seen that his cross-examination was completed on the allegations in the main petition on October 18, 1995.


Sri Ramdas Motor Transport Ltd. ... vs Karedla Suryanarayana And Ors. on 18 October, 2001

22. From the above factual narration, the first issue that falls for consideration of this court would be :
 "Whether the procedure followed by the Board in disposing of C. P. No. 15 of 1994 is in accordance with law ?"
 23. The power to deal with the allegations of oppression of minority shareholders and mismanagement of the affairs of the company under Chapter VI of the Act were originally vested in the High Court till the Companies (Amendment) Act, 1988, came into force with effect from May 31, 1991, whereunder the said power was conferred on the Board.
 24. Learned counsel for the petitioners contends that the functions of the Board are akin to the functions of a court having stepped into the shoes of the High Court while discharging judicial functions, at worst a quasi-judicial authority and it is expected to follow the rules of procedure while adjudicating the lis. On the other hand, learned counsel for the respondent-company strenuously contends that the Board being an administrative body not vested with the judicial powers it need not follow the procedure prescribed in the Code of Civil Procedure and it is at liberty to follow its own procedure as per Section 10E(6) of the Act.
 Aims and objects of the Act :
 25. To appreciate the rival contentions, we have to look into the aims and objects underlying the amending Act and the provisions introduced by the Amendment Act, 1988.


26. Prior to the Amendment Act, 1988, the judicial and quasi-judicial functions vested in the Central Government under Sections 17, 18, 79 and 144 were being exercised by the Board as its delegate apart from discharging statutory functions and the composition of the Board was from among the officers of the Central Government and the High Court was exercising powers under Chapter VI in granting relief against the acts of oppression and mismanagement of the affairs of the company apart from other powers conferred on it.
 27. In the light of the overwhelming representations received from all the organizations and individuals for constitution of an independent Board without interference of the Central Government, the Central Government constituted the Sachar Committee to consider those representations and suggest suitable amendments to the Act. Having considered the representations of several organizations, the Committee made the following recommendations :
 "We therefore, feel that appropriate solution would lie in statutorily constituting an independent quasi-judicial Company law Board broadly on the lines of the Income-tax Appellate Tribunal as provided in Section 252 of the Income-tax Act."
 28. The Committee also recommended modifications to the existing provisions relating to the constitution and functions of the Board. Under Clause (c) it recommended that the Company Law Board including its Regional Benches shall have powers of the court tinder the Code of Civil Procedure not only in respect of matters specified in the present Sub-sections (4C) and (4D) of Section 10E, but also in respect of the powers conferred upon it or the Regional Benches by the Act.


29. Accepting the recommendations of the Committee, the Central Government amended the Act in 1988 and established an independent Company Law Board to exercise judicial and quasi-judicial functions hitherto exercised by the court or the Central Government till then besides the statutory powers vested in the Board by the Amendment Act, 1974. But the second recommendation of the Committee did not find a place in the amending Act. From the above, it can be safely concluded that the Board at the worst has to be declared as quasi-judicial functions while discharging functions under Chapter VI of the Act.
 30. But learned counsel for the respondent-company in support of his case cited a judgment in Prakash Timbers Pvt. Ltd, v. Smt. Sushma Shingla, , while considering the status of the Company Law Board, their Lordships of the Allahabad High Court held as follows (page 781 of Comp Cas) :
 "The Board has to perform the functions under the various provisions of the Act. Some of them are judicial in nature and some of them are quasi-judicial and some of the functions are more in administrative nature . . .
 Broadly speaking, the Company Law Board has the trappings of a court in the sense that it has to determine a matter placed before it judicially, give fair opportunity of hearing to the parties who may be affected by the order, to accept the evidence and also to order for inspection and discovery of documents, compel the attendance of the witnesses and in the last, to pass a reasoned order which gives finality to its decision subject to right of appeal to a party under Section 10F of the Act or such other legal remedy which is available under law to a party."
 31. The court then considering the scope, functions and jurisdiction conferred on the Company Law Board concluded that the Company Law Board can only be regarded as a Tribunal and not a court.


32. Even as per this judgment, the Tribunal is exercising judicial functions. Hence even if the Board is not court in the strict sense, it is definitely a quasi-judicial Tribunal and it has to follow the procedural laws to the extent possible and it cannot act at its whims and fancies while discharging judicial functions.
 33. Though the apex court interpreted the words "observance of principles of natural justice to be followed by quasi-judicial/administrative bodies" to mean that even if the procedure laws prescribed in the Code of Civil Procedure need not be strictly followed, yet they have to be guided by those provisions in discharge of their functions. But as learned counsel addressed marathon arguments justifying the procedure followed by the Board, I am forced to refer to his contentions to avoid criticism that the court did not consider various contentions raised on behalf of the respondents.
 Now the question to be considered is :
 Whether the Company Law Board is having inherent powers ?


Whether the Company Law Board is having inherent powers ?
 34. It is seen that an independent Company Law Board is established to exercise judicial and quasi-judicial functions exercised by the courts or the Central Government till then and is not subjected to control of the Central Government. Under Sub-section (4C) of Section 10E of the Act, the powers of the civil court under the Code of Civil Procedure while trying a suit were conferred on the Board to the extent indicated therein. Under Sub-section (5) without prejudice to the provisions of Sub-sections (4C) and (4D), the Board in discharge of its functions under the Act or any other law is "to be guided by principles of natural justice" and shall act in its discretion and under Sub-section (6) "subject to the foregoing provisions of this section, the Board shall have the power to regulate its own procedure". In exercise of this power the Board framed the Company Law Board Regulations, 1991. Under Regulation 44, the Board is empowered to exercise the inherent powers which are akin to Section 151 of the Civil Procedure Code, 1908 and which were till then exercised by the courts under rule 9 of the Companies (Court) Rules, 1959, while dealing with company matters. As the language used in Regulation 44 and rule 9 of the Courts Rules being one and the same, it is useful to extract the above provisions to know the scope, ambit and powers of the Tribunal. Regulation 44 of the Company Law Board Regulations, 1991, reads as under :
 "Nothing in these rules shall be deemed to limit or otherwise affect the inherent power of the Bench to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the Bench."


35. Further these Regulations deal with regard to the procedure to be adopted for regulating the business of the Board. The Regulations postulate that a fair opportunity should be given to the party who may be affected by the order and also to the person who files a petition before it.


36. Nextly, it is seen that under Section 402 of the Act, on an application filed under Section 397 or 398 of the Act, the Board is competent to pass any of the orders specified in that section without prejudice to the generality of the powers of the Board to pass any order under either Section 397 or 398 of the Act. Section 402(b) deals with the purchase of shares or interest of any member of the company by any other members thereof or by the company. In other words, the Board is competent to pass orders directing the majority shareholders or the company to purchase the shares of minority shareholders. But Mr. Raghavan strenuously contended that the Board having dismissed the case on the merits is not expected to give the above directions. He placed reliance on a judgment reported in Suresh Kumar Sanghi v. Supreme Motors Ltd. [1983] 54 Comp Cas 235 (Delhi), wherein it was held that jurisdiction under Section 402 of the Act to make an order would arise only when the Board records a finding that the requirements of the section are fulfilled, but not otherwise. To my mind even if the minority shareholders failed to establish the acts of mismanagement complained of by them, a reading of Section 398 of the Act makes it clear that even an apprehension in the minds of minority shareholders is sufficient to clothe the Board to give directions under Section 402 of the Act as the provisions of Sections 397, 398 and 402 of the Act are inter-related and they should not be read in isolation. A combined reading of the aforesaid three sections clearly brings out two aspects ; first, the very wide nature of the power conferred on the court and, secondly, the object sought to be achieved by the exercise of such power. The only limitation that could be impliedly read on the exercise of the power would be that nexus must exist between the order that may be passed thereunder


the exercise of the power would be that nexus must exist between the order that may be passed thereunder and the object sought to be achieved by these sections and beyond this limitation which arises by necessary implication, it is difficult to read any other restriction or limitation on the exercise of the court's power. While Sections 397 and 398 of the Act are intended to protect the minority shareholders from acts of oppression and mismanagement or preventing its affairs from being conducted in a manner prejudicial to public interest or the interests of the company while avoiding winding up of the company if possible and keep it going the powers of the Board under Section 402 of the Act are wide enough to enable the court to put an end to the acts complained of. Likewise while exercising the powers under Sections 397 and 402 of the Companies Act, the court is considering not only the relief that is sought for but also considering as to what is the nature of the complaint and how the same has to be rectified. It is the interest of the company that is being considered and not the individual dispute between the minority shareholders and majority shareholders. In other words, the interest of the company requires that the majority shareholders must have their say in the management.


37. The purpose and object of Sections 397 and 398 is to put an end to acts of oppression and mismanagement promptly and speedily rather than allow the parties to be involved in a costly and protracted litigation. If the facts justify interference by the court in the exercise of its powers under the two sections and if the conditions prescribed by the sections are fulfilled, the court ought not to relegate the parties to a series of protracted and costly litigation.
 38. Though the party approaching the Board seeking relief against acts of oppression is bound to prove the allegations levelled against the majority shareholders, as far as the relief in the case of mismanagement under Section 398 of the Act is concerned, the Board is competent to make any order as it thinks fit with a view to bringing to an end or preventing the matters complained of or apprehended. From this it is seen that as far as acts of mismanagement are concerned, mere apprehension in the mind of any prudent person is sufficient for the Board to pass any of the orders specified in Section 402 of the Act.
 39. He also conceded that if the court comes to the conclusion that the Board is having powers to give such a direction, he has no case in his appeal. In the light of the foregoing discussion, I hold that it is open to the Board to make just and equitable provision if situation demands apart from the orders that can be passed under Section 402 of the Act itself.
 40. Even assuming for a moment that the Board cannot exercise its powers under Section 402 of the Act without proving the acts of oppression and mismanagement, under Regulation 9 the Board is fully empowered to exercise the inherent powers vested in it to do substantial justice and to put an end to the acts complained of. I am fortified in my view by the dicta laid down in the following cases.


