1. This is an appeal from a judgment of Tendolkar J. by which he dismissed the pltfs'. suit. The pltfs. are the trustees of a certain trust & as such trustees they were in possession of an immovable property admeasuring about 1,10,000 square yards situated at Tardeo Junction, Bombay. It would appear that on 7-3-1942, possession was given either of the whole of this plot or a very large portion of it to the Supplies Department which belonged to the Govt. of India, & this possession was given in contemplation of a lease which was proposed to be entered into between the pltfs & the Govt. of India. On 1-4-1942, a requisition order was passed by which this property was requisitioned, & on 28-10-1942 an order of acquisition was passed acquiring this property, & it is these two orders of requisition & acquisition which are being challenged by the pltfs. in this suit. The pltfs'. contention is that they are still the owners of this property free from requisition or acquisition ordered under these two orders.
2. In order to understand & appreciate the contentions of the parties, it is necessary to look into the provisions of the law under which these two orders were made. Under Rule 79 (1), which is a rule made under Section 2 (2), Defence of India Act, 1938, power was given to the Central Govt. to requisition property, provided in the opinion of that Govt. ic was necessary or expedient so to do for securing the defence of British India, the public safety, the maintenance of public order, or the efficient prosecution of war, or for maintaining supplies & services essential to the life of the community. Under Sub-clause (2) of that rule where land was requisitioned by the Central Govt, the Central Govt. had the power to dispose of & use such land in such manner as it thought fit. A notfn. was issued on 26-4-1941, by which the powers which the Central Govt. had under Rule 79 (1) were also conferred upon the Provincial Govt. A further notfn. was issued on 4-10 1941, by which all the powers conferred on the Central Govt. in regard to requisition were made esercisable also by all Collectors within the limits of their respective jurisdiction. This power of delegation was exorcised by the Central Govt. under Section 3(4), Defence of India Act. By that sub-section: 'the Central Govt. may. by order direct that any power or duty which by rule under Subrule (1) is conferred or imposed upon the Central Govt. shall in such circumatances & under such conditions, if any as may be specified in the direction be exercised or discharged:
(a) by any officer or authority subordinate to the Central Govt. or
(b) by any Provincial Govt. or fay any officer or authority subordinate to such Govt. or
(c) by any other authority.' Whereas in the case of the notfn. of 26-4-1941, the delegation was made to the Provincial Govt. under Sub-clause (b), by the notfn. of 4-10-1941, the delegation was made under Sub-clause (c) to any other authority. A further nobfn. was issued on 26-11-1941, the material portion of which provided that where land had been requisitioned by the Central Govt. or the Provincial Govb. it was given the power to acquire such land by serving on the owner thereof the necessary notice, & it further provided that where such notice of acquisibion was served the land shall vest absolutely in the Central or the Provincial Govb. making the acquisition free from all encumbrances, & the period of the requisition thereof shall end. Therefore, for the first time on 26-11-1941, power of acquisition was conferred upon the Central Govt. & the Provincial Govt. On 16-5-1942, Rule 75A was passed & the effect of that rule was to consolidate Rule 79 with bhe amendments which had been made thereto by the various notfns. & by this rule, Rule 79 was deleted. On 25-4-1942, a notification was issued by the Government of India by which the powers conferred on the Central Govt. by Rule 76A were delegated to Collectors within their respective districts, & on 29-5-1942, a notfn. was issued by the Govt. of Bombay delegating their powers under the same rule also to Collectors & Dist. Mags, within the limits of their respective jurisdiction. 3. The order of requisition of 1-4-1942, was issued by the Collector of Bombay, & the order recites that whereas it is necessary & expedient for securing the public safety & bhe efficient prosecution of war to requisition the land (the particulars of which are set out) in exercise of the powers conferred by Rule 79, Defence of India Rules read with Govt. of India notfn. dated 4-10-1941, the Collector by that order requisitioned the land from the date of the order. Therefore, it is clear that this order of requisition was issued by the Collector by virtue of the powers delegated to him by bhe Central Govt. under bhe notfn. of 4-10-1941, to which reference has been made. The order of acquisition--strictly it is a notice dated 28-10-1942 --was also issued by bhe Collector of Bombay pursuant to the nobfn. of 25-4-1942, by which the power to acquire was delegated to him by the Central Govb. These two orders were challeaged by the pltfs. on various grounds, & these grounds as appear from the plaint were : (1) That the Provincial Govt. has no authority to requisition the land under Section 79; (a) that the requisition was made at the instance of the Govt. of Bombay & in support of that it was stated that bhe possession of the land was also taken by the Govt. of Bombay; (3) bhab the Govt. of Bombay did not require bhe land for any purpose mentioned in the order; (4) that the purpose of the acquisition was a purpose which was be come into existence after the termination of the war, viz., accommodation for the police of Bombay; and (5) that the object of the acquisition was to deprive bhe pltfs. of 15 per cent. in addition to bhe market value of the land to which they would have been entitled under Section 23(2), Land Acquisition Act, if the land had been compulsorily acquired under thab Act. The learned Judge came to the conclusion that the challenge made by the pltfs. to these orders on these grounds was unsustainable & therefore the pltfs. were bound to fail. The pltfs. made an appln. for the amendment of the plaint by which they wanted to aver a further & a different challenge be these two orders. The learned Judge refused be granb leave be the pltfs. to amend the plaint, & substantially the appeal before ua has been argued by Mr. Desai on behalf of bhe applts. on the basis that bhe learned Judge was in error in refusing to granb this amendment. The main reason which weighed with the learned Judge in refusing leave to amend was that bhe ground now sought be be incorporated in the plaint was a ground to which no reference whatsoever had been made in the plainb as originally drafted. But what weighed with the learned Judge even more was the consideration that if leave to amend was granted, it would contravene bhe provisions of Section 80, Civil P. C., because according to the learned Judge whab was now attempted to be pleaded was a fresh cause of action, the notice of which had not been given as required under Section 80 of the Code. The learned Judge, therefore, took the view that it was futile to granb leave to amend when the result of bhe amendment would be a contravention of bhe mandatory provisions of Section 80 of bhe Code & the pltfs. would not be entitled to maintain the suib in respecb of bhe cause of action attempted to be pleaded by the amendment.
4. Section 80 of bhe Code provides that no suit shall be instituted against the Crown or against a public officer in respect of any act purporting be bs done by such public officer in his official capacity, until the expiration of two months next after notice in writing has been given, & the notice has to state the cause of acbion & other particulars which are set oub in the section. It is clear that tbe object of the section is to give intimation be Govt. of bhe grievance that the subject has & to give to Govt. an opportunity be redress that grievance before it is brought to Cb. The section is not intended to be an instrument of oppression againsb the subject. It is perfectly brue thab the P. C. in Bhagchand Dagadusa v. Secretary. of State laid down that Section 80 was express, explicit & mandatory & admitted of no implications or exceptions. But even so, as pointed out by Sir John Beaumont in Chandulal v. Govt. of Bombay : AIR1943Bom138 the section should be construed with some regard to commongense & to tbe object with which it appears to have been passed.
