Ayurveda, Yoga and Naturopathy, Unani, Siddha and Homeopathy, hereinafter referred to as "AYUSH", to grant permission to the colleges to admit students for the academic year 2011-12, for the BAMS/ Post Graduate courses. = refusal by the Government of India, in its Department of Ayurveda, Yoga and Naturopathy, Unani, Siddha and Homeopathy, hereinafter referred to as "AYUSH", to grant permission to the colleges to admit students for the academic year 2011-12, for the BAMS/ Post Graduate courses. Such permission appears to have been refused on account of various deficiencies relating to the infrastructure and teaching staff, which had not been rectified and brought into line with the minimum standard norms.= It is no doubt true, that applications have been filed by a large number of students for admission in the Institutions imparting education in the Indian form of medicine, with the leave of the Court, but it is equally true that such leave was granted without creating any equity in favour of the applicants. Those who chose to file their applications did so at their own risk and it cannot now be contended that since they have been allowed to file their applications pursuant to orders passed by the Court, they had acquired a right to be admitted in the different Institutions to which they had applied. The privilege granted to the candidates cannot now be transformed into a right to be admitted in the course for which they had applied. Apart from anything else, one has to take a practical view of the matter since more than half the term of the first year is over. Though it has been contended on behalf of the Institutions concerned that extra coaching classes would be given to the new entrants, it is practically impossible for a student to pick up the threads of teaching for the entire first year when half the course had been completed. 14. It is not for us to judge as to whether a particular Institution fulfilled the necessary criteria for being eligible to conduct classes in the concerned discipline or not. That is for the experts to judge and according to the experts the Institutions were not geared to conduct classes in respect of the year 2011-12. It is also impractical to consider the proposal of the colleges of providing extra classes to the new entrants to bring them upto the level of those who have completed the major part of the course for the first year. 15. We are not, therefore, inclined to interfere with the orders of the High Court impugned in these Special Leave Petitions and the same are, accordingly, dismissed.

