# CASE DETAILS MUMTAZ YARUD DOWLA WAKF v. M/S BADAM BALAKRISHNA HOTEL PVT. LTD. & ORS

- **Citation:** 2023 INSC 949
- **Court:** Supreme Court of India
- **Decided:** 2023-10-20
- **Case number:** Civil Appeal No. 6933 of 2023
- **Bench:** M. M. Sundresh, Prashant Kumar Mishra
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/case-details-mumtaz-yarud-dowla-wakf-v-m-s-badam-balakrishna-hotel-pvt-ltd-ors-37109
- **Pages:** 38

## Headnote

Issue for consideration: Objection raised by the respondents that the
suit fi led by the appellant as decreed, ought not to have been entertained
by the Wakf Tribunal, was dismissed by the Executing Court. High Court,
whether justifi ed in reversing the decision of the Executing Court by placing
reliance upon the decision of the Supreme Court in Ramesh Gobindram case,
the basis whereof has been removed after the amendment made by the Act
27 of 2013, as held in Rashid Wali Beg case.
The Wakf (Amendment) Act, 2013 (Amendment Act 27 of 2013 ) -
Eff ect of removal of the basis of the judgment - Code of Civil Procedure,
1908 - s.47 - Suit fi led by the appellant-owner of the suit property
before the Wakf Tribunal for ejectment and recovery of possession was
decreed - Respondents fi led revision petition, dismissed - Appellant
fi led execution petition - After four years, respondents raised plea with
respect to the jurisdiction of the Wakf Tribunal - Application fi led u/s.47
dismissed by Executing Court - High Court reversed the said decision by
placing reliance upon the decision of this Court in Ramesh Gobindram
(Dead) through LRs. v. Sugra Humayun Mirza Wakf [2010] 10 SCR
945 - Plea of the appellant that the said decision has been explained by
this Court in Rashid Wali Beg v. Farid Pindari and Others [2021] 13
SCR 1 and by the amendment brought in under the Act 27 of 2013, the
basis of the decision in Ramesh Gobindram has been removed:
Held: This Court in Rashid Wali Beg took note of the earlier decision
rendered in Ramesh Gobindram and held that after the amendment made by
the Act 27 of 2013, the basis of the said decision was correctly removed - It
985
was further held that there are suffi cient provisions even otherwise to maintain
a suit for eviction over a Wakf property - Wakf Tribunal has got suffi cient
jurisdiction to try every suit pertaining to either Wakf or a Wakf property,
notwithstanding the nature of relief concerned, except as mandated under
the statute - High Court while passing the impugned order, unfortunately
did not have the benefi t of the decision rendered in Rashid Wali Beg -
Even otherwise, as per the amendment by way of the Act 27 of 2013, the
jurisdiction now lies with the Wakf Tribunal - An adjudicating forum being
a product of a procedural right has to come under retrospective operation
when an amendment is introduced to cure a defect which paved the way for
a decision of the Court in holding otherwise - Protracted proceedings have
helped respondents to be in possession for over two decades, notwithstanding
the expiry of the lease way back in 1999 - The Act 27 of 2013 is a procedural
amendment and therefore, has to be applied retrospectively in the context
of change of forum and jurisdictional provisions - The decision in Rashid
Wali Beg agreeed with - The amendment has been brought forth in order to
get over the interpretation given in Ramesh Gobindram - Impugned order
set aside while that of the Executing Court is restored - Waqf Act, 1995 -
Practice and Procedure. [Paras 28-30, 32]
Code of Civil Procedure, 1908 - s.47 r/w Or.XXI - Execution
proceedings - Question involving jurisdiction - Availability of
opportunity to raise said plea at an earlier point of time - Conduct of
party signifi cant:
Held: An Executing Court is enjoined with the duty to give eff ect to
the decree - Any interference, including on a question involving jurisdiction,
should be undertaken very sparsely as a matter of exception - The onus
lies heavily on the judgment-debtor to convince the Court that a decree is
inexecutable - The conduct of a party assumes signifi cance - If a party is
likely to have an undue advantage, despite the availability of an opportunity
to raise a plea of lack of jurisdiction at an earlier point of time, it should
not be permitted to do so during the execution proceedings - Further, a
plaintiff shall not be made to suff er by the passive act of the defendant
in submitting to the jurisdiction - One

