CASE NO.: Appeal (civil) 6246 of 1998 PETITIONER: Commissioner of Endowments & Ors. RESPONDENT: Vittal Rao & Ors. DATE OF JUDGMENT: 25/11/2004 BENCH: SHIVARAJ V. PATIL & B.N. SRIKRISHNA JUDGMENT:
J U D G M E N T
Shivaraj V. Patil J.
In this appeal, the order dated 21.10.1998 made by
the Division Bench of the High Court in Writ Appeal No. 429
of 1998 is under challenge. Parties are before this Court for
the third time in relation to the same subject matter.
One Fauzdar Khan donated 5 bighas of land situated
at Hyderabad to one Gunnaji, the ancestor of the
respondent no. 1 for the purpose of construction of a
temple, now known as Sri Jangli Vittobha Temple. Gunnaji
died and after his death, his sister Suguna Bai completed
the construction of the temple. In 1939, one Golakishan
Gir claiming himself to be the Mutawalli of the temple,
mismanaged its affairs. The Government having come to
know about the same, constituted a committee under Rule
156 of Andhra Pradesh (Telangana Areas) Wakf Rules.
Manik Rao, father of the respondent no. 1, applied to the
Registration Officer in 1962 for transfer of Towliatship of
temple in his name. The Registration Officer (the Assistant
Secretary of Board of Revenue) after holding inquiry by the
order dated 15.1.1964 held that said Manik Rao was the
rightful claimant to the Towliatship and consequently
ordered for amendment of Column No. 11 of Munthakab
under Section 36(c) of Hyderabad Endowment Rules.
Aggrieved by this order, the temple committee filed an
appeal to the Director of Endowments, who, by his order
dated 29.10.1966, confirmed the aforementioned order
dated 15.1.1964. The temple committee pursued the
matter further by filing a revision petition before the
Government assailing the order dated 29.10.1966 made by
the Director of Endowments. The revision petition was
allowed and the order of the Director of Endowments
affirming the order of the Registration Officer was set aside
as is evident by G.O. Rt. No. 680 dated 17.06.1971. It is
against this G.O. that Manik Rao filed a suit O.S. No.
509/1971 in the City Civil Court, Hyderabad, for declaration
that he was the hereditary Mutawalli of the temple; for
perpetual injunction against the authorities and individuals,
restraining them from interfering with his Towliatship and
from constituting or reconstituting any committee for the
temple and for setting aside the said G.O. dated 17.6.1971.
The trial court dismissed the suit. The appeal No. A.S. No.
199/77 filed against the judgment and decree of the trial
court was allowed by the first appellate court by its
judgment and decree dated 22.12.1978, which decreed the
suit of Manik Rao granting the relief as sought for in the
said suit. The temple committee preferred second appeal
being S.A. No. 122/79 in the High Court against the
judgment dated 22.12.1978 aforementioned made by the
first appellate court. It may be stated here itself that
neither the Government nor the Commissioner of
Endowments (defendants 1 and 2 respectively) filed second
appeal challenging the judgment and decree passed by the
first appellate court in favour of Manik Rao. Although they
were respondents 2 and 3 in the second appeal No. 122/79
filed by the temple committee, they did not participate. In
other words, they did not put forth any plea before the High
Court. The High Court dismissed the said second appeal on
2.7.1979 concurring with the findings recorded by the first
appellate court and affirming the decree passed by it. The
High Court held that the land in question was gifted
absolutely to Gunnaji and that the Government could not
claim any interest in it. The State of Andhra Pradesh and
the Temple Committee acting through its Chairman,
approached this Court by filing SLPs questioning the validity
and correctness of judgment and decree passed by the High
Court in the second appeal. This Court dismissed C.A. Nos.
702/80 & 703/80 on 12.8.1987 after granting leave in the
SLPs. Thus, the judgment and decree passed in favour of
Manik Rao by the first appellate court in A.S. No. 199/77
attained finality.
About two years later, the Commissioner of
Endowments, Govt. of Andhra Pradesh (appellant No. 1), by
his letter dated 14.6.89 addressed to the Principal
Secretary, Deptt. Of Revenue, Andhra Pradesh gave a
detailed report seeking permission to compromise the
dispute in the best interest of the temple. In response to
the said letter, Joint Secretary to the Government by
Memorandum dated 27.10.89 stated that a compromise
might be made on certain terms.
The Assistant commissioner of Endowments issued
instructions dated 16.1.1990 to the tenants of the temple
property to pay the rents due, to Vittal Rao, the respondent
no. 1 herein as the entire property had been declared as his
private property by virtue of the decree passed by the civil
court in A.S. No. 199/77 but the Deputy Commissioner of
Endowments by his order dated 15.6.1990 set aside the
instructions dated 16.1.1990 given by the Assistant
Commissioner of Endowments inter alia stating that the
terms of compromise mentioned in the Government
Memorandum dated 27.10.1989 issued by the Joint
Secretary had not been reduced into a deed of compromise.
Consequently, the Assistant Commissioner withdrew his
instructions dated 16.1.1990 and directed the tenants to
comply with the order of the Deputy Commissioner dated
15.6.1990. Thereafter on 25.6.1990, the Commissioner of
Endowments appointed an Executive Officer for the
management of the temple. The respondent no. 1 Vittal
Rao filed writ petition No. 8970/90 in the High Court to
quash the order of the Deputy Commissioner dated
15.6.1990 and that of the Commissioner dated 25.6.1990
aforementioned. The respondents 2 to 5 got impleaded as
party-respondents in the above writ petition claiming to be
interested persons. In the said writ petition, the
respondents 1-3, (Officers of the Endowment Department)
filed W.P.M.P. No. 15438/95 seeking direction to appoint an
Executive Officer to manage the affairs of the temple and
permit the officer to conduct the yearly festivals pending
disposal of the writ petition. The writ petitioner
(respondent no. 1 herein) filed a counter affidavit stating
that he was ready to accept the terms of compromise
suggested in the Govt. Memo dated 27.10.1989. Learned
Single Judge by his order dated 17.10.1995 disposed of the
writ petition on the submission of the learned counsel for
both parties that the writ petition may be disposed of by
recording the said terms of the compromise contained in
Government Memorandum dated 27.10.1989 and the
learned Judge further directed to implement the terms of
the compromise within four weeks from the date of the
order. The respondent Nos. 1 to 3 of the Endowments
Department (appellants Nos. 1 to 3 herein) in the writ
petition did not file any appeal against the aforementioned
order of the learned Single Judge made in the writ petition
but the private respondents 5-8, who were impleaded
subsequently in the writ petition, contending to be the
purchasers of the land, filed writ appeal No. 1536/95. The
Division Bench of the High Court by the order dated
13.1.1997 held that the appellants in the writ appeal having
not represented themselves in the earlier proceedings when
the matter came up to the Supreme Court, the decision of
the Supreme Court had become final in the matter and that
in case they have any other right over the property, they
have to approach the civil court. Thus, the order passed by
the learned Single Judge on 17.10.1995 passed in the writ
petition was confirmed by the High Court in the writ appeal.