41. In Shoe Specialities P. Ltd. v. Standard Distilleries and Breweries (P.) Ltd. [1997] 90 Comp Cas 1; [1997] 1 Comp LJ 243 (Mad), a Division Bench of the Madras High Court held as follows (pp. 35 and 36) :
 "Regulation 44 of the Company Law Board Regulations, 1991, saves the inherent power of the Board and it corresponds to Section 151 of the Civil Procedure Code. It is settled law that under the inherent powers, the court can pass any order to prevent the abuse of process and also to meet the ends of justice. . . .
 When a case of oppression is made out..., it is only within the power of the Company Law Board to end the matter complained of and to make such orders as it thinks fit. While considering to end matters complained of and when it is given the power to make any such order as it thinks fit to rectify the same, the Company Law Board is empowered to remove the board of directors so that the affairs of the company can be set right."


42. In Standard Industries Ltd. v. Mafatlal Services Ltd. [1994] 80 Comp Cas 764, the Principal Bench of the Company Law Board at New Delhi held that the modus operandi adopted by the majority shareholders fully subscribing to the rights issue is intended to reduce the voting of the petitioners by reducing their shareholding from 48 per cent. to 12 per cent. and suffers from lack of probity and fair play as evidenced by their resolution and in exercise of its powers under Section 402 of the Act the Board observed that the most equitable proposition is that the respondents should buy the shares of the petitioners so that their grievance of oppression was redressed and at the same time that the company's paid-up capital was also maintained. In this judgment, the Board observed that it was not the legality of the rights issue but the modus operandi adopted by the respondents that was the real issue.
 43. In Daulat Makanmal Luthria v. Keshav S. Naik [1992] 3 Comp LJ 119, again the Principal Bench of the Board having noticed that a stage had come where the petitioners and the respondents had lost mutual trust necessary for working together in managing the affairs of the company under the circumstances it has become impossible for the petitioners and the respondents to work together even if an independent chairman was appointed. In those circumstances, the Board passed order under Section 402 of the Act directing the respondents to purchase the shares of the petitioners or sell their shares to the petitioners so that the company came under the exclusive control and management of either the respondents or the petitioners.


44. Again the Principal Bench of the Board in Yashovardhan Saboo v. Groz-Beckert Saboo Ltd. [1993] 1 Comp LJ 20 ; [1995] 83 Comp Cas 371 observed that "on the facts of the case though the petitioners had failed to establish a case of oppression, yet reconciliation between the parties being difficult, with a view to do substantial justice between them and also to put an end to the dispute, the majority group was asked to pay the price for the shares of the minority group on fair terms in view of settled law that the majority should never be forced to sell their shares to the minority in exercise of its powers under Section 402 of the Act."
 45. A learned single judge of this court in R. Khemka v. Deccan Enterprises (P.) Ltd. [1998] 16 SCL 1 held that though the case of oppression and mismanagement was not made out but on the facts, the petitioner could be directed to sell share's to the respondent and on failure of the respondent to purchase he could be directed to sell his shares to the petitioners in the interest of company. The said judgment was confirmed by a Division Bench of this court reported in Khemka v. Deccan Enterprises Pvt. Ltd. [2000] 100 Comp Cas 211.


46. In H.R. Harmer Ltd., In re [1958] 3 All ER 689 ; [1959] 29 Comp Cas 305 (CA) Lord Denning in his separate judgment having observed that the object of the remedy under Section 210 of the English Act, 1948, similar to that of Section 397 of our Act is to bring to an end the matters complained of, i.e., oppression and one of the most useful orders mentioned in the section which will enable the court to do justice to the injured shareholders is to order the oppressor to buy their shares at fair price.
 47. In Needle Industries (India) Ltd. v. Needle Industries Newey (India) Holdings Ltd. , their Lordships of the Supreme Court at paragraph No. 172 held as follows (page 845) :
 "Even though the company petition fails and the appeals succeed on the finding that the holding company has failed to make out a case of oppression, the court is not powerless to do substantial justice between the parties and place them, as nearly as it may, in the same position in which they would have been, if the meeting of May 2, were held in accordance with law."
 48. In fact, the Board, relying on this judgment gave a direction to the respondent-company to purchase the shares of the minority shareholders.
 49. The complaint of learned counsel for the respondent is that the Supreme Court while exercising the inherent powers/plenary powers vested in it, has given such direction and the Board not being a regular civil court is not empowered to exercise the inherent powers. In the light of the foregoing discussion, the contention of the respondents falls to the ground ; more so in the light of the judgment of the Madras High Court, which is directly on the issue apart from the other judgments referred above.


50. Nextly, Mr. Raghavan contended that having dismissed the case on the merits, the Board is not expected to give directions and he further contended that the Board misread the judgment of the Supreme Court in Needle's case, .
 51. In support of his case, he relied on a judgment of the Delhi High Court in Suresh Kumar Sanghi's case [1983] 54 Comp Cas 235, wherein Justice Kirpal, as he then was, held that (p. 244): "the petitioner has not proved or shown that there have been any continuous acts of oppression by the majority on the minority shareholders and as such no relief can be granted under Section 397 of the Act. In that petition, the petitioner claimed oppression on the basis of a solitary incident of removing him from the management of the company."
 52. Firstly, the facts of the case on hand are different from the facts of that case. A series of acts of oppression as well as mismanagement were alleged against respondent No. 2 and his group in this application. Further in this case nowhere it was held that the Board is not having inherent powers to do substantial justice between the parties. The relief sought for was simply refused on the ground that a solitary instance cannot form the basis for invoking the jurisdiction of the court under Section 397 of the Act. Hence, this judgment would not come to the rescue of the respondents.


53. To sum up the discussion on this aspect, 1 hold that the Board is having inherent powers under Regulation 44 of the Regulations, which are akin to the inherent powers of the civil court under Section 151 of the Civil Procedure Code to do substantial justice to the parties. Even assuming for a moment that the Board is not having inherent powers, the Board is fully competent to pass orders under Section 402 of the Act if the acts of mismanagement alleged against the majority shareholders creates an apprehension in the minds of the minority shareholders even if they fail to establish the allegations levelled against them.
 Whether the procedure followed by the Board can be sustained in law :
 54. Now let me examine the legal position to see whether the procedure followed by the Board can be sustained in law. In the main petition as well as in C. A. No. 69 of 1994 the petitioner prayed for summoning the records but the board did not pass orders. In fact in C. A. No. 65 of 1996 also similar prayer was made. But counsel might have felt that he will be in a position to convince the Board without summoning the originals, he did not press for summoning the originals at that stage. That does not mean that the Board can act arbitrarily at its whims and fancies.
 Whether provisions of the Civil Procedure Code are applicable to proceedings before the Board ?


Whether provisions of the Civil Procedure Code are applicable to proceedings before the Board ?
 55. To my mind when the Board exercises judicial functions the elementary principle of adjudicatory process is observance of rules of procedure, i.e., pleadings supported by oral, and documentary evidence and respective parties have to get into the witness box to prove their case and also subject themselves to cross-examination to test the correctness or the veracity of his case apart from proving the authenticity of the documents. Keeping the above principles in mind if one looks into the facts of the case it is seen that serious allegations as extracted supra are made in the management of the affairs of the company as well as oppression of minority shareholders by respondents Nos. 2 and 3. But the Board simply extracted the arguments on the basis of xerox copies of the documents and recorded its findings without even discussing the oral evidence of the ninth petitioner by holding that the evidence is incomplete though it is not the case of the respondents and even without looking into the annual reports filed by -the petitioners to prove that huge amounts were swindled by not bringing all the spare parts manufactured by the company into the account books. The Board has neither summoned the original documents and audited accounts of the company nor given opportunity to the petitioners to peruse the records to prove the allegations of mismanagement and pronounced the impugned order.


