dedol-hf/india-case-legal-rag huggingface dataset:
evidence  of the Naib Tehsildar that he usually  dealt  with
such applications between 12 and 4 P.M. on working days, and
also the affirmative evidence of Joginder Singh.
     In our opinion, there has been in substance no fair and
proper  trial in this case, and we are constrained to  allow
this appeal, set aside the conviction of the appellant under
sections 302 and 307 read with section S4
833
of  the  Indian  Penal Code, and direct that he  be  set  at
liberty   forthwith.  In ordinary  circumstances,  we  might
have  remanded the case for a flesh trial, but  we  consider
that such a course would, in the present case, be unfair and
contrary to settled practice, seeing that the appellant  has
been  in a state of suspense over his sentence of death  for
more than a year.
                  Appeal allowed.
Agent for the appellant: R.S. Narula.
Agent for the respondent: P.A. Mehta.
PETITIONER:
[IN THE SUPREME COURT OF INDIA (HYDERABAD).]NARHARI AND OTHE
        Vs.
RESPONDENT:
SHANKAR AND OTHERS.
DATE OF JUDGMENT:
13/10/1950
BENCH:
NAIK R.S.
BENCH:
NAIK R.S.
MAHAJAN, MEHR CHAND
SIDDIQUI KHALILUZZAMAN J.
CITATION:
 1953 AIR  419            1950 SCR  754
 CITATOR INFO :
 D          1962 SC 338  (8)
 RF         1966 SC1332  (12)
 RF         1974 SC1320  (7)
ACT:
    Res  judicata--Several  appeals  arising  out  of   same
suit--Appeal disposed of by same judgment--Separate  decrees
drawn up--Appeal from, one decree only--Maintainability--Res
judicata--Limitation   Act,   1908,   s,   5--Extension   of
time--Sufficient cause --Conflict  of decisions.
HEADNOTE:
      A instituted a suit for possession of two-thirds  share
in  an estate against B and C who claimed a one-third  share
each in it. The suit was decreed by the trial court.  B  and
C preferred
(1) I.L.R. 25 Mad. 658,
755
separate   appeals,  These appeals  were heard together  and
disposed  of by the same judgment but separate decrees  were
prepared.   A preferred an appeal from one of these  decrees
in  time paying the full court fee and later on,  after  the
period  of limitation had expired, preferred an appeal  from
the  other  decree also, paying a court fee of Re.  1  only.
The  High  Court  held that  A should  have  filed  separate
appeals  within the period of limitation and that,  inasmuch
as one of the appeals was time-barred, the first appeal  was
barred by res judicata.
    Held,  that, as there was only one suit and the  appeals
had been disposed of by the same judgment, it was not neces-
sary  to file two separate appeals and the fact that one  of
the appeals was time-barred did not affect the maintainabil-
ity of the other appeal and the question of res judicata did
not at all arise in the case.
    Held  further, that in the circumstances the High  Court
was wrong in not giving to the appellant the benefit of s. 5
of the Limitation Act as there was a conflict of rulings  on
the subject.
    Mst.  Lachmi  v. Mst. Bhuli (A.I.R. 1927 Lah.  289)  ap-
plied.  Appa v. Kachai Bayyan Kutty (A.I.R- 1932  Mad.  689)
referred to.
JUDGMENT:
    APPEAL  from a judgment of the High Court  of  Hyderabad
under  article 374 (4)  of Constitution: Appeals Nos. 22 and
23 of 1950.
Ghulam Ahmad Khan, for the appellants.
The respondents were not represented.
