Rahmathullah Shuthari alias Peer Hazzrath vs The Muslim Jamath of Eachampatti and Others

S.S. Subramani, J.—This second appeal is by one of the legal representatives to the second defendant, i.e., 6th defendant in O.S. No. 1057

of 1976, on the file of District Munsif''s Court, Tiruchirappalli.

The suit was filed for the following reliefs:

(a) declaring that the Muslim Jamath of Eachampatti alone is entitled to the management of the Kabarathan and the usufructs of the trees standing

thereon;

(b) and as consequential relief for the permanent injunction restraining the defendants 1 and 2 and their men and agents from in any way interfering

with the possession and enjoyment of the suit property with fruit bearing trees by the plaintiff;

(c) for costs of suit payable by the defendants to plaintiff from defendants;

(d) and to grant such further or other reliefs....

The suit was institution on 4.11.1976, by the Secretary of the Jamath. He has been examined as P.W. I in the suit.

The material averments in the plaint may be summarised thus:

It is filed as a representative suit under Order 1, Rule 8, C.P.C. The suit property has been allotted and set apart as Kabarathan (burialground) of

the Muslim Jamath of Eachampatti, and the same has been enjoyed as such by them from time immemorial. It is said that there are about 150

palmyrah trees and 105 tamarind trees, besides other trees, and the Jamath has been realising the income from the trees. The income is utilised for

the upkeep of the mosque and other religious and charitable activities of Muslims during festival times. It is the further case of the plaintiff that the

scheduled property which is included in Old Survey No. 82 and New Survey No. 173, having an area of 7.88 hectares, is in the effective

possession of the Jamath. It was originally an inam, and the inam tenure was abolished and the property was treated as communal property, and

patta was not issued to any one. Plaintiff alone is in possession and management of ''Karbarsthan'' and the trees standing thereon. As defendants 1

and 2 tried to interfere with the peaceful possession and enjoyment of the trees on 26.2.1974, a suit was filed by the plaintiff as O.S. No. 295 of

1974 against them. An adinterim injunction was granted against defendants 1 and 2, which was made absolute after hearing the predecessor of the

appellant. Second defendant also filed a suit against the Jamath as O.S. No. 187 of 1974. When the suit came for trial, he filed an application that

he is not pressing the same. Therefore, the suit was dismissed on 14.4.1976. O.S. No. 295 of 1974 which also came for trial, could not be

proceeded with due to some formal defect. Therefore, an application as filed seeking permission to withdraw the suit with liberty to file a fresh suit.

The same was allowed. Thereafter, plaintiff issued a notice u/s 80 of the Code of Civil Procedure. The Government has not so far sent any reply. It

is said that after the filing of O.S. No. 295 of 1974, the first defendant therein left the village. The third defendant, which is the Wakf Board, has

also no jurisdiction over the property, and it has teen impleaded only to avoid technical defects. Defendants 1 and 2 who were also having no

manner of right over the schedule mentioned property are threatening to interfere with the right of the plaintiff, and are making arrangements to take

the usufructs, and that necessitated the filing of the suit, for the reliefs stated above.

A detailed written statement was filed by defendants 1 and 2. According to them, neither the Jamath nor the Secretary has possession over any

property, and the Muslim Jamath of Eachampatti is not really in existence. The further allegation that the income from the property is used for the

upkeep of the mosque and other religious activities of the Muslims is also denied. According to them, the suit property forms part of Rahmathullah

Sha Shutter Wakf, a Sunni Wakf. It was in the management of the then Muthavalli Syed Mohammed Ghouse Shutteri. THe properties were

endowed with under T.D. 831, and were enjoyed by the Muthavalli Syed Ghouse. On his death, the Wakf Board appointed defendants 1 and 2

as Muthavallis who were none other than the successors-in-interest of the earlier Muthavalli Syed Ghouse. The properties were managed by

defendants 1 and 2 on getting proper instructions from the Wakf Board, and the plaintiff also admitted that the defendants 1 and 2 are in

possession and also the wakf nature of the property. It is further contended that the plaintiff was never in possession of the suit item.

The 3rd defendant Wakf Board also filed a written statement wherein it has supported the claim of defendants 1 and 2.

