# Dr. Chandra Deo Tyagi v. A.D.J., Court No. 1, Meerut & Ors

- **Citation:** (2020) 8 ILRA 207
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-07-10
- **Case number:** Writ C No. 34529 of 2006
- **Bench:** Ravi Nath Tilhari
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/dr-chandra-deo-tyagi-v-a-d-j-court-no-1-meerut-ors-46017
- **Pages:** 26

## Headnote

208 INDIAN LAW REPORTS ALLAHABAD SERIES
A. Civil Law- Civil Procedure Code (5 of
1908) - O.41 R.27 - Production of Additional
evidence in Misc. Appeal under O.43 R. 1 -
provision of O. 41 R. 27 applies to appeal
from order as well & appellate court has the
power to admit additional evidence in
appeal from orders as well - applicability of
O. 41 R. 27 C.P.C. cannot be restricted to the
appeals from decrees only (Para 44, 61)

B. Civil Law - Civil Procedure Code (5 of
1908) - O.41 R.27 - Additional Evidence
in
appellate
court
-
stage
of
consideration - should be considered at
the time of final hearing of appeal on
merits -when after appreciating the
evidence on record - court reaches
conclusion that additional evidence -
has relevance/bearing on the issue
involved - and in order to pronounce
satisfactory judgment or for any other
substantial cause (Para 53)

C. Civil Law - Civil Procedure Code (5 of
1908) - O.41 R.27 - Additional evidence
- Consideration - At the stage of O.41
R.27, court had to consider if the
proposed documents were relevant or
not - Relevancy is required to be
considered - court is not to enter into
the merits of the proposed documents
with respect to the petitioner's case
(Para 62)

D. Civil Law - Civil Procedure Code (5 of
1908) - O.41 R.27 - Satisfaction to be
recorded - by the court that the proposed
additional evidence is required to be
taken on record for deciding the appeal in
a satisfactory manner by the appellate
court - satisfaction not manifested in the
impugned order - Rejection of application,
erroneous (Para 60)

Plaintiff's application for temporary injunction
under O.39, R.1, 2 rejected - filed Misc.
Appeal under O. 43 R. 1 alongwith application
for admission of additional evidence under O.
41 r. 27 - Appellate court took view that in
Misc. Appeal under O. 43 R. 1 C.P.C.
application
for
admission
of
additional
evidence under O. 41 R. 27 C.P.C. was not
maintainable & that Misc. Appeal should be
confined to the impugned order, in the light
of the evidence already on record- Rejected
application for additional evidence - Held -
Appellate Court not following principle of law
under O. 41, R. 27 - Rejection of application,
erroneous

Allowed. (E-5)

List of cases cited:-

## Text

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8 All. Dr. Chandra Deo Tyagi Vs. A.D.J., Court No. 1, Meerut & Ors.
207
v. Tripura Bar Assn. [(1998) 5 SCC 637 :
1998 SCC (L&S) 1426] in the following
words: (SCC p. 639, para 4)

"4. We are of the view that the
Division Bench of the High Court which
has delivered the impugned judgment
being a coordinate Bench could not have
taken a view different from that taken by
the earlier Division Bench of the High
Court
in
the
case
of
Durgadas
Purkayastha v. Hon'ble Gauhati High
Court[(1988) 1 Gau LR 6] . If the latter
Bench wanted to take a view different
than that taken by the earlier Bench, the
proper course for them would have been
to refer the matter to a larger Bench. We
have perused the reasons given by the
learned Judges for not referring the
matter to a larger Bench. We are not
satisfied that the said reasons justified
their deciding the matter and not
referring it to the larger Bench. In the
circumstances, we are unable to uphold
the impugned judgment of the High Court
insofar as it relates to the matter of inter
se seniority of the Judicial Officers
impleaded as respondents in the writ
petition. The impugned judgment of the
High Court insofar as it relates to the
matter of seniority of the respondent
Judicial Officers is set aside. The appeals
are disposed of accordingly. No costs."

14. In the instant case, the
position is still worse. The latter Bench
did not even indicate as to why it was not
following the earlier Bench judgment
though brought to its notice. Judicial
propriety and decorum warranted such a
course indicated above to be adopted."

42. We, therefore, consider it
appropriate to refer and we hereby refer
the following questions for authoritative
pronouncement by Hon'ble the Full
Bench:

(i)
Whether
a
subsequent
purchaser of the land acquired under the
National Highways Act, 1956, after
publication of declaration under Section
3D (1), is not entitled to receive
compensation on the strength of his
vendor's title in view of Section 3D(2)?

(ii) Which of the judgments (i)
Surendra Nath Singh Yadav (supra) or
(ii) Vipin Kumar Agarwal, Asha Devi and
Smt. Gyanti Singh, lay down the law
correctly?

43. The Registry is directed to place
the papers of this case before Hon'ble the
Chief Justice for appropriate orders.

44. List this petition after the
reference is answered.
----------
(2020)08ILR A207
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 10.07.2020

BEFORE

THE HON'BLE RAVI NATH TILHARI, J.