5. The submission of Mr, Seervai is that the amendment proposed by the pltfs. would insert a new cause of action in the plaint & therefore the provisions of Section 80 would be contravened inasmuch as no notice was given with regard to that new cause of action. It is, therefore, necessary to consider what the proposed amendment is & what its effect is. The proposed amendment is in the following terms :
''The pltfs. say that the Collector of Bombay made the said orders at the direction & under the orders from deft. 2. The pltfs. say that in making the said orders the Collector of Bombay did not apply his own mind to the question whether the property was required by deft. 1 for the purposes mentioned in Rule 75A, Defence of India Rules. Under the circumstances the pltfs. submit that the said orders are mala fide, ultra vires and illegal.'
Taming now to the notice, in dealing with the requisitioning order of 1-4-1942, the solicitors of the pltfs. state that when the said order was served upon their clients subsequently tbe property had already been in possession of Govt. for Military & Defence of India purposes, & it was not therefore competent to the Collector to issue the order of requisition against their clients. They go on to state that the order was not issued for the purpose of securing public safety or efficient prosecution of the war as wrongly recited in the order, the property having been in posaeasion of the Govt. for the said purpose & was issued not bona fide but for a collateral purpose. They further state that the order of April 1 was not made bona fide & for the purposes for which it purports to have been made & was therefore invalid & ineffective in law. Therefore, in this notice the pltfs. assert in the first place that the order was made for purposes other than those contemplatad by the relevant rule & they further go on to state generally that it was not made bona fide & for the purposes for which it purports to have been made.
6. Now, if one analyses the proposed amendment, it challenges the order on the ground that it was made mala fide & for a collateral purpose. The amendment may be looked at from two different points of view. The allegation is that it is made in order to carry out the orders of the Govfc. of Bombay, & inasmuch as that was the purpose of the order, it was outside the purposes contemplated by Rule 79 or Rule 76A. There is also an allegation that the order was not made bona fide because the Collector permitted his judgment to be fettered by the Govt. of Bombay, & in not exercising his own independent judgment as was required by the rale he acted in bad faith. Therefore both the approaches are within the ambit of what is stated in the notice, viz. that it wag made for a purpose other than the purpose required under the rule & it was not made bona fide. The cause of action on which the pltfs. rely in their plaint in order to get the relief which they require is the invalidity of the order & that invalidity according to the pltfs. is due to the fact that the order was made for a collateral purpose & was also made mala fide. In the notice it is explicitly stated as one reason why according to the pltfs. the order was not made for the purposes for which the order stated it was made. But the notice goes on to state generally that the order was not made for the purposes for which it was purported to have been made & it also generally challenges the order on the ground of want of bona fides. The amendment gives another ground in support of the contention of the pltfs. as to why the order was not made for the purposes for which it was purported to have been made & ifc also furnishes another ground why the order was not made bona fide. In my opinion, the amendment does not introduce into the plaint a new or fresh cause of action. The cause of action is the same as alleged in the notice. All that the amendment does is that it gives further grounds in support of the contentions & allegations which go to constitute the pltfs'. cauge of action. I agree with Mr. Seervai that para. 6 of the plaint does not set out this particular ground which is sought to be relied upon by the proposed amendment, The learned Judge also rightly, in my opinion, took the same view. Para 5 avers that the Collector of Bombay made the order mala fide at the instance of the Govfc. of Bombay & purported to assume that possession of the said property was taken by the Govt. of Bombay. The pltfs. further say that the Govt. of Bombay had no power & authority under Rule 79, Defence of India Rules, to requisition the said property or direct the Collector of Bombay to do so. In this para, there is no suggestion that the order was made at the dictation of the Govt. of Bombay & that the Collector of Bombay has abdicated his own discretion in favour of the orders received from Govt. The gist of the complaint made in this para, is that the requisition was made by the Govt. of Bombay through the agency of the Collector of Bombay & that the Govt, of Bombay at that date had no authority to delegate its powers to the Collector of Bombay. That challenge to the order is very different from the challenge made by the proposed amendment. But even though this particular ground might not have been averred in the plaint, inasmuch as the order is challenged on the ground of mala fides & on the ground of having been made for a collateral purpose, I see no reason why the pltfs. should be precluded from attacking the order on the new ground which they propose to do by their amendment. It must also be borne in mind that all the materials with regard to the making of the order & with regard to the formation of the opinion of the Collector were with the Govt. of Bombay & the pltfs. had to come to Ct. with such materials as were at their disposal & restrict their challenge to those materials. It would be extremely hard on a party to be told by the Govt. that although we have all the materials & we have all the particulars, still Section 80 makes it incumbent upon you to mention all the grounds of the challenge to the order, & if you omit any ground, you cannot supplement it at a later atage although fresh materials & particulars may come to your knowledge. As I said before, that is not the object of Section 80. The expression 'cause of action' in Section 60 must be construed in a liberal way in favour of the subject, & so long as proper notice is given to Govt. as to the nature of the suit & the facts on which the pltfs. rely for obtaining the relief which they seek in the suit, the Ct. must be satisfied that there is a proper compliance with the provisions of Section 80. It cannot be said that the Govt. were not fully aware of what the pltfs. were seeking in the suit & on what facts their reliefs were based. The pltfs. reliefs were based mainly & entirely on the challenge which they made to the order of requisition & acquisition which the Govt. have passed & the Govt. knew that they would have to support the validity of the order in order that the pltfs. should not be entitled to the relief which they sought.
