REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.   3627            OF 2008 (Arising out of SLP (C) No.23522 of 2004)

Municipal Corporation, Hyderabad … Appellant

Versus

Sunder Singh … Respondent

J U D G M E N T

S.B. Sinha, J.

1. Leave granted.

2.  This appeal is directed against a judgment and order dated 8.4.2004

whereby and whereunder the High Court of Judicature at Hyderabd set aside

the  judgment  and  order  dated  24.4.1998  passed  by the  VII  Senior  Civil

Judge, City Civil Court, Hyderabad in O.S. No. 573 of 1991 and remanded

the matter back to the learned trial judge.

Devi  Singh  is  the  predecessor-in-interest  of  the  respondent.   The

original  dispute between the parties centered round 1250 square yards of

land purported to be situated in a market called ‘Maidan Bazaar Jamerath’

situate  at  Karvan  Aspan  and  bounded   on  the  east  by canal  and  police

station,  on  the  west  by  ‘Bakar  Mandi,  on  the  north  by  cement  road,

graveyard and huts belonging to the plaintiff and on the south by land, huts

and graveyards belonging to the plaintiff.  It was said to be the ancestral

property of the plaintiff and was owned by him having been purchased by

his ancestors.

In  the  said  suit,  Devi  Singh  sought  for  permanent  injunction

restraining  the  appellant  herein  from  interfering  with  his  peaceful

possession  and  enjoyment  over  the  said  property.   The  said  property

consisted of open land.   

The  said  suit  was  decreed  on  or  about  9.4.1960.   An  appeal  was

preferred  thereagainst  by  the  appellant,  which  by  a  judgment  and  order

dated 16.2.1967 was allowed by the High Court of Andhra Pradesh.   

3. Devi Singh preferred an appeal  before this Court.   The fact  of the

matter has been discussed in details by this Court in a judgment reported in

Devi Singh v. Municipal Corporation, Hyderabad [(1973) 4 SCC 66].   

2

From a perusal of the said judgment, it appears, that a purported claim

was made by Dhan Singh over 2750 square yards bearing Survey Nos. 5943

and 5944 situated  at  Karwan Aspan on the premise that  he had filed  an

application before the competent authority in the year 1921 stating that the

same  had  fallen  into  the  prohibited  area.   Indisputably,  the  property

involved  in  the said  suit  had  been  acquired  and compensation  had  been

awarded to Dhan Singh for 1250 square yards and not for the entire plot of

the area which is said to be 2750 square yards.  This Court found that the

plot for which compensation had been paid to Dhan Singh for an area of

1250 square yards was far removed from the Bazaar and there were several

other  plots  which  intervened.  It  was  furthermore  noticed  that  it  was

somewhat difficult on the present state of the record to reconcile the case of

the defendant Corporation that the entire area covered by the sale deed had

been acquired for which compensation had been paid to Dhan Singh with

the  relative  situation  of  the  Bazaar  and  the  plot  measuring  1250  square

yards.  It was held:

15. It is difficult to ignore the entire proceedings before the Sarfe-Khas and the documentary evidence according to  which  possession  was  given  of  the  land  or  the property including the Bazaar by the Sarfe-Khas to the plaintiff  after  a  full  investigation  of  his  claim  in  the matter.  There  was  no  allegation  that  all  those proceedings were without jurisdiction or were collusive although it has now been suggested before us on behalf of  the  defendant  Corporation  that  the  Sarfe-Khas

3

Department  had  ceased  to  exist  in  February  1949  by virtue of the Sarfe-Khas Merger Regulation 1358 Fasli. There  is  no  indication  in  the  orders  of  the  various authorities including that of the Minister that the Sarfe- Khas had ceased to have any jurisdiction about deciding whether  the  property  over  which  the  Sarfe-Khas  laid claim was the property of a private individual or was part of  the  personal  estate  of  the  erstwhile  Nizam  of Hyderabad.