Writ C No. 34529 of 2006

Dr. Chandra Deo Tyagi ...Petitioner
Versus
A.D.J., Court No. 1, Meerut & Ors.
 ...Respondents

Counsel for the Petitioner:
Sri Nipun Saini, Sri Rahul Dev Garg

Counsel for the Respondents:
Sri A.K. Mehrotra, Sri M.D.S. Shekhar,
S.C.
208 INDIAN LAW REPORTS ALLAHABAD SERIES
A. Civil Law- Civil Procedure Code (5 of
1908) - O.41 R.27 - Production of Additional
evidence in Misc. Appeal under O.43 R. 1 -
provision of O. 41 R. 27 applies to appeal
from order as well & appellate court has the
power to admit additional evidence in
appeal from orders as well - applicability of
O. 41 R. 27 C.P.C. cannot be restricted to the
appeals from decrees only (Para 44, 61)

B. Civil Law - Civil Procedure Code (5 of
1908) - O.41 R.27 - Additional Evidence
in
appellate
court
-
stage
of
consideration - should be considered at
the time of final hearing of appeal on
merits -when after appreciating the
evidence on record - court reaches
conclusion that additional evidence -
has relevance/bearing on the issue
involved - and in order to pronounce
satisfactory judgment or for any other
substantial cause (Para 53)

C. Civil Law - Civil Procedure Code (5 of
1908) - O.41 R.27 - Additional evidence
- Consideration - At the stage of O.41
R.27, court had to consider if the
proposed documents were relevant or
not - Relevancy is required to be
considered - court is not to enter into
the merits of the proposed documents
with respect to the petitioner's case
(Para 62)

D. Civil Law - Civil Procedure Code (5 of
1908) - O.41 R.27 - Satisfaction to be
recorded - by the court that the proposed
additional evidence is required to be
taken on record for deciding the appeal in
a satisfactory manner by the appellate
court - satisfaction not manifested in the
impugned order - Rejection of application,
erroneous (Para 60)

Plaintiff's application for temporary injunction
under O.39, R.1, 2 rejected - filed Misc.
Appeal under O. 43 R. 1 alongwith application
for admission of additional evidence under O.
41 r. 27 - Appellate court took view that in
Misc. Appeal under O. 43 R. 1 C.P.C.
application
for
admission
of
additional
evidence under O. 41 R. 27 C.P.C. was not
maintainable & that Misc. Appeal should be
confined to the impugned order, in the light
of the evidence already on record- Rejected
application for additional evidence - Held -
Appellate Court not following principle of law
under O. 41, R. 27 - Rejection of application,
erroneous

Allowed. (E-5)

List of cases cited:-

1. St. of Raj Vs T.N Shekri & anr. (2001) 10 SCC 619

2. U.O.I. Vs Ibrahim Uddin & anr. (2012) 8 SCC 148

3. Smt. Malti Devi & anr. Vs St. of U.P.
Matters under Article 227 No. 4312 of 2018

4.
Dr.
Pratap
Singh
Vs
Director
of
Enforcement,
Foreign
Exchange
and
Regulation Act (1985) 3 SCC 72

5. Ismail Faruqui Vs U.O.I. (1994) 6 SCC 360

6. Maktool Singh Vs St. of Pun. (1999) 3 SCC 321

7. Regional Provident Fund Commissioner Vs
Hooghly Mills Co. Ltd & ors. (2012) 2 SCC
4898.

8. Sangram Singh Vs Election Tribunal Kotah
AIR 1955 SCC425

9. Chinnammal & ors. Vs Arumugham (1990)
1 SCC 513

10. Ghanshyam Das Vs U.O.I.(1984) 3 SCC 46

11. Sukhveer Singh Vs Brijpal Singh (1997) 2
SCC 200

12. Salem Advocate Bar Association Vs U.O.I.
AIR 2005 SCC 3353

13.
Hemareddi
(D)
Through
Lrs.
Vs
Ramachandra Yallappa Hosmani & ors. (2019)
6 SCC 756

14. Zila Parishad Badaun & anr. Vs Brahma
Rishi Sharma AIR 1970 All 376

15. Rajesh Jaiswal & anr. Y.S. Anuj Shah &
anr. 2013 (3) ALJ 67
8 All. Dr. Chandra Deo Tyagi Vs. A.D.J., Court No. 1, Meerut & Ors.
209
16. Bal Krishna Vs Virendra Kumar Misc.
Single .No. 15947 of 2017, decided on
5/7/2019

17. Smt. Malti Devi & anr. Vs St. of U.P. &
anr. Matters under Article 227 No. 4312 of
2018, 09.10.2018

18. St. of Raj Vs T. N. Sahani & ors. (2001)
10 SCC 619

19. Corporation of Madras & anr. Vs M
Parthasarathy & ors. (2018) 9 SCC 445

20. Union of India Vs K.V. Lakshman & Ors
(2016) 13 SCC 124

21. Uttaradi Mutt Vs Raghavendra Swamy
Mutt (2018) 10 SCC 484

22. Mahavir Singh & ors. Vs Naresh Chandra
& anr. (2001) 92 R.D. 67

23. Rita Rani Vs Tanu Chauhan & ors. (2005)
61 ALR 264

(Delivered by Hon'ble Ravi Nath Tilhari, J.)