7. Mr. Seervai has strongly relied on a decision of the P. C. reported in Mohammad Khalil Khan v. Mahbub Ali . In that case the P. C. was considering the correct test which should be applied in determining whether in cases falling under Order 2, Rule 2, the claim in a new suit was in fact founded upon a cause of action distinct from that which was the foundation for the former suit. At p. 18 their Lordships laid down the various principles which should guide the Ct. in determining whether the cause of action in one suit was different from the cause of action in another suit, & one of the principles on which Mr. Seervai has laid considerable emphasis is. 'If the evidence to support the two claims is different, then the causes of action are also different.' Mr. Seervai contends that if the amendment was allowed, then the pltfs. would have to lead different evidence in order to support the allegations contained in the amendment. In my opinion, evidence is only different in the sense used by the P. C. if evidence is of a different nature. But the P. C. must not be understood to have said that merely because additional evidence or supplementary evidence has to be led by reason of an amendment in the plaint, the amendment constitutes a new or fresh cause of action. It is undoubtedly true that whenever the Ct. allows an amendment, ordinarily the pltf. has got to lead further evidence in support of the averments contained in the amendment. If the principle laid down by the P. C. were to be understood in the manner in which Mr. Seervai wants us to understand it, then the result would be that every amendment, whatever its nature, would constitute a fresh cause of action. But that certainly is not the meaning to be given to the principle laid down by the P. C. In this case also, when the order was challenged on one ground, certain evidence would have to be led in order to support that challenge. When the order is challenged on another ground, further evidence would have to be led in order to support that other ground. But it could not be said that the evidence in the two cases is different in kind or character. The evidence is similar; the evidence is directed to establishing that the order was made mala fide or for a collateral purpose; and therefore, in my opinion, even applying the striot test laid down by the P. C. the proposed amendment does not incorporate a new cause of action.
8. It has been further urged by Mr. Seervai that a general allegation contained in the notice of mala fides is not an averment at all & ought to be entirely discarded. The learned counsel says that whenever fraud or any allegation of that character is made, it has to be pleaded with proper particulars, & if it is not pleaded with proper particulars, there is no allegation of fraud at all. That principle is well established & cannot be controverted. But what the pltfs. have stated in their notice is not an allegation of fraud which is covered by Order 6, Rule 4. There is no suggestion either in the notice or in the plaint that any fraud was practised upon the pltfs. by the Collector of Bombay. It is clear that when such an allegation is made, the party alleging the fraud is in possession of the particulars of the fraud practised upon him. Fraud in such a case is an objective fact known to the party complaining of it, & in such a case the law requires that particulars of such an objeative fact must be given. Similar is the oase with breach of trust, wilful default, or undue influence or misrepresentation, all covered by the provisions of Order 6, Rule 4. Bat when a party is complaining of a state of mind of the other party & making a grievance of that state of mind, it is impossible to expect that party to give particulars of something which is aubjective as far as the other party is concerned, & the law has taken notice of this difficulty & has provided it by Order 6, Rule 10, that wherever it is material to allege malice, fraudulent intention, knowledge or other condition of the mind of any person, it shall be sufficient to allege the same as a fact without setting out the circumstances from which the same is to be inferred. Therefore, both in alleging mala fides & attacking the order on the ground of having been made for a collateral purpose, the pltfs. are relying on the state of mind of the Collector of Bombay. According to the plts., the state of mind was not honest or that the state of mind was perverted in that it allowed itself to be influenced by making the order for a purpose other than what it was incumbent upon the Collector to make the order. If that is the nature of the challenge upon the order, it is difficult to see why it was necessary to plead that state of mind with particulars before the plea could be held to be a valid plea in law. Therefore, in my opinion, it was open to the pltfs. in the notice which they gave to challenge the order on the general ground that the order was made mala fide & therefore was invalid.
9. The next question that we have to consider is whether by reason of any fact the pltfs. are precluded from challenging the order. The defts. contended that the pltfs. were estopped from challenging the order. The learned Judge has dealt with this plea of estoppel & in my opinion rightly come to the conclusion that the plea of estoppel must fail because no person can be precluded from pleading that certain orders are illegal or invalid, because the question as to whether orders are illegal or invalid is a pure question of law & there can he no estoppel against law. But the learned Judge, with respect to him, goes on to hold that a similar plea arises on the facts proved before him. I frankly do not understand what the learned Judge means by 'a similar plea.' If it is a plea of estoppel, then the learned Judge has already dealt with that question & has come to the right conclusion. The learned Judge thinks that by reason of a certain agreement entered into between the parties the similar plea should be allowed & the pltfs. should be precluded from challenging the validity of the two orders. The position with regard to the agreement is this. An agreement was entered into between the pltfs. & the Central Govt. on 20-5-1944, with regard to the amount of compensation which was payable to the pltfs. by reason of the acquisition made of their property. It is a printed form of an agreement & the printed form strictly applies to a case when payment of compensation is made in full by the Central Govt. & accepted by the party whose property is acquired. BuG the form is altered to suit the particular facts of the case, & in altering the printed form certain confusion has been caused because all the alterations have not been made to fit in with the particular case contemplated by this agreement. The agreement provides that the Govt. shall pay & the owner shall accept & receive under protest a sum of Rs. 22,29,770 on account of the compensation for the land & structures. Therefore it is clear that the pltfs. did not accept the sum of Rupees 22,29,770 in full in respect of the acquisition of their land. The sum was received by them on account & under protest the protest clearly indicating that their rights were not concluded as regards the amount of compensation by their acceptance of Rs. 22,29,770. Clause 6 of the agreement further provides that should there be any dispute or difference concerning the subject-matter of these presents, the dispute should be referred to an arbitrator to be appainted by Govt. & the decision of such arbitrator should be conclusive & binding on the parties. These Rs. 22,29,770 were paid by Govt. & a receipt was passed & in this receipt the pltfs. clearly stated that the two amounts aggregating to Rs. 22,29,770 were received by them under protest & without prejudice to their right to claim for an arbitration.
10. What is contended on behalf of Govt. is that the only right which the pltfs. could claim after they had entered into this agreement was to have the sum of Rs. 22,29,770 increased by recourse to arbitration which was permissible to them both under the agreement & under the Defence of India Rules. Mr. Seervai contends that save & except this right no other right arising out of requisition & acquisition proceedings was open to the pltfs. & therefore it is urged that the pltfs. are precluded from challenging the order of requisition & acquisition as they have done in this suit. This argument found favour with the learned Judge & the learned Judge has accepted it. In my opinion, the scope & ambit of this agreement is extremely limited. It only deals with the claim for compensation & the settlement arrived at between the parties is only with reference to the amount of compensation which the pltfs. should receive & the Govt. should pay. To the extent that it deals with compensation I agree with the learned Judge that the only right open to the pltfs. was to claim higher compensation by means of resort to arbitration. But it was a mistake to think that this agreement in any way deals with the order of requisition & acquisition passed by Govt. If the orders of requisition & acquisition are bad, then the very substratum of the agreement disappears & the very foundation, if I might so put it, is knocked out of this agreement. Mr. Seervai says that this agreement displaces the title of the pltfs. The title is vested in Govt. & they now cannot challenge that title as a result of that agree-ment. That is an entirely erroneous way of looking at this agreement. The title of the pltfs. is not displaced by this agreement. The title of the pltfs. was displaced by the order of requisition & acquisition. This is not an agreement for sale of property by the pltfs. to the defts. It assumes that the title has already passed & it deals with certain consequences following upon the passing of the title by reason of the order of acquisition. It is difficult to understand how either party could insist upon the term with regard to the payment of compensation or the amount of compensation to be paid if the very basis of the agreement disappears.