Page 1
1
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
SPECIAL LEAVE PETITION (CIVIL) NO. 31892 OF 2012
Ayurved Shastra Seva Mandal & Anr. … Appellants
versus
Union of India & Ors. … Respondents
WITH
SLP(C) No.33452 of 2012
SLP(C) No.33455 of 2012
SLP(C) No.33560 of 2012
SLP(C) No.34001 of 2012
SLP(C) No.34020 of 2012
SLP(C) No.34255 of 2012
SLP(C) No.34264 of 2012
SLP(C) No.30156 of 2012
SLP(C) No.30086 of 2012
SLP(C) No.31349 of 2012
SLP(C) No.23715 of 2012
SLP(C) No.33908 of 2012
SLP(C) No.33909 of 2012
SLP(C) No.33897 of 2012
SLP(C)Nos.1118-1119 of 2013
SLP(C) No.35051 of 2012
SLP(C) No.39893 of 2012
SLP(C) No.381 of 2013Page 2
2
J U D G M E N T
ALTAMAS KABIR, CJI.
1. These Special Leave Petitions have been filed
against orders passed by the Aurangabad Bench and
the Nagpur Bench of the Bombay High Court involving
common issues.
The matters relating to the
Aurangabad Bench arise out of a common order dated
4th October, 2012, in regard to admissions to the
various institutions teaching the Indian form of
medicines such as Ayurvedic, Unani, Siddha, etc.
for the academic year 2011-12.
Special Leave Petition (C) No. 35051 of 2012
has been filed by the Umar Bin Khattab Welfare
Trust against the judgment of the Aurangabad Bench
of the Bombay High Court against an order dated
29th December, 2010, regarding admissions for the
self-same period. The other Special Leave
Petitions relate to the common orders dated 13th
Page 3
3
July, 2012 and 2nd August, 2012 passed by the
Nagpur Bench of the Bombay High Court regarding
admissions for the year 2011-12. Yet, another
Special Leave Petition regarding admissions for the
year 2012-13, has been filed by the Backward Class
Youth Relief Committee and Another against the
order dated 9th August, 2012, passed by the Nagpur
Bench of the Bombay High Court.
2. The common issue involved in all the Special
Leave Petitions is in regard to the
  refusal by the
Government of India, in its Department of Ayurveda,
Yoga and Naturopathy, Unani, Siddha and Homeopathy,
hereinafter referred to as "AYUSH", to grant
permission to the colleges to admit students for
the academic year 2011-12, for the BAMS/ Post
Graduate courses. 
Such permission appears to have
been refused on account of various deficiencies
relating to the infrastructure and teaching staff,
Page 4
4
which had not been rectified and brought into line
with the minimum standard norms.
3. From the materials as disclosed and the
submissions made on behalf of the respective
parties, it appears that in the case of Shri Morvi
Sarvajanik Kelavni Mandal Sanchalit MSKM B.Ed.
College v. National Council for Teachers' Education
and Ors. [(2012) 2 SCC 16], this Court, while
rejecting the prayer of the institutions to permit
students to continue in unrecognized institutions,
observed that mushroom growth of ill-equipped,
under-staffed and unrecognized educational
institutions has caused serious problems with the
students who joined the various courses.
4. As far as medical institutions are concerned,
the procedure relating to the recognition of
medical colleges as well as admission therein was
governed by the Indian Medicine Central Council
Act, 1970, hereinafter referred to as "the 1970
Page 5
5
Act", which was amended in 2003, to incorporate
Sections 13A, 13B and 13C, which provided the
procedure for establishing new colleges and making
provision for seeking prior permission of the
Central Government in respect of the same. The
amendment also attempted to bring in reforms in the
existing colleges by making it mandatory for them
to seek permission from the Central Government
within a period of three years from their
establishment. Having regard to the said
amendments, the Central Council of Indian Medicine,
with the previous sanction of the Central
Government, framed Regulations, in exercise of the
powers conferred on it by Section 36 of the 1970
Act. The said Regulations were named as the
Establishment of New Medical College, Opening of
New or Higher Course of Study or Training and
Increase of Admission Capacity by a Medical College
Regulations, 2003, hereinafter referred to as "the
2003 Regulations". Regulation 6(1)(e) of the 2003
Page 6
6
Regulations provides for applications to be made by
a medical college owning and managing a hospital in
Indian medicines containing not less than 100 beds
with necessary facilities and infrastructure. The
Central Council of Indian Medicine further framed
Regulations in 2006 called as the Indian Medicine
Central Council (Permission to Existing Medical
Colleges) Regulations, 2006, hereinafter referred
to as "the 2006 Regulations". Regulation 5(1)(d)
of the 2006 Regulations provides that the applicant
college would have to be owning and managing a
minimum of 100 beds for undergraduate courses and
150 beds for post graduate courses, which conforms
to the norms relating to minimum bed strength and
bed occupancy for In-patients and the number of
Out-patients.
5. When the 2003 Amendment was effected to the
1970 Act, three years' time was given to the
existing colleges to remove the deficiencies. ThePage 7
7
2006 Regulations provided a further period of two
years to remove the deficiencies and even relaxed
the minimum standards in that regard. Even after
the expiry of two years, the colleges were given
further opportunities to remove the shortcomings by
granting them conditional permission for their
students for the academic years, 2008-09, 2009-10
and 2010-11.
 It is only obvious that the minimum
standards were insisted upon by the Council to
ensure that the colleges achieved the minimum
standards gradually.
6. It may be noted that there was little or no
response from the institutions concerned in regard
to removal of the deficiencies in their respective
institutions and it is only when the notices were
given to shut down the institutions that they woke
up from their slumber and approached the courts for
relief. Page 8
8
7. In many of these cases, permission was given by
the Courts to the institutions concerned to accept
admission forms, but they were directed not to pass
any orders thereupon till the decision of this
Court in these Special Leave Petitions.
8. Appearing for the Petitioners, Mr. R.N. Dhorde,
learned Senior Advocate, tried to impress upon us
that the deficiencies had already been removed and
that is why permission was subsequently given for
the admission of students for the year 2012-13.
Mr. Dhorde submitted that since the deficiencies
had been removed, there could be no reason for
permission for the academic year 2011-12 to be
withheld, since a large number of applications had
been received from students intending to obtain
admission for the said year. It was submitted
that, although, the academic year had come to an
end, the college authorities would make all
arrangements for the applicants to be able toPage 9
9
complete the course for the entire year within six
months so as to bring them up to the level of the
second year. Mr. Dhorde also submitted that in the
event such permission was not granted, the
continuity of the courses would be disrupted.
Giving examples of how the deficiencies had been
removed, Mr. Dhorde contended that the Department
of AYUSH had taken a prior decision to reject the
application for permission to admit students for
the year 2011-12. It is pursuant to such decision
that all the applications were rejected.
9. However, there is one matter (SLP(C) No. 31892
of 2012) filed by the Ayurved Shastra Seva Mandal
and Another, wherein the prayer of the Petitioner Institution had been rejected only on the ground
that instead of recording the presence of 100
patients each day in the Out-Patient Department,
the average had been found to be 98.55%.
Page 10
10
10. Mr. Gopal Subramaniam, learned Senior Advocate,
who had appeared with Mr. Dhorde, had submitted
that the said figure was not absolutely accurate
since the calculation had been based on 300 days
and not 292 days, on account of certain holidays
which had gone unnoticed. In the fact situation of
the case, the said institution could be treated on
a different level from the other institutions,
whose applications had been rejected for various
other deficiencies.
11. At this juncture, it may be noticed that we had
occasion to dismiss SLP(C) No. 35367 of 2012, on
4th January, 2013, on the ground that orders as
prayed for therein would have the effect of
problems being created for the completion of
semester, which was to end in the month of June,
2013, since more than six months had elapsed since
the semester had begun.Page 11
11
12. The prayer made on behalf of the Petitioners
was strongly opposed by Mr. Sidharth Luthra,
learned Additional Solicitor General, who pointed
out that despite a moratorium of five years since
the amendment of the 1970 Act in 2003 and the
framing of the 2006 Regulations in 2006, the
institutions had failed to remove the deficiencies,
as pointed out by the Council. The learned ASG
submitted that the practice of medicine, in
whatever form, which was recognised by the Central
Government and was regulated by the 1970 Act and
the Regulations framed thereunder, could not be
compromised by lowering the standards required to
maintain the excellence of the profession. The
learned ASG submitted that once the deficiencies
had been removed, permission was once again granted
to admit students for the academic year, 2012-13.
The learned ASG submitted that the sympathy towards
Page 12
12
the students, who had been allowed to file their
application forms, could not be a ground to grant
permission where more than half the period of study
was already over. The learned ASG submitted that
where a certain degree of professionalism was
required, there was no scope of conducting bridge
courses to enable the students for that particular
year to catch up with the students of the
subsequent semester. The learned ASG submitted
that in the interest of the medical profession and
those who are the beneficiaries of the system, the
Special Leave Petitions were liable to be
dismissed.
13. It is no doubt true, that applications have
been filed by a large number of students for
admission in the Institutions imparting education
in the Indian form of medicine, with the leave of
the Court, but it is equally true that such leave
was granted without creating any equity in favour
Page 13
13
of the applicants. Those who chose to file their
applications did so at their own risk and it cannot
now be contended that since they have been allowed
to file their applications pursuant to orders
passed by the Court, they had acquired a right to
be admitted in the different Institutions to which
they had applied. The privilege granted to the
candidates cannot now be transformed into a right
to be admitted in the course for which they had
applied. Apart from anything else, one has to take
a practical view of the matter since more than half
the term of the first year is over. Though it has
been contended on behalf of the Institutions
concerned that extra coaching classes would be
given to the new entrants, it is practically
impossible for a student to pick up the threads of
teaching for the entire first year when half the
course had been completed. Page 14
14
14. It is not for us to judge as to whether a
particular Institution fulfilled the necessary
criteria for being eligible to conduct classes in
the concerned discipline or not. That is for the
experts to judge and according to the experts the
Institutions were not geared to conduct classes in
respect of the year 2011-12. It is also impractical
to consider the proposal of the colleges of
providing extra classes to the new entrants to
bring them upto the level of those who have
completed the major part of the course for the
first year. 
15. We are not, therefore, inclined to interfere
with the orders of the High Court impugned in these
Special Leave Petitions and the same are,
accordingly, dismissed.Page 15
15
16. Having regard to the facts involved, the
parties will bear their own costs.
...................CJI.
(ALTAMAS KABIR)
.....................J.
 (ANIL R. DAVE)
.....................J.
(VIKRAMAJIT SEN)
NEW DELHI
DATED: MARCH 06, 2013.

the opinion of the finger print expert does not bind the Court - no doubt, he has opined after comparing the disputed signatures of plaintiff No.1 with his admitted signatures that they are of plaintiff No.1. But, the opinion of the finger print expert does not bind the Court when the Court is of the considered opinion that there is no necessity to consider the same since it is discretion of the Court to rely upon it or not to come to a just conclusion in given circumstances. In the case on hand also, plaintiff No.1, who said to have executed Ex.B-1, himself has denied execution of the same and the evidence of DWs.1 and 2 is untrustworthy, as such, opinion of the finger print expert which can only be considered for collateral purpose need not be taken into consideration to come to a just conclusion, and therefore, the trial Court rightly did not take the evidence of DW.3 finger print expert into consideration.; ROR proceedings invalid documents cannot be taken into consideration - Coming to Ex.B-3 - ROR proceedings, though it is mentioned in it that on the application of defendant Nos.1 to 3, it was issued, there is no mention about the date of application for mutating their name for the subject property and it also does not show that the required procedure was complied with in doing so. It is also not mentioned that as to on the basis of which document, the ROR authority has deleted the name of plaintiff No.1 and incorporated the names of defendant Nos.1 to 3. Further, though Ex.B-3 shows that their names were incorporated basing on their application (date of which is not mentioned as referred supra) that the subject property is ancestral property and in partition, they got it, the same cannot be accepted since according to Mohammedan Law during the lifetime of father, his children cannot inherit the same, particularly in view of denial of the same by its executant himself. Furthermore, there is no satisfactory material to show as to why there was delay in mutation of the subject property till 20-09-1993 though Ex.B-2 was said to have been executed on 26-09-1982. In the circumstances, this Court is of the view that Ex.B-3 was issued without following due procedure, as such, the same is invalid and therefore, the subsequent documents – Exs.B-4 to B-12, which were issued based on Exs.B-2 and B-3, which are held to be fraudulent and invalid documents, are also invalid and the same cannot be taken into consideration.

