REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NOs.  6192-6197         OF 2008 [Arising out of SLP (Civil) No. 22073-22078 of 2005]

Rikhabsao Nathusao Jain …Appellant

Versus

Corpn. of the City of Nagpur & Ors. …Respondents

J U D G M E N T  

S.B. SINHA, J :

1. Leave granted.

2. Width and amplitude of jurisdiction of the District Judge in terms of

Section 286 (5) of the City of Nagpur Corporation Act, 1948 (for short “the

Act”)  is  in  question  in  these  appeals  which  arise  out  of  judgments  and

orders  dated  24.09.2004  and  6.04.2005  passed  by  the  High  Court  of

Judicature at Bombay, Nagpur Bench.

3. The dispute between the parties herein arose due to refusal to grant

sanction  of  a building  plan filed by respondent  No.  2.   Appellant  is  his

neighbour.  Appellant is owner of a house bearing No. 585 and respondent

No. 2 is owner of a neighbouring house bearing No. 586.   

4. A part of the land on which the constructions were said to have been

raised by respondent No. 2 belonged to the Corporation of City of Nagpur

(for short “the Corporation”) itself.  Respondent No. 2 and his predecessors,

however, are said to be in possession thereof for a long time and acquired an

indefeasible title thereto.

5. Respondent No. 2 allegedly had submitted a plan for construction of a

building.  It was not approved within a period of sixty days.  On the premise

that  the  said  plan  would  be  deemed  to  have  been  sanctioned,  he  raised

constructions.   Appellant  filed  an  application  before  the  District  Judge,

Nagpur in terms of Section 286(5) of the Act on or about 1.08.1983, inter

alia for the following reliefs:

“(i)  Grant  of  mandatory  injunction  against  the non-applicant  No.  1  and  2  directing  them  to remove the un-authorised  & illegal  work carried out  by them and restraining them in future from

2

undertaking  any  authorized  and  illegal  work  in contravention  of  the  provisions  of  Nagpur Corporation Act and the by-laws made thereunder. (ii) Injunction restraining the non-applicant NO.1 from giving  sanction  to  the  building  proposal,if any, submitted by non-applicant No.2 without first deciding the objection raised by the applicant; (iii) Injunction restraining the non-applicant No.1 from giving  sanction  to  extension,  modification, alteration,  constructions  or  such  other  things  in future, without first hearing the applicant.”

  Appellant  also  filed  an  application  seeking  an  interim  order  of

injunction  restraining  respondent  No. 1  – Corporation  from granting any

sanction of building plan submitted by respondent No. 2 as also an order of

injunction restraining him from proceeding with illegal construction.   

6. Respondent No. 1 – Corporation in its written statement before the

learned District Judge contended that the plan submitted by respondent No.

2 was not in conformity with Bye-Law No. 4 of Building Bye-Laws.  It was

furthermore  contended  that  the  said  plan  had  been  returned  to  him  on

4.08.1983.

3

7. The said  application  was  transferred to  the Court  of  Second Extra

Assistant  Judge.   It  was  heard  on  or  about  3.10.1983  and  posted  for

judgment on 12.10.1983.  As on the said date, the Presiding Officer was on

leave, the matter was posted for judgment on 21.10.1983.  By an order dated

21.10.1983, the learned Judge passed the following order:

“…Hence  by  invoking  the  principle  of  natural justice and the inherent powers vested in me under Section 151 of the Civil Procedure Code, I hereby direct  the  Non-applicant  No.  1  Corporation through its Administrator to consider site plan or building  plan  submitted  by N.A.  2  Pannalal  and pass  suitable  order  granting  sanction  for  the proposed  construction  keeping  in  view the  rules and byelaws framed by the Corporation in regard to  construction  or  erection  of  buildings  on  sites together with objections, if any, from Rukhabdas Jain within fifteen days from receipt of this order. After receipt of suitable order or sanction given by the  Corporation  in  respect  of  construction proposed by the Non applicant No. 2 Pannalal on his  concerned site,  judgment will  be pronounced in  this  case  in  the  light  of  the  said  order  or sanction given by the Corporation.  Till  then the judgment  is  deferred.   Meanwhile,  the  interim injunction order dated 2.8.1983 to continue.”

