# [1964] 5 S.C.R. 905

- **Citation:** [1964] 5 S.C.R. 905
- **Court:** Supreme Court of India
- **Decided:** 1963-12-10
- **Case number:** Civil Appeals Nos. 47 and 48 of 1961
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/1964-5-s-c-r-905-3053
- **Pages:** 7

## Headnote

-
5 S.C.R.
SUPREME COURT REPORTS
905
Cases under the former rule 30 cannot be used as
1963
precedents because the present rule 3(b' has been
-materially altered by the addition of the proviso. Life Insurance
Formerly the rule tried to serve both the objects by Corporation Ltd.
using the word "may" but the word "may" which
v.
gave a discretion to the Income-tax Officer could Commissioner
lead to arbitrary actions and the rule is now in two of Income-tax.
parts, the main rule leaving no discretion and the
Delhi &
proviso conferring a power subject to certain conRajasthan
ditions.
In the result, I disagree with the High Court
in the answer which it gave to the question. The
proper answer was in the negative. I agree, therefore,
that the appeals be allowed with costs on the
respondent here and in the High Court.
Appeals allowed.
BHUSAWAL BOROUGH MUNICIPALITY
v.
Hidayatu/lah J.
1963
AMALGAMATED ELECTRICITY CO. LTD. &
December 10
ANR.
<'
(B.P. SINHA, CJ., RAGHUBAR DAYAL, N. RATAGOPALA
,
I
AYYANGAR AND J.R. MuoHOLKAR JJ.)
Bombay Electricity Supply (Licensed Undertakings was Costsl
Order, 944. cl. 5-Scope of-Construction of document--If question
of /aw.
The Municipality filed two suits to claim refund of two sums
of money paid by them to the respondent no. 1 under protest as
electricity charges. The defence of the respondent no. 1 was
that the dispute between it and the municipality was decided by the
Government of Bombay and that under the second proviso to
cl. 5 of the Surcharge Order, 1944 the decision of the Government
was final and binding both on the appellant and the responc!~nt
no. !. The decision of the Government was communicated
to the parties by the letter dated May 22, 1946. The appellant
succeeded in both the suits in the trial court as well as the District
906
SUPREME COURT REPORTS
[ 1964]
1963
Court.
In second appeaL the High Court dismissed the two
suits.
Hence this appeal.
Bhusawa/
Borough
Municipality
Held:
(i) The Municipality was not entitled to claim
refund because the dispute between the parties had been decided
by the Government under the second proviso to cl. 5 of the Sm'charge
Order, I 944. The decision of the Government was final and bindA
I v.
d ing on the parties.
nla gamate
Electricity Co
(ii) The communication da!ed May 22, 1946 sent by the Govern-
., ment to both the parties was a final decision under the secon<!:
Ltd. & Anr.
proviso to cl. 5 of the Surcharge Order, 1944. There is no reason
to think that the communication contains nothing but the opinion
of the Government.
(iii) The second proviso to cl. 5 of the Surcharge Order does
not require that the dispute has to be referred by both the
parties. Such a dispute can be referred by one of the parties as
is clear from the language of the proviso which says "in the event
of dispute by any party interested" the decision of the provincial
Govemment shall be final.
(iv) The Trial Court and the District Court had wholly misconstrued the document dated May 22, 1946 which is not merely
of evidentiary value but is one upon which the claim of the respondent no. 1 for the surcharge is based. Misconstruction of such
a document would thus be an error of Jaw and the High Court
in second appeal would be entitled to correct it.

## Text

-
5 S.C.R.
SUPREME COURT REPORTS
905
Cases under the former rule 30 cannot be used as
1963
precedents because the present rule 3(b' has been
-materially altered by the addition of the proviso. Life Insurance
Formerly the rule tried to serve both the objects by Corporation Ltd.
using the word "may" but the word "may" which
v.
gave a discretion to the Income-tax Officer could Commissioner
lead to arbitrary actions and the rule is now in two of Income-tax.
parts, the main rule leaving no discretion and the
Delhi &
proviso conferring a power subject to certain conRajasthan
ditions.
In the result, I disagree with the High Court
in the answer which it gave to the question. The
proper answer was in the negative. I agree, therefore,
that the appeals be allowed with costs on the
respondent here and in the High Court.