## Text

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[2023] 15 S.C.R. 984 : 2023 INSC 949
984
CASE DETAILS
MUMTAZ YARUD DOWLA WAKF
v.
M/S BADAM BALAKRISHNA HOTEL PVT. LTD. & ORS.
(Civil Appeal No. 6933 of 2023)
OCTOBER 20, 2023
[M. M. SUNDRESH AND PRASHANT KUMAR MISHRA, JJ.]
HEADNOTES
Issue for consideration: Objection raised by the respondents that the
suit fi led by the appellant as decreed, ought not to have been entertained
by the Wakf Tribunal, was dismissed by the Executing Court. High Court,
whether justifi ed in reversing the decision of the Executing Court by placing
reliance upon the decision of the Supreme Court in Ramesh Gobindram case,
the basis whereof has been removed after the amendment made by the Act
27 of 2013, as held in Rashid Wali Beg case.
The Wakf (Amendment) Act, 2013 (Amendment Act 27 of 2013 ) -
Eff ect of removal of the basis of the judgment - Code of Civil Procedure,
1908 - s.47 - Suit fi led by the appellant-owner of the suit property
before the Wakf Tribunal for ejectment and recovery of possession was
decreed - Respondents fi led revision petition, dismissed - Appellant
fi led execution petition - After four years, respondents raised plea with
respect to the jurisdiction of the Wakf Tribunal - Application fi led u/s.47
dismissed by Executing Court - High Court reversed the said decision by
placing reliance upon the decision of this Court in Ramesh Gobindram
(Dead) through LRs. v. Sugra Humayun Mirza Wakf [2010] 10 SCR
945 - Plea of the appellant that the said decision has been explained by
this Court in Rashid Wali Beg v. Farid Pindari and Others [2021] 13
SCR 1 and by the amendment brought in under the Act 27 of 2013, the
basis of the decision in Ramesh Gobindram has been removed:
Held: This Court in Rashid Wali Beg took note of the earlier decision
rendered in Ramesh Gobindram and held that after the amendment made by
the Act 27 of 2013, the basis of the said decision was correctly removed - It
985
was further held that there are suffi cient provisions even otherwise to maintain
a suit for eviction over a Wakf property - Wakf Tribunal has got suffi cient
jurisdiction to try every suit pertaining to either Wakf or a Wakf property,
notwithstanding the nature of relief concerned, except as mandated under
the statute - High Court while passing the impugned order, unfortunately
did not have the benefi t of the decision rendered in Rashid Wali Beg -
Even otherwise, as per the amendment by way of the Act 27 of 2013, the
jurisdiction now lies with the Wakf Tribunal - An adjudicating forum being
a product of a procedural right has to come under retrospective operation
when an amendment is introduced to cure a defect which paved the way for
a decision of the Court in holding otherwise - Protracted proceedings have
helped respondents to be in possession for over two decades, notwithstanding
the expiry of the lease way back in 1999 - The Act 27 of 2013 is a procedural
amendment and therefore, has to be applied retrospectively in the context
of change of forum and jurisdictional provisions - The decision in Rashid
Wali Beg agreeed with - The amendment has been brought forth in order to
get over the interpretation given in Ramesh Gobindram - Impugned order
set aside while that of the Executing Court is restored - Waqf Act, 1995 -
Practice and Procedure. [Paras 28-30, 32]
Code of Civil Procedure, 1908 - s.47 r/w Or.XXI - Execution
proceedings - Question involving jurisdiction - Availability of
opportunity to raise said plea at an earlier point of time - Conduct of
party signifi cant:
Held: An Executing Court is enjoined with the duty to give eff ect to
the decree - Any interference, including on a question involving jurisdiction,
should be undertaken very sparsely as a matter of exception - The onus
lies heavily on the judgment-debtor to convince the Court that a decree is
inexecutable - The conduct of a party assumes signifi cance - If a party is
likely to have an undue advantage, despite the availability of an opportunity
to raise a plea of lack of jurisdiction at an earlier point of time, it should
not be permitted to do so during the execution proceedings - Further, a
plaintiff shall not be made to suff er by the passive act of the defendant
in submitting to the jurisdiction - One has to see the consequence while
taking note of the huge pendency of the cases before various Courts in the
country - There is no gainsaying that but for the adverse decree suff ered, a
MUMTAZ YARUD DOWLA WAKF v. M/S BADAM
BALAKRISHNA HOTEL PVT. LTD. & ORS.
986
SUPREME COURT REPORTS
[2023] 15 S.C.R.
judgment-debtor would not have ventured to raise such a plea - It is clearly
a case of an afterthought to suit his convenience - He cannot be allowed to
approbate and reprobate - Though this Court is conscious about the earlier
precedents dealing with the stage at which such a plea can be raised, much
water has fl own under the bridge in terms of the ground reality - Approbate
and Reprobate. [Paras 14, 15]
Practice and Procedure - Jurisdiction - Lack of jurisdiction to a
forum vis-à-vis a case where two or more forums deal with the same
issue along with the rights and liabilities of the parties:
Held: There is a subtle diff erence when dealing with a case involving
coram non-judice - The principle governing lack of jurisdiction to a forum
may diff er from a case where two or more forums deal with the same issue
along with the rights and liabilities of the parties - To make the position
clear, one has to see as to whether there is any change in the rights and
liabilities of the parties by choosing one forum as against the other - In
a case involving same rights and liabilities but the question is only with
respect to the forum being judicial or quasi-judicial, the issue of jurisdiction
would pale into insignifi cance when it is sought to be raised as a last straw
at a very belated stage - Therefore, when the process becomes the same
for both parties who undertake the said route willingly, the question of
jurisdiction cannot be put against each other after it has attained fi nality,
unless it is demonstrated that the rights of the party who suff ered the decree
are obliterated. [Para 16]
Code of Civil Procedure, 1908 - s.9 - Duty of the Court in
confi rming its own jurisdiction - Discussed - Maxims - "actus curiae
neminem gravabit".
Practice and Procedure - Specialized forum under a statute,
exclusion of a civil court:
Held: When a specialized forum is made available under a statute,
a civil court should normally entertain a dispute which would otherwise
not be amenable before the said forum - Therefore, rights and liabilities
of the parties arising from an enactment ought to be adjudicated upon in
tune with the mechanism provided thereunder - The provisions of the
enactment ought to be given eff ect to through such forums and therefore to
987
the exclusion of a civil court whose jurisdiction is otherwise to be inferred
- As a principle of law, the powers of the civil court, being plenary in
nature, the onus lies on the party who contends that it lacks jurisdiction -
However, this does not take away the duty of the civil court to check its
own jurisdiction, more so when a specialized forum has come into being
as a creature of a statute. [Para 26]
LIST OF CITATIONS AND OTHER REFERENCES
Dhulabhai etc. v. State of Madhya Pradesh and Another, [1968] 3
SCR 662 - followed.
Rashid Wali Beg v. Farid Pindari and Others (2022) 4 SCC 414 :
[2021] 13 SCR 1; Union of India and Others v. N. Murugesan and Others,
(2022) 2 SCC 25; New India Insurance Co. Ltd. v. Smt. Shanti Misra,
Adult, (1975) 2 SCC 840 : [1976] 2 SCR 266; Hitendra Vishnu Thakur and
Others v. State of Maharashtra and Another (1994) 4 SCC 602 : [1994]
1 Suppl. SCR 360; Neena Aneja and Another v. Jai Prakash Associates
Ltd. (2022) 2 SCC 161; Vankamamidi Venkata Subba Rao v. Chatlapalli
Seetharamaratna Ranganayakamma (1997) 5 SCC 460 : [1997] 3 SCR
530; Ashok Kapil v. Sana Ullah (1996) 6 SCC 342 : [1996] 6 Suppl. SCR
768; Eureka Forbes Ltd. v. Allahabad Bank, (2010) 6 SCC 193 : [2010] 5
SCR 990; Madras Bar Association v. Union of India and Another (2022)
12 SCC 455 - relied on.
Faseela M. v. Munnerul Islam Madrasa Committee and Another,
(2014) 16 SCC 38 : [2014] 4 SCR 613; Ramesh Gobindram (Dead) through
LRs. v. Sugra Humayun Mirza Wakf (2010) 8 SCC 726 : [2010] 10 SCR
945; Indore Development Authority v. Manoharlal and Others, (2020) 8
SCC 129 : [2020] 3 SCR 1; M. Hariharasudhan v. R. Karmegam (2019)
10 SCC 94: [2019] 13 SCR 442 - referred to.
General Manager of the Raj Durbhunga v. Maharajah Coomar
Ramaput Sing, 1872 SCC OnLine PC 16 - referred to.
Federated Engine Drivers and Firemen's Association of Australasia
v Broken Hill Proprietary Co. Ltd., (1911) 12 CLR 398; Zhang v.
Zemin (2010) 79 NSWLR 513; Wolverhampton New Waterworks Co. v.
Hawkesford [1859] 6 C.B. (NS) 336 - referred to.
MUMTAZ YARUD DOWLA WAKF v. M/S BADAM
BALAKRISHNA HOTEL PVT. LTD. & ORS.
988
SUPREME COURT REPORTS
[2023] 15 S.C.R.
OTHER CASE DETAILS INCLUDING IMPUGNED
ORDER AND APPEARANCES
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 6933 of 2023.
From the Judgment and Order dated 23.11.2021 of the High Court for
the State of Telangana at Hyderabad in CRP No. 1264 of 2021.
Appearances:
Dr. Abhishek Manu Singhvi, Huzefa Ahmadi, Sr. Advs., Mahfooz
Ahsan Nazki, Polanki Gowtham, Ms. Rajeswari Mukherjee, Ms. Niti
Richhariya, Meeran Maqbool, Advs. for the Appellant.
Shyam Divan, Sr. Adv., B. Shravanth Shanker, Ms. Prerna Robin,
Rahul Jajoo, Devadipta Das, K. Parameshwar, Ms. Arti Gupta, Ms. Kanti,
Chinmay Kalgaonkar, Advs. for the Respondents.
JUDGMENT / ORDER OF THE SUPREME COURT
JUDGMENT
M. M. SUNDRESH, J.
1. Leave granted.
2. A legal journey adopted by the appellant with periodical stoppages
orchestrated in the process at behest of respondent no(s). 1 and 2 brought
the lis back to the place where it started, forcing it to undertake a fresh guard
by the impugned order.
3. This case is a classic example of the unfortunate situation taken
note of and lamented by Right Honorable Sir James Colvilbe in General
Manager of the Raj Durbhunga v. Maharajah Coomar Ramaput Sing,
1872 SCC OnLine PC 16,
"These proceedings certainly illustrate what was said by Mr.
Doyne, and what has been often stated before, that the diffi culties
of a litigant in India begin when he has obtained a Decree..."
The situation not only continues but has become more prevalent.