On the premise that  the said order  was not  complied with, a show

cause notice was issued on 17.11.1983 for initiation of a proceeding under

4

the  Contempt  of  Courts  Act  against  the  Executive  Officer  of  the

Corporation in the following terms:

“This  court  had  served  upon  you  order  dated 21.10.1983 in Misc. Civil Application No. 249 of 1983,  on  21.10.1983  vide  outward  No.  348  of 1983,  to  consider  the  site  plan/  building  plan submitted by Non-applicant No. 2 – Pannalal S/o Trilokchand Khedkar of house No. 586, Circle No. 9/14, Ward No. 36, Ladpura, Itwari, Nagpur and to pass  suitable  order  granting  sanction  for  the proposed construction etc.  In the very order you were directed to comply with the said order within 15 days from receipt thereof.  However, from the statement of the learned Advocate for N.A. No. 2 Pannalal  it  appears  that  you  have  not  complied with  the  said  order,  nor  any  compliance  report submitted  by  you  in  this  Court  so  far.   The noncompliance on your part of the said order may amount to contempt of court.

You  are,  therefore,  directed  to  show case, why suitable action for contempt of court be not taken  against  you within  3 days  from receipt  of this notice.”

8. Respondent No. 2 submitted a plan on 19.11.1983, which happened

to  be  a  Saturday.   On  21.11.1983,  i.e.,  Monday  next,  the  plan  was

sanctioned in favour of respondent No. 2.   

5

9. An application for vacation of stay was filed on 1.12.1983 and by an

order dated 4.02.1984, the order of interim injunction was vacated.  A civil

revision application was preferred thereagainst before the High Court.  The

High Court by an order dated 20.06.1984 directed disposal of the injunction

application within fifteen days from the said date, stating:

“Mr.  Rajkarne  states  that  he  will  pull  down  the offending  structure  should  the  order  finally  go against  him.   On  this  statement,  the  ad-int. injunction is vacated.  The Assistant Judge should decide  the  application  within  fifteen  days. Revision disposed of.”

10. The Miscellaneous Civil Application filed by appellant was dismissed

by an order dated 23.07.1984 inter alia on the premise that having regard to

Section 275 (3) of the Act, respondent No. 2 was entitled to start and carry

on constructions  relying  on or  on the  basis  of  the  deemed sanction.   As

regards the question that respondent No. 2 had no title over the property, it

was held:

“41. If according to the appellant, the N.A. No. 2 has no title to the property on which he is raising construction  and  which  he  showed  to  be  of  his own in the site plan submitted to the Corporation the N.A. No. 2 has not  left  open required space

6

adjoining  his  building  thereby  contravening  by law No. 32 he has shown excess area in his site plan and obtained sanction by deceit and fraud, the sanction given to the N.A. No. 2 by N.A. No. 1 in respect  of  proposed  construction  is  illegal  and invalid  since  it  is  in  contravention  or  various provisions of the Act and byelaws thereunder, it is open  to  the  applicant  to  file  a  separate  suit, claiming  declaration  that  the  said  sanction  is invalid  because  of  above  reason  and  further claiming injunction of the nature as sought in the present  application,  wherein  all  those  points  can be conclusively decided.  Considering the limited scope of Sec. 286 (5) of the Act, in my opinion, this is not competent forum to entertain and decide all these points.”