4th defendant-State also filed a written statement. According to it, it is an unnecessary party, since no relief has been claimed against the State.

The trial court took oral and documentary evidence. On the side of plaintiff, Exs. A-1 to A-29 were marked. P. Ws. l to 3 examined. P.W. I is

the Secretary of the plaintiff-Jamath. P. Ws. 2 and 3 are independent witnesses. 6th defendant was examined as D.W. 1. Exs. B-11 to B-53 were

marked on the side of the defendants.

Trial court decreed the suit as prayed for. Aggrieved by that, defendants 1 and 6 preferred A.S. No. 117 of 1983, without any success.

The concurrent findings of the courts below are challenged in this second appeal.

At the time of admission of the second appeal, the following substantial question of law was formulated for consideration:

Whether the plaintiff which has filed the suit for bare injunction has proved its possession of the suit properties on the date of suit and whether the

courts below have erred in not considering the relevant evidence such as Ex. B-6 and Ex. B-8 which are petition and affidavit filed by the plaintiff

itself in the earlier proceedings admitting possession of the suit properties by the second defendant, predecessor-in-interest of D-52"" 12. After

hearing both sides, I allowed the second appeal and dismissed the suit on 5.8.1997. Subsequently, learned Counsel for the 1st respondent filed an

application for review along with an affidavit sworn to by the then counsel for 1st respondent filed an application for review along with an affidavit

sworn to by the then counsel for the 1st respondent. Learned Senior Counsel, in his affidavit, stated that he was not fully heard and, therefore, the

judgment pronounced by me on 5.8.1997 is to be reviewed.

I passed an order allowing the application or review for the only reason that a Senior Counsel has filed an affidavit, and that should not be a

matter in issue. Thereafter, the learned Senior Counsel was appointed as Additional Advocate-General. Therefore, the 1st respondent appeared

through another counsel. I heard the matter once again in detail. Learned Counsel for all the parties are satisfied that I have heard them in full.

The trial court has decreed the suit, and the same has been confirmed by the lower court. They have come to the conclusion that the plaintiff is

in management of the plaint schedule property and is in possession of the same. In view of the concurrent finding of fact, an argument was taken by

learned Counsel that this Court''s power of interference u/s 100, C.P.C. is very much limited. Of course, I have considered this question in the

judgment, which i have set aside by allowing the review application. Even after the respondent''s counsel have argued the case in detail, I think this

is a case which calls for interference u/s 100, C.P.C.

Before going to the facts of the case and also before giving the reasons why I conclude that interference is required, it is better that some of the

decisions enabling this Court to interfere in this second appeal u/s 100, C.P.C. may be considered.

In a very recent judgment of the Supreme Court reported in Mehrunnisa (Smt) and Others Vs. Visham Kumari (Smt) and Another, , judgment

dated 2.12.1997, the Supreme Court has held thus: ""The judgments cited by the learned Senior Counsel for the respondent on the scope of

Section 100, C.P.C. are apposite in the circumstances of this case. In J.B. Sharma Vs. State of Madhya Pradesh and Another, , this Court while

considering the scope of Section 100, C.P.C. observed thus:

It will thus be seen that the first appellate court while recording the finding acted on an assumption not supported by any evidence and further failed

to consider the entire document on the basis of which the finding was recorded. The High Court was, therefore, justified u/s 100 of the CPC to set

aside the finding.

In Dilbagrai Punjabi Vs. Sharad Chandra, , again this Court while considering the scope of Section 100, C.P.C. held as follows: ""It is true that

the High Court while hearing the appeal u/s 100 of the CPC has no jurisdiction to reappraise the evidence and reverse the conclusion reached by

the first appellate court, but at the same time its power to interfere with the finding cannot be denied if when the lower appellate court decides an

issue of fact a substantial question of law arises. The court is under a duty to examine the entire relevant evidence on record and if it refuses to

consider important evidence having direct bearing on the disputed issue and the error which arises is of a magnitude that it gives birth to a

substantial question of law, the High Court is fully authorised to set aside the finding.

