Onkar Nath & Ors. v. the Delhi Administration

Judgment

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 502 of 1976. (Appeal by Special Leave from· the Judgment and Order dated 16-9-1975 of the Delhi High Court in Criminal Revision No. 139 0£ 1975). A. K. Gupta, for the appellants. G. Das, and R. N. Sachthey, for the respondent. The Judgment of the Court was deliverCd by CHANDRACHUD, J.-The appellants who are Railway employees, were convicted by the learned Metropolitan Magistrate, Delhi nnder rules 118 and 119 of the Defence of India Rules, 1971 and were sentenced to six months' rigorous imprisonment. The order of conviction W'as upheld in appeal ?Y ~he learned A~ditional ~ssions J u_dge and in revision by the Delhi High Court with the difference th~t whereas the former upheld the sentence .too, the latter h~s reduced it to the period already undergone. In this appeal by special 1eave the legality of conviction is questioned by the appellants.

The case of the prosecution is that the appellants are leaders of the Northern Railwaymen's Union and that on May 5, 1974 they ONKAR NATH v. DELHI ADMN. (Chandrachud, 1.) held a meeting in T\Ighlakabad Railway Yard inciting railway workers to go on strike from May 8. This is alleged to be in breach of the order passed by the Government of India under rule 118 ( 1) of the Defence of India Rules, 1971. That rules reads thus : '.'118. Avoidance of strikes and lock-outs.-(1)

If in the opinion of the Central Government or the State qovcrnment it is necessary or expedient so to do for securing the defence of India and civil defence, the public safety, the maintenance of public order or the efficient conduct of military operations, or for maintaining supplies and services essential to the life of the community, nothwithstanding anything contained in any other provisions of these rules, the Central Government may, by general or special order, applying generally or to any specific area and to any undertaking or class of undertakings, make provision- ( a) for prohibiting, subject to the provisions of the order, a strike or lock-out in connection with any industrial dispute; (b) for requiring employers; workmen, or both, to observe for such period as may be specified in the order such terms and conditions of employment as may be determined in accordance with the order :

Provided that no orcler made under clause (b) shall require any employer to observe terms and conditions of employment less favourable to the workmen than those which were applicable to them at any time within three months preceding the date of the order." By ~ub-rule ( 2), if any person contravenes any order made under sub-rule ( 1) he shall be punishable with imprisonment for a term which may extend to three years or with fine or with .both. The order issueq under rule 118 ( 1) (b) by the Government of India in its Ministry of Labour on November 26, 1973 recites that in the opinion of the Central Government it was necessary and expedient for maintaining supplies and services essential to the life of the c0mmunity to prevent strikes 'in the Railway Services and that therefore "the Central Government hereby prohibits a strike in connection with any industrial dispute/disputes in the said Railway Services in India for a period of s'ix months w.e.f. the 26th November, 1973."

In support of its case the prosecution examined three witnesses called S. D. Sharma, Dilbagh Rai and Jasbir Singh. Sharma's evidence is in the nature of hearsay and indeed he admits in so many words that his knowledge regarding the incitement given by the appellants to the Railway workers to go on strike was derived solely from information received by him. The witness admits that he had no personal knowledge that the appellants had held any meeting nor 11ad he heard their speeches. The second witness Dilbagh Rai was in charge of the Police Post at Tughlakabad Railway Sration and wa& entrusted with the investigation of the case. In the nature of things he too has no personal knowledge of what the appellants did or said.

Jasbir Singh who was in charge of the Diesel Shed at Tughlakabad! is i'11 the circumstances the only witness whose evidence could, if at all, help the prosecution to establish the charge that the appellants had contravened the order issued by the Government of India under r. 118(1) (a) of the Defence of India Rules, 1971. But even that evidence, in our opinion, fs inadequate for proving the charge levelled agai•nst the appellants. Ja~bir Singh claims to have attended a meeting addressed by the appellants but he has not stated as to what exactly the appellants said in the meeting. He has given his own gist or summary of what the appellants meant to convey to the audience stating that they incited the workers to go on strike and threatened them with dire consequences if they did not respond to the call. Such a broad, resume is not safe to rely upon for holding the charge proved.