11. Appellant, aggrieved by and dissatisfied with the said decision of the

learned District  Judge,  preferred an appeal  before the High Court.   By a

judgment and order dated 5.09.1996, the said appeal was allowed and the

matter was remitted, directing:

“15. Admittedly, because of the vacation of the  stay,  the  incomplete  construction  stated  to have  been  completed  by  the  respondent  No.2. Undisputedly, no party has led any evidence in the matter.  Under the circumstances, in fairness and interest of the parties, the matter be remanded to the Trial court for fresh consideration and decision and in view of the provisions under Section 286(5) of  the  City  of  Nagpur  Corporation  Act,  giving opportunity to the parties to lead evidence and of hearing.  As held that the order dated 02.01.1983

7

is  illegal,  arbitrary  and  perverse,  the  sanction accorded  by Nagpur  Corporation  in  view of  the directions of the trial Court, be treated that there is no  sanction  to  the  already  returned  application proposed plan.  The trial Court is also directed to consider  the  two  applications  filed  by  the appellant  in  this  Court  for  amendment  to  the original  application under Section 286 (5) of the City of Nagpur Corporation Act.  The proceeding under the provisions of Section 286 (5) of the City of  Nagpur  Corporation  Act  was instituted  in  the year  1981.   Considering  the  pendency  of  more than 15 years, I direct the trial Court to decide the matter  within  six months  from the receipt  of the writ of this Court.”

12.  A Letters Patent Appeal marked as LPA No. 115 of 1996 preferred

thereagainst by respondent No. 2 was allowed and the learned Trial Judge

was permitted to proceed with the trial.

13. Pursuant to or in furtherance of the said direction, the learned Trial

Judge upon hearing the parties allowed the Misc. Civil Application No. 249

of 1983 directing the Corporation to remove the unauthorized construction

made by respondent No. 2.  An appeal was preferred thereagainst.  The said

appeal marked as First Appeal No. 476 of 1997 was directed to be heard

with LPA No. 115 of 1996 by an order dated 23.03.1998.  A Letters Patent

Appeal  was  also  filed  questioning  the  order  of  the learned Single  Judge

8

dated 23.03.1998.  All the three appeals were taken up for hearing together

and  by  reason  of  the  impugned  judgment,  the  appeals  preferred  by

respondent  No.  2  have  been  allowed.   A  review  application  filed  by

appellant has been dismissed.

14. Dr. Rajeev B. Masodkar, learned counsel appearing on behalf of the

appellant, in support of these appeals,contended:

(i) Having regard to the limited jurisdiction exercised by the learned

District  Judge, an order of mandatory injunction could not have

been passed and that too without any application having been filed

therefor.

(ii)  As respondent No. 1 passed an order of sanction on the threat of

contempt; the same should not have been given effect to.

15. Mr.  Shivaji  M.  Jadhav,  learned  counsel  appearing  on  behalf  of

respondent No. 1 supported the contention of Dr. Masodkar.

16. Mr.  M.N.  Rao,  learned  senior  counsel  appearing  on  behalf  of

respondent No. 2, on the other hand, submitted:

9

(i) Appellant,  having  not  challenged  the  order  of  the  Corporation

dated  21.11.1983  granting  sanction  in  favour  of  the  respondent

No. 2, is estopped and precluded from raising the contention as

regards propriety of order dated 17.11.1993 before this Court for

the first time.

(ii) As the  District  Judge  exercises  a  statutory  appellate  power,  he

must  be  held  to  have  an  implied  power  to  grant  mandatory

injunction.   

(iii) In any event,  as  an order  granting sanction has  been passed by

respondent  No.  1,  the  questions  raised  before  this  Court  have

become academic.

17. We may at the outset notice the relevant provisions of the Act.   

The Act was enacted to consolidate and amend the law relating to the

municipal affairs of the City of Nagpur.  Sections 273, 274 and 277 whereof

read as under:

“273.  (1)  No person shall-erect  or  re-erect any building; orcommence to erect or re-erect any

10

building;  ormake any material  external  alteration to  any  building;  or  construct  or  reconstruct  any projecting  portion  of  a  building  which  the Commissioner  is  empowered  by  Section  284  to require  to  be  set  back  or  is  empowered  to  give permission to construct or re-construct-unless the Commissioner  has  either  by  an  order  in  writing granted permission or has failed to intimate within the prescribed  period his refusal of permission for the erection  or  re-erection  of  the building  or for the  construction  or  re-construction  of  the projecting part of the building; after the expiry of one year from the date of the said permission or such  longer  period  as  the  Commissioner  may allow or from the end of the prescribed period as the case may be: Provided that nothing in this Section shall apply to any  work,  addition  or  alteration  which  the Corporation may by bye-law declare to be exempt. (2)  If  a  question  arises  whether  a  particular alteration in or addition to an existing building is or is not a material alteration, the decision of the District  Court,  Nagpur,  shall  be  final  anc conclusive. (3) No appeal shall be admitted under this Section unless the matter has first been determined by the Commissioner.