To the same effect, another judgment of this Court is Sundra Naicka Vadiyar (Dead) by Lrs. and Anr. v. Ramaswami Ayyar, (Dead) by his

Lrs., J.T. (1995) 4 S.C. 534, this Court observed as follows:

A perusal of the impugned judgment of the High Court shows that there were good reasons for treating the finding on the question of possession

recorded by the first two courts to be vitiated. Apart from the reasons given by the High Court, it appears to us that ignoring some of the

documents which were vital for deciding the question of possession also vitiated the finding on the question of possession recorded by the trial

court as well as the first appellate court.

Recently also in Kochukakkada Aboobacker (Dead) by L.Rs. and others Vs. Attah Kasim and others, , this Court again observed on the scope

of Section 100, C.P.C. as follows:

The appellate court had not considered these documents in a proper perspective and the effect of those documents on the rights of the parties.

Accordingly, the learned Judge reluctantly had reconsidered the evidence and, in our view, quite rightly since it is not a mere appreciation of

evidence but drawing inferences from the admitted documents. Since proper construction of the documents and inferences have not legally been

drawn by the appellate court, the High Court has gone in detail and recorded the finding. "" In the light of the pronouncements of this Court and for

the reasons given by the High Court, namely, that the lower appellate court has failed to take into account document necessary for giving a finding

on the issue of bona fide requirement, we are of the view that we cannot find fault with the High Court in interfering with the reversing judgment of

the lower appellate court. Accordingly, the appeal fails and it is dismissed. However, there will be no order as to costs.

In Sundara Naicka Vadiyar''s Case (1995) 4 S.C.C. (Supp.) 534, it was held thus:

Apart from the reasons given by the High court, ignoring some of the documents which were vital for deciding the question of possession also

vitiated the finding on the question of possession recorded by the trial court as well as the first appellate court. Apart from the documents

evidencing the compromise and containing the recital of surrender of possession by the appellant to the respondent, the other material documents

were the orders made in the eviction proceedings by the Revenue Court when the matters were taken up by the Revenue Court and dismissed on

the basis of the compromise accepted by the parties who were present. Ignoring these orders and overlooking the logical effect thereof and basing

the conclusion on the question of possession only on the oral evidence adduced by the appellant did cause an infirmity in the finding of fact which

justified interference in second appeal.

Similar is the case reported in Mohd. Yunus v. Gurubux Singh (1995) 1 S.C.C. (Supp.) 418 wherein, in para 2, their Lordships have held thus:

It is argued before us that the High Court was not correct in interfering with the factual findings u/s 100 of C.P.C. In any event, their is oral

evidence of the appellanttenant who has categorically stated that the moneyorders were sent to Gurubux Singh--the respondent herein. We are

unable to agree with either of the submissions. Where there is a gross misappreciation of evidence which goes to the root of the matter, certainly

the second appellate court can exercise its jurisdiction....

From the above decision, it is clear that under certain circumstances, this Court is entitled to interfere u/s 100, C.P. C, even though the

decisions are concurrent. The question that has to be considered, is, whether these grounds are satisfied in this case.

While narrating the facts, I said that, Exs. B-1 to B-53 were marked on the side of the defendants, and the 6th respondent go himself

examined as D.W.I. There is no mention about any one of these documents either by the trial court or the lower appellate court. Both the courts

below have taken into consideration only the evidence of the plaintiff as if he alone has adduced evidence. Not even one sentence is there in the

decisions of the courts below that they have considered the evidence adduced by the appellant.

The suit is one to declare that the plaintiff is in management of the plaint mentioned property. Everything turns on the evidence regarding

possession. The case of the appellant is that the entire documentary evidence that he has filed will prove that the appellant alone is the possession

of the schedule property, and the courts below have not taken into consideration the evidence adduced by him. If that evidence is material, and if

the courts below have not taken that into consideration, that ill be a ground for interference, u/s 100, C.P.C.

