Civil Appeal No 2463 of 1982
From the Judgment and order dated 31
1981 of the Orissa High Court in First Appeal No 184 of 1977
Veenu Bhagat for the Appellants
AP Mohanty and AK Mahapatra for the Respondents
The Judgment of the Court was delivered by SHARMA J
The appellants filed a suit for partition of the properties detailed in the plaint claiming 13rd share
A preliminary decree was passed by the trial court which was challenged by the defendant No 9 original respondent No 1 in the present appeal before the Orissa High Court in First appeal No 184 of 1972
The appeal was disposed of on compromise whereby the plaintiffs  claim to 13rd share was accepted as correct
The terms of the compromise are set out in paragraph 2 of the order dated 27379
It was however further agreed that half of the share of the plaintiffs ie 16th share would go to the defendant No 9 provided he paid a sum of Rs40000 290 to the plaintiffs by a particular date failing payment within time the decree passed by the trial court would stand confirmed as per term of the compromise
The compromise was recorded on 2731979
According to the compromise the sum of Rs40000 was to be paid in two instalments the first instalment of Rs10000 by 31 7 1979 and the remaining amount of Rs30000 by 2821980
The first instalment was paid within time but the remaining amount was not paid
In the meantime the decree by the High Court was formally drawn up on 691979
In view of the default in payment of the second instalment the plaintiffs appellants deposited the sum of Rs 10000 received by them as the first instalment to the credit of the defendant No 9 with the permission of the Court
The defendant No 9 thereafter made an application before the High Court on 2881981 for extension of the period for payment of the second instalment of Rs30000
The application was allowed by the order dated 3181981 which is under challenge in the present appeal
Before proceeding to the points involved in the present appeal it will be useful to briefly state the facts
The parties are close relations the defendant No 9 original respondent No 1 being the uncle of the plaintiffs appellants
He died during the pendency of the appeal here and his heirs and legal representatives have been substituted as respondents
The father of the plaintiffs Nityagopal defendant No 9 original respondent No 1 Ghosta Gopal and Brajgopal were brothers
Nityagopal died in 1953 leaving behind the plaintiffs and their mother who also died in 1962
According to their case they thus became entitled to 13rd share in the properties belonging to the family
The appellants were very young girls and lived with Gostha Gopal for some time after the death of their parents
But according to their case they had to leave for their maternal grandmother s place in 1964 due to the ill treatment by their uncle
In 1965 a collusive suit for partition was commenced by both the uncles Gostha Gopal and Brajgopal in which although the plaintiffs were impleaded as parties their address was wrongly mentioned in the plaint
Consequently no summons could be served on them nor did they have any information about the suit and the decree passed therein
No share was allotted to the appellants at all
After they learnt about the collusive suit and the decree they filed the present suit being TS 32 of 1967 for setting aside the earlier decree and for partition
The trial court accepted the plaintiffs case that the earlier decree was obtained by fraud
The plaintiffs were awarded 13rd share as claimed by them
Brajgopal became reconciled to the situation but Gostha Gopal challenged the decision in the aforementioned First Appeal No 184 of 1972
291 3
The parties reached an amicable settlement and the appeal was disposed of on 2731979
Accordingly the heirs of Brajgopal who was dead by then got their 13rd share in accordance with the trial court s decision and the suit so far as the other two branches that is the plaintiffs and Gostha Gopal were concerned was disposed of on the terms as mentioned in paragraph 1 above
According to the case of the plaintiffs appellants they had no information of the application dated 2881981 filed by the defendant No 9 for extension of the period for payment of the second instalment of Rs30000 and when a copy of the application was offered to their advocate he did not accept the same making an endorsement thereon that notice should be served directly on the plaintiffs as he did not continue to hold any authority on their behalf
Despite this stand of their learned counsel in the High Court no notice was sent to the plaintiffs and the case was listed only after two days on 3181981
The plaintiffs  advocate although he did not represent them on that date was present in Court when the case was called out and pointed out that there was no justification for excusing the long delay
Earlier the court by its order dated 1781981 after taking into consideration the conduct of the defendant No 9 in not complying with the terms of the compromise had permitted the plaintiffs to refund the sum of Rs10000 paid to them as the first instalment
