Appeal No 695 of 1957
Appeal by special leave from the judgment and order dated September 17 1957 of the Andhra 1113 Pradesh High Court in Civil Revision Petition No 1112 of 1957 arising out of the order dated July 6 1957 of the Court of the Second Additional Judge City Civil Court Hyderabad Decan made on the application under 0 1 r 10 C P C in Original Suit No 431 of 1957
MC Setalvad Attorney General for India C K Daphtary Solicitor General of India H N Sanyal Additional Solicitor General of India N C Chatterjee Syed Mohasim Akbar Ali Mosavi H J Umrigar 0
N Srivastava J B Dadachanji section N Andley Rameshwar Nath and P L Vohra for the appellant
Purshottam Tricumdas Anwarull Pusha and G Gopalakrishnan for respondent No 1
Sir Sultan Ahmed A Ramaswami Iyengr C Chakravarthy section Ranganathan and G Gopalakrishan for respondent No 2
GS Pathak A V Viswanatha sastri Mohd Yunus Saleem Ghulam Ahmed Khan Choudhary Akhtar Hussain Shaukat Hussain and Sardar Bahadur for respondent No 3 1958
May 23
The judgment of B P Sinha and J L Kapur JJ was delivered by Sinha J Jafer Imam J delivered a separate judgment
SINHA J
This appeal by special leave is directed against the concurring judgments and orders of the courts below allowing the intervention of respondents I and 2 and adding them as defendants 2 and 3 in the suit instituted by the appellant against her alleged husband now respondent 3 who was the sole defendant in the suit as originally framed
The main question in controversy in this appeal is the true construction of sub r
2 of r 10 of 0 1 of the Code of Civil Procedure and its application to the facts of this case which are given below On April 12 1957 the plaintiff appellant in this Court instituted the suit out of which this appeal arises against the third respondent who is the second son of His Exalted Highness the Nizam of Hyderabad and who will hereinafter be referred to as the Prince
1114 In the plaint she alleged that she is the lawfully married wife of the Prince the marriage ceremony Nikah having been solemnized in accordance with the Shia Law by a Shia Mujtahid on October 19 1948
The plaintiff also averred that the issue of the marriage were three daughters aged 8 7 and 5 years that the fact of the marriage was known to all persons acquainted with the Prince that there was a prenuptial agreement whereby the Prince agreed to pay Rs 2000 per month to the plaintiff as Kharch e pandan that the Prince stopped the payment of the allowance aforesaid of Rs 2000 per month since January 1953 without any reasons and in contravention of the said agreement
On these allegations she asked for the following two declarations 1That the plaintiff be declared to be the legally wedded wife Mankuha of the defendant 2That a decree be passed in favour of this plaintiff against the defendant declaring her to be entitled to receive from the defendant 1
G Its 2000 per month as Kharch e pandan
 It may be noted that she did not make any claim for arrears of the allowance aforesaid since the date the Prince is alleged to have stopped payment of the same
Only ten days later on April 22 1957 the Prince filed his written statement admitting the entire claim of the plaintiff for the two declarations aforesaid
On that very date an application under 0 1 r 10 of the Code of Civil Procedure on behalf of 1 Saliebzadi Anwar Begum and 2 Prince Shahainat Ali Khan minor under the Guardianship of his mother the said Sahebzadi was made
They are respondents I and 2 respectively in this Court
The Sahebzadi respondent 1 claimed to be the  lawful and legally wedded wife of the Prince and respondent 2 the son of the Prince by the first respondent
In their petition they stated inter alia  The plaintiff herself has stated in the plaint that the defendant is trying to suppress the facts of his marriage with the plaintiff so that the members of his family should conclude that the plaintiff is not his Nikah wife and the defendant is interested in denying the rights and status of the plaintiff
1115 The petitioners on being joined as parties to the suit will be equally interested in denying the marriage of the plaintiff and her rights and status 
The peti tioners have reasons to believe that the above suit is a result of collusion
The object and motive of the plaintiff in instituting the above suit is to adversely affect the relationship of the petitioners and the defendant and also to deprive the rights and interests of the petitioners in the defendant s estate
 On June 15 1957 the plaintiff made an answer to the petition for intervention filed by respondents I and 2 aforesaid
She denied the right of the interveners to be impleaded in that suit and asserted that the  possibility of the rights of the petitioners being infringed are very remote contingent upon their or plaintiff surviving the defendant or other circumstances which may or may not arise She also founded her objection on the ground that having regard to the admission of the defendant in his written statement  there is no serious controversy in the suit
 She also added a number of legal objections which need not be specifically noticed as they have not been pressed in this Court
She further asserted that the petitioners meaning thereby respondents I and 2 are neither necessary nor proper parties to the suit
She anticipated the ground most hotly contested in this Court by asserting that the  judgment of this Hon ble Court in this suit will not be conclusive as against petitioners as they allege collusion and they will not be prejudiced by not being made parties
 She ends her statement by making the following significant allegation  The alleged collusion and motive attributed to the plaintiff for instituting this suit are denied
On the other hand the application to be added as defendants is mala fide and malicious and is evidently inspired by some strong force behind them interested in harassing the plaintiff and exposing her to the risk of a vexatious and protracted litigation
 The Prince in his own answer to the application for intervention stated that he admitted that the first 142 1116 respondent is his wife and that the second respondent is his son and repeated his admission by saying that lie married the plaintiff in October 1948 and the first respondent in December 1952
He added further that when he married the first respondent he had already three daughters by the plaintiff which fact was known to the first respondent at the time of her marriage with him
He supported the plaintiff in her objection to the intervention by asserting that the rights of respondents 1 and 2 will not be affected in any way and by insisting upon his Muslim right of having four wives living at the same time
He also supported the plaintiff in her denial of the allegation of collusion and  that the suit is intended to adversely affect the relationship of the petitioners and the defendant respondent and to deprive the rights and interests of the petitioners in the defendant respondent s estate
 He in his turn added the following equally significant penultmate para  That the petitioners  application has been filed in order to prolong the litigation and that the defen
dant responaent s father His Exalted Highness the Nizam appears to be more interested than petitioner No 1 herself in creating unnecessary complications in the suit
 On these allegations and counter allegations after hearing the parties the trial court by its judgment and order dated July 6 1957 allowed the application for intervention and directed respondents 1 and 2 to be added as defendants
The court after discussing all the contentions raised on behalf of the parties observed that there were indications in the record of a possible collusion between the plaintiff and the defendant that the relief claimed under section 42 of the Specific Relief Act being discretionary could not be granted as of right  that the presence of the interveners would help the court in unravelling the mysteries of the litigation and that there was force in the contention put forward on behalf of the interveners that under section 43 of the Specific Relief Act any declaration given in favour of the plaintiff will be binding upon the interveners
It also held that in order effectually and completely to 1117 adjudicate upon and settle the present controversy the presence of the interveners was necessary