In view of the total absence of evidence showing what the1 appellants in fact said in the meeting, the summary coined by Jasbir Singh of the happenings in the meeting cannot form the basis of conviction. What is chargeable as contravening the prohibition i•mposed under1 the order issued by the Government of India under r. 118 ( 1) (a) is in the circumstances of this case tJie words used by the speakers and not the gist of the speeches made by a member of the audience. A summary of a speech may broadly and generally not be inaccurate and yet it may not faithfully reflect what the speaker actually said and in what context. Therefore, we would prefer not to rely on the gist given by the witness without knowing the data on the basis of which the gist was given. The charge must therefore fail.

One of the points urged before us is whether the courts below were justified in taking judicial notice of the fact that on the date when the appellants delivered their speeches a railway strike was imminent and that such a strike was in fact launched on May 1974. Sect~on 56 of the Evidence Act provides that no fact of which the Court will take judicial notice need be proved. Section 57 enumerates facts of which the Court "shall" take judicial notice and states that on all matters of public history, literature, science or art the Court may resort for its aid to appropriate books or documents of reference. The list of facts mentioned ~n section 57 of which the Court can take judicial notice is no_t exhaustive. and indeed the pur ... pose of the section is to provide that the Court shall take judicial notice of certain facts rather than exhaust the category of facts ·of which the Court may in -appropriate cases take judicial notice.

Recognition of facts without formal proof is a matter of expediency and no one has ever questioned the need and wisdom of accepting the existence of matters which are unquestionably within public knowledge. (see Taylor 11th edn. pp 3-12; Wigmore sec foot-note; Stephen's Digest, notes to Art, 58; Whi:tley Stokes' Anglo- Indian Codes Vol. II p. 887). Shutting the judicial eye to the ONKAR NATH v. DELHI ADMN. (Chandrachud, J.) existence of such facts and matters is in a sense an insult to commonsense and would tend to reduce the judicial process to a meaningless andl wasteful ritual. No Court therefore insists on formal proof, by evidence, of notorious facts of history, past or present. The date of poH, the passing away of a man of eminence and events that have rocked the naL.'On need no proof and are judicially noticed. Judicial notice, in such, matters, takes the place of proof and is of equal force.

In fact, as a means of establishing notorious and widely known facts it is superior to formal means of proof. Accordingly, the Court~ below were justified in assuming, without formal evidence, that the Railway strike was imminent on May 5, 1974 and that a strike intended to paralyse the civic life of the Nation was ....... undertaken by a section of workers on May 8, 1974. But the matter does not rest there. Rule 118(l)(a) empowers the Government to issue an order prohibiting a strike "in connection with any industrial di'spute". The Order issued by the Government on November 26, 1973 recites, as required by the Rule, that the Central Government prohibits a strike "in connection with any industrial dispute" in the Railway Services in India for a period of six months. Rule 118(2) prescribes punishment for a person who contravenes any order made under th~ Rule.

We have~no doubt that the Government possesses the power to issue an appropriate order under Rule 118 ( 1 ) e\'.en if then; is no existing industrial dispute because the power can be exercised prophylactically for preventing a strike in connection· with an imminent industrial dispute. But the prosecution must establish, in order that the conduct charged as penal may fall within the mis::hief of the Order, that the strike in rl!gard to which the i•ncitement was given was in connection with an industrial dispute. Unless that is established, there can be no contraven!ion of the order issued by the Government, because the contravention consists in doing what is prohibited by the order. And what is prohibited by the order is a strike in connection with an i•ndustrial dispute.

Thus, the prosecution has to establish not only that a strike was imminent or had actually taken place, of which judicial notice may be taken, but further that the strike was in connection with an industr;•al dispute, which is a matter of evidence. Rule 118 (I) (a) limits the power of the Government to issue an appropriate order, general or special, for prohibiting inter alia a strike i•n connection with any industrial dispute. Since the rule does not empower the Government to issue an order prohibiting strikes generally, whether they bear any connection with an industr;•al dispute or not, there can be no contravention of the order unless it is established by evidence that the strike was in connection with an industrial dispute.

The prosecution did not lead any evidence to prove this important ingredient of the offence and the generalisation made· by the witnesses in their evidence is wholly inadequate for accepting that the appellants gave incitement to a strike in connection with any ·;•ndustrial dispute. It is urged by the learned counsel appearing for the Delhi Administration, who are respondents to the appeal, that what contemplated by rule 118 (I) (a) itself is a strike in connection wit Ii . 976 · (1977] 2 ~.C.R • early stage might well have sorted out the dispute, be1ter_ed their relations and pre-empted this cock-fight. Doing justice is a noble behest which blesses all; deciding the /is within a judicative pyramid, provocative of appeals and revisions, bleeds both and unwittingly incites the. bitter pers!stence in ihe struggle to win (and 16se !) . We are courts of justice guided by law and the signature tune of the indicature is ·Fiat Justitia.