When the aforementioned writ appeal was pending,
some individuals claiming to be devotees of the temple,
filed W.P. No. 2830/96 claiming to espouse public interest
inter alia to declare the Memo of the Government dated
27.10.1989 (suggesting compromise) as illegal and
arbitrary and to direct the Endowments Department to
remove the respondent no. 1 from the post of hereditary
trusteeship of the temple. The Division Bench of the High
Court dismissed the said writ petition on 21.2.1997.
It is thereafter that the Govt. of Andhra Pradesh,
which was not a party to the writ appeal No. 1536/95,
sought review of the order made in Writ Appeal No. 1536 of
1995 in RWAMP No. 2435/97 contending that despite
permission granted to the Commissioner to enter into
compromise by virtue of the Government Memorandum
dated 27.10.1989, no compromise was in fact entered into
and therefore, it was unenforceable and that the proposal
for compromise was wrongly interpreted in earlier
judgments and that too on a wrong translation of the gift
deed. The Division Bench of the High Court, by its order
dated 12.11.1997 dismissed the review petition taking a
view that the earlier Supreme Court judgment in C.A. Nos.
702/80 and 703/80 attained finality so far as the
construction of gift deed made in favour of Manik Rao is
concerned and that issue could not be re-opened. On the
same day, the High Court rendered a judgment in the
contempt case filed by Vittal Rao against the government
and impleaded parties alleging that they had violated the
earlier judgment of the Court in Writ Appeal No.
1536/1995. The Court did not proceed with the contempt
petition stating that the Govt. had stated that they would
abide by the orders of the Court in the review petition and
in the contempt case. A further direction was given that
the order made in Writ Appeal No. 1536/95 be implemented
within two months by taking into consideration the
observations made by the Court in review petition. As
against the judgment in the review petition, the
Commissioner of Endowments and others filed special leave
petition No. 22746/97. The said SLP was disposed of by
this Court in the following terms:-
“The learned Senior Counsel for the petitioner
after some arguments seeks leave to withdraw
this Special Leave Petition with a view to filing
appropriate proceedings for challenging the
consent order in a writ petition which according
to him was a nullity as being fraudulent and
contrary to law. The SLP stands dismissed as
withdrawn.”
It is thereafter the present appellants filed Writ Appeal
No. 429/98. There was delay of 739 days in filing the writ
appeal which was condoned. The Division Bench of the
High Court, by the impugned judgment, dismissed the writ
appeal on considerations of the material on record and
accepting the preliminary objections raised by the
respondent no. 1. The Division Bench also held that the
Government could not go back on its assurance given in the
contempt case. Hence, this appeal.
Shri P.P. Rao, learned senior counsel for the
appellants in support of the appeal, urged the following
contentions: –
1. The Division Bench of the High Court having condoned
the delay in filing the writ appeal ought to have set aside
the compromise said to have been arrived at between the
parties. There was no concluded compromise in writing
signed by the parties or their authorized representatives,
but there was only proposal for compromise yet to be acted
upon by the Commissioner in the manner suggested by the
Government in its Memorandum dated 27.10.1989; the
proposed terms of compromise having been rejected by
respondent No. 1, they ceased to exist in the eye of law;
after filing of writ petition 8970 of 1990 containing serious
misrepresentations of facts and before the same could be
adjudicated and their falsity exposed of by the appellants
the respondent No. 1 approached the High Court with a
request that the writ petition may be disposed of recording
the said compromise as per the Government Memorandum
dated 27.10.1989 and got the order in the writ petition
taking the advantage of the absence of the Advocate
General at the hearing.
2. The Division Bench of the High Court committed an
error in not considering the effect of Sections 14, 16, 42,
80(1)(a) and (b) and Section 87 of the Andhra Pradesh
Charitable and Hindu Religious Institutions and
Endowments Act, 1987 (for short ‘the Act’); the Division
Bench ought to have examined the legality of the alleged
compromise in the light of these provisions as the illegality
was writ large in the proposed terms of compromise.
3. Not only the Government required the Commissioner
of Endowment to see that the above mentioned terms were
reduced into a deed of compromise by the parties but Order
XXIII Rule 3 CPC also required the compromise to be in
writing and signed by the parties; no court could accept the
compromise, which was not in writing and not signed by the
parties; therefore, the order of the learned single Judge
accepting the compromise not signed by the parties was in
violation of Order XXIII Rule 3 CPC and consequently it was
void. Rule 24 of the A.P. Writ Proceedings Rules, 1977
makes the provisions of Order XXIII Rule 3 CPC applicable
to the proceedings under Article 226 of the Constitution of
India.
4. Having noted the submission of the Advocate General
that he did not appear before the learned single Judge, who
disposed of the writ petition in terms of the alleged
compromise, the Division Bench out to have ascertained the
facts as to who appeared for the official respondent Nos. 1
to 4 when the writ petition was disposed of; a concession
made by the counsel on the question of law is not binding
on the parties; Section 96(3) of CPC is no bar for
challenging the consent order on the ground of illegality
and/or fraud.
5. The learned single Judge, who disposed of the second
appeal No. 122/1979 on 2.7.1979, made the following
observations: –
“As pointed out by the lower appellate
Court, Ex. A-I shows that the land was
gifted absolutely to Gunnaji. The
Government cannot claim any interest in
the land. The fact that Gunnaji’s sister
constructed a private temple subsequently
on a portion of the land, does not make the
gift of the land an endowment in favour of
God.”
There being no pleadings, no prayer and no arguments
before the learned Judge on the above aspects, it was a
mistake on his part to have made such observations; it is
settled law that such a mistake on the part of the court
shall not prejudice anyone. Further, the observations
quoted above were not ‘findings’ as there was no issue at
all warranting the same; the above extracted observations
in any event were outside the scope of a second appeal,
consequently, they were without jurisdiction; a decree by a
court without jurisdiction is a nullity and its validity could be
set up whenever and wherever it is sought to be enforced
or relied upon, even at the stage of execution and even in
the collateral proceedings.
