* Author
[2024] 1 S.C.R. 517 : 2024 INSC 36
Asma Lateef & Anr.
v.
Shabbir Ahmad & Ors.
(Civil Appeal No. 9695 of 2013)
12 January 2024
[B.R. Gavai, Dipankar Datta* and Aravind Kumar, JJ.]
Issue for Consideration
Whether the order dated 05.08.1991 (vide which application u/
rr.5 and 10 of Or.VIII, CPC was allowed by the Trial Court for
pronouncement of judgment against defendant no.2 in the suit)
suffered from a jurisdictional error so grave that the decree drawn
up subsequently is incapable of execution by the Executing Court
and an objection that it is inexecutable was available to be raised
u/s. 47, CPC by the respondents 1 to 3.
Headnotes
Code of Civil Procedure, 1908 – rr. 5, 10 of Or. VIII and s.47
– Respondents 1 to 3 had filed an objection u/s. 47 of the
CPC in an execution application filed before the Executing
Court by the appellants-plaintiffs – It was urged, based on the
case pleaded therein, that the decree put to execution was
inexecutable – The Executing Court allowed the objections
and the execution application was dismissed – However, the
Revisional Court directed the Executing Court to proceed
with the execution of decree – Respondents 1 to 3 filed
application u/Art. 227 against the revisional order – The High
Court quashed the order passed by the Revisional Court and
relegated the parties to the remedy of having their rights, in
respect of the suit property, adjudicated by the appropriate
forum – Propriety:
Held: Appellants-plaintiffs had instituted a civil suit against the three
defendants-K (defendant no.1), K’s son S (defendant no.2) and
R (defendant no.3) – K filed his written statement on 05.12.1990
and inter-alia contended that suit was barred by s.331 of the Uttar
Pradesh Zamindari Abolition and Land Reforms Act, 1950 – No
written statements was filed by other two defendants – Appellants
518 [2024] 1 S.C.R.
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moved an application u/rr. 5, 10 of Or.VIII, CPC for pronouncement
of judgment against S (defendant no.2) and the same was allowed
– K passed away and the suit against him was dismissed as
abated – In the instant case, the trial Court is presumed to be
aware of the fact that the written statement of K was on record or
else it would not have fixed the next date for settling ‘issues’ – In
a situation where maintainability of the suit was in question and
despite S not having filed his written statement, it was not a case
where the Trial Court could simply pronounce judgment without
even recording a satisfaction that it had the jurisdiction to try
the suit and adjudicate the contentious issue(s), not to speak of
pronouncing its verdict against S without assigning a single reason
by treating the averments in the plaint to be admitted – The High
Court rightly observed that even on pronouncement of judgment
against S, the lis remained alive as against K and decision on the
objection as to maintainability could have resulted in a contrary
decision – In the matter at hand, the filing of the written statement
by K denying the averments made in the plaint warranted that the
appellants’ claims be proved by evidence, oral and/or documentary,
instead of decreeing the suit against one of the defendants in a
most slipshod manner – As far as the objection available to the
respondents 1 to 3 u/s. 47 of CPC is concerned, it is the settled
position of law that the powers of an executing court, though
narrower than an appellate or revisional court, can be exercised
to dismiss an execution application if the decree put to execution
is unmistakably found to suffer from an inherent lack of jurisdiction
of the court that made the same rendering it a nullity in the eyes
of law – The Executing Court and the High Court were right in
holding that the objection raised by the respondents 1 to 3 to the
executability of the decree was well-founded – Further, the decision
rendered by a court on the merits of a controversy in favour of the
plaintiff without first adjudicating on its competence to decide such
controversy would amount to a decision being rendered on an illegal
and erroneous assumption of jurisdiction and, thus, be assailable
as lacking in inherent jurisdiction and be treated as a nullity in the
eyes of law; as a logical corollary, the order dated 05.08.1991 is
held to be ab initio void and the decree drawn up based thereon
is inexecutable – That apart, the order dated 05.08.1991 does not
reveal any adjudication leading to determination of the rights of the
parties in relation to any of the matters in controversy in the suit and,
therefore, the decree since drawn up is not a formal expression of
[2024] 1 S.C.R. 519
Asma Lateef & Anr. v. Shabbir Ahmad & Ors.
an adjudication/determination since there has been no adjudication/
determination so as to conform to the requirements of a decree
within the meaning of section 2(2) of CPC – Therefore, the trial
Court had no authority to decree the suit against S in exercise of
its power u/r.10 of Or.VIII, CPC – No reason to interfere with the
judgment of the High Court. [Paras 6,20,29,41,50,52]
Code of Civil Procedure, 1908 – r.10 of Or. VIII – Scope and
extent of power – Discussed. [Paras 13, 14, 15, 16, 17]
Code of Civil Procedure, 1908 – rr. 5, 10 of Or. VIII – When
the defendant defaults in filing written statement – What is
required by the plaintiff:
Held: In a given case, the defendant defaults in filing written
statement and the first alternative were the only course to be
adopted (pronouncing judgment against defendant), it would
tantamount to a plaintiff being altogether relieved of its obligation
to prove his case to the satisfaction of the court – Generally, in
order to be entitled to a judgment in his favour, what is required of
a plaintiff is to prove his pleaded case by adducing evidence – Rule
10, in fact, has to be read together with Rule 5 of Order VIII and the
position seems to be clear that a trial court, at its discretion, may
require any fact, treated as admitted, to be so proved otherwise
than by such admission – Since facts are required to be pleaded
in a plaint and not the evidence, which can be adduced in course
of examination of witnesses, mere failure or neglect of a defendant
to file a written statement controverting the pleaded facts in the
plaint, in all cases, may not entitle him to a judgment in his favour
unless by adducing evidence he proves his case/claim. [Para 18]
Code of Civil Procedure, 1908 – Jurisdiction – Essence of:
Held: The essence really is that a court must not only have the
jurisdiction in respect of the subject matter of dispute for the purpose
of entertaining and trying the claim but also the jurisdiction to grant
relief that is sought for – Once it is conceded that the jurisdiction on
both counts is available, it is immaterial if jurisdiction is exercised
erroneously – An erroneous decision cannot be labelled as having
been passed ‘without jurisdiction’ – It is, therefore, imperative that
the distinction between a decision lacking in inherent jurisdiction and
a decision which suffers from an error committed in the exercise
of jurisdiction is borne in mind. [Para 35]
520 [2024] 1 S.C.R.
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Code of Civil Procedure, 1908 – Jurisdiction – Determination
of question of jurisdiction by civil Court:
Held: Jurisdiction is the entitlement of the civil court to embark upon
an enquiry as to whether the cause has been brought before it by
the plaintiff in a manner prescribed by law and also whether a good
case for grant of relief claimed been set up by him – As and when
such entitlement is established, any subsequent error till delivery
of judgment could be regarded as an error within the jurisdiction
– The enquiry as to whether the civil court is entitled to entertain
and try a suit has to be made by it keeping in mind the provision
in section 9, CPC and the relevant enactment which, according
to the objector, bars a suit – The question of jurisdiction has to
be determined at the commencement and not at the conclusion
of the enquiry. [Para 38]
Code of Civil Procedure, 1908 – Jurisdiction – Question of
jurisdiction at the stage when a Court considers the question
of grant of interim relief:
Held: Where interim relief is claimed in a suit before a civil court
and the party to be affected by grant of such relief, or any other
party to the suit, raises a point of maintainability thereof or that
it is barred by law and also contends on that basis that interim
relief should not to be granted, grant of relief in whatever form,
if at all, ought to be preceded by formation and recording of at
least a prima facie satisfaction that the suit is maintainable or that
it is not barred by law – It would be inappropriate for a court to
abstain from recording its prima facie satisfaction on the question
of maintainability, yet, proceed to grant protection pro tem on the
assumption that the question of maintainability has to be decided
as a preliminary issue under Rule 2 of Order XIV, CPC – That
could amount to an improper exercise of power – If the court is
of the opinion at the stage of hearing the application for interim
relief that the suit is barred by law or is otherwise not maintainable,
it cannot dismiss it without framing a preliminary issue after the
written statement is filed but can most certainly assign such opinion
for refusing interim relief – However, if an extraordinary situation
arises where it could take time to decide the point of maintainability
of the suit and non-grant of protection pro tem pending such
decision could lead to irreversible consequences, the court may
proceed to make an appropriate order in the manner justifying the
[2024] 1 S.C.R. 521
Asma Lateef & Anr. v. Shabbir Ahmad & Ors.