We gently suggested, in thi·s spirit, whether the parties would be disposed to compose their quarrel. · Coun5el as often happens, constructively helped, but the purchase of peace at this late stage was difficult and we gave up. Of course, adjudication on the _law and the facts· cannot and shall not be influenced by this extra-curial excursion. We pick up the story of the suit where we left it. In.the dog-fight that followed, a question of court-fee was raised and decided. That was taken up to the High Court and retllrned. A preliminary decree for accounts of the Bombay khata w11s passed and that too leapt to the High Court resulting in a remand, fresh issues and so on. Then a decree was passed and both sides challenged it in appeal and cross- . objections and the last lap of the tiring race is this court where the· vanquished plaintiff is the appellant. We proceed to decode the justice and the law of the cause. .

We may state that the plaintiff's obstinate attitude in treating the Bombay shop and Khamgaon shop as two different persons each being_ entitled to sue the defendant without reference to the amounts due to the latter from the former in inter-connected business dealings is a legal fallacy and cute perversity. However we may repeat that the defendant also proceeded on that 'shop autonomy' theory bnt only urged that the silver bars were wrongfully omitted from the Khamgaon khata. Shops are not. persons although suits may be filed in trade names. The trial court took a commonsense view in commingling_ the business account of the same parties. This was good law. A plurality of shops owned by the same person does not proliferate into many shop-persons. At an intermediate stage of the many iI)volved interlocutory skirmishes, the plaintiff did allege :

"The alleged silver bars were sold by the defendant Suwalal through the said Bombay shop and naturally the sale proceeds of that quantity of silver are credited in the defendant's Khata in the Bombay shop. The plaintiff, therefore in reply to the defendant's claim of Rs. 17000/- has to file the extracts of accounts of the Bombay shop to put the full picture of transactions before the court. As the ~ombay shop shows the balance of Rs. 4535-12-0 as due to the defendants, the said fact has been so mentioned by the plain- . tiff iq..his statement." In passing, we may mention that the counter-claim led to a demand for court-fee and the High Court affirmed this oroer but reduced the sum on which such fee was payable. Later, issues were framed by the trial Court which reflected the integrated nature of the dealings between the two parties iii the shops at Khamgaon and Bombay. The JASRAJ INDER SINGH v. HEM RAJ (Krishna Iyer, J.) learned District Judge, not obsessed, by the wrong-headed pleadings, took the view that the shops, though located at different places, were owned by the same family and the claims were so inter-connected that, in equity and law, set off was permissible and the net S\Jm due to the plaintiff-less than what lie had sued for-should be decreed.

We may· mention the relevant issues framed at the first round even here since we 'may have to refer to them later when dealing with a supportive submission of Shri Phadke for the defendant. Issues 5 and 7 may be reproduccd here: "5. Whether the Bombay & Khamgaon shops ownicl by plaintiff's partners are so connected with each other that a composite account of the entries in the two shops can be made by the Defendants ? 7. Whether on making an account of the two shops of the Plaintiff of Bombay and Khamgaon, the Defendants are entitled to a set-off thereafter to a sum of :- (a) Rs. 17,000/- as claimed by the Defendants or to a set-off. (b) Rs. 4,535-12~0 as stated by the Plaintiff ?" Later, amended pleading's led to amended issues of which issues 4 !o . 6 are meaningful and are set out below. with the findings thereon; "4.

Whether the Bombay and Khamgaon shops owned by" plaintiff's partners are so connected with each other that a composite account of the entries in two shops can be made by the defendants? -Yes 5. (a) Whether a sum of Rs. 44,697 /10 is debited to the defendants in the account of the Bombay shop ?-Yes • (b) Are these entries proper and correct? (c) And in time? , -Yes. -Yes. 6. Whether mi making an account of the two shops of the plaintiff of Bombay and Khamgaon the defendants are entitled to a set-off and thereafter to a sum of- (a) Rs. 17,000/- as claimed by the defendants or to a set off -No. (b) Rs. 4,535/12/- as stated by the plaintiff ?-Yes. The plain fact emerges that the two parties were having dealings with each other, that the dealings in Khamgaon and Bombay were inter-related and not totally different transactions, dissociated in nature and divorced in period.