16.  It  has  been maintained before  us  on behalf  of  the plaintiff  that  the  orders  made  by the  Sarfe-Khas  were admissible  and  relevant  under  Section  13  of  the Evidence Act.  These points  were not  gone into  by the courts below and have still not been decided and we do not  wish  to  express  any  opinion  on  them.  The agreements to which reference has previously been made by us and which were not produced by the Corporation before the trial court would have also thrown a good deal of light on the points in controversy. In our judgment this is a fit case in which a remand is necessary to the trial court. The trial court shall decide the matter afresh only on issues relating to  title  and possession of the parties with  the  exception  of  such  legal  points  which  have already been disposed of by us. Both the parties will be at liberty to ask for such amendments  in the pleadings may be strictly necessary for clarification on the question of title and possession. But no such pleas will be allowed to  be  introduced  which  may change  the  nature  of  the case. Fresh evidence can also be adduced confined only to these two matters by both sides. It will be for the trial court to get a complete investigation made with regard to the  various  matters  already  mentioned  by  us  by  a Commissioner if any of the parties make an application in that behalf. Both sides have expressed willingness to produce before the trial court all such documents which are  relevant  and  which  are  in  existence  to  enable  the court to dispose of the question of title and possession of both the parties in a satisfactory manner.

4

4. Devi Singh died.  Thereafter, his heirs and legal representatives were

brought  on  record.   Admittedly,  no  amendment  had  been  sought  for

pursuant to or in furtherance of the observations made by the Court.  Parties,

however, adduced additional oral and documentary evidence.   

5. The  suit  was  again  decreed  in  favour  of  the  respondents.

Thereagainst, an appeal was preferred which was marked as C.C.C.A. No.

112 of 1975.  By reason of a judgment and order dated 20.7.1979, the said

appeal  was  allowed.   No  further  appeal  was  preferred  thereagainst.   It,

therefore, attained finality between the parties.   

6. Respondents  herein,  however,  on  or  about  3.6.1991 filed O.S.  No.

573 of 1991 for title and possession of the property, the description whereof

is as under:

“SCHEDULE OF PROPERTY

All that  the  property admeasuring      sq.  yards situated  at  Jumerath  Bazar,  Hyderabad  and  is bounded by  

North : Plaintiff’s property and Main Road (cement);

South : Remaining property of the plaintiff;

5

East : Nalla and Plaintiff’s property;

West : Remaining property of plaintiff.

7. A  decree  was  prayed  for  grant  of  a  permanent  injunction  and  a

direction  upon  the  respondent  –  Corporation  to  render  accounts  for  the

amounts  realized  by  wrongful  auction.    Admittedly,  an  interlocutory

application was filed therein for adducing secondary evidence of documents

purported to have been marked in the said O.S. No. 7 of 1959.   

The said application was dismissed.  By a judgment and order dated

24.4.1998,  the  said  suit  was  dismissed.   An  appeal  was  preferred

thereagainst  which  by reason  of  the  impugned  order  dated  8.4.2004  has

been allowed and as noticed hereinbefore, remitted to the trial court..   

8. Mr.  L N. Rao,  learned Senior  Counsel  appearing  on  behalf  of  the

appellant would submit that keeping in view the earlier round of litigation

the findings of the fact arrived therein must be held to have attained finality

and thus the High Court has committed a grave error in setting aside the

judgment of the learned trial judge and remanding the matter back to it.  It

was urged that in the earlier round of the litigation not only the question of

title but also possession having been gone into in respect of the self same

property, the impugned judgment should not have been passed.  

6

9. Mr.  M.N. Rao,  learned Senior  Counsel  appearing  on  behalf  of  the

respondent,  on  the  other  hand,  would  contend  that  having  regard  to  the

provisions contained in Order XLI Rule 23 of the Code of Civil Procedure

as amended by the State of Andhra Pradesh as also in view of the fact that

the properties are different, the second suit was maintainable.  It was urged

that  as  some vital  documents  had  been  missing,  a  prayer  was  made  for

adduction  of  secondary evidence  in  respect  of  the  documents  which  had

been relied upon by the appellant – Corporation in the earlier suit itself.   

It  was  pointed  out  that  by  an  interim  order  dated  27.8.1998,  the

appellant – Corporation has been receiving a sum of Rs.5,000/- per week

from the respondent and thus this  Court  may not  exercise its  jurisdiction

under Article 136 of the Constitution of India.   

Order XLI Rule 23 of the Code reads thus:

“Remand of case by Appellate Court.—Where the  Court  from  whose  decree  an  appeal  is preferred  has  disposed  of  the  suit  upon  a preliminary  point  and  the  decree  is  reversed  in appeal, the Appellate Court may, if it thinks fit, by order remand the case, and may further direct what issue  or  issues  shall  be  tried  in  the  case  so remanded, and shall send a copy of its judgment and  order  to  the  Court  from  whose  decree  the appeal  is  preferred,  which  directions  to  re-admit the suit under its original number in the register of civil suits, and proceed to determine the suit; and the evidence (if any) recorded during the original

7

trial shall, subject all just exceptions, be evidence during the trial after remand.”