989
FACTUAL BACKGROUND
4. The appellant being the undisputed owner of the suit property
executed a registered lease deed in favour of respondent no. 2. Respondent
no. 1 concern is being represented by a person who is the son of the
individual (since deceased) who represented respondent no. 2. The period
of lease was for 33 years. The suit premises was sublet without permission
by respondent no(s). 1 and 2.
5. After the expiry of the lease by effl ux of time, the appellant issued a
legal notice requiring respondent no. 2 to hand over the vacant possession. A
reply was given stating that the possession having been handed over only on
25.11.1966, the lease subsists till 24.11.1999. On receipt of the said replynotice by respondent no. 2 dated 05.06.1999, a second notice was issued
by the appellant to which a diff erent response came; that the said registered
lease was extended orally for another 33 years. A reference was also made
to the arbitration clause available under the original lease deed.
6. The appellant promptly fi led a suit in O.S. No. 132 of 1999 before
the Wakf Tribunal seeking a decree for ejectment and recovery of possession,
along with arrears of rent and damages. After a prolonged litigation and
delaying tactics employed at the hands of respondent no(s). 1 and 2, a decree
was passed at last on 13.11.2002. The suit was dismissed against defendant
no(s). 3, 4, 5, and 7, while defendant no. 6 was set ex-parte. No plea with
respect to the jurisdiction of the Wakf Tribunal was raised, while the aborted
attempt to raise a defense of oral lease was rightly repelled.
7. Not being satisfi ed with the decree passed, respondents no(s). 1
and 2 fi led a revision petition before the High Court being C.R.P. No. 5863
of 2002. It was dismissed inter alia holding that there is no legal basis to
continue in occupation after the expiry of the lease.
8. The dilatory tactics adopted by respondent no(s). 1 and 2 continued
even thereafter, to the extent that the appellant had to fi le an execution
petition in E.P. No. 29 of 2014 on 18.10.2014. Even during the execution
proceedings, respondent no. 2 did not raise the plea of maintainability of
the suit. However, after four years during which time also the Court was
successfully prevented through a series of applications/objections, obviously
at the instance of the respondents, an additional counter was fi led raising
MUMTAZ YARUD DOWLA WAKF v. M/S BADAM
BALAKRISHNA HOTEL PVT. LTD. & ORS. [M. M. SUNDRESH, J.]
990
SUPREME COURT REPORTS
[2023] 15 S.C.R.
the plea that the suit as laid and decreed ought not to have been entertained
in view of the dictum rendered by this Court in Faseela M. v. Munnerul
Islam Madrasa Committee and Another, (2014) 16 SCC 38 which in turn
relied upon the decision rendered in Ramesh Gobindram (Dead) through
LRs. v. Sugra Humayun Mirza Wakf, (2010) 8 SCC 726. The objection
raised was not found to be tenable by the Executing Court by dismissing
the application fi led under Section 47 of the Code of Civil Procedure, 1908
(hereinafter referred to as "the Code"). On a revision, the High Court of
Telangana reversed the decision of the Executing Court by placing reliance
upon the decision of this Court in Ramesh Gobindram (Supra). The said
order passed is under challenge in this appeal.
SUBMISSIONS
9. Dr. Abhishek Manu Singhvi and Shri Huzefa Ahmadi, learned senior
counsel appearing for the appellant, fervently submitted that there was
absolutely no objection raised by the contesting respondents till the stage
of the execution petition. The decision rendered in Ramesh Gobindram
(Supra) has been considered and explained by this Court in Rashid Wali
Beg v. Farid Pindari and Others, (2022) 4 SCC 414. Such an exercise
was also undertaken by this Court even on the earlier occasions. By the
amendment brought in under the Act 27 of 2013, the basis of the decision
in Ramesh Gobindram (Supra) has been removed. Even assuming that the
impugned order is correct, the resultant situation would be that the appellant
will have to fi le a suit before the Wakf Tribunal once again.
10. Supplementing the said submission, Shri K. Parameshwar, learned
counsel appearing for respondent no. 8, the Wakf Board, submitted that even
prior to the decision rendered in Ramesh Gobindram (Supra), there was
ample jurisdiction to try all suits pertaining to a Wakf and Wakf property, a
fact correctly taken note of in Rashid Wali Beg (Supra). Section 83 read with
Section 85 of the Wakf Act, 1995 being distinct and independent provisions
clothed the Wakf Tribunal with adequate jurisdiction.
11. Shri Shyam Divan, learned senior counsel appearing for the
contesting respondents submitted that a plea of nullity can be taken at any
stage. As held in Ramesh Gobindram (Supra), Sections 6 and 7 of the Act
43 of 1995 do not confer the requisite jurisdiction on the Wakf Tribunal in
deciding an issue qua an eviction of an individual from a Wakf property.
991
As the impugned order was passed noting the dictum laid by this Court in
Ramesh Gobindram (Supra), there is no need for interference.
12. In support of the rival contentions, the learned counsel placed
reliance upon the following decisions:

Ramesh Gobindram (Dead) through LRs v. Sugra Humayun
Mirza Wakf, (2010) 8 SCC 726

Punjab Wakf Board v. Pritpal Singh & Anr., (2013) SCC Online
SC 1345 : Civil Appeal No.8194 of 2013

Faseela M. v. Muneerul Islam Madrasa Committee and Another,
(2014) 16 SCC 38

Punjab Wakf Board v. Sham Singh Harike & and Another, (2019)
4 SCC 698

Telangana State Wakf Board & Anr. V. Mohamed Muzafar, (2021)
9 SCC 179

Kiran Devi v. Bihar State Sunni Wakf Board and Others, (2021)
15 SCC 15

Rashid Wali Beg v. Farid Pindari and Others, (2022) 4 SCC 414

Kiran Singh and Others. v. Chaman Paswan and Others, 1955
(1) SCR 117 : AIR 1954 SC 340

Chandrika Misir and Another v. Bhaiya Lal, (1973) 2 SCC 474

Sushil Kumar Mehta v. Gobind Ram Bohra (Dead) through His
LRs, (1990) 1 SCC 193

Chiranjilal Shrilal Goenka (Deceased) through LRs. v. Jasjit
Singh and Others, (1993) 2 SCC 507

Sarwan Kumar and Another v. Madan Lal Aggarwal, (2003) 4
SCC 147

Ashok Leyland Ltd. v. State of T.N. and Another, (2004) 3 SCC
1

Hindustan Zinc Ltd. (HZL) v. Ajmer Vidyut Vitran Nigam Ltd.,
(2019) 17 SCC
MUMTAZ YARUD DOWLA WAKF v. M/S BADAM
BALAKRISHNA HOTEL PVT. LTD. & ORS. [M. M. SUNDRESH, J.]
992
SUPREME COURT REPORTS
[2023] 15 S.C.R.