The tri'al judge treated the totality of transactions as a composie account and the suit as one on accounts.· He granted a decree on these telJllS [1977] 2 s.c.K. ma~es a refere_nce to s. 531 i~ passing and not for the purpose of assuming jurisd~ct10n under 1t. If the Magistrate, in this case, had thought of assuming jurisd1cti.on under s. 531._ he would not have proceeded to record the evidence of the par~es, on the ques~1on of the territorial jurisdiction, or referred to it at length· m his order and arrived at the decision that he had the jurisdiction. [1002 D-G] Purushottamdas Dalmia v. The State of West Bengal [1962] 2 S.C.R. 101' followed. Radharani v. Rahim Sardar. A.LR. 1946 Calcutta 459, Sakuntala v. Thiruma/yyQ [1966] 2 M.L.J. 326, Stai!e v. Tavara Naika A.I.R. 1959 Mysore 193, Sultan Chand v. Yoi;indra Nath Baz. A.LR. 1944, Peshawar 25 and Satwanr Singh v. Smt. Jaswant Kaur, [1956] A.L.J. 134, held inapplicable.

In the instant case, the Magistrate was one of the Magistrates mentioned in· s. 488(1 ). He had specifically rejected the respondent's application for confiPJing the evidence to the question of jurisdiction or to try that as a preliminary issue. It cannot therefore be said that he had given himself jurisdiction by recourse to s. 531. The Magistrate had set out the point that arose for consideration, discussed the entire evidence and taken into consideration the conduct of the respondent-all of which led to the conclusion that he had the jurisdictiov to try the application. There is therefore no reason why s. 531 should not be held' to be applicable to this case. [1005F-H] (d) The High Court erred in holding that s. 531 would not be applicable because the respondent had reserved a right to file a written teply on merits after the question of jurisdiction had been decided.

The Magistrate had specifically overruled the respondent's objection, and directed the' parties to adduce evidence, and deferred the decision on the question of jurisdiction until after the evidence had been recorded. The respondent did not file his reply on the merits. [10030-H] ( e) The High Court erred in holding that there was failure of justice be-- cause the respondent never led evidence. The Magistrate called upon the parties to lead evidence. While the appellant obeyed the order, the respondent persisted· in thinking that the Magistrate had no jurisdiction, refused to examine his witnesses on merits, and chose to confine his evidence to the question of jurisdiction. rt004F-Hl CIVIL APPELLATE JURISDICTION : Cri•minal Appeal No. 447 of 1974. (Appeal by Special Leave from the Judgment and Order dated the 14th Mr,rch 1974 of the Delhi High Court in Criminal Revision· Petition No. 61 of 1974. Mrs. Urmila Kapoor and Miss Kamlesh Bansal, for the appelant. V. C. Mahajan and S. L. Aneja, for respondent.

The Judgment of the Court was delivered by SHINGHAL, J.-This appeal by special leave is directed against the judgment of the Delhi Hi•gh Court dated March 14, 1974, allowing the revision application of respondent Dev Raj Vijh and dismissing the appellant's application dated March 18, 1969, under section 488 of the Code of Criminal Procedure, 1898, hereinafter referred to as the Code. Appellant Raj Kumari Vijh was married to respondent Dev Raf v;jh in Delhi, in June 1950. It is the admitted case of the parties that they were living separately from 1953. The appellant filed her SMT. RAJ KUMAR! v. DEV RAJ. (Shinghal, J.) fust application for maintenance under section 488 of the CQde, in 1955, but it was dismissed. The respondent filed an applicatio1,1 for .divorce, or judicial separation, in 1956 in Aligarh (Uttar Pradesh). It was ultimately dismissed; on appeal on March 29, 1968.

In the meantime the appellant filed a suit against the respondent for recovery -of her "stridhen" in Delhi in 1956. It was decreed on appeal by the Delhi High Court in 1967, for Rs. 6,458/-. The appellant gave a notice to the respondent on June 24, 1968, claiming maintenance as a deserted wife. Nothing came out of i.'t and she filed the present .application under section 488 of the Code in the Court of the Delhi Magistrate on March! 18, 1969. It was stated in the application that the appellant had lived'with the respondent in Delhi and Aligarh as his legally wedded wife, and thereafter at village Lampur, P. S. Narela, Delhi, towards the end of December 1968, because the respondent visited her there for a settlement and for non-execution of the decree which she had obtained for Rs. 6,458/- on account of her "stridhan". It was stated in the application that the parties lived at Lampur as husband and wife and there was cohabitation. The .appellant prayed for an order allowing her Rs. 450/- per month for maintenance .as the respondent had sufficient means but had neglected -0r refused to maintain her.