The amendment which is applicable for the State of Andhra Pradesh

is same as that of the State of Madras, which reads as under:

“(a) After  the words  “the decree is  reversed in appeal”, insert the words “or where the Appellate Court  in  reversing  or  setting  aside  the  decree under appeal considers it necessary in the interest of justice to remand the case”; and

(b) delete the words “if it thinks fit”, occurring after the words “the Appellant Court may”.”

10. Order  XLI  Rule  23  would  be  applicable  when  a  decree  has  been

passed on a preliminary issue.  The appellate court must disagree with the

findings of the trial court on the said issue.  Only when a decree is to be

reversed in appeal,  the appellate court considers it  necessary, remand the

case in  the interest  of  justice.   It  provides  for  an enabling provision.   It

confers a discretionary jurisdiction on the appellate court.

11. It  is  now well  settled  that  before  invoking  the  said  provision,  the

conditions precedent laid down therein must be satisfied.  It is further well

settled that the court should loathe to exercise its power in terms of Order

XLI Rule 23 of the Code of Civil Procedure and an order of remand should

8

not be passed routinely.  It is not to be exercised by the appellate court only

because it finds it difficult to deal with the entire matter. If it does not agree

with the decision of the trial court, it has to come with a proper finding of its

own.  The appellate court cannot shirk its duties.   

12. The issues which were framed by the trial court are as under:

“1. Whether plaintiff has got title to the suit property?

2. Whether plaintiff is entitled to recover possession of the property shown in green colour of the plaint rough sketch?

3. Whether  the  defendant  is  liable  to  render accounts?

4. Whether  plaintiff  is  entitled  for  injunction  in respect of the vacant site of 2790 square yards?

5. Whether the suit is not maintainable?

6. To what relief?”

13. The High Court  noticed the  contentions  of  the respondent  that  the

trial  court  ought  not  to  have  rejected  the  interlocutory  application  for

adduction of secondary evidence.  It was contended that a second suit was

filed only because despite liberty granted by the Supreme Court, the plaint

was not amended.  Even therefore, the scope of amendment was limited.  No

new case was to be made out.  

9

14. The High Court framed the following question for its consideration,

namely, as to whether it is just and proper to look into the merits of the case

in the absence of secondary evidence sought to be adduced by the plaintiff.   

While upholding the contentions of the appellant that it was not open

to the respondent to file a present suit and even if the documents are taken

into  consideration  the  same would  not  create  any  difference  of  opinion

before the trial court, having regard to the binding nature of the judgment of

the High Court, it was held:

“I am of the opinion that though there is a force in the  contention  of  the  learned  counsel  for  the defendant, but the fact remains that the trial Court also  relied  on  some  of  the  earlier  documents mentioned  in  CCCA  No.112  of  1975  without receiving them into evidence.”

It was furthermore opined:

“It is not just and proper to deal with the merits of the case as it may act adversely to the interest of her respective parties.  I am of the view that the present suit was filed for declaration of the title in respect of the Item No.1 of the plaint schedule of properties  and  for  recovery  of  the  possession  of mesne profits.   It  is  stated that  item No.1 of the suit land was covered by the Jumerath Bazar and Devi  Singh  has  lost  the  title  in  respect  of  1250 square yards as held in the earlier litigation filed for  injunction.   The  title  of  the  Devi  Singh  in

10

respect of the other property was not at all decided in the earlier suit and it is the case of the plaintiff that unless Exs.B-1 to B-80 and Exs. X-1 to X-47 documents which are printed book filed before the Supreme  Court  are  received  as  secondary evidence,  it  will  amount  to  deprive  the  valuable right of the plaintiff to lead secondary evidence to substantiate his contention in the plaint.  The trial court having rejected the request of the plaintiff to lead secondary evidence, held that barring exhibits filed  in  the  suit,  the  plaintiff  did  not  file  any documentary  evidence  either  with  regard  to  his possession or with regard to any part  of the suit schedule property or about his possession in 1940 or  delivery  of  possession  by  the  M.C.11  as contended  by  him  and  the  judgment  in  CCCA No.112 of 1975 has become final.  The Trial Court further held that the plaintiff has not filed a scrap of paper to establish his possession in respect of item  ‘A’  of  schedule  property  of  2790  square yards.”