*  THE HONOURABLE SRI JUSTICE B.N. RAO NALLA

+ S.A. No.108 OF 2012 AND S.A. (S.R.) No.1472 OF 2012

%  Date: 02-04-2012

#  Abdul Razak Miya (died per L.Rs.) & others                  ..  Appellants

v.

$  Abdul Gaffar & others                                                 ..  Respondents

!  Counsel for the Appellants         :  Sri Gangaiah Naidu

                                                            

^  Counsel for the Respondent       :  Sri Resu Mahender Reddy

                                                         

<  GIST:

>  HEAD NOTE:

?  CASES REFERRED:

C/15

HON’BLE SRI JUSTICE B.N. RAO NALLA

SECOND APPEAL No.108 OF 2012

AND

SECOND APPEAL (S.R.) No.1472 OF 2012

COMMON JUDGMENT:

At the request of both counsel, these appeals are being taken up for final disposal at the admission stage itself.

2.  S.A. No.108 of 2012 and S.A. (S.R.) No.1472 of 2012 are filed against the common judgment in A.S. No.198 of 2008 and A.S. No.199 of 2008 dated 27-10-2011, respectively, passed by the learned III Additional District Judge (Fast Track Court), Ranga Reddy District whereby the common judgment of the trial Court was reversed.

3.  A.S. Nos.198 and 199 of 2008 were filed against the common judgment in O.S. Nos.241 of 1999 and 742 of 2001 dated 19-07-2008, respectively, passed by the learned V Additional Senior Civil Judge
(Fast Track Court), Ranga Reddy District, whereby the suit in
O.S. No.241 of 1999 was decreed while the suit in O.S. No.742 of 2001 was dismissed.

4.  Originally the suit in O.S. No.241 of 1999 was filed by Abdul Razak Miya along with A. Madhava Reddy against his sons viz., Abdul Gaffar, Abdul Hafeez and Abdul Majeed, who born through his second wife Smt. Durdana Begum, for declaration of title and perpetual injunction over the suit schedule property.  During the pendency of the suit, as Abdul Razak Miya, who is plaintiff No.1, died, his third wife and her children were brought on record as plaintiff Nos.3 to 9 respectively; however, Abdul Jabbar and Smt. Shameem Sulthana, who are his son and daughter through his first and second wives respectively, were brought on record as defendant Nos.4 and 5 respectively.

5.  After filing of the suit in O.S. No.241 of 1999, the sons of plaintiff No.1 through his second wife,  who are the defendants in
O.S. No.241 of 1999, filed O.S. No.742 of 2001 against the plaintiffs in O.S. No.241 of 1999 and also one Kallem Narasimha Reddy (defendant No.1), and Abdul Jabbar (defendant No.5), who is son of Abdul Razak Miya (plaintiff No.1 in O.S. No.241 of 1999) through his first wife, and also Smt. Shameem Sulthana, who is daughter of Abdul Razak Miya through his second wife.  

6.  Now both these appeals are filed by the plaintiffs in
O.S. No.241 of 1999, who are defendant Nos.3, 2, 4 and 7 to 12 respectively, in O.S.No.742 of 1999.  In both the appeals, respondent Nos.1 to 3 are defendant Nos. 1 to 3 in O.S. No.241 of 1999 and plaintiffs in O.S. No.742 of 2001, however respondent Nos.4 and 5 are defendant Nos.4 and 5 in O.S. No.241 of 1999 and defendant Nos.5 and 6 in
O.S. No.742 of 2001; and respondent No.6 in S.A. (S.R.) No.1472 of 2012 is defendant No.1 in O.S. No.742 of 2001.  

7.  Since the trial Court clubbed both the suits together and common evidence was recorded in O.S. No.241 of 1999, and for the sake of convenience, the parties herein are referred to as they arrayed in O.S. No.241 of 1999.

8.  Since the parties, subject matter and schedule of properties in both the appeals are one and the same, they are being disposed of by this common judgment.

9.  The facts of both the appeals are as under:

(a)  O.S. No.241 of 1999 was filed for declaration and perpetual injunction restraining the defendants from interfering with their peaceful possession and enjoyment over the suit schedule property admeasuring 3-24 guntas of agricultural land i.e. Ac.1-24 guntas in Survey No.357, Ac.0-11 guntas in Survey No.359 and Ac.1-29 guntas in Survey No.360, situated at Nadergul Village, Saroornagar Mandal, Ranga Reddy District, stating that plaintiff No.1 is absolute owner and possessor of the same.

(b)  The case of the plaintiffs is that Smt. Mahaboob Begum, who is first wife of plaintiff No.1, died leaving her children Abdul Jabbar – defendant No.4 and Badrunnisa.  Thereafter, plaintiff No.1 married
Smt. Durdana Begum and she also died leaving her sons – defendant
Nos. 1 to 3 and a daughter – defendant No.5.  Since all the children born through the first and second wives were minors and there was nobody to look after their welfare, plaintiff No.1 married plaintiff No.3 – Kareemunnisa Begum about 29 years back from the date of filing the suit and she gave birth to plaintiff Nos.4 to 9.   Plaintiff No.3 looked after the welfare of all the children born through the first and second wives of plaintiff No.1 and performed their marriages including defendant Nos.1 to 3 and from then they are living separately by doing their own business.  Since plaintiff No.1 has five daughters and a son through plaintiff No.3 and has no source of income to meet their marriage expenses, he sold Acs.2-10 guntas of agricultural land in Survey No.365 for the marriage expenses of the first daughter through plaintiff No.3.  Likewise, to perform the marriage of his second daughter through plaintiff No.3, he entered into an agreement of sale with plaintiff No.2 – A. Madhava Reddy to sell the subject property by receiving Rs.1,00,000/- towards advance sale consideration vide cheque dated 13-02-1999.  Then, coming to know about the said agreement, defendant Nos.1 to 3 approached plaintiff No.1 and demanded their share in sale consideration, for which he refused to give any share since he has four unmarried daughters and a minor son.  Therefore, in order to extract some amount from plaintiff No.1, defendant Nos.1 to 3 have brought into existence Ex.B2 – family arrangement dated 26-09-1982 and other documents consequent thereto, and based on the same, they filed a suit in O.S. No.203 of 1999 on the file of the Principal Junior Civil Judge, East and North, Ranga Reddy District against plaintiff Nos.1 to 3 herein and one Kallem Narsimha Reddy for perpetual injunction, and obtained ex parte temporary injunction order dated 23-02-1999 and under the guise of the same, dug a bore-well in the subject property.  Then, plaintiff Nos.1 to 3 herein filed counter and got the ex partetemporary injunction order modified as one of status quo, but in spite of that defendant Nos.1 to 3 are causing interference in the peaceful possession of the plaintiffs over the subject property and the development work being done by plaintiff No.2 with the permission of plaintiff No.1.