The plaintiff moved the High Court of Judicature of Andhra Pradesh at Hyderabad under section 115 of the Code of Civil Procedure to revise the aforesaid order of the learned trial judge
The High Court in a wellconsidered judgment after discussing the points raised for and against the addition of the parties and noticing almost all the authorities quoted before us refused to interfere with the discretion exercised by the trial court and dismissed the revisional application
It came to the conclusion that the first respondent the admitted wife of the defendant and the second respondent the admitted son by her are interested in denying the status claimed by the plaintiff and  have some rights against the estate of the 3rd respondent
The learned Judge of the High Court further observed When so much sanctity is attached to the status of marriage it would indeed be strange that persons who are so intimately related to the 3rd respondent as wife and son should be denied the opportunity of contesting the status of the petitioner as his lawfully married wife 
It cannot be that the petitioner is seeking any empty relief carrying with it the stamp of futility and it is difficult to assume that she is fighting a vain or purposeless litigation
If what she is seeking is a relief which will carry with it certain legal incidents are not persons interested in denying her status proper parties to the litigation   The Court also observed that it was with a view to avoiding multiplicity of suits that r 102 of 0 1 had made provision foradding parties
The Court noticed the argument under section 43 of the Specific Relief Act but did not express any final opinion because in its view it had already reached the  conclusion that the proposed parties are persons whose presence before the court is necessary within the meaning of 0 1 r 10 2 so as to ensure that the dispute should be finally determined once for all in the presence of all the parties interested
 Against the judgment of the High Court refusing to set aside the order passed by the learned trial judge 1118 the plaintiff moved this Court and obtained special leave to appeal
In the forefront of his arguments in support of the appeal the learned Attorney General submitted that the court had no jurisdiction to add the first two respondents as defendants in the suit
He relied upon the words of the relevant portion of sub rule 2 of r 10 of O I of the Code which are as follows  2   and that the name of any person who ought to have been joined whether as plaintiff or defendant or whose presence before the Court may be necessary in order to enable the Court effectually and completely to adjudicate upon and settle all the questions involved in the suit be added
He rightly pointed out and there was no controversy between the parties before us that the added defendants do not come within the purview of the words  who ought to have been joined  which apparently have reference to necessary parties in the sense that the suit cannot be effectively disposed of without their presence on the record
The learned Attorney General strenuously argued that it cannot be asserted in this case that the presence of the added defendantsrespondents 1 and 2 before the court was necessary in order to enable the court effectually and completely to adjudicate upon and settle all the questions involved in the suit
He founded this argument on the legal position that the wife and the son of the Princerespondents I and 2 have no present interest in his estate
Their expectancy of succession to the estate of the Prince does not clothe them with any right vested or contingent to intervene in this action
In this connection he pointed out that r 10 of 0 1 of the Code of Civil Procedure which corresponds to portions of 0 16 r 11 of the Rules of the Supreme Court in England has been the subject matter of judicial interpretation in many cases
Both in this country and in England there have been two currents of judicial opinion one taking what may be called the narrower view and the other the wider view
As illustrations of the former that is to say the narrower 1119 view may be cited the cases of Moser vs Marsden 1 and McCheane vs Gyles No 2 2
In India this view is represented by the decision in the case of Sri Mahant Prayaga Doss Jee Varyu vs The Board of Commissioners for Hindu Religious Endowments Madras 3
On the other side of the line representing the wider view may be cited the case of Dollfus Mieg Et Compagnie section A vs Bank of England 4
In India the decisions of the Madras High Court in the cases of Vydianadayyan vs Sitaramayyan 5 and Secy of State vs M Murugesa Mudaliar 6 were cited as illustrations
But it was contended on behalf of the appellants that whether the narrower or the wider view of the interpretation of sub r
2 of r 10 of 0
I of the Code of Civil Procedure is taken the result so far as the present controversy is concerned would be the same
In the leading case of Moser vs Marsden 1 Lindley L J has held that a party who is not directly interested in the issues between the plaintiff and the defendant but is only indirectly or commercially affected cannot be added as a defendant because the court has no jurisdiction under the relevant rule to bring him on the record even as a  proper party 
That was a suit to restrain the alleged infringement of the plaintiffs patent by the defendant Marsden
The Court held reversing the order of the trial judge that the party sought to be added had no direct interest in
the subject matter of the litigation and all that could have been said on behalf of the party intervening was that the judgment against the defendant would affect his interest commercially
The Court distinguished the previous decisions in Vavasseur vs Krupp7 and Apollinaris Company vs Wilson 8 on the ground that in those cases the litigation would have affected the property of the persons not before the court
This leading case of Moser vs Marsden 1 is clearly an authority for the proposition that the court has jurisdiction to add as a party defendant only a person 1 2 3 Mad
4 195O 2 All E R 605
5 Mad
6 A I R 7 
8 1120 who is directly interested in the subject matter of the litigation and not a person who will be only indirectly or commercially affected
Kay L J who agreed with Lindley L J in that case observed that the relevant rule of the Supreme Court on its proper construction authorized the court to add only such persons as would be bound by the judgment to be given in the action but did not authorize the court to add any persons who would not be so bound and whose interest may only indirectly be affected in a commer cial sense
To the same effect is the decision in Re I G Farbeninadusrie A G Agreement 1
The Court held that in order that a party may be added as a defendant in the suit he should have a legal interest in the subject matter of the litigation legal interest not as distinguished from an equitable interest but an interest which the law recognizes
Lord Greene M R giving the judgment of the Court also observed that the court had
no jurisdiction to add a person as a party to the litigation if he had no legal interest in the issue involved in the case
In the case of Vydianadayyan vs Sitaramayyan 2 in which the wider view of the interpretation of the relevant rule was taken Turner C J delivering the judgment of the Court observed that the wider interpretation which enabled the court to avoid conflicting decisions on the same question and which would finally and effectually put an end to the litigation respecting it should be adopted
But in that case also the party added as defendant was interested in the subject matter of the litigation though there was no impediment to the court determining the issues between the parties originally before the court
The learned Judge on a discussion of the English and Indian cases on the subject came to the conclusion that a material question common to all the parties to the suit and to third parties should be tried once for all
He held that to secure this result the court bad a discretion to add parties a discretion which has to be judicially exercised that is that by adding the new parties the court should not inflict injustice upon the parties already on the record in the sense 1 2 Mad
1121 that they would be prejudiced in the fair trial of the questions in controversy
The two Madras decisions in Sri Mahant Prayaga Doss Jee Varu vs The Board of Commissioners for Hindu Religious Enclowmentg Madras 1 and Secy