There is one more legal position to be. considered. The suit was filed in 1976. The evidence adduced by the appellant will have a material

bearing. It was omitted to be considered by the courts below. u/s 103, C.P.C. this Court will be entitled to look into the evidence and enter a

finding on the same. Jadu Gopal Chakravarty (Dead) by his Lrs. Vs. Pannalal Bhowmick and Others, , in paragraph 49 (at page 235), Their

Lordships, held thus:

Thus, none of the circumstances from which Mr. Chatterjee wants the court to spell out the conclusion that the compromise decree was obtained

by practising fraud on the High Court, was firmly established. Indeed, the first two courts did not pointedly address themselves to the question as

to whether the leave to compromise the case was obtained by perpetrating fraud on the High Court. In the present litigation, therefore, the High

Court was entitled in exercise of its powers u/s 103 of the Code of Civil Procedure, to go into the question. The High Court was therefore right in

holding that there was no evidence to show that the compromise decree in question was obtained by fraud.

In Ram Das alias Ram Suraj Vs. Smt. Gandiabai and others, also, a similar question was considered. Of course, that was a case where the

second appeal was filed before the 1976 Amendment. Even before the Amendment, their Lordships held thus:

... before the High Court could exercise its jurisdiction u/s 100 read with Section 103, C.P.C. applicable at the relevant time in 1969 it had to be

shown that the lower appellate court had wrongly determined any question of fact by reason of any illegal omission, error or defect as were

referred to in Section 100, C.P.C. Therefore, it had to be demonstrated that the finding of fact reached by the first appellate court was affected by

any of the errors as contemplated by provisions of Section 100, SubSections (1)(a), (b) and (c) C.P.C...

In Kewal Krishnan v. J. Stone and Company (India) Pvt. Ltd. AIR 1981 Del. 199, the power u/s 103, C.P.C. is explained, In paragraph 6 of

that judgment, it was held thus:

Under this section the High Court in a second appeal is empowered to determine issues which have not been determined by the lower appellate

court or both by the court of first instance and the lower appellate court. This can be done only when there is evidence on record sufficient for the

purpose of pronouncing a judgment. It is not contended by either of the parties that the evidence on record is insufficient to enable this Court to

pronounce a judgment. Argument by the learned Counsel for the respondent is that the tenant has an inherent right of appeal after the matter is

remanded and decided by the Rent Control Tribunal. I do not agree. Section 103 of the CPC confers a discretion upon the court to decide any

issue which has not been determined by the tribunal. A bare reading of Section 103 as set out above shows that this Court can decide issues which

have not been decided by the first appellate court....

Section 103, C.P.C. was also amended in 1976. Sub-clause (b) enables the High Court to consider the evidence if the same is sufficient,

which has been wrongly determined by court or courts, on which a substantial question of law arises as is referred to in Section 100, C.P.C. So, if

there could be interference u/s 100, C.P.C. (In this case I have said that there is ground for interference) and at the same time, if it is found that the

evidence adduced by the appellant has not been considered by. the courts below, then, u/s 103, C.P. C, this Court is entitled to appreciate the

evidence adduced by the appellant has not been considered by the courts below, then, u/s 103, C.P. C, this Court is entitled to appreciate the

evidence adduced by the parties and take a decision. At the same time, nobody has a case that the evidence adduced by the parties is insufficient.

None has a case that sufficient opportunity was not given by the trial court to adduce evidence. So, even according to the case put forward by the

parties, evidence on record is sufficient, and the same was recorded after giving both parties sufficient opportunity.

Now I will consider what is the effect of the evidence that was adduced by the appellant.

Ex. B-1 is a mortgage deed in respect of the very same property, executed by the predecessor of the appellant, on 8.9.1969 in favour of

plaintiff''s predecessor. The genuineness of the document is not disputed. We must under stand that the suit was filed in the year 1976, after the

withdrawal of an earlier suit filed in 1974. At that time, none of the parties had any dispute regarding possession or right over the property. This

has got a material bearing to prove possession. If the appellant''s predecessor had no right over the property, and was not in possession, he would

not have executed a mortgage. The property is given as security, and the person who advanced the amount is none other than the plaintiff''s

predecessor, admitting the right and interest of the appellant. Ex. B-2 is a letter addressed to the third defendant by Members of the Jamath. It is a

complaint against the defendants on the ground that they have allowed portions of the property to open arrack shop, and their grievance was that if

arrack shop is allowed to be conducted, that is against the tenets of the Islam Religion. Ex. B-3, dated 10.10.1972 is also another complaint given

by Members of the Jamath, and one of the signatories was P.W. I himself. There also it is mentioned that number of trees are in the enjoyment of