6. The observations made by the learned single Judge
while dismissing the second appeal confirming the decree of
the court below declaring respondent No. one’s father as a
hereditary trustee of the temple, did not create any
additional right; the decree alone conclusively determines
the rights of the parties.
7. It was not necessary for the appellants to challenge
the orders of the High Court made in PIL and in the
contempt petition as they were based on order of the
learned single Judge dated 17.10.1995; the principle of
consequential orders applies.
The learned counsel for respondent No. 1 on the other
hand made following submissions fully supporting the
impugned judgment: –
1. The High Court rightly dismissed the appeal by the
impugned order on the three grounds (a) in view of
Section 96(3) of CPC an appeal against a consent decree
was not maintainable, (b) the allegations of fraud and
misrepresentation were without any basis and (c) the
finding recorded in the first round of litigation operated as
resjudicata against the appellants.
2. Neither in the review petition nor in the writ appeal
nor in the special leave petition filed in this Court in the
year 1998 nor in the present civil appeal it was stated that
the Advocate General was not present or that he did not
consent to the decree being passed as recorded by the
learned single Judge in the High Court in the writ petition; it
was for the first time before the Division Bench of the High
Court it was orally contended that the Advocate General
was not present and his junior had appeared; at no point of
time it was averred that the Advocate General or his junior
were not authorized to appear or to compromise the matter
or that they had acted contrary to express instructions.
3. Following were the circumstances in which the
Memorandum dated 27.10.1989 was issued: –
a) The said Memorandum was the culmination of a
proposal mooted by the Commissioner, Endowments
on 14.6.1989 and accepted by the Government of
Andhra Pradesh on 27.10.1989.
b) In the proposal dated 14.6.1989, the Commissioner of
Endowment traced the entire history of litigation and
stated that the land in question was gifted to Gunnaji
and the grant covered by the gift deed was absolute in
view of the findings recorded by the High Court and
this Hon’ble Court which were binding on the Deputy
Commissioner, who had to decide whether or not the
grant in question was an endowment.
c) It is in this view of the matter that the Commissioner,
Endowment (and not the Assistant Commissioner as
contended by the other side) mooted the proposal for
compromise, which was accepted by the Government
of Andhra Pradesh.
d) The writ petition having been disposed on the basis of
the said proposal mooted by the Commissioner,
Endowment (the appellant No. 1 herein) and accepted
by the Government and that too on the specific
representation by the learned counsel for the
appellants that the writ petition may be disposed of on
the said terms, it cannot be contended that the High
Court committed any error in disposing of the writ
petition accordingly.
4. The consent order passed in the writ petition is not
contrary to the provisions of the Act
a) In the first round of litigation findings were recorded
that there was no endowment at all; the gift in
question was not a gift to God; it was an absolute gift
to Gunnaji and that the temple in question was a
private temple. This being the position, the provisions
of the Act are not attracted to the land in question in
any manner whatsoever.
b) The Commissioner, Endowments having accepted in
his proposal dated 14.6.1989 that the said findings
were binding on the Deputy Commissioner,
Endowments for the purpose of exercise of jurisdiction
under Section 87 of the Act, it cannot be said that the
compromise was in violation of the provisions of the
Act.
5. In the earlier round of litigation a clear finding is
recorded that the temple in question was a private temple
and the said finding has attained finality. Merely because
there is reference to a Dharamshala in the gift deed it did
not imply that there was an endowment of a public
character.
6. Order XXIII Rule 3 CPC cannot be strictly applied to
the proceedings under Article 226 of the Constitution of
India
a) The explanation to Section 141 of CPC states that the
expression ‘proceedings’ does not include any
proceedings under Article 226 of the Constitution of
India. Therefore, it cannot be said that the provisions
of Order XXIII Rule 3 CPC should be mandatorily
followed in the writ proceedings.
b) The High Court while exercising jurisdiction under
Article 226 of the Constitution of India possesses
inherent powers to do justice between the parties; the
power of the High Court to dispose of the matter by
recording consent of the parties flows from Article 226
of the Constitution of India and not from Order XXIII
Rule 3 CPC. Further, the manner in which such power
is to be exercised is not controlled by Order XXIII Rule
3 CPC.
c) The contention that Order XXIII Rule 3 CPC was
applicable in view of the rules framed by the Andhra
Pradesh High Court is not correct. The provisions of
CPC are applicable to the extent possible and having
regard to the context. If the provisions of CPC are
held to be applicable to proceedings under Article 226
of the Constitution, absurd consequences will follow.
Then it can be urged that before deciding a writ
petition issues should be framed under Order XIV,
evidence should be lead, etc.
d) In the present case admittedly the compromise terms
were available in writing in the form of memorandum
dated 27.10.1989 and the same were accepted. Thus
provisions of Order XXIII Rule 3 CPC stood
substantially complied with.
7. The decisions and findings recorded in the first round
of litigation do operate as resjudicata against the
appellants.
8. In view of the dismissal of Civil Appeal Nos. 702 and
703 of 1980 by this Court it is not open to the appellants to
question the validity of the decisions and the findings,
which stood concluded in the earlier round of litigation.
We have carefully examined the rival contentions
urged on behalf of the parties in the light of the material
placed on record.
Late Manik Rao, father of respondent No. 1, filed suit
No. OS No. 509 of 1971 in the City Civil Court at Hyderabad
for declaration that the plaintiff was hereditary mutawalli
(trustee) of Pandarinath Temple, generally known as Jangli
Vithoba Temple at Osman Shahi, Hyderabad City, entitled
to get his name entered in column No. 11 of the
Endowment Register, for perpetual injunction restraining
the defendants from constituting or reconstituting any
committee for the temple and to set aside the order of the
Government dated 17.6.1971 covered by G.O. Rt. No. 680.
The Government of Andhra Pradesh was defendant No. 1
and the Commissioner, Endowments (appellant No. 1
herein) was the defendant No. 2 in the suit. One Vasedeve
Naik, a person appointed as Chairman of the Managing
Committee constituted for the temple by the Government,
was defendant No. 3 in the said suit. The trial court
dismissed the suit on 23.3.1977.