of State vs M Murugesa Mudaliar 2 appear to have taken conflicting views on the question whether Government could be added as a party to the litigation not because it was directly interested in the subjectmatter of the litigation but because the law enacted by the legislature of that State had been questioned
this controversy appears to have been raised in the Federal Court in the case of The United Provinces vs Mst
Atiqa Begum 3
In that case the provincial legislature of the United Provinces as it then was had enacted the United Provinces Regularization of Remissions Act XIV of 1938 precluding the courts from entertaining any question as to the validity of certain orders of remission of rents
The validity of that Act was questioned in a litigation between a landlord and his tenants
At the High Court stage the Provincial Government was added as a party to the litigation at the instance of the Advocate General with a view to enabling the Government to come up in appeal to the Federal Court in order to obtain a more authoritative pronouncement on the vales of the Act
In the Federal Court the power of the High Court to add the Provincial Government as a party was specifically questioned
Gwyer C J noticed the two Madras decisions referred to above but assumed that there was jurisdiction in the Court in a proper case to do so and therefore did not express his considered opinion in view of the fact that his two colleagues Sulaiman and Varadachariar JJ
had agreed though for different reasons in the view that the High Court had jurisdiction to implead the Government though it was only indirectly interested in the litigation
Sulaiman J was inclined to take the view that there was a discretion in the High Court to add the Government as a party
On the other hand Varadachariar J 1 Mad 34
2 AIR 1929 Mad 443
3 1122 was inclined to take the view that the State did not stand on the same footing as a private third party for all purposes
He took the view that the State as the guardian of the public interest should not be called upon to show some pecuniary or proprietary interest or interest in public revenue in the questions involved to be added as a party
He also observed that in a case where the State intervention was concerned  it must be decided on broad grounds of justice and convenience and not merely as turning on the interpretation of a particular rule in the Civil Procedure Code
 Discussing the question whether it was a matter of discretion or of Jurisdiction in the court to make an order adding a party the learned Judge made the following observations   In my opinion there is no case here of defect of jurisdiction in the sense in which it is said that consent cannot cure a defect of jurisdiction
It is true that in Moser vs Marsden 1 Lindley L J observed that the question was not one of  discretion but of jurisdiction 
But as the antithesis shows the learned L J apparently had in mind the difference between the decision of the question of joinder on the interpretation of a rule of law and a direction given by the lower court in the exercise of its discretion because in the latter case the court of appeal would generally be reluctant to interfere
It may even be regarded as a case of excess of jurisdiction within the meaning of section 115 of the Civil Procedure Code but that will not make the order void in the sense that it may be ignored or treated as if it had never been passed
 It would thus appear that the courts in India have not treated the matter of addition of parties as raising any question of the initial jurisdiction of the court
It may sometimes involve a question of jurisdiction in the limited sense in which it is used in section 115 of the Code of Civil Procedure
It is no use multiplying references bearing on the construction of the relevant rule of the Code relating to addition of parties
Each case has to be determined on its own facts and it has to be recognized that no decided cases have been brought to our notice which 1 1123 can be said to be on all fours with the facts and circumstances of the present case
There cannot be the least doubt that it is firmly established as a result of judicial decisions that in order that a person may be added as a party to a suit he should have a direct interest in the subject matter of the litigation whether it raises questions relating to moveable or immoveable property
In the instant case we are not concerned with any controversy as regards property or estate
Hence all the cases cited at the bar laying down that a person who has no present interest in the subjectmatter cannot be added are cases which were con cerned with property rights
In this case we are concerned primarily with a declaration as regards status which directly comes under the provisions of section 42 of the Specific Relief Act
We are concerned in this case with the following provisions of section 42  42
Any person entitled to any legal character or to any right as to any property may institute a suit against any person denying
or interested to deny his title to such character or right and the Court may in its discretion make therein a declaration that he is so entitled and the plaintiff need not in such suit ask for any further relief
 This section recognizes the right in any person to have a declaration made in respect of his legal character or any right to property
To such a suit for a mere declaration any person denying or interested to deny the existence of any legal character or the alleged right to any property would be a necessary party
The plaintiff appellant chose to implead only her alleged husband the Prince
There is no clear averment in the plaint that the defendant had ever denied the legal character in question namely the status of the plaintiff as his wife
The substance of the plaintiff s cause of action is stated in para
3 of the plaint
From the words used in the said para
of the plaint it is clear that the persons who are alleged to have known the existence of the relationship of husband and wife between the parties would include the respondents 1 and 2 and that the Prince had been trying to suppress the fact of 143 1124 the marriage with the plaintiff so as to lead the members of his family to conclude that the plaintiff is not his wife
The gravamenofthechargeagaiiistthePrince is that  he refuses to openly acknowledge the plaintiff as his legally wedded wife  and that this conduct has cast a cloud oil the plaintiff s status as such wife
Such a conduct on the part of the Prince it is further alleged is not only injurious and detrimental to the rights of the plaintiff but is adversely affecting the rights of the issue of the marriage meaning thereby the three daughters by the plaintiff
It is thus clear as was contended on behalf of respondents I and 2 that reading between the lines of the averments aforesaid it is suggested that not only the defendantrespondent 3 but the other inembers of his family including respondents I and 2 were interested ill deying the plaintiff s alleged status and that this suit as being instituted to clear the cloud cast not only upon the plaintiffs status as a legally wedded wife but upon the status of the three daughters by her
It is clear therefore that if the plaintiff had been less disingenuous and had impleaded the first and the second respondents also as defendants in the suit the latter could not have been discharged from the action on the ground that they had been unnecessarily impleaded and that no cause of action bad been disclosed against them
They would certainly have been proper parties to the suit
This is a very important aspect of the case which has to be kept ill view in order to determine the question whether respondonts 1 and 2 had been rightly added as defendants on their own intervention
It is also clear on the words of the statute quoted above that the grant of a declaration such as is contemplated by section 42 is entirely in the discretion of the court
At this stage it is convenient to deal with the other contention raised on behalf of the appellant namely that in view of the unequivocal admission of the plaintiffs claim by the Prince in his written statement and repeated as aforesaid in his counter to the application for intervention by respondents I and 2 no serious controversy now survives