course of action it adopts – In other words, such an order may
be passed, if at all required, to avoid irreparable harm or injury or
undue hardship to the party claiming the relief and/or to ensure
that the proceedings are not rendered infructuous by reason of
non-interference by the court. [Para 39]
Judgment/Order – Cardinal principle of:
Held: It is one of the cardinal principles of the justice delivery
system that any verdict of a competent judicial forum in the form
of a judgment/order, that determines the rights and liabilities of
the parties to the proceedings, must inform the parties what is the
outcome and why one party has succeeded and not the other - the
‘why’ constituting the reasons and ‘what’ the conclusion – Apart
from anything else, insistence of the requirement for the reason(s)
to support the conclusion guarantees application of mind by the
adjudicator to the materials before it as well as provides an avenue
to the unsuccessful party to test the reasons before a higher court
– All civil courts in the country have to regulate their judicial work
in accordance with the terms of the provisions of the CPC – Any
egregious breach or violation of such provisions, would be ultra
vires. [Paras 47, 48]
Case Law Cited
Balraj Taneja v. Sunil Madan, [1999] 2 Suppl. SCR
258 : (1999) 8 SCC 396; Vasudev Dhanjibhai Modi v.
Rajabhai Abdul Rehman, [1971] 1 SCR 66 : (1970) 1
SCC 670; Dhurandhar Prasad Singh v. Jai Prakash
University, [2001] 3 SCR 1129 : (2001) 6 SCC 534;
Official Trustee v. Sachindra Nath Chatterjee, [1969]
SCR 92 : AIR 1969 SC 823; Rafique Bibi v. Sayed
Waliuddin, [2003] 3 Suppl. SCR 100 : (2004) 1 SCC
287 – relied on.
Surjit Singh and Others v. Harbans Singh and Others,
[1995] 3 Suppl. SCR 354 : (1995) 6 SCC 50; Manohar
Lal v. Ugrasen, [2010] 7 SCR 346 : (2010) 11 SCC
557; Hukam Chand v. Om Chand, (2001) 10 SCC 715;
Nagubai Ammal v. B. Shama Rao, [1956] SCR 451 :
AIR 1956 SC 593; Swaran Lata Ghosh v. H.K. Banerjee,
[1969] 3 SCR 976 : (1969) 1 SCC 709; Balvant N.
Viswamitra v. Yadav Sadashiv Mule, [2004] 3 Suppl.
SCR 519 : (2004) 8 SCC 706 – referred to.
522 [2024] 1 S.C.R.
Digital Supreme Court Reports
Hirday Nath Roy v. Ramachandra Barna Sarma, 1920
SCC OnLine Cal 85 : ILR LXVIII, Cal 138 – referred to.
Books and Periodicals Cited
Hon’ble P.B. Mukharji, CJ., The New Jurisprudence:
The Grammar of Modern Law – referred to.
List of Acts
Code of Civil Procedure, 1908 ; Uttar Pradesh Zamindari Abolition
and Land Reforms Act, 1950.
List of Keywords
Jurisdictional error; Essence of jurisdiction; Question of jurisdiction;
Lack in inherent jurisdiction; Cardinal principle of judgment; Powers
of an executing court; Objection against execution of decree;
Executability of the decree; Inexecutable decree; Requirements
of a decree.
Case Arising From
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 9695 of 2013.
From the Judgment and Order dated 04.02.2011 of the High Court of
Judicature at Allahabad in CMWP No.15236 of 2009.
Appearances for Parties
Ms. Meenakshi Arora, Sr. Adv., Rahul Narayan, Shashwat Goel,
Vishal Kr. Kaushik, Advs. for the Appellants.
Ms. Preetika Dwivedi, Abhishek Chaudhary, Adarsh Upadhyay, Advs.
for the Respondents.
Judgment / Order of the Supreme Court
Judgment
Dipankar Datta, J.
The Challenge
1. Respondents 1 to 3 had filed an objection under section 47 of the
Code of Civil Procedure, 1908 (“CPC”, hereafter) in an execution
application filed before the Executing Court by the appellants. It was
urged, based on the case pleaded therein, that the decree put to
[2024] 1 S.C.R. 523
Asma Lateef & Anr. v. Shabbir Ahmad & Ors.
execution was inexecutable. The Executing Court, on 19th March,
2008, allowed the objections of the respondents 1 to 3, resulting in
dismissal of the execution application.
2. A revision was carried by the appellants from the order dated 19th
March, 2008 before the Revisional Court which, vide its order dated
21st February, 2009, dismissed the objection filed by the respondents
1 to 3 and directed the Executing Court to proceed with the execution
of the decree whilst treating such objection as non-maintainable.
3. The revisional order dated 21st February, 2009 was challenged by
the respondents 1 to 3 in an application under Article 227 of the
Constitution1
before the High Court of Judicature at Allahabad (“High
Court”, hereafter). The High Court, by its judgment and order dated
4th February, 2011, quashed the order passed by the Revisional
Court and relegated the parties to the remedy of having their rights,
in respect of the suit property, adjudicated by the appropriate forum.
4. This appeal, by special leave, registers a challenge to the said
judgment and order of the High Court.
Factual Conspectus
5. Having regard to the nature and extent of controversy raised at the
stage of execution, a decision on this appeal does not necessitate
noting the facts triggering it and the rival contentions in great depth;
however, we propose to briefly narrate the essential facts and
submissions advanced by learned counsel for the parties before
recording our conclusions.
6. The relevant facts, shorn of unnecessary details, are noticed
hereunder:
a. Appellants claimed that their great-grandmother, one Khatoon
Jannat Bibi, had orally gifted them a certain property (“suit
property”, hereafter) on 16th August, 1988 whereafter a
memorandum recording the same was also executed before
the relevant tehsildar and that they were in peaceful possession
of the same continuously.
b. Appellants, as plaintiffs, through their power of attorney holder,
1 Civil Misc. Writ Petition No. 15236 of 2009
524 [2024] 1 S.C.R.
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instituted a civil suit2
(“Suit”, hereafter) before the Trial Court
under section 38 of the Specific Relief Act, 1963 (“Specific Relief
Act”, hereafter) against three defendants - a son of Khatoon
Jannat Bibi named Asad Ullah Kazmi [defendant no. 1] (“Kazmi”,
hereafter), Kazmi’s son Samiullah [defendant no. 2] and one
purported caretaker, Mr. Ram Chandra Yadav [defendant no. 3]
in respect of the suit property, more particularly described in the
plaint. Appellants prayed for a permanent injunction against the
three defendants from interfering with the appellants’ peaceful
possession of the suit property.
c. Kazmi, sometime in 1990, initiated proceedings for declaration
of rights before the Sub-Divisional Officer under section 229B
of the Uttar Pradesh Zamindari Abolition and Land Reforms
Act, 1950 (“UPZA & LR Act”, hereafter); the said proceedings
were, however, dismissed on 27th February, 1999 [4 (four) years
after his death].
d. In the Suit, an application for interim injunction was filed by
the appellants. The Trial Court on 31st May, 1990, allowed the
application and directed Kazmi and Samiullah to maintain status
quo with regard to the suit property, and directed them not to
interfere with the appellants’ peaceful possession thereof.
e. Kazmi filed his written statement in the Suit on 5th December,
1990 where he inter alia contended that the Suit was barred
by section 331 of the UPZA & LR Act and not maintainable
before a civil court since the suit property was bhoomidhari
land. It was further averred that the Suit was barred by section
41(h) of the Specific Relief Act; he also contended that his son
Samiullah, the defendant no.2, had no concern with the suit
property as long as his father (Kazmi) was alive and, hence,
Samiullah had been wrongly impleaded as the defendant no.2.