(c)  The case of defendant Nos.1 to 3, who have filed O.S. No.742 of 2001, is that their father - plaintiff No.1 had succeeded to various properties of their grandfather and in view of his marriage with plaintiff No.3 as third wife, at their request to allot their shares in the properties and in order to make an end to family disputes, plaintiff No.1 executed family arrangement dated 26-09-1982 and as per the said arrangement, he gave subject property to them which was already under their possession and from then they are in continuous possession of their individual shares of Acs.1-08 guntas each.  Subsequently, they got mutated their names in the revenue records, and pattedar pass books were also issued to them vide orders dated 20-09-1993 of the Mandal Revenue Officer, Saroor Nagar Mandal.  While so, when plaintiff No.1 in collusion with plaintiff No.2 tried to trespass into the subject property on 20-02-1999 for levelling the subject property, they filed O.S. No.203 of 1999 on the file of Principal Junior Civil Judge, Ranga Reddy District for partition against plaintiff Nos.1 and 2 and two others and got temporary injunction.  While so, to defeat their interest, plaintiffs brought into existence Ex.A.23 and filed O.S. No.241 of 1999 seeking declaration of title and for perpetual injunction. 

10.  Both the suits i.e. O.S. No.241 of 1999 and O.S. No.742 of 2001 were clubbed together by the trial Court and recorded common evidence in O.S. No.241 of 1999.

11.  To prove their case, plaintiffs got examined PWs.1 to 3 and got marked Exs.A-1 to A-23 on their behalf.  On behalf of the defendants, DWs.1 to 3 were examined and Exs.B-1 to B-12 were marked apart from Exs.X-1 to X-3.

         12.  The trial Court taking the entire evidence and other material on record into consideration, by common judgment dated 19-07-2008, decreed the suit in O.S. No.241 of 1999 holding that plaintiff No.1 is absolute owner, possessor and pattadar of the subject property and dismissed the suit in O.S. No.742 of 2001 holding that the defendants failed to prove Ex.B-2 family arrangement dated 26-09-1982 which was said to have been executed by plaintiff No.1.  Challenging the same, defendants preferred A.S. Nos.198 and 1999 of 2008 and the first appellate Court after re-appreciating the entire evidence and other material on record allowed both the appeals reversing the common judgment of the trial Court and assailing the same, plaintiffs preferred these appeals, as already stated hereinabove. 

13.  Now, Sri Gangaiah Naidu, learned senior counsel appearing for the plaintiffs (appellants), would contend that the first appellate Court erred in upholding the validity of Ex.B.2 - family arrangement dated
26-09-1982 simply relying on the opinion of DW.3 - finger print expert that the disputed thumb marks of plaintiff No.1 and his admitted one belong to himself.  The first appellate Court failed to notice that the trial Court after examining the entire oral and documentary evidence adduced by both sides came to the conclusion that Ex.B-2 family arrangement is a fabricated one.  The first appellate Court ought to have noticed that Ex.B-2 - family arrangement is an unregistered document and the contents of it are not corroborated by the evidence of DWs.1 and 2.  It failed to see that survey number of the subject property was not mentioned in Ex.B-2 family arrangement.  It also failed to see that when it is the case of the defendants that before the third marriage of plaintiff No.1 with plaintiff No.3, Ex.B-2 was made, as to how and why plaintiff No.3 is a party to the same.  It failed to see that there is no validity to Ex.B-2 when it was denied by its executant himself.  It also failed to see that though Ex.B-2 arrangement was made in 1982, why mutation was made in 1993.  No material is placed to show the application for mutation, consequent notice by the Mandal Revenue Officer inviting objections for mutation and whether any objections were received from anyone, as such, Exs.B-2 and B-3 are nothing but fabricated one.  In the circumstances, it is contended that when the genuineness of Exs.B-2 and B-3 is in dispute and not proved, it cannot be said that the defendants have proved their title and possession over the subject property, as such, the first appellate Court is not justified in finding fault with the well considered judgment of the trial Court and reversing the same.

14.  Per contra, Sri R. Mahender Reddy, learned counsel for the defendants (respondents), contends that the first appellate Court rightly reversed the common judgment of the trial Court and there are no grounds warranting interference of this Court.  The first appellate Court rightly found fault with the trial Court in not considering the evidence of DW.3 - finger print expert which categorically says that the disputed thumb marks of plaintiff No.1 are of himself.  It also rightly found fault with the trial Court since it failed to see that mutation has taken place under Ex.B-3 in 1993, which is much prior to arising disputes between the parties in 1999, and plaintiff No.1 has not raised any dispute during those six years; and that Ex.B-4 pahanies for the years 1997-98, which are just before filing of the suits, clearly show ownership and possession of defendant Nos.1 to 3 over the subject property.  Accordingly, the first appellate Court rightly pointed out that issuance of Exs.B-5 to B-10 title deeds and Ex.B-11 certified copy of panchanama establish possession of defendant Nos.1 to 3 over the subject property and the same strengthens the case of defendant Nos.1 to 3 that plaintiff No.1 has executed Ex.B-2 family arrangement and through the same they got ownership and possession of the subject property and based on Ex.B.2, Ex.B.3 - R.O.R. proceedings were issued in their name.

15.  Now the only point that arises for consideration is whether the first appellate Court has committed any error or irregularity in passing the impugned common judgment?

POINT:

16.  Coming to the genuineness or otherwise of Ex.B-2 family arrangement dated 26-09-1982, no doubt, DW.3 finger print expert opined that the thumb impressions on it (Ex.B-2) are of plaintiff No.1.  However, when plaintiff No.1 himself is denying execution of Ex.B-2, the burden is on defendant Nos.1 to 3 to prove its genuineness.  To prove the same, defendant No.3 got examined himself as DW.1 and one Shaik Shiyauddin, who is a witness to Ex.B-2, as DW.2 and the finger print expert as DW.3.  As rightly pointed out by the trial Court there are major discrepancies in the evidence of DWs.1 and 2 themselves. 
The evidence of DW.1, who is defendant No.3, shows that his father, plaintiff No.1, is an illiterate and he never used to sign, whereas the evidence of DW.2, who is a witness to Ex.B-2 and also a close relative to defendant Nos.1 to 3 as he is son of the sister of their mother and at his and others request plaintiff No.1 said to have executed Ex.B.2, shows that plaintiff No.1 put his thumb impressions and also his signatures on Ex.B-2.  This part of their evidence gives rise to the question as to execution of Ex.B-2 and presence of the parties therein at a time, which goes to the root of the defendants’ case.  Further, in his cross-examination, DW.2 clearly stated that Ex.B-2 was executed for the welfare of children of second wife of plaintiff No.1.  But, Ex.B-2 shows that Abdul Jabbar – defendant No.4, who is son of the first wife of plaintiff No.1, is also a party to it along with defendant Nos.1 to 3 herein, but surprisingly he is not claiming any share out of the subject property.   This circumstance shows that if Ex.B-2 is really a genuine one, Abdul Jabbar, who has share in the subject property according to Ex.B-2, would not keep quite particularly when it is the case of defendant Nos.1 to 3 that they alone are entitled to subject property as they are owners of the same and are in possession of Ac.1-08 guntas each.  Furthermore, this Jabbar is a witness to Ex.A-23 agreement of sale dated 13-02-1999 under which plaintiff No.1 agreed to sell the subject property to plaintiff No.2, which shows that if Abdul Jabbar is really a party to Ex.B-2 family arrangement, he would not have stand as a witness to Ex.A-23.  It is also not the case of defendant Nos.1 to 3 that Abdul Jabbar has no share in the subject property or he sold/relinquished his share in their favour or he colluded with the plaintiffs.  Apart from this DW.2 stated in his cross-examination that Ex.B-2 family arrangement was made by plaintiff No.1 before his marriage with plaintiff No.3 and the ages of defendant Nos.1 to 3 were 10, 8 and 4 years respectively at that time.  But, when he was confronted with Ex.B-2, he stated that Ex.B-2 was executed subsequent to the third marriage of plaintiff No.1 and the ages of defendant Nos.1 to 3 were 25, 21 and 19 years respectively and his earlier statement in that regard is wrong.  Furthermore, the case of defendant Nos.1 to 3 is that Ex.B.2 family arrangement dated 26-09-1982 was made to safeguard their interest at the time of plaintiff No.1’s third marriage, but as per plaintiffs’ case the third marriage of plaintiff No.1 took place about
29 years back prior to filing of the suit which means approximately in 1970 and the same proves with the ages of children of plaintiff No.3.  Thus, there is no corroboration to the case of defendant Nos.1 to 3 that at the time of third marriage of plaintiff No.1 Ex.B.2 was made, since Ex.B.2 is of 1982 and the third marriage was taken place in 1970 and there is about 12 years gap.  All these circumstances coupled with the discrepancies in the evidence of DWs.1 and 2 and the instance of Abdul Jabbar being a party to Ex.B-2 family arrangement not claiming any share and also his being a witness to Ex.A-23 agreement of sale creates any amount of doubt as to genuineness of Ex.B-2.