It is suggested 1125 that the declarations sought in this case would be granted as a matter of course
In this connection our attention was called to the provisions of r 6 of 0 12 of the Code of Civil Procedure which lays down that upon such admissions as have been made by the Prince in this case the court would give judgment for the plaintiff
These provisions have got to be read along with r 5 of 0 8 of the ode with particular reference to the proviso which is in these terms  Provided that the Court may in its discrettion require any fact so admitted to be proved otherwise than by such admission
 The proviso quoted above is identical with the proviso to section 58 of the Indian Evidence Act which lays down that facts admitted need not be proved
Reading all these provisions together it is manifest that the court is not bound to grant the declarations prayed for even though the facts alleged in the plaint may have been admitted
In this connection the following passage in Anderson s  Actions for Declaratory Judgments  Vol 1 p 340 under article 177 is relevant  A claim of legal or equitable rights and denial thereof on behalf of an adverse interest or party constitutes a ripe cause for a proceeding seeking declaratory relief
A declaration of rights is not proper where the defendant seeks to uphold the plaintiff  in such an action
The required element of adverse parties is absent  In others words the controversy must be between the plaintiff and the respondent who asserts an interest adverse to the plaintiff
In the absence of such a situation there is no justiciable controversy and the case must be characterized as one asking for an advisory opinion and as being academic rather than justiciable     ie there must be an actual controversy of justiciable character between parties having adverse interest Hence if the court in all the circumstances of a parti cular case takes the view that it would insist upon the burden of the issue being fully discharged and if the 1126 court in pursuance of the terms of section 42 of the Specific Relief Act decides in a given case to insist upon clear proof of even admitted facts the court could not be said to have exceeded its judicial powers
That the plaintiff herself or her legal advisers did not take the view contended for on her behalf is shown by the fact that a few days after the filing of the written statement of the Prince on April 27 Barkat Ali the Mujtahid who is alleged to have solemnized the marriage was examined in court and he gave his statement on oath in support of the plaintiff s claim
He also proved certain documents in corroboration of the plaintiff s case and his own evidence
This witness was not cross examined on behalf of the defendant
It was stated before us on behalf of respondents 1 and 2 that there were pieces of documentary evidence apart from certain alleged admissions made by or on behalf of the plaintiff which seriously militate against the plaintiff s case and the statement of the witness referred to above
We need not go into all that con troversy because we are not at this stage concerned with the truth or otherwise of the plaintiffs case
At this stage we are only concerned with the question whether in adding respondents I and 2 as defendants in the action the courts below have exceeded their powers
It is enough to point out at this stage that the plaintiff did not invite the court to exercise its powers under r 6 of 0 12 of the Code of Civil Procedure and therefore we are not called upon to decide whether the trial court was right in not pronouncing judgment on mere admission
The court when it is called upon to make a solemn declaration of the plain tiff s alleged status as the defendant s wife has naturally to be vigilant and not to treat it as a matter of course as it would do in a mere money claim which is admitted by the defendant
The adjudication of status the declaration of which is claimed by the plaintiff is a more serious matter because by its intendment and in its ultimate result it affects not only the persons actually beforethe court in the suit as originally framed but also the plaintiff s progeny who are not parties to the action and the respondents 1 and 2
1127 If the declaration of status claimed by the plaintiff is granted by the court naturally the three daughters by the plaintiff would get the status of legitimate children of the Prince
If the decision is the other way they become branded as illegitimate
The suit clearly is not only in the interest of the plaintiff herself but of her children also
It is equally clear that not only the Prince is directly affected by the declaration sought but his whole family including respondents I and 2 and their descendants are also affected thereby
This naturally leads us to a discussion of the effect of section 43 of the Specific Relief Act which goes with and is an integral part of the scheme of declaratory decrees which form the subject matter of Ch
VI of the Act
That section is in these terms  43
A declaration made under this Chapter is binding only oil the parties to the suit persons claiming through them respectively and where any of the parties are trustees on the persons for whom if in existence at the date of the declaration such parties would be trustees
 On behalf of the appellant it was contended by the learned Attorney General that the declaration of status sought in this suit by the plaintiff will be binding only upon her and the Prince and being a rule of  res judicata will bind only the parties to the suit and their privies
It was further contended that respondents I and 2 are in no sense such privies
The argument proceeds thus Section 43 lays down a rule of res judicata in a modified form and it was so framed as to make it clear beyond all doubt by the use of the word  only  that a declaration under section 42 is binding on the parties to the suit and on persons claiming through them respectively
If any question arises in the future after the inheritance to the estate of the Prince opens out it could not be said that the plaintiff and respondents 1 and 2 were claiming through different persons under a conflicting title which was the core of the rule of res judicata
In this connection reliance was placed upon the decision of the Judicial Committee of the Privy Council in the case of Syed  Ashgar Reza Khan vs Syed Mahomed Mehdi Hossein 1128 Khan 1
That case lays down that a decision in a former suit that the common ancestor of all the parties to the subsequent suit was entitled to the whole of the profit of a market in dispute in the two litigations as against his co sharers in the zamindari in which the market was situate does not operate as res judicata in a subsequent dispute between those who claim under him
In this connection reliance was also placed upon a decision of the Madras High Court in the case of Vythilinga Muppanar vs Vijayathammal2 to the same effect
Mr Pathak appearing on behalf of the Prince the third respondent supported the appellant by raising a further point that the words  claiming through  mean the same thing as  claiming under in section 11 of the Code of Civil Procedure laying down the rule of res judicata and that those words are not apt to refer to a declaration
of a more personal status and that they mean the same thing as pi ivy in estate is understood under the common law
He called our attention to the following passage in  Bigelow on Estoppel  6th Edn at pp
158 and 159  In the law of estoppel one person becomes privy to another 1 by succeeding to the position of that other as regards the Subject of the estoppel 2 by holding in subordination to that other   
But it should be noticed that the ground of privity is property and not personal relations To make a man a privy to an action he must have acquired an interest in the subject matter of the action either by inheritance succession or purchase from a party subsequently to the action or he must hold property sub ordinately
 He also drew our attention to similar observations in  Casperz on Estoppel
On the other hand Mr Purshottam and Sir Syed Sultan Ahmed appearing on behalf of respondents I and 2 respectively contended that  claiming through  and  claiming under  have not exactly the same significance in law and that the rule laid down in section 43 of the Specific Relief Act does not stand on the same footing as a rule of res judicata contained in section II of the Code of 1 1903 LR 30 IA 71