The plaintiffs  counsel pointed out that the aforesaid order had finally closed the matter
The court however allowed the prayer of the defendant and permitted him to pay the remaining money along with an additional sum of Rs6000 by way of compliance of the terms of the compromise
The counsel who was representing the plaintiffs earlier refused to accept the money when offered and the court permitted the defendant to deposit the amount with the Registrar of the court observing that the same would be available to be withdrawn by the plaintiffs
When the petitioners learnt about the order they took a copy of the same and approached this Court under Article 136 of the Constitution
While hearing the Special Leave Petition this Court directed the Subordinate Judge Baripada to ascertain the market value of the 16th share of the property in question
The Subordinate Judge in his report to this Court stated that the value of the entire properties would be Rs1390000 and the value of 16th share would accordingly be Rs231716
After the parties filed a number of affidavits special leave was granted on 3071982
Mr Bhagat appearing in support of the appeal contended that an order based on the consent of the parties can be modified only 292 with further consent and it is not open to the court to alter the terms otherwise
It was further argued that assuming the court to be so empowered the jurisdiction has to be exercised in exceptional circumstances and only in the ends of justice
If the High Court had directed notice to be issued to the plaintiffs they would have placed before the court the circumstances showing that it was against the cause of justice to allow the prayer of defendant No 9 and specially so after such a long delay
The plaintiffs were shabbily treated by their uncle after the death of their father when they were very young and had to take refuge at their deceased mother s parental home
Out of the two sisters only one could be married and the younger one could not be married as the sum of Rs30000 promised by the respondent No 1 to be paid by 2821980 was not actually paid
According to the affidavit filed before this Court by way of rejoinder to the respondents  supplementary affidavit she was not married till then
The learned counsel therefore argued that there was no justification whatsoever for the High Court to condone the delay and extend the period for deposit of the money by the respondent after more than 1 12 years of default
Mr Mohanty the learned counsel representing the contesting respondents who have been substituted in place of the original respondent No 1 Gostha Gopal contended that the 6th term of the compromise dealing with the consequence of default in payment of the instalments is penal in nature and must therefore be held illegal
He urged that the clause being severable from the other terms of the compromise should be ignored and the other terms of the compromise ought to be given effect to
As a result the clause that on the nonpayment of the agreed sum by the time indicated therein the decree of the trial court would become final must be rejected as illegal
Reliance was placed on Section 74 of the Indian Contract Act
It was further argued that the position with respect to an order of a court of law made on the basis of consent of parties is also the same and it is not correct to suggest that in the circumstances of the present case the court had no power to permit the respondent No 1 to make the deposit later
The learned counsel relied on the observations made in Charles Hubert Kinch vs Edward Keith Walcott  Ors AIR 1929 PC 289 Banku Behari Dhur vs JC Galstaun  Anr AIR 1922 PC 339 and Jagat Singh  Ors
vs Sangat Singh  Ors AIR 1940 PC 70 and the decision of this Court in Smt
Periyakkal  Ors
vs Smt
Dakshyani  It was argued that it is not right to assume that the decree of the trial court was unassailable in appeal
The respondent No 1 had a substantial defence which he could have suc 293 cessfully pressed if the dispute had not been amicably settled
We do not find any merit in the argument that the impugned clause 6 of the agreement is illegal being penal in nature and has therefore to be ignored
It has to be noted that the plaintiffs had in the trial court obtained a decree for partition for 13rd share in the suit properties and there was presumption in favour of correctness of the decree
At the appellate stage one of the three branches represented by the heirs of Brajgopal was satisfied with the share allotted to them and the interest of Gostha Gopal defendant No 9 was identical to their interest
The situation was acceptable to the defendant No 9 also but he wanted to acquire half the share of the plaintiffs on payment of consideration
The plaintiffs agreed and the sum of Rs40000 was fixed as the price