56. The attendance sheets maintained in the case and the order of the Board dated July 21, 1995, in C. A. No. 134 of 1995 clinchingly establish that till December 4, 1998, the Board as well as the respondents took the stand that the provisions of the Civil Procedure Code are applicable and recording of evidence is a must in the case. The petitioner might have expressed his inability in securing the presence of list witnesses, but he never stated that he is not available for examination on the subsequent acts of mismanagement as the evidence of the ninth petitioner is complete in all respects on the allegations made in the main petition. Even assuming without admitting that the evidence on behalf of the petitioners is incomplete, no evidence on behalf of the respondents was recorded and pronounced the impugned order. Learned counsel for the respondent-company having taken an irrevocable stand that the provisions of the Civil Procedure Code are applicable and chief examination followed by cross-examination is a must, cannot take a round about turn to justify the illegal order by contending that the Board being an administrative body the provisions of the Code of Civil Procedure are not applicable to the Board.
 57. I am fortified in my view by a judgment of the Honourable Supreme Court reported in Dwarka Nath v. ITO , Justice K. Subba Rao speaking for the Constitution Bench having held that the jurisdiction conferred under Section 33A(2) of the Indian Income-tax Act, 1922, prima facie is a judicial one and having reviewed the case law held that if an administrative body is empowered to determine questions affecting the rights of subjects and if it is having a duty to act judicially it is a clear case of judicial act and held as follows (page 356 of ITR) :


"In all these cases the Government, the Examination Committee and the Board of Revenue were administrative bodies, but the acts impugned were quasi-judicial ones, for they had a duty to act judicially in regard thereto. The law on the subject may be briefly stated thus : The provisions of a statute may enjoin on an administrative authority to act administratively or judicially. If the statute expressly imposes a duty on the administrative body to act judicially, it is a clear case of a judicial act. But the duty to act judicially may not be expressly conferred but may be inferred from the provisions of the statute. It may be gathered from the cumulative effect of the nature of the rights affected, the manner of the disposal provided, the objective criterion to be adopted, the phraseology used, the nature of the power conferred, or the duty imposed on the authority and other indicia afforded by the statute. In short, a duty to act judicially may arise in widely different circumstances and it is not possible or advisable to lay down a hard and fast rule or an inflexible rule of guidance."
 58. Under Section 141 of the Civil Procedure Code the procedure provided in the Code in regard to suits shall be followed, as far as it can be made applicable, in all proceedings in any court of civil jurisdiction and in the light of the above judgment of the Supreme Court, the procedure prescribed in the Civil Procedure Code in regard to suits shall be followed, as far as it can be made applicable at least to the extent of pleadings, receiving documentary evidence and recording oral evidence in support of the case of the respective parties.


59. In Jhabarmull Agarwalla v. Kashiram Agarwalla [1969] 71 ITR 269, a Division Bench of the Calcutta High Court while considering the effect of Section 131 of the Income-tax Act, 1961, which is in pari materia to Section 10E(4C) of the Act dealing with the powers of the officers of the Income-tax Department, held as follows (page 271) :
 "The powers conferred on the Income-tax Officer under Section 131(1) of the Act have not been specified with reference to particular provisions of the Code of Civil Procedure but all the powers which the civil court has under the Code have been conferred on the Income-tax Officer on some specified matters. One such matter is 'compelling the production of books of account and other documents'. Section 131(1) must, therefore, be construed to confer on the Income-tax Officer all the relevant powers, which the civil courts have under the Code of Civil Procedure regarding the production of books of account and other documents. Since Order XIII, Rule 10, confers such power on the civil court to call for documents from other courts, the Income-tax Officer too has such powers under Section 131(1) of the Act."
 60. From Section 131 of the Income-tax Act, it is seen that the officers of the Income-tax Department while exercising the powers of an Administrative tribunal were conferred with the powers of a civil court for certain purposes which are in pari materia the same as in Section 10E(4C) of this Act. But in this case, admittedly the Board is exercising judicial functions at worst, quasi-judicial functions.
 61. Even in Prakash Timbers Pvt. Ltd's case, their Lordships of the Allahabad High Court did not observe that the Board need not follow rules of procedure while discharging judicial functions.


62. Hence it cannot be said that the provisions of the Code of Civil Procedure are not altogether applicable to proceedings of the Board. On the other hand, to the extent possible these Tribunals are guided by those principles when they are involved in the adjudicatory process.
 The Board can regulate its own procedure subject to observance of rules of natural justice under Section 10E(5) and (6)--What does it mean ?
 63. The contention of learned counsel for the respondent, that the Board is entitled to regulate its own procedure and it is not under an obligation to follow strict rules of evidence is answered by their Lordships of the Supreme Court in Industrial Credit and Investment Corporation of India Ltd. v. Grapco industries ltd. . Their Lordships of the Supreme Court while considering the procedural powers of a Debt Recovery Tribunal under Section 22 of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993, held as follows (page 123) :
 "When Section 22 of the Act says that the Tribunal shall not be bound by the procedure laid down by the Code of Civil Procedure, it does not mean that it will not have jurisdiction to exercise powers of a court as contained in the Code of Civil Procedure, Rather, the Tribunal can travel beyond the Code of Civil Procedure and the only fetter that is put on its powers is to observe the principles of natural justice."
 64. Further, their Lordships of the Supreme Court while considering the powers of the adjudicating officer and the Appellate Board to summon witnesses, under Section 53 of the Foreign Exchange Regulation Act, 1973, held as follows (page 124) :


"... there are no limitations on the powers of the Tribunal under the Act, the Legislature has thought it fit to restrict the powers of the authorities under various enactments while exercising certain powers under those enactments. We have to give meaning to Section 22 of the Act as here the Tribunal is exercising powers of a civil court while trying a money suit."
 Observation of principles of natural justice--Meaning :
 65. Their Lordships of the Supreme Court in A.K. Kraipak v. Union of India, , held in para. 20, as follows (page 156) :


"The aim of the rules of natural justice is to secure justice or to put it negatively to prevent miscarriage of justice. These rules can operate only in areas not covered by any law validly made. In other words they do not supplant the law of the land but supplement it. The concept of natural justice has undergone a great deal of change in recent years. In the past it was thought that it included just two rules, namely (1) no one shall be a judge in his own cause (nemo debet esse judex propria causa), and (2) no decision shall be given against a party without affording him a reasonable hearing (audi alteram partem). Very soon thereafter a third rule was envisaged and that is that quasi-judicial enquiries must be held in good faith, without bias and not arbitrarily or unreasonably. But in the course of years many more subsidiary rules came to be added to the rules of natural justice. Till very recently it was the opinion of the courts that unless the authority concerned was required by the law under which it functioned to act judicially there was no room for the application of the rules of natural justice. The validity of that limitation is not questioned. If the purpose of the rules of natural justice is to prevent miscarriage of justice one fails to see why those rules should be made inapplicable to administrative enquiries. Oftentimes it is not easy to draw the line that demarcates administrative enquiries from quasi-judicial enquiries. Enquiries which were considered administrative at one time are now being considered as quasi-judicial in character. Arriving at a just decision is the aim of both quasi-judicial enquiries as well as administrative enquiries. An unjust decision in an administrative enquiry may have more far-reaching effect than a decision in a quasi-judicial enquiry."


66. In Fort William Jute Mills Co. ltd. v. First Labour Court [1963] 1 LLJ 734 (Cal), the Calcutta High Court ruled that "though the strict rules of law of evidence are not to be applied this does not mean that the proceedings can be held in an arbitrary manner. The rules of natural justice must be applied. Ordinarily, there must be a personal hearing. If a person is entitled to show cause he is entitled to a hearing and if he is entitled to hearing, he must be given an opportunity of being personally heard of calling his own evidence and cross-examining any witness called by the prosecution."
 67. In Delhi Transport Corporation v. D.T.C. Mazdoor Congress , their Lordships while considering the validity of Regulation 9-b of the Delhi Road Transport Authority (Conditions of Appointment and Service) Regulations, 1952 which provides for removal of employee from service without assigning any reasons, observed that (page 148 of 79 FJR): "in a system governed by rule of law, discretion, when conferred upon executive authorities, must be confined within the defined limits. The rule of law from this point of view means that decisions should be made by the application of known principles and rules and, in general, such decisions should be predictable and the citizen should know where he is. If a decision is taken without any principle or without any rule it is unpredictable and such a decision is the antithesis of a decision taken in accordance with the rule of law."


68. From the above decisions, it can be safely held that even if the Board is exercising quasi-judicial powers it has to follow not only the rules of procedure prescribed in the Code of Civil Procedure but it can also travel beyond it, in furtherance of cause of justice subject to observance of principles of justice and ordinarily there must be personal hearing and a party must be given an opportunity of putting forth his own case and cross-examining any witness called by the other side. Observance of principles of natural justice operates in areas not covered by any law validly made and they do not supplant the law of land but supplement it. Even assuming that the Board is only an administrative tribunal and need not follow the rules of procedure, in a system governed by rule of law discretion when conferred on the authorities must be confined within defined limits and if a decision is taken without any principle or without any rule, it is unpredictable and such a decision is antithesis to a decision to be taken in accordance with rule of law.
 69. Even assuming for a moment that the Board is competent to regulate its own procedure and it has to be guided by the principles of natural justice as conceded by learned counsel, it does not clothe the Board to act illegally, irregularly or irrationally without observing the rudiment of law more so while discharging quasi-judicial functions and it cannot function as it wishes. Any procedure prescribed or followed should be in consonance with the law of the land. It is beyond anybody's comprehension that the Board will deliver orders even without looking into the original records when the petitioners complained that the respondents have fabricated the records, which resulted in miscarriage of justice. Observance of the principles of natural justice does not mean that the Board can pass orders on the basis of xerox copies or typed copies, which were filed before the Board even without attestation.