1. Heard Shri Rahul Dev Garg,
Advocate holding brief of Shri Nipun
Saini, learned counsel for the petitioner.
The respondent no. 1, is Additional
District Judge, Court No. 1, Meerut
whose order is under challenge in the
petition. No one responded for the
respondent nos. 2 to 4, even in the
revised list.

2. The matter being old one and as
it pertained to the year 2006, the court
proceeded to hear the matter on merits,
on the basis of material on record and
after hearing the learned counsel for the
petitioner, the judgment was reserved.

3. By means of this petition under
Article 227 of the Constitution of India,
the petitioner has challenged the order
dated 29.03.2006 passed by the learned
Additional District Judge, Meerut in
Misc. Appeal No. 98 of 2004 (Chandra
Deo Tyagi versus Surya Deo Tyagi and
another) passed on the petitioner's
application for admission of additional
evidence under Order 41 Rule 27 read
with Section 151 of the Code of Civil
Procedure (in short C.P.C.), whereby the
petitioner's said application (14A/1) was
rejected. The petitioner has also prayed
that a direction may be issued to
respondent no. 1 i.e. the Additional
District Judge, Court No. 1, Meerut to
allow the petitioner's application under
Order 41 Rule 27 C.P.C.

4. The facts of the case are that the
petitioner is a plaintiff who has instituted
the original Suit No. 11 of 2001 (Chandra
Deo Tyagi versus Surya Deo Tyagi and
another) in the Court of Civil Judge
(Junior Division) Sardhana, Meerut, for a
decree of declaration that the petitioner is
the owner in possession of a tube
well/boring, situated over part of Gata
No. 333 District-Meerut. The mandatory
injunction is also requested to direct the
respondent nos. 3 and 4 i.e. the U.P.
Power Corporation through its Chairman
Vikramaditya Marg and the Executive
Engineer
Electricity
Distribution
Division-II, Meerut, to disconnect the
electricity connection of the tube well,
which
was
granted
in
favour
of
respondent no. 2 Surya Deo Tyagi. The
petitioner has also prayed for prohibitory
injunction to restrain the respondent no. 2
from interfering in the usage of tube well
by the petitioner. In the suit, the
petitioner also filed an application for
grant of temporary injunction under
Order 39 Rules 1 & 2 C.PC.

5. The learned Civil Judge (Junior
Division), Shardhana, Meerut rejected
210 INDIAN LAW REPORTS ALLAHABAD SERIES
the application for temporary injunction
by order dated 27.05.2004. The petitioner
filed Misc. Appeal No. 98 of 2004 before
the learned District Judge, Meerut, under
Order 43 Rule 1 C.P.C. In the said
appeal, the petitioner filed an application
for admission of additional evidence, as
per the list of documents (Annexure no. 3
to the petition) under Order 41 Rule 27
C.P.C. The petitioner's said application
was allowed on payment of cost and the
respondent no. 2 was granted time to file
rebuttal, by order dated 21.02.2005.
Against the order dated 21.02.2005, an
application for recall was filed by the
respondent no. 2 which was rejected on
08.09.2005 and further one month's time
was granted to file rebuttal which time
was further extended on 10.10.2005 and
07.11.2005 in favour of respondent no. 2.

6. The respondent no. 2, thereafter,
filed Writ Petition No. 66932 of 2005
(Surya Deo Tyagi versus Chandra Deo
Tyagi and others) before this Court
challenging the order dated 21.02.2005.
The writ petition was allowed by means
of judgment and order dated 09.11.2005.
The order dated 21.02.2005 passed by the
appellate court was quashed and the
matter was remanded, with a direction to
the
appellate
court
to
decide
the
petitioner's application under Order 41
Rule
27
C.P.C.,
after
affording
opportunity of hearing to the present
respondent no. 2, expeditiously, and
preferably within a period of six weeks
from the date of production of copy of
judgment before the appellate court.

7. After remand the appellate court
rejected the petitioner's application under
Order 41 Rule 27 C.P.C. after hearing both
the parties, by order dated 29.03.2006, which
is impugned in the present petition.

8. The appellate court has taken the
view that, as the parties are at liberty to
file documents before the trial court and
establish their case in trial, where the
dispute is yet to be adjudicated, and as
the Misc. Appeal should be confined to
the impugned order, in the light of the
evidence already available on record, the
petitioner's application for admission of
additional evidence was liable to be
rejected.

9. The appellate court has further
taken the view that the Misc. Appeal has
been filed against the order, whereby the
temporary injunction matter was rejected,
and, therefore, the present being a Misc.
Appeal under Order 43 Rule 1 C.P.C. the
application for admission of additional
evidence under Order 41 Rule 27 C.P.C.
was not maintainable.

10. The appellate court has further
taken the view that the documents
proposed to be filed in additional
evidence, are not the public documents,
except, the certified copies of the
statements of Surya Deo Tyagi, Chandra
Deo Tyagi and their sister Shashi Prabha.
All other documents are private in nature
and
cannot
be
read
unless
those
documents are proved.