Kazmi also denied that Khatoon Jannat Bibi had the right to
make any oral gift; inasmuch as she had only a life interest in
the property, after her demise, the same devolved upon him
exclusively.
f. It is to be noted that no written statement was filed on behalf
2 Original Suit No. 58 of 1990
[2024] 1 S.C.R. 525
Asma Lateef & Anr. v. Shabbir Ahmad & Ors.
of the other two defendants.
g. Upon the appellants moving an application under Rules 5 and
10 of Order VIII, CPC for pronouncement of judgment against
Samiullah, the same was allowed by the Trial Court by its
order dated 5th August, 19913
, to which we propose to advert
in course of our analysis.
h. Subsequently, the Trial Court, on 10th October, 1991, framed 11
(eleven) issues for consideration in the Suit, of which the very
first one was on its competency to try the Suit.
i. Kazmi passed away on 15th July, 1995, after which his sons,
Samiullah and Fariduddin [respondents 4 and 5 herein]
transferred the suit property to the respondents 1 to 3
(“Purchasers”, hereafter) vide a sale deed dated 3rd November,
1997. The Suit against Kazmi remained pending even after his
demise, and none of his other heirs or legal representatives were
brought on record as substituted defendants. The Suit against
Kazmi was finally dismissed as abated on 27th April, 2009.
j. Appellants, as purported decree holders, filed an execution
application4
before the Executing Court, on 16th December, 1997,
praying that respondents 4 and 5 be punished for violating the
order dated 5th August, 1991 and that the sale deed dated 3rd
November, 1997 in favour of the Purchasers be declared invalid.
k. The Executing Court, vide an interim order passed on 16th
January, 1998, restrained the Purchasers from interfering in
any manner with the suit property.
l. Thereupon, the Purchasers filed their objection under section
47, CPC wherein they submitted, inter alia, that the order dated
5th August, 1991 was neither a judgment nor a decree and
could not be executed.
m. Further, on 7th December, 2004, the appellants filed a contempt
petition5
against the respondents alleging contempt of orders
dated 31st May, 1990 and 5th August 1991, and the Executing
3 The decree was signed on 11th November, 1991.
4 Execution Application No. 58 of 1997
5 Civil Misc Contempt Petition No. 62 of 2004
526 [2024] 1 S.C.R.
Digital Supreme Court Reports
Court order dated 16th January, 1998 by interfering with the
appellants’ possession of the suit property.
n. These events were followed by the proceedings and the
judgments/orders referred to in paragraphs 1 to 4 hereinabove.
Impugned Judgment
7. The Purchasers invoked the appropriate jurisdiction of the High Court
by challenging the order dated 21st February, 2009 of the Revisional
Court. The High Court formulated two points for determination, viz.
(i) whether the petitioners before it (respondents 1 to 3 herein),
who are subsequent purchasers of the suit property, had any right
to maintain an objection under section 47, CPC against execution
of the decree? and (ii) whether the order dated 5th August, 1991,
passed in purported exercise of power under Rule 10 of Order VIII,
CPC decreeing the suit against Samiullah alone is without jurisdiction
and a nullity which is non est and inexecutable in nature? The High
Court also framed an ancillary point as to whether the sale deed
dated 23rd November, 1997 made by Samiullah in favour of the
Purchasers was null and void.
8. While the two main points were answered in the affirmative, the
ancillary point was answered in the negative. In course of rendering
its judgment, the High Court held the order dated 5th August, 1991,
and consequently the decree drawn on the basis thereof, to be
beyond jurisdiction and a nullity. The High Court was also of the
opinion that the revisional order dated 21st February, 2009 deserved
to be set aside and the writ petition allowed, which it duly ordered.
The parties were granted liberty to take recourse to available legal
remedies to have determination of the title to the suit property
adjudicated. Certain salient observations made by the High Court
in the impugned judgment are summarised below for convenience:
a. The order dated 5th August 1991, passed by the Trial Court,
in the Suit, restrained only the defendant no.2 from interfering
with the peaceful enjoyment of the appellants’ rights relating
to the suit property, but did not restrict the sons of Kazmi from
dealing with or transferring the same.
b. The transfer of the suit property was not in derogation
of section 52 of the Transfer of Property Act, 1882 (“ToP
Act”, hereafter) and that the Purchasers could object to the
[2024] 1 S.C.R. 527
Asma Lateef & Anr. v. Shabbir Ahmad & Ors.
appellants’ execution application.
c. It is a cardinal principle that to succeed in a suit for permanent
prohibitory injunction, the plaintiff must either establish title,
proprietary rights over the suit property or prove possession
over the same; however, the Trial Court had not found either
the title of the plaintiffs or proved their possession in respect
of the suit property.
d. A court need not always pronounce judgment on the facts
of a plaint or on those admitted due to non-filing of a written
statement or want of specific denial. A court has the option
of pronouncing judgment only in cases where it deems it
prudent; it also has the option to pass such an appropriate
order as it seems fit.
e. A reading of Rules 1, 5 and 10 of Order VIII, CPC show that
they concern themselves with only a single defendant to a
suit and not several defendants. The Trial Court, instead,
could have proceeded to hear the Suit ex parte under Rule
11 of Order IX, CPC since Kazmi’s written statement was on
the record. Hence, the Trial Court had no authority in law to
decree the Suit against one defendant without adjudicating
upon the controversy involved.
f. The order dated 5th August, 1991 was not a judgment within
the scope of section 2(9) read with Rule 4(2) of Order XX,
CPC and did not meet the basic requirements of a “judgment”
and a decree as per section 2(9) and 2(2), CPC, respectively.
Rival Contentions
9. Ms. Meenakshi Arora, learned senior counsel for the appellants while
seeking our interference with the impugned judgment submitted as
under:
a. The High Court fell into error by not appreciating the fact that
the Executing Court exceeded its jurisdiction by going behind
the order dated 5th August, 1991 and the decree that was drawn
up in terms thereof, returning a finding that the same was not
executable.
528 [2024] 1 S.C.R.
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b. Samiullah had been provided ample opportunity to file his
written statement but had failed to do so. In any event, the
order dated 5th August, 1991 had not been challenged, and
had attained finality.
c. The Trial Court, vide an interim order dated 31st May, 1990, had
directed Kazmi and Samiullah to maintain status quo and not
interfere with the peaceful possession of the suit property, by the
appellants. The High Court had erroneously held that a perusal
of the aforementioned order did not indicate any rider placed
upon the parties from alienating the suit property, and that the
sale deed dated 3rd November, 1997 was validly entered into.
d. The Purchasers were purchasers pendente lite and could not
have purchased the suit property without leave of the Trial Court.