70. Keeping the above principles in mind if one looks at the order of the Tribunal it is evident that the order suffers from serious infirmities and the order is ab initio void.
 Board is following the same procedure :
 71. Nextly, learned counsel for the second respondent having conceded that the procedure followed by the Board is not within the parameters of the procedural laws of the land, he tried to justify the conduct of the Board by contending that the Board is following this procedure for a long time. At the same time, the Supreme Court deprecated such a practice followed even by the courts way back in 1981 counsel placed reliance on the observations of the Supreme Court.
 72. In Needle Industries (India) Ltd.'s case , the Supreme Court held as follows (page 786) :


"We appreciate that it is generally unsatisfactory to record a finding involving grave consequences to a person on the basis of affidavits and documents without asking that person to submit to cross-examination. It is true that men may lie but documents will not and often, documents speak louder than words. But a total reliance on the written word, when probity and fairness of conduct are in issue, involves the risk that the person accused of wrongful conduct is denied an opportunity to controvert the inferences said to arise from the documents. But then, Sri Nariman's objection seem to us a belated attempt to avoid an inquiry into the conduct and motives of Devagnanam. The company petition was argued both in the trial court and in the appellate court on the basis of affidavits filed by the parties, the correspondence and the documents. The learned appellate judges of the High Court have observed in their judgment that it was admitted, that before the learned trial judge, both sides had agreed to proceed with the matter on the basis of affidavits and correspondence only and neither party asked for a trial in the sense of examination of witnesses. In these circumstances, the High Court was right in holding that, having taken up the particular attitude, it was not open to Devagnanam and his group to contend that the allegation of mala fides could not be examined, on the basis of affidavits and the correspondence only. There is ample material on the record of this case in the form of affidavits, correspondence and other documents, on the basis of which proper and necessary inferences can safely and legitimately be drawn."


73. In that case their Lordships of the Supreme Court upheld the procedure followed by the trial court as well as the High Court in deciding the case on the basis of affidavits and documentary evidence as both the parties agreed to proceed with the matter on the basis of affidavits and correspondence and neither of the parties asked for a trial in the sense of examination of witnesses. Their Lordships further held that there is ample material on record, i.e., affidavits, correspondence and other documentary evidence on the basis of which proper and necessary inferences can safely and legitimately be drawn.
 74. But in this case, the Board itself by an order dated July 21, 1995, rejected the request of the petitioners to lead affidavit evidence by observing that if learned counsel for the petitioner desires to lead any evidence by the petitioners it may be done through personal appearance of such petitioners. It is interesting to see from the order of the Board that learned counsel for the respondents strenuously contended that Order 19 is applicable only when a specific fact has to be established but cannot be used for all purposes. Examination-in-chief is a must followed by cross-examination in view of the allegations of misconduct and fraud. The Board upheld the objection raised by the respondent's counsel. But before this court learned counsel for the respondent-company has taken a round about turn and started pleading that the Board is justified in passing the orders without there being any oral evidence by the respondents in support of their plea and without proof of untested xerox copies of the documents.


75. In A.K.K. Nambiar v. Union of India, , their Lordships of the Supreme Court while considering clause (f) of Section 10E whereunder the Bench is empowered to receive evidence on affidavits held that the affidavits without verification are not admissible in evidence. Their Lordships of the Supreme Court emphasised the need for verification of the affidavits as here-under (page 653) :
 "The reasons for verification of affidavits are to enable the court to find out which facts can be said to be proved on the affidavit evidence of rival parties. Allegations may be true to knowledge or allegations may be true to information received from persons or allegations may be based on records. The importance of verification is to test the genuineness and authenticity of allegations and also to make the deponent responsible for allegations. In essence verification is required to enable the court to find out as to whether it will be safe to act on such affidavit evidence."
 76. Admittedly in this case the affidavits of the third parties filed by the respondents are not verified. But the Board acted on these affidavits. At the same time, the Board did not refer to the affidavits filed by the petitioners, which are very much available on its file.
 77. From the above whatever documents were relied on by the respondents they being only the xerox copies, they are not admissible in evidence. With the result, the respondents did not produce any evidence whatsoever either oral or documentary in support of their pleadings, and at the same time the Board did not consider the oral/affidavits/documentary evidence filed by the petitioners.


78. In the adjudicatory process if the authorities do not follow the procedural laws of the land and the basic principles of adjudication of disputes as stipulated under Section 10E(4C) of the Act, the common man will lose faith in the very system of administration of justice. I understand that a retired High Court judge is heading the Board. I am sure that had the Board observed minimum procedural laws and considered the case of the parties on the merits dispassionately the result would have been otherwise.
 79. In M. J. Builders Pvt. Ltd. v. Radhey Shyam Sahu, , their Lordships of the Supreme Court held that (p. 2505) : "such discretion cannot be exercised which encourages illegality or perpetuates an illegality . . . Judicial discretion cannot be guided by expediency. Courts are not free from statutory fetters. Justice is to be rendered in accordance with law. Judges are not entitled to exercise discretion wearing robes of judicial discretion and pass orders based solely on their personal predilections and peculiar dispositions. Judicial discretion wherever it is required to be exercised has to be in accordance with law and set legal principles."
 79. While considering the duty of the Mahapalika, a body corporate constituted under the U.P. Municipal Corporation Adhiniyam, 1959, to construct and maintain public places, parks and plant trees, their Lordships held that a Mahapalika a body corporate constituted under the Act being a trustee is under an obligation and duty to maintain public places, parks and plant trees. When the nature of the park, as it existed, is destroyed, it would be violative of the doctrine of public trust as expounded by this court in Span Resort's case . The public trust doctrine is part of Indian law.


80. Viewed from the above angle, the Company Law Board is bound to exercise its powers in a manner known to law. But it cannot act whimsically, fancifully and arbitrarily and adopt a procedure of its own unknown to law. It is the public trust reposed in the institution. If the Board acts in violation of the doctrine of public trust, it amounts to destroying the public confidence in the institution.
 81. Further the Board as well as the respondents having proceeded on the assumption that the provisions of the Civil Procedure Code are applicable as seen from the order of the Board dated July 21, 1995, in C. A. No. 134 of 1995 till December 2, 1998, the day on which the Board started hearing the matter cannot dispense with the procedure, they thought of at the initial stage, more so without assigning any reasons. As stated supra the Board is expected to be guided by the provisions of the Civil Procedure Code in discharge of its judicial functions, though it need not follow all the provisions of the Civil Procedure Code in its strict sense. If it is not following the law of the land it is committing the gravest illegality in discharge of its judicial functions. Even if it is following an illegal procedure for a long time the same cannot turn to be legal, and at the earliest it needs rectification. Otherwise, the interest of the litigant public will be completely jeopardized as seen in this case. Accordingly this contention is also rejected.
 Documentary evidence :


Documentary evidence :
 82. Under Section 61 of the Evidence Act the contents of documents may be proved either by primary or secondary evidence ; under Section 62 primary evidence means the document itself produced for the inspection of the court; Section 63 deals with secondary evidence and under Section 64 all the documents must be proved by primary evidence except in cases mentioned in Section 65 of the Evidence Act for which necessary foundation has to be laid in the pleadings itself for leading secondary evidence.
 83. In this case only xerox copies of the documents were filed and it is not the case of the respondents that they are not having the original documents or the records with them.
 84. On the other hand the petitioners have not only filed the original documents in their possession but also filed applications for summoning of the original records from the respondent-company. On behalf of the petitioners, petitioner No. 9 has gone to the witness box and spoken on all the allegations made in the main application. But at the same time the respondents neither filed the original records nor entered into the witness box to give evidence in support of their case.
 85. Under Section 114 of the Evidence Act, the court has to draw a presumption with regard to the existence of any fact which it thinks likely to have happened regard being had to the common cause of natural events, human conduct and public and private business, in their relation to the facts of the particular case. As per illustration (g) of Section 114, the evidence, which could be, and is not produced, would, if produced, be unfavourable to the person who withholds it the court is expected to draw an adverse inference against the person who is in possession of the information and failed to produce the evidence.


86. Coming to the provisions of the Code of Civil Procedure, under Order 13, Rule 1, all parties shall produce all the documentary evidence of every description in their possession or power, on which they intend to rely, and which has not already been filed in court, and all the documents, which the court has ordered to be produced. Under Order 39, Rule 4, the court should endorse on every document, which has been admitted in evidence in the suit with the particulars contained therein. Under Order 13, Rule 5(3), where a copy of an entry is furnished, the court shall, after causing the copy to be examined, compared and certified in the manner mentioned in Order 13, Rule 17, mark the entry and cause the book, account or record in which it occurs to be returned to the person producing it.
 87. A Division Bench of this court in Badrunnisa Begum v. Mohamooda Begum held that a copy of the agreement without there being comparison of it with the original document, is not admissible in evidence as secondary evidence. Having considered the scope of Section 63 of the Evidence Act dealing with secondary evidence, their Lordships observed as follows (page 397) :


"Learned counsel for the appellant submits that under illustration [c] a copy transcribed from a copy but compared with the original is secondary evidence but the copy not so compared is not secondary evidence of the original although the copy from which it was transcribed was compared with the original. Now, if one goes by this illustration in the light of the evidence that is on record, one finds that there is no evidence whatsoever showing thereby that the copy taken from the copy was compared with the original. What the plaintiff has tried to do is that, she has tried to prove comparison of the copy of the copy by exhibiting exhibit A-32 which is a photo copy along with the negatives. The requirement of illustration (c) was that the copy taken from the copy should have been compared with the original. That could have not been done in view of the pleadings of the plaintiff herself as the original was not with her."
 88. Even assuming that counsel did not object to the procedure, the respondents having filed xerox copies are bound to prove the authenticity of the documents filed by them in a manner known to law. If such a course is not adopted by the respondents, the Board is expected to eschew the documents filed by the respondents. But the Board acting on such inadmissible evidence dismissed the application.
 89. In Roman Catholic Mission v. State of Madras, , the District Judge took into consideration the certified copies of certain leases from the record of an old case, i.e., O. S. No. 124 of 1944 on the file of the Sub-Court, Madurai. The Supreme Court while interpreting Section 65 of the Evidence Act held that those copies of the documents are not admissible in evidence, held that both Mailavaram and Kudivaram rights were included in Inam. Commenting on the act of the District Judge, their Lordships observed thus (page 1461) :