11. The appellate court has further
held that as per the petitioner' case, the
issues/dispute between plaintiff/petitioner
and defendant/respondent no. 2 were
identified by late Shri Ramesh Chandra
Verma, the person agreed by the said
parties to mediate between them on
03.06.1998; and a memorandum dated
27.08.1998 was prepared by Smt. Shashi
Prabha, but the written memorandum,
nowhere
revealed
that
the
dispute
between the parties in respect of Khasra
8 All. Dr. Chandra Deo Tyagi Vs. A.D.J., Court No. 1, Meerut & Ors.
211
No. 333, in which the disputed boring
existed, was set at rest between the
parties.
Similarly,
copies
of
the
statements proposed to be filed did not
disclose that the parties had also
compromised in respect of the suit
property.

12. Sri Raghav Dev Garg, learned
counsel holding brief of Shri Nipun
Saini, learned counsel for the petitioner,
submitted that an application under Order
41 Rule 27 C.P.C. is maintainable in
Misc. Appeal, as well, in view of Order
43 Rule 2 C.P.C., which provides that the
rules of Order 41 C.P.C. apply to appeals
from order as well, so far as may be.

13. Learned counsel has next
submitted that at the stage of deciding the
application for admission of additional
evidence the appellate court travelled
beyond its jurisdiction in considering the
proposed
documents
(written
memorandum dated 27.08.1998 and the
statements), on merits. He has further
submitted
that
an
application
for
additional evidence is required to be
decided along with the appeal, but, in the
present case, the application has been
decided
first,
whereas
the
appeal
remained pending.

14. Learned counsel for the
petitioner has placed reliance on the
judgments of the Hon'ble Supreme Court
in the case of State of Rajasthan versus
T.N Shekri and another reported in
(2001) 10 SCC 619 and in the case of
Union of India versus Ibrahim Uddin
and another, reported in (2012) 8 SCC
148. Learned counsel has further placed
reliance on judgment of this Court in the
case of (Smt. Malti Devi and another
versus State of U.P.) Matters under
Article 227 No. 4312 of 2018 decided on
09.10.2018, in support of his another
contention that, even if, Order 41 Rule 27
C.P.C. strictly speaking, does not apply to
the proceedings of Misc. Appeal, still the
court has power and jurisdiction to admit
additional evidence/documents/materials
in Misc. Appeal in the interest of justice.

15. I have perused the counter
affidavit filed by the respondent no. 2.
The facts as stated by the learned counsel
for the petitioner and mentioned in the
petition have not been disputed. It has
been stated, in the counter affidavit, that
so far as the facts are concerned, the
same being material on record, only
needs verification from the records.
From, verification of the records, the
court finds that there is no dispute about
the facts of the case, so far as they are
relevant
for
deciding
the
present
controversy, as regards the rejection of
the petitioner's application for admission
of the additional evidence by the
appellate court by the order under
challenge.

16. With respect to the arguments of
the learned counsel for the petitioner as
mentioned in the petition, the contention
of the respondent no. 2, in the counter
affidavit,
is, that the same being
argumentative would be replied at the
time of hearing, but at this stage no one
responded for the respondents to argue
the matter, even in the revised call.

17.

I
have
considered
the
submissions advanced by learned counsel
for the petitioner and have perused the
material on record.

18.
In view
of
the
above
submissions, the following points arise
212 INDIAN LAW REPORTS ALLAHABAD SERIES
for consideration & determination in the
present petition:-

i)the
applicability
of
the
provisions of Order 41 Rule 27 C.P.C. for
admission
of
additional
evidence/material in Misc. Appeals filed
under Section 104 read with Order 43
Rule 1(r) C.P.C. and

ii)if the appellate court has
correctly applied the law under Order 41
Rule
27
C.P.C.
in
rejecting
the
petitioner's application for admission of
additional evidence.

19. Point No. 1. Applicability of the
provisions of Order 41 Rule 27 C.P.C. to
Misc. Appeals under Order 43 Rule 1
C.P.C.

20. It is appropriate to reproduce
Sections 107, 108, 2(16), (18) and Order
43 Rule 1 (r), 2 of C.P.C. as under:-

"Section
107.
Powers
of
appellate Court-(1) Subject to such
conditions and limitations as may be
prescribed, an appellate Court shall have
power-

(a) to determine a case finally;

(b) to remand a case;

(c) to frame issues and refer
them for trial;

(d) to take additional evidence
or to require such evidence to be taken.

(2) Subject as aforesaid, the
appellate Court shall have the same
powers and shall perform as nearly as
may be the same duties as are conferred
and imposed by this Code on Courts of
original jurisdiction in respect of suits
instituted therein."

"Section108.
Procedure
in
appeals from appellate decrees and
orders .-The provisions of this Part
relating to appeals from original decrees
shall, so far as may be, apply to appeals-

(a) from appellate decrees, and

(b) from orders made under this
Code or under any special or local law in
which a different procedure is not
provided."

