Dadu Dayalu Mahasabha, Jaipur (Trust) Vs. Mahant Ram Niwas & ANR.
 INSC 884 (12
IN THE SUPREME COURT OF INDIA
CIVIL APPELALTE JURISDICTION CIVIL APPEAL NO. _3495 OF 2008 (Arising out of SLP
(C) No. 10317 of 2007) Dadu Dayalu Mahasabha, Jaipur (Trust) .... Appellant
Versus Mahant Ram Niwas and another .... Respondents WITH
CONTEMPT PETITION (CIVIL) No. 120 of 2007 IN CIVIL APPEAL NO. 3495 OF 2008
(Arising out of SLP (C) No. 10317 of 2007)
S.B. SINHA, J.
1. Leave granted.
2. Applicability of the principles
of Res Judicata and Order II Rule 2 of the Code of Civil Procedure having
regard to an observation made by this Court, is involved in this appeal, which
arises out of a judgment and 2 order dated 8th May, 2007 passed by a learned
Single Judge of the Punjab and Haryana High Court in Regular Second Appeal No.
4070 of 2005.
3. Appellant herein is a Public
Trust registered under the provisions of the Rajasthan Public Trust Act 1959
and governed by the provisions thereof. Acquisition of a Gaddi and the
management thereof was the subject matter of a suit.
Mahant Mani Ram Swami, admittedly
was the holder of the said Gaddi.
First respondent claimed himself
to be the `Pota Chela' of the said Mahant Mani Ram Swami.
4. Disputes and differences between
the parties having arisen as regards succession and management of the Gaddi,
first respondent filed a suit in the Court of Senior Sub Judge, Rohtak . It was
registered as Suit No. 295/2 of 1964. Another suit was filed by Mahant Mani Ram
Sadhu Dadu Panthi which was marked as Suit No. 46 of 1967. The said suits were
filed for grant of permanent injunction.
5. Appellant has claimed its
entitlement to the management of the said Gaddi under a Will purported to have
been executed by Mahant Mani Ram Swami. The main controversy between the
parties, therefore, 3 was which party was entitled to manage the Gaddi at
Kalanaur of the said Trust. The matters relating to management of another Gaddi
situated at another place, i.e., Makhora, however, is not in dispute.
6. The learned trial judge, having
regard to the pleadings of the parties inter alia, framed the following issues
:- "1. Whether the plaintiff is the Chela of Lahar Dass and Pota Chela of
Mahant Mani Ram?
2. Whether the plaintiff is
entitled to succeed to Mahant Nitya Nand according to the custom and law as
application to the succession of Nitya Nand as Mahant and owner of property?
3. Whether Nitya Nand made a valid
will in favour of defendant No.1? If so, to what effect? 4. Whether the suit
lies in the present form?"
An additional issue was framed,
after the defendant Nos. 3 & 4 were impleaded as parties in the suit, which
reads :- "5-A.Whether defendant No.3 or defendant No.4 was the Chela of
the late Mahant Mani Ram and is now the present Mahant of the institution? 7.
The principal issues were decided against the first respondent.
The suit was dismissed holdings
that he was not entitled to hold or manage the Gaddi in question.
4 An appeal preferred
thereagainst, being Civil Appeal No. 89/13 of 1973, was dismissed by the
Additional District Judge, Rohtak by his orders dated 2nd January, 1973,
holding :- "Nevertheless, there is sufficient evidence to show that Nitaya
Nand and Mahant Lahar Dass were the Chelas of Mahant Mani Ram and this appellant
is the Chela of Lahar Dass. Mahant Mani Ram used to be the Dohli Dar of certain
agricultural lands and after his death the mutation entry Ex.P.13/6 was
sanctioned by the revenue authorities on 16.7.1958. Lahar Dass had a
predeceased Mahant Mani Ram."
It was furthermore held :-
"Therefore, my finding also is that the appellant has failed in improving
that he was appointed as the Mahant of Gaddi by the Bhaik in accordance with
the prevailing custom and practice. Even the writing in the Bahi showing
payments of certain moneys to the members of the at by the Bhaik by the
appellant has been withheld."
It was furthermore held :-
"In that connection it is found that the appellant is the Chela of Lahar
Dass and that Lahar Dass and Mahant Nitaya Nand were Gurbhai (Chelas of the
said Mani Ram). But, that does not come to the aid of the appellant for the
reason that he has failed to prove that he was appointed as the mahant by the
Bhaik in accordasnce with the prevailing custom.