The decisions in Surjit Singh and Others v. Harbans Singh
and Others6
and Manohar Lal v. Ugrasen7
were referred to in
support of the contentions that the transfer of property during
pendency of proceedings and also in contravention of the interim
order of injunction was impermissible.
e. Further, the Purchasers forcibly dispossessed the appellants of
their peaceful possession of the suit property on 10th October,
2004 in gross violation of the injunction order dated 16th January,
1998 passed by the Executing Court.
f. Reliance placed by the High Court on Balraj Taneja v. Sunil
Madan8 was misplaced in the present case as this Court, in
Balraj Taneja (supra), while holding that reasons must be given
while decreeing a suit under Rule 10 of Order VIII, CPC, was
seized of a matter where the decree was challenged in appellate
proceedings. In the present case, the decree was sought to be
declared inexecutable in execution proceedings, far beyond the
reach of such a narrow jurisdiction.
10. Ms. Preetika Dwivedi, learned counsel for the Purchasers (respondents
1 to 3) in support of upholding of the impugned judgment, submitted
as under:
6 (1995) 6 SCC 50
7 (2010) 11 SCC 557
8 (1999) 8 SCC 396
[2024] 1 S.C.R. 529
Asma Lateef & Anr. v. Shabbir Ahmad & Ors.
a. The order dated 5th August, 1991 passed by the Trial Court is
not a judgment within the scope of section 2(9) read with Rule
4 of Order XX, CPC and the principle of law laid down in Balraj
Taneja (supra) was rightly applied by the High Court.
b. The High Court had rightly granted all the parties liberty to have
the title to the suit property adjudicated by the appropriate forum;
hence, it could not be said that the appellants were prejudiced
in any manner whatsoever. Further, any question relating to the
title, and validity of the sale deed in favour of the Purchasers
could be determined by the appropriate forum.
c. At the time of purchase, the names of Kazmi’s sons, i.e.
respondents 4 and 5, were present in the land revenue records
pertaining to the suit property, after which the Purchasers’ names
have been inserted through mutation.
d. As per the law laid down in Hukam Chand v. Om Chand9 and
Nagubai Ammal v. B. Shama Rao10, the transfer of the suit
property was not in violation of section 52, ToP Act since the
statute did not put an absolute embargo on the transfer of such
property pendente lite.
Analysis
11. We have heard learned counsel for the parties and perused the
impugned judgment as well as the other materials on record.
12. The sole question of law which arises for a decision in this appeal is:
Whether the order dated 5th August, 1991 suffered from
a jurisdictional error so grave that the decree drawn up
subsequently is incapable of execution by the Executing Court
and an objection that it is inexecutable was available to be raised
under section 47, CPC by the respondents 1 to 3?
13. Prior to answering the above question, we consider it appropriate
to examine the scope and extent of power exercisable under Rule
10 of Order VIII, CPC.
9 (2001) 10 SCC 715
10 AIR 1956 SC 593
530 [2024] 1 S.C.R.
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14. Rule 10 of Order VIII, CPC, used as the primary source of power by
the Trial Court in passing the order dated 5th August, 1991 against
Samiullah, postulates the procedure that could be adopted when
a party fails to present its written statement upon the same being
called for by the court. Rule 10 reads as follows:
“10. Procedure when party fails to present written statement
called for by Court.—
Where any party from whom a written statement is required
under rule 1 or rule 9 fails to present the same within the
time permitted or fixed by the Court, as the case may
be, the Court shall pronounce judgment against him, or
make such order in relation to the suit as it thinks fit and
on the pronouncement of such judgment a decree shall
be drawn up.”
15. We have no hesitation to hold that Rule 10 is permissive in nature,
enabling the trial court to exercise, in a given case, either of the two
alternatives open to it. Notwithstanding the alternative of proceeding to
pronounce a judgment, the court still has an option not to pronounce
judgment and to make such order in relation to the suit it considers
fit. The verb ‘shall’ in Rule 10 [although substituted for the verb ‘may’
by the Amendment Act of 1976] does not elevate the first alternative
to the status of a mandatory provision, so much so that in every case
where a party from whom a written statement is invited fails to file
it, the court must pronounce the judgment against him. If that were
the purport, the second alternative to which ‘shall’ equally applies
would be rendered otiose.
16. At this stage, we consider it apposite to take a quick look at Balraj
Taneja (supra) to examine the scope of Rule 10 of Order VIII. Therein,
this Court ruled that a court is not supposed to pass a mechanical
judgment invoking Rule 10 of Order VIII, CPC merely on the basis of
the plaint, upon the failure of a defendant to file a written statement.
The relevant paragraphs of the judgment are reproduced below for
convenience:
“29. As pointed out earlier, the court has not to act blindly
upon the admission of a fact made by the defendant in
his written statement nor should the court proceed to pass
judgment blindly merely because a written statement has
[2024] 1 S.C.R. 531
Asma Lateef & Anr. v. Shabbir Ahmad & Ors.
not been filed by the defendant traversing the facts set
out by the plaintiff in the plaint filed in the court. In a case,
specially where a written statement has not been filed
by the defendant, the court should be a little cautious in
proceeding under Order 8 Rule 10 CPC. Before passing
the judgment against the defendant it must see to it that
even if the facts set out in the plaint are treated to have
been admitted, a judgment could possibly be passed in
favour of the plaintiff without requiring him to prove any
fact mentioned in the plaint. It is a matter of the court’s
satisfaction and, therefore, only on being satisfied that
there is no fact which need be proved on account of
deemed admission, the court can conveniently pass a
judgment against the defendant who has not filed the
written statement. But if the plaint itself indicates that
there are disputed questions of fact involved in the case
regarding which two different versions are set out in the
plaint itself, it would not be safe for the court to pass a
judgment without requiring the plaintiff to prove the facts so
as to settle the factual controversy. Such a case would be
covered by the expression ‘the court may, in its discretion,
require any such fact to be proved’ used in sub-rule (2)
of Rule 5 of Order 8, or the expression ‘may make such
order in relation to the suit as it thinks fit’ used in Rule
10 of Order 8.”
No doubt this decision was rendered considering that the verb used
in the provision is ‘may’, but nothing substantial turns on it.
17. What emerges from a reading of Balraj Taneja (supra), with which
we wholeheartedly concur, is that only on being satisfied that there
is no fact which need to be proved on account of deemed admission,
could the court pass a judgment against the defendant who has not
filed the written statement; but if the plaint itself suggests involvement
of disputed questions of fact, it would not be safe for the court to
pass a judgment without requiring the plaintiff to prove the facts.
Balraj Taneja (supra) also lays down the law that provision of Rule
10 of Order VIII, CPC is by no means mandatory in the sense that
a court has no alternative but to pass a judgment in favour of the
plaintiff, if the defendant fails or neglects to file his written statement.
532 [2024] 1 S.C.R.
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18. If indeed, in a given case, the defendant defaults in filing written
statement and the first alternative were the only course to be adopted,
it would tantamount to a plaintiff being altogether relieved of its
obligation to prove his case to the satisfaction of the court. Generally,
in order to be entitled to a judgment in his favour, what is required
of a plaintiff is to prove his pleaded case by adducing evidence.
Rule 10, in fact, has to be read together with Rule 5 of Order VIII
and the position seems to be clear that a trial court, at its discretion,
may require any fact, treated as admitted, to be so proved otherwise
than by such admission. Similar is the position with section 58 of the
Indian Evidence Act, 1872. It must be remembered that a plaint in
a suit is not akin to a writ petition where not only the facts are to be
pleaded but also the evidence in support of the pleaded facts is to
be annexed, whereafter, upon exchange of affidavits, such petition
can be decided on affidavit evidence. Since facts are required to
be pleaded in a plaint and not the evidence, which can be adduced
in course of examination of witnesses, mere failure or neglect of a
defendant to file a written statement controverting the pleaded facts
in the plaint, in all cases, may not entitle him to a judgment in his
favour unless by adducing evidence he proves his case/claim.