274.(1) Every person who intends to erect or re-erect  a  building  shall  submit  to  the Commissioner  an  application  in  writing  for approval of the site together with a site plan of the land, and in the case of land which is the property of  the  Government,  or  of  the  Corporation,  a certified copy of the documents authorizing him to occupy  the  land,  and  if  so  required  by  the Commissioner  the  original  document  or documents;  and  an  application  in  writing  for permission  to  building  together  with  a  ground

11

plan, elevation and section of the building and a specification of the work to be done. (2) Every plan of any building to be constructed wholly  or  partly  of  masonary,  submitted  under sub-section  (1)  in  token  of  its  having  been prepared by him or under his supervision, bear the signature of a licensed surveyor. (3)  Every document  submitted  under  sub-section (1)  shall  be  prepared  in  such  manner  and  shall contain such particulars as may be prescribed. (4)  Nothing  herein  contained  shall  require  a person to comply with the provisions of clause(b) of sub-section (1) until  such time as the site has been  approved  by  the  Commissioner  or  such person as he may appoint.

“277. (1) The Commissioner shall not grant permission to erect or re-erect any building unless and until he has approved of the site thereof on an application under Section 274.

(2)  The  Commissioner  may  refuse permission to erect or re-erect any building –

(a) if the plans and specifications submitted with the application show that such building is not in  accordance  with  a  town-planning  scheme sanctioned  under  Section  271  or  with  any provisions of this Act, or any rule or by-law made thereunder,  or  any provision  of  any law for  the time being in force: or

(b)  if  in  his  opinion  the  erection  or  re- erection of such building would be in nuisance or injurious to the inhabitants of the neighbourhood or to the public: or

(c) unless and until any plans, specifications or particulars called for by him are supplied.”

Sections 286(5), 287 and 377 of the Act are as under:

12

“286. (5)  Nothing in  this  section shall  affect  the right  of  the  Corporation  or  any  other  person  to apply  to  the  District  Court,  Nagpur,  for  an injunction  for  the  removal  or  alteration  of  any building  on  the  ground  that  it  contravenes  any provision  of  this  Act  or  of  the  bye-laws  made thereunder, but if the building is one in respect of which  plans  have  been  deposited  and  the  plans have been passed by the Commissioner or notice that  they have  been  rejected  has  not  been given within  the  prescribed  period  after  the  deposit thereof  and  if  the  work  has  been  executed  in accordance with the plans, the Court on granting an  injunction  shall  have  power  to  order  the Corporation to pay to the owner of the work such compensation as the Court thinks just, but before making any such order the Court shall  cause the Commissioner  if  not  a  party,  to  be  joined,  as  a party to the proceeding.”

“287. Save as otherwise expressly provided in  this  Act  or  rules  made  thereunder,  no  Civil Court  shall  have  jurisdiction  to  settle,  decide  or deal with any question which is by or under this Chapter  required  to  be  settled,  decided,  or  dealt with by the Corporation, or the Commissioner.”

“377.  Procedure  in  inquiries  before  Civil Courts- (1)  For the purposes any appeal, inquiry or proceeding under this Act, the High Court and the  District  Court,  Nagpur,  may exercise  all  the powers  conferred on  them by the  Code of  Civil Procedure,  1908,  and  the  Central  Provinces  and Berar Courts Act, 1917, as the case may be, and shall observe the procedure prescribed in the said enactments, so far as it is not inconsistent with the provisions of this Act.

13

(2)  The  costs  of  every  appeal,  inquiry,  or proceeding under this Act shall be payable by such parties and in such proportions as the Court may direct and the amount thereof shall,  if necessary, be recoverable as if it were due under a decree of the Court.”