17.  Coming to the evidence of DW.3, no doubt, he has opined after comparing the disputed signatures of plaintiff No.1 with his admitted signatures that they are of plaintiff No.1.  But, the opinion of the finger print expert does not bind the Court when the Court is of the considered opinion that there is no necessity to consider the same since it is discretion of the Court to rely upon it or not to come to a just conclusion in given circumstances.  In the case on hand also, plaintiff No.1, who said to have executed Ex.B-1, himself has denied execution of the same and the evidence of DWs.1 and 2 is untrustworthy, as such, opinion of the finger print expert which can only be considered for collateral purpose need not be taken into consideration to come to a just conclusion, and therefore, the trial Court rightly did not take the evidence of DW.3 finger print expert into consideration.  

However, the first appellate Court relying on the evidence of DW.3 and Ex.B-3 ROR proceedings, Ex.B-4 pahanies, Exs.B-5 to B-10 title deeds and pass books, Ex.B-11 certified copy of a panchanama and Ex.B-12 tax receipt, which are based on Ex.B-2, came to an erroneous conclusion that Ex.B-2 is a genuine document. 

18.  Coming to Ex.B-3 - ROR proceedings, though it is mentioned in it that on the application of defendant Nos.1 to 3, it was issued, there is no mention about the date of application for mutating their name for the subject property and it also does not show that the required procedure was complied with in doing so.  It is also not mentioned that as to on the basis of which document, the ROR authority has deleted the name of plaintiff No.1 and incorporated the names of defendant Nos.1 to 3.  Further, though Ex.B-3 shows that their names were incorporated basing on their application (date of which is not mentioned as referred supra) that the subject property is ancestral property and in partition, they got it, the same cannot be accepted since according to Mohammedan Law during the lifetime of father, his children cannot inherit the same, particularly in view of denial of the same by its executant himself. Furthermore, there is no satisfactory material to show as to why there was delay in mutation of the subject property till
20-09-1993 though Ex.B-2 was said to have been executed on
26-09-1982.  In the circumstances, this Court is of the view that Ex.B-3 was issued without following due procedure, as such, the same is invalid and therefore, the subsequent documents – Exs.B-4 to B-12, which were issued based on Exs.B-2 and B-3, which are held to be fraudulent and invalid documents, are also invalid and the same cannot be taken into consideration.

19.  The trial Court, in the case on hand, based on the material available on record and also having the opportunity of observing the demeanour of the parties, came to the conclusion that Ex.B-2 is a fabricated and fraudulent one.  The trial Court is fully justified in doing so and the first appellate Court is wrong in finding fault with the trial Court in this regard.

20.  For the aforesaid reasons, this Court is of the considered opinion that the first appellate Court has committed error and irregularity in allowing the first appeals by reversing the well considered judgment of the trial Court.  The point is accordingly answered.

21.  Therefore, Second Appeal No.108 of 2012 and Second Appeal (SR) No.1472 of 2012 are allowed setting aside the common judgment in
A.S. Nos.198 and 199 of 2008 dated 27-10-2011 of the first appellate Court and confirming the common judgment in O.S. Nos.241 of 1999 and 742 of 2001 dated 19-07-2008 of the trial Court.  No order as to costs.

_________________

B.N. RAO NALLA, J

Date:02-04-2012.

NOTE:

L.R. Copy to be marked.

(B/O)PV/STP

whether on restoration of a suit an order of injunction passed is automatically revived or not. - I am, therefore, of the opinion that the interim order of injunction did not revive on restoration of the suit. The Courts, however, would be well-advised keeping in view the controversy to specifically pass an order when the suit is dismissed for default stating when interlocutory orders are vacated and on restoration of the suit, if the court intends to revive such interlocutory orders, an express order to that effect should be passed.