11. Mr. Seervai further contends that it is open to the parties to settle legal doubts & disputes & arrive at a certain payment on the basis of such settlement, & if such settlement is arrived at, it would not be open to either party to raise legal disputes which have already been settled. That as an academic proposition is perfectly sound, but unfortunately that proposition has no bearing on the facts of this case. Mr. Seervai relies on a power of attorney which was given by the pltfs. on 7-8-1943, to Nagindas Purshottamdas Patel & Manibhai Hathibhai Patel with regard to this very property, & among the powers given to the attorneys was to lodge objections to the said orders of requisition & acquisition & to prosecute the said objections according to law. Mr. Seervai says that the attorneys who entered into the agreement had the power to object to the orders of requisition & acquisition, & having the power they gave it up & arrived at a settlement which included the giving up of any rights that the pltfs might have had to challenge the two orders. The mere fact that the attorneys under the power of attorney had the power to object to the two orders does not lead one to the conclusion that in fact before the agreement was entered into any objection was lodged or any objection was considered or any objection was given up. As a matter of fact, in the agreement itself there is not a suggestion that by accepting the sum of Rs. 22,29,770 the pltfs. were giving up any of their rights to challenge the two orders on any legal ground, nor is there a suggestion that any legal disputes between the parties were settled by this agreement, nor is there even any indication that in fact there were any legal disputes between the parties. In my opinion, therefore, the learned Judge, with respect to him, erred when he came to the conclusion that this agreement precluded the pltfs. from challenging the validity of the two orders.
12. The learned Judge has also taken the view that in any view of the ease the pltf's suit is barred by limitation. He has come to the conclusion that the pltf's suit falls under Article 14, Limitation Act. The description of the suit given in col. 1 with regard to that article is to set aside any act or order of an officer of Govt. in his official capacity, not herein otherwise expressly provided for, & limitation begins to run from the date of the act or order. Obviously, the article applies only to those acts or orders which are valid until they are set aside. Therefore, if an order is bad from its inception, Article 14 would not apply to such an order because it would be unnecessary for the pltf. to get the order set aside. The question, therefore, we have to consider in this appeal is whether the two orders which the pltfs. challenge, if their challenge is successful, are valid till they are set aside or they were invalid from their very inception. If the Collector had the power or the jurisdiction to make these orders & he made-them in the absence of any formality required by law or he made them irregularly, it may be said that those orders would not be bad from their inception, but they would be irregular orders which would have to be challenged in a Ct. of law & set aside, & till set aside they would continue to be good & binding orders. On the other hand, if the orders were made by the Collector without jurisdiction or in the absence of any power given to him under the law, then the orders would be invalid from their very inception. The distinction is the well-known distinction between the absence of jurisdiction & the irregular exercise of jurisdiction. Both under Rule 79 as originally enacted & under Rule 75A as subsequently enacted, the two conditions which have to be satisfied before jurisdiction could be exercised by the Collector to requisition any pro perty were that the requisitioning had to be for securing the defence of British India, the public safety, the maintenance of public order, or the efficient prosecution of war or .for maintaining supplies & services essential to the life of the community, & an opinion had to be formed by the requisitioning authority that it was necessary or expedient so to do. There was no power in the Collector or the other requisitioning authority mentioned in the rules to requisition property except on the satisfaction of these two conditions. Therefore, if the pltfs could establish that the property was not required for the purposes mentioned in the rules, or that the Collector did not form his own opinion, then there would be no power in the Collector to requisition the property. It would not be a case of irregular exercise of a power or of jurisdiction but an exercise of jurisdiction or power which the requisitioning authority did not possess. The absence of these two conditions would not be merely the failure to carry out a formality required by the law, but it would be an illegality which would affect the very jurisdiction & power of the requisitioning authority. Therefore, in my opinion, if the requisitioning authority passed an order without forming the opinion required by the rules or acquired it for purposes other than those mentioned in the rule, such an order would be an order without jurisdiction & therefore it would be invalid from its very inception. If that is the correct view, then it is unnecessary for the pltfs. to have the orders set aside & Article 14 would not apply to the facts of this case & the pltfs.' suit is in time.
13. The pltfs. also challenged these two orders on the ground that they were not properly executed. The learned Judge has rightly rejected the pltfs'. contention on this point & Mr. Desai for the applts. has not addressed us on that question. The learned Judge also took the view that the defts. contention that the property was needed for police purposes if true came within the purposes of the rule, viz. securing of public safety. I agree with that view of the learned Judge. The learned Judge also took the view that if the intention was to acquire the property for police purposes, it would be open to Govt. to let out the property to the Central Govt. for supply purposes because supply purposes would also be a purpose within the purview of the rules. With that view, also with respect I am in agreement. But there is one contention put forward by the pltfs. which would require investigation. It has been suggested by the pltfs. that the property was acquired for a purpose which was to come into existence after the termination of the war. The learned Judge is right when he says that a purpose may be in existence during the war, but it may continue after the termination of the war & that fact by itself would not make the order invalid. For instance, the Govt. may require land for housing policemen & police officers for purposes which may arise during the war but they may want to continue to keep the police in the same place even after the war. But if the intention of the Govt. was that this land should be for a purpose which was to come into existence after the war, it would clearly not fall within the ambit of the rule. The necessary plea is to be found in para. 17 of the plaint where it is averred that the acquisition of the property was for the purpose of its utilisation after the present war by the Govt. of Bombay for police accommodation. It is true that no evidence was led by the pltfs. to substantiate this case, but, as I shall presently point out, as the suit will have to be remanded for certain purposes, we would give an opportunity to the pltfs. to prove this case if they can do so by any evidence they can lead at the hearing.
14. The orders were also challenged on theground that the object of these orders was todeprive the pltfs. of the 15 per cent. whichthey were entitled to under the Land Acquisition Act on the fair market value & the Govt).instead of acquiring the land under the LandAcquisition Act deliberately did so under theDefence of India Rules for this purpose. I agreewith the learned Judge that if in law it wasopen to the Govt. to acquire the land underthe Defence of India Rules & if there was noliability upon them to pay the 15 per cent.,then there was no obligation on Govt. necessarily to acquire the land under the LandAcquisition Act. The very purpose of theDefence of India Rules was that propertywhich was required for the war should beacquired for a smaller amount than propertywhich is ordinarily under the Land Acquisition Act.