2 ivlad
43 1129 Civil Procedure or estoppel by judgment as discussed in the works of Bigelow and Casperz relied upon on behalf of the other side
On behalf of respondents I and 2 it was further contended that the suit was really intended not to bind the Prince who has shown no hostility to the claim but to bind respondents 1 and 2
It was also contended that if the court were to grant the declaration that the plaintiff is the lawfully wedded wife of the Prince if a controversy arises hereafter between the plaintiff and her children on the one side and respondents I and 2 on the other this judgment will not only be admissible in evidence in that litigation but will be binding upon thereon the plaintiff  because she is privy to the judgment and oil her children because they will be claiming the benefit of the declaration through her and on respondents I and 2 because they are admittedly the wife and son of the Prince and will be manifestly claiming through him
In this connection it has to be remarked that the discretion vested in a court to grant a merely declaratory relief as distinguished from a judgment which is capable of being enforced by execution derives its utility and importance from the objects it has in view namely to  prevent future litigation by removing existing causes of controversy to quiet title and to perpetuate testimony  as also to avoid multiplicity of proceedings
This practice of granting declaratory reliefs which originated in England in the Equity courts has been very much extended in America by statutory provisions
In India the law has been codified in the Specific Relief Act in Ch
VI and has in a sense extended the scope of the rule by providing for declarations not only in respect of claims to property but also in respect of disputes as regards status
From the terms of section 42 of the Act it would appear that the Indian courts have not been empowered to grant every form of declaration which may be available in America
In its very entire a declaratory decree does not confer any new right but only clears Lip mists which may have gathered round the title to property or to status or a legal character
When a 1130 court makes a declaration in respect of a disputed status important rights flow from such a judicial declaration
Hence a declaration granted in respect of a legal character or status in favour of a person is meant to bind not only persons actually parties to the litigation but also persons claiming through them as laid down in section 43 of the Act
It is thus a rule of substantive law and is distinct and separate from the rule of res judicata or estoppel by judgment
The doctrine of res judicata as it has been enunciated in a number of rules laid down in section 11 of the Code of Civil Procedure covers a much wider field than the rule laid down in section 43 of the Specific Relief Act
For example the doctrine of res judicata lays particular stress upon the competence of the court
On the other hand section 43 emphasizes the legal position that it is a judgment in personam as distinguished from a judgment in rem
A judgment may be res judicata in a subsequent litigation only if the former court was competent to deal with the later controversy
No such considerations find a place in section 43 of the Specific Relief Act
Again a previous judgment may be res judicata in a subsequent litigation between parties even though they may not have been eo nomine parties to the previous litigation or even claiming through them
For example judgment in a representative suit or a judgment obtained by a presumptive reversioner will bind the actual reversioner even though he may not have been a party to it or may not have been claiming through the parties in the previous litigation
When a declaratory judgment has been given by virtue of section 43 it is binding not only on the persons actually parties to the judgment but their privies also using the term privy  not in its restricted sense of privy in estate but also privy in blood
Privity may arise 1 by operation of law for example privity of contract 2 by creation of subordinate interest in property for example privity in estate as between a landlord and a tenant or a mortgagor and a mortgagee and 3 by blood for example privity in blood in the case of ancestor and heir
Otherwise in some conceivable cases the provisions of section 43 quoted 1131 above would become otiose
The contention raised on behalf of the appellant which was strongly supported by the third respondent through Mr Pathak as stated above is that a declaratory judgment would not bind anyone other than the party to the suit unless it affects some property in other words unless the parties were privy in estate
But such a contention would render the provisions of section 43 aforesaid applicable only to declarations in respect of property and not declarations in respect of status
That could not have been the intendment of the statutory rule laid down in section 43
Sections 42 and 43 as indicated above go together and are meant to be co extensive in their operation
That being so a declaratory judgment in respect of a disputed status will be binding not only upon the parties actually before the court but also upon persons claiming through them respectively
The use of the word only  in section 43 as rightly contended on behalf of the appellant was meant to emphasize that a declaration in Ch
VI of the Specific Relief Act is not a judgment in rem
But even though such a declaration operates only in personam the section proceeds further to provide that it binds not only the parties to the suit but also persons claiming through them respectively
The word I respectively  has been used with a view to showing that the parties arrayed on either side are really claiming adversely to one another so far as the declaration is concerned
This is another indication of the sound rule that the court in a particular case where it has reasons to believe that there is no real conflict may in exercise of a judicial discretion refuse to grant the declaration asked for for oblique reasons
As a result of these considerations we have arrived at the following conclusions 1 That the question of addition of parties under r 10 of 0
I of the Code of Civil Procedure is generally not one of initial jurisdiction of the court but of a judicial discretion which has to be exercised in view
of all the facts and circumstances of a particular case but in some cases it may raise controversies as to the power of the court in contra distinction to its inherent 144 1132 jurisdiction or in other words of jurisdiction in the limited sense in which it is used in section 115 of the Code 2That in a suit relating to property in order that a person may be added as a party he should have a direct interest as distinguished from a commercial interest in the subject matter of the litigation 3Where the subject matter of a litigation is a declaration as regards status or a legal character the rule of present or direct interest may be relaxed in a suitable case where the court is of the opinion that by adding that party it would be in a better position effectually and completely to adjudicate upon the controversy  4The cases contemplated in the last proposition have to be determined in accordance with the statutory provisions of sections 42 and 43 of the Specific Relief Act  5In cases covered by those statutory provisions the court is not bound to grant the declaration prayed for on a mere admission of the claim by the defendant if the court has reasons to insist upon a clear proof apart from the admission 6The result of a declaratory decree on the question of status such as in controversy in the instant case affects not only the parties actually before the court but generations to come and in view of that consideration the rule of I present interest  as evolved by case law relating to disputes about property does not apply with full force and 7The rule laid down in section 43 of the Specific Relief Act is not exactly a rule of res judicata
It is narrower in one sense and wider in another
Applying the propositions enunciated above to the facts of the instant case we have come to the conclusion that the courts below did not exceed their power in directing the addition of respondents I and 2 as parties defendants in the action
Nor can it be said that the exercise of the discretion was not sound