The respondent filed a reply on April 29, 1969 in which, according to the Magistrate, there was no specific denial of the averment that the parties last resided together at Lampur. An objectil)n was . however taken that as the earlier application was dismissed on February 2, 1956, the second application was barred on the principle of res judicata. An objection was taken to the jurisdiction of the Delhi Court on the ground that the respondent never residecj. permanently or temporari•ly in Delhi. We have not found it possible to go through the reply because it has been stated by counsel for the parties that the original record has been destroyed. The Magistrate passed an order for production of evidence. The respondent thereupon prayed that the question of jurisdiction may be decided before recording the evitlence. That was not agreed to by the magistrate. He made an ·order on November 19, 1969 that the question of jurisdiction must await the recording of the evidence on the whole case.

The respondent did not challenge that order or apply for permission to file an additional reply. On the other hand, he asked for the holding of an identification parade for the purpose of showing that some of the· appellant's witnesses did not even know him. Both the parties led their evidence, although it appears that the respondent did not like to avai1 of_ the opportunity which was given to him to lead evidence on the merits. He did not even apply for permission; to file any additional reply when the_ Magistrate recorded tthe appellant's evidence on her application for maintenance as a whole. Ultimateiy the Magistrate made his final order on May 21, 1973. He took the view that there was no specific denial of the appellant's allegation that the parties last resitled together, as husband and wife, in village Lampur, in Delhi, towards the end of December in 1968.

He took notice of the fact that the plea of bar against the maintainability of the second applitation because of the dismissal of tthe first application.' was. not p~essed ?Y the respondent and after referring to the entire evidence m details, he reached the conclusion that he had the jurisdiction to entertain the application, and granted maintenance allowance at the rate of Rs. 125/- per month, with effect'from March 18, 1969, along with an order regarding the mode of payment of the arrears. The respondent applied for a revis~on of that order, and the Additional Sessions Judge referred thei case, to the High Court on November 30, 1973, for dismissal of the application (under section 488 of the Code) on the ground that the Delhi Magistrate had n0 jurisdiction to entertain it.

As the High Court has allowed the reference, and dismissed the revision application which was filed by the appellant for an increase in the maintenance allowance, the appellant has come up to this Court by special leave. In its impugned judgment dated March 14, 1974, the High Court has recorded the finding that the parties did not reside together. at village Lampur, and for that reason it took the view that the Delhi Court had no jurisdiction to entertain the appellant's application under section 488 of the Code. Counsel for the appellant has vehemently urged that the finding of the, High Court is incorrect, but as it is a finding of fact, we shall proceed pn the assumption that it does not call for, interference in this appeal. The question however remains whether section 531 of the Code would be applicable to the case?

The High Court has held that the section would not De applicable, and that is why it has passed the impugned order for the dismissal of the, application of the appellant under section 488 of the Code. The High Court has taken that view for the following reasons,- (iii) (iii) (iv) The objection as to juri'sdiction was raised "right at the first instance by the husband". The respondent "specifically reserved his right to file a written reply on merits after the question of jurisdiction was decided". As the respondent had "reserved hils right to lead evidence on merits, it is not a case where the husband deliberately gave up his right to lead evidence on merit~ ..... " There was "obvious prejudice and failure of justice" to the respondent as he never led evidence on the merits.

It was necessary for the appellant to prove that the respondent had refused and neglected to maintain her, and that "obviously requires an opportunity to. be given to the husband to provo his case, if it be one, that ho has not refused or refuses or neglected to maintain his wife or what his income and means is". SMT. RAJ KUMARI v. DEV RAJ (Shinghal, J.) (vi) (vii) "Before a deci'sion on meriti can be given the husband ha:s the undoubted request (sic) to lead evidence on merits". A proceeding cannot be entertained in a court w?ich has jurisdiction by simply taking recourse to section 531 of the Code when an objection has been taken against its maintain;bility-, for otherwise the provision relating to jurisdiction would become nugatory. Section 531 "can cure the infirmity after, the case has been fought on merits." We have examined these grounds, but we are constrained to say that they are no~ tenable in the facts and ciJt:umstances of this case.