18. The law relating to town planning having regard to the necessity to

have a planned township keeping in view the ecology thereof has assumed

great significance.  The statutory authorities under the Act, therefore, must

be allowed to exercise their statutory powers reasonably and in good faith.

It, however, would not mean that the right of an owner of the land to raise

constructions  over  the  land  would  not  be  attended  to  for  a  long  time.

Erection  or  re-erection  of  a  building  must  precede  grant  of  an  express

sanction of building.  The statute provides as to how and in what manner an

application  for  grant  of  sanction  of  building  plan  should  be  dealt  with.

Section  275(3)  of  the  Act,  however,  raises  a  legal  fiction  specifying  the

period of sixty days within which an application for grant  of sanction of

building  plan  should  be  considered  by the  appropriate  authorities  of  the

Corporation.  The legislature, therefore, considered the said period of sixty

days to be reasonable one during which the application for grant of sanction

for a building plan should be attended to and appropriate order thereupon

14

should  be passed.   However,  there  cannot  be any doubt  whatsoever  that

when queries are raised or defects are pointed out in the building plan, the

owner of the land must reply thereto and/or remove the defects pointed out.   

19. A building plan deemed to have been sanctioned must also satisfy the

conditions laid down in the building bye-laws.

This  Court  in  Commissioner  of  Municipal  Corporation,  Shimla v.

Prem Lata Sood and Others, [(2007) 11 SCC 40] stated:

“44. There cannot be any doubt whatsoever that an owner  of  a  property  is  entitled  to  enjoy  his property and all the rights pertaining thereto. The provisions contained in a statute like the 1994 Act and  the  building  bye-laws  framed  thereunder, however, provide for regulation in relation to the exercise and use of  such right  of  an owner  of a property. Such a regulatory statute must be held to be  reasonable  as  the  same  is  enacted  in  public interest.  Although a deeming provision  has  been provided in sub-section (1) of Section 247 of the 1994 Act, the same will have restricted operation. In terms of the said provision, the period of sixty days  cannot  be  counted  from  the  date  of  the original application, when the building plans had been  returned  to  the  applicant  for  necessary clarification and/or compliance with the objections raised therein. If no sanction can be granted, when the  building  plan  is  not  in  conformity  with  the building  bye-laws  or  has  been  made  in contravention of the provisions of the Act or the

15

laws,  in  our  opinion,  the  restriction  would  not apply despite the deeming provision.”

20. We will proceed on the basis that a deemed sanction would amount to

an order granting sanction of a building plan.  However, the jurisdiction of

the District Judge can be invoked if a building is erected or re-erected in

contravention  of  any  town  planning  scheme  or  building  bye-laws.

Indisputably, right of a neighbourer is also a valuable right.  He, in the event

a  building  plan  has  wrongly  been  sanctioned,  is  entitled  to  file  an

appropriate  application  before  the  District  Court  for  an  injunction  for

removal or alteration of any building plan on the premise that the same was

in contravention of any provisions of the Act or bye-laws made thereunder.   

21. The core question which, thus,  arises for our consideration is as to

whether the jurisdiction of the District Court in this behalf is limited.

22. The Court indisputably has all incidental powers so as to enable it to

proceed in accordance with law.  It is, however, difficult to conceive that its

jurisdiction is plenary in nature.  The jurisdiction of the civil court in terms

of Section 287 of the Act is barred.  If the contention that the District Judge

has  all  the  powers,  whether  incidental  or  supplemental,  as  has  been

16

advanced by Mr. Rao is correct, it is difficult to comprehend as to why the

legislature has barred the jurisdiction of the civil court.  Keeping in view the

nature of jurisdiction conferred upon the District Judge as also in view of

the fact that the Civil Court’s jurisdiction has been excluded in determining

the said question, we have no other option but to hold that the jurisdiction of

the  District  Judge  is  limited.   If  a  jurisdiction  is  confined  to  grant  of

mandatory injunction, the court may in a given case also exercise its power

to pass prohibitory injunction.  We would also assume that if an order of

injunction can be passed in favour of the applicant, in a given case, it may

be passed in favour of the non-applicant also.  But, such a power must be

exercised whether in favour of the applicant or non-applicant, having regard

to the scope of the limited jurisdiction to be exercised by the District Judge

in  terms  of  Section  286(5)  of  the  Act.   It  is,  therefore,  difficult  to

comprehend that it has an implied power to grant mandatory injunction and

that too suo motu.