15. The nest question that we have to consider is whether the learned Judge was right in refusing to the pltfs. discovery of certain documents which they claimed from the defts. & which claim was refused on the ground that the documents were privileged. A chamber summons for discovery was taken out by the pltfs. on 17-6-1949 against deft. 2 & various documents were specified in the chamber summons as being in possession of deft. 2 & as being relevant to the issues arising in the suit & which according to the pltfs. deft. 2 was hound to disclose. The discovery was in the first instance resisted by the Govt. of Bombay on the curious plea that Govt. were not bound to make an affidavit of documents. Reliance was placed on the Crown Practice in England by which the Grown can never be oalled upon to make any discovery. If the Crown discloses any document, it does so as a matter of grace rather than as a matter of legal obligation. The matter came before my brother Bhagwati J. & he very rightly rejected that contention pointing out that it was the invariable practice of this Ct. that the Grown or the State did not stand on any higher footing than a subject as far as discovery of documents was concerned & the obligation to make an affidavit of documents was the same upon the State as upon the subject. The discovery was also resisted on the ground that the documents were privileged & under the law the State could not be compelled to disclose these documents. This privilege is based on certain sections of the Evidence Act to which a reference might be made. Section 123 provides that :
'No one shall be permitted to give any evidence derived from unpublished official reiiords relating to any affairs of State except with the permission of the officer at the head of the department concerned, who shall give or withhold such permission as he thinks fit.'
Section 134 is really supplementary to Section 123 & it provides that--'No public officer shall be compelled to disclose communications made to him in official confidence, when he considers that the public interests would suffer by the disclosure.' Now apart from any authority, looking to the terms of Section 123 it is clear that privilege only applies to unpublished official records relating to any affairs of State, & before privilege can be claimed there must be an adjudication that the documents in respeot of which privilege is claimed are official records relating to affairs of State. The principle of the section is that it is not all records relating to the affairs of State that are privileged, but ocly those the disclosure of which would result in an injury being caused to public interests. The section gives effect to the principle that public interests must be paramount & private interests must give way when there is any conflict between public & private interests. Section 162, Evidence Act, deals with production of documents & it makes it incumbent upon a witness summoned to produce a document, if it is in his possession or power to bring it into Ct. notwithstanding any objection which there may be to its production or to its admissibility. He may even put forward his objection & the validity of such objection has to be decided by the Ct. Then the section gives the power to the Ct. to inspect the document or tu take other evidence to enable it to determine on its admisaibility. But the section precludes the Ct. from inspecting any document which refers to matters of State. Therefore, again, under this section the validity of an objection to the production of a document has to be determined by the Ct. The only limitation on the power of the Ct. is that in cases of documents where privilege is claimed under Section 123, the Ct. may not look at those documents but must determine the validity of the claims of privilege on materials other than tho document itself. That is the scheme of these three sections to which I have referred.
16. It will be apparent that a difficulty arises as to how a Ct. is to determine whether a document refers to the affairs of State contemplated by Section 128 if the Ct. is not to look at the document at all, & therefore the authorities to which I shall presently refer laid down that it must be left to a responsible Govt. officer, either a Minister or a person at the bead of a department to look at the document, to consider it, and to decide for himself whether the document falls in the category of documents of States referred to in Section 123. If, therefore, having considered the document he tells the Ct. that the document is one relating to affairs of State & that its disclosure will be injurious to public safety, the Ct. ordinarily would accept his statement if made on oath. But tbe statement must not be of a vague or indefinite character. He must not only indicate tbe nature of the document, but he must also state what injury to public interests he contemplates would result from the disclosure of the document. The Ct. may in a proper case be not satisfied with tho oath of tho deponent & he may be asked to submit himself to cross-examination at the hands of the party claiming the disclosure of documents. But as the Minister or the head of the department is in a much better position to judge both as to the nature of the document & as to the injury that will be caused to public interest, the Ct. treats his objection as conclusive provided the objection is validly & properly taken & is based on materials which the Ct. considers' adequate. The ultimate adjudication is always by the Ct. bub the Ct. under the peculiar circumstances of the case accept the view of the responsible officer as conclusive provided that the conditions to which I have just referred are satisfied.
17. It is unnecessary to state that a privilege, of this nature should be rarely claimed & should only be claimed after the responsible Minister or the head of the department has fully satisfied himself that the document whose disclosure is being resisted is really a document relating to the affairs of State & whose disclosure will result in injury to public interests. The scales are always weighed against the subject who fights against Govt., & Govt. should be loath to throw against him more weight in the scales by refusing disclosure of documents which are relevant to the issues in the suit. Govt. should always bear in mind that it is incumbent upon it to see that there is a fair trial between itself & the subject who is fighting the Govt. It should also realise that refusal to disclose material documents makes it difficult or impossible for the subject to make good his allegations against the Govt. Govt. should also bear in mind that the loyalty of its officers to the cause of Govt. should not prevail to the extent of injustice being done to the subject. Even if disclosure of a document may result in the subject succeeding or in getting beavy damages or compensation against the Govt. that is no reason why a material document should not be disclosed. The only loyalty which the section contemplates & which must undoubtedly prevail over private interests is the loyalty to the State in the sense that public interests must prevail over private interests & the disclosure of a particular document will damnify public interests. Even though, I readily admit, injustice may be done to a private interest, it is much better that such injustice shoald be done rather than public interest should be injured by the disclosure of a document whioh is a document relating to the affairs of State.