Appeals allowed.
BHUSAWAL BOROUGH MUNICIPALITY
v.
Hidayatu/lah J.
1963
AMALGAMATED ELECTRICITY CO. LTD. &
December 10
ANR.
<'
(B.P. SINHA, CJ., RAGHUBAR DAYAL, N. RATAGOPALA
,
I
AYYANGAR AND J.R. MuoHOLKAR JJ.)
Bombay Electricity Supply (Licensed Undertakings was Costsl
Order, 944. cl. 5-Scope of-Construction of document--If question
of /aw.
The Municipality filed two suits to claim refund of two sums
of money paid by them to the respondent no. 1 under protest as
electricity charges. The defence of the respondent no. 1 was
that the dispute between it and the municipality was decided by the
Government of Bombay and that under the second proviso to
cl. 5 of the Surcharge Order, 1944 the decision of the Government
was final and binding both on the appellant and the responc!~nt
no. !. The decision of the Government was communicated
to the parties by the letter dated May 22, 1946. The appellant
succeeded in both the suits in the trial court as well as the District
906
SUPREME COURT REPORTS
[ 1964]
1963
Court.
In second appeaL the High Court dismissed the two
suits.
Hence this appeal.
Bhusawa/
Borough
Municipality
Held:
(i) The Municipality was not entitled to claim
refund because the dispute between the parties had been decided
by the Government under the second proviso to cl. 5 of the Sm'charge
Order, I 944. The decision of the Government was final and bindA
I v.
d ing on the parties.
nla gamate
Electricity Co
(ii) The communication da!ed May 22, 1946 sent by the Govern-
., ment to both the parties was a final decision under the secon<!:
Ltd. & Anr.
proviso to cl. 5 of the Surcharge Order, 1944. There is no reason
to think that the communication contains nothing but the opinion
of the Government.
(iii) The second proviso to cl. 5 of the Surcharge Order does
not require that the dispute has to be referred by both the
parties. Such a dispute can be referred by one of the parties as
is clear from the language of the proviso which says "in the event
of dispute by any party interested" the decision of the provincial
Govemment shall be final.
(iv) The Trial Court and the District Court had wholly misconstrued the document dated May 22, 1946 which is not merely
of evidentiary value but is one upon which the claim of the respondent no. 1 for the surcharge is based. Misconstruction of such
a document would thus be an error of Jaw and the High Court
in second appeal would be entitled to correct it.
CIVIL APPELLATE JURISDICTION:
Civil Appeals
Nos. 47 and 48 of 1961.
Appeals by special leave from the judgment and
decree dated August 5, 1957, of the Bombay High
Court in Appeal No. 1085 of 1954 with second Appeal
No. 1086 of 1954.
G.S. Pathak and Naunit Lal, for the appellant.
I.N. Shroff, for respondent no. 1.
M.S.K. Sastri and R.H. Dhebar, for respondent
no. 2.
December 10, 1963. The Judgment of the Court
was delivered by
Mudholkar J.
MuDHOLKAR J.-This judgment will also govern
C.A. no. 48 of 1961. Both the appeals are by special
leave from the judgment of the Bombay High Court
.... -
1w~
.,--
y
in second appeal disposing of two appeals which
~
arise out of two separate suits instituted by the appel-
~
lant, the Borough Municipality of Bhusawal, against
i
.t
!
'
5 S.C.R.
SUPREME COlJRT REPORTS
907
the Bhusawal Electricity Co. Ltd., respondent No.
1 before us, to which suits the State of Bombay was
later added as a defendant.
1963
Bhusawal
Borough
Municipality
In each of the two suits the appellant had claimed
refund of two sums of money paid by them to the·
respondent No. 1 under protest as electricity charges
A
1 v.