19. Having noted what Rule 10 of Order VIII postulates, the order dated
5th August, 1991 may be examined now since it is the genesis of
the present litigation before us. The order made by the Trial Court
on 5th August, 1991, reads as below:
“68-C application moved by the plaintiffs under Order-8
Rule-5 (2) & (3) read with Rule 10 CPC. According to the
plaintiff, Samiullah son of Asad Ullah Kazmi, defendant no.
1 has been impleaded as defendant no. 1 (sic, defendant
no. 2) as he was also threatening to encroach the right of
the plaintiff in the disputed property. He appeared through
counsel and moved application and has also filed affidavits
50-C & 57-C but he failed to file any written statement.
It is clear that so many date has been given for written
statement and lastly it was 29.4.91, which was fixed for
written statement and for issues, but the defendant has
(sic, not) filed written statement and on this ground the
plaintiff has moved the above application 68-C.
[2024] 1 S.C.R. 533
Asma Lateef & Anr. v. Shabbir Ahmad & Ors.
The learned counsel for the plaintiff has argued that he
has appeared through counsel and enough time has been
given to him calling upon him to file the written statement,
but he failed to file written statement. The case is covered
by Order-8 Rule 10 C.P.C. The defendant no. 2 remained
absent. In view of the above, I am of the opinion that it is
fit case to proceed under Order-8 Rule 10 C.P.C.
Accordingly, the suit of the plaintiffs is decreed under
Order-8 Rule 10 C.P.C. with cost against defendant no.
2. The defendant no. 2 is restrained not to interfere in the
peaceful right and enjoyment of the plaintiff in respect of
the disputed building, trees and other properties.
Fix 9.9.1991 for Issues.”
20. In the present case, Kazmi had indeed filed his written statement
dealing with the appellants’ plaint before the order dated 5th August,
1991 was made. There, not only had Kazmi denied the assertions
made in the plaint but he had also specifically objected to the
maintainability of the suit itself before the Trial Court on the ground
noted above. The Trial Court is presumed to be aware of the fact
that the written statement of Kazmi was on record or else it would
not have fixed the next date for settling ‘issues’. In a situation where
maintainability of the suit was in question and despite Samiullah not
having filed his written statement, it was not a case where the Trial
Court could simply pronounce judgment without even recording a
satisfaction that it had the jurisdiction to try the suit and adjudicate
the contentious issue(s), not to speak of pronouncing its verdict
against Samiullah without assigning a single reason by treating the
averments in the plaint to be admitted. The High Court rightly observed
that even on pronouncement of judgment against Samiullah, the lis
remained alive as against Kazmi and decision on the objection as
to maintainability could have resulted in a contrary decision.
21. No tribunal, far less a civil court, in exercise of judicial power ought
to play ducks and drakes with the rights of the parties. We are left to
wonder what would have been the status of the rival claims if Kazmi
had not passed away and accepting his objection, the Suit were
dismissed on the ground of maintainability. In such a case, could
such a dismissal be reconciled with the purported decree drawn up
against Samiullah? The answer would have to be in the negative.
534 [2024] 1 S.C.R.
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Or, take the situation that has cropped up here. The suit has been
dismissed qua Kazmi on 27th April, 2009 as abated. Although Ms.
Arora had submitted in course of hearing that steps have since been
successfully taken to set aside abatement and an assurance was
given to file additional documents by 12th December, 2023 in support
of such a submission, the additional documents e-filed beyond time
do not reveal that (i) abatement has been set aside, (ii) the heirs/
legal representatives substituted in place of Kazmi and (iii) the suit
restored to its original file and number. The result is that the suit
stands dismissed as against the principal defendant without any
determination by the Trial Court on his objection that such court did
not possess the jurisdiction to entertain and try the suit.
22. We are constrained to observe that it is to avoid such a situation of
contradictory/inconsistent decrees that power under Rule 10 of Order
VIII ought to be invoked with care, caution, and circumspection, only
when none of several defendants file their written statements and
upon the taking of evidence from the side of the plaintiff, if deemed
necessary, the entire suit could be decided. As in the present case,
where even one of several defendants had filed a written statement, it
would be a judicious exercise of discretion for the court to opt for the
second alternative in Rule 10 of Order VIII, CPC unless, of course,
extraordinary circumstances exist warranting recourse to the first
alternative. In the matter at hand, the filing of the written statement by
Kazmi denying the averments made in the plaint warranted that the
appellants’ claims be proved by evidence, oral and/or documentary,
instead of decreeing the suit against one of the defendants in a most
slipshod manner.
23. We find close resemblance of the facts and circumstances under
consideration in Swaran Lata Ghosh v. H.K. Banerjee11. A money
suit instituted by the respondent before this Court was tried by the
High Court at Calcutta and after taking evidence the learned Single
Judge on 17th August, 1962, passed the following order:
“There will be a decree for Rs 15,000 with interest on
judgment on Rs 15,000 at 6% per annum and costs. No
interim interest allowed.”
11 (1969) 1 SCC 709
[2024] 1 S.C.R. 535
Asma Lateef & Anr. v. Shabbir Ahmad & Ors.
Pursuant to that order a decree was drawn up. An appeal carried
from the decree before the Division Bench failed. The Division
Bench assigned sketchy reasons for the conclusion that the Trial
Court “rightly decreed the suit” and disposed of the appeal with
certain modification of the decree. While allowing the appeal and
setting aside the decree passed by the high court and remanding
the suit to the Court of first instance for trial according to law, this
Court noted that Rules 1 to 8 of Order XX, CPC are, by the express
provision contained in Rule 3(5) of Order XLIX, CPC inapplicable to
a Chartered High Court in the exercise of its ordinary or extraordinary
original civil jurisdiction and hence, a judge of a Chartered High Court
was not obliged to record reasons in a judgment strictly according
to the provisions contained in Rules 4(2) and 5 of Order XX, CPC.
Notwithstanding such a provision, this Court proceeded to record in
paragraph 6 as follows:
“6. Trial of a civil dispute in court is intended to achieve,
according to law and the procedure of the court, a judicial
determination between the contesting parties of the matter
in controversy. Opportunity to the parties interested in the
dispute to present their respective cases on questions of
law as well as fact, ascertainment of facts by means of
evidence tendered by the parties, and adjudication by a
reasoned judgment of the dispute upon a finding on the
facts in controversy and application of the law to the facts
found, are essential attributes of a judicial trial. In a judicial
trial, the Judge not only must reach a conclusion which he
regards as just, but, unless otherwise permitted, by the
practice of the court or by law, he must record the ultimate
mental process leading from the dispute to its solution. A
judicial determination of a disputed claim where substantial
questions of law or fact arise is satisfactorily reached, only
if it be supported by the most cogent reasons that suggest
themselves to the Judge a mere order deciding the matter
in dispute not supported by reasons is no judgment at all.
Recording of reasons in support of a decision of a disputed
claim serves more purposes than one. It is intended to
ensure that the decision is not the result of whim or fancy,
but of a judicial approach to the matter in contest: it is also
intended to ensure adjudication of the matter according to
law and the procedure established by law. A party to the
536 [2024] 1 S.C.R.
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dispute is ordinarily entitled to know the grounds on which
the court has decided against him, and more so, when
the judgment is subject to appeal. The appellate court will
then have adequate material on which it may determine
whether the facts are properly ascertained, the law has
been correctly applied and the resultant decision is just.
It is unfortunate that the learned trial Judge has recorded
no reasons in support of his conclusion, and the High
Court in appeal merely recorded that they thought that
the plaintiff had sufficiently proved the case in the plaint.”
24. However, there, it was an appellate decree which this Court was
called upon to examine. We realise that we are not examining the
correctness of a judgment/order arising from exercise of appellate
jurisdiction by the High Court but a judgment approving an order
on an objection under section 47, CPC, scope wherefor is limited.