Section 531 of the Code reads an follows,- "531. No finding, llentence or order of any Crim~nal Court shall be set aside merely . on the ground that the inquiry, trial or other proceeding in the course of which it was arrived at or passed, took place in a wrong sessions division, district, sub-di!vision or other local area, unless it appears that such error has in fact occasioned a failure of justice." The section therefore relates to a defect of jurisdiction. As has been stated by this Court in Purushottamdas Dalmia v. The State of West Benga/C) those are two types; of jurisdittion of a criminal court, namely, (1) the jurisdiction with respect to the power of the court to try, particular kinds of offences, and (2) its territorial jurisdiction. While the former goes to the root of· the matter and any transgression of it makes the entirej trial voitl, the latter is not of a peremptory character and is curable under section 531 of the Code.

Territorial jurisdiction is provided "just as a matter of convenience, keeping in mind the administrative point of view with respect to the work of a particular court, the convenience of the accused who will have to meet the charge levelled against him and the convenience of the witnesses who have to appear !lefore the Court". Sub-section (8) of section 488 in fact provides that proceedings under the section "may be takeDJ against any person in any distritt where he resides or is, or where he last resided with his wife or, as the case may be, the mother of the illegitimate child." This therefore is ordinarily th6 requirement ae to the filing of an application under sectitm 488 within the limits of the jurisdittion of the magistrate concerned.

So where a magistrate has the "power" to try a particular application under section 48 8, and the controversy relates solely ·to his ~erritorial jurisdiction, there should, ordinarily, be no reason why section 531 of the Code should not be applicable to the order made by him. · It has therefore to be examined whether there were any such circumstances in this case for which the High Court could justifiably refuse to apply the provisions of section 531. (!) [1962] 2 SCR. 101. R The, first reason why the High Court has not given the benefit of section 531 to the appellant is that an objection as to the jurisdiction of the Delhi Court was raised by the respondent "right at the first instance." Counsel for the respondent has strenuously argued that such a benefit will not be available in a case where the magistrate knew that he had no jurisdiction, and persisted in proceeding with the trial under the impression that section 531 of the Code, would, at any rate, validate his order.

That, according to the counsel, amounted to an order by the magistrate giving the jurisdiction to himself by virtue of sectiton 531. Reliance in this connection has been placed on Radharani v. Rahim Sardar('), Sakuntala v. Thirumalayya(2), State v. Tavara Naika( 3), Sultan Chand v. Yogindra Nath Baz (4), and Satwant Singh v. Smt. jaswant Kaur ("). As is apparent, section 531 does not enti_tle a magistrate, who is not a magistrate of the class referred to in sub-section (1) of section 488, to proceed with an application for maintenance. In ,fact even a District Magistrate, a Sub-Divisional Magistrate or a Magistrate of the first class will not .Pe entitled to proceed with such an application if he knows that the proceedings do not fall within his jurisdiction under sub-section (8) of section 488.

The true meaning of section 531 is that while it will not uphold an order passed in proceedings wilfully taken in a wrong place, or enable a magistrate to confer jurisdiction on himself when he knows that he has no such jurisdiction, there is no reason why a magistrate, wqo is otherwise duly empowered to make an order under sub-section ( l) of section 488 of the Code, cannot proceed with an application under that sub- · section for the purpose of deciding whether he has the territorial juri;.>diction to entertain the application and to decide the application on the merits if he finds that he has the territorial jurisdiction.

Section 53 l cannot thus be said to be inapplicable to a case where there is a controversy as to the district where the praceeding should be held, the parties lead evidence in support of their respective contention about the correct place of the proce~ding, and the magistrate finds i1t necessary (after taking note of the entire evidence on the controversy) to arrive at a decision on the basis of the balance of probabilities. In other words, there is no reason why, in such a ca£e, section 531 should not be applicable merely because the magistrate, while considering the evidence relating to jurisdiction, unwittingly makes a reference) to section 531 in passing and not for the purpose of assuming jurisdiction under it.