"Section 2(16) "prescribed"
means prescribed by rules;"

"Section 2(18) "rules" means
rules and forms contained in the First
Schedule or made under section 122 or
section 125;"

"Order 43 Rule 1(r) an order
under rule 1, rule 2 [rule 2A], rule 4 or
rule 10 of Order XXXIX;

"Order 43 Rule 2. Procedure. -
The rules of Order XLI shall apply, so far
as may be, to appeals from orders."

21. Section 104 C.P.C. provides for
filing appeal against the orders of the
nature as mentioned under clauses (ff),
(ffa), (g), (h), (i) as well as under Order
43 Rule 1 Clause (a) to (w). An appeal
against an order passed under Rules 1, 2,
2A, 4 or 10 of Order 39 is provided by
clause (r) of Order 43 Rule 1 C.P.C.

22. Section 107 C.P.C. provides that
subject to such conditions and limitations
as may be prescribed, an appellate court
shall have power, (a) to determine a case
finally; (b) to remand a case (c) to frame
issues and refer them for trial; (d) to take
additional evidence or to require such
evidence to be taken. Further, subject to
the above, the appellate court shall have
the same powers and shall perform as
nearly as may be the same duties as are
conferred and imposed by the Code of
Civil Procedure on courts of original
jurisdiction in respect of suits instituted
before those courts.
8 All. Dr. Chandra Deo Tyagi Vs. A.D.J., Court No. 1, Meerut & Ors.
213

23. As such, Section 107(1) (d)
C.P.C. specifically provides that the
appellate court shall have power to take
additional evidence or to require such
evidence to be taken. The power, is,
however, subject to such conditions and
limitations as may be prescribed.

24. Section 2(16) C.P.C., the
definition clause, provides that in this
Act, unless there is anything repugnant in
the subject or context ''Prescribed' means,
prescribed by rules, and ''Rules' have
been defined under Clause (18) of
Section 2, which means rules and forms
contained in the first schedule or made
under Section 122 or Section 125. The
first schedule contains the orders and the
rules thereunder. Order 41 C.P.C. lays
down the procedure with respect to
appeals from original decrees. Its Rule
27, provides for production of additional
evidence
in
appellate
court,
and
according to this rule, the parties to an
appeal shall not be entitled to produce
additional evidence, whether oral or
documentary in the appellate court; but if
the condition as provided by Clause (a),
(aa), (b), (c) of Sub rule (1) are satisfied
the appellate court may allow such
evidence or document to be produced or
witness
to
be
examined.
Where
additional evidence is allowed to be
produced, the appellate court shall have
to record the reasons for its admission.

25. Section 108 C.P.C. provides for
the procedure to be followed in appeals
from appellate decrees or orders. As per
this Section, the provisions of Part VII
relating to appeals from original decrees
shall, so far as may be, apply to appeals
(a) from appellate decrees; and (b) from
order made under the Code or under any
special or local law, in which, a different
procedure is not provided. Section 107
C.P.C. which provides for the powers of
the appellate court falls in part VII.

26. Order 43 Rule 2 C.P.C. also provides
that the rules of Order 41 shall apply, so far as
may be, to appeals from orders.

27. The Allahabad High Court
amendment, inserts "and Order 41-A" in
Rule 2 of Order 41 between the words
"the rules of order 41" and "shall apply".
Order 41-A, inserted by the High Court
Amendment, applies to appeals from
original decrees in the High Court. The
same shall apply to Appeals from Orders
filed in the High Court. The present case
relates to the appeal before the appellate
court, below, and not before the High
Court, and as such, Order 41 A is not
relevant for the present controversy.

28. From a conjoint and bare
reading of Section 108 & Order 43 Rule
2 C.P.C. it is clear that Order 41 shall apply to the
appeals before the appellate court arising from
orders under Section 104 read with Order 43 Rule
1 C.P.C. or from orders made under any special or
local law in which a different procedure is not
provided. Here, the court is concerned with appeal
from order made under C.P.C. Order 41 shall
apply to appeals from orders but ''so far as may be,'
the expression used in Section 108 & Order 43
Rule 2 C.P.C. This expression ''so far as may be' is,
therefore, considered to be of utmost importance.

29. In the case of Dr. Pratap Singh
versus
Director
of
Enforcement,
Foreign Exchange and Regulation Act
(1985) 3 SCC 72, the expression "so far
as may be" came for consideration in the
context of searches made under Section
37(2)
of
the
Foreign
Exchange
Regulation Act, 1973. which provided,
that the provision of the Code of
214 INDIAN LAW REPORTS ALLAHABAD SERIES
Criminal Procedure relating to searches,
shall, so far as may be, apply to searches
directed under Section 37(1) of the Act,
1973. The Hon'ble Supreme Court held
that the expression "so far as may be" has
always been construed to mean that those
provisions may be generally followed to
the extent possible. In order to give full
meaning, the expression so far as may be,
in sub Section (2) of Section 37 of the
Act, 1973, was interpreted to mean that
broadly the procedure relating to search
as enacted in Section 165 Cr.P.C. shall be
followed. But, if a deviation becomes
necessary to carry out the purpose of the
Act
in
which
Section
37(1)
is
incorporated, it would be permissible
except that when challenged before a
court of law, justification will have to be
offered for the deviation.