Furthermore this case comes before us by special leave and we do not consider that it is a fit case where we should interfere with the exercise of discretion by the courts below
The appeal is accordingly 1133 dismissed
As regards the question of costs we direct that it will abide the ultimate result of the litigation and will be disposed of by the trial court
IMAM J
I regret I cannot agree with the opinion of my learned brethren expressed in the judgment just delivered
The appellant in her plaint had asked for a declaration that she was a legally wedded wife of respondent 3 and that she was also entitled to receive from him Kharch e Pandan at the rate of Rs 2000 per month
This respondent filed his written statement in which he unequivocally admitted that the appellant was married to him and that she was also entitled to the Kharch e Pandan as claimed in the plaint
He further admitted that the appellant bore him three issues out of the marriage
The appellant sought no relief or any declaration against respondents 1 and 2 as indeed she could not have because she had no cause of action against them
There is nothing in the pleadings of the appellant and respondent 3 which discloses that respondents I and 2 have any cause of action against the appellant
Respondents 1 and 2 however filed an application under 0 1 r 102 of the Code of Civil Procedure before the Judge of the City Civil Court Hyderabad praying that they should be added as parties to the suit filed by the appellant
The Judge of the City Civil Court allowed the application and his decision was affirmed by the High Court
The question for decision in this appeal is whether the Jdge of the City Civil Court was justified in adding respondents I and 2 as parties to the suit and whether the decision of the High Court upholding his order should be affirmed
The provisions of 0 1 r 1 state as to who may be joined as plaintiffs in a suit and 0 1 r 3 states who may be joined as defendants
The parties who are to be joined as plaintiffs and defendants in a suit are persons in whom and against whom any right to relief in respect of or arising out of the same act or transaction or series of acts or transactions is alleged to exist whether jointly severally or in the alternative where if such persons were parties in separate suits any 1134 common question of law or fact would arise
Independent of this a court has jurisdiction under 01 r 101 to substitute or add as plaintiff any person whom it considers necessary for the determination of the real matters in dispute
Under 0 1 r 102 the court has the power to strike off a party who has been improperly joined whether as plaintiff or defendant and to join as plaintiff or defendant any person who ought to have been joined or whose presence before the court may be necessary in order to enable it effectually and completely to adjudicate upon and settle all the questions involved in the suit
It is quite obvious from the contents of the plaint and the written statement of respondent 3 that there was no occasion for the appellant to have joined respondents I and 2 as defendants in the suit
There remains then to consider whether the circumstances appearing in this case justified the Judge of the City Civil Court to add respondents 1 and 2 as defendants under the provisions of 0 1 r 102
Respondents 1 and 2 in their application under 0 1 r 102 of the Code of Civil Procedure in essence relied upon the five following grounds for their plea that they should be added as defendants in the suit 1That respondent I was the lawful and legally wedded wife of respondent 3 2 That respondent 2 was the son of respondent 3 3 That respondents 1 and 2 should be joined as parties to the suit because the question to be adjudicated upon would seriously affect their rights and interest in the estate of respondent 3 4That by adding respondents 1 and 2 as parties neither a new cause of action would be introduced nor would the nature of the suit be altered 5That the issue to be tried in the suit after res pondents I and 2 were added as parties would still be the same as the case made by the appellant was that respondent 3 was interested in denying the appellant s marriage to respondent 3 a fact which respondents I and 2 were equally interested in denying
The first two grounds afford no justification for respon dents I and 2 being added as parties to the suit where 1135 the only question to be decided is whether the appellant is married to respondent 3 and whether he had contracted to pay to the appellant Rs 2000 a month as Kharch e pandan
Even if the appellant successfully proved that she was married to respondent 3 who had contracted to pay her Rs 2000 per month as Kharch e pandan the status and the rights of respondents I and 2 as wife and son of respondent 3 would remain unaffected
A Mohammedan is entitled to marry more than once and have wives to the number four at one and the same time
This is his right under his personal law and no one can question the exercise of this right by him
In the suit between the appellant and respondent 3 the question as to whether the appellant was married to respondent 3 was a matter entirely personal to the appellant and respondent 3
The appellant claimed that she was lawfully married to respondent 3
It was open to respondent 3 to either deny or admit her claim
In fact respondent 3 had admitted the claim of the appellant that she was married to him
It is not open to anyone else in the present litigation to say that he has falsely made such an admission
It is true that respondents 1 and 2 have alleged collusion between the appellant and respondent 3
No positive facts are asserted in support of this
The suggestion is based merely on suspicion
Unless the court is justified in adding respondents 1 and 2 as defendants in the suit the suggestion made by them that there is collusion between the appellant and respondent 3 should be ignored by the court on the simple ground that respondents 1 and 2 have no locus standi to make any such representation in the present case
The 3rd 4th and 5th grounds may be considered together as they are inter connected
Grounds 4 and 5 suggest that there would be neither a new cause of action introduced nor would the nature of the suit be altered and the issue to be tried in the suit would still be the same even if respondents I and 2 were added as parties
The only issue in the suit filed by the appellant is whether she was married to respondent 3 and whether there was a contract by the latter to pay 1136 her Rs 2000 per month as Kharch e pandan
If respondents I and 2 are added as parties questions relating to right of inheritance in the estate of respondent 3 would arise for determination in addition to the only issue stated above in the case
The main ground upon which respondents 1 and 2 claim that they should be added as parties to the suit is to be found in the 3rd ground which in substance is that if the appellant is declared to be lawfully wedded to respondent 3 then the rights and interests of respondents I and 2 in the estate of respondent 3 would be affected
In other words in the estate of respondent 3 on his death in addition to respondents 1 and 2 the appellant and her three children by him would have rights of inheritance
Consequently the extent of inheritance of respondents I and 2 in the estate of respondent 3 would be considerably diminished
It was urged that if the appellant is given the declaration which she seeks the judgment of the court would be in the exercise of matrimonial jurisdiction and it would be a judgment in rem as stated in section 41 of the Indian Evidence Act
Such a declaration would also be binding on respondents 1 and 2 by virtue of the provisions of section 43 of the Specific Relief Act
The appellant asked for a declaration under section 42 of the Specific Relief Act
This section permitted a person who claimed to be entitled to any legal character or to any right to property to institute a suit against any person denying or interested to deny such character or right
Respondents 1 and 2 was interested in denying the appellant s status as a wife and the status of her three children as the legitimate children of respondent 3
A declaration in her favour would be binding on respondents I and 2 and they would never be in a position to disprove the appellant s marriage to respondent 3