    1950. October 13.  The judgment of the Court was  deliv-
ered by
    NAIK  J.--The suit out of which these appeals arise  was
one  for  possession of two-thirds of the  land  covered  by
survey No. 2 14 and for mesne profits. The plaintiffs  claim
possession  on  the ground that survey No. 214 was  an  inam
land  and according to the family custom, belonged  to  them
exclusively  as  members of the senior line as  against  the
defendants who were of the junior lines. There are two  sets
of  defendants:  Nos.  1 to 4 belong to one  branch  of  the
family and Nos. 5 to 8 to another. Each set claim that  they
are in possession of one-third of the land and maintain that
they  are  entitled  'to it as their  share  of  the  family
property.  They deny the custom of exclusive  possession  by
the  senior  branch, alleged by the  plaintiffs.  The  trial
court  decreed  the  suit. From this  decree,  two  separate
appeals were taken by the two sets of the defendants to  the
Sadar Adalat, Gulbarga, each claiming one-third portion of
756
the land and each paid the court fee to the extent of  their
share.  The first appellate court, i.e., the Sadar   Adalat,
allowed both the appeals and dismissed the plaintiffs'  suit
by one judgment dated 30th Bahman 1338 F. and ordered a copy
of  the judgment to be placed on the file of the other  con-
nected  appeal. On the basis of this judgment,  two  decrees
were prepared by the first appellate court.  The  plaintiffs
preferred two appeals to the High Court. The first was filed
on  23rd  Aban 1345 F. and with it was attached  the  decree
passed  in  the appeal of defendants No. 1 to 4.  Later,  on
17th  Azur 1346 F. another appeal was filed and with it  the
decree  passed in the appeal of defendants Nos. 5 to  8  was
attached.   This latter appeal was twenty-nine  days  beyond
the  period of limitation for appeals. It was filed on  one-
rupee stamp paper and a note was made therein that the  full
court fee had been paid in the appeal filed  earlier,  which
has  been  registered as Appeal No. 331 of 1346  F.  At  the
hearing  of the appeals, a preliminary objection was  raised
by the defendants that as the other appeal, i.e., No. 332 of
1346 F. was filed beyond the period of limitation, it cannot
be  maintained and that when the other appeal is  thus  dis-
missed,  the  principle of res judicata would apply  to  the
first appeal, i.e., No. 331 of 1346 and it should also fail.
The  High Court held that the plaintiffs should  have  filed
two separate appeals within the period of limitation and  as
the  other  appeal  was admittedly  time-barred,  the  first
appeal  also failed by the application of the  principle  of
res  judicata.  The High Court dismissed both  the  appeals.
Against  this  judgment of the High Court two  appeals  were
preferred  to the Judicial Committee of the State  and  they
are now before us under article 374(4) of the Constitution.
   The  High  Court in its judgment relied on  the  decision
given in Jethmal v. Ranglal(1).  That was a case of a  money
suit  where the plaintiff's claim was partially decreed  and
from this judgment both the parties had appealed, the plain-
tiff  to the extent of the suit dismissed and the  defendant
to the extent of the
(1) 17 D.L.R.322
757
suit  decreed.   The  first appellate  court  dismissed  the
plaintiff's  suit  in toto, thus  allowing  the  defendant's
appeal and dismissing the plaintiff's appeal, and two  sepa-
rate  decrees  were made.  The plaintiff appealed  from  one
decree  only, which was passed against him and it  was  held
that the principle of res judicata applied.
    Notwithstanding,  this ruling of the Judicial  Committee
of the State, the High Court, in several cases, i.e.,  Nand-
lal v. Mohiuddin Ali Khan(1), Nizamuddin v. Chatur  Bhuj(2),
Gayajee  Pant v. Habibuddin(3), and Jagannath v.  Sonajee(4)
has held that when the suit is one and two appeals arise out
of  the same suit, it is not necessary to file two  separate
appeals.
    In  the judgment of the High Court, though reference  is
given  to  some of these decisions, it is  merely  mentioned
that  the appellant relies on these decisions.  The  learned
Judges perhaps thought that in the presence of the Hyderabad
Judicial  Committee decision in Jethmal v.  Ranglal(3)  they
need not comment on these decisions at all.  There is also a
later  decision  of the Judicial Committee of the  State  in
Bansilal v. Mohanlal(6), where the well known and exhaustive
authority  of the Lahore High Court in Mst. Lachmi  v.  Mst.
Bhuli (7) was followed.  In the Lahore case, there were  two
cross suits about the same subject-matter, filed  simultane-
ously between the same parties, whereas in the present case,
there  was only one suit and one judgment was given  by  the
trial  court and even in the first appeal to the Sadar  Ada-
lat,  there was only one judgment, in spite of  there  being
two appeals by the two sets of defendants.