In clause 2 of the agreement as mentioned below it was expressly stated thus The sum of Rs40000 agreed to be paid by defendant No 9 to the plaintiffs as compensation for the 16th share shall be paid in two instalments   Emphasis added The amount was to be paid by way of price was reiterated by the use of the word consideration in clause 3
It is significant to note that the defendant No 9 in the court below or his heirs after his death before us have not suggested that the entire compromise should be ignored on account of the impugned clause 6
They have been relying upon the compromise except the default clause which alone is sought to be ignored
They insist that under the compromise the shares allotted to the different branches should be treated as final and further half of the share of the plaintiffs ie 16th share in the suit properties should have gone to the defendant No 9 and after him to them ie his heirs for Rs40000
This part of the compromise is in substance an agreement for transfer by the plaintiffs of half their share for a sum of Rs40000 to be paid within the time indicated
It is true that the market price of the property was higher and a beneficial right was bestowed on the defendant No 9 to acquire the same for an amount considerably low
In this background the defendant was subjected to the condition that if he had to take the advantage of the bargain he was under a duty to pay the stipulated amount by the time mentioned in the agreement
On failure to do so within time he was to be deprived of this special benefit
Such a clause cannot be considered to be a penalty clause
The expression penalty  is an elastic term with many different shades of meaning but it always involves an idea of 294 punishment
The impugned clause in the present case does not involve A infliction of any punishment it merely deprives the defendant No 9 of a special advantage in case of default
Coming to the next question as to whether the High Court acted rightly in extending the period for payment of the second instalment the learned counsel for the parties have placed all the facts and circumstances of the case in detail in support of their respective arguments and we have considered them closely and do not have any hesitation in holding that the High Court assuming that it had the power to do so was not justified in allowing the prayer of the defendant No 9 permitting him to make a grossly belated payment
Even where such a power exists it is not to be exercised liberally
In Smt
Periyakkal and Ors
vs Smt
Dakshyani   relied upon by the respondents this Court thus observed Of course time would not be extended ordinarily nor for the mere asking
It would be granted in rare cases to prevent manifest injustice
True the court would not rewrite a contract between the parties but the court would relieve against a forfeiture clause   In the present case justice is manifestly in favour of the plaintiffs and against the contesting respondents and further the clause in question was not a forfeiture clause
Even the High Court had to observe as follows The conduct of the appellant ie the defendant No 9 is indeed very reprehensible
Though extensions were obtain ed from us he did not comply with the directions and suffered order No 72 dated 1781981 to be passed
Only when his rights were taken away did he realise the real effect of what he had lost In view of our conclusion it is not necessary to decide the abstract question of the general power of the court in this regard
The grievance of the plaintiffs that they were not afforded reasonable opportunity to contest the defendants  prayer is also well founded
The appeal in the High Court had been disposed of earlier
After the default in payment of the second instalment occurred the present appellants placed the circumstances before the court and prayed for permission to refund the first instalment of Rs10000 295 received by them so that they could take full advantage of the compromise decree
The matter was fully considered and decided by the order dated 1781981 as mentioned by the High Court in the above quoted passage
In the situation the counsel who represented the plaintiffs in the appeal could not have been held to have continued to represent them specially when they informed the court that he had no further authority and that notice should be directly sent to the plaintiffs
However we do not consider it necessary to remand the matter to the High Court for fresh consideration as we have considered all the relevant materials and have come to a final conclusion on merits in favour of the plaintiffs
For the reasons mentioned above the order dated 3181981 passed by the Orissa High Court in First Appeal No 184 of 1972 is set aside and the application filed by Gostha Gopal Dey for extension of time is rejected
The appeal is accordingly allowed with costs payable to the appellants by the contesting respondents
SL Appeal allowed


Summary:
 This writ petition was originally filed in this Court by two members of the Delhi Higher Judicial Service namely Shri RL Gupta and Shri SB Aggarwal but as the Court was of the view that the case of Shri SB Aggarwal should be considered independently he was asked to file a separate petition and this petition was confined to Shri RL Gupta only
The petitioner Shri RL Gupta who had become a member of the Delhi Judicial Service on its initial constitution on August 2 1971 and was confirmed in the said service as a sub judge on August 6 1971 was working as an Additional District and Sessions Judge Delhi when on 1451981 on the establishment of the Delhi Legal Aid and Advice Board he was sent on deputation as the first Member Secretary of that Board
Thereafter when the Government of India on April 26 1985 appointed a Commission of Inquiry presided over by Shri Justice Ranganath Misra Judge Supreme Court of India to enquire into the allegations in regard to the incidents of organised violence following the assassination of Smt
Indira Gandhi the late Prime Minister of India the Central Government by letter dt
May 27 1985 requested the Delhi High Court to spare the services of the petitioner for being appointed as Secretary to the Commission above mentioned and upon the petitioner s expressing his willingness to work as Secretary to the said Commission he was permitted by the High Court to go on deputation to the Commission with effect from 1st June 1985 at his own risk
Within three months from the date on which the petitioner had joined the Commission as its Secretary the Chief Justice of the Delhi High Court wrote to Shri Justice Ranganath Misra that it had been decided by the High Court to place the petitioner on probation on the Delhi Higher 256 Judicial Service as his turn had come for the same and therefore he might be relieved from the Commission to enable him to report to the High Court as soon as possible not later than ten days from the receipt of that communication
Shri Justice Ranganath Misra thereupon wrote to the Chief Justice of the Delhi High Court that the petitioner had got himself acquainted with the working of the Commission and it was difficult at that juncture to relieve him in public interest
The letter of Shri Ranganath Misra was considered by the High Court at its meeting held on 22111985 when a resolution was passed to the effect that Shri RL Gupta who had been on deputation with the Delhi Legal Aid  Advice Board was asked to revert back to his parent cadre for being considered to be placed on probation but he instead of reverting back went on a second deputation as Secretary to RN Misra Commission of Inquiry at his own request and risk he was asked vide High Court s endt
dated 26885 to come back to parent cadre within ten days otherwise the next person would be placed on probation and Mr RL Gupta refused to come back and got it intimated through Justice RN Misra vide letter dt
19885 that he had come at his own risk
The Resolution further said that the case of Shri RL Gupta for being placed on probation was considered and as he had declined to be available to be placed on probation at his own risk the same had been rejected and that the officers next to him were then considered and five officers Shri Jaspal Singh and four others were selected for being placed on probation against regular vacancies
By the above said resolution Shri Jaspal Singh and four others were allowed to supersede the petitioner
Further twelve more officers were placed on probation
Thus in all seventeen judicial officers were allowed to supersede the petitioner
On completion of the work of the Commission of Inquiry on October 31 1986 the petitioner was posted as Additional District  Sessions Judge and placed on probation for a period of two years with effect from April 4 1987
Aggrieved by the supersession the petitioner filed this writ petition before this Court questioning the validity of the supersession on several grounds some of them being common to the petitioner and SHRI SB Aggarwal who had been impleaded as petitioner No 2
Since the case of the petitioner could be disposed of on a short ground the Court did not express its opinion on the grounds common to the petitioner and Shri SB Aggarwal and other judicial officers working in the Delhi Higher Judicial Service and the contentions on those grounds were left open
257 Allowing the writ petition the Court  HELD The short question which arose for consideration in this case was whether the supersession of the petitioner made by the High Court by placing seventeen officers junior to him on probation before he was placed on probation was valid or not
No rules governing the deputation of an officer working in the judicial department were produced before the Court
The case therefore had to be determined on the principles of justice equity and relevant judicial precedents
265F 266A B It was not disputed that the petitioner would have been placed on probation as a matter of course on 221185 if he had been serving as an Additional District and Sessions Judge and would have continued to be senior to Shri Jaspal Singh who was placed on probation on that date