the appellant. In that letter, it is further said that the father of defendants 1 and 2--late Syed Mohammed Ghouse Sahib hyas put up 30 sheds and is

collecting rent therefrom, and that there are 105 tamarind trees and 200 palmyrah trees in the property, from which also there is good income. It is

also alleged therein that he has permitted arrack shop to be open in the very same locality. Ex. B-4 is another letter addressed to the Wakf Board,

and one of the signatories is the immediate predecessor of P.W. I, the then Secretary. Ex. B-6 is also another letter sent by the Jamath Committee,

signed by P.W. 1 along with his predecessor. They want the Wakf Board to inspect the property. Ex. B-8 is dated 7.1.1974 sworn to by the

previous Secretary, which refers to a complaint against defendants 1 and 2. 22. In that affidavit, apart from describing the relationship of

relationship of defendants 1 and 2 with late Ghouse Shib, it is further stated that Ghouse Sahib was the Manager and was looking after the

property till his death on 12.7.1973. It was further stated in that affidavit that deceased Ghouse Sahib was mismanaging the wakf and was

appropriating the income for himself. He was not managing the Durgah and mosque properly and they are now in a dilapidated condition. He was

also not paying salary to the staff. Reference was also made about second respondent in that affidavit. There also, the number of persons who are

dealing with the income, etc., are referred to. It is said that an attempt was made by defendants 1 and 2 to auction the usufructs from the trees. A

notification was published in a local Daily, which was seriously opposed by the Jamath members. They immediately reported the matter to the

Wakf Board, complaining that defendants 1 and 2 are unauthorisedly enjoying the income and the same should be prevented. They also wanted

the officials of the Wakf Board to personally inspect the property and taken immediate action. They also wanted proceedings to be taken u/s 44 of

the Wakf Act. They moved a separate application also for that purpose. They also wanted a Committee to be set up to enquire into the matter. All

these could be seen from Ex. B-10, which was followed by another representation Ex. B-12. On getting the complaint, the Wakf Board prevented

defendants 1 and 2 from enjoying the right. But subsequently, after enquiry, they found that defendants 1 and 2 were doing only what they were

authorised to do, and there was no illegality committed by them, and in fact, they have expressed their regret for having misunderstood defendants

1 and 2, and they also informed the Jamath as to what all action taken against defendants 1 and 2 was after notice to them and under their

instructions.

Learned Counsel for 1st respondent submitted that Exs. B-2 to B-16 are all documents, which are inadmissible in evidence. According to

learned Counsel, these documents are not original, but copies of copy of the respective document, and, therefore, the courts below were justified

in not considering the same. 24. I do not find any merit in the said contention. 25. I have already said while narrating the facts that when the very

same plaintiff filed the suit earlier as O.S. No. 295 of 1974, it was found out that there was some formal defect, and so that suit was withdrawn. In

that suit, the Wakf Board was also a party. The Wakf Board filed all the original documents in that suit. At the time when this suit came for trial,

appellant/second defendant took certified copies of those documents and produced them. It is also wellknown that no court will furnish certified

copy of a copy. On a perusal of the documents, it is clear that they are only copies taken from the original documents filed b the Wakf Board in the

previous suit. Secondary evidence was allowed to be adduced, without any protest. In Second Appeal, the respondents cannot be heard to say

that they (documents) were improperly admitted and should not be considered. Appellant cannot produce the original documents since they are

not in his possession. All the original documents are only in the possession of third defendant/Wakf Board, who is still supporting the case of the

appellant in the written statement. 26. Apart from all these documents, the appellant has produced a document of the year 1911, viz., Ex. B-21, a

registered lease deed executed by the lessee in favour of appellant''s predecessor. Ex. B-25 is also another registered lease deed executed by one

Nachimuthu Nadar in favour of Ghouse Sahib. It could be seen that even before 1911, the property was being dealt with by the appellant''s

predecessor. Ex. B-22, a registered will makes a reference to it. Exs. B-28, B-29, etc., will show that for the building situated in the plaint

property, electricity consumption charges are paid by the appellant''s predecessor. The building is a mosque situated therein. From these

documents, it is clear that material evidence which should have been considered by the trial court as well as lower appellate court was omitted to

be considered. Registered documents are before court. Appellant has also produced various correspondence between himself and the Wakf

Board to show how the appellant''s predecessor himself was dealing with the property.