    The  plaintiffs in their appeal to the High  Court  have
impleaded all the defendants as respondents and their prayer
covers  both  the appeals and they  have  paid  consolidated
court-fee  for the whole suit.  It is now well settled  that
where  there has been one trial, one finding, and one  deci-
sion, there need not be two appeals even though two  decrees
may have been drawn up.
 (1) 22D.LR. 400. (3) 28 D.L.R. 1094.   (5) 17 D.LR..322
(2) 93 D.L.R. 457. (4) 29 D.L R 108.  (6) 33 D.L.R. 603.
                      (7) A.I.R. 1927 Lah. 289.
97
758
As has been observed by Tek Chand J. in his learned judgment
in Mst. Lachmi v. Mst. Bhuli(1) mentioned above, the  deter-
mining factor is not the decree but the matter in controver-
sy.   As he puts it later in his judgment, the  estoppel  is
not created by the decree but it can only be created by  the
judgment.   The  question of res judicata arises  only  when
there  are two suits. Even when there are two suits, it  has
been  held that a decision given simultaneously cannot be  a
decision  in the former suit.  When there is only one  suit,
the  question of res judicata does not arise at all  and  in
the present case, both the decrees are in the same case  and
based on the same judgment, and the matter decided  concerns
the  entire  suit.   As such, there is no  question  of  the
application  of  the principle of res  judicata.   The  same
judgment  cannot  remain effective just because it  was  ap-
pealed  against with a different number or a copy of it  was
attached  to  a different appeal.  The two decrees  in  sub-
stance  are one.  Besides, the High Court was wrong  in  not
giving  to  the appellants the benefit of section 5  of  the
Limitation  Act  because  there was  conflict  of  decisions
regarding  this question not only in the High Court  of  the
State but also among the different High Courts in India.
The learned counsel for the appellants cited in  support
of his arguments the decision given in Appa v. Kachai Bayyan
Kutti(2), which is on all fours with the present case.
    We  are,  therefore, of the opinion that  these  appeals
should  be allowed and the case remanded to the  High  Court
for  decision  on the merits of the case.   Costs  of  these
appeals will abide the result of the case.
                         Appeals allowed.
(1) A.I.R. 1927 Lah. 289.       (2) A.I.R. 1932 Mad. 689.
759
PETITIONER:
A.K. GOPALAN
        Vs.
RESPONDENT:
THE STATE OF MADRAS.UNION OF INDIA: INTERVENER.
DATE OF JUDGMENT:
19/05/1950
BENCH:
KANIA, HIRALAL J. (CJ)
BENCH:
KANIA, HIRALAL J. (CJ)
FAZAL ALI, SAIYID
SASTRI, M. PATANJALI
MAHAJAN, MEHR CHAND
DAS, SUDHI RANJAN
MUKHERJEA, B.K.
CITATION:
 1950 AIR   27            1950 SCR   88
 CITATOR INFO :
 F          1951 SC 157  (21)
 F          1951 SC 270  (5,6)
 F          1951 SC 301  (10)
F          1951 SC 332  (344)
 E          1952 SC  75  (45)
 RF         1952 SC 123  (6)
 F          1952 SC 181  (6,27,29,33)
 D          1952 SC 196  (16)
 RF         1952 SC 252  (106)
 R          1952 SC 366  (16)
 E&F        1952 SC 369  (90,93)
 F          1953 SC 451  (7)
 E&F        1954 SC  92  (5,39)
 RF         1954 SC 119  (15)
 RF         1954 SC 728  (17)
 R          1955 SC  41  (6)
 F          1956 SC 108  (6)
 R          1957 SC 688  (6,8,9)
R          1958 SC 163  (7,8,9,25,26,33,36,38,41)
 APL        1958 SC 578  (154,223)
 D          1958 SC 731  (17)
 R          1959 SC 149  (27,82)
 D          1960 SC 430  (10)
 D          1960 SC1080  (25,27,28)
 RF         1961 SC 232  (55)
 R          1961 SC1629  (5)
 R          1962 SC1006  (67,72,79)