It was furthermore opined:

“The  documents  sought  to  be  filed  cannot  be marked by this Court in view of the disputed facts and the said documents have to be marked by way of  adducing  secondary  evidence,  which  will subject to the objections and cross-examination by the defendant.  Therefore, I am of the opinion that it is a case to remand to trial Court.  It is just and proper for the trial Court to consider the request of the plaintiff to receive the secondary evidence in accordance  with  law.   Therefore,  it  is  just  and proper to mark the documents, relied on by both the parties in the earlier suit and consider the same which  were  already considered  by  this  Court  in CCCA No.112 of 1975.  If authenticity of any of the  documents  in  the  book  prepared  by  the

11

Supreme Court  is  doubted,  it  is  always open for the  defendant  to  take  an  objection  and  also confront the said document to the witness of the plaintiff.

I am of the view that an opportunity should have been given to the plaintiff and  the plaintiff cannot be thrown out  from giving an opportunity in the peculiar facts and circumstances of the case to lead secondary evidence  and therefore,  without  going into all other questions and without expressing any view on the merits of the case, I am of the view that it  is just and proper to remand the matter to permit the plaintiff and also the defendant to lead secondary  evidence  in  respect  of  the  documents sought to be filed by them.”

With respect, the approach of the High Court was not correct.  It for

all intent and purport failed to perform its duties.  

15. In the earlier round of the litigations, the Division Bench of the High

Court arrived at its own conclusion.  One of the questions which fell for

consideration  of  the  Division  Bench  was  as  to  whether  as  regards  the

identity  of  the  land  acquired  by  the  City  Improvement  Board  and  to

determine whether Dhan Singh had been paid compensation for whatever

land he had been possessing, it was held:  

“Ex.D-5 passed by the Compensation Court in  the  year 1915,  Dhan Singh did not  make any other  claim  for  compensation.   This  will probabilise  that  if  really  he  was  owning  any

12

greater extent of property, he would have claimed compensation  such  large  extent  of  property  as well.   The  absence  of  such  a  claim is  a  strong probability  that  he  was  not  owning  any land  in excess of 125 (sic for 1250) sq. yards, for which compensation  was  provided  and  paid  to  him. Dhan Singh made a claim for some plot  bearing No.5945/D adjacent to the slaughter house under Ex.D-10.   He would  appear  to  have  also  filed  a plan along with the petition but the identity of that plenary is  left  obscure.   There is  no evidence in identification  as  to  how  the  claim  made  under Ex.D-10  was  but  however  claimed  that  Dhan Singh made an admission even then that the plot bearing No.5945/D was also within the prohibited areas.”

16. The standard of proof applicable in a civil suit is the preponderance

of probability.  The question had been determined having regard to the fact

that the predecessor-in-interest of the respondent confined its case only to

1250 square yards of land.  The effect of the judgment of the earlier suit has

been taken note of.  The High Court furthermore noticed the contention that

Dhan Singh should have been paid compensation for the entire 2750 square

yards  of  land,  but  the  fact  remains  that  they  had  never  claimed  any

compensation for any land beyond 1250 square yards and in the said factual

backdrop, it was held:

“We  have  carefully  analysed  the  evidence regarding  possession  which  consists  of  both documentary and oral evidence.  These documents relate to the period 1928 to 1954.  Ex.D/7 of the

13

year 1928 gives indication that the Sarfekhas was collecting some rents on the Jumerath Bazar area and the City Improvement Board was requesting the  Sarfekhas  Authorities  to  hand  over  all  such rents  collected  by  them,  and  they  have  also informed the Sarfekhas that the property belonged to the City Improvement Board.  In the year 1929, some merchants in hide sand skins would appear to have been using portion of the land on the bank of the river Musi for conducting their trade.”