As against this documentary evidence, we have to see as to what is the evidence that was adduced by the plaintiff. According to me, absolutely

no legal evidence has been let in. Reliance is placed only on certain books. Ex. A-9 is the accountbook for the year 1971 to 1974. Ex. A-10 is a

similar accountbook for the year 1974 to 1980. Ex. A-11 is another one for the year 1981-82. As I said already, the suit was instituted in the year

1976. P.W. 1 also became the Secretary only in the year 1976. So, he is not competent to prove Ex. A-9, which is for the years 1971 to 1974.

The person who wrote those accounts was available, and on one occasion he was also present in court. But, for reasons better known to the

plaintiff, the person who prepared those accounts (Ex. A-9) was not examined. When this argument was put forward by learned Counsel for the

appellant, which, according to me, rightly, learned Counsel for 1st respondent replied the same by saying that the accounts were filed not to fasten

liability, but only for the purpose of proving a transaction, a selfserving transaction and, therefore, it is relevant. The question of relevancy will arise

u/s 34 of the Evidence Act only when it is properly proved. Even in regard to Ex. A-9 or Ex. A-10, P.W. 1 does not say as to in which portion of

the accounts or on which page of the account, income from the plaint property is stated. He simply produced the accountbooks, which contain

many other transactions also. So long as it is not proved even by the plaintiff that the particular pages in the accounts relates to the income derived

from the property, it cannot be said that Exs. A-9 and A-10 are even relevant. It is also wellsettled that relevancy of a document could be

considered only if it is properly proved. In this case, Exs. A-9 and A-10 are not property proved and P.W. 1 is incompetent to prove the same.

Therefore, the argument that those documents are relevant also falls to the ground.

The evidence of P.W. 1 himself is sufficient to come to the conclusion that he does not know even the survey number of the property. While he

was examined, he has stated thus:

P.W. I does not even identify the plaint property.

Merely because the documents have been marked through P.W. 1, it does not mean that they relate to the plaint property.

Reliance is also place on Exs. A-12 to A-21 which show payment of electricity consumption charges. Plaintiff does not say that Exs. A-12 to

A-21 are regarding the building situated within the plaint property. To prove that the electricity charges paid relate to some other building, Ex. B-

45 is relied on. From that, it is clear that it relates to another mosque situated in a property of 3 cents adjoining the schedule property. The

payment is also made by some individual and not by the Jamath. Who is that individual and what is his connection with the Jamath is also not

proved. The evidence of P.W. I regarding these documents is not at all satisfactory. The evidence of P. Ws. 2 and 3 is also similar. They also do

not anything about the plaint property, non do they speak about possession.

I am well aware that in second appeal this Court is not expected to consider about the sufficient of evidence, for, that will amount to

appreciation of evidence. But, according to me, plaintiff has not adduced any evidence regarding possession, and the finding of the courts below

that plaintiff is in possession, is based on no evidence. If it is a case of no evidence, then the power u/s 100, C.P.C. immediately comes, and in

such cases the right of the High Court to interfere is also wellsettled. 31. Learned Counsel for first respondent/plaintiff submitted that the schedule

property is a burial ground, and so it has to be taken as a communal property. Jamath, being a representative of the Muslim community, it must be

presumed to be in possession. No doubt, this argument seems to be attractive. It is true, in the plaint the property is described as a Kabarathan.

But the appellant/6th defendant does not admit that it is a common burialground. According to him, in about 10 to 15 cents out of the entire extent

of 8 acres, bodies of their predecessors have been buried, and there are about 10 to 15 graves in the schedule item. In this case, the third

defendant is a Wakf Board, who can also be in control of burial ground, even if we construe the suit property as such. We find that the Wakf

Board was controlling the affairs of the appellant, and even according to the third defendant, about 15 cents of land alone was utilised to bury the

bodies of appellant''s predecessors. Merely because it is a ''Kabarsthan'' or a burialground, it should not be presumed that it can be only in the

possession of a Jamath. The documentary evidence proves otherwise.

