IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 5555-5556  OF 2008 (Arising out of SLP(C) Nos.25934-25935/2005)

MAHANT RAJENDRA DAS VAISHANAV .......APPELLANT(S)

VERSUS

GOPAL DAS & ORS           ......RESPONDENT(S)

O R D E R

Heard the parties.

There is a delay of 3677 days.  The appellant has shown sufficient

cause to condone the delay.  When the decision was rendered by the High

Court  on  10.3.1995,  an  appeal  was  maintainable  and  accordingly  the

petitioner had filed LPA NO.47/1995 before the Division Bench of the

Madhya Pradesh High Court. During the pendency of the said appeal this

Court in Jamshed N. Guzdar Vs. State of Maharashtra & Ors., - (2005) 2

SCC 591 held that the LPAs were not maintainable.  As a consequence,

the  said  LPA  No.47/1995  was  dismissed  as  not  maintainable  on

17.8.2005  reserving  liberty  to  the  petitioner  to  avail  other  remedy

available  to  him  in  law.   Immediately  thereafter,  on  4.10.2005,  the

petitioner  filed  this  present  special  leave  petition  along  with  an

application for condonation of delay.  As the petitioner   was   pursuing

a remedy  by way of an intra-court appeal in the same High Court which

was subsequently held to be not maintainable, the entire period of delay

has  to  be  condoned.   Accordingly,  we  allow  I.A.  No.1  of  2005  and

condone the delay.

Leave granted. Heard parties.  

The first respondent in Writ Petition No. 1365 of 1992 on the file

of Madhya Pradesh High Court, Gwalior Bench, filed under Article 227

of the Constitution of India is the appellant in these appeals by special

leave.

The first respondent herein had filed the said petition against the

order dated 25.5.1992 passed by the Board of Revenue dismissing the

Revision against the order dated 31.7.1991 passed by the Sub Divisional

Officer, Sheopurkala.  The said writ petition was allowed by order dated

10.3.1995.   The  reason given  for  allowing the  writ  petition,  stated  in

paragraph 6 of the order of the High Court is extracted below:

“The learned counsel for the petitioner submits that in view of the order  dated  29.1.1985  passed  by  the  Supreme  Court  of  India, which  has  been  modified  by  order  dated  22.2.1985  the  issue regarding Mahant Ship has been determined and no inquiry can be held in the regard.  The interpretation made by the learned counsel for the petitioner is right.  The order of the  Supreme Court  as modified  by  order dated 22.2.1985 says in  positive terms that Gopaldas 'has to be' appointed as Mahant.  this leaves no option. The  learned  counsel  for  the  respondents  has  argued  that  the intention of the Supreme Court was that the appointment has to be made  in  accordance  with  law.  This  does  not  seen  to  be  the

2

intention.  In view of the imperative language used in the order the intention is clear.  The petitioner has to be appointed as Mahant.”

It  is  thus  clear  that  the  writ  petition  was  allowed  only  on  the

ground that this Court by its order dated 29.1.1985 (as modified by order

dated 22.2.1985) had made an observation that on the death of Mahant

Prashramdas, the first respondent has to be appointed as Mahant.   The

High Court was of the view that the order dated 29.1.1985 as modified

by order dated 22.2.1985 of this Court was binding and therefore it had

to merely hold that first respondent had to be appointed as the Mahant of

the institution.

We however find that neither order dated 29.1.1985 nor the order

dated 22.2.1985 of this Court adjudicated any issue, much less made any

considered order that first respondent should be the Mahant.  The order

dated 29.1.1985 reads thus:

“It is stated by the learned Counsel for the appellants that Mahant Parashram Das has died and after  his  death,  Gopaldas has been appointed as Mahant.  This makes it unnecessary for us to go into the   question  raised  in  these  appeals.   No orders  are  therefore, passed in these appeals.”

The  order  dated  22.2.1985  clarifying  the  order  dated  29.1.1985

reads thus:

“This Court's earlier order dated January 29, 1985 is modified to the extent that instead of the words 'has been' in line 3, the words

3

'has to be' are substituted.”

In the absence of any adjudication it cannot be said that there was

a direction by this Court that the first respondent should be appointed as

Mahant.  In fact, this Court, by order dated 1.12.1995 clarified that the

orders dated 29.1.1985 and 22.2.1985 were not orders deciding the issue

of succession to Mahantship.  The said order is extracted below:

“The order of this Court in Civil Appeal Nos. 1049 and 1527 of 1970  dated  29th January,  1985  modified  by  the  order  of  22nd February, 1985 has led to the High Court passing the impugned order stating that  the  meaning of this  Court's order  can best  be interpreted  by  this  Court  itself.   It  also  granted  appellant  an opportunity  to  approach  this  Court  for  that  purpose.   We  have looked into the order of 29th January, 1985 modified by the order of 22nd February, 1985 and we clarify that by this the Court merely declined to interfere but did not foreclose the inquiry.  The matter will go back to the High Court for further orders. The appeal will stand disposed of accordingly with no order as to costs.”

This Court made it clear that the inquiry was not foreclosed.

In view of the above, it is clear that the High Court could not have

allowed  the  writ  petition  without  examining  the  matter  on  merits  by

assuming that  this  Court  had  decided the  issue  and  nothing  therefore

remained for consideration.   

We,  therefore,  allow  these  appeals,  set  aside  the  order  dated

10.3.1995 passed in W.P. No.1365/1992 and remit the matter to the High

4

Court for fresh disposal of the writ petition on merits in accordance with

law.

Learned counsel  for  the  first  respondent  submitted that  the first

respondent is very old, that the dispute in regard to succession has been

pending for nearly five decades and the present litigation itself  has been

pending  for  more  than  two  decades  and  therefore,  there  may  be  a

direction to the High Court to dispose of the matter early.  We find that

the writ petition is of the year 1992.  We are sure that the High Court

will, therefore, consider and dispose of the writ petition on merits at an

early date, at all events within four months from today. Learned counsel

also  submitted  that  there  are  two  connected  appeals  before  the  High

Court. It is open to the first respondent to request the High Court to take

up and dispose of those appeals along with the writ petition, if they are

connected appeals.

  ….......................................J.    ( R. V. RAVEENDRAN )

  ............................................J.   ( DALVEER BHANDARI )

New Delhi; September 04, 2008.          

5