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CASE NO.:
Appeal (civil) 2634 of 2004
PETITIONER:
VAREED JACOB
RESPONDENT:
SOSAMMA GEEVARGHESE & ORS.
DATE OF JUDGMENT: 21/04/2004
BENCH:
S.B. Sinha.
JUDGMENT:
J U D G M E N T
(@ S.L.P. (CIVIL) NO. 18699 OF 2001)
S.B. SINHA, J :
 Leave granted.
 The short question involved in this appeal which arises
out of a judgment and order dated 27.7.2001 in C.R.P. No.
2003 of 1998-B passed by the High Court of Kerala at
Ernakulam is as to
whether on restoration of a suit an order 
of injunction passed is automatically revived or not. 
 An order of injunction can be passed under Order 39,
Rules 1 and 2 of the Code of Civil Procedure. Such an order
can also be passed by the Court in exercise of its inherent
jurisdiction in the event the prayer for grant of injunction
does not fall within the scope of Section 94 of the Code of
Civil Procedure read with Order 39, Rules 1 and 2 thereof.
 An order of injunction can be granted by the Court only
when there exists any power therefor.
In Morgan Stanley 
Mutual Fund Vs. Kartick Das [(1994) 4 SCC 225] 
this Court 
has held that having regard to the scheme of the Consumer 
Protection Act, the consumer courts do not have any power to 
issue injunction. The jurisdiction to issue an order of 
injunction, appointment of a receiver or to pass an order of 
attachment before attachment would, therefore, depend upon 
the scheme of the statute and the powers conferred on the 
Court thereby.
This may be one of the factors which is
required to be taken into consideration for making a
distinction between a supplemental proceedings and
incidental proceedings.
 A court or a tribunal entitled to adjudicate upon an 
issue arising in a lis between the parties has the requisite 
jurisdiction to pass orders which are incidental thereto so 
as to enable it to effectively adjudicate the same. Such a 
power of a Court or a Tribunal to do all things necessary to 
effectively adjudicate upon the lis need not, in other 
words, be specifically conferred by the statute; such power 
being ancillary to the power of the court. It is adjunct to
the court’s/tribunal’s power of adjudication.
 The Code of Civil Procedure uses different expressions 
in relation to incidental proceedings and supplemental 
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proceedings.
Incidental proceedings are referred to in Part 
III of the Code of Civil Procedure 
whereas Supplemental 
Proceedings are referred to in Part VI thereof. 
 Is there any difference between the two types of 
proceedings?
 A distinction is to be borne in mind keeping in view 
the fact that the incidental proceedings are in aid to the 
final proceedings. In other words an order passed in the 
incidental proceedings will have a direct bearing on the 
result of the suit.
Such proceedings which are in aid of 
the final proceedings cannot, thus, be held to be at par 
with supplemental proceedings which may not have anything to 
do with the ultimate result of the suit.
 Such a supplemental proceeding is initiated with a view 
to prevent the ends of justice from being defeated.
The
supplemental proceedings may not be taken recourse to as a
routine matter but only when an exigency arises therefor.
The orders passed in the supplemental proceedings may some
time cause hardships to the other side and, thus, are
required to be taken recourse to when a situation arises
therefor and not otherwise. There are well-defined
parameters laid down by the Court from time to time as
regards the applicability of the supplemental proceedings.
 Incidental proceedings are, however, taken recourse to
in aid of the ultimate decision of the suit which would mean
that any order passed in terms thereof, subject to the rules
prescribed therefor, would have a bearing on the merit of
the matter. Any order passed in aid of the suit are
ancillary powers. Whenever an order is passed by the Court
in exercise of its ancillary power or in the incidental
proceedings, the same may revive on revival of the suit.
But so far as supplemental proceedings are concerned, the
Court may have to pass a fresh order.
 An order to furnish security to produce any property
belonging to a defendant and to place the same at the
disposal of the Court or order the attachment of any
property as also grant of a temporary injunction or
appointment of a receiver are supplemental in nature. The
effect of such order may be felt even after decree is
passed. An order of attachment passed under Order 38 of the
Code of Civil Procedure would be operative even after the
decree is passed. Such an order of attachment passed under
Order 38 can be taken benefit of by the decree holder even
after a decree is passed. An order of temporary injunction
passed in a suit either may merge with a decree of permanent
injunction or may have an effect even if a decree is passed,
as, for example, for the purpose of determination as regard
the status of the parties violating the order of injunction
or the right of a transferee whom have purchased the
property in disobedience of the order of injunction. The
orders passed in supplemental proceedings may have to be
treated distinctly as opposed to an order which is ancillary
in nature or which has been passed in the incidental
proceedings.
 The question must, therefore, be considered having
regard to the aforementioned legal principles in mind. We
may at this juncture notice those decisions wherein it has
been held that the interlocutory order is automatically
revived on restoration of suits.
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 In Bankim Chandra and Others Vs. Chandi Prasad [AIR
1956 Patna 271] the Court was concerned with the revival of
an order of stay. It was held, having regard to the scheme
of law laid down in the Code of Civil Procedure that
interlocutory orders like one of ’stay’ are nothing but
ancillary orders and they are all meant to aid and
supplement the ultimate decision arrived at in the main suit
or appeal. Even in such a situation when there is any other
factor on the record or in the order passed to show to the
contrary even an order of stay shall not automatically
revive. This decision, therefore, is an authority for the
proposition that the Code of Civil Procedure lays down two
different schemes, one in relation to the ancillary orders
which would aid and supplement the decisions arrived at in
the main appeal and the one which may not have to do
anything therewith.
 In Tavvala Veeraswamy Vs. Pulim Ramanna and Others [AIR 
1935 Madras 365] 
a Full Bench of the Madras High Court held 
that even an order of attachment before judgment would 
automatically revive on restoration of a suit. 
In that 
case, Beesley, CJ speaking for the Full Bench, however, 
erroneously proceeded on the basis that an order of 
attachment is also an ancillary order and in that view of 
the matter held:
"...It does not seem to me reasonable 
that the plaintiff in a suit who has got 
an attachment before judgment should 
have again, after the restoration of the 
suit after its dismissal for default, to 
apply to the Court for a fresh 
attachment and that having done so the 
defendant should have to apply to raise 
the attachment by producing a surety or 
sureties. The common sense view of the 
matter is that all ancillary orders 
should be restored on the suit’s 
restoration without any further 
orders."
 The question as to
whether an order of attachment is a 
supplemental order or not was not at all considered therein. 
 In Shivaraya and Others Vs. Sharnappa and Others [AIR
1968 Mysore 283], a learned Single Judge followed Bankim
Chandra and Others (supra) and Tavvala Veeraswamy (supra)
which considered such interlocutory orders to have been
passed in exercise of the Court’s ancillary powers.
 In Ganesh Prasad Sah Kesari and Another Vs. Lakshmi
Narayan Gupta [(1985) 3 SCC 53], this Court was concerned
with a case as regard the power of the court to extend the
time for depositing rent by the defendant. Interpreting
Section 11A of Bihar Buildings (lease, Rent and Eviction)
Control Act, 1947, it was held that the Court had such
power; differing with the view of the High Court as regard
interpretation of such a provision as directory in stead and
in place of being mandatory.
 However, an observation had been made that the Learned
Trial Judge did grant relief to the tenant by refusing to
strike off the defence on an erroneous view that the
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direction did not revive after setting aside of the ex parte
order.
The said observation is obiter in nature and in any 
event, no detailed discussions as regard the nature of the 
power of the Court under Section 148 of the Code of Civil 
Procedure had been made.
The jurisdiction of the court
under Section 148 of the Code of Civil Procedure is an
ancillary power and not a supplementary one.
 In Smt. Radhey Bai Vs. Smt. Savitri Sharma [1975 RLR
234], Delhi High Court was concerned with an ancillary power
of a court as would appear from the following observations:
"7...It is, therefore, obvious that on
setting the dismissal aside, the court
has to appoint a day for proceeding with
the suit and not for trying the suit de
novo. This indicates that the further
proceedings in the suit have to start
from the stage and point where they were
pending before the suit was dismissed
and there is no requirement of law that
upon such restoration the entire
proceedings must be reached again.
Consequently on the restoration of a
dismissed suit, all the previous