"These documents undoubtedly would have thrown light upon the matter but they were not admissible because they were only copies. The originals were not produced at any time nor was any foundation laid for the establishment of the rights to give secondary evidence. The High Court rejected them and it was plainly right in so deciding."
 90. In Pradip Kumar Sarkar v. Luxmi Tea Company Ltd. [1990] 67 Comp Cas 491, the learned judge of the Calcutta High Court held as follows :
 Since the audited accounts for the relevant period were not placed before the court for its perusal and for refusing the allegations of depressing the working results of the company, prima facie the allegation of the mismanagement of working results stood unrebutted and in such an event the court is empowered to supersede the board of directors if found to have acted illegally and appoint a receiver for a limited period and purpose.
 91. In Abdul Rasheed v. Abdul Hakeem , a learned single judge of this court held that the entries in the account books in favour of a party producing them have to be strictly proved. In a suit for specific performance filed on the basis of an oral agreement, the plaintiff therein produced a note book (exhibit A-44) maintained by him to show that he paid an amount of Rs. 10,000 to the defendant as advance and the version of the plaintiff was disbelieved by the learned judge by giving the following reasons ;
 "(1) in the first place the entries are unsound; (2) the entries as such are not marked; (3) the accountant who made the entries was not examined. Thus observing the learned judge held that the entries in the note book relied upon by the plaintiff to prove the alleged payment of Rs. 10,000 as advance were not proved."


92. In arriving at the conclusion, his Lordship relied upon a judgment in Mathilda Sice v. Fritz Gaebele, AIR 1926 Mad 955. In the said case their Lordships of the Madras High Court held that (headnote) :
 "mere laying down the account books without more does not prove anything and that it is for the party who prepared the accounts to explain them and support them in such a way as to convince the judge that there is a probability of their occuracy as to make it reasonable for a prudent man to accept them. The law requires the proof of not only account books generally but of each item that is in the interest of the person producing the books but with regard to admissions, i.e., entries against the producer's own pecuniary interest, the law dispenses with all proof save that the book has been kept by or under the authority of the producers."
 93. From this it is seen that except in a case where the entries are against the interest of the producers of the account book, the law requires proof of not only account books generally but of each item. Admittedly that was not done in this case.


94. In Ishwar Dass Jain v. Sohan Lal, , their Lordships of the Supreme Court while considering the admissibility of the extracts from the account books, held that (headnote) : "the extracts from accounts are not 'account books' falling within Section 34 of the Evidence Act and are inadmissible. Sanctity is attached in the law of evidence to books of account if the books are indeed 'account books' i.e., in original and if they show, on their face, that they are kept in the 'regular course of business'. Such sanctity, cannot attach to private extracts of alleged account books where the original accounts are not filed into court. This is because, from the extracts, it cannot be discovered whether the accounts are kept in the regular course of business or if there are any interpolations or whether the interpolations are in different ink or whether the accounts are in the form of a book with continuous page numbering. Hence, if the original books have not been produced, it is not possible to know whether the entries relating to payment of rent are entries made in the regular course of business. It is only in the case of the Bankers' Books Evidence Act, 1891, that certified copies are allowed or the case must come under Section 65(f) or (g) of the Evidence Act. Private extracts of accounts in other cases can only be secondary evidence and unless a proper foundation is laid for adducing such secondary evidence under Section 65 or other provisions of the Evidence Act, the privately handwritten copies of alleged account books cannot themselves be treated as secondary evidence."
 95. In United India Assurance Company Ltd. v. Satyanarayana Ghee Trading Company , this court held thus :


"merely because the accounts are kept in regular course of business and entries have been made therein they cannot have any binding nature vis-a-vis the insurer against whom the plaintiff is making now the claim. In other words the respondent-firm has to prove the entries separately by independent evidence apart from the proof required under Section 34 of the Indian Evidence Act to the effect that the accounts have been kept in regular course of business inasmuch as the element of interestedness cannot be ruled out. The distinction between the relevancy and proof of entries and probative value thereof cannot be lost sight of."
 96. In National Insurance Co. Ltd. v. Jugal Kishore , their Lordships of the Supreme Court while commenting on the conduct of the insurance company in not filing the copy of the policy before the Tribunal or before the High Court held as follows (page 853 of Comp Cas) :
 "This court has consistently emphasised that it is the duty of the party which is in the possession of a document which would be helpful in doing justice in the cause to produce the said document and such party should not be permitted to take shelter behind the abstract doctrine of burden of proof."
 97. On the facts of the case, their Lordships held that "we accordingly wish to emphasise that in all such cases where the insurance company concerned wishes to take a defence in claim petition that its liability is not in excess of the statutory liability it should file a copy of the insurance policy along with its defence." (page 853)


98. From the above it is seen that a party to a judicial proceeding in whose possession the document is, has to produce the same and having failed to do so, it cannot be permitted to take shelter behind the abstract doctrine of burden of proof.
 99. In the case on hand, the Board under the guise of following its own procedure in adjudicating the dispute, passed the order under challenge without following any of the well known rules of procedure and the order is the result of non-application of mind to the issues in controversy with reference to the original records. Had the Board seen the original records, it is evident to the naked eye that the resolutions of the board were tampered with by the respondents.
 100. A reading of the order shows that whatever is stated by the respondent is treated as gospel truth and the Board even went to the extent of placing reliance on the affidavits of the third parties without verification filed by the respondents retracting from the earlier affidavits given to the petitioners having held that the Board is not going to rely on the affidavit evidence in its order dated November 28, 1997. At the same time the Board did not consider the affidavits filed by the petitioners, for reasons best known to it though the respondents did not choose to rebut the same either by filing affidavits or by oral evidence. This action of the Board proves beyond doubt that it treated the parties differently and it has not acted dispassionately and in good faith. In one word the scales of justice heavily swung in favour of the respondents.


101. It is not the case of the respondents that the Board has at least followed the rudiments of law by summoning the original records and verifying with the documentary evidence filed by the respondents to test the veracity of the statements of the petitioners that the records were tampered with by the respondents or not. As stated supra, having summoned the original records and seen them I have no hesitation to hold that the records were tampered with by the respondents.
 Petitioners themselves gave up the prayer for summoning the records in C. A. No. 65 of 1996.
 102. Nextly, learned counsel for the second respondent contended that though the ninth petitioner filed C. A. No. 65 of 1996 for appointment of interim administrator and sought for production of the minutes books, account books along with the vouchers for the period 1992-1995 from the respondent-company, before the Board for verification, he did not press for the same as is evident from the order of the Board. He has drawn my attention to a passage in the order of the Board dated December 8, 1997, passed in the above C. A. wherein it was observed that :
 "Dr. Prasad Paul, senior advocate appearing for the petitioners, even though the application contains various allegations, restricted his arguments on the following two allegations only for the appointment of an administrator" and contends that the ninth petitioner gave up his plea for summoning the records in the case.


103. Countering the above argument, counsel for the petitioners brought to my notice the observations of this court in C. Sri Hari Rao's case [1999] 97 Comp Cas 685. In this case itself on appeal filed by petitioner No. 9 against the order of the Board in C. A. No. 65 of 1996, this court observed that the order under challenge is only an interlocutory order for the purpose of appointment of an administrator at the interim stage. Exercise of discretion by the Board cannot by any stretch be termed as so perverse.
 104. Admittedly, the prayer for appointment of an administrator is only as an interim measure till the disposal of the main case but not in the main case, i.e., C. P. No. 15 of 1994. The passing of an interim order being a discretionary one, learned counsel might have felt that summoning of the records is a time-consuming process more so when the respondents are not co-operating with the Board for the disposal of the case. It is seen from the record that though the C. P. was filed in the year 1994 there was not much progress in the case.
 105. The intention and purport of an interim order to be passed during the pendency of a case is to protect the interests of both the parties pending final adjudication of the dispute. Hence, on that ground the Board cannot give up the procedure to be followed by a court in adjudicating a lis more so without passing any orders on the prayer in the main petition as well as C. A. No. 69 of 1994 to call for the records.
 106. In Kanshi Ram v. Bansi Lal, , his Lordship Chief Justice Pathak, speaking for the Bench held as follows (page 63) :


"In every application for an interim injunction in a pending suit, it is necessary for the court to enter, to some degree, into the merits of the case in order to determine whether a prima facie case exists. To what degree the court will enter will vary, with the facts of each case. When the court declares that a prima facie case exists, it intends to say that the case of the plaintiff is not without merit. It is an opinion rendered on the state of the evidence then existing on the record, and it is open to the trial court to take a different view when all the evidence has been let in and the suit itself has to be decided. In some cases, a pure question of law alone may arise in the suit. In such a case when the court expresses an opinion on the question in order to determine in an injunction application whether a prima facie case exists, an impression can conceivably be gathered that the suit itself has been disposed of. But when the matter is considered in deeper perspective, it will be evident that the impression is a false one. The finding is limited to the context in which it has been given. It is a finding on an application for interim relief only. Any opinion expressed by the court, whether it be of the trial court or an appellate court or revisional court, cannot in law preclude the trial court from considering the issue afresh when deciding the suit, and for that purpose it must have regard to all the material then before it. In deciding that issue, it will properly have no regard to the finding rendered on the point while disposing of the application for interim injunction. No matter how superior the court rendering that finding--and we would include this court--the trial court is bound in the proper discharge of its duties to ignore the finding when it proceeds to dispose of the suit and to apply its mind independently to the decision of the issue. The trial court will bear in mind that the opinion expressed on the merits of


decision of the issue. The trial court will bear in mind that the opinion expressed on the merits of the suit when deciding an application for interim injunction does not operate as res judicata. Even in a case where the suit calls for the decision of a pure question of law alone, the trial court would be entitled to, and indeed is bound to, express its independent opinion on the issue of law and dispose of the suit accordingly."