1 d
to which the respondent No.· l claimed to be entitled Elm~ ga.~w;
by virtue of an order made by the Government of
{cJ'~ ~ a.,
Bombay under the Bombay Electricity Supply (Licen1 ·
nr.
sed Undertakings War Costs) Order, 1944 (herein Mudholkar J.
referred as Surcharge Order). The appellant succeeded in both the suits in the trial court as well as the
District Court. In second appeal, however, the High
Court set aside the decrees passed by the trial court
and dismissed the two suits. While doing so, the
High Court admitted on record certain documents
by way of additional evidence and the only contentions
raised before us by Mr. G.S. Pathak for the appellant
are firstly that the High Court is incompetent in second
appeal to admit additional evidence on record inasmuch as 0. XLI, r. 27, Code of Civil Procedure
is inapplicable to a second appeal. Secondly, the
provisions of O. XLI, r. 27 cannot be used to fill
up the lacuna in the evidence left by a party. We
may incidentally mention that when the High Court,
by its order dated April 30, 1958, decided to admit
additional evidence on record, no objection was
raised on behalf of the appellant before us.
It seems to us to be wholly unnecessary to decide
in this case whether the High Court has the power
to admit additional evidence in second appeal and
also whether even if it has that power it was right in
admitting the evidence in the circumstances of this
case. Basing itself on a particular interpretation
of the agreements regarding payment of electric
charges with respondent no. 1, the appellant claimed
refund on the ground that it was not liable to pay the
surcharge payable under the Surcharge Order, 1944
in respect of electrical energy consumed by it. The
substantial defence of the respondent no. 1 was that
the dispute between it and the municipality was
1963
Bhusawal
Borough
Municipality
v.
Amalgamated
Electricity Co.,
Ltd. & Anr.
Mudho/kar J.
908
SUPREME COURT REPORTS
[1964]
decided by the Government of Bombay and that
under the second proviso to cl. 5 of the Surcharge
Order, 1944 the decision of the Government was
final and binding both on the appellant and the respondent No. I. The relevant provisions read thus:
Clause 5: "Upon the rate of the War Costs
Surcharge being fixed by the Provincial Government from time to time
in accordance with this order, it shall
not be lawful for the licensee or sanction-holder concerned to supply energy
at other than charges surcharged at
the rate for the time being so fixed:"
Second proviso: "Provided further that no War
,,
Costs Surcharge shall be effective upon
the charges for the supply of energy
under any contract entrered into
after the lst May, 1942, unless such
contract provides for the same charges
for energy as have been contained
in similar previous contracts for similar
supply by the licensee or sanction
holder concerned (as to which in
the event of dispute by any party
interested, the decision of the Provincial Government shall be final)
or unless and to such extent as such
application may be expressly ordered
by the Provincial Government."
It is not disputed before us by Mr. Pathak that the
decision of the Government upon the dispute is final
and binding on the parties. But, according to him,
it was not established by the evidence led in the trial
Court that the dispute between the parties had at all been
referred to the Government and that a certain communication sent by the Government to the parties, Ex.
68 dated May 22, 1946 relied upon by the respondent
no. 1, contains nothing but the opinion of the Government. Mr. Pathak further urged that the proviso
referred to by us purports to constitute the Govern-
-
-
5 S.C.R.
SUPREME COURT REPORTS
909
ment into an arbitrator and, therefore, there had
1963
to be a reference to the arbitrator by both the parties
to the dispute under the provisions of the ArbitraBhusawal
tion Act, 1940. This latter point, however, had not
Borough
been taken in the courts below nor is it found in the Municipality
statement of the case. We have, therefore, not perv.
mitted Mr. Pathak to rely upon it before us.
Amalgamated
Th
.
.
f M
22 1946
1. d
Electricity Co.,
e commumcatJon o
ay
,
re 1e upon
Ltd & A
by the first respondent runs thus:
·
nr.
"No. 6404/36-El(l).
Public Works Department,
Mudholkar J.
Bombay Castel, 22nd May, 1946.
From
To
The Secretary to the Government of Bombay
Public Works Department (Irrigation).
The President, The Borough .Municipality,
Bhusawal.
Subject: War Costs Surcharge ..
Dear sir,
With reference to the correspondence ending
with Government letter no. 6404/36, dated the
10th May, 1946 on the subject
mentioned
above, I am to inform you that Government
has fully considered your case under the second
proviso to clause 5 of the Bombay Electricity
Supply (Licensed Undertakings War Costs) Order,
1944, and has decided that you should pay the
surcharge to the Bhusawal Electricity Co. Ltd.,
at the rate of 15% fixed in Government Order
No. 6331/36 (IV) dated the 15th August, 1944,
unless the Company raised its rate of supply
of energy for street lighting to more than 4 annas
per unit.