25. Our real task is to ascertain whether the decree drawn up on the
basis of the order dated 5th August, 1991 and put to execution by
the appellants could have been objected to by the respondents 1 to
3 as inexecutable under section 47, CPC. Section 47, CPC, being
one of the most important provisions relating to execution of decrees,
mandates that an executing court shall determine all questions arising
between the parties to the suit or their representatives in relation to
the execution, discharge, or satisfaction of the decree and that such
questions may not be adjudicated in a separate suit.
26. Reference to a couple of authorities on the scope and nature of
section 47, CPC, at this stage, would not be inapt.
27. In Vasudev Dhanjibhai Modi v. Rajabhai Abdul Rehman12, this
Court was considering the scope of objection under section 47 of
the CPC in relation to the executability of a decree. Therein, it was
laid down that only such a decree could be the subject-matter of
objection which is a nullity and not a decree which was erroneous
either in law or on facts. Law was laid down in the following terms:
“6. A court executing a decree cannot go behind the decree:
between the parties or their representatives it must take
the decree according to its tenor and cannot entertain
12 (1970) 1 SCC 670
[2024] 1 S.C.R. 537
Asma Lateef & Anr. v. Shabbir Ahmad & Ors.
any objection that the decree was incorrect in law or on
facts. Until it is set aside by an appropriate proceeding
in appeal or revision, a decree even if it be erroneous is
still binding between the parties.
7. When a decree which is a nullity, for instance, where
it is passed without bringing the legal representative on
the record of a person who was dead at the date of the
decree, or against a ruling prince without a certificate, is
sought to be executed an objection in that behalf may
be raised in a proceeding for execution. Again, when the
decree is made by a court which has no inherent jurisdiction
to make objection as to its validity may be raised in an
execution proceeding if the objection appears on the face
of the record: where the objection as to the jurisdiction of
the Court to pass the decree does not appear on the face
of the record and requires examination of the questions
raised and decided at the trial or which could have been
but have not been raised, the executing Court will have no
jurisdiction to entertain an objection as to the validity of the
decree even on the ground of absence of jurisdiction….”
(underlining ours, for emphasis)
28. In Dhurandhar Prasad Singh v. Jai Prakash University13, this
Court further expounded the powers of a court under section 47,
CPC in the following words:
“24. The exercise of powers under Section 47 of the Code
is microscopic and lies in a very narrow inspection hole.
Thus it is plain that executing court can allow objection
under Section 47 of the Code to the executability of the
decree if it is found that the same is void ab initio and
a nullity, apart from the ground that the decree is not
capable of execution under law either because the same
was passed in ignorance of such a provision of law or
the law was promulgated making a decree inexecutable
after its passing….”
(underlining ours, for emphasis)
13 (2001) 6 SCC 534
538 [2024] 1 S.C.R.
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29. The legality of the order of the High Court, together with the order
of the Executing Court that the former went on to uphold, has to be
tested having regard to the settled position of law as noticed above
and bearing in mind that the powers of an executing court, though
narrower than an appellate or revisional court, can be exercised to
dismiss an execution application if the decree put to execution is
unmistakably found to suffer from an inherent lack of jurisdiction of
the court that made the same rendering it a nullity in the eye of law.
30. For reasons more than one, we propose to hold that the Executing
Court and the High Court were right in holding that the objection
raised by the respondents 1 to 3 to the executability of the decree
was well-founded.
31. What appears to be of significance in the light of the decisions
referred to above is the importance of the legal term ‘jurisdiction’,
and the question whether the Trial Court did have the jurisdiction
to pass the order it did on 5th August, 1991 followed by the decree
signed on 11th November, 1991.
32. What does ‘jurisdiction’ mean? In the ensuing discussion, we feel
inclined to draw guidance from certain decisions of ancient vintage
which have stood the test of time.
33. The wisdom of Sir Ashutosh Mukherjee, A.C.J., speaking for a
Full Bench of the High Court at Calcutta in Hirday Nath Roy v.
Ramachandra Barna Sarma14, more than a century back, profitably
assists us in understanding what is meant by ‘jurisdiction’, ‘lack of
jurisdiction’ and ‘error in the exercise of jurisdiction’. The relevant
passage reads as under:
“…An examination of the cases in the books discloses
numerous attempts to define the term ‘jurisdiction’, which
has been stated to be ‘the power to hear and determine
issues of law and fact’; ‘the authority by which judicial
officers take cognizance of and decide causes’; ‘the
authority to hear and decide a legal controversy’; ‘the power
to hear and determine the subject-matter in controversy
between parties to a suit and to adjudicate or exercise any
judicial power over them’; ‘the power to hear, determine
14 1920 SCC OnLine Cal 85 : ILR LXVIII, Cal 138
[2024] 1 S.C.R. 539
Asma Lateef & Anr. v. Shabbir Ahmad & Ors.
and pronounce judgment on the issues before the Court’;
‘the power or authority which is conferred upon a Court
by the legislature to bear and determine causes between
parties and to carry the judgments into effect’; ‘the power
to enquire into the facts, to apply the law, to pronounce the
judgment and to carry it into execution. … This jurisdiction
of the Court may be qualified or restricted by a variety
of circumstances. Thus, the jurisdiction may have to be
considered with reference to place, value, and nature of
the subject-matter. … This classification into territorial
jurisdiction, pecuniary jurisdiction and jurisdiction of the
subject-matter is obviously of a fundamental character.
Given such jurisdiction, we must be careful to distinguish
exercise of jurisdiction from existence of jurisdiction; for
fundamentally different are the consequences of failure
to comply with statutory requirements in the assumption
and in the exercise of jurisdiction. The authority to decide
a cause at all and not the decision rendered therein is
what makes up jurisdiction; and when there is jurisdiction
of the person and subject-matter, the decision of all
other questions arising in the case is but an exercise
of that jurisdiction. The extent to which the conditions
essential for creating and raising the jurisdiction of a
Court or the restraints attaching to the mode of exercise
of that jurisdiction should be included in the conception of
jurisdiction itself is sometimes a question of great nicety…
But the distinction between existence of jurisdiction and
exercise of jurisdiction has not always been borne in mind
and this has sometimes led to confusion. … We must
not thus overlook the cardinal position that in order that
jurisdiction may be exercised, there must be a case legally
before the Court and a hearing as well as a determination.
A judgment pronounced by a Court without jurisdiction is
void, subject to the well-known reservation that when the
jurisdiction of a Court is challenged, the Court is competent
to determine the question of jurisdiction, though the result
of the enquiry may be that it has no jurisdiction to deal
with the matter brought before it.
***
540 [2024] 1 S.C.R.
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Besides the cases mentioned therein, reference may
particularly be made to the judgment of Srinivas Aiyangar,
J., in Tuljaram v. Gopala [32 Mad. L.J. 434; 21 Mad. L.J.
220 (1916).] , where the true rule was stated to be that if a
Court has jurisdiction to try a suit and has authority to pass
orders of a particular kind, the fact that it has passed an
order which it should not have made in the circumstances
of that litigation, does not indicate total want or loss of
jurisdiction so as to render the order a nullity.”
(underlining ours, for emphasis)
34. Hirday Nath Roy (supra) found approval in Official Trustee v.
Sachindra Nath Chatterjee15, a co-ordinate Bench decision of this
Court. The relevant observations of this Court in Sachindra Nath
Chatterjee (supra) are reproduced below:
“12. It is plain that if the learned judge had no jurisdiction to
pass the order in question then the order is null and void.