30. Paragraph 12 of the judgment in
Pratap Singh case (supra) is being
reproduced as under:-

"12. Section 37(2) provides that
'the provisions of the Code relating to
searches, shall so far as may be, apply to
searches directed under Section 37(1).
Reading the two sections together it
merely means that the methodology
prescribed for carrying out the search
provided in Section 165 has to be
generally followed.

The expression 'so far as may
be' has always been construed to mean
that those provisions may be generally
followed to the extent possible.

The submission that Section
165(1) has been incorporated by pen and
ink in Section 37(2) has to be negatived
in
view
of
the
positive
language
employed
in
the
section
that
the
provisions relating to searches shall so
far as may be apply to searches under
Section 37(1). If Section 165(1) was to be
incorporated by pen and ink as Subsection (2) of Section 37, the legislative
draftsmanship will leave no room for
doubt by providing that the provisions of
the CrPC relating to searches shall apply
to the searches directed or ordered under
Section 37(1) except that the power will
be
exercised
by
the
Director
of
Enforcement or other officer exercising
his power and he will be substituted in
place of the Magistrate. The provisions of
Sub-section (2) of Section 37 has not
been cast in any such language. It merely
provides that the search may be carried
out according to the method prescribed
in Section 165(1). If the duty to record
reasons which furnish grounds for
entertaining a reasonable belief were to
be recorded in advance, the same could
have been incorporated in Section 37(1),
otherwise a simple one line section would
have been sufficient that all searches as
required for the purpose of this Act shall
be carried out in the manner prescribed
in Section 165 of the Code by the officer
to be set out in the section. In order to
give full meaning to the expression 'so
far as may be', Sub-section (2) of
Section 37 should be interpreted to
mean
that
broadly
the
procedure
relating to search as enacted in Section
165 shall be followed. But if a deviation
becomes necessary to carry out the
purposes of the Act in which Section
37(1) is incorporated, it would be
permissible except that when challenged
before a court of law, justification will
have to be offered for the deviation. This
view will give full play to the expression
'so far as may be'."

31. In the case of Ismail Faruqui
versus Union of India (1994) 6 SCC
360, the expression ''so far as may be',
used in Section6(3) of the "Acquisition
8 All. Dr. Chandra Deo Tyagi Vs. A.D.J., Court No. 1, Meerut & Ors.
215
of Certain Area at Ayodhya Act, 1993,"
by which it was provided that the
provisions of Sections 4, 5, 7 and 11
shall, so far as may be, apply in relation
to such authority or body or trustees, as
they apply in relation to the Central
Government, was interpreted by the
Hon'ble Supreme Court as indicative of
the fact that all or any of these provisions
may or may not be applicable to the
transferee under sub-section (1).

32. It is relevant to quote paragraph
56 of Ismail Faraqui case (supra) as
under:-

"56. We would now examine the
validity of Section 6. Sub-section (1) of
Section
6
empowers
the
Central
Government to direct vesting of the area
acquired or any part thereof in another
authority or body or trust. This power
extends to the entire acquired area or any
part thereof. This is notwithstanding
anything contained in Sections 3, 4, 5
and 7. Section 3 provides for acquisition
of the area and its vesting in the Central
Government. It is, therefore, made clear
by sub-section (1) of Section 6 that the
acquisition of the area and its vesting in
the Central Government is not a
hindrance to the same being vested
thereafter by the Central Government in
another authority or body or trust.
Section 4 relates to the effect of vesting
and Section 5 to the power of the Central
Government to secure possession of the
area vested, with the corresponding
obligation of the person or the State
Government in possession thereof to
deliver it to the Central Government or
the authorised person. Section 4(3)
relating to abatement of pending suits
and
legal
proceedings
would
be
considered separately. Section 7 which
we have already upheld, relates to
management and administration of the
property by the Central Government or
the
authorised
person
during
the
interregnum till the exercise of power by
the Central Government under Section
6(1). Section 7 has been construed by us
as a transitory provision to maintain
status quo in the disputed area and for
proper
management
of
the
entire
property
acquired
during
the
interregnum. Thus, sub-section (1) of
Section 6 read with sub-section (2) of
Section 7 is an inbuilt indication in the
statute of the intent that acquisition of the
disputed area and its vesting in the
Central Government is not absolute but
for the purpose of its subsequent transfer
to the person found entitled to it as a
result of adjudication of the dispute for
the resolution of which this step was
taken, and enactment of the statute is
part of that exercise. Making of the
Reference
under
Article
143(1)
simultaneously with the issuance of
Ordinance, later replaced by the Act, on
the same day also is an indication of the
legislative intent that the acquisition of
the disputed area was not meant to be
absolute but limited to holding it as a
statutory receiver till resolution of the
dispute; and then to transfer it, in
accordance with, and in terms of the final
determination made in the mechanism
adopted for resolution of the dispute.
Sub-section (2) of Section (6) indicates
consequence of the action taken under
sub-section (1) by providing that as a
result of the action taken under subsection (1), any right, title and interest in
relation to the area or part thereof would
be deemed to have become those of the
transferee. Sub-section (3) of Section 6
enacts that the provisions of Sections 4,
5, 7 and 11 shall, so far as may be, apply
216 INDIAN LAW REPORTS ALLAHABAD SERIES
in relation to such authority or body or
trustees as they apply in relation to the
Central Government. The expression
"so far as may be" is indicative of the
fact that all or any of these provisions
may or may not be applicable to the
transferee under sub-section (1). This
provides for the situation of transfer
being made, if necessary, at any stage
and of any part of the property, since
Section 7(2) is applicable only to the
disputed area. The provision however
does
not
countenance
the
dispute
remaining unresolved or the situation
continuing perpetually. The embargo on
transfer till adjudication, and in terms
thereof, to be read in Section 6(1), relates
only to the disputed area, while transfer
of any part of the excess area, retention
of which till adjudication of the dispute
relating to the disputed area may not be
necessary, is not inhibited till then, since
the acquisition of the excess area is
absolute subject to the duty to restore it
to the owner if its retention is found, to
be
unnecessary,
as
indicated.
The
meaning of the word ''vest' in Sections 3
and 6 has to be so construed differently
in relation to the disputed area and the
excess area in its vicinity."