P.V Nidhish & Ors. v. Kerala State Wakf Board & Anr., (2023)
SCC OnLine SC 519 : 2023 (7) SCALE 130.
13. Before dwelling into the merits of this case, we shall fi rst go into
the issues of law governing the submissions made.
EXECUTING COURT CANNOT GO BEYOND THE DECREE
14. The legal principle that an Executing Court cannot go beyond the
decree stands fortifi ed, subject to the rigor of Section 47 read with Order XXI
of the Code. As a matter of course, an Executing Court is enjoined with the
duty to give eff ect to the decree. Any interference, including on a question
involving jurisdiction, should be undertaken very sparsely as a matter of
exception. The onus lies heavily on the judgment-debtor to convince the
Court that a decree is inexecutable. When an exercise is likely to involve a
factual adjudication, it should better be avoided.
15. The conduct of a party assumes signifi cance. If a party is likely
to have an undue advantage, despite the availability of an opportunity to
raise a plea of lack of jurisdiction at an earlier point of time, it should not
be permitted to do so during the execution proceedings. In other words, a
plaintiff shall not be made to suff er by the passive act of the defendant in
submitting to the jurisdiction. One has to see the consequence while taking
note of the huge pendency of the cases before various Courts in the country.
There is no gainsaying that but for the adverse decree suff ered, a judgmentdebtor would not have ventured to raise such a plea. It is clearly a case of
an afterthought to suit his convenience. He cannot be allowed to approbate
and reprobate. Though we are conscious about the earlier precedents dealing
with the stage at which such a plea can be raised, much water has fl own
under the bridge in terms of the ground reality. Union of India and Others
v. N. Murugesan and Others, (2022) 2 SCC 25,
"Approbate and reprobate
26. These phrases are borrowed from the Scots law. They would
only mean that no party can be allowed to accept and reject the
same thing, and thus one cannot blow hot and cold. The principle
behind the doctrine of election is inbuilt in the concept of approbate
and reprobate. Once again, it is a principle of equity coming
under the contours of common law. Therefore, he who knows
993
that if he objects to an instrument, he will not get the benefi t he
wants cannot be allowed to do so while enjoying the fruits. One
cannot take advantage of one part while rejecting the rest. A
person cannot be allowed to have the benefi t of an instrument
while questioning the same. Such a party either has to affi rm or
disaffi rm the transaction. This principle has to be applied with
more vigour as a common law principle, if such a party actually
enjoys the one part fully and on near completion of the said
enjoyment, thereafter questions the other part. An element of
fair play is inbuilt in this principle. It is also a species of estoppel
dealing with the conduct of a party. We have already dealt with
the provisions of the Contract Act concerning the conduct of a
party, and his presumption of knowledge while confi rming an
off er through his acceptance unconditionally.
27. We would like to quote the following judgments for better
appreciation and understanding of the said principle:
27.1.Nagubai Ammal v. B. Shama Rao [Nagubai Ammal v. B. Shama
Rao, 1956 SCR 451 : AIR 1956 SC 593] : (AIR pp. 601-02, para 23)
"23. But it is argued by Sri Krishnaswami Ayyangar that as the
proceedings in OS. No. 92 of 1938-39 are relied on as barring the plea
that the decree and sale in OS. No. 100 of 1919-20 are not collusive,
not on the ground of res judicata or estoppel but on the principle
that a person cannot both approbate and reprobate. It is immaterial
that the present appellants were not parties thereto, and the decision
in Verschures Creameries Ltd. v. Hull & Netherlands Steamship Co.
Ltd. [(1921) 2 KB 608 (CA)], and in particular, the observations
of Scrutton, LJ., at p. 611 were quoted in support of this position.
There, the facts were that an agent delivered goods to the customer
contrary to the instructions of the principal, who thereafter fi led a
suit against the purchaser for price of goods and obtained a decree.
Not having obtained satisfaction, the principal next fi led a suit against
the agent for damages on the ground of negligence and breach of
duty. It was held that such an action was barred. The ground of the
decision is that when on the same facts, a person has the right to
claim one of two reliefs and with full knowledge he elects to claim
MUMTAZ YARUD DOWLA WAKF v. M/S BADAM
BALAKRISHNA HOTEL PVT. LTD. & ORS. [M. M. SUNDRESH, J.]
994
SUPREME COURT REPORTS
[2023] 15 S.C.R.
one and obtains it, it is not open to him thereafter to go back on his
election and claim the alternative relief. The principle was thus stated
by Bankes, L.J. : (Verschures Creameries Ltd. case [(1921) 2 KB
608 (CA)] , KB p. 611)
'... Having elected to treat the delivery to him as an authorised delivery
they cannot treat the same act as a misdelivery. To do so would be to
approbate and reprobate the same act.'
The observations of Scrutton, L.J. on which the appellants rely are as
follows : (Verschures Creameries Ltd. case [(1921) 2 KB 608 (CA)],
KB pp. 611-12)
'... A plaintiff is not permitted to "approbate and reprobate".
The phrase is apparently borrowed from the Scotch law, where
it is used to express the principle embodied in our doctrine of
election - namely, that no party can accept and reject the same
instrument : Ker v. Wauchope [(1819) 1 Bligh PC 1 at p. 21 : 4
ER 1 at p. 8] : Douglas-Menzies v. Umphelby [1908 AC 224 at p.
232 (PC)] . The doctrine of election is not however confi ned to
instruments. A person cannot say at one time that a transaction is
valid and thereby obtain some advantage, to which he could only
be entitled on the footing that it is valid, and then turn round and
say it is void for the purpose of securing some other advantage.
That is to approbate and reprobate the transaction.'
It is clear from the above observations that the maxim that a person
cannot "approbate and reprobate" is only one application of the
doctrine of election, and that its operation must be confi ned to reliefs
claimed in respect of the same transaction and to the persons who are
parties thereto. The law is thus stated in Halsbury's Laws of England,
Vol. XIII, p. 464, para 512:
'On the principle that a person may not approbate and reprobate,
a species of estoppel has arisen which seems to be intermediate
between estoppel by record and estoppel in pais, and may
conveniently be referred to here. Thus a party cannot, after taking
advantage under an order (e.g. payment of costs), be heard to say
that it is invalid and ask to set it aside, or to set up to the prejudice
995
of persons who have relied upon it a case inconsistent with that
upon which it was founded; nor will he be allowed to go behind
an order made in ignorance of the true facts to the prejudice of
third parties who have acted on it.'
27.2.State of Punjab v. Dhanjit Singh Sandhu [(2014) 15 SCC 144]
: (SCC pp. 153-54, paras 22-23 & 25-26)