Upon considering the entire documentary evidence, it was held:

“The Sarfekhas was evidently proceeding on the basis that the suit property was part of  Kivan Jung and  the  City  Improvement  Board  was  claiming that all rents realized from Zumerath Bazar should be credited to the accounts of the Board.  It is no doubt  true  that  in Ex.X-1 reference is  made that the  Chowda  Bazarath  was  handed  over  to  the Municipality in the year 1946, but it  looks to us that the suit property would not have been a part of this Chowda Bazar for two reasons.  The first reason is  that  it  was specifically  mentioned as a separate item when the contract was given to Fateh Mohammad and no reference was made at all  to Jumerath  Bazar  in  the  contracts  given  either  to Shaik Dawood or Shaik Yakub Saheb.  Secondly Ex.X/1 include the suit property as a separate item under the  list  of  gardens  and lands.   In the  oral evidence, it is no doubt elicited, that this Jumerath Bazar is included as one of the Chowda Bazarath and  that  these  markets  was  handed  over  to  the Municipality in the year 1946 under the agreement executed  between  the  Sarfekhas  and  the Corporation.  It is argued for the respondents that an adverse reference should be drawn against the Corporation for not producing the agreement.  It is also  contended  that  the  circumstances  would negative  the  title  put  forward  on  behalf  of  the Corporation.   We find  no  substance  in  either  of

14

these contentions. In Ex. X-1, itself a remark was made  that  notwithstanding  the  execution  of agreement  between  the  Corporation  and  the Sarfekhas  authorities,  the  Corporation  has  not been  paying  any  amount  ever  since  the  amount came into existence.  That would indicate that the agreement was not acted upon by the Corporation so far as at least the suit property is concerned.  In the nature of things when the title of the property belonged  to  the  Corporation  after  it  was handed over to its management by the City Improvement Board,  the  suit  property  would  not  have  been mentioned  in  the  agreement  referred  to  by  the plaintiffs.   The  oral  evidence  discloses  that  the original  agreement  is  with  the  Sarfekhas authorities  to  produce  the  records.   The original agreement  is  with  the  sarfekhas.   It  was  the plaintiff  that  summoned the sarfekhas authorities to  produce  the  records.  The  original  agreement available  with  the  sarfekhas  has  not  been produced.  No adverse inference can therefore, be drawn against the Municipality that it has no title to  the  property  or  that  it  recognized  the  title  of sarfekhas to the property.  We have earlier stated that the plaintiff did not claim title to the property through the Sarfekhas and that even the sarfekhas authorities,  who  claimed  title  to  the  property  as forming  part  of  the  Kivan  Jung,  have  given  up their claim by about the year 1949.”

The Division Bench furthermore took into consideration the fact that

the acquisition took place long time back and thus some papers might have

been lost or removed and the absence thereof in the file could not throw any

suspicion on the authenticity of the vesting which took place during those

years.  The Division Bench concluded its judgment, stating:

15

“We  have  earlier  given  reasons  that  it  was  the corporation that was in possession of the property and not  Devi Singh was making efforts to  come into  possession  of  the  property  by  making  false assertion that he was the owner of the property and that  his  property  was  extending  upto  the  police station  challenging  the  east.   The  circumstances remains  to  that  though he filed  the  original  sale deed  Ex.P.12,  he  has  not  produced  the  plan attached thereto in this suit.  We are not satisfied that  the  said  plan  continued  to  remain  in possession  of  the  Serfekhas  authorities  before whom he would appear to have produced it.  When he is having the custody of Ex.P.12 original,  the normal  presumption  is  that  he  would  also  be having custody of the plan which formed part of Ex.P.12.  The suit for injunction was filed by Devi Singh shortly after the proceedings under Sec.107 Cr.P.C. initiated against him ended in his favour and it is common ground that ever since he filed the suit, interim injunction issued in his favour has been  in  force.   Any  act  of  possession  after  the issue of the said interim injunction will not assist Devi Singh’s claim to have been in possession of the property on the date of the suit in any manner.

The plaintiffs have not therefore established their title to the property.  They have not  also proved their possession in the suit property on the date of the  suit.   The  order  passed  by  the  Sarfekhas Authorities  are  invalid  and  do  not  bind  the Corporation  in  any  manner.   It  is  true  that  the corporation  has  proved  effectively  possession  of the property only from the year 1946 but they have established  their  title  to  the  property.   The plaintiffs who have no title to the property cannot get any injunction  against the Corporation who is the real owner of the property even if it were to be assumed that  the plaintiffs were in possession of the property on the date of the suit.  The acts of possession  indulged  in  by  the  plaintiffs  are

16

fugitive  in  character  and  do  not  establish  their possession in any manner.”