18. Now, bearing these observations in mind let us turn to the relevant authorities. The first I will refer to is a decision of the P. C. in Robinson v. State of South Australia [No. 2] (1931) A. c. 704 : 100 L. J. P. C. 183. There the P. C. was considering the provisions of Order 31, Rule 14, Sub-rule (2), pf the South Australian Rules of Court, & that rule provided that where on an appln. for inspection of any document privilege is claimed, it shall be lawful for a Ct. or a Judge to inspect it for the purpose of deciding as to the validity of the claim; and the P. C. laid down that this rule applied also to an official document in respect of which privilege was claimed on tbe ground that its disclosure would be contrary to the interests of the public. At p. 714, their Lordships emphasise the fact that the privilege is a narrow one, moat sparingly to be exercised. They cite a passage from Taylor that the principle of the rule is concern for public interest, & the rule will accordingly be applied no further than the attainment of that object requires.' They also cite with approval a dictum of Rigby L. J. in Attorney-General v. Newcastle-upon. Tyne Corporation (1897) 2 Q. B 884 : 66 L. J. Q. B. 593 that the dominating principle is that the discovery should be given unless there be some plain overruling principle of public interest. At p. 715 their Lordships point out that the increasing extension of State activities into the spheres of trading business & commerce does not result in the scope of the privilege being extended to matters of purely commercial character, & they sound a note of warning against the zealous champion of the Crown who may be frequently tempted to take the opposite view, particularly in cases where the claim against the Crown seems to him to be harsh or unfair, & their Lordships emphasise the fact that if the document if produced might have any such effect upon the fortunes of the litigation in the sense of supporting the case against Govt., that of itself should be a compelling reason for its production & only to be over-borne by the gravest considerations of State policy or security. Then their Lordships confirm the view of Griffiths C. J. in Marconi's Wireless Telegraph Co. v. The Commonwealth 16 C. L. R. 178, that the Ct. has in these cases always had in reserve tbe power to inquire into the nature of the document for which protection is sought, & to require some indication of the nature of the injury to the State which would follow its production. Then at p. 718 dealing with tho opinion that the Minister or the head has to form with regard to the nature of the document they say that the statement & opinion of the Minister, which the Ct. is asked to accept, is one that has not been expressed inadvisedly or lightly or as a matter of mere departmental routine, but is one put forward with the solemnity necessarily attaching to a sworn statement, & in this particular case their Lordships thought that the minute made by the Attorney-General with regard to this document that the disclosure of the document was contrary to public policy & that the public service & public interest would be prejudiced by the production of the document was entirely inadequate. Tho important point to note about this judgment is that the P. C. made it perfectly clear that a mere statement by a Minister that a document if disclosed was likely to injure public interest was not an adequate claim for protection of privilege, but that it was incumbent upon the Minister to indicate the nature of the document & also the nature of the injury to the State which would follow its production.
10. Then we have a subsequent case decided by the House of Lords in Duncan v. Cammell, Laird & Co. (1942) A. O. 624 : 111 L. J. K. B. 406 & in the judgment of Viscount Simon L. C. certain principles are enunciated as to the nature of the privilege claimed by the State A how that privilege is to be established. At p. 685 the learned Lord Chancellor points out that privilege may attach to an individual document or to a class of documents & a class of documents may be protected on the ground that the candour & completeness of such communications might be prejudiced if they were ever liable to be disclosed in subsequent litigation rather than on the contents of the particular document itself. At p. 636, he again repeats that the principle to be applied in every case is that documents otherwise relevant & liable to production must not be produced if the public interest requires that they should be withheld. This test may be found be be satisfied either (a) by having regard to the contents of the particular document, or (b) by the fact that the document belongs to a class which, on grounds of public interest, must as a class be withheld from production. Then he goes on to formulate two questions which he answers in the subsequent part of the judgment. The first is what is the proper form in which objection should be taken that the production of a document would be contrary to the public interest? And, secondly, when this objection is taken in proper form, should it be treated by the Ct. as conclusive, or are there circumstances in which the Judge should himself look at the documents before ruling as to their production? Then with regard to the first question at p. 638 he states that :
'The essential matter is that the decision to object should be taken by the minister who is the political head of the department, & that he should have seen & considered the contents of the documents & himself have formed the view that on grounds of public interest they ought not to be produced, either because of their actual contents or because of the class of documents, e. g., departmental minutes, to which they belong.'
But he is at pains to point out that a statement on affidavit is only for convenience, & if the Ct. is not satisfied, it is always open to the Ct. to request the Minister's personal attendance. Then he deals with the second question & he quotes with approval the observations of Pollock C. B. in the case of Beatson v. Skene (1860) 5 H. & N. 838 : 29 L. J. Ex. 430 :
'We are of opinion that, if the production of a State paper would be injurious to the public service, the general public interest must be considered paramount to the individual interest of a suitor in a Ct. of justice ; and the question then arises, how is this to be determined ?
It is manifest it must be determined either by the presiding Judge, or by the responsible servant of the Crown in whose custody the paper is. The Judge would be unable to determine it without ascertaining what the document was, & why the publication of it would be injurious to the public service--an inquiry which cannot take place in private, & which taking place in public may do all the mischief which it is proposed to guard against.
It appears, to us, therefore, that the question, whether the production of the documents would be injurious to the public service, must ba determined, not by the Judge but by the head of the department having the custody of the paper ; and if he is in attendance & states that in his opinion the production of the document would be injurious to the public service, we think the Judge ought not to compel the production of it. The administration of justice is only a part of the general conduct of the affairs of any State or Nation, & we think is (with respect to the production or non-production of a State paper in a Ct. of justice) subordinate to the general welfare of the community.'
And at p. 641 in this connection he also quotes the remarks of Lord Parker that 'those who are responsible for the national security must be the sole judges of what the national security requires.' Then finally at p. 642 he emphasises the fact that :
'Although an objection vatidJy taken to production, on the ground that this would be injurious to the public interests, is conclusive, it is important to remember that the decision ruling out such documents is the decision of the judge.'
Then he points out what according to him would not be the proper grounds on which privilege should be claimed & he gays (p. 642) :
'It is not a sufficient ground that the documents are 'State documents' or 'official' or are marked 'confidential'. It would not be a good ground that, if they were produced, the consequences might Involve the department or the Govt. in parliamentary discussion or in public criticism, or mighs necessitate the attendance as witnesses or otherwise of officials who have pressing duties elsewhere. Neither would it be a good ground that production might tend to expose a want of efficiency in the administration or tend to lay the department open to claims for compensation.'
And he sums up by saying that (ibid) 'it is not enough that the Minister of the department does not want to have the documents produced.' Then he gives examples of cases where public interest would be damnified if a document was disclosed, & these instances are (p. 642) :
'where disclosure would be injurious to national defence, or to good diplomatic relations, or where the practice of keeping a class of documents secret is necessary for the proper functioning of the public service.'
And the learned Lord Chancellor ends up with these eloquent words (p. 643) :
'After all, the public interest is also the interest of every subject of the realm, & while in these exceptional cases, the private citizen may seem to be denied what is to his immediate advantage, he, like the rest of us, would suffer if the needs of protecting the interests of the country as a whole were not ranked aa a prior obligation.'