In the connection of issue No.3 it
is found that although Mahant Nitaya Nand did execute this will, 5 which has
been attested by two witnesses in a sound disposing mind he was not competent
to execute such a will because his interest in the properties was limited by
the period of tenure of the office of Mahant of the Gaddi."
However, the finding of the trial
court on issue No.4 was reversed.
8. A second appeal was preferred
thereagainst before the High Court which was registered as Regular Second
Appeal No.800 of 1973. The High Court allowed the purported register of the
`Bhaik' to be produced as additional evidence. It entered into the merit of the
matter and held as under:- " The oral evidence produced by the plaintiff
to prove this fact in the Trial Court, was discussed by the lower Appellate Court
as well, but as observed earlier, the lower Appellate Court did not believe
those witnesses because all of them had stated that such a writing was made in
the register when the plaintiff was appointed as Mahant and that writing was
attested by some of the members of the Bhaik, yet the same was not produced in
the Trial Court. Thus their testimony was never disbelieved as such. Because of
the non-production of the writing Exhibit PW 14/A the finding was given against
the plaintiff by the two Courts below. Since this Court allowed the additional
evidence to be produced in this Court and the said writing has been duly
proved, the findings of the Courts below under issue No.1 are liable to be set
6 9. The matter came up before
this Court by way of Civil Appeal No.
299 of 1987 (arising out of SLP )
No. 7600 of 1983) and by a judgment and order dated 2nd February, 1987 a
Division Bench of this Court allowed the said appeal stating :- " Special
leave granted. The appeal is heard.
Since the High Court has not and
could not have in the circumstances of the case reversed the finding of the
trial court and the First Appellate Court that the plaintiff was not in
possession of the suit property on the date of the filing of suit, it could not
have reversed the decree passed by the First Appellate Court and made a decree
for injunction for which suit has been brought. We, therefore, set aside the
judgment and decree of the High Court and restore the judgment and decree of
the First Appellate Court.
This judgment will not come in the
way of the plaintiff/respondent filing a suit for possession, if he is so
10. Relying on or on the basis of
the said observation made by this Court, the second round of litigation began.
11. In the fresh suit, the first respondent
also impleaded `Gaddi Dadu Dawara Kalanur' through himself as the second
plaintiff. Appellants were arrayed as defendants. In the said suit a decree for
possession of the properties mentioned in paragraph 5 of the plaint (consisting
of 15 items of properties) was prayed for.
12. The learned trial judge by his
judgment and order dated 11th February, 2003 opined that the said suit was
barred by the principles of res judiciata, the issues arising therein being
directly and substantially in issue between the parties in the previous suit as
well. It dealt with in details as to how the causes of actions in both the
suits were the same.
Respondents preferred an appeal
thereagainst. The first appellate court, however, by its judgment and order
dated 27th November, 2005 reversed the judgment and decree of the trial court
holding that neither the principles of Res Judicta nor Order II Rule 2 of the
Code of Civil Procedure were applicable in view of the observations made by
this Court in the aforementioned order of this Court dated 2nd February, 1987.
13. An appeal was preferred
thereagainst by the appellants.
The High Court by reason of the
impugned judgment has allowed the said appeal holding :- " Admittedly, the
previous suit was suit for injunction. In the said suit finding was returned by
the trial Court that the plaintiff has failed to prove the ownership and
possession and, thus, the suit for injunction was dismissed. Such finding was
affirmed in appeal as well. This Court in second appeal reversed the findings
recorded by the learned first Appellate Court after admitting additional
evidence and held that the plaintiff is in possession of the suit property. In
the said circumstance, above said order of Hon'ble Supreme Court was passed
whereby 8 judgment and decree passed by the High Court was set aside and
liberty was given to the plaintiff to file a suit for possession.
A perusal of order passed by the
Hon'ble Supreme Court shows that the finding that plaintiff was not in
possession in a suit for injunction recorded by this Court was set aside and,
therefore, it was clarified that the judgment of the Court will not come in the
way of the plaintiff to file a suit for possession.
Meaning thereby in a suit for
possession, the plaintiff could establish his title. The order of Hon'ble
Supreme Court has to be read in its entirety. Once it is ordered that the
judgment will not come in the way for suit for possession, the suit for
possession could not be dismissed on the basis of previous judgment in a suit
14. Dr. Rajiv Dhawan, learned
Senior Counsel appearing on behalf of the appellant in support of the appeal
Where the suit is barred under the principles of res judicata
or Order II Rule 2 of the Code of Civil Procedure, effect thereof cannot be
taken away by a mere observation of this Court.