The First Appeal A.S. No. 199 of 1977, filed by the
plaintiff Manik Rao, was allowed on 22.12.1978 granting
decree as sought for by the plaintiff in the suit. Temple
Committee, the third defendant in the suit, filed Second
Appeal S.A. No. 122 of 1979 in the High Court. The
Government and the Endowment Commissioner (defendant
Nos. 1 and 2) did not file any appeal challenging the decree
passed by the first appellate court in favour of Manik Rao,
father of respondent No. 1. In other words, they accepted
the decree. Even otherwise the said second appeal was
also dismissed by the High Court on 2.7.1979 affirming the
decree passed by the first appellate court. The High Court
in the said judgment made in the second appeal has
noticed, thus: –
“The case of the plaintiff is that as early as
the year 1809, one Khan gifted five bigas
of land in favour of his ancestor, Gunnaji,
and that subsequent to the death of
Gunnaji, the heirs of Gunnaji were enjoying
the property in succession until his father’s
time and that, when his father Jagannath
Rao was afflicted with a mental disease, he
applied to the Government for the
appointment of a Managing Committee as
his son (plaintiff) was then a minor unable
to manage the land and the temple and
that, after he attained majority, the
plaintiff is seeking the instant declaration.
The case of the 3rd defendant, who is the
appellant herein, is that the land was gifted
in favour of a temple that the same is thus
an endowment in favour of the temple;
that the document created a trust in favour
of Gunnaji; that the endower did not make
any provision in the document in regard to
the management of the temple or the land
subsequent to the death of Gunnaji.
According to the 3rd defendant, the heirs of
Gunnaji managed the properties for
sometime not by virtue of any legal right
but for want of persons who agreed to
manage and that, when the persons who
were managing the property were found to
be adopting malpractices, the Government
took over the management in the year
1929 and was ever since appointing
committees with chairman for such
committees. The 3rd defendant is one such
Chairman appointed by the Government
and the plaintiff cannot therefore seek the
declaration prayer for.”
The High Court also has recorded that although the State
and the Commissioner, Endowments were made parties to
the second appeal, they did not participate in the appeal.
In other words, they neither filed the second appeal, as
already stated nor contested it. After hearing and
considering the evidence in view of the rival contentions,
the High Court has categorically recorded the findings,
thus: –
“As pointed out by the lower appellate
court, Ex. A-1 shows that the land was
gifted absolutely to Gunnaji. The
Government cannot claim any interest in
the land. The fact that Gunnaji’s sister
constructed a private temple subsequently
on a portion of the land, does not make the
gift of the land an endowment in favour of
God. The land evolves according to law on
the successors of the donees and the
plaintiff is admittedly a successor. The fact
that, due to mal-administration or the
incapacity of a successor, the Government
took over the management and appointed
a committee is no ground to deny the
rights of the subsequent successor, which
flow by ordinary operation of law.”
The original defendant Nos. 1 and 2 in the suit, i.e.,
Government of Andhra Pradesh and the Commissioner,
endowments although did not file second appeal against the
decree passed by the first appellant court in favour of the
father of respondent No. 1, they filed special leave petition
No. 3427 of 1980 in this Court aggrieved by the judgment
and decree passed by the High Court in the aforementioned
second appeal. Subsequently after granting leave it was
numbered as Civil Appeal No. 702 of 1980. The third
defendant in the suit also filed Civil Appeal No. 703 of 1980
in this Court. Both the civil appeals were dismissed by this
Court by the following common order on12.8.1987: –
“The High Court concurred with the findings
of the Lower Appellate Court on a
construction of the Deed Ex. A-1. It is now
contended before us that the translation of
Ex.A-1 is not correct. We find from the
judgments of the Lower Appellate Court
and the High Court and the memorandum
of grounds of appeal before the High Court
that it was not suggested anywhere that
the translation is not correct. If the
translation as set out in the judgment of
the Lower Appellate Court is correct, the
findings of the Lower Appellate Court and
the High Court must be sustained. The
appeals are therefore dismissed. No
costs.”
It is clear from the order of this Court, extracted above,
that this Court specifically recorded that the findings of the
lower appellate court and the High Court must be
sustained. There is also reference to Ex. A-1, the gift deed,
which deed was interpreted by the first appellate court and
the same interpretation was accepted by the High Court
holding that it conveyed absolute gift of land in favour of
the ancestors of the respondent No. 1, the temple was a
private property and that the land was not an endowed
property. Thus, in the first round of litigation the findings,
referring to Exh-A-1, gift deed, recorded by the first
appellate court as affirmed by the High Court in the second
appeal that under Exh A-1, gift deed, the land was gifted
absolutely to Gunnaji; the Government cannot claim any
interest in the land and the construction of a private temple
on a portion of the land did not make gift of the land an
endowment in favour of the God, had attained finality.
On 14.6.1989, almost after a period of one year and
ten months after the judgment was delivered by this Court
in aforementioned Civil Appeal Nos. 702 and 703 of 1980,
the Commissioner, Endowments sent a detailed report to
the Secretary of Revenue Department suggesting a
compromise by indicating the circumstances and the
reasons. In the said report, detailed history of the litigation
and also as to the findings recorded by the first appellate
court, High Court and Supreme Court in relation to the land
in question in the first round of litigation, as already stated
above in detail, were stated. This report shows that there
has been proper consideration and application of mind as to
how and why it was in the interest of the temple that a
compromise was needed. In response to the said
report/letter Joint Secretary to the Government of Andhra
Pradesh by Memorandum No. 1295/Endts-II-1/84-21,Rev.
dated 27.10.1989 permitted the compromise on certain
terms stated therein. On the representation made by
respondent No. 1 to the Assistant Commissioner to issue
necessary instructions, the Assistant Commissioner of
Endowment issued instructions dated 16.1.1990 to the
tenants of the temple property to pay the rents to
respondent No. 1 as the properties had been declared as
his private property. However, the Deputy Commissioner,
Endowments set aside those instructions on the ground that
the term of compromise mentioned in the Memorandum
dated 27.10.1989 had not been reduced into a deed of
compromise. Thereafter, the Assistant Commissioner,
Endowments, withdrew his earlier instructions. When the
things stood thus, the Commissioner of Endowments
appointed an Executive Officer by the order dated
25.6.1990 for the management of the temple. Under these
circumstances the respondent no. 1 filed Writ Petition No.
8970 of 1990 for setting aside the aforementioned orders of
the Deputy Commissioner, Endowments dated 15.6.1990
and of the Commissioner, Endowments dated 25.6.1990
respectively. This writ petition was disposed of by the
learned single Judge by order dated 17.10.1995. Operative
portion of the said order reads: –
“During the pendency of the writ petition
the respondents filed W.P.M.P. No.