33. In the case of Maktool Singh
versus State of Punjab (1999) 3 SCC 321,
Section 36-B of the Narcotic Drugs and
Pyschotropic Substances Act, 1985, provided
that the High Court may exercise so far as
may be applicable all the powers conferred
by Chapters 29 and 30 of the Code of
Criminal Procedure, 1973, on a High Court
as if a Special Court within the local limits of
the jurisdiction of the High Court were a
Court of Session trying cases within the local
limits of the jurisdiction of the High Court.
Thus, the provisions of Chapters 29 and 30 of
Cr.P.C. were made applicable to the Act,
1985, ''so far as may be' The Hon'ble
Supreme Court held that Section 36-B clearly
indicated that its applicability was subject to
the extent of adaptability because of the
words employed there in "so far as may be
applicable." This means, the High Court can
exercise powers under Chapter 29 of the
Code, only to the extent such powers are
applicable. In other words, if there is an
interdict
against
applicability
of
any
provision, the High Court cannot use such
powers albeit, its inclusion in Chapter 29 of
the Code and that is the effect of employment
of the words "so far as may be applicable,"
where a statute incorporates the provisions of
another statute.

34. Paragraph 6 of the judgment in
the case of Maktool Singh (supra) is
being reproduced as under:-

"The
argument
advanced
before us is that when Section 36-B of the
Act preserved the powers of the High
Court under Chapter XXIX of the Code
while dealing with an appeal challenging
conviction under the Act, it must be
deemed to have preserved all the powers
mentioned in Section 389 of the Code
including the power to suspend the
sentence. But we canot give accord to
that argument on the following grounds.
When Section 36-B of the Act is
juxtaposed with Section 32-A, the latter
must dominate over the former mainly for
two reasons. First is that Section 32-A
overrides all the provisions of the Code,
by specific terms, through the non
obstante
limb
incorporated
therein.
Second is that Section 36-B has clearly
indicated that its applicability is subject
to the extent of adaptability because of
the words employed therein "so far as
may be applicable". This means, the
High Court can exercise powers under
8 All. Dr. Chandra Deo Tyagi Vs. A.D.J., Court No. 1, Meerut & Ors.
217
Chapter XXIX of the Code only to the
extent such powers are applicable. In
other words, if there is an interdict
against applicability of any provision,
the High Court cannot use such
provision, albeit its inclusion in Chapter
XXIX of the Code. That is the effect of
employment of the words "so far as may
be
applicable"
when
a
statute
incorporates the provision of another
statute."

35. In the case of Regional
Provident
Fund
Commissioner
vs.
Hooghly Mills Co. Ltd & Others
reported in (2012) 2 SCC 489 the
expression "so far as may be" used in
Section 17(1-A) (a) of the Employees
Provident
Funds
and
Miscellaneous
Provisions Act, 1952" came up for
consideration. The High Court, in this
case, had taken the view that Sections 6,
7A, 8 & 14-B of the Act could not be
applied in their entirety, for the use of the
expression "so far as may be" in Section
17(1A)(a) of the Act 1952. The Hon'ble
Supreme Court did not accept the
interpretation of the High Court, and held
that an interpretation of the statute which
harmonizes with its avowed object is
always to be accepted than the one which
dilutes it. The Act 1952, was a social
welfare legislation to ensure health and
other benefits to the employees; and the
employer under the Act was under an
obligation
to
make
the
deposit.
Therefore, for construing Section 14 B &
17(1A)(a), a purposive approach, which
promoted the purposes of the Act was
adopted. The Hon'ble Supreme Court
held that the parameters of interpretation
cannot be the same for interpreting a
fiscal statute; special statute, and a social
welfare legislation.