23. We have noticed heretobefore that the matter was heard and judgment

was reserved by the learned District Judge.  Respondent No. 2 did not file

any  application  for  a  direction  upon  respondent  No.  1  to  consider  his

application for grant of sanction of the building plan.  The learned Judge

17

passed the order suo motu.  It is one thing to say that it was done with a

view to enable him to pass an appropriate order for the purpose of finding

out as to whether the building plan conformed to the building bye-laws or

not, but the court cannot shut its eyes to the fact that respondent No. 1 found

the said plan to be defective and returned the same to the respondent No. 2

for curing the defects.

24. We are, however, not oblivious of the fact that whereas respondent

No. 2 filed an application for grant of building plan on or about 10.11.1981

the same was returned in August, 1983.   It appears from the records that

respondent No. 2 started constructions upon demolition of the old structure

in July, 1983.

25. It  is  one  thing  to  say  that  the  learned  District  Judge  could  direct

respondent No. 1 to point out as to the provisions of the building bye-laws

which  are  said  to  have  been  violated  so  as  to  consider  the  merit  of  the

application filed by appellant but it would be another thing to say that it had

the jurisdiction to direct it to reconsider the matter of granting sanction of

building plan without the defect pointed out by it rectified.   

18

We may, furthermore assume that even that was within the purview of

the jurisdiction of the learned District Judge.  For the said purpose, we may

notice  the  nature  of  implied  power,  which  the  civil  court  is  entitled  to

exercise.  An implied power on the part of civil court is conceived of having

regard to the interest of the parties, as for example, power to admit appeal

includes  power  to  stay  [See  Income  Tax  Officer,  Cannanore v.  M.K.

Mohammed  Kunhi AIR  1969  SC  430]  or  power  to  grant  maintenance

includes power to grant interim maintenance [See Savitri w/o Govind Singh

Rawat v. Govind Singh Rawat [(1985) 4 SCC 337], but we should not also

be  unmindful  of  the  fact  that  the  power  to  grant  injunction  is  a  special

power  which  may be  found  to  be  absent  in  certain  jurisdictions,  as  for

example,  the  provisions  of  the  Consumer  Protection  Act  [See  Morgan

Stanley Mutual Fund v. Kartick Das (1994) 4 SCC 225]

26. Even however assuming that the court has the implied power to grant

injunction  and  that  too  mandatory  in  nature  de’hors  the  provisions  of

Section 286(5) of the Act, certain principles therefor must be borne in mind.

We may, in this regard, only notice the legal principles as enunciated

by this Court, from time to time in this behalf.

19

In Metro Marins v. Bonus Watch Co. (P) Ltd. [(2004) 7 SCC 478],

this Court held:  

“9.  Having  considered  the  arguments  of  the learned counsel for the parties and having perused the documents produced, we are satisfied that the impugned order of  the  appellate  court  cannot  be sustained either on facts or in law. As noticed by this  Court,  in  Dorab  Cawasji  Warden  v.  Coomi Sorab  Warden  it  has  held  that  an  interim mandatory  injunction  can  be  granted  only  in exceptional  cases  coming  within  the  exceptions noticed in the said judgment. In our opinion, the case of the respondent herein does not come under any one of those exceptions and even on facts it is not such a case which calls for the issuance of an interim  mandatory  injunction  directing  the possession being  handed over to  the  respondent. As observed by the learned Single Judge the issue whether the plaintiff is entitled to possession is yet to be decided in the trial court and granting of any interim order directing handing over of possession would only mean decreeing the suit  even before trial.  Once the possession of  the appellant  either directly  or  through  his  agent  (caretaker)  is admitted  then  the  fact  that  the  appellant  is  not using the said property for commercial purpose or not  using the same for any beneficial purpose or the appellant  has to pay huge amount by way of damages in the event of he losing the case or the fact  that  the  litigation  between  the  parties  is  a luxury litigation are all facts which are irrelevant for changing the status quo in regard to possession during the pendency of the suit.”