107. In a recent case in Amresh Tiwari v. Lalta Prasad Dubey , the Supreme Court at para. 10 held as follows (page 444) :
 "We have heard the parties at length. In our view the High Court has committed an error in setting aside the order of the Magistrate on the basis that the earlier order was final and binding. The earlier orders were interim orders. They were passed before any evidence or statements had been recorded. Those orders were passed only on the basis of the contentions of the parties. At that stage the first respondent had contended that the civil proceedings did not relate to the same properties in respect of which the proceedings under Section 145 of the Criminal Procedure Code were adopted. Thereafter statements were recorded in Section 145 proceedings. In her statement the first respondent admitted that proceedings under Section 145 of the Criminal Procedure Code were in respect of property which formed the subject matter of the civil suit and in respect of which an order for maintenance of status quo had been passed by the civil court. The SDM was bound to take a decision afresh based on the statements before him. It is settled law that interim orders, even though they may have been confirmed by the higher courts, never bind and do not prevent passing of the contrary order at the stage of final hearing. The learned single judge of the High Court appears to have lost sight of this."
 108. In PDR. B.L. Anand v. Jaffar Hussain , a Division Bench of this court while considering the plea whether an interlocutory order operates as res judicata held in para. 7 as follows :


"No doubt, the appellate court while considering an appeal has power to alter or modify an interlocutory order which does not decide the merits of the controversy in issue in the suit, but is only a step in reaching the decision in the dispute. In other words, all interlocutory orders will not operate as res judicata within the meaning of Section 11 of the Civil Procedure Code. For example, orders relating adjournment of the case, appointment of receiver or commissioner, stay of proceedings, casting of issues, summoning witnesses, calling for documents, remanding the case and many more such orders cannot operate as res judicata since they do not decide any matter in dispute arising in the suit. Even the same court in respect of such orders has power to alter or vary them by subsequent applications on proof of new facts and subsequent events."
 109. In Palika Sathi Raju v. Pydah Soma Malleswara Rao , a learned single judge of this court while considering the effect of an interim order, held "that the finding given by the courts in interlocutory applications are ephemeral and are coterminous with the result of the main proceedings and as such no importance can be attached to those findings since those findings have been arrived at in a summary proceeding."
 110. Accordingly this contention is rejected as devoid of merit.
 Oral evidence :


110. Accordingly this contention is rejected as devoid of merit.
 Oral evidence :
 111. Under Section 59 of the Evidence Act all facts except the contents may be proved by oral evidence; under Section 60 any oral evidence must be direct in all cases. Under Section 101 of the Evidence Act whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts, which he asserts, must prove that those facts exist. When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person. Under Section 102 of the Evidence Act the burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side.
 112. Under Order 18, Rule 2(1) on the day fixed for the hearing of the suit or on any other day to which the hearing is adjourned the party having the right to begin shall state his case and produce his evidence in support of the issues which he is bound to prove. Sub-rule (2) of Rule 2 says that the other part) shall then state his case and produce his evidence (if any) and may then address the court, generally on the whole case. Sub-rule (3) says that the party beginning the case may then reply generally on the whole issue. Under Sub-rule (4) notwithstanding anything contained in this rule, the court may, for reasons to be recorded, direct or permit any party to examine any witness at any stage.
 113. To the surprise of the court, learned counsel for the respondent-company having vehemently contended before the Board, that examination-in-chief is a must followed by cross-examination in view of the allegations of misconduct and fraud did not choose to examine the witnesses on his side before the Board.


114. In Palika Sathi Raju v. Pydah Soma Malleswara Rao , this court held "that under Section 102 of the Evidence Act even if there is no evidence on the side of the plaintiff, if the defendant fails to prove the specific plea taken by him he would fail."
 115. In Ishwar Bhai C. Patel v. Hari Har Behera [1999] 2 ALD (SCSN) 19, their Lordships of the Supreme Court while considering the effect of Section 114(g) of the Evidence Act observed that "if the defendant fails to appear as witness to substantiate his evidence, it can be presumed that his pleas in the written statement are not established and suit can be decreed on the basis of the evidence adduced by the plaintiff."
 116. In that case, respondent No. 2, father of the first respondent, issued a cheque for a sum of Rs. 7,000 from the account of his son as a loan to the appellant. When the amount was not repaid, the son filed a suit. The trial court dismissed the suit against the borrower, but decreed against the father. On an appeal, the High Court decreed the suit against the borrower also. Aggrieved by the said decree and judgment, the appellant (borrower) approached the Supreme Court. Their Lordships of the Supreme Court held "that since the appellant did not enter into the witness box nor made any statement on oath in support of his pleading, an adverse presumption has to be drawn against him."
 117. Even after passing the order in C. A. No. 65 of 1996, the Board in its meeting held on April 1, 1998, passed the following order :


"Witnesses will be examined on April 18, 1998, at 9.30 a.m. at Chennai. The petition will be heard on the merits as already fixed on April 27, 28 and 29, 1998, at New Delhi."
 118. On April 27, 1998, also the Board observed that oral evidence will be taken on June 9, 1998, at 10.30 a.m. at Chennai. I do not know how the Board can hear the petition on the merits even without completion of trial.
 119. Thereafter the Board started hearing the matter on January 4, 1998, without recording any evidence, perhaps on the basis of an affidavit filed by petitioner No. 9 dated May 13, 1998, wherein he expressed his inability to produce list witnesses as they are being terrorized and pressurized in all possible ways by respondents Nos. 2 and 3 by the money power at their command and taking advantage of their position as managing director and joint managing director of the first respondent-company. It has not considered even the oral evidence that was adduced on behalf of the petitioners by observing that it is incomplete. The Board recorded the evidence of the ninth petitioner prior to filing of Application No. 65 of 1996 he did not depose on the subsequent events. But at the same time as he is very much conducting the case personally, and it is not known why he was not examined on subsequent events and the attendance sheets of the Board do not throw on this aspect any light having posted the case for adducing evidence after disposing of C. A. No. 65 of 1996. Be that as it may it is not known why the respondents were not examined to prove their case ; more so to prove the authenticity of the xerox documents on which they placed reliance.


120. As the examination of the ninth petitioner was prior to the filing of C. A. No. 65 of 1996, wherein fresh acts of oppression and mismanagement were brought to the notice of the Board, his evidence is complete on the main allegations in the company petition. It is not known why he was not examined on those aspects though he is conducting the case. But the Board brushed aside his evidence by observing that it is incomplete. At the same time, Mr. Raghavan tried to defend his client's case by relying on that evidence. The law of the land is that when no rebuttal evidence is produced by the opposite party and the version spoken by the witness remained undisturbed, the natural presumption that arises is that whatever the witness spoke should be regarded as true and an adverse inference has to be drawn against the opposite party who did not choose to go into the witness box and subject himself to the cross examination on the documents and material relied on by him before the court as held by the Supreme Court in Iswar Bhai C. Patel v. Hari Har Behera [1999] 2 ALD (SCSN) 19.


121. While confirming the judgment of the High Court, that the findings of the first appellate court were not based on proper appreciation of evidence, their Lordships of the Supreme Court in Rajappa Hanamantha Ranoji v. Mahadev Channabasappa , observed that (headnote): "though the High Court has observed that findings arrived at by the first appellate court are not based on proper appreciation of the evidence on record and the same are set aside but for all intents and purposes and in substance the conclusion of the High Court is that the decision of the first appellate court is based on no evidence and is perverse. The High Court has rightly drawn an adverse inference on account of non-examination of respondent No. 4, the tenant, as a witness by the appellant. On the facts and circumstances of the case that was vital and was rather the heart of the entire matter going to the root of the whole case. There was no explanation for non-examination of respondent No. 4. Clearly, the decree of the first appellate court is based on no evidence and is perverse."
 122. In Habeeb Khan v. Valasula Devi , this court drew an adverse inference against the defendant/appellant for with-holding important and material witnesses viz., the fourth defendant Shahbaz Khan and their employee, Abdul Ahmed. In recording the above finding, the learned single judge relied upon a judgment of the Supreme Court in Gopal Krishnaji Ketkar v. Mohd Haji Latif, and Patel Naranbhai Marghabhai v. Dhulabhai . In this case, neither the respondents have gone into the witness box nor their employees who maintained the records were made to depose to prove the documents filed by the respondents.


123. In the light of the foregoing discussion, I find that there is no substance in the contention of learned counsel for the respondent that the petitioner has given up his plea for summoning the original documents in this case forgetting the prayer in the company petition and C. A. No. 68 of 1994 for the purpose on which the Board did not pass any orders.
 124. To my mind to the extent of allegations in the main petition the evidence of the ninth petitioner stood unrebutted and in the normal course the petition would have been allowed.
 Any amount of proof cannot substitute the pleadings :
 125. Nextly, counsel for the respondents contended that any amount of proof on a plea not raised in the pleadings can substitute pleadings, which are the foundation of the claim of a litigating party and he placed reliance on Abu-bakar Abdul Inamdar v. Harun Abdul Inamdar, and a judgment of the Privy Council reported in Siddik Mahomed Shah v. Masammat Saran [1930] 58 MLJ 7 ; AIR 1930 PC 57(1).
 126. I have gone through these judgments and I have no hesitation to reject the contention of counsel, as these two decisions referred to a situation, where evidence was let in without there being a basic foundation in the pleadings. But, the facts of this case are converse to the facts of those cases. Here pleadings on both the sides are complete, while some evidence was let in by the petitioners apart from filing original documents in their possession, and requested the Board to call for the original record from the company the respondents simply filed xerox copies of the documents on which they are placing reliance and no one was examined on their behalf to prove their case. Hence the above judgments cannot come to the aid of the respondents.