Yours faithfully,
Sd/ D.N. Daruwala.
for Secretary to the Govt. of Bombay.
Copy forwarded for information to: Public works
Department, the Electrical Engineer to the
1963
Bhusawal
Borough
Municipaiity
v.
Amalgamated
Electricity Co.,
Ltd. & Anr.
Mudholkar J.
910
SUPREME COURT REPORTS
[1964 J
Government with reference to his No. LRM.57/
5260, dated the 8th March, 1946. The Accountant General, Bombay with reference to his No.
O.A. 2888, dated the 2nd February 1946. Messrs
The Bhusawal Electricity Co. Ltd., Bombay with
reference to correspondence ending with Government letter No. 6404/36-El. (i' dated the 17th
May 1946. CC to E.E. Bhusawal for information sent on 25th May 1946."
It is obvious from this communication that both
the parties, that is, the appellant as well as the respondent no. 1 had stated their respective cases before
the Government . There was no occasion for them
to do so unless they were both purporting to act
under the second proviso to cl. 5 of the Order of 1944.
After consideration of the cases of both the parties
the Government has stated in the aforesaid communication that it had decided that the municipality should
pay to the Electricity Company surcharge at the
rate of 15 % ·fixed in a certain Government Order
unless the Company raised its rate for the supply of
energy for street lighting to more than four annas
per unit. There is no reason to think that what is
on the face of it a decision is nothing but. an opinion
because if·there were anything in the correspondence
to which a reference is made in that letter as well
as in the endorsement at the bottom which went to
show that the appellant did not purport to refer any
dispute to the Government, it was for the appellant
to produce that correspondence. Its omission to
do so must be construed against it. Then Mr.
Pathak said that under the Surcharge Order itself
the dispute had to be referred by both the parties
and not by only one of them. This contention is,
however, untenable in view of the clear language of
the proviso which says: "In the event of dispute by
any party interested" the decision of the Provincial
Government shall be final. There is, therefore, no
substance in the contention.
In our opinion the
trial court and the District Court had wholly misconstrued this document which is not merely of evident-
,.
-
\'
:,
•. "'
~-
i
. .
1~
5 S.C.R.
SUPREME COURf REPORTS
911
iary value but is one upon which the claim of the
respondent no. 1 for the surcharge is based. Misconstruction of such a document would thus be an
error of law and the High Court in second appeal
would be entitled to correct it. This is what in fact
has been done.
There is no substance in the appeals which are
dismissed with costs.
Appeals dismissed.
V.R. SADAGOPA NAIDU
v.
BAKTHAVATSALAM & ANR.
(P.B. GAJENDRAGADKAR AND K.C. DAS GUPTA, JJ.)
Hindu Law--Jntercaste marriage-Marriage before the ActIf the Act has retrospective 4fect-The Hindu Marriages Validity
Act, 1949 (Act 21 of 1949), s. 3.
The minor respondent no. 1 brought a suit for partition on
a claim that on his birth he became a member of the joint Hindu
family which his father Sadagopa Naidu, the first defendant,
in the suit, formed with the other nine persons impleaded as defendants 2 to 10. His case was that Padmavathi and Sada Gopa
were validly married on June 24, 1948 and of that marriage he
was born. The case of the defendant was that the impugned
marriage was not a valid marriage as Padmavathi was a Brahmin
girl and Sada Gopa a Shudra. On these facts the Trial Court passed
a preliminary decree for partition in favour of the respondent no.
I. The Trial Court was of opinion that the marriage would be
invalid according to the Hindu Law as it stood before the Hindu
Marriages Validity Act, 1949. It held however that the position
had been entirely changed by s. 3 of the Hindu Marriages Validity
Act, 1949 and that the marriage was validated by the Act of 1949.
On appeal by the defendants, the High Court affirmed the judgment
and decree passed by the trial court. Hence this appeal.
Held:
(i) The Hindu Marriages Validity Act, 1949 was
however in terms retrospective and validated marriages that had
taken place before the Act between parties belonging to different
1963
Bhusawal
Borough
Municipality
v.
Amalgamated
Electricity Co.,
Ltd. & Anr.
Mudholkar J.
1963
December I