This was an impossible situation where the declaration had been obtained from a court as the result of collusion between the appellant and respondent 3
This submission presupposes that respondents I and 2 would survive respondent 3
During the lifetime of respondent 3 neither the appellant nor her children on 1137 the one hand nor respondents 1 and 2 on the other have any right  whatsoever in his estate under the Mohammedan law
During the lifetime of respondent 3 respondents I and 2 would have the right to be maintained by him and if the appellant is also his wife then she and her children would also have the right to be maintained by him
The appellant and respondent 1 would also have rights arising out of a contract if any between them and respondent 3
None of these rights however are rights or interests in the estate of respondent 3
The submission also presupposes that on the death of respondent 3 he would have left behind some estate to be inherited by his heirs
These submissions are entirely speculative and afford no basis for the impleading of respondents 1 and 2 as parties to the appellant s suit
It was said however that the right to inherit is a present right in respondents 1 and 2 and if the appellant is declared to be the wife of respondent 3 then that right to inheritance is affected
This contention is erroneous and there is no legal basis to support it
If the appellant is declared to be the wife of respondent 3 such a declaration could not affect the right to inherit on the part of respondents I and 2 in the estate of respondent 3 assuming that respondent 3 on his death left an estate to be inherited and that the appellant and her children and respondents I and 2 survived him
The extent of the inheritance of each one of these may thus become less but so far as that is concerned it cannot be predicated during the lifetime of respondent 3 as to what would be the extent of the inheritance of his heirs
Under the Mohammedan law by which the parties are governed respondent 3 could yet validly marry two other women and have children from them in which case the inheritance if any could not be to the same extent if respondent 3 died leaving only respondents I and 2 as his heirs
The entire question raised by res pondents I and 2 is based on the supposition that they have rights in the estate of respondent 3
Under the Mohammedan law they have no such rights
It is only in the event of their surviving respondent 3 that their rights will vest in his estate and the extent of 1138 their inheritance will be calculated on the number of persons entitled to inherit his estate at the time of his death
It was urged however that unless respondents 1 and 2 are now given an opportunity to show that there was no valid marriage between the appellant and respondent 3 a declaration that there was a marriage between these two persons would be binding on them by virtue of the provisions of section 43 of the Specific Relief Act
If therefore on the death of respondent 3 a question arose as to who were entitled to inherit his estate respondents I and 2 would not be able to question the rights of the appellant and her children and they would be adversely affected by the declaration
It is somewhat doubtful having regard to the terms of section 43 that such a declaration in the present suit would be binding on respondents I and 2 as they would not be claiming their right to inheritance through the appellant and respondent 3 respectively
Assuming however that such a declaration would be binding on them that would be no justification for their being impleaded in the present litigation where the issue is not one of inheritance but one of marriage between the appellant and respondent 3
If the submission has any substance it might as well be said by any one that he should be impleaded as a party to a suit and should be allowed to contest the suit although there was no cause of action against him because the decree in the suit would bind him on the ground of res judicata
It is true that in a suit under section 42 of the Specific Relief Act it is discretionary with the court to make or not to make the declaration asked for
The exercise of that discretion however has to be judicial
In the present case there does not appear to be any legal impediment in the way of the court refusing to make the declaration asked for since respondent 3 had acknowledged the marriage and had admitted the claim for Rs 2000 per month as Kharch e pandan
The appellant has not asked for any sum of money to be decreed in her favour
There is no cause of action now left to the appellant which can be the basis for the present suit
The appellant could rely upon the 1139 acknowledgement which raises a presumption under the Mohammedan law that she is married to respondent 3
There appears to be no good ground for adding respondents I and 2 as parties to the present suit
If hereafter on the happening of a certain event and the existence of certain circumstance any question arose whether the appellant was married to respondent 3 then those who were interested in disproving the marriage would be in a position to do so and rebut the presumption arising from the acknowledgement
Under O 1 r 10 of the Code of Civil Procedure the court has the power to pass orders regarding the adding of parties or striking off the name of a party
Whether the exercise of this power is a matter of jurisdiction or of discretion appears to have been the subject of difference of opinion in the courts of law here and in England
Whichever view may be correct it is
patent that resort to the exercise of such power could only be had if the court is satisfied that it is necessary to make an order under 0 1 r 10 in order to effectually and completely adjudicate upon and settle all questions involved in the suit
The court ought not to compel a plaintiff to add a party to the suit where on the face of the plaint the plaintiff has no cause of action against him
If a party is added by the court without whose presence all questions involved in the suit could be effectually and completely adjudicated upon then the exercise of the power is improper and even if it be a matter of discretion such an order should not be allowed to stand when that order is questioned in a superior court
The plaintiff is entitled to choose as defendants against whom he has a cause of action and he should not be burdened with the task of meeting a party against whom he has no cause of action
It was however suggested that on the face of the plaint not only respondent 3 was interested in denying his marriage with the appellant but a legitimate inference could be drawn from the contents of the pleadings that respondents 1 and 2 were also interested in denying the marriage
No allegation made in the pleadings even remotely suggests that respondents I and 2 were interested to deny the alleged 145 1140 marriage of the appellant to respondent 3 or were denying the same
Under section 42 of the Specific Relief Act a suit may be instituted against any person denying or interested to deny the plaintiffs legal character or right to any property
The plaint does not suggest that respondents 1 and 2 were denying the appellant s status as wife of respondent 3
Such an issue was raised by the appellant against respondent 3 only
In law it cannot be said that respondents 1 and 2 are interested to deny the status of the appellant as the wife of respondent 3 because the status of respondent I as wife and respondent 2 as the son of respondent 3 is not in the least affected even if the appellant is declared to be the wife of respondent 3 as under the Mohammedan law respondent 3 is entitled to have both the appellant and respondent 1 as his wives and children through them
The true legal position in the present suit between the appellant and respondent 3 is that respondents I and 2 have no locus standi in such a suit
There is no danger of multiplicity of suits during the lifetime of respondent 3
The suggestion that the present suit would lead to multiplicity of suits is founded on an assumption which no court of law can assume
It cannot be assumed that respondent 3 would die first
It may well be that he may survive both respondents I and 2 in which case no question of any suit coming into existence at their instance would arise