Non-examination of respondents is not fatal as no documents were marked on behalf of the petitioners :
 127. Counsel for the respondents contended that the ninth petitioner though was examined on behalf of the petitioners did not speak to a single document filed on behalf of the petitioner and as such the non-examination of the witnesses on behalf of the respondents is not fatal. It is true that the documents were not marked and it is definitely a lapse on the part of the Board as well as counsel who are expected to know the procedural laws. I have no manner of doubt, had counsel for the petitioners conducted the case properly, the hands of the Board would have been tied in this case. It is not known whether counsel for the petitioners is a party to the grave illegalities committed by the Board wantonly or otherwise. But at the same time, the ninth petitioner spoke in crystal clear terms in his evidence on the acts complained of by the petitioners and in fact learned counsel appearing for the respondents could not and did not elicit anything contrary to what the ninth petitioner has spoken in his chief examination and he stuck to his version except for some minor discrepancies which did not matter much. Even the respondents counsel did not cross-examine the witness with reference to the documents. He being sufficiently a senior counsel, at least he would have cross-examined the witness with reference to the documents filed by him or examined his witnesses in the manner in which counsel for the petitioners examined his witness. That was also not done. Having pleaded before the Board that recording oral evidence is a must he cannot now turn round and contend at this belated stage that as the petitioner failed to mark the documents, non-examination of witnesses by the respondents is not fatal to the case.


128. In counter to these arguments of the petitioners, learned counsel for the respondent-company contended that the order of the Board cannot be held as bad on the ground that the procedural law is not followed and relied upon a judgment of the Supreme Court in Union of India v. T.R. Varma, , wherein their Lordships observed as follows (page 885) :
 "Now, it is no doubt true that the evidence of the respondent and his witnesses was not taken in the mode prescribed in the Evidence Act; but that Act has no application to enquiries conducted by Tribunals, even though they may be judicial in character. The law requires that such Tribunals should observe rules of natural justice in the conduct of the enquiry and if they do so, their decision is not liable to be impeached on the ground that the procedure followed was not in accordance with that, which obtains in a court of law . . .
 If these rules are satisfied, the enquiry is not open to attack on the ground that the procedure laid down in the Evidence Act for taking evidence was not strictly followed."
 129. But this contention of learned counsel runs counter to his argument addressed before the Board in C. A. No. 134 of 1995 to the effect that the provisions of the Code of Civil Procedure are applicable before the Board, which were already referred to supra. In this appeal having contended that the Board need not follow the rules of procedure, now contends that non-examination of respondents is not fatal as no documents were marked on behalf of the petitioners. This conduct of the respondents is nothing but blowing hot and cold ; more so in a judicial forum and it is nothing but an abuse of the process and a vexatious litigation.


130. In Lohia Properties (P.) Ltd. v. Atmaram Kumar , their Lordships of the Supreme Court considered the effect of Order 8, Rule 5(1), where-under the defendant is duty-bound to deny the plaint allegations specifically or by necessary implication and held as follows :
 "Order 8, Rule 5(1) reads as follows :
 'Every allegation of fact in the plaint, if not denied specifically or by necessary implication, or stated to be not admitted in the pleading of the defendant, shall be taken to be admitted except as against a person under disability :
 Provided that the court may in its discretion require any fact so admitted to be provided otherwise than by such admission.' What is stated in the above is, what amounts to admitting a fact on a pleading while Rule 3 of Order 8 requires that the defendant must deal specifically with each allegation of fact of which he does not admit the truth ... Non-traverse would constitute an implied admission. In the facts of this case the findings of the trial court and that of the first appellate court could be upheld on this admission. Thus, we find the High Court was wrong in interfering with this finding. Accordingly, the appeal will stand allowed. No costs."
 131. In Naseem Bano (Smt.) v. State of U.P. , their Lordships of the Supreme Court held that since the respondents did not dispute that 40 per cent. of the total number of posts had not been filled up by promotion, as pleaded by the appellants, in as much as the said averments had not been controverted, the High Court should have proceeded on the basis that the said averments had been admitted by the respondents.


132. In this case, except filing the written statement and some xerox copies of the records, no semblance of fair trial has taken place. Even assuming what learned counsel for the respondents submits is true, the Board is expected to observe the rules of natural justice. What is meant by observance of rules of natural justice was considered by the Supreme Court in A.K. Kraipak v. Union of India, and Industrial Credit and Investment Corporation of India Ltd. v. Grapco Industries Ltd. .
 Summary of the lapses :
 133. Now I sum up the procedural illegalities or lapses committed by the Board and the manifest errors evident on the face of the record are :
 (1) The Board having taken the stand that the averments made by the parties in the petition and the counter have to be proved by letting oral evidence on both sides and the provisions of the Code of Civil Procedure are applicable to the proceedings, without giving any reasons, the Board heard the arguments on December 4, 1998, and February 16, 1999, and pronounced orders on March 22, 1999. I have carefully examined the order passed by the Board as well as the attendance sheets to know the mind of the Board why it has changed its attitude and pronounced the orders by hearing learned counsel on both sides. Neither could I cull out anything from the record nor the respondent's/counsel who appeared before the Board was able to offer any explanation for the sudden change in the mind of the members of the Board. To my mind, the procedure followed by the Board, completely vitiated the proceedings.


(2) Nextly, it is seen that in the main petition itself the petitioners prayed for summoning the original records. In fact in the notice served on the respondents, it is clearly stated that they shall appear with original records to answer the allegations but the respondents filed only xerox copies of the records. When the records have not been produced by the respondents after receiving the summons, the petitioners filed another application, i.e., C.A. No. 69 of 1994 on April 11, 1994, to summon these records. Without calling for original records, the Board passed the orders even after the petitioners brought to the notice of the Board, by filing documentary evidence, that the respondents are refusing to furnish information by stating under what law they are entitled for the information. It is yet another illegality.
 (3) Petitioner No. 9 went into the witness box and his cross examination was completed on October 18, 1995. This evidence is complete on all aspects on the allegations made in the main petition. The Board started hearing the case without completing his evidence.
 (4) Be that as it may only to the extent of subsequent allegations, though he did not depose, he proved the allegations by filing necessary documents. But his evidence was discarded stating that it is incomplete.
 (5) On the other hand, the respondents completely failed to prove their case in a manner known to law.
 (6) The Board relied on xerox copies of documents, which are not admissible in evidence in dismissing the case of the petitioners without summoning the original records though serious allegations of fabrication of documents and accounts etc., are made against the respondents.


(7) Assuming for a moment that the petitioner failed to examine the witnesses, under Section 59 of the Evidence Act, the respondents are expected to lead oral evidence in support of their contentions. Further, under Section 102 of the Evidence Act, the burden of proof lies on the respondents to prove that there is neither mismanagement in running the affairs of the company prejudicial to the public interest nor is there oppression of the minority shareholders as alleged in the petition with documentary as well as oral evidence. That was also not done in this case.
 (8) Under Section 114(g) of the Evidence Act, the Board is expected to draw adverse inference against the respondents for not leading any evidence and also for not producing original records, which are in their possession before the Board.
 (9) The Board having rejected the plea of the petitioners to lead evidence by affidavits, relied on the retracted affidavits of those persons who initially gave affidavits in favour of the petitioners, filed by the respondents, more so without verification in dismissing the case of the petitioners without reference to the affidavits filed by the petitioners in support of their plea.
 (10) Petitioner No. 9 filed an affidavit expressing his inability to secure the presence of the list witnesses by stating that respondents Nos. 2 and 3 started influencing the witnesses with the money power at their end and also falsely implicated him as well as others in criminal cases with documentary evidence. The Board failed to consider whether the acts of the respondents constitute acts of oppression of minority shareholders or not.
 (11) The other illegalities committed by the Board will be considered while dealing with the merits of the case.
 Question of law :


Question of law :
 134. Nextly, learned counsel for the respondents strenuously contended that under Section 10F of the Act, the High Court can entertain an appeal only on a question of law arising out of the order and this provision is more stringent than that of Section 100 of the Code of Civil Procedure whereunder the High Court can entertain the second appeals only on questions of law. It is further contended that even if the Board failed to follow the procedure known to law, it cannot be said that any question of law will arise for consideration in the appeals before the court and they are liable to be dismissed. In support of his contention, he cited a plethora of decisions on this aspect.
 (1) In CIT v. Scindia Steam Navigation Co. ltd, their Lordships of the Supreme Court while considering Section 66(1) of the Income-tax Act, which is in pari materia the same as Section 10F of the Act to find out whether a question of law has arisen out of the order or not summarized the discussion in the judgment at page 611 as hereunder :
 "the result of the facts and circumstances of the case, (1) When a question is raised before the Tribunal and is dealt with by it, it is clearly one arising out of its order.
 (2) When a question of law is raised before the Tribunal, but the Tribunal fails to deal with it, it must be deemed to have been dealt with by it and is, therefore, one arising out of its order.
 (3) When a question is not raised before the Tribunal, but the Tribunal deals with it, that will also be a question arising out of its order.
 (4) When a question of law is neither raised before the Tribunal nor considered by it, it will not be a question arising out of its order not withstanding that it may arise ....."