In any event the principle of
issue estoppal shall apply.
In any event
the suit should have been held to be barred by limitation.
15. Mr. Rajiv Datta, learned
Senior Counsel, appearing on behalf of the respondents, on the other hand, urge
:- 1) The scope of the earlier suits being confined to the question of
possession as on the date of institution thereof, the subsequent suit claiming
title over the Gaddi as also recovery of possession was not barred under the
principles of Res Judicata or Order II Rule 2 of the Code of Civil Procedure.
2) The entire issue between the
parties as regards their legal rights having been left open, the principle of
res judicata could not have any application whatsoever particularly in view of
the fact the issues were totally different.
3) Since no issue with regard to
res judicata had been framed by the learned trial court, any finding thereon
was wholly unwarranted.
16. A suit is filed on a cause of
action. What would constitute a cause of action is now well settled. It would
mean a bundle of facts which would be necessary to be proved by the plaintiff
so as to enable him to obtain a decree. First Respondent's suit for possession
was premised on a legal entitlement. Appellant herein also claimed its right
over the 10 Gaddi in question. The trial court framed several issues. Its
discussion centred round the respective pleas of the parties which had fully
been gone into.
The suit was dismissed. The first
appellate court not only went into the question of possession of the first
respondent over the Gaddi, as on the date of institution of the suit, but the
17. Rightly or wrongly a decision
was arrived at that the first respondent was held to be not entitled to hold
the Gaddi and management of the same. A legal right of the appellant with
regard thereto was found favour with the first appellate court. On the
aforementioned backdrop the implication of the observations of this Court must
be noticed and considered.
18. The order of this Court is in
four parts, i.e. - i) The High Court could not have reversed the finding of the
first appellate court that the plaintiff was not in possession of the suit
property on the date of the filing of the suit.
ii) In view of the said finding a
decree for injunction for which the suit was filed could not have been granted.
11 iii) The judgment and decree of
the first appellate court shall be restored after setting aside the judgment
and decree of the High Court.
iv) The said judgment would not
come in the way of the plaintiff/respondent in filing a suit for possession, if
he so is so advised.
19. The judgment of a court, it is
trite, should not be interpreted as a statute. The meaning of the words used in
a judgment must be found out on the backdrop of the fact of each case. The
Court while passing a judgment cannot take away the right of the successful
party indirectly which it cannot do directly. An observation made by a superior
court is not binding. What would be binding is the ratio of the decision. Such
a decision must be arrived at upon entering into the merit of the issues
involved in the case.
20. If the judgment and order of
the first appellate court dated 2nd January, 1973 was restored by this Court in
its order dated 2nd February, 1987, the finding arrived at by it attained
finality. The issues determined therein would be, thus, binding on the parties.
21. Section 11 of the Code not
only recognizes the general principle of res judicata, it bars the jurisdiction
of the court in terms of Section 12 thereof.
Explanation V of Section 11 of the
Code extends the principle of res judicata stating that the reliefs which could
have been or ought to have prayed for even if it was not prayed for would
operate as res judicata. Section 12 thereof bars filing of such suit at the
instance of a person who is found to be otherwise bound by the decision in the
earlier round of litigation and in a case where the principle of res judicata
22. We, however, are not unmindful
of the principles of estoppel, waiver and res judicata, are procedural in
nature and, thus, the same will have no application in a case where judgment
has been rendered wholly without jurisdiction or issues involve only pure
questions of law. Even in such cases, the principle of issue estoppel will have
no role to play.
However, once it is held that the
issues which arise in the subsequent suit were directly and substantial in
issue in the earlier suit, indisputably Section 11 of the Code would apply.
23. Similarly the provisions of
Order II Rule 2 bars the jurisdiction of the Court in entertaining a second
suit where the plaintiff could have but 13 failed to claim the entire relief in
the first one. We need no go into the legal philosophy underlying the said
principle as we are concerned with the applicability thereof.
24. We must also bear in mind the
distinction between the decision of a court of law and a court of equity.