It is equally plain that if he had jurisdiction to pronounce
on the plea put forward before him the fact that he made
an incorrect order or even an illegal order cannot affect
its validity. …
15. *** it is clear that before a Court can be held to have
jurisdiction to decide a particular matter it must not only
have jurisdiction to try the suit brought but must also
have the authority to pass the orders sought for. It is not
sufficient that it has some jurisdiction in relation to the
subject-matter of the suit. Its jurisdiction must include
the power to hear and decide the questions at issue, the
authority to hear and decide the particular controversy
that has arisen between the parties. …”
(underlining ours, for emphasis)
35. The essence really is that a court must not only have the jurisdiction in
respect of the subject matter of dispute for the purpose of entertaining
and trying the claim but also the jurisdiction to grant relief that is
sought for. Once it is conceded that the jurisdiction on both counts
15 AIR 1969 SC 823
[2024] 1 S.C.R. 541
Asma Lateef & Anr. v. Shabbir Ahmad & Ors.
is available, it is immaterial if jurisdiction is exercised erroneously.
An erroneous decision cannot be labelled as having been passed
‘without jurisdiction’. It is, therefore, imperative that the distinction
between a decision lacking in inherent jurisdiction and a decision
which suffers from an error committed in the exercise of jurisdiction
is borne in mind.
36. Moving on to decisions of not too distant an origin, we notice that
this Court in Rafique Bibi v. Sayed Waliuddin16 whilst relying on
Vasudev Dhanjibhai Modi (supra), has made valuable observations
as to the circumstances where an order passed could be regarded
as a nullity. The relevant observations made in Rafique Bibi (supra)
read thus:
“6. What is ‘void’ has to be clearly understood. A decree
can be said to be without jurisdiction, and hence a nullity,
if the court passing the decree has usurped a jurisdiction
which it did not have; a mere wrong exercise of jurisdiction
does not result in a nullity. The lack of jurisdiction in the
court passing the decree must be patent on its face in
order to enable the executing court to take cognizance
of such a nullity based on want of jurisdiction, else the
normal rule that an executing court cannot go behind the
decree must prevail.
7. Two things must be clearly borne in mind. Firstly, ‘the
court will invalidate an order only if the right remedy is
sought by the right person in the right proceedings and
circumstances. The order may be ‘a nullity’ and ‘void’
but these terms have no absolute sense: their meaning
is relative, depending upon the court’s willingness to
grant relief in any particular situation. If this principle of
illegal relativity is borne in mind, the law can be made
to operate justly and reasonably in cases where the
doctrine of ultra vires, rigidly applied, would produce
unacceptable results.” (Administrative Law, Wade and
Forsyth, 8th Edn., 2000, p. 308.) …
16 (2004) 1 SCC 287
542 [2024] 1 S.C.R.
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8. A distinction exists between a decree passed by a
court having no jurisdiction and consequently being a
nullity and not executable and a decree of the court
which is merely illegal or not passed in accordance with
the procedure laid down by law. A decree suffering from
illegality or irregularity of procedure, cannot be termed
inexecutable by the executing court; the remedy of a
person aggrieved by such a decree is to have it set
aside in a duly constituted legal proceedings or by a
superior court failing which he must obey the command
of the decree. A decree passed by a court of competent
jurisdiction cannot be denuded of its efficacy by any
collateral attack or in incidental proceedings.”
(underlining ours, for emphasis)
37. Also, a reading of Rafique Bibi (supra) makes it clear that the lack
of jurisdiction must be patent on the face of the decree to enable an
executing court to conclude that the decree was a nullity. Hence, it
is clear that all irregular or wrong decrees would not necessarily be
void. An erroneous or illegal decision, which was not void, could not
be objected in execution or incidental proceedings. This dictum was
also affirmed by a Bench of 3 (three) Hon’ble Judges of this Court
in Balvant N. Viswamitra v. Yadav Sadashiv Mule17.
38. What follows from a conspectus of all the aforesaid decisions is
that jurisdiction is the entitlement of the civil court to embark upon
an enquiry as to whether the cause has been brought before it by
the plaintiff in a manner prescribed by law and also whether a good
case for grant of relief claimed been set up by him. As and when
such entitlement is established, any subsequent error till delivery of
judgment could be regarded as an error within the jurisdiction. The
enquiry as to whether the civil court is entitled to entertain and try a
suit has to be made by it keeping in mind the provision in section 9,
CPC and the relevant enactment which, according to the objector,
bars a suit. Needless to observe, the question of jurisdiction has to
be determined at the commencement and not at the conclusion of
the enquiry.
17 (2004) 8 SCC 706
[2024] 1 S.C.R. 543
Asma Lateef & Anr. v. Shabbir Ahmad & Ors.
39. Although not directly arising in the present case, we also wish to
observe that the question of jurisdiction would assume importance
even at the stage a court considers the question of grant of interim
relief. Where interim relief is claimed in a suit before a civil court and
the party to be affected by grant of such relief, or any other party to
the suit, raises a point of maintainability thereof or that it is barred
by law and also contends on that basis that interim relief should
not to be granted, grant of relief in whatever form, if at all, ought to
be preceded by formation and recording of at least a prima facie
satisfaction that the suit is maintainable or that it is not barred by
law. Such a satisfaction resting on appreciation of the averments in
the plaint, the application for interim relief and the written objection
thereto, as well as the relevant law that is cited in support of the
objection, would be a part of the court’s reasoning of a prima facie case
having been set up for interim relief, that the balance of convenience
is in favour of the grant and non-grant would cause irreparable harm
and prejudice. It would be inappropriate for a court to abstain from
recording its prima facie satisfaction on the question of maintainability,
yet, proceed to grant protection pro tem on the assumption that the
question of maintainability has to be decided as a preliminary issue
under Rule 2 of Order XIV, CPC. That could amount to an improper
exercise of power. If the court is of the opinion at the stage of hearing
the application for interim relief that the suit is barred by law or is
otherwise not maintainable, it cannot dismiss it without framing a
preliminary issue after the written statement is filed but can most
certainly assign such opinion for refusing interim relief. However, if
an extraordinary situation arises where it could take time to decide
the point of maintainability of the suit and non-grant of protection pro
tem pending such decision could lead to irreversible consequences,
the court may proceed to make an appropriate order in the manner
indicated above justifying the course of action it adopts. In other
words, such an order may be passed, if at all required, to avoid
irreparable harm or injury or undue hardship to the party claiming
the relief and/or to ensure that the proceedings are not rendered
infructuous by reason of non-interference by the court.
40. Turning to the facts of the present case, Kazmi had challenged
the maintainability of the Suit in the written statement filed by him
before the Trial Court contending inter alia that the suit property was
bhoomidhari land owing to which the Suit was barred by section 331
544 [2024] 1 S.C.R.
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of UPZA & LR Act as well as it was barred under section 41(h) of the
Specific Relief Act and, thus, not maintainable before the civil court.
What was required of the Trial Court in such situation was to record
a satisfaction, at least prima facie, that the Suit was maintainable
and then proceed to pass such orders as it considered proper in
the circumstances. A glance at the order dated 5th August, 1991, is
sufficient to inform us that the Trial Court, in no words whatsoever,
made any decision on whether it was entitled in law to decide the plea
before it, prior to decreeing the Suit against Samiullah under Rule
10 of Order VIII, CPC. The question of competence to try the Suit,
we have found, was the first of several issues arising for decision in
the Suit and despite such looming presence of an important issue
before the Trial Court which, if examined and answered in favour of
Kazmi, would have ousted jurisdiction, it preferred not to wait and
proceeded to decree the same against Samiullah without a whisper
on its competency to do the same.
41. The legal and factual position of the present case having been noted
above, we hold that a decision rendered by a court on the merits
of a controversy in favour of the plaintiff without first adjudicating
on its competence to decide such controversy would amount to a
decision being rendered on an illegal and erroneous assumption of
jurisdiction and, thus, be assailable as lacking in inherent jurisdiction
and be treated as a nullity in the eye of law; as a logical corollary,
the order dated 5th August, 1991 is held to be ab initio void and the
decree drawn up based thereon is inexecutable.