This case cannot be an authority for the proposition that whether the procedural illegalities committed by the Tribunal constitute a question of law arising out of the order of the Board or not.
 (2) In Union of India v. T. R. Varma, , their Lordships of the Supreme Court having held the Evidence Act is not applicable to the enquiries conducted by Tribunals even though they may be judicial in character observed (p. 885) : "The law requires that such Tribunals should observe the rules of natural justice in the conduct of the enquiry and if they do so their decision is not liable to be impeached on the ground that the procedure followed was not in accordance with that which obtains in a court of law."
 (3) Malleswara Finance and Investments Company (P.) Ltd. v. Company Law Board [1995] 82 Comp Cas 836 ; [1995] 1 CLJ 1 (Mad) wherein the Madras High Court in para. 124 of the judgment held that (p. 890): "an appeal under Section 10F of the Companies Act before this court can be entertained only on a question of law which arises from that order."
 (4) C. Sri Hari Rao's case [1999] 97 Comp Cas 685, this court in the same case, on an appeal filed by the petitioners against the order of the Board in C. A. No. 65 of 1996 held when the matter is pending before the Company Law Board for final adjudication of the disputes, we do not see any reasons to entertain an appeal in view of the provisions of Section 10F of the Act.
 135. None of the above cases can be considered as an authoritative pronounce-


135. None of the above cases can be considered as an authoritative pronounce-
ment on the issue before this court, i.e., whether the procedure adopted by the Board and the perverse finding recorded by it can be sustained in law. If not, whether a question of law will arise for consideration by the court from out of the order of the Board.
 136. On the other hand a Constitution Bench of the Supreme Court in Printers (Mysore) Pvt. Ltd. v. Pothan Joseph, , while holding that the discretion vested in the court to grant stay is judicial, made the following observations (p. 1159) :
 "If the discretion has been exercised by the trial court reasonably and in a judicial manner the fact that the appellate court would have taken a different view may not justify interference with the trial court's exercise of discretion. As is often said, it is ordinarily not open to the appellate court to substitute its own exercise of discretion for that of the trial judge ; but if it appears to the appellate court that in exercising its discretion the trial court has acted unreasonably or capriciously or has ignored relevant facts and has adopted an unjudicial approach then it would certainly be open to the appellate court--and in many cases it may be its duty--to interfere with the trial court's exercise of discretion. In cases falling under this class the exercise of discretion by the trial court is in law wrongful and improper and that would certainly justify and call for interference from the appellate court. These principles are well established."
 137. The Supreme Court has taken a similar view with regard to the observance of principles of natural justice by Tribunals exercising quasi-judicial powers in a decision reported in A. K. Kraipak v. Union of India, .


138. In Shri Bhagwan Sharma v. Smt. Bani Ghosh, , a Constitution Bench of the Supreme Court held that : "the High Court was certainly entitled to go into the question as to whether the findings of fact recorded by the first appellate court which was the final court of fact were vitiated in the eye of law on account of non-consideration of admissible evidence of vital nature".
 139. To the same effect is the judgment of the Supreme Court in Ishwar Dass Jain's case, , where their Lordships of the Supreme Court held that (p. 429) :
 "the court (the first appellate court) is under a duty to examine the entire relevant evidence on record and if it refuses to consider important evidence having direct bearing on the disputed issue and the error which arises is of a magnitude that it gives birth to a substantial question of law, the High Court is fully authorised to set aside the finding. This is the situation in the present case." Their Lordships further held that : "where the findings by the court of facts are vitiated by non-consideration of relevant evidence or by an essentially erroneous approach to the matter, the High Court is not precluded from recording proper findings".
 140. Nextly in Dilbagrai Punjabi v. Sharad Chandra, , their Lordships of the Supreme Court held that "the court is under a duty to examine the entire relevant evidence on record and if it refuses to consider important evidence having direct bearing on the disputed issue and the error which arises is of a magnitude that it gives birth to a substantial question of law, the High Court is fully authorized to set aside the finding."


141. Similar is the view taken by the Supreme Court in Sundra Naicka Vadiyar (dead) v. Ramaswami Ayyar (dead), , wherein it held that "ignoring some of the documents which were vital for deciding the question of possession also vitiated the finding on the question of possession recorded by the trial court as well as the first appellate court."
 142. In Sree Meenakshi Mills ltd, v. CIT , their Lordships of the Supreme Court while interpreting Section 66(1) and (2) of the Indian Income-tax Act, 1922, under which a reference has to be made to the High Court only on a question of law, observed that (pp. 36 and 37) : "(1) finding on a question of fact is open to attack as erroneous in law only if it is not supported by any evidence or if it is unreasonable and perverse ; (2) when a conclusion has been reached on an appreciation of a number of facts established by the evidence, whether that is sound or not must be determined not by considering the weight to be attached to each single fact in isolation, but by assessing the cumulative effect of all the facts in their setting in the picture as a whole.


143. Lastly their Lordships observed (pp. 42 and 36) : "inference from the facts would be a question of fact or of law according as the point for determination is one of pure fact or mixed question of law and fact..... Under Section 66(1) of the Act it is only a question of law that can be referred for decision of the court and it is impossible to argue that the conclusion of the Tribunal is anything but one of fact, it has been held on the corresponding provisions in the English Income Tax statutes that a finding on a question of fact is open to attack as erroneous in law only if it is not supported by any evidence or if it is unreasonable and perverse".
 144. In Kondiba Dagadu Kadam v. Savitribai Sopan Gujar , their Lordships of the Supreme Court while interpreting Section 100 of the Code of Civil Procedure held that the High Court cannot substitute its opinion for the opinion of the first appellate court unless it is found that the conclusions drawn by the lower appellate court were erroneous being contrary to the mandatory provisions of law applicable or its settled position on the basis of pronouncements made by the apex court, or was based upon inadmissible evidence or arrived at without evidence.
 145. In Ashwinkumar K. Patel v. Upendra J. Patel, , their Lordships of the Supreme Court posed a question and answered as follows (pages 164 and 165) :
 "The point for consideration is whether the order of the High Court in remitting the matter to the trial court was necessary. Question also is whether this court should remand the case to the High Court in the event of this court holding that the remand by the High Court was not called for. If not, whether the order of the trial court is to be sustained.


In our view, the High Court should not ordinarily remand a case under Order 41, Rule 23 of the Civil Procedure Code to the lower court merely because it considered that the reasoning of the lower court in some respects was wrong. Such remand orders lead to unnecessary delays and cause prejudice to the parties to the case. When the material was available before the High Court, it should have itself decided the appeal one way or the other. It could have considered the various aspects of the case mentioned in the order of the trial court and considered whether the order of the trial court ought to be confirmed or reversed or modified. It could have easily considered the documents and affidavits and decided about the prima facie case on the material available. In matters involving agreements of 1980 (and 1996) on the one hand and an agreement of 1991 on the other, as in this case, such remand orders would lead to further delay and uncertainty. We are, therefore, of the view that the remand by the High Court was not necessary.
 We have also considered whether, on that account, we should send back the matter to the High Court for consideration of the appeal. We are of the view that on the facts of this case, this court can decide whether the temporary injunction granted by the trial court should be confirmed or not. We are, therefore, not remitting the matter to the High Court because a further remand would lead to delay and perhaps one more special leave petition to this court."


146. In the light of the preponderant view of the Supreme Court, I have no hesitation to hold that the order passed by the Board is neither in accordance with the rules of procedure prescribed under the provisions of the Civil Procedure Code nor based on the principles of natural justice. The Board passed the impugned order in a manner unknown to law and in an arbitrary manner apart from the fact that the findings recorded by it on the merits of the case are not only perverse but unknown to adjudicatory process of the land as discussed below. There being an error apparent on the face of the orders of the Board, as pointed out supra, definitely a question of law has arisen from out of the order of the Board to be decided by this court under Section 10F of the Act.
 Whether matter to be remitted back for fresh disposal in accordance with law :
 147. In the normal course, the matter has to go back to the Board for fresh disposal in accordance with law. If I adopt such a course, a dispute pending for over a decade will be in the courts for another decade or two as there is every possibility of carrying the matter in appeal till all the forums that are involved in the adjudicatory process are exhausted by one or the other party.


148. Secondly, the ninth petitioner in the open court expressed that he is not even being paid dividends all these years and he will be satisfied if the value of the shares held by his family members and his friends is paid to them and they are not interested in continuing as shareholders in the first respondent-company and it is for respondent No. 2 to administer the affairs of the company in a manner he likes as long as the majority shareholders approve his actions. In opposition to the claim of petitioners, counsel for respondent No. 2 strenuously contended that the direction given by the Company Law Board is not supported by any reasons and as such the company cannot be compelled to purchase the shares. In the light of this contention, I directed counsel to argue the case on the merits to find out whether cogent reasons can be given for the direction given by the Board on the basis of the material available on record including the documents, which were not looked into by the Board. I am fortified in my view by several judgments of the superior courts.
 149. In Bechan Pandey v. Dulhin Janki Devi, , their Lordships of the Supreme Court while considering the plea of the plaintiff/appellant for remand of the case, in a suit for declaration of title and possession, partly decreed by the trial court, but dismissed in its entirety by the High Court, held as follows (page 869) :