36. It is relevant to reproduce
paragraph nos. 49, 50, 51, 54, 55, 56 of
the Hooghly Mills Case (supra) as
under:-

"49. Apart from that the High
Court's interpretation of the expression
"so far as may be" as limiting the ambit
and width of Section 17(1A)(a) of the Act,
in our judgment, cannot be accepted for
two reasons as well.

50. The High Court is guided in
the interpretation of the word "so far as
may be" on the basis of the principle that
statutes does not waste words. The High
Court
has
also
relied
on
the
interpretation given to "so far as may be"
in the case of Dr. Pratap Singh and
another v. Director of Enforcement,
Foreign Exchange Regulation Act and
others reported in AIR 1985 SC 989. It
goes
without
saying
that
Foreign
Exchange Regulation Act is a fiscal
statute dealing with penal provisions
whereas the aforesaid expression is to be
construed in this Act which is eminently a
social welfare legislation. Therefore, the
parameters of interpretation cannot be
the same.

Even then in Pratap Singh
(supra) this Court while construing "so
far as may be" held "if a deviation
becomes necessary to carry out the
purposes of the Act........................ it
would be permissible". Of course the
Court held that if such deviation is
challenged before a Court of law it has to
be justified.

51. In the instant case, the High
Court failed to discern the correct
principle of interpretation of a social
welfare legislation. In this connection we
may profitably refer to what was said by
Chief Justice Chagla about interpretation
of a social welfare or labour legislation
218 INDIAN LAW REPORTS ALLAHABAD SERIES
in Prakash Cotton Mills (P) Ltd. v. State
of Bombay reported in (1957) 2 LLJ 490.
Justice Chagla unerringly laid down:

"no labour legislation, no social
legislation, no economic legislation, can be
considered by a court without applying the
principles of social justice in interpreting the
provisions of these laws. Social justice is an
objective which is embodied and enshrined in
our Constitution......it would indeed be
startling for anyone to suggest that the court
should shut its eyes to social justice and
consider and interpret a law as if our country
had not pledged itself to bringing about
social justice."

54. Unfortunately, the High
Court missed this well settled principle of
interpretation
of
social
welfare
legislation
while
construing
the
expression "so far as may be" in
interpreting the provision of Section 17
(1A)(a) of the Act and unduly restricted
its application to the employer of an
exempted establishment.

55. The interpretation of the
expression "so far as may be" by this
Court in its Constitution Bench decision
in M. Ismail Faruqui (supra) was given
in a totally different context. The said
judgment on a Presidential Reference
was rendered in the context of the well
known Ram Janam Bhumi Babri Masjid
controversy where a special Act, namely,
Acquisition of Certain Area at Ayodhya
Act was enacted and sub-section (3) of
Section 6 of the said Act provides that the
provisions of Sections 4, 5 & 7 shall "so
far as may be" apply in relation to such
authority or body or trustees as they
apply
in
relation
to
the
Central
Government. In that context this Court
held that the expression "so far as may
be" is indicative of the fact that all or any
of these provisions may or may not be
applicable to the transferee under subsection (1). The objects behind the said
enactment are totally unique and the
same was a special law. Apart from this,
this Court did not lay down any general
principle
of
interpretation
in
the
application of the expression "so far as
may be". Their being vast conceptual
difference in the legal questions in that
case, the interpretation of "so far as may
be" in M. Ismail Faruqui (supra) cannot
be applied to the interpretation of "so fr
as may be" in the present case.

56.
The
High
Court's
interpretation also was in error for not
considering another well settled principle
of interpretation. It is not uncommon to
find legislature sometime using words by
way of abundant caution. To find out
whether the words are used by way of
abundant caution the entire scheme of
the Act is to be considered at the time of
interpretation. In this connection we may
remember the observation of Lord Reid
in
I.R.
Commissioner
v.
Dowdall
O'Mahoney & Co. reported in (1952) 1
All E.R. 531 at page 537, wherein the
learned Law Lord said that it is not
uncommon to find that legislature is
inserting superfluous provisions under
the influence of what may be abundant
caution. The same principle has been
accepted by this Court in many cases.
The High Court by adopting, if we may
say so, a rather strait jacket formula in
the interpretation of the expression "so
far as may be" has in our judgment,
misinterpreted the intent and scope and
the purpose of the Act."

37. Thus, the Court finds, that the
expression ''so far as may be' is indicative
of the fact that all or any of the
provisions, which have been made
applicable, may or may not be applicable.
This
expression
has
always
been
8 All. Dr. Chandra Deo Tyagi Vs. A.D.J., Court No. 1, Meerut & Ors.
219
construed to mean that the provisions
may be generally followed, to the extent
possible.
Even
if,
some
deviation
becomes necessary to carry out the
purpose of the Act such deviation is
permissible, for justified reasons. The
power and/or the procedure, which has
been
made
applicable
by
use
of
expression ''so far as may be' shall apply
to the extent there is no interdict. This
expression has to be given its meaning,
considering the nature of the statute in
which it exists as well as the nature of the
statute to which such provision has been
applied. The same parameters cannot be
applied in giving interpretation to this
expression.