"22. The doctrine of "approbate and reprobate" is only a species of
estoppel, it implies only to the conduct of parties. As in the case of
estoppel it cannot operate against the provisions of a statute. (Vide
CIT v. MR. P. Firm Muar [AIR 1965 SC 1216].)
23. It is settled proposition of law that once an order has been passed,
it is complied with, accepted by the other party and derived the benefi t
out of it, he cannot challenge it on any ground. (Vide Maharashtra
SRTC v. Balwant Regular Motor Service [AIR 1969 SC 329]). In
R.N. Gosain v. Yashpal Dhir [(1992) 4 SCC 683] this Court has
observed as under : (R.N. Gosain case [(1992) 4 SCC 683] , SCC
pp. 687-88, para 10)
'10. Law does not permit a person to both approbate and
reprobate. This principle is based on the doctrine of election
which postulates that no party can accept and reject the same
instrument and that 'a person cannot say at one time that a
transaction is valid and thereby obtain some advantage, to which
he could only be entitled on the footing that it is valid, and then
turn round and say it is void for the purpose of securing some
other advantage'.'
***
25. The Supreme Court in Rajasthan State Industrial Development
& Investment Corpn. v. Diamond & Gem Development Corpn. Ltd.
[(2013) 5 SCC 470 : (2013) 3 SCC (Civ) 153] , made an observation
that a party cannot be permitted to "blow hot and cold", "fast and
loose" or "approbate and reprobate". Where one knowingly accepts
the benefi ts of a contract or conveyance or an order, is estopped
to deny the validity or binding eff ect on him of such contract or
conveyance or order. This rule is applied to do equity, however, it
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must not be applied in a manner as to violate the principles of right
and good conscience.
26. It is evident that the doctrine of election is based on the rule of
estoppel, the principle that one cannot approbate and reprobate is
inherent in it. The doctrine of estoppel by election is one among the
species of estoppel in pais (or equitable estoppel), which is a rule of
equity. By this law, a person may be precluded, by way of his actions,
or conduct, or silence when he has to speak, from asserting a right
which he would have otherwise had."
27.3.Rajasthan State Industrial Development & Investment Corpn. v.
Diamond & Gem Development Corpn. Ltd. [(2013) 5 SCC 470 : (2013) 3
SCC (Civ) 153] : (SCC pp. 480-81, paras 15-16)
"I. Approbate and reprobate
15. A party cannot be permitted to "blow hot-blow cold", "fast and
loose" or "approbate and reprobate". Where one knowingly accepts
the benefi ts of a contract, or conveyance, or of an order, he is estopped
from denying the validity of, or the binding eff ect of such contract,
or conveyance, or order upon himself. This rule is applied to ensure
equity, however, it must not be applied in such a manner so as to
violate the principles of what is right and of good conscience. [Vide
Nagubai Ammal v. B. Shama Rao [1956 SCR 451 : AIR 1956 SC
593], CIT v. V. MR. P. Firm Muar [ AIR 1965 SC 1216], Ramesh
Chandra Sankla v. Vikram Cement [(2008) 14 SCC 58 : (2009)
1 SCC (L&S) 706], Pradeep Oil Corpn. v. MCD [(2011) 5 SCC
270 : (2011) 2 SCC (Civ) 712], Cauvery Coff ee Traders v. Hornor
Resources (International) Co. Ltd. [(2011) 10 SCC 420 : (2012) 3
SCC (Civ) 685] and V. Chandrasekaran v. Administrative Offi cer
[(2012) 12 SCC 133 : (2013) 2 SCC (Civ) 136 : (2013) 4 SCC (Cri)
587 : (2013) 3 SCC (L&S) 416].
16. Thus, it is evident that the doctrine of election is based on the rule
of estoppel-the principle that one cannot approbate and reprobate is
inherent in it. The doctrine of estoppel by election is one among the
species of estoppel in pais (or equitable estoppel), which is a rule of
equity. By this law, a person may be precluded, by way of his actions,
997
or conduct, or silence when it is his duty to speak, from asserting a
right which he would have otherwise had."
(emphasis supplied)
16. There is a subtle diff erence when we deal with a case involving
coram non-judice. The principle governing lack of jurisdiction to a forum
may diff er from a case where two or more forums deal with the same issue
along with the rights and liabilities of the parties. To make the position clear,
one has to see as to whether there is any change in the rights and liabilities
of the parties by choosing one forum as against the other. As an example,
we can take the case of eviction of a tenant. If he is to be evicted only under
the Rent Control Act which extends a certain right to the tenant, who cannot
be evicted otherwise than under the provisions contained therein, a common
law remedy cannot be invoked by way of a suit as against a proceeding
before the Rent Controller. In that view of the matter, certainly the question
of prejudice would arise. However, in a case involving same rights and
liabilities but the question is only with respect to the forum being judicial or
quasi-judicial, the issue of jurisdiction would pale into insignifi cance when
it is sought to be raised as a last straw at a very belated stage. Therefore,
when the process becomes the same for both parties who undertake the said
route willingly, the question of jurisdiction cannot be put against each other
after it has attained fi nality, unless it is demonstrated that the rights of the
party who suff ered the decree are obliterated.
CHANGE OF FORUM
17. We shall now come to the issue of retrospective application and
change of forum. As discussed, when a statute is amended on an issue
pertaining to a forum for adjudication, it being procedural takes eff ect
retrospectively. A party to a lis does not have any vested right of forum as
against action. In the absence of any substantive right being subsumed by
a particular forum, one has to give retrospective application. New India
Insurance Co. Ltd. v. Smt. Shanti Misra, Adult, (1975) 2 SCC 840,
"5. On the plain language of Sections 110A and 110F there should be
no diffi culty in taking the view that the change in law was merely a
change of forum i.e. a change of adjectival or procedural law and
not of substantive law. It is a well-established proposition that
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such a change of law operates retrospectively and the person has
to go to the new forum even if his cause of action or right of action
accrued prior to the change of forum. He will have a vested right
of action but not a vested right of forum. If by express words
the new forum is made available only to causes of action arising
after the creation of the forum, then the retrospective operation
of the law is taken away. Otherwise the general rule is to make it
retrospective. The expressions "arising out of an accident" occurring
in sub-section (1) and "over the area in which the accident occurred",
mentioned in sub-section (2) clearly show that the change of forum
was meant to be operative retrospectively irrespective of the fact as
to when the accident occurred. To that extent there was no diffi culty
in giving the answer in a simple way. But the provision of limitation
of 60 days contained in sub-section (3) created an obstacle in the