proceedings and the interim orders
revive and do not require a fresh order
to give them vigour."
 In Kishan Lal Vs. Smt. Kamla Devi Sharma [1979 RLW
369], the Court while again dealing with a rent control
matter held that when an order has been passed under Sub Section (3) of Section 13 of the Act as existed at the
relevant time, no fresh order is required to be passed.
 In Ulahannan Chacko Vs. Mathai [1986 KLT 301]
the Court
was concerned with an application for amendment of plaint in
relation whereto a contention was raised that the said
application could not have been brought into life as the
appeal was dismissed holding:
"...When restoration of the suit or 
appeal is allowed, the parties are to be 
restored to the same position in which 
they were situated when the court 
dismissed the suit or appeal. Then on 
restoring the appeal dismissed for 
default, the ancillary matters disposed 
of in consequence of such dismissal must 
also get restored and the consequential 
orders passed on dismissal of the suit 
or appeal should automatically get 
vacated."
 In Abdul Hamid Vs. Karim Bux and Others [AIR 1973 All
67], a Full Bench of the Allahabad High Court noticing a
large number of decisions including some of which have been
referred to hereinbefore held:
"17. The language of Order 38, R.9 no
doubt is capable of both the
interpretations but the well-recognised
rule of interpretation is that where the
language is capable of two
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interpretations and where the section of
the Act has received a judicial
construction and the said construction
has long been acted on without any
alteration in the statute, the
interpretation so recognised and acted
on is to be accepted on the principle of
stare decisis because it is the general
maxim that even a point of law has been
settled by decision it forms a precedent
which is not afterwards to be departed
from. The latter part of the rule which
requires that the attachment shall be
removed when the suit is dismissed is
either directory or mandatory. If it is
directory the attachment is removed
automatically in spite of no order of
the Court. If it is mandatory, then the
duty of the Court is to pass an order
and a party cannot be penalised where
the consequences for the dismissal
appear to be the witdrawal of the
attachment before judgment. The Lower
appellate Court in these circumstances
was right in upholding respondent No.
1’s claim based on the transfer in his
favour and rejecting the plaintiff appellant’s contentions."
 The question before us, however, had received the
attention of the Court as would appear from a long line of
decisions.
 In Chunni Kuar Vs. Dwarka Prasad [1887 All WN 297], it
was held:
"That temporary injunction came to an
end on the passing of the decree, and
nothing has happened to revive or keep
alive the order for the temporary
injunction. Dwarka Prasad was not left
without his remedy. He might have
applied to this Court for an injunction
pending the determination of his appeal.
No such application has been made to
this Court, and therefore, I am of
opinion that Musammat Chunni Kuar was
and is entitled to have the money paid
out of Cour to her and to have this
appeal allowed with Costs. The view I
take is fortified by the judgment in
Sheikh Moheeooddeen Vs. Sheikh Ahmed
Hossein (14 W.R. 384)"
 As far back in 1887, the Allhabad High Court while
considering the provisions of Sections 311 of the Old Code
of Civil Procedure which is in pari materia with Order 38
Rule 5 of the Code of Civil Procedure, 1908 and referring to
Chunni Kuar Vs. Dwarka Prasad [1887 All WN 297] noticed a
contention which is in the following terms:
"On the other hand, Mr. Colvin relies
upon the last part of s.488 to show that
an attachment before judgment comes to
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an end "when the suit is dismissed;"
and the learned counsel also lays stress
upon the provisions of s. 490, and
argues that the words of that section
contemplate that it is only when a
decree is given in favour of the
plaintiff that re-attachment in
execution of such decree is dispensed
with, implying that such attachment is
necessary where the suit ended in
dismissal of the plaintiff’s claim. For
this contention the learned counsel also
relies upon the ruling of the learned
Chief Justice in Chunni Kuar Vs. Dwarka
Prasad where it was held that a
temporary injunction under s. 492,
notwithstanding the use of the phrase
"till further orders," comes to an end
on the termination of the suit in which
such injunction was passed, although no
express order had been made by the Court
withdrawing or setting aside such
injunction."
 Mahmood, J. agreeing with the said contention observed:
"I am of opinion that this contention 
is sound, and that the case last cited, 
though relating to temporary injunction, 
proceeds upon a principle analogous to 
attachments before judgment, both being 
ad interim proceedings which naturally 
cease to have any force as soon as the 
suit itself, in respect of which they 
were taken, comes to a close. In other 
words, an attachment before judgment 
under s.488, like a temporary injunction 
under s.492, becomes functus officio as 
soon as the suit terminates."
 This decision, therefore, is an authority for two 
propositions, namely, (i) an order of attachment before 
judgment does not entail an automatic revival upon 
restoration of a suit which is dismissed for default; and 
(ii) for that purpose an order of injunction would be 
treated at par with an order of attachment before judgment.
 In Gangappa Vs. Boregowda [AIR 1955 Mysore 91], a Full
Bench of the Madras High Court by referring such proceeding
as a supplemental proceeding required for grant of
extraordinary relief as contra-distinguished from an
ancillary order which is granted in the aid of a proceeding,
held:
"10. An attachment before judgment is 
in the nature of an interlocutory order. 
It is an extra ordinary relief granted 
to a plaintiff even before his claim is 
adjudicated upon and found to be true 
and if a suit is dismissed either for 
default or on its merits by the trial 
Court and the attachment before judgment 
has therefore to cease, he can certainly 
have not as much grievance as a person 
who has obtained a decree and attached 
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property of the judgment-debtor whose 
attach property has been questioned and 
decided in summary proceedings and which 
are made expressly subject to a decision 
in a regular suit. Moreover, it cannot 
also be urged that all interlocutory 
orders like say those passed on 
applications for temporary injunction 
the operation of which would have to 
cease on the dismissal of a suit, would 
automatically be revived or can be 
deemed to be in force without any 
further orders by an appellate court or 
by the same Court after the suit is 
dismissed. To hold so would lead to 
obvious and real difficulties. It is 
not also as though the plaintiff in such 
a case has no remedy. He could always 
apply to the same Court if a suit which 
has been dismissed for default is 
restored to file or to an appellate 
court which has also ample powers to 
grant an order of attachment before 
judgment under the provisions of S. 
107(2), Civil P.C. In any event the 
possibility of hardship cannot warrant 
the ignoring of the express provisions 
of O.38, R.9 by which it is specifically 
laid down that an attachment before 
judgment shall cease by the dismissal of 
a suit."
 It will, therefore, be seen that the Court has in that
case also equated the order of injunction with an order of
attachment.
 Yet again in Nagar Mahapalika, Lucknow Vs. Ved Prakash
[AIR 1976 All 264] it was held:
"4. As long ago as 1887 a question of
similar nature arose for consideration
before this Court in Chunni Kuar Vs.
Dwarka Prasad (1887 All WN 297). It was
observed therein that an attachment
before judgment like a temporary
injunction becomes functus officio as
soon as the suit terminates. Again, a
question pertaining to attachment before
judgment came up for consideration
before this Court in Ram Chand Vs. Pitam
Mal (1888) ILR 10 All 506. Relying on
Chunni Kuar’s case (supra) that
principle was reiterated with approval.
The other High Courts also considered
this question in a number of cases.
Finally, the question was raised in
Abdul Hamid Vs. Karim Bux before this
Court as to whether on the dismissal of
a suit in default in atttachment before
judgment automatically lapsed and a
fresh attachment was necessary on the
restoration of the suit, or whether on
the restoration of the suit the
attachment previously made is revived or
is survived. This question was referred
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to a Full Bench of the Court. The 
majority view was that on the dismissal 
of suit in default the attachment before 
judgment automatically ceases and a 
fresh attachment is necessary on the 
restoration of the suit."
 In Kanchan Bai Vs. Ketsidas and others [AIR 1991 Raj. 
94], it was held:
"6. The only question for consideration
in this application is
whether on the 
setting aside of the order of rejection 
of the plaint and its remand by the 
appellate court, the temporary 
injunction issued by the trial Court 
stood revived? 
It is well settled law 
that interlocutory orders which are 
meant to aid and supplement the ultimate 
decision arrived at in the main suit or 
appeal would be ancillary order and such 
order would stand revived automatically 
on the restoration of the suit. Orders 
