidence 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
allegation 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
impossible that even rival partymen looked at the incident with such cool
unconcern. Amongst the persons to whom the pamphlet 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 ensuring 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 pamphlet. 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
respondent'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 distributed
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 newspaper 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 publication 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 witnesses 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 circumstances.
On February 18, 1972 a meeting of about 300
Congress workers was held in the Block Congress Committee, Ganganagar. 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 difficult 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 editorial 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 February
20, 1972 Gyan Devi Talwar had called a meeting of Trade Union Workers for
supporting the appellant's candidature. 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)
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 advertisement. 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
Raj Kumar Sethi has perjured himself on
several important points. In his enthusiasm to support the cause of the
appellant, he said his evidence 'that copies of the newspaper 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 assessed 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 responsibility. 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
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 affidavit 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
appellant 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 subscribe 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 execution 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 allegation 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 attended 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 morning's editorial was being freely distributed, he left the meeting
without a protest. It is interesting that the appellant did not say in his
examination-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 appellant.
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 appellant's election and who is the son of the Director of
the newspaper should sign the draft is more than we can understand.
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
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 satedeed became responsible for paying the house-tax subsequent to the
purchase. On his failure to pay the same, the appellant 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 efficacious relief is
obtainable in any other usual mode or proceedings except in cases of breach of
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 correct view of the prima facie case which existed here
and that the question of balance of convenience was irrelevant.
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.  1 SCR
435; D.L.F. Housing and Construction Co. P. Ltd. New Delhi v. Sarup Singh &
Ors.,  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;
M/s Mechelec Engineers & Manufacturers v.
M/s Basic Equipment Corporation  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 permanent
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 encumberances,
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
injunction 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 jurisdiction
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
On an appeal by the plaintiff, the Appellate
Court, after considering all the questions raised before it, dismissed 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
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 occupying 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
Corporation,' points out that Dewan Daulat Ram Kapur's case (supra) was one
where premises had been left, 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 decision 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 ascertain the hypothetical standard rent of premises in accordance 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 provisions 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
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)
 I S,C.R. 1060. (2)  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
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)  2 S.C.R. 368.
(2)A.I.R. 1973 S.C. 76.