20. Now, Mr. Seervai has relied on this decision in order to urge that the earlier decision of the P. C. has been disapproved by the House of Lords & we should accept the House of Lords as laying down the correct law on the question of privilege claimed by the State. The disapproval of the P. C. is to be found in the judgment of the learned Lord Chancellor at p. 641, &, in my opinion, that disapproval is restricted to the conclusion arrived at by the P. C. that in Australia under the relevant rule the Ct. was competent to inspect a document in respect of which privilege was claimed by the State on the ground that its diclosure would be injurious to public interest ; and he gives, with respect, a very good reason why the P. C. decision was erroneous on that point, because he points out that the withholding of documents, on the ground that their publication would be contrary to the public interest, is not properly to be regarded as a branch of the law of privilege connected with discovery. But I do not read the House of Lords' decision as overruling or disagreeing with the other observations made by the P. C. to which I have already referred. Mr. Seervai points out that in the case before the House of Lords the affidavit made by Mr. Alexander, the First Lord of the Admiralty, only stated that he had formed an opinion that the disclosure of certain documents would be injurious to public interest. No further indication was given in the affidavit as to the nature of the public injury or the nature of the document, & Mr. Seeryai says that the House of Lords accepted that affidavit as satisfactory & the opinion of Mr. Alexander as conclusive. No arguments were advanced before the House of Lords as to the sufficiency of this affidavit. The only contention which was considered by the P. C. was whether it was open to the Ct. to inspect the document, & the House of Lords rejected that contention & to that extent held the P. C. decision to be erroneous. Unless the House of Lords had applied their mind expressly to the observations made by the P. C. with regard to the nature of the affidavit to be made by the Minister, I would not be too ready to infer that the House of Lords disapproved a considered judgment of the P. C. In any case, even if there was a conflict between the judgment of the P. C. & of the House of Lords, as the P. C. decision was delivered in 1981, as far as the Cts. in India [are concerned, the P. C.'s decision would have a binding authority to the extent that that decision is applicable in this country. But really I see no irreconcilable difference between the two judgments except, I said before, on the one point as to whether the Ct. can or cannot inspect a document in respect of which privilege is claimed by the State, & on that point there can be no question that as far as our country is concerned we are bound by the statutory provision contained in Section 162, Evidence Act, & the Ct. is precluded from looking at the document. Mr. Seervai has also emphasised the fact that according to Viscount Simon an objection taken by a Minister or a head of the department is conclusive & the Ct. cannot go behind that objection. I do not read the House of Lords' judgment to lay down any such wide proposition. At various places Viscount Simon has emphasised the fact that the objection is conclusive provided it is validly taken. It is, therefore, for the Ct. to determine whether the objection has been validly taken, & it is only if the Ct. comes to the conclusion that the objection taken is valid, that the opinion of the Minister or the head of the department becomes conclusive as to the nature of the document. My brother Bhagwati J. had to consider a similar question in Ghamarbaghwalla v. Y. R. Parpia, : AIR1950Bom230 . In a careful judgment he has considered both the decision of the P. C. & of tbe House of Lords & he has taken the view that the law was correctly laid down by the P. C. & that it was for the Ct. to decide whether a document fell within the category of unpublished official records relating to the affairs of the State, & that in doing so the Ct. could have regard to all the circumstances, barring the inspection of the document itself. The learned Judge further lays down that in claiming privilege under the section, the head of the department should not confine himself to saying that the disclosure of the document would be against public interest but should indicate the nature of the suggested injury to the interests of the public. With respect I agree with this view.
21. Our attention was also drawn to the judgment of the Punjab H. C. in G. G. in Council v. Peer Mohd. A. I. R. 1950 E. P. 228: 52 P. L. R. 153 . There, a F. B. of that Ct. consisting of Khosla, Kapur & Soni JJ. had to consider what was the true effect of the provisions contained in Sections 123, 124 & 162, & they came to the conclusion that the Ct. can hold an inquiry into the validity of an objection on the ground that the document relates to the affairs of State ; it was nevertheless true that once the Ct. came to tbe conclusion that the document relates to affairs of the State, the decision of the head of the department to give or withhold its production must be accepted as final. Therefore, here again, the emphasis was laid on the power of the Ct. to adjudicate as to whether the validity of the objection to the production of the document should or should not be upheld.
22. Applying these principles to the affidavits which have been made by responsible officers of the State, we find that there are throe affidavits, one of Mr. Dehejia, Secretary to the Govt. of Bombay, Home Dept., another of Mr. Bedekar, Secretary to the Govt. of Bombay, Revenue Dept. & the third of Mr. Meher, the Collector of Bombay, and all these officers claim privilege with regard to these documents on the ground that the disclosure of these documents would be injurious to public interest, and the nature of the injury which is indicated in these affidavits is that these documents belong to a class of documents which it is the practice of Govt. departments to keep secret aa such practice is necessary for the proper functioning of the public service. These affidavits have been violently assailed by Mr. Desai and according to him these documents are being deliberately kept back because they are likely to help the cause of the pltfs. and no possible injury to public interest can ariae by disclosure of these documents. It will be noticed that the privilege is claimed not with regard to individual documents but to these documents as a class, and the privilege is claimed on the ground that disclosure of this class of documents would affect the proper functioning of public service. It is pointed out by Mr. Desai that Govt. has already disclosed documents which are communications between heads of departments and it is, therefore, impossible to believe that other similar communications could fall in a class of documents, the disclosure of which would result in the proper functioning of public service being interfered with. It is pointed out that a document has been disclosed by Government dated 31-3-1942, Ex. c, and an identical document Ex. E, one being a draft of the other, which purports to be an order of the Secretary to the Govt. of Bombay, Revenue Department, communicated to the Collector of Bombay, and which order recites that Govt. had decided that the Old Petit Mill site at Tardeo should be requisitioned immediately and the Collector was requested to take the necessary action. In this order, a reference is mado to the correspondence ending with a letter dated 4-8-1942. It is clear that this document constitutes a decision arrived at by Govt. as a result of correspondonce which ended with the letter of 4-3.1942, & what the deponents of the affidavits say is that communications other than those disclosed by Govt. form part of a class of documents which in practice are kept secret and the disclosure of which would affect the proper functioning of the public service. All these officers say that they themselves have perused and carefully considered all the documents contained in the file. I fail to see how, unless the Court were to look at the other documents, it is possible to controvert or go behind the statement on oath made by these officers that all the documents of which discovery is sought belong to this particular class. Mr. Desai says that departmental minutes, or minutes made by Deputy or Assistant Secretaries might be privileged, but it is difficult to understand how communications between heads of departments can be privileged when Govt. themselves disclose certain communications.