If the order allowing respondents 1 and 2 to be added as parties in a suit of the present nature is allowed to stand it will open the way to a wider exercise of powers under 0 1 r 10 and in a manner which was not contemplated by the Code of Civil Procedure or section 42 of the Specific Relief Act or permissible under the Mohammedan law
I would accordingly allow the appeal as both the courts below were in error in supposing that this was a case in which the provisions of 0 1 r 10 applied and would set aside the orders of the courts below
The appellant is entitled to her costs throughout
BY COURT The appeal is dismissed
Costs to abide the result of litigation in the trial court
Appeal dismissed


Summary:
According to the Prosecution appellants 1 and 2 have been friends and were in the habit of selling ganja and spending money lavishly
They attempted to commit theft in their locality but were no successful
Therefore they hatched a conspiracy to entice boys from affluent families to bring cash and jewellery and murder them after taking away the cash and jewellary
Likewise they killed 4 boys in a span of about 5 years
Both of them were charged with offences under section 120B read with section 34 IPC section 364 and 392 read with section 397 IPC in all the four cases filed against them and were convicted by the Sessions Court
However in one case on appeal they were acquitted by the High Court
In another case the death sentence imposed by the Sessions Court is pending confirmation by the High Court
In the other two cases both the appellants were sentenced to 712 death by the Sessions Court and on appeal the High Court confirmed the sentence in one case and in the other the High Court confirmed the death sentence passed against appellant No 1 and acquitted appellants No 2 of all the charges
The appellants preferred the present appeals challenging the said order of the High Court confirming the sentences against them by contending that there was no proper identification of the dead body and that the approver was not a reliable witness and since his evidence did not receive corroboration it cannot form the basis for convicting the appellants
It was also contended that the extreme penalty of death sentence imposed was not justified
Dismissing the appeals this Court HELD 11 In a trial for murder it is not an absolute necessity or an essential ingredient to establish corpus delicti
The fact of death of the deceased must be established like any other fact
Corpus delicti in some cases may not be possible to be traced or recovered
If a murder was committed and the dead body was thrown into flowing tidal river or stream or burnt out it is unlikely that the dead body may be recovered
If recovery of the dead body therefore is an absolute necessity to convict an accused in many a case the accused would manage to see that the dead body is destroyed etc
and that would afford a complete immunity to the guilty from being punished and the accused would escape even when the offence of murder is proved
What therefore is required to base a conviction for an offence of murder is that there should be reliable and acceptable evidence that the offence of murder like any other factum of death was committed and it must be proved by direct or circumstantial evidence although the dead body may not be traced
717A D 12 In the instant case the evidence of PWs
7 to 10 would establish that they have seen the dead body of the deceased in the well and brought it out and the photograph was taken at the time of inquest
It was identified to be that of the deceased by no other than the mother of the deceased
Thus there is no doubt as regards the identity of the dead body
Also the medical evidence establishes that the deceased died due to stabbing with sharp edged weapon like knife
717E 2
Law is settled that an approver is a competent witness against the accused person
But the court to satisfy its conscience insists as caution and prudence to seek as a rule corroboration to the evidence 713 of the approver a particips criminis from independent evidence occular or circumstantial of general particulars regarding the story spoken of by the approver of the commission of the crime and the part played by the accused therein to find whether it is true and worthy of acceptance
The reliability of the evidence of an approver should be considered from totality of the facts and circumstances
In one of the two trials there is no dispute that such a corroborative evidence connecting both the appellant is available which was minutely considered by the trial court and the High Court and was accepted
There is infirmity in that regard
In the other trial appellant No 2 was acquitted on the ground that his extra judicial confession made to PW 23 the only corroborative evidence was disbelieved by the High Court
Both the Courts below gave categorical finding that PW 1 is a reliable witness
The evidence of the approver received corroboration from independent evidence
The canopy of the material evidence from independent sources sufficiently corroborates the approver s evidence
He is a reliable witness
No infirmity has been pointed out to disbelieve his evidence
719D H 720A Rameshwar vs The State of Rajasthan   section Swaminathan vs State of Madras AIR 1957 SC 340 Sarwan Singh vs The State of Punjab    BD Patil vs State of Maharashtra  Md Hussan Umar Kochra etc
vs KS Dalipsinghji  Anr 1970 1 SCR 130 Ram Narain vs State of Rajasthan  and Abdul Sattar vs Union Territory Chandigarh 1985 Suppl SCC 599 relied on
King vs Baskervilli and Mahadeo vs The King AIR 1936 PC 242 referred to
In the instant case it is clear from the evidence that the accused indulged in illegal business of purchase and sale of ganja
They conspired to entice innocent boys from affluent families took them to far flung places where the dead body could not be identified
The letters were written to the parents purporting to be by the deceased to delude the parents that the missing boy would one day come home alive and that they would not give any report to the police and the crime would go undetected
Four murders in a span of five years were committed for gain in cold blooded premeditated and planned way
In this case the trial of the murder relating to the two deceased practically took place simultaneously by which date the appellants were convicted for the murder of two other boys
Therefore the reference of conviction and sentence by the Sessions Court to those two cases also are relevant facts
One of the deceased is no other than the nephew of appellants No 1
This 714 would establish his depravity and hardened criminality
No regard for precious lives of innocent young boys was shown
They adopted the crime of murder for gain as a means to living
As such there is no infirmity in the sentence awarded by the Sessions Court and confirmed by the High Court
721D G 4
The doctrine of benefit of doubt only would operate in proof of the commission of the offence
If there is any reasonable doubt not the doubt of vacillating mind of a Judge the accused is entitled to that benefit and be acquitted
The benefit of doubt again does not enter in the area of consideration of imposing sentence
720C 51
Undue sympathy to impose inadequate sentence would do harm to the justice system to undermine the public confidence in the efficacy of law and society could not long endure under serious threats
If the courts did not protect the injured the injured would then resort to private vengeance
It is therefore the duty of every court to award proper sentence having regard to the nature of the offence and the manner in which it was executed or committed etc
721C 52
The compassionate grounds such as the accused being young bread winners of the family etc
would always be present in most casts and are not relevant for interference with the sentence
722D 6
Under section 2352 when the accused has been given right to be heard on the question of sentence it is a valuable right
To make that right meaningful the procedure adopted would be suitably moulded and the accused given an opportunity to adduce evidence on the nature of the sentence
The hearing may be on the same day if the parties are ready or to a next date but once the court after giving opportunity proposes to impose appropriate sentence again there is no need to adjourn the case under section 2352 to next date
In the present matters the counsel was directed by the High Court to show any additional grounds on the question of sentence but the counsel was unable to give any additional ground
722B C