42. There is one other reason which we wish to assign as a ground
for upholding the order of the Executing Court and the High Court.
43. Reference may once again be made to Balram Taneja (supra) where
the law has been reiterated succinctly, as follows:
“41. There is yet another infirmity in the case which relates
to the ‘judgment’ passed by the Single Judge and upheld
by the Division Bench.
42. ‘Judgment’ as defined in Section 2(9) of the Code of
Civil Procedure means the statement given by the Judge
of the grounds for a decree or order. What a judgment
should contain is indicated in Order 20 Rule 4(2) which
says that a judgment ‘shall contain a concise statement
[2024] 1 S.C.R. 545
Asma Lateef & Anr. v. Shabbir Ahmad & Ors.
of the case, the points for determination, the decision
thereon, and the reasons for such decision’. It should be
a self-contained document from which it should appear
as to what were the facts of the case and what was the
controversy which was tried to be settled by the court and
in what manner. The process of reasoning by which the
court came to the ultimate conclusion and decreed the
suit should be reflected clearly in the judgment.
43. ***
44. ***
45. Learned counsel for Respondent 1 contended that
the provisions of Order 20 Rule 4(2) would apply only to
contested cases as it is only in those cases that ‘the points
for determination’ as mentioned in this rule will have to be
indicated, and not in a case in which the written statement
has not been filed by the defendants and the facts set
out in the plaint are deemed to have been admitted. We
do not agree. Whether it is a case which is contested by
the defendants by filing a written statement, or a case
which proceeds ex parte and is ultimately decided as an
ex parte case, or is a case in which the written statement
is not filed and the case is decided under Order 8 Rule
10, the court has to write a judgment which must be in
conformity with the provisions of the Code or at least set
out the reasoning by which the controversy is resolved.
46. *** Even if the definition were not contained in Section
2(9) or the contents thereof were not indicated in Order
20 Rule 4(2) CPC, the judgment would still mean the
process of reasoning by which a Judge decides a case
in favour of one party and against the other. In judicial
proceedings, there cannot be arbitrary orders. A Judge
cannot merely say ‘suit decreed’ or ‘suit dismissed’. The
whole process of reasoning has to be set out for deciding
the case one way or the other. This infirmity in the present
judgment is glaring and for that reason also the judgment
cannot be sustained.”
(underlining ours, for emphasis)
546 [2024] 1 S.C.R.
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We concur with the observation that a judgment, as envisaged in
section 2(9), CPC, should contain the process of reasoning by which
the court arrived at its conclusion to resolve the controversy and
consequently to decree the suit.
44. It is indubitable that a “judgment”, if pronounced by a court under
Rule 10 of Order VIII, CPC, must satisfy the requirements of Rule
4(2) of Order XX, CPC, and thereby conform to its definition provided
in section 2(9) thereof.
45. Further, even a cursory reading of Rule 10 of Order VIII, CPC
impresses upon us the fundamental mandate that a “decree” shall
follow a “judgment” in a case where the court invokes power upon
failure of a defendant to file its written statement. It is, therefore,
only a “judgment” conforming to the provisions of the CPC that
could lead to a “decree” being drawn up. As is manifest on the
face of the record of the present case, apart from the ipse dixit
of the Trial Court that the case is fit for being proceeded against
under Rule 10 of Order VIII and that the suit qua Samiullah ought
to be decreed with the injunctive order, no ingredients that a
“judgment” should contain as per the CPC appear in the order
dated 5th August, 1991.
46. We deem it fit to advert to the fine words of wisdom imparted to
us by Hon’ble P.B. Mukharji, CJ., in ‘The New Jurisprudence: The
Grammar of Modern Law’ where the learned author says:
“The supreme requirement of a good judgment is reason.
Judgment is of value on the strength of its reason. The
weight of a judgment, its binding character or its persuasive
character depends on the presentation and articulation
of reason. Reason, therefore, is the soul and spirit of a
good judgment.”
47. It is one of the cardinal principles of the justice delivery system that
any verdict of a competent judicial forum in the form of a judgment/
order, that determines the rights and liabilities of the parties to the
proceedings, must inform the parties what is the outcome and why
one party has succeeded and not the other - the ‘why’ constituting
the reasons and ‘what’ the conclusion. Apart from anything else,
[2024] 1 S.C.R. 547
Asma Lateef & Anr. v. Shabbir Ahmad & Ors.
insistence of the requirement for the reason(s) to support the
conclusion guarantees application of mind by the adjudicator to the
materials before it as well as provides an avenue to the unsuccessful
party to test the reasons before a higher court.
48. All civil courts in the country have to regulate their judicial work
in accordance with the terms of the provisions of the CPC. Any
egregious breach or violation of such provisions, including the one
noticed here, would be ultra vires.
49. Let us now examine whether there is a ‘decree’ within the scope of
section 2(2), CPC. Section 2(2) is reproduced hereunder:
(2) “decree” means the formal expression of an adjudication
which, so far as regards the Court expressing it, conclusively
determines the rights of the parties with regard to all or
any of the matters in controversy in the suit and may be
either preliminary or final. It shall be deemed to include the
rejection of a plaint and the determination of any question
within section 144, but shall not include -
(a) any adjudication from which an appeal lies as an appeal
from an order, or
(b) any order of dismissal for default.
(underlining ours, for emphasis)
50. The decree signed by the Trial Court on 11th November, 1991 is not
on record. Nevertheless, at the cost of repetition, we record that
examination of the order dated 5th August, 1991 does not reveal
any adjudication leading to determination of the rights of the parties
in relation to any of the matters in controversy in the suit and,
therefore, the decree since drawn up is not a formal expression of
an adjudication/determination since there has been no adjudication/
determination so as to conform to the requirements of a decree
within the meaning of section 2(2). In this regard, we express our
concurrence with both the High Court and the Executing Court that
there is no decree at all in the eye of law.
51. We, therefore, hold that a decree that follows a judgment or an
order (of the present nature) would be inexecutable in the eyes of
law and execution thereof, if sought for, would be open to objection
in an application under section 47, CPC.
548 [2024] 1 S.C.R.
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Conclusion
52. For the reasons mentioned above, we conclude that the Trial Court
had no authority to decree the suit against Samiullah in exercise of
its power under Rule 10 of Order VIII, CPC.
53. There is no reason to interfere with the judgment and order of the
High Court under challenge. It is upheld and the appeal, accompanied
by any pending applications, stands dismissed. Parties shall bear
their own costs.
54. It is, however, made clear that no part of the observations of this Court,
or of the High Court or of those below, be treated as an expression of
opinion in any particular matter or on any factual aspect whatsoever.
Determination of the title to the suit property, adjudication on the
validity of the sale deed in favour of the Purchasers, or decision on
any other contentious issue are left open for a forum of competent
jurisdiction to embark upon, if approached by any of the parties.
55. We are aware that pursuant to Interim Application No. 4 of 2013 moved
by the appellants, this Court had appointed one Mr. Suryanarayana
Singh as the Court Receiver in respect of the property (“Court
Receiver”, hereafter) on 14th March, 2014. The Court Receiver already
appointed shall stand discharged forthwith. Unpaid remuneration, if
any, shall be borne by the appellants.
56. However, the Court Receiver shall provide accounts of income
and expenditure in respect of the suit property to the appellants as
well as the respondents 1 to 3 within two months and any claim of
either of the parties would be open to be raised and addressed in
accordance with law.
Headnotes prepared by: Ankit Gyan Result of the case: Appeal dismissed.