15438/1995 seeking permission to appoint
an Executive Officer to manage the affairs
of the temple in question and also to
permit the said officer to conduct the yearly
festival pending disposal of the writ
petition. The writ petitioner filed a counter
affidavit in the said WPMP stating that he is
ready to accept the terms and conditions
mentioned in the Government Memo No.
1295 dated 27.10.1989. Now, counsel for
both parties have represented that the writ
petition may be disposed of recording the
said compromise as per Government Memo
No. 1295 dated 27.10.1989. Accordingly
this writ petition is disposed of in terms of
the compromise both parties to implement
the terms embodied in the said
Government Memo within a period of four
weeks from today. Writ petition disposed
of accordingly. No costs.”
Thus, it is clear that the learned single Judge disposed of
the writ petition by the consent of the parties accepting the
compromise memo dated 27.10.1989. Against this order of
the learned single Judge the present appellants did not file
any appeal. The private parties, who were subsequently
impleaded in the writ petition before the learned single
Judge, filed Writ Appeal No. 1536 of 1995 aggrieved by the
aforementioned order of the learned single Judge. The
Division Bench of the High Court dismissed the said writ
appeal on 13.1.1997 observing that the appellants in the
writ appeal had not represented themselves in the earlier
proceedings when the matter came up to this Court and
that the decision of this Court in the earlier round had
become final. Officers of the Endowment Department
including the Commissioner, Endowments sought review of
the order passed in the aforementioned Writ Appeal No.
1536 of 1995, which was dismissed on 12.11.1997 holding
that the earlier judgment of this Court in Civil Appeal Nos.
702 and 703 of 1980 had attained finality so far as the
construction of gift deed made in favour of Manik Rao,
father of respondent No. 1 and the issue could not be re-
opened. Hence the order passed by the learned single
Judge accepting the compromise on the basis of the
statement made on behalf of the parties was upheld.
Respondent No. 1 had also filed a contempt petition alleging
the violation of the judgment of the Division Bench made in
Writ Appeal No. 1536 of 1995. The Contempt Petition also
was disposed of on the same day, i.e., on 12.11.1997. In
the said order it is recorded, thus: –
“We have disposed of the Review W.A.M.P.
(SR) No. 84816 of 1997 today and in view
of the definite stand taken in the counter-
affidavit by the Respondents that they will
abide by the orders of this Court. We are
of the opinion that it is not a fit case to
proceed with the contempt cases. We,
therefore, direct the implementation of the
orders of this Court in Writ Appeal No.
1536 of 1995 by taking into consideration
the observations made in the review
W.A.M.P. (SR) No. 84816 of 1997 which is
disposed of by us today. The Respondents
will however implement the order in the
W.A. No. 1536 of 1995 within two months
from today.”
Against the dismissal of the review petition the
Commissioner, Endowments and others filed Special Leave
Petition No. 22746 of 1997 before this Court. The same
was dismissed as withdrawn on the statement made by the
learned counsel that the petitioners wanted to file
appropriate proceedings challenging the consent order
made in the writ petition by the learned single Judge. It is
only thereafter the appellants herein filed Writ Appeal No.
429 of 1998, which was disposed of by the impugned
judgment.
It was not contended on behalf of the appellants, till it
was raised for the first time during the course of arguments
before the Division Bench in the Writ Appeal No. 429 of
1998, that the learned Advocate General did not appear
before the learned single Judge and it is not the case of the
appellants that the counsel representing the appellants
before the learned single Judge were not authorized to
make the consent statement to accept the compromise.
However, it was contended before us that a concession
made on the question of law by the learned counsel does
not bind the parties. Learned Single Judge disposed of the
writ petition on the representation of learned counsel for
the parties recording the compromise as per the
Government Memo No. 1295 dated 27.10.1989. The writ
petition was disposed of in terms of the compromise with a
direction to implement them within a period of four weeks.
The representation so made or consent given for disposal of
the Writ Petition before the Learned Single Judge, in our
view, is not and does not amount to giving of concession on
a point of law particularly when we are taking a view that
the provisions of the Act have no application to the property
in question. The two decisions in Nedunuri
Kameswaramma vs. Sampat Subba Rao [1963) 2 SCR
208] and (2) B.S. Bajwa & Anr. vs. State of Punjab &
Ors. [(1998) 2 SCC 523] have no application to the facts of
the present case for the reasons that they were the cases
dealing with concession on the point of law given by the
counsel and those decisions were rendered on the facts of
those cases. Further, we are of the view that in this case,
there was no concession by the learned counsel on behalf of
the appellants on a point of law.
The contention that the order passed by the learned
single Judge accepting the compromise when it was not in
writing and not signed by the parties could not be accepted
by the learned single Judge, in our view, has no force for
the reasons more than one.
The decisions in Gurpreet Singh vs Chatur Bhuj
Goel [(1988) 1 SCC 270] and Banwari Lal vs. Chando
Devi (Smt.) through L.Rs. & Anr. [(1993) 1 SCC 581]
cited by the learned counsel for the appellants to contend
that the order passed by the learned Single Judge in the
writ petition based on the consent statement made on
behalf of the parties when the compromise was not reduced
to writing and was not signed by the parties could not be
accepted, do not advance the case of the appellants. These
decisions dealt with the validity of the compromises arising
out of suits. It is true that under Rule 24 of the Andhra
Pradesh Writ Proceedings Rule, 1977, the provisions of the
Code of Civil Procedure would apply to the writ petitions or
the writ appeals. Section 141 of CPC provides that
procedure provided in the Code in regard to suits shall be
followed in all proceedings in any court of civil jurisdiction.
But, the explanation to Section 141 states that the
expression `proceedings’ does not include any proceedings
under Article 226 of the Constitution of India. By virtue of
Rule 24 of A.P. Writ Proceedings Rules, the provisions of
Civil Procedure Code could be applied as far as possible.
The learned Single Judge disposed of the writ petition in
terms of Memorandum dated 27.10.1989 on the basis of
the submissions made by the learned counsel for the
parties. The Memorandum was issued by the Government
at the instance of the Endowment Commissioner and the
same was accepted by the respondent no. 1 though not
initially but during the pendency of the writ petition in the
High Court. Further, it is not the case of the appellants that
the counsel did not have authority to make a statement
before the court to accept the compromise. In Byram
Pestonji Gariwala vs. Union Bank of India & Ors.