23. Now it is clear from these affidavits that all communications between heads of departments are not privileged, nor do the deponents say that all communications necessarily fall within a class where the documents are kept secret. But the deponents do say that all those communications of which discovery is sought do pertain to that particular class, and as I said before, as the affidavits are in proper form wo must accept the oath of these officers' as conclusive. It was open to Mr. Desai's clients to have required the presence of these deponents in Court and they could have further investigated the matter. But the pltfs. chose to accept the oaths made by these responsible heads of departments and it is not now open to Mr. Desai to suggest that these oaths should not be looked upon as conclusive and that the Court should launch upon an independent inquiry as to whether documents are privileged or not. Mr. Desai has relied on certain allegations made by his clients in an affidavit in rejoinder which they made on th& summons for discovery. In this affidavit, a reference is made to a certain memo dated 20th April from the Collector of Bombay and the contents of this memo are set out in this affidavit. According to the deponents this document considerably helps the . case of the pltfs. Mr. Desai says that if we were to look at the contents of this document it would be patent that the document is not privileged and that it is held back merely because it supports the case of the pltfs. and Mr. Desai has in all solemnity made an application before ua that he should be permitted to prove this document and that for that purpose if necessary additional evidence should be taken by this Court. Mr. Desai forgets that if privilege is claimed) by Govt. with regard to the letter of 20-4-1942, as indeed it has claimed, we are precluded from looking at the document or considering: Us contents. The position of the pltfs. does not improve by reason of the fact that they have got hold of a copy of this document by, very likely, some unworthy method. If the original of the document is privileged, surely that privilege cannot be got over by litigants getting hold of copies surreptitiously of the document from the Secretariat and asking the Court to look at the secondary evidence of the document. Parties are sometimes apt to overlook the fact in their, what seems to them, justified indignation that the whole doctrine of privilege is based, as I pointed out earlier, upon public interest, and we must assume, unleaa contrary is shown, that privilege is claimed on that ground. The indignation of the party who may feel that his oauae is being lost by the refusal to disclose the document may be under stood, but there is no legal basis for it and perhaps the indignation would not be so pronounced if the party took the trouble to understand why the Courts are precluded from looking at documents with regard to which the State claims privilege.
24. In our opinion, therefore, the objection to the production of the documents by the Govt. of Bombay was validly taken by the three deponents in their affidavits, and as the objection was properly taken, the Court must uphold the validity of the objection and must grant privilege to the State of Bombay in respect of these documents. Therefore, in our .opinion, the learned Judge was right in making the order that he did on the chamber summons taken out by the pltfs. against deft. 2.
25. Turning to deft. 1, there is also a chamber summons with regard to certain documents, and deft, 1 has also claimed privilege. In the first place, I should like to point out that as far as deft, 1 is concerned, the privilege has not been properly claimed. The privilege has been claimed by one Mr. Bhatia who is merely a head clerk in the employ of the Director of Supplies, Govt. of India. He is neither a minister nor a head of the department, and if privilege was intended to be claimed by the Govt. of India, ib should have been claimed through a proper officer. Therefore, we must deal with the summons taken out by the pltfs. against the Govt. of India on the basis of any other summons taken out against a private party and we must discount any question of privilege that may attach to these documents. Five items are included in the chamber summons against deft. l. With regard to item no. 1, the affidavit in reply points out that these documents are not relevant and they also point out why they are not relevant. Ordinarily, the oath would be conclusive unless there were materials before the Court from which the Court could say that the documents or aome of them are relevant. In this case the pitta, are relying on the fact that the whole of the plot acquired was leased to the Supplies Department and from that fact they want to argue that it was never in the contemplation of the Govt. of Bombay to acquire this plot for police purposes during the war. Therefore, in our opinion, those documents in item No. l which relate to the area of the plot intended to be leased, or in fact leased to the Supply Department should be disclosed by deft. 1. With regard to item No. 2 there is an oath which must be conclusive that these documents are not in existence. Item No. 3 has not been pressed by Mr. Desai. With regard to item No. 4, although an oath has been taken that these documents are not in existence, there is a document on the record which clearly shows that there must be some documents relating to item No. 4 which must be or must have been in possession of the Govt. of India. On the reverse Ex. E there is a draft of a letter to the Controller of Supplies, Bombay, from the Collector of Bombay. Therefore, it is clear that there was correspondence with regard to this land between the Controller of Supplies and the Collector of Bombay. Therefore deft. 1 must disclose all documents relevant to the suit which fall in item No. 4. With regard to item No. 5 deft 1 will also disclose all documents and all entries in respect of rent paid by deft, l to deft. 2 for the occupation of the premises in auit for the purpoae of supplies. Defendant 1 will make an affidavit of documents in the usual form disclosing documents which are is their possession, and if the documents are not in their possession stating when they were last in their possession. The disclosure to be made by deft, l is subject to any claim for privilege which may be properly and validly made by deft. 1, and subject to the claim of privilege which we have already allowed as far as deft. 2 is concerned.
26. Therefore, the order of dismissal will be set aside and the suit will have to be remanded to the learned Judge. The pltfs. will be allowed to amend the plaint in terms of the draft put in by them. The amendment muab be made within a fortnight. Plaintiffs to pay all costs of and incidental to the amendment
27. Liberty to the defts. to file any supplementary written statement if so advised. If the supplementary written statement is filed, costa of and. incidental to the written state-ment be be borne by the pltfs. Written state, ment to be filed within a fortnight of the amendment of the plaint.
28. The learned Judge has given his findings on the various issues raised by him. He will have to reconsider these findinga in the light of the judgment just delivered. We muat set aside the finding of the learned Judge on issue 3 that the suit is barred by limitation & his finding that the pltfs. are precluded from challenging the validity of the two orders by reason of the agreement entered into by them with the Govt. The learned Judge will resettle the issues in the light of the judgment and in the light of the amendment of the plaint which we have allowed, and after trying the suit he will give the proper findings on the issues so resettled by him. With regard to issue 21, the learned Judge has held that the pltfs.' claim for damages is barred by reason of the fact that the orders were held to be bona fide and also by reason of Section 17, Defence of India Act. No reasons are given by the learned Judge in his judgment. This finding will be set aside and the learned Judge will consider afresh, in the light of the conclusion he arrives at on the pltfs'. contention that the orders are invalid, whether they are entitled to any damages as claimed by them in the plaint. The learned Judge has given his findings against the pltfs. on issues 6 to 10, 12, 13, 16, 19, 20 and 22. These findings have been given on the evidence led before the learned Judge and on the state of the record as he had before him. We will request the learned Judge to reconsider these issues in the light of the amendment of the plaint and in the light of any further evidence led by the plaintiffs.
29. On the question of costs, the applts. have succeeded on certain of the points urged by them against the findings of the learned Judge and on other points they have failed. But the fact remains that they have induced this Court to set aside the order of dismissal which the learned Judge passed against them. To that extent the appeal has been successful and it must in some measure be rewarded with costs. In our opinion,tthe fairest order for costs which we can make is that the resps. will pay to the applts. 'half the costs of the appeal. With regard to the costs of the suit which have been awarded against the pltfs., that order of costs will be set aside and the learned Judge when disposing of the suit will also dispose of the question of the coats of the suit.
30. I concur. As regards the question of privilege, I only wish to reaffirm what I said in my judgment in Chamarbaghwalla v. Parpia, : AIR1950Bom230 , which has found approval in the judgment just delivered by my Lord the Chief Justice.