If the magistrate, in this case, had thought of assuming jurisdiction under section 531, he would not have proceeded to record the evidence of the parties, on the question of the territorial jurisdiction, or referred to it at le11gth in his order and arrived at the decision that he had the jurisdiction. We have gone through the cases which have been cited by the counsel for the respondent. Radharani and another v. Rahim Sardar (supra) was a case where the magistrate proceeded with the trial (1) A.T.R. 1946 Calcutta 459. (2) (1966) 2 M.L.J. 326. $3) A.LR. 1959 Mysore 193. (4) A.I.R. 1944 Peshawar 25. (5) (1956) A.L.J. 134. SMT. RAJ KUMARI v. DEV RAJ (Shinglzal, !.) .1003 in the wrong local area with his eyes open to the fact ihat he. !rad no. territorial jurisdiction, and, the Calcutta High Court bad to observe that the section does not confer any jurisdiction.

This is however not su in the present case, because the Magistrate recorded the evidence on the question of territorial jQrisdiction, and he went to the extent of making •a reference to the entire evidence ·which was led on the point. Moreover he took note of the fact that the respondent had not specifically dened that he lived at· village Lampur with the appellant. . This is therefore not a case where the Magistrate proceeded with the application even though. he had the knowledge that it did not fall within his jurisdiction. The same is the position in regard to Sakunta/a v. T/zirumalayya ·(supra) and it also cannot avail the respondent. We have gone through State v .. Tavara Naika (supra). Jt was not a case under section 488 of the Code. What has been said there is that the curative provisions of section 53 l should not be an excuse for overlooking a material irregularity ·pertaining to jurisdiction when it is brought to the notice of the Court before the commencement of the trial.

It does not therefore lay down anything different from what lras been stated in Radlzarani · v. Rahim Sardar (supra). It was a case where the accused .was committed to a wrong sessions division, and the mistake was corrected .because the trial had not commenced. Sultan Chand & another v. Yogindra Nath Baz (supra) was also not a case under section ~88 of.the Code .. Hhas been held in that case that when the'qucstion"of jurisdiction.has been raised before the trial magistrate, it is his duty to determine the point,· otherwise ·the provisions •as regards· jurisdiction w~uld . never : be enforced and that section 531 cannot be applied to such a case. As has been stat.ed, the Magistrate in. the present case addressed. himself to the question of jurisdiction·, ·recorded detailed evidence on it, considered the evidence in his order and reached the conclusion that the application was maintainable in his ·court. : -·This -is' therefore different case. Satwant Singh v. Smt. Jaswant Kaur (supra) wa> a · case under section 488 of the Code. .

It has been held , there. that where the question of jurisdiction had : been raised .before the trial magistrate, it was his duty to de.termine the point, and that he cannot proceed .. with the trial in a wrong local area with his. eyes open to the fact that he has no territorial jurisdiction. · As has been shown, this was not so in the present case ... It' would thus appear that the High Court erred in taking.the view that section 531 would not be applicable to this case merely because an objection as to jurisdic- · tion was raised by the respondent "right at the first. instance." The ·second ground mentioned by the High .Court is that section 531 would not be. applicable because the respondent had specifically reserved his right to file a written reply· on merits after the question of jurisdiction had been decided.

We find that_ this .is clearly a misstatement of the· facts, for counsel for the respondent was not able to refer to anything on the record to show that the respondent reserved. any such right to file a written reply on the merits at a later: stage, after the question of jurisdiction was decided against him. On. the other !rand; we find . that· the Magistrate specifically overruled · th.e objection of the respondent, und made an order directing the parties to adduce' their evidence on the whole case and specifically rcjectcdt l 6-206SCI /77 the respondent's application for deciding the question of jurisdiction in the first instance. The Magistrate has clearly stated that an order was made by him for the production of evidence '·in the case", aud tha~ he decided ~o defer a decision of the question of jurisdiction until after. the evidence had been recorded as a whole. The Magistrate has further stated that the respondent did not file his further or additional reply even then.

The High Court therefore undoubtedly erred in thinking that the respondent specifically reserved his right to file a written reply on the merits later on. As has been shown, no such reservation was permitted by the 1wagistrate, and counsel for the respondent was not able to show how the respondent· could unilaterally make such a .reservation for himself. It may be that. in a given case, it may be advisable. for a magistrate to confine the evidence of the parties, in the first instance, to any .preliminary objettion .--" relating to jurisdiction, and to decide the controversy on the merits thereafter, but as this was not so in the present case, we are unable to find any justification for the second ground mentioned by the High Court. The third ground of the High Court is also untenable. for it has refused to apply section 531 on the ground of prejudice for the reason that the respondent had reserved his right to lead evidence on the merits and did not delibei•ately give up that right.