[(1992) 1 SCC 31], in para 39, it is held thus:-
“39. To insist upon the party himself
personally signing the agreement or
compromise would often cause undue
delay, loss and inconvenience, especially in
the case of non-resident persons. It has
always been universally understood that a
party can always act by his duly authorised
representative. If a power-of-attorney
holder can enter into an agreement or
compromise on behalf of his principal, so
can counsel, possessed of the requisite
authorisation by vakalatnama, act on
behalf of his client. Not to recognise such
capacity is not only to cause much
inconvenience and loss to the parties
personally, but also to delay the progress
of proceedings in court. If the legislature
had intended to make such a fundamental
change, even at the risk of delay,
inconvenience and needless expenditure, it
would have expressly so stated.”
The High Court while exercising jurisdiction under
Article 226 of the Constitution of India has jurisdiction to
pass appropriate orders. Such power can neither be
controlled nor affected by the provisions of Order XXIII Rule
3 CPC. It would not be correct to say that the terms of
order XXIII Rule 3 should be mandatorily complied with
while exercising jurisdiction under Article 226 of the
Constitution of India. Otherwise anomalous situation would
arise such as before disposing of the writ petition, issue
should be framed or evidence should be recorded etc.
Proceedings under Article 226 of the Constitution of India
stand on a different footing when compared to the
proceedings in suits or appeals arising therefrom.
There was some dispute as to whether the learned
Advocate General himself appeared on the date when the
writ petition was disposed of by the learned Single Judge in
terms of the compromise or his junior appeared. In the
impugned judgment, it is stated that the State Government
was duly represented by a lawyer. In State of
Maharashtra vs. Ramdas Shrinivas Nayak & Anr.
[(1982) 2 SCC 463], dealing with the practice and
procedure regarding statement of fact recorded in the
judgment of a court, this Court held that such a statement
is conclusive and not open to be contradicted in appeal.
Paras 4 to 8 of the said judgment read:-
.”4. When we drew the attention of the learned
Attorney-General to the concession made before
the High court, Shri A.K. Sen, who appeared for
the State of Maharashtra before the High Court
and led the arguments for the respondents there
and who appeared for Shri Antulay before us
intervened and protested that he never made
any such concession and invited us to peruse the
written submissions made by him in the High
Court. We are afraid that we cannot launch into
an enquiry as to what transpired in the High
Court. It is simply not done. Public policy bars
us. Judicial decorum restrains us. Matters of
judicial record are unquestionable. They are not
open to doubt. Judges cannot be dragged into
the arena. “Judgments cannot be treated as
mere counters in the game of litigation (Per Lord
Atkinson in Somasundaram Chetty v.
Subramanian Chetty, AIR 1926 PC 136 : 99 IC
742).” We are bound to accept the statement of
the judges recorded in their judgment, as to
what transpired in court. We cannot allow the
statement of the judges to be contradicted by
statements at the Bar or by affidavit and other
evidence. If the judges say in their judgment
that something was done, said or admitted
before them, that has to be the last word on the
subject. The principle is well-settled that
statements of fact as to what transpired at the
hearing, recorded in the judgment of the court,
are conclusive of the facts so stated and no one
can contradict such statements by affidavit or
other evidence. If a party thinks that the
happenings in court have been wrongly recorded
in a judgment, it is incumbent upon the party,
while the matter is still fresh in the minds of the
judges, to call the attention of the very judges
who have made the record to the fact that the
statement made with regard to his conduct was
a statement that had been made in error (Per
Lord Buckmaster in Madhu Sudan Chowdhri v.
Chandrabati Chowdhrain, AIR 1917 PC 30 : 42
IC 527). That is the only way to have the record
corrected. If no such step is taken, the matter
must necessarily end there. Of course a party
may resile and an appellate court may permit
him in rare and appropriate cases to resile from
a concession on the ground that the concession
was made on a wrong appreciation of the law
and had led to gross injustice; but, he may not
call in question the very fact of making the
concession as recorded in the judgment.
5. In R v. Mellor ((1858) 7 Cox CC 454 : 6 WR
322 : 169 ER 1084) Martin, B. was reported to
have said :
We must consider the statement of
the learned judge as absolute verity
and we ought to take his statement
precisely as a record and act on it in
the same manner as on a record of
Court which of itself implies an
absolute verity.
6. In king-Emperor v. Barendra Kumar Ghose
(28 Cal WN 170 : AIR 1924 Cal 257 : 38 Cal LJ
411 : 25 Cri LJ 817), Page, J. said :
…these proceedings emphasis the
importance of rigidly maintaining the
rule that a statement by learned
Judge as to what took place during
the course of a trial before him is final
and decisive : It is not to be criticized
or circumvented; much less is it to be
exposed to animadversion.
7. In Sarat Chandra Maiti v. Bibhabati Debi (34
Cal LJ 302 : AIR 1921 Cal 584 : 66 IC 433) Sir
Asutosh Mookerjee explained what had to be
done :
…It is plain that in cases of this
character where a litigant feels
aggrieved by the statement in a
judgment that an admission has been
made, the most convenient and
satisfactory course to follow,
wherever practicable, is to apply to
the Judge without delay and ask for
rectification or review of the
judgment…
8. So the judges’ record is conclusive. Neither
lawyer nor litigant may claim to contradict it,
except before the judge himself, but nowhere
else. ”
Under the circumstances, the Division Bench of the
High Court was right in not disturbing the order of the
learned Single Judge accepting the compromise as
represented by learned counsel for the parties.
Thus, on the facts of the case, it is not possible to
hold that the order of the learned Single Judge disposing of
the writ petition was bad in law particularly when he
exercised his jurisdiction under Article 226 of the
Constitution of India. At any rate, when the findings
recorded and the decision made in the first round of
litigation between the parties being binding, the appellants
cannot take advantage on the ground that compromise was
not reduced to writing and not signed by the parties. Even
otherwise, if this compromise is to be annulled accepting
the contention of the appellants, it would be to their
disadvantage in the light of the findings recorded earlier in
the first round of litigation.
In the earlier round of litigation, it was specifically
held that the gift deed did not create an endowment and
the temple in question was not a public temple and the land
was gifted absolutely to Gunnaji. In a private trust, the
beneficiaries are specific individuals and in a public trust,
the beneficiary is general public as a class. In a private
trust, the beneficiaries can be ascertained whereas in a
public trust, they are incapable of ascertainment. In the
present case, the ascertained individual was Gunnaji. This
position is clear from the decision in Deoki Nandan vs.