 R          1962 SC1371  (32,34,35)
 R          1962 SC1621  (73,108)
 R          1963 SC1047  (18)
 F          1963 SC1295  (15,31)
 F          1964 SC 381  (54)
 R          1965 SC 845  (29,30,44,45)
E          1966 SC 424  (2,7)
 RF         1966 SC1910  (34)
 R          1967 SC   1  (41,42,75,158)
 APL        1967 SC1639  (7,10)
 R          1967 SC1643  (22,95,230,274)
 R          1967 SC1836  (13,23,53,58)
 E          1968 SC1138  (14)
 E          1968 SC1313  (10)
RF         1969 SC1100  (7)
 O          1970 SC 564  (48,53,54,64,149,152,153,156)
 RF         1971 SC 481  (46)
 E          1972 SC 963  (35)
 R          1972 SC1660  (7,9)
 RF         1973 SC 106  (105)
 O          1973 SC1425  (7,18,25,27,33,37,38,39)
 RF         1973 SC1461  (24,30,184,310,503,648,699,790
 RF         1973 SC2555  (5)
 F          1974 SC 348  (24)
 R          1974 SC 613  (8,10,31,32,33,34,43,50,51)
 R          1974 SC2154  (21)
RF         1975 SC 550  (12)
 E          1975 SC 775  (3)
 RF         1975 SC2213  (7)
 RF         1975 SC2299  (135,609,610)
 E          1976 SC1207  (53,55,57)
 RF         1976 SC1750  (3)
 R          1977 SC1027  (23,30,42)
 R          1978 SC  68  (89)
 R          1978 SC 215  (67)
 D          1978 SC 489  (1,9)
 E&R        1978 SC 597  (5,9,10,11,12,16,40,41,54,55,*
 RF         1978 SC1675  (55,227)
 RF         1979 SC 478  (90,159)
 RF         1979 SC 745  (71)
 RF         1979 SC1925  (16)
C          1980 SC 898  (30,41,43,44,47,48,50,51,54)
 RF         1982 SC 710  (17,21,71,84,114)
 MV         1982 SC1325  (16,80)
 RF         1983 SC 361  (2,12,13)
 F          1985 SC1367  (33)
 F          1985 SC1416  (103,104)
 RF         1986 SC 555  (6)
 RF         1986 SC1162  (5)
 R          1990 SC 231  (17)
 RF         1991 SC 564  (5)
 R          1992 SC 320  (51)
 RF         1992 SC1701  (21,26,27)
ACT:
    Preventive  Detention  Act  (IV  of  1950),  ss.  8,  7,
10-I4.--Validity--Constitution of India, 1950, Arts. 13,  19
to  22, 32--Law relating to  preventive   detention--Whether
infringes    Fundamental    Right   as   to    freedom    of
movement--Whether subject to judicial review as to  reasona-
bleness  under Art. 19 (5)--Scope of Art. 19--Right of  free
movement and Right to personal liberty, nature and incidents
of--Art.  22, whether complete code as to preventive  deten-
tion--Scope and applicability  of  Art.. 21--"Law,"  "proce-
dure established by law," meanings of--Whether include rules
of natural justice--Construction of Art. 21--American  deci-
sions on "due process of law," value of-Omission to  provide
objective  standard  for  satisfaction  of  authorities,  to
provide  for  oral hearing or leading of  evidence,  to  fix
maximum period of detention, and to specify  "circumstances"
and  "classes  of cases" where period of  detention  may  be
extended over 3 months,  prohibiting  detenu from   disclos-
ing  grounds of detention--Validity of law--Construction  of
Constitution --Reference to  debates  and  Report  of Draft-
ing Committee-Permissibility.
HEADNOTE:
    The  petitioner who was detained under  the   Preventive
Detention Act (Act IV of 1950) applied under Art. 32 of  the
Constitution for a writ of habeas corpus and for his release
from detention, on the ground that the said Act  contravened
the  provisions of Arts. 13, 19, 21 and 22 of the  Constitu-
tion and was consequently ultra rites and that his detention
was therefore illegal:
Held,  per KANIA C.J., PATANJALI SASTRI, MUKHERJEA  and
DAS  JJ.  (FAZL ALI and MAHAJAN  JJ.  dissentinq)--that  the
preventive  Detention Act, 1950, with the exception of  Sec.