Herc again, counsel for the respondent was unable to show how it could be said that the respondent made any such reservation, or was entitled to it when, as has been stated, the Magistrate had rejected his application for deciding the question of jurisdiction as a prelimir,ary question :rnd had passed an order for the production of all the evidence in the case. If therefore the respondent persisted in refusing to produce his evidence in spite of that order of the Magistrate, he alone was to blame for it, and the High Court erred in taking the view that h~ had reserv~d the right to lead evidence at a later stage. The High Court has taken the view that this is a case where there was obvious prejudice to the respondent and a failure of justice as he never led evidence on the merits. But the High Court failed to appreciate that the respondent had to thank himself for that prediC'ament.

He knew that the Magistrate had passed an order refusing to try the question of jurisdiction in the first instance and had rejected his application to that effect. He also knew that the Magistrate had called upon the parties to lead all their evidence. The appellant obeyed that order and ex•amined her witnesses. The respondent persisted in thinking that the Magistrate had no jurisdiction, and he refused to examine the witnesses on the merits and thought it sufftcient to confine his evidence to the question of jurisdiction. So if ·he deliberately refrained from producing his evidence on the merits, there can be no justification for him to raise the question of prejudice or failure of justice. As it is, Counsel for the respondent has not been able to refer to any application of the respondent. whether oral or documentary, expressing a desire to lead his evidence on the merits.

The fact of the matter therefore is that the respondent had decided that he would not lead anv evidence on the merits, and confined his evidence to the question of jurisdiction. It may be that, as SMT. RAJ KUMAR! v. DEV RAJ (Shinglwl, !.) has been argued by the Counsel for the appellant, he did so because he realised that he had no defence to make on the merits of the claim for maintenance. The fifth ground mentioned by the High Court is that before an order could be· passed under. section 48 8 (I ) it was necessary to prove that the husband had refused or neglected to maintain his wife, and that required an opportunity to be given to the husband lo prove his ~ase. But the argument is futile because the respondent did not set up any defence on the merits.

On the other ha11d, the Magistrate found that there was no controversy about the facts that the appellant was the h\wfully wedded wife of the respondent and that she had been living separately for the last many years and was entitled to maintenance as the respondent had neglected her or had refused to maintain her. In its sixth ground the High Court has stated that before a decision could be given on the merits, the husband could make a request for permission to lead evidence on merits. It would be sufficient to say that Counsel for the respondent was unable to point out when and how any such request was made but was refused by the Magistratc. Lastly, ths High Court has taken the view that a proceeding cannot be ma'intained .by a court which has no jurisdiction by simply taking recourse to section 531 of the Code when an objection has been taken against its maintenance, for otherwise the provision relating to jurisdiction would become nugatory.

This point has already been considered earlier and need not be re-examined. It is thus quite clear that the High Court committed a serious error of law in refusing to invoke section 531 in the facts and circumstances of this case~ It is not in controversy that the Magistrate who took the proceedings, on the appellan,t's application under subsection (l) of section 488, was one of the magistrates mentioned in that sub-section. The respondent raised a controversy as to his local jurisdiction, and the Magistrate ordered the parties to load all their evidence. He specifirnlly rejected the application for confining the evidence to the question of jurisdiction, or to try that as a preliminary issue. It is therefore futile to contend that the Magistrate gave himself jurisdictil)n by recourse to section 531 of the Code.

On the other hand in his final order, he set out the points which arose for consideration on the question of jurisdiction, made a mention, at length, of the entire evidence on that question and took into consideration the conc;Iuct of the respondent and the case law as well as the respondent's reply. All that led him to the conclusion that he had jurisdiction to try the application. There is therefore no reason why section 531 should not be held to be applicable to this case. As has been shown, it is futile for Counsel for the respondent to raise the question of prejudice, or to say that there was a failure of justice, because the respondent did not lend his evidence on the merits. · As we have pointed out, he did ·so deliberately and in 8 defiance of the order of the Magistrate calling upon him to lead his evidence on the whole case.

The respondent cannot in fact be heard to raise the question of prejudiee when on the uncontroverlcd and well established facts the Magistrate found that the respondent was a person who had sufficient means and had neglected to maintain his wife, and made an order that he shall make a monthly allowance of Rs. 125 /- per mensem for her maintenance. The appeal is allowed and the impugned order of the High Court dated March 14, 197 4, is set aside, with costs. P.B.R. Appeal allowed.