Murlidhar [(1956) SCR 756].
Mere use of the premises as a `Dharamshala’ for
number of years could not lead to an inference that the
same belongs to a public trust. Whether an endowment is
of public or private nature, depends on the facts of each
case satisfying certain tests and guidelines. This position is
evident from the judgment of this Court in Kuldip Chand &
Anr. vs. Advocate-General to Government of H.P. &
Ors. [(2003) 5 SCC 46]. Para 34 of the said judgment
reads:-
“Long user of a property as Dharamsala by itself
would not lead to an inference that dedication of
the property by Kanwar Bir Singh in favour of
the public was complete and absolute. Had such
dedication been made, the same was expected
to be recorded in the revenue records.”
The argument that the impugned order is unsustainable
on the ground that the Division Bench did not consider the
effect of Sections 14, 16, 42, 80(1)(a) and (b) and Section 87
of the Act also does not help the appellants in the light of the
specific finding of fact that the gift made in Exh. A-1 in respect
of the land was absolute in favour of the ancestors of the
respondent No.1, the temple was a private temple and the
land was not endowed under the gift deed. As is evident from
Section 1(3) of the Act, it applies to all public charitable
institutions and endowments whether registered or not. This
being the position, having regard to the findings as to the
nature and scope of the gift of the land in favour of the
ancestors of the respondent no. 1, the temple was a private
temple and the land was not endowed under the gift deed, the
Division Bench did commit no error in not considering the
effect of the aforementioned Section of the Act when the Act
itself did not apply to the properties in question.
In the suit O.S. No. 509/1971, although no specific
issue was raised as to the scope and nature of the gift
deed, the Commissioner of Endowments (appellant no. 1) in
the written statement, had raised a plea that the gift deed
merely gave general power of attorney to Gunnaji. In that
situation, in order to decide the issues that arose for
consideration in the suit, it was necessary to decide as to
what rights were conferred by the gift deed on Gunnaji and
what was the nature and scope of the gift deed. It cannot
be said that these aspects as to the nature and scope of the
gift deed and the rights that were conferred on Gunnaji did
arise for consideration. Both the parties knew about the
same. The High Court in the second appeal No. 122/79, as
already stated above, noticing the findings of the lower
appellate court, recorded a findings that the land was gifted
to Gunnaji absolutely, the Government could not claim any
interest, temple constructed on a portion of the land was a
private temple and it did not make the gift of the land an
endowment in favour of the God. These findings have
attained finality. Failure to frame a formal issue by the
court would not invalidate the findings of the binding
judgment between the parties. The aforementioned
findings against the appellants could neither dilute nor
deprive their binding character merely because specific
issue was not raised in the suit. It was also contended that
in the suit, father of the respondent no. 1 claimed only
declaration as to his Mutawalliship and if he was Mutawalli,
the question of claiming absolute right over the land did not
arise. In the suit, one of the reliefs sought by Manik Rao
was that the order passed by the appellant no. 1 holding
that the gift in favour of Gunnaji was an endowment be set
aside which relief was ultimately granted to Manik Rao. For
setting aside the order of the appellant no. 1, it was
necessary to consider the nature and scope of gift deed
and, therefore, the finding in that regard, which had
attained finality, could not be re-opened. Merely because
Manik Rao claimed declaration of his mutawalliship under
misconception or wrongly, that does not affect the merit of
the case of the respondent no. 1 when there are positive
and categorical findings as to the nature and scope of the
gift deed conferring absolute right over the land in
question. It is pertinent to state here itself that the findings
of the first appellate court and the second appellate court
regarding the nature of the gift deed were specifically
impugned by the appellants in Civil Appeal Nos. 702 and
703 of 1980 and thus the issue was raised. The contention
was raised in the aforementioned appeals before this Court
that the courts below had wrongly interpreted the gift deed
and the findings should be overturned. This Court in the
judgment dated 12th August, 1987 made in the said appeals
has clearly stated that the findings of the lower appellate
court and the High Court must be sustained. It may also be
noticed that the appellants challenged the judgment of the
first appellate court and the High Court in the first round of
litigation before this Court substantially on the grounds
which are urged in the present appeal. Some decisions are
cited on the question as to whether the judgments in the
first round of litigation operate as res judicata and whether
they are binding on the parties.
The decision in Mathura Prasad Bajoo Jaiswal &
Ors. Vs. Dossibai N.B. Jeejeebhoy [(1970) 3 SCR 830]
and Madhvi Amma Bhawani Amma & Ors. Vs.
Kunjikutty Pillai Meenakshi Pillai & Ors. [(2000) 6 SCC
301] relied on by the learned counsel for the appellants to
support the contention that any observation made or
finding given in the judgment in the absence of an issue
framed does not operate as res judicata. In the first case,
the question that arose for consideration was whether a
decision relating to the jurisdiction of a court erroneously
decided would operate as res judicata subsequently. This
Court held that by an erroneous decision, if the court
assumes jurisdiction which it does not possess under the
statute, such a decision would not operate as res judicata
between the parties. This is not a decision on the point that
a finding given by the courts having jurisdiction on the
question of fact, does not bind the parties or such a finding
does not operate as res judicata. In the second case, the
question for consideration was whether an order of granting
succession certificate under Section 373 of the Indian
Succession Act, 1925 would operate as res judicata to the
suit for partition in a civil court between the same parties.
This Court held that the finding recorded while granting
succession certificate did not operate as res judicata in the
suit filed for partition in a civil court. It was noticed that the
grant of succession certificate falls under Part X of the said
Act. Under Section 387 of the Act, no decision under Part X
upon any question of right between the parties shall be held
to bar the trial of the same question in any suit or in any
other proceeding between the same parties. In para 16 of
the judgment, it is stated thus:-
“16. This leaves no room for doubt. Thus any
adjudication made under Part X of this Act which
includes Section 373 does not bar the same
question being raised between the same parties
in any subsequent suit or proceeding. This
provision takes the decisions under Part X of the
Act outside the purview of Explanation VIII to
Section 11. This gives protective umbrella to
ward off from the rays of res judicata to the
same issue being raised in a subsequent suit or
proceedings.”
Rameshwar Dayal vs. Banda (Dead) through His
LRs. & Anr. [(1993) 1 SCC 531] also does not help the
appellants. That was a case where question of title was
incidentally determined by the Small Causes Court and
when a plea of res judicata was sought to be raised in a
subsequent suit based on title, the Court held that there
was no bar of res judicata. The question of title incidentally
considered by the Small Cause Court in eviction
proceedings against tenant could not be taken as bar to
apply principle of res judicata in a subsequent suit based on
title.