14  thereof  did not contravene any of the Articles  of  the
Constitution  and even though Sec. 14 was ultra rites  inas-
much  as it contravened the provisions of Art. 9.9,  (5)  of
the  Constitution,  as this section was severable  from  the
remaining sections of the Act, the invalidity of Sec. 14 did
not  affect  the  validity of the Act as a  whole,  and  the
detention of the petitioner was not illegal.
     FAZL  ALl and MAHAJAN JJ.--Section 12, of the  Act  was
also  ultra vires, and since it contravened the very  provi-
sion in the
89
Constitution  under which the Parliament derived its  compe-
tence to enact the law, the detention was illegal.
    Held, by the Full Court (KANIA CJ., FAZL ALI,  PATANJALI
SASTRI,  MAHAJAN, MUKHERJEA and DAS JJ.)--Section 14 of  the
Preventive  Detention Act, 1950, contravenes the  provisions
of  Art. 9.9. (5) of  the  Constitution in so  far   as   it
prohibits a person detained from disclosing to the Court the
grounds  on  which a detention order has been  made  or  the
representation  made by him against the order of  detention,
and is to that extent ultra vires and void.
    Per KANIA C.J., PATANJALI SASTRI, MAHAJAN, MUKHERJEA and
DAS JJ. (FAZL ALI J. dissenting).--Article 19 of the Consti-
tution has no application to a law which relates directly to
preventive detention even though as a result of an order  of
detention the rights referred to in sub-cls. (a) to (e)  and
(g) in general, and sub-cl. (d) in particular, of cl. (1) of
Art. 19 may be restricted or abridged; and the constitution-
al  validity  of  a law relating to  such  detention  cannot
therefore, be judged in the light of the test prescribed  in
el. (5) of the said Article.
DAS  J.--Article 19 (1) postulates a legal  capacity  to
exercise the rights guaranteed by it and if a citizen  loses
the freedom
    of his person by reason of lawful detention as a  result
of a conviction for an offence or otherwise he cannot  claim
the  right s under- sub-cls. (a) to (e) and (g) of  Art.  19
(1);  likewise if a citizen's property is  compulsorily  ac-
quired  under Art. 31, he cannot claim the right under  sub-
el.  (f) of Art. 19 (1) with respect to that  property.   In
short the rights under sub-cls. (a) to (e) and (g) end where
lawful  detention  begins and therefore the  validity  of  a
preventive detention Act cannot be judged by Arc. 19 (5).
MAHAJAN  J.---Whatever be the precise scope of Art.  19  (1)
(d) and Art.19(5) the provisions of Art. 19(5) do not  apply
to  a  law relating to preventive  detention,  inasmuch   as
'there  is  a special self-contained provision  in  Art.  22
regulating it.
    FAZL ALI.J.--Preventive detention is a direct  infringe-
ment  of the right guaranteed in Art. 19 (1) (d), even if  a
narrow construction is placed on the said sub-clause,  and a
law     relating     to     preventive     detention      is
therefore  subject  to such limited judicial  review  as  is
permitted by Art. 19 (5).
Per KANIA C.J., PATANJALI SASTRI, MUKHERJEA and DAS JJ.
(FAZL ALl J. dissenting).--The concept of the right "to move
freely   throughout  the  territory  of  India" referred  to
in Art. 19 (1) (d), of the Constitution is entirely  differ-
ent  from  the concept of the right  to  "personal  liberty"
referred  to in Art. 21, and Art. 19 should not,  therefore,
be  read  as controlled by the provisions of Art.  21.   The
view that Art. 19 guarantees substantive rights and Art.  21
prescribes  the procedure is incorrect. DAs  J.--Article  19
protects some of the important attributes of personal liber-
ty as independent rights and the expression "personal liber-
ty" is used in Art. 21 as a compendious term
90
including   within   Rs  meaning all  varieties   of  rights
which go to make up the personal liberties of men.
  FAZL  ALl J.--Even if it be assumed that Art. 19  (1)  (d)
does not refer to " personal liberty" and that it bears  the
restricted meaning attributed to it,that is to say, R signi-
fies merely the right to move from one locality to  another,
preventive  detention  must be held to affect  this  limited
right  of movement directly and substantially.  One  of  the
objects  of  preventive detention is to  restrain  a  person
detained from moving from place to place so that he may  not
spread  disaffection or indulge in dangerous  activities  in
the places he visits.  The same consideration applies to the
cases  of  persons  who are interned  or  externed.   Hence,
externment, interment and certain other forms of restriction
on  movement  have always been treated  as  kindred  matters
belonging  to the same group or family, and the  rule  which
applies to one must necessarily apply to the others.