Courts below have relied on certain orders passed in interlocutory applications. Orders passed on interlocutory applications have no bearing

when the court finally adjudicates the rights of parties. In this connection, it is useful to refer to the decision reported in P. Govindaswamy and Ors.

v. S. Narayanan and Ors. 1987 S.C.C. (Supp.) 58, wherein in paragraph 5, their Lordships have said thus:

We do not consider it necessary to reiterate that the views expressed in the course of the judgment in the interlocutory proceedings are tentative by

the very nature of things. The matter will doubtless be disposed of finally in accordance with law on the basis of the material placed before the

court in the light of the submissions advanced by the parties uninhibited one way or the other by what has been said whilst disposing of the

interlocutory applications....

In the same volume Jaikishan Jagwani and Ors. v. Britomatics Enterprises Pvt. Ltd. and Anr. (1987) S.C.C. (Supp.) 72 the Supreme Court

again reiterated the principles thus:

Counsel for the petitioners expresses an apprehension that the observations made by the City Civil Court and the High Court in the course of the

orders in question might create prejudice. We think that the apprehension is not well founded because by the very nature of things such

observations are tentative observations made for the limited purposes of the interlocutory proceedings. When the question of deciding the matter

on merits ultimately arises the matter would of course be disposed of with an open mind uninfluenced or uninhibited by any observations made in

the course of these orders, on the basis of the evidence on record and in the light of submissions then made in accordance with law.

Why I am referring to the above decisions of the Supreme Court is that both the courts below have given importance to Ex. A-22, an order in

an injunction application in a suit filed by the appellant. I can understand the justice by the courts below if only they had adopted this for the plaintiff

also. In the very same suit, plaintiff-Jamath moved an application for interim injunction to restrain the defendants from interfering with its

possession. That application was dismissed with costs. If Orders passed on interim applications are of any importance, the order dismissing the

injunction application filed by the plaintiff should also have been given some importance.

Eventhough originally the appellant''s counsel argued that the suit was not properly instituted under Order 1, Rule 8, C.P.C., that argument was

not pursued after the second appeal was resorted consequent to the allowing of the review application. Learned counsel for the first respondent

plaintiff also submitted that the suit has been properly instituted under Order 1, Rule 8, C.P.C., and that it is a representative suit. It is true that the

trial court has not stated in its judgment why an express permission has been granted for instituting the suit under Order 1, Rule 8, C.P.C. But it is

settled law that no express order is required, and an inference could be drawn from the proceedings are initiated and concluded. It is legally settled

that no formal order or sanction is necessary, and inference could be drawn that sanction was granted, if notice was provided under Order 1, Rule

8, C.P.C. Again, 1 do not find that such an argument was advanced before the courts below by the appellant. I hold that the suit has been properly

instituted.

Finally, learned Counsel for first respondent plaintiff argued that since the courts below have not considered the documentary evidence

adduced by the appellant, it is better that the matter be remanded to the trial court.

I think that the request cannot be accepted. Parties have been litigating from 1974 onwards, and if the case is again remanded to the trial court,

the litigation will not come to an end for another 24 years. As I said earlier none has a case that the trial court has not given sufficient opportunity,

and it is also nobody''s case that the evidence already on record is not sufficient to enter a finding. If the court is empowered u/s 103, C.P.C. to

consider the evidence and deliver judgment, the only requirement is that the parties must be given a full opportunity to argue the case in detail and

in entirety. The opportunity has been availed by learned Counsel for all the parties. In the available materials, a final decision could be arrived, and

there is no necessity for a remand.

Learned Senior Counsel for appellant submitted that he is arguing the appeal without prejudice to his rights to challenge the order passed by

me allowing the review application. Learned senior counsel further submitted that he has not obtained a copy of the order in the review application,

and hence he is not in a position to challenge it. He wanted this submission to be recorded. Accordingly his submission is recorded.

In the result, the substantial question of law raised in this second appeal is found in favour of the appellant and the second appeal is allowed.

The appellant is also entitled to his costs in all the three courts. The suit O.S. No. 1057 of 1976, on the file of District Munsif''s Court,

Tiruchirappalli, shall stand dismissed with costs.