We may notice that even as far
back as in 1869 in Robert Watson & Co. vs. The Collector : (1869) 13 MIA 1
it was held :- "A decision of the late Sudder Court of the 31st of May,
1853, is a precedent in point, and the marginal note appended to the case fully
shows that a failure to adduce evidence is not a default to proceed within the
meaning of Act No. XXIX of 1841, which refers only to steps in procedure
necessary to enable a cause to be prepared for hearing on its merits; the
dismissal of a suit for want of evidence ought not to be on default, but on the
merits. This, then, was clearly the sate of the law in 1857, when the Judge of
Rajshahe dismissed the suit for want of evidence , and we cannot allow any
words of the Judge to override the law, and give to parties indulgencies which
the law of procedure does not sanction." "It cannot for a moment be
argued that, as the law stood in 1857, a Plaintiff was at liberty to claim a
non-suit if, after the issues were recorded, be neglected to supply evidence in
support of his case, and we are of opinion that the law and practice of the
Courts there was to act upon the maxim `De non aparentibus et non existentibus
eadum est ratio' (a); and if evidence was wanting, to dismiss the claim for
want of proof. Such order is in reality a decision on the merits, just as much
as if Plaintiff had produced evidence which the Court 14 considered inadequate
as proof, and dismissed it upon that ground."
25. The Privy Council In Fateh
Singh and others vs. Jagannath Baksh Singh and another : AIR 1925 PC 55
observed :- " When the plaintiffs brought their first suit, they had to
show their title to impeach the widow's gift.
For this purpose they had to show
either that they were some at least of the nearest reversionary heirs, or that
the only nearer reversionary heir had colluded with the widow. In their plaint
they did not rely on collusion, which they only introduced in their
replication. Taking, however, that view of the pleadings which is most
favourable to them and treating them as relying equally on both grounds of claim,
it is now clear that they can only make out a claim to be some of the next
feversioners on the footing of the family custom, and that the allegation of
that custom therefore was an allegation which "
might and ought to have been
made" within the meaning of Explanation 4.
Or, to put it in another way. One
of the alternative cases on which they were basing their title to sue was their
nearness of kin, and to prove their nearness of kin it was essential to aver
the family custom. They claimed as next heirs, and their claim was dismissed.
They cannot fight it over again.
But, as the Judges in the Court of
the Judicial Commissioner have observed, some complication was introduced by
the language of the Judge who tried the first case and by his expressing himself
as if he had power to give leave to bring a fresh suit. It was contended on
behalf of the plaintiffs that in so 15 expressing himself he was purporting to
exercise the powers given to the Court by Order 23, which allows the Court in
certain cases to grant the plaintiff permission to withdraw from a suit with
liberty to issue a fresh suit, in which case the bar against a fresh suit which
is otherwise imposed on a plaintiff who abandons his first suit is
It was furthermore observed :-
"...There was no application for leave to withdraw the suit; nor was it
withdrawn : it was dismissed and the power of the learned Judge ceased upon
this dismissal. It may have been unfortunate for the plaintiffs that the
learned Judge thought that he had a power which he did not possess, but
happily, as the Judges on the appeal observed, it is improbable that there was
substance in the claim which they have been prevented from further
26. The above observation of Privy
Council came up for consideration before this Court in Shiv Kumar Sharma vs.
Santosh Kumari : (2007) 8 SCC 600, when this Court observed :- "21. If the
respondent intended to claim damages and/or mesne profit, in view of Order 2
Rule 2 of the Code itself, he could have done so, but he chose not to do so.
For one reason or the other, he, therefore, had full knowledge about his right.
Having omitted to 16 make any claim for damages, in our opinion, the plaintiff
cannot be permitted to get the same indirectly.
22. Law in this behalf is absolutely
clear. What cannot be done directly cannot be done indirectly."
27. The question which was posed
by the Privy Council was :- "Be that, however, as it may, the first
question is, whether the High Court was right in holding that, notwithstanding
the reservation contained in the decree dismissing the suit of 1856, the
question was to be treated as res judicata."
The Court noticed that at that
point there was no authority which sanctioned the exercise by the Country
Courts of India of that power which Courts of Equity in that Country
occasionally exercise, of dismissing a suit with liberty to the plaintiff to
bring a fresh suit for the same matter.
28. Having noticed the effect of a
stray observation made by a superior court viz-a-viz applicability of the
principle of res judicata we may also notice the applicability of the principle
of issue estoppel.