268C D In regard to the quality of the work rendered by the petitioner in the capacity of the Secretary to the Commission of Inquiry headed by Shri Justice Ranganath Misra the certificate issued by Shri Justice Ranganath Misra on 291186 inter alia said Shri Gupta handled his job with ability and efficiency
He impressed me as a brilliant judicial officer
I found him to be well versed in law
He exhibited character courage and sagacity
I was impressed by his sense of social vision legal acumen and capacity to comprehend human problems 268D G On his return to the Delhi Judicial Service from the Commission of Inquiry his being placed on probation by the High Court with effect from 4487 raised the question for consideration whether it was just and reasonable to deprive the petitioner of his seniority only because he was not working in the Delhi Higher Judicial Service during the period when his juniors were allowed to supersede him
268G H 269A The Court was not impressed by the submission made on behalf of the High Court that the petitioner having been informed by the High Court that he was going on deputation at his own risk he could not retain his seniority over his juniors who were placed on probation during the period of deputation
It is well settled that many officers have to be sent on deputation in the public interest to other departments in order to meet the exigencies of public service and that before sending them on deputation their consent is invariably taken
Merely because they have given their consent to go on deputation they could not be allowed to suffer unless there is a specific rule to the contrary or other 258 good reason for it
That is the ratio of the decision in State of Mysore vs MH Bellary   and the decision in State of Mysore and another vs PN Nanjundiah and another The petitioner was not even sent on deputation to a department where his services could be absorbed permanently
He was sent on deputation to a Commission which was asked to enquire into a certain matter of public importance which was to be over in a short time
The Commission itself was to become functus officio on the submission of its report
The Commission was presided over by a Judge of the Supreme Court of India and it was not possible for the petitioner to give up his post as Secretary of the Commission without the permission of the Chairman of the Commission and return to the Delhi Judicial Service
The Chairman of the Commission found it difficult to relieve the petitioner in the midst of the inquiry
The object of placing an officer on probation is only to assess whether he is suitable for the post to which he is appointed
It is not necessary that such assessment should always be made by the appointing authority unless there is any legal impediment
Such assessment can also be made by the authority under whom the officer works while on probation
In this case the authority under whom the petitioner worked while on deputation was a Judge of the Supreme Court of India who had approved the service of the petitioner as could be seen from the certificate issued 
by him on 291186 referred to above
Even though it was stated that the petitioner was sent on deputation to the Commission of Inquiry at his own risk it would be unjust to hold that the High Court could have on the facts and circumstances of this case passed orders which would have the effect of superseding the petitioner
The Court could not appreciate the implication of the observation made in the resolution of the High Court that the petitioner had refused to come back and got it intimated through Justice RN Misra vide demi official letter dt
19985 that he had come on deputation at his own risk 
It was not truly a case of refusal by the petitioner to go back to the Delhi Higher Judicial Service nor could it be said that he was responsible for what Shri Justice RN Misra had written and the same could not be used against him for depriving him of his seniority
The stand taken by the High Court in this case could not therefore be upheld
Shri B Dutta Additional Solicitor General of India appearing on behalf of the Union of India supported the case of the petitioner
269A H 270F H No innocent officer should be exposed to the grave risk to which the petitioner in this case was exposed
The petitioner was promoted as an Additional District  Sessions Judge under rule 16 of the Delhi Higher Judicial Service Rules in 1976
The post to which he was prom 259 oted was called a temporary post although truly it was not a temporary post
There was no chance of its abolition at all
Yet it was called a temporary post because it was in excess of the strength of the posts in the Delhi Higher Judicial Service which had been fixed at 16 by rule 4 read with the Schedule attached to the Delhi Higher Judicial Service Rules in the year 1970