This Court in Raj Laxmi Dasi & Ors. Vs. Banamali
Sen & Ors. [1953 SCR 154] while dealing with the doctrine
of res judicata reproduced the observations of Sir Lawrence
Jenkings made in the judgment of the Board in
Sheoparsan Singh vs. Ramnandan Singh [(1916) 43
I.A. 91] which read:-
“In view of the arguments addressed to them,
their Lordships desire to emphasize that the rule
of res judicata while founded on ancient
precedent, is dictated by a wisdom which is for
all time. `It hath been well said’ declared Lord
Coke, `interest reipubliae ut sit finis litium
otherwise, great oppression might be done under
colour and pretence of law’ (6 Coke, 9a).
Though the rule of the Code may be traced to an
English source, it embodies a doctrine in no way
opposed to the spirit of the law as expounded by
the Hindu commentators. Vijnaneswara and
Nilakantha include the plea of a former judgment
among those allowed by law, each citing for this
purpose the text of Katyayana, who describes
the plea thus:`If a person though defeated at
law, sue again, he should be answered “you
were defeated formerly”. This is called the plea
of former judgment. And so the application of
the rule by the courts in India should be
influenced by no technical considerations of
form, but by matter of substance within the
limits allowed by law.”
(Emphasis supplied)
In support of his submission, the learned counsel for
respondent no. 1 contended that as long as an issue arises
substantially in a litigation irrespective of the fact whether
or not a formal issue has been framed or a formal relief has
been claimed, a finding on the said issue would operate as
res judicata, strongly relied on the decision of this Court in
Sajjadanashin Sayed MD. B.E. EDR. (D) by LRs. Vs.
Musa Dadabhai Ummer & Ors. [(2000) 3 SCC 350].
Paras 18 and 19 of the said judgment read:-
“18. In India, Mulla has referred to similar tests
(Mulla, 15th Edn., p. 104). The learned author
says : a matter in respect of which relief is
claimed in an earlier suit can be said to be
generally a matter “directly and substantially” in
issue but it does not mean that if the matter is
one in respect of which no relief is sought it is
not directly or substantially in issue. It may or
may not be. It is possible that it was “directly
and substantially” in issue and it may also be
possible that it was only collaterally or
incidentally in issue, depending upon the facts of
the case. The question arises as to what is the
test for deciding into which category a case falls
? One test is that if the issue was “necessary” to
be decided for adjudicating on the principal issue
and was decided, it would have to be treated as
“directly and substantially” in issue and if it is
clear that the judgment was in fact based upon
that decision, then it would be res judicata in a
latter case (Mulla, p. 104). One has to examine
the plaint, the written statement, the issues and
the judgment to find out if the matter was
directly and substantially in issue (Ishwer Singh
v. Sarwan Singh (AIR 1965 SC 948) and Syed
Mohd. Salie Labbai v. Mohd. Hanifa ((1976) 4
SCC 780 : AIR 1976 SC 1569). We are of the
view that the above summary in Mulla is a
correct statement of the law.
19. We have here to advert to another principle
of caution referred to by Mulla (p. 105) :
“It is not to be, assumed that matters
in respect of which issues have been
framed are all of them directly and
substantially in issue. Nor is there any
special significance to be attached to
the fact that a particular issue is the
first in the list of issues. Which of the
matters are directly in issue and
which collaterally or incidentally, must
be determined on the facts of each
case. A material test to be applied is
whether the court considers the
adjudication of the issue material and
essential for its decision.”
(Emphasis supplied)
In the light of what is stated above, in the case on
hand, in our view, it was necessary for the Court in the
earlier round of litigation to decide the nature and scope of
gift deed Exbt. A-1. Accordingly, the courts decided that
the gift made in favour of ancestors of the respondent no. 1
of the land was absolute and it was not an endowment for a
public or charitable purpose. On the facts of the case, it is
clear that though an issue was not formally framed, the
issue was material and essential for the decision of the case
in the earlier proceeding. Hence, the bar of res judicata
applies to the facts of the present case.
In Vithal Yeshwant Jathar vs. Shikandarkhan
Makhtumkhan Sardesai [(1963) 2 SCR 285], this Court
observed that “it is well settled that if the final decision in
any matter at issue between the parties is based by a Court
on its decisions on more than one point each of which by
itself would be sufficient for the ultimate decision the
decision on each of these points operates as res judicata
between the parties.”
The following three decisions were relied on by the
learned counsel for the appellants in support of his
submission that a `finding’ is a decision on an issue framed
in a suit and not otherwise:-
(1) Income-tax Officer, A-Ward,Sitapur vs. Murlidhar
Bhagwandas, Lakhimpur Kheri[(1964) 6 SCR 411]
(2) Daffadar Bhagat Singh & Sons Vs. The Income-tax
Officer, A-Ward, Ferozepore [(1969) 1 SCR 828]
(3) C.I.T. Andhra Pradesh Vs. M/s. Vadde Pulliah & Co.
[(1973) 4 SCC 121]
These three decisions are rendered interpreting
Section 34(3) of the Income-tax Act. They do not help the
appellants. There are not the authorities to say that a
finding is a decision on an issue framed in a suit. This
Court observed in the said decisions that a finding, which
can be considered as relevant under the second proviso to
Section 34(3) of the Income-tax Act, must be one which
was necessary for deciding the appeal before the authority.
In view of the discussion made above on the point of
res judicata, we have taken the view that the findings
recorded between the parties in the earlier round of
litigation are binding on the appellants. Thus, we do not
find any merit in the submission of the learned counsel for
the appellants that there are no binding findings against the
appellants in the earlier round of litigation on the ground
that those findings were recorded without there being any
issue.
In the impugned judgment, the Division Bench of the
High Court, after detailed consideration upheld both the
preliminary objections namely (1) as to the maintainability
of the appeal against the order of the learned Single Judge
as the said order was passed on the basis of the consent of
the parties and (2) on the basis of doctrine of res judicata
or constructive res judicata, raised on behalf of the
respondent no. 1 and rightly so in our opinion. We do not
find any good ground or valid reason to interfere with the
impugned judgment.
Thus having regard to all aspects and viewed from any
angle, we do not find any merit in this appeal.
Consequently it is dismissed but with no order as to costs.