granting temporary injunction do not aid 
and supplement the ultimate decision of 
the suits. As such they cannot be said 
to be ancillary orders."
 In Ranjit Singh Vs. Dr. Sarda Ranjan Prasad Sinha [AIR
1981 Patna 102] following Bankim Chandra (supra), the Patna
High Court holding that an order striking off of tenant’s
defence for non deposit of rent automatically revived, L.M.
Sharma, J. (as learned Chief Justice of India then was),
however, noticed that by restoration of the suit, the order
dated 13.1.1978 whereby an order directing to deposit the
arrears of rent did not revive, stated the law thus:
"The order in regard to striking off
the defence is vitally different from
the order directing the arrears of rent
to be deposited. I, therefore, hold
that in the present case, the order
dated 6.2.1979 revived automatically on
the restoration of the suit and the view
taken by the court below is correct."
 The Parliament consciously used two different
expressions ’incidental proceedings’ and ’supplemental
proceedings’ which obviously would carry two different
meanings.
The expression ’ancillary’ means aiding, auxiliary;
subordinate; attendant upon; that which aids or promotes a
proceeding regarded as the principal.
The expression ’supplementary proceeding’ on the other
hand, would mean a separate proceeding in an original
action, in which the court where the action is pending is
called upon to exercise its jurisdiction in the interest of
justice.
The expression ’incidental’ may mean differently in
different contexts. While dealing with a procedural law, it
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may mean proceedings which are procedural in nature but when
it is used in relation to an agreement or the delegated
legislation, it may mean something more; but the distinction
between an incidental proceeding and a supplemental
proceeding being obvious cannot be ignored.
Indisputably, the effect of an order passed under
different provisions of Section 94 of the Code of Civil
Procedure would be different. They have been so legislated
keeping in view different exigencies of circumstances but it
must not be forgotten that the power thereunder is to be
exercised in the interest of justice. The statutory scheme
therefor is that supplemental proceeding should be taken
recourse to only when the interest of justice is required to
be sub-served, although the interlocutory order may not have
anything to do with the ultimate decision of the court.
 The consequences of an order of attachment before
judgment as also, an order of injunction can be grave. By
reason of such an order, a right of a party to the lis may
be affected or remained under animated suspension. By reason
of an interlocutory order whether in terms of Order 38,
Order 39 or Order 40, a person’s right to transfer a
property may remain suspended as a result whereof he may
suffer grave injury. When the suit is dismissed for
default, he may exercise his right. If it is to be held
that on restoration of the suit the order of attachment
before judgment or an order, an injunction is automatically
revived, as a result whereof the status of the parties would
be in the same position as on the date of passing of the
initial interlocutory order, they may be proceeded with for
violation of the order of injunction or an order of
attachment before judgment. The right of subsequent
purchaser may also be affected. By reason of taking
recourse to a supplemental proceedings, the rights of the
parties and in some cases the right of even a third party
cannot be allowed to be taken away.
In this case, this Court is not concerned with the
question as to whether substantive changes have been made in
Order 38 Rule 5 by Code of Civil Procedure, 1908 vis-‘-vis
Code of Civil Procedure, 1859. The question is as to
whether the power of the court to pass an order of
attachment before judgment is an ancillary power or a
supplemental power. The provisions of Order 38 and Order 39
have been equated by the court presumably not on the ground
that they provide for different interlocutory reliefs but
having regard to the nature of the proceedings vis-‘-vis the
reliefs which can ultimately be granted. It would also not
be correct to hold that the attachment proceeding is in
effect and substance different from an order of injunction
on the ground that the former is a part of execution
process.
 The provisions of Order 38 Rule 9 of the Code of Civil
Procedure, in my considered opinion, are not of much
importance. The rule confers an independent and substantive
statutory right on a defendant to bring it to the notice of
the court that he is in a position to furnish security to
meet the claim of the plaintiff and as such an order of
attachment need not continue. The order of attachment also
comes to an end in terms of the aforementioned provision
when the suit is dismissed. The very nature of an order of
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attachment entails that in the event of dismissal of suit,
the order comes to an end. Such a provision has been made
by the legislature by way of abundant caution. Although it
is of not much importance but we may notice that there
exists a conflict of opinion as regard consequences of an
order of attachment upon reversal of a judgment of dismissal
of suit in appeal, namely, as to whether in the event the
suit is decreed by the appellate court, an order of
attachment would automatically be restored or not.
 It is also of some importance that there exists a view
that an order of dismissal of a suit does not render an
order of attachment void ab initio as a sale of property
under order of attachment would be invalid even after the
date of such sale and the attachment is withdrawn.
A converse case may arise when the property is sold
after the suit is dismissed for default and before the same
is restored. Is it possible to take a view that upon
restoration of suit the sale of property under attachment
before judgment becomes invalid? The answer to the said
question must be rendered in the negative. By taking
recourse to the interpretation of the provisions of the
statute, the court cannot say that although such a sale
shall be valid but the order of attachment shall revive.
Such a conclusion by reason of a judge-made law may be an
illogical one.
 A construction which preserves the rights of the
parties pending adjudication must be allowed to operate vis-
‘-vis the privilege conferred upon a plaintiff to obtain an
interlocutory order which loses its force by dismissal of
suit and, thus, may not revive, unless expressly directed,
on restoration of the suit.
A suit or a proceeding which is barred by limitation 
would oust the jurisdiction of the court to entertain the 
same. When a proceeding is barred by limitation, it 
culminates in a right to the non-suitor. Such a right can
be curtailed only by express terms of a statute. A statute
may furthermore provide for extension of a period of
limitation in certain situation. The Code of Civil
Procedure is silent as to the effect of revival of the
interlocutory order on restoration of a suit. This case
demonstrates as to how a person for no fault on his part
would suffer prejudice when such a right is being taken
away. Such a provision which would confer jurisdiction of a
court to entertain a proceeding which it otherwise would not
have in terms of the Limitation Act, 1963, in my opinion,
should be strictly construed.
 From the decisions rendered by different High Courts,
therefore, the law that emerges is that there exists a
distinction between ancillary orders which are required to
be passed by the court in aid of or supplemental to the
ultimate decision of the Court; as contra distinguished to an
order passed under Part VI of the Code of Civil Procedure in
terms whereof an order is passed in favour of a party to the
lis which may not have a bearing on the ultimate result of
the suit. An interlocutory order passed in a suit may not
also have anything to do with the relief prayed for by the
plaintiff. An order for injunction or appointment of
receiver can be passed even at the instance of the
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defendant. An order which has been obtained by the
defendant may not revive on restoration of the suit.
Supplementary proceedings, thus, envisage that such a power
must be specially conferred upon the Court which are
required to be passed in the interest of justice
irrespective of the fact as to whether the same would
ultimately have any bearing with the reliefs claimed in the
suit or not. In absence of any statutory provisions such a
power cannot be exercised whereas a power which is ancillary
or incidental, can always be exercised by the Court in aid
of and supplemental to the final order that may be passed.
Furthermore, a jurisdiction expressly conferred by a statute
and an inherent power, subject to just exceptions, must be
treated differently.
 I am, therefore, of the opinion that the interim order 
of injunction did not revive on restoration of the suit. 
The Courts, however, would be well-advised keeping in view 
the controversy to specifically pass an order when the suit 
is dismissed for default stating when interlocutory orders 
are vacated and on restoration of the suit, if the court 
intends to revive such interlocutory orders, an express 
order to that effect should be passed.
 I respectfully dissent with the opinion of Hon’ble
theChief Justice of India.
 I will, therefore, set aside the impugned order and
allow the appeal. No costs.