If the schedule had been amended from time to time by increasing the number of the posts keeping pace with the reality of the situation perhaps the strength should have been increased to 50 by now
In the circumstances by appointing the Judicial officers of the Higher Judicial Service to temporary posts instead of appointing them to permanent posts the Delhi Administration has virtually made a mockery of the rules of recruitment
To place a Judicial officer promoted to the Higher Judicial Service on probation nearly after 9 years after his promotion as in this case was a mere farce
Ordinarily an officer should be on probation from the date of his appointment
Is it just and reasonable to place an officer on probation nearly 9 years after his appointment and then turn him out of service if his services are found to be not satisfactory during the period of probation which would fall in the 10th and 11th year of his service in that cadre 270H 271A F The petitioner in this case should have been placed on probation on 221185 even though he was on deputation on that date and on his confirmation he is entitled to maintain his seniority above Shri Jaspal Singh
The Court directed that the petitioner would be deemed to have been on probation from 221185 and his services would be regulated accordingly
The petitioner would also be deemed to be above Shri Jaspal Singh in the seniority list of officers in the Delhi Higher Judicial Service
273C D OBSERVATlONS The Administration should know that the work in the Courts has increased by two or three times during the last decade but the number of judges has remained constant
This has led to frustration amongst the litigants lawyers and judges
This frustration gives rise to tensions including the tension prevailing in the city of Delhi now
It is reported that the Delhi High Court has been pressing for the appointment of more judges
It has urged for the sanction of 169 additional posts in the Delhi Judicial Service
In the courts manned by the officers of the Delhi Judicial Service who on promotion will be members of the Delhi Higher Judicial Service there were pending as on 1987 51173 Regular Suits 1210 Small Cause Suits 974 Civil Appeals 10592 Rent Cases
There were 97943 cases pending before the courts of Chief and Addi 260 tional Chief Metropolitan Magistrates and 235033 cases pending before other magistrates as on 1987
The Delhi Administration appears to have not taken any serious notice of the appalling situation prevailing in the Delhi Courts
The Administration should look at the recommendation of the High Court as one intended to give relief to the suffering litigants who waste their valuable time near the courts for years waiting for justice
This is a problem which should be solved on a war footing
The Delhi Administration should straightaway increase the strength of the Delhi Judicial Service at least by 150 the number of posts in the Delhi Higher Judicial Service at least by 40 should establish court premises in different parts of Delhi and see that the pending cases in the order of lakhs many of which lingering for the last ten years and more are disposed of within two years
If the total strength is increased at all levels the farce of placing the judicial officers on probation after nearly ten years will also end271G H 272A E The Government should not consider finance as a constraint because by not appointing sufficient number of judges the Government is suffering more financially
The Government itself being a big litigant is subjected to several orders of stay prohibitation injunction etc
 leading lo delay in completion of several projects and works
The indirect effects of frustration amongst the people lead to a greater financial drain
If by any chance the arrears of cases come down then the vacancies in the Judicial posts may not be filled up
The Court expressed the hope that the Union of India and Delhi Administration would sanction at least 150 more posts in the Delhi Judicial Service and about 40 posts in the Delhi Higher Judicial Service and also take immediate steps to establish additional courts
The expenditure on judicial administration should not be subjected to the constraints of non plan expenditure
The judicial department is not an unproductive department
Peace and tranquillity that will result from quick disposal of cases is much more valuable than the economic goods produced by factories
Delay in disposal of cases affects the gross national product adversely
Quick disposal of cases will save millions man hours now being wasted near the courts
It is imperative that every State should increase the strength of the Judicial officers at least by thirty per cent immediately otherwise there would be a catastrophe in about a year or two
The Court expressed the hope that this warning would not go unheeded
272F H 273A C The State of Mysore vs MH Bellary 1964 7 SCR 471 State of Mysore  Anr
vs PN Nanjudiah  Anr  and OP Singla  Anr etc vs Union of India  Ors
  261