17 In Sheodan Singh vs. Daryao
Kunwar :  4 SCR 300, this Court laid down the ingredients of Section 11
of the Code of Civil Procedure stating :- "9. A plain reading of Section
11 shows that to constitute a matter res judicata, the following conditions
must be satisfied, namely--
directly and substantially in issue in the subsequent suit or issue must be the
same matter which was directly and substantially in issue in the former suit;
suit must have been a suit between the same parties or between parties under
whom they or any of them claim;
must have litigated under the same title in the former suit;
The court which decided the
former suit must be a court competent to try the subsequent suit or the suit in
which such issue is subsequently raised; and (v) The matter directly and
substantially in issue in the subsequent suit must have been heard and finally
decided by the court in the first suit. Further Explanation 1 shows that it is
not the date on which the suit is filed that matters but the date on which the
suit is decided, so that even if a suit was filed later, it will be a former
suit if it has been decided earlier. In order therefore that the decision in
the earlier two appeals dismissed by the High Court operates as res judicata it
will have to be seen whether all the five conditions mentioned above have been
The question which is, thus,
required to be posed is what was in issue in the earlier suit.
18 The issue indisputably was the
claim of entitlement to Gaddi by the first respondent and a plea contra thereto
raised by the appellants.
Once the issue of entitlement
stood determined, the same would operate as res judicata. We may notice some
precedents for appreciating the underlying principles thereof. Section 11 of
the Code, thus, in view of the issues involved in the earlier suit, the
provisions thereof shall apply.
29. In State of U.P vs. Nawab
Hussain : (1977) 2 SCC 806 this Court held :- "3. The principle of
estoppel per rem judicatam is a rule of evidence. As has been stated in
Blackburn Borough Council1, it may
be said to be "the broader rule of evidence which prohibits the
reassertion of a cause of action". This doctrine is based on two theories:
(i) the finality and conclusiveness of judicial decisions for the final
termination of disputes in the general interest of the community as a matter of
public policy, and (ii) the interest of the individual that he should be
protected from multiplication of litigation. It therefore serves not only a
public but also a private purpose by obstructing the reopening of matters which
have once been adjudicated upon. It is thus not permissible to obtain a second
judgment for the same civil relief on the same cause of action, for otherwise
the spirit of contentiousness may give rise to conflicting judgments of equal
authority, lead to multiplicity of actions and bring the administration of
justice into disrepute. It is the cause of action which gives rise to an
action, and that is why it is necessary for the courts to recognise that a
cause of action which results in a judgment must lose its identity and vitality
and merge in the judgment when pronounced. It cannot therefore survive the
judgment, or give rise to another cause of action on the same facts. This is
what is known as the general principle of res judicata."
19 Noticing that the same set of
facts may also give rise to two causes of actions, it was held :- "That,
in turn, led the High Court to the conclusion that the principle of
constructive res judicata could not be made applicable to a writ petition, and
that was why it took the view that it was competent for the plaintiff in this
case to raise an additional plea in the suit even though it was available to
him in the writ petition which was filed by him earlier but was not taken. As
is obvious, the High Court went wrong in taking that view because the law in
regard to the applicability of the principle of constructive res judicata
having been clearly laid down in the decision in Devilal Modi case, it was not
necessary to reiterate it in Gulabchand case as it did not arise for
consideration there. The clarificatory observation of this Court in Gulabchand
case was thus misunderstood by the High Court in observing that the matter had
been "left open" by this Court."
30. Yet again in Home Plantations
Ltd. vs. Talaku Land Board, Peermada and another : (1999) 5 SCC 590.
" An adjudication is
conclusive and final not only as to the actual matter determined but as to
every other matter which the parties might and ought to have litigated and have
had it decided as incidental to or essentially connected with the subject-matter
of the litigation and every matter coming within the legitimate purview of the
original action both in respect of the matter of claim or defence. The
principle underlying Explanation IV is that where the parties have had an
opportunity of controverting a matter that should be taken to be the same thing
as if the matter had been actually controverted and decided. It is true that
where a matter has been constructively in issue it cannot be said to have been
actually heard and decided. It could only be deemed 20 to have been heard and
decided. The first reason, therefore, has absolutely no force."