17. The learned trial judge in its judgment and order dated 24.4.1998 in

O.S. No. 573 of 1991 referred to in extenso the earlier judgment of the High

Court to arrive at the following finding:  

“After discussing the various aspects it  was held that in 1915 Dhan Singh did not make other claim except in respect of 1250 sq. yds. relating to the lands  bearing  Nos.5943  and  5944  in  respect  of compensation.  This will probablise that if really he was owning any greater extent of property, he could  have  claimed  compensation  for  the  larger extent  of  property  as  well.   The  absence  of  the such a claim is a strong probability that he was not owning any lands in  excess  of 1250 sq.  yds. for which  compensation  was  provided  and  paid  to him.  Though Dhan Singh made a claim for some plot bearing No.5945/D adjacent to the slaughter house; he made an admission that the said plot was also within the prohibited area.  It was further held that the fact remains even if Dhan Singh had any title  to  the  plot  bearing  No.5945/D  it  became extent  (sic)  when  it  was  acquired  by  City Improvement Board in about the year 1920.  Dhan Singh made claim stating that the extent involved in his property Nos.5943 and 5944 was 2750 sq. yds.  and  not  1250  sq.yds.  and  that  the compensation court  was not  correct  in deducting the amounts towards nuzul.”

17

It furthermore held that the property covered by Exh. A-8 was only

1250 square yards and nothing more and the claim of the plaintiffs in the

said  suits  with  regard  to  5410  square  yards  appeared  to  be  highly

improbable.  It was furthermore stated:

“If  Dhan  Singh  who was  claiming  under  Ex.A8 previously only 2750 sq.yds. in property Nos.5943 and  5944  as  against  1250  sq.yds.  fixed  by  the compensation court  and when the claim of 2750 sq.  yards  was  disallowed  confining  his  right  to 1250 sq. yds. was acquired by City Improvement Board and compensation was paid to Devi Singh, the father of the plaintiff’s is not in dispute.”

The  learned  trial  court  furthermore considered  the  evidence  of  the

plaintiff who examined himself as PW.2 stating:

“According to him suit property is 5410 sq. yds. out  of  which  the  black  colour  area  admeasures 2790 sq. yards which is in his possession and the green colour portion was forcibly occupied by the Municipality.  The red colour portion also belongs to him.  He admitted about previous litigation and the decree passed in O.S. 7/59 and the same being set  aside  under  Ex.B-1  by  the  High  Court. According to him Nizam Government took away his  property  from  his  ancestrals  somewhere  in 1940’s subsequently the property was released.  It is  pertinent  to  mention  that  he  did  not  file  any documents.”

18

18. Noticing that neither  the original  plaintiff  nor the respondents  who

were substituted in place of Devi Singh had not amended the plaint in the

previous suit, it was held that the evidence on either side is very meagre in

the said suit.   The said suit  was held to be barred under Order II Rule 2

stating  that  the  plaintiff  ought  to  have  prayed  for  the  declaration  in  the

previous suit itself.   

19. A distinction must be borne in mind between diverse powers of the

appellate court to pass an order of remand.  The scope of remand in terms of

Order XLI Rule 23 is extremely limited.   The suit  was not  decided on a

preliminary issue.  Order XLI Rule 23 was therefore not available.  On what

basis, the secondary evidence was allowed to be led is not clear.  The High

Court did not set aside the orders refusing to adduce secondary evidence.  

20. Order  XLI  rule  23A  of  the  Code  of  Civil  Procedure  is  also  not

attracted.  The High Court had not arrived at a finding that a re-trial was

necessary.  The High Court again has not arrived at a finding that the decree

is  liable  to  be  reversed.   No  case  has  been  made  out  for  invoking  the

jurisdiction of the Court under Order XLI Rule 23 of the Code.

19

An order of remand cannot be passed on ipse dixit of the court.  The

provisions of Order II Rule 2 of the Code of Civil Procedure as also Section

11 thereof could be invoked, provided of course the conditions precedent

therefor were satisfied.  We may not have to deal with the legal position

obtaining in this behalf as the question has recently been dealt with by this

Court in Dadu Dayalu Mahasabha, Jaipur (Trust)  v. Mahant Ram Niwas &

anr.(Civil Appeal No. 3495 of 2008) disposed of on 12.5.2008.   

21. We are, therefore, of the opinion that the impugned judgment cannot

be sustained.  It is set aside accordingly and the matter is remanded back to

the High Court for consideration of the appeal  on merits.  The appeal  is

allowed with the aforesaid directions.  

In the facts and circumstances of the case, however, there shall be no

order as to costs.

……………….…..………….J. [S.B. Sinha]

..………………..……………J. [Lokeshwar Singh Panta]

20

New Delhi; May 16, 2008

21