    Per KANIA C. J ,, PATANJALI SASTRI and DAS 35.  (MAHAJAN
3. dissenting).--Article 22 does not form a complete code of
constitutional safeguards relating to preventive  detention.
To the extent that provision is made in Art. 9.9, it  cannot
be controlled by Art. 9,1; but on points of procedure  which
expressly or by necessary implication are not dealt with  by
Art.  22,  Art. 9.1 will apply.  DAS  J.--Art.  21  protects
substantive  rights by requiring a procedure and  Art.  9.9.
lays  down  the  minimum rules of procedure  that  even  the
Parliament cannot abrogate or overlook. MAHAJAN J.--Art. 99.
contains a self-contained code of constitutional  safeguards
relating  to preventive detention and cannot be examined  or
controlled  by  the provisions of Art. 21.   The  principles
underlying  Art. 21 are however kept in view in Art. 22  and
there  is no conflict between these articles.  MUKHERJEA  J.
--Even  assuming that Art. 22 is not a  self-contained  code
relating  to  preventive detention and that  Art.  21  would
apply,  it is .not permissible to supplement Art. 22 by  the
application  of rules of natural justice. FAZL ALI  J.--Art.
22.  does not form an exhaustive code by itself relating  to
preventive  detention.  Parliament can make  further  provi-
sions  and if it has done so Art. 19 (5) may be  applied  to
see  if  those provisions have transgressed  the  bounds  of
reasonableness.
   Per  KANIA C.J., MUKHERJEA and DAS JJ. (FAZL ALI J.  dis-
senting).--In Art. 9.1 the word  'law" has been used in  the
sense  of State-made law and not as an equivalent of law  in
the  abstract or general sense embodying the  principles  of
natural  justice; and "procedure established by  law"  means
procedure  established by law made by the State, that is  to
say, the Union Parliament or the Legislatures of the States.
It is not proper to construe this expression in the light of
the meaning given to.the expression "due process of law"  in
the  American Constitution by the Supreme Court of  America.
FATANJALI  SASTRI cl.-- "Law" in Art. 21 does not  mean  the
jus naturale of civil law but means
91
positive or State-made law.  "Procedure established by  law"
does not however mean any procedure which may be  prescribed
by  a  competent legislature, but the  ordinary  well-estab-
lished  criminal procedure, i.e., those settled. usages  and
normal modes of procedure sanctioned by the Criminal  Proce-
dure Code, which is  the  general  law  of  criminal  proce-
dure   in  this country. The only alternative to  this  con-
struction, if a constitutional transgression is to be avoid-
ed  is  to interpret the reference to "law"  as  implying  a
constitutional  'amendment pro tanto, for it is only  a  law
enacted  by the procedure provided for such  amendment  that
could modify or override a fundamental right without contra-
vening Art. 13 (2).
    FAZL, ALI J.--There is nothing revolutionary in the view
that  "procedure established by law "must include  the  four
principles of elementary justice which inhere in and are  at
the  root  of all civilized systems of law, and  which  have
been stated by the American Courts and jurists as consisting
in  (1) notice, (2) opportunity to be heard,  (3)  impartial
tribunal  and  (4) orderly course of procedure.  These  four
principles  are really different aspects of the same  right,
namely, the right to be heard before one is condemned. Hence
the  words  "procedure established by law  ",  whatever  its
exact  meaning  be, must necessarily include  the  principle
that  no  person shall be condemned without  hearing  by  an
impartial tribunal.
    Per KANIA C.J., FAZL ALI, PATANJALI SASTRI, MAHAJAN  and
DAS  JJ.--Section 3 of the Preventive Detention  Act,  1950,
does  not  delegate any legislative power  to  an  executive
officer  but merely confers on such officer a discretion  to
enforce  the law made by the legislature, and is not  there-
fore invalid on this ground.  The fact that the section does