It was furthermore opined :-
"26. It is settled law that the principles of estoppel and res judicata
are based on public policy and justice. Doctrine of res judicata is often
treated as a branch of the law of estoppel though these two doctrines differ in
some essential particulars. Rule of res judicata prevents the parties to a
judicial determination from litigating the same question over again even though
the determination may even be demonstratedly wrong. When the proceedings have
attained finality, parties are bound by the judgment and are estopped from
questioning it. They cannot litigate again on the same cause of action nor can
they litigate any issue which was necessary for decision in the earlier
litigation. These two aspects are "cause of action estoppel" and
"issue estoppel". These two terms are of common law origin. Again,
once an issue has been finally determined, parties cannot subsequently in the
same suit advance arguments or adduce further evidence directed to showing that
the issue was wrongly determined. Their only remedy is to approach the higher
forum if available. The determination of the issue between the parties gives
rise to, as noted above, an issue estoppel. It operates in any subsequent
proceedings in the same suit in which the issue had been determined. It also
operates in subsequent suits between the same parties in which the same issue
arises. Section 11 of the Code of Civil Procedure contains provisions of res
judicata but these are not exhaustive of the general doctrine of res judicata.
Legal principles of estoppel and res judicata are equally applicable in
proceedings before administrative authorities as they are based on public
policy and justice."
This Court opined that the Law of
England as enunciated by the House of Lords in Arnold vs. National Westiminster
Bank Plc. :
21 (1991) 2 AC 93 = (1991) 3 All
ER 41, HL to hold that the said principle will have no application in India
stating:- "30. Mr Salve's assertions based on the aforesaid decision of
the House of Lords may be valid to an extent but then in view of the principles
of law laid down by this Court on the application of res judicata and estoppel
and considering the provisions of Section 11 of the Code, we do not think there
is any scope to incorporate the exception to the rule of issue estoppel as
given in Arnold v. National Westminster Bank Plc.3
31. Law on res judicata and
estoppel is well understood in India and there are ample authoritative
pronouncements by various courts on these subjects. As noted above, the plea of
res judicata, though technical, is based on public policy in order to put an
end to litigation. It is, however, different if an issue which had been decided
in an earlier litigation again arises for determination between the same
parties in a suit based on a fresh cause of action or where there is continuous
cause of action. The parties then may not be bound by the determination made
earlier if in the meanwhile, law has changed or has been interpreted
differently by a higher forum. But that situation does not exist here. Principles of constructive res
judicata apply with full force. It is the subsequent stage of the same
proceedings. If we refer to Order XLVII of the Code (Explanation to Rule 1)
review is not permissible on the ground "that the decision on a question
of law on which the judgment of the Court is based has been reversed or
modified by the subsequent decision of a superior court in any other case, shall
not be a ground for the review of such judgment".
31. Principle of issue estoppel
and constructive res judicata had also been discussed at some length by this
Court in Bhanu Kumar Jain (supra) to hold:- 22 "29. There is a distinction
between "issue estoppel"
and "res judicata". (See
Thoday v. Thoday)
30. Res judicata debars a court
from exercising its jurisdiction to determine the lis if it has attained
finality between the parties whereas the doctrine issue estoppel is invoked
against the party. If such an issue is decided against him, he would be
estopped from raising the same in the latter proceeding. The doctrine of res
judicata creates a different kind of estoppel viz.
estoppel by accord."
32. Yet again in Annaimuthu Thevar
(Dead) by Lrs. vs. V. Alagammal and others : (2005) 6
SCC 202 a Division Bench of this Court held :- "27. The next question that
arises is whether the issue of ownership and title in the suit house was
directly and substantially in issue in the former suit or not. In the subsequent
suit undoubtedly the foundation of claim is title acquired by the present
appellant under registered sale deed dated 28-2-1983 from
33. Even in a case of title,
Explanation IV to Section 11 would apply.
(See also Sulochana Amma vs. Narayanan
Nair : 1994 (2) SCC 14).
34. Furthermore in terms of
Section 5 of the Specific
Relief Act, 1963 a suit for possession must be filed having regard to the
provisions of the Code of Civil Procedure. If the statute provides for the
applicability of 23 the Code of Civil Procedure, there cannot be any doubt
whatsoever that all the relevant provisions thereof shall apply. (See Shamsu
Suhara Beevi vs. G. Alex and another : (2004) 8 SCC 569) & Hardesh Ores (P)
Ltd. vs. Hede and Company :2007 (5) SCC 614).
35. We have, therefore, no
hesitation to hold that the impugned judgment cannot be sustained. The same is
set aside. The appeal is allowed with costs. Counsel's fee assessed at Rs.25,000/-
(Rupees Twenty Five Thousand only).
36. We, however, do not find any
specific ground to initiate contempt proceedings against the respondent at this
stage. Contempt Petition is dismissed accordingly.
( S.B. SINHA ) .............................J.