20

[See also Divisional Forest Officer v. M. Ramalinga Reddy, (2007) 9

SCC 286]

In  Tanusree Basu v.  Ishani  Prasad  Basu [(2008)  4  SCC 791],  this

Court held:

 “16. It is now a well-settled principle of law that Order 39 Rule 1 of the Code of Civil  Procedure (Code) is not the sole repository of the power of the court  to grant  injunction.  Section 151 of  the Code  confers  power  upon  the  court  to  grant injunction if the matter is not covered by Rules 1 and 2 of Order 39 of the Code.”

27. Unfortunately, this aspect of the matter has not been considered by

the High Court.   So far as the submission of Mr. Rao that the questions

raised by appellant have become academic in view of the fact that the order

granting sanction was not challenged, is concerned, suffice it to point out

that in a case of this nature, appellant was entitled to take recourse to the

doctrine of ‘dependant order’.  If the order granting mandatory injunction is

to be found illegal and without jurisdiction, any order of sanction passed by

the statutory authority may also be held to be illegal.

21

In  G.  Ramegowda,  Major  and  Others v.  Special  Land  Acquisition

Officer, Bangalore [(1988) 2 SCC 142], this Court held:

“10.  We  might,  perhaps,  deal  with  the  latter submission  of  Shri  Veerappa  first.  The  fact  that the  main  appeals  are  themselves,  in  the meanwhile,  disposed  of  finally  on  the  merits  by the High Court  would  not  by itself  detract  from and bar the consideration of the correctness of the order condoning the delays. This is an instance of what are called “dependent orders” and if the order excusing  the  delays  is  itself  set  aside  in  these appeals,  the  further  exercise,  made  in  the meanwhile, by the High Court finally disposing of the  appeals,  would  be  rendered  nugatory.  The submission  of  Shri  Veerappa  is,  therefore, insubstantial.”

28. We are, however, not oblivious that the said proposition of law is not

absolute,  as has been noticed by a Division Bench of  this Court  in  Ajay

Bansal v. Anup Mehta [(2007) 2 SCC 275], wherein it was held:

“14. A decree passed subsequent to the refusal of leave  to  defend  could  either  be  under  Order  37 Rule 3(6) of the Code or it could be based on the affidavit evidence on the side of the plaintiff and the  documents  produced  or  even  based  on  oral evidence formally proving, say, the execution of a promissory note by the defendant.  It  may not be proper  or  necessary  to  apply  the  theory  of “dependent order” in such circumstances. For one,

22

the theory may not apply. Even if this Court were to set aside the order of the court below and give the defendant leave to defend the suit, the decree that  is  passed  may not  go  automatically.  It  may have to be set aside. Secondly, the defendant can always  go  to  the  court  which  passed  the  decree and move under Rule 4 of Order 37 of the Code to reopen the decree.”

The  doctrine,  therefore,  must  be  applied  having  regard  to  the  fact

situation obtaining in each case.   

29. As the Division Bench of the High Court in the intra-court appeal did

not consider any of the contentions of the parties and proceeded to dispose

of the same on a wrong premise that the court of the District Judge had the

jurisdiction to pass such an order, we are of the opinion that the impugned

judgment cannot be sustained and is set aside accordingly.  The matter is

remitted to the learned District Judge for consideration of the matter afresh

on the merit of the original application filed by appellant in accordance with

law, albeit keeping in view the subsequent events and also necessity, if any,

to adjust the equities between the parties.

30. The appeals are allowed with costs to be payable by the respondent

No. 2.  Counsel’s fee assessed at Rs. 25,000/-.

23

………………………….J. [S.B. Sinha]

..…………………………J.     [Cyriac Joseph]

New Delhi; October 22, 2008

24