straight application of the well-established principle of law. If the
accident had occurred within 60 days prior to the constitution of the
tribunal then the bar of limitation provided in sub-section (3) was not
an impediment. An application to the tribunal could be said to be the
only remedy. If such an application, due to one reason or the other,
could not be made within 60 days then the tribunal had the power
to condone the delay under the proviso. But if the accident occurred
more than 60 days before the constitution of the tribunal then the bar
of limitation provided in sub-section (3) of Section 110A on its face
was attracted. This diffi culty of limitation led most of the High Courts
to fall back upon the proviso and say that such a case will be a fi t
one where the tribunal would be able to condone the delay under the
proviso to sub-section (3), and led others to say that the tribunal will
have no jurisdiction to entertain such an application and the remedy
of going to the civil court in such a situation was not barred under
Section 110F of the Act. While taking the latter view the High Court
failed to notice that primarily the law engrafted in Sections 110A and
110F was a law relating to the change of forum."
(emphasis supplied)
18. Hitendra Vishnu Thakur and Others v. State of Maharashtra
and Another, (1994) 4 SCC 602,
999
"26. The Designated Court has held that the amendment would
operate retrospectively and would apply to the pending cases in which
investigation was not complete on the date on which the Amendment
Act came into force and the challan had not till then been fi led in the
court. From the law settled by this Court in various cases the illustrative
though not exhaustive principles which emerge with regard to the
ambit and scope of an Amending Act and its retrospective operation
may be culled out as follows:
(i) A statute which affects substantive rights is presumed to
be prospective in operation unless made retrospective, either
expressly or by necessary intendment, whereas a statute which
merely aff ects procedure, unless such a construction is textually
impossible, is presumed to be retrospective in its application,
should not be given an extended meaning and should be strictly
confi ned to its clearly defi ned limits.
(ii) Law relating to forum and limitation is procedural in nature,
whereas law relating to right of action and right of appeal even
though remedial is substantive in nature.
(iii) Every litigant has a vested right in substantive law but no such
right exists in procedural law.
(iv) A procedural statute should not generally speaking be applied
retrospectively where the result would be to create new disabilities
or obligations or to impose new duties in respect of transactions
already accomplished.
(v) A statute which not only changes the procedure but also creates
new rights and liabilities shall be construed to be prospective
in operation, unless otherwise provided, either expressly or by
necessary implication."
(emphasis supplied)
19. Neena Aneja and Another v. Jai Prakash Associates Ltd.,
(2022) 2 SCC 161,
"58. SEBI argued before this Court that a change of the forum for trial
was a matter of mere procedure and would, therefore, be retrospective,
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there being no express or implied intent either in the 2002 and 2014
Amendments that the amendments were intended to be of prospective
eff ect. J.S. Khehar, J. speaking for the two-Judge Bench of this Court
adverted to the decisions inter alia in New India Assurance [New
India Assurance Co. Ltd. v. Shanti Misra, (1975) 2 SCC 840], Ramesh
Kumar Soni [Ramesh Kumar Soni v. State of M.P., (2013) 14 SCC
696 : (2014) 4 SCC (Cri) 340] and Hitendra Vishnu Thakur [Hitendra
Vishnu Thakur v. State of Maharashtra, (1994) 4 SCC 602 : 1994 SCC
(Cri) 1087], and observed in that context : (Classic Credit case [SEBI
v. Classic Credit Ltd., (2018) 13 SCC 1 : (2019) 1 SCC (Cri) 431],
SCC pp. 67-68, para 49)
"49. ... In our considered view, the legal position expounded by
this Court in a large number of judgments including New India
Assurance Co. Ltd. v. Shanti Misra [(1975) 2 SCC 840]; SEBI
v. Ajay Agarwal [(2010) 3 SCC 765 : (2010) 2 SCC (Cri) 491]
and Ramesh Kumar Soni v. State of M.P. [(2013) 14 SCC 696
: (2014) 4 SCC (Cri) 340] , is clear and unambiguous, namely,
that procedural amendments are presumed to be retrospective
in nature, unless the amending statute expressly or impliedly
provides otherwise. And also, that generally change of "forum" of
trial is procedural, and normally following the above proposition,
it is presumed to be retrospective in nature unless the amending
statute provides otherwise. This determination emerges from
the decision of this Court in Hitendra Vishnu Thakur v. State
of Maharashtra [(1994) 4 SCC 602 : 1994 SCC (Cri) 1087];
Ranbir Yadav v. State of Bihar [(1995) 4 SCC 392 : 1995 SCC
(Cri) 728] and Kamlesh Kumar v. State of Jharkhand [(2013)
15 SCC 460 : (2014) 6 SCC (Cri) 489], as well as, a number of
further judgments noted above."
59. The above observations indicate the clear view of this Court
that:
59.1. In the absence of a contrary intent express or implied,
procedural amendments are presumed to be retrospective.
59.2. A change in the forum of a trial is a procedural matter.
1001
59.3. Since a change of forum is procedural, a statute which brings
about the change is presumed to be retrospective in the absence
of a contrary intent.
×××××
C.23. Conclusion on the position of law
72. In considering the myriad precedents that have interpreted
the impact of a change in forum on pending proceedings and
retrospectivity-a clear position of law has emerged : a change in
forum lies in the realm of procedure. Accordingly, in compliance
with the tenets of statutory interpretation applicable to procedural
law, amendments on matters of procedure are retrospective,
unless a contrary intention emerges from the statute. This position
emerges from the decisions in New India Assurance [New India
Assurance Co. Ltd. v. Shanti Misra, (1975) 2 SCC 840], Maria
Cristina [Maria Cristina De Souza Sodder v. Amria Zurana Pereira
Pinto, (1979) 1 SCC 92], Hitendra Vishnu Thakur [Hitendra Vishnu
Thakur v. State of Maharashtra, (1994) 4 SCC 602 : 1994 SCC (Cri)
1087], Ramesh Kumar Soni [Ramesh Kumar Soni v. State of M.P.,
(2013) 14 SCC 696 : (2014) 4 SCC (Cri) 340] and Sudhir G. Angur
[Sudhir G. Angur v. M. Sanjeev, (2006) 1 SCC 141]. More recently,
this position has been noted in a three-Judge Bench decision of
this Court in Manish Kumar v. Union of India [(2021) 5 SCC 1 :
(2021) 3 SCC (Civ) 50]. However, there was a deviation by a twoJudge Bench decision of this Court in Dhadi Sahu [CIT v. Dhadi
Sahu, 1994 Supp (1) SCC 257], which overlooked the decision of
a larger three-Judge Bench in New India Assurance [New India
Assurance Co. Ltd. v. Shanti Misra, (1975) 2 SCC 840] and of a
coordinate two-Judge Bench in Maria Cristina [Maria Cristina De
Souza Sodder v. Amria Zurana Pereira Pinto, (1979) 1 SCC 92]. The
decision in Dhadi Sahu [CIT v. Dhadi Sahu, 1994 Supp (1) SCC 257]
propounded a position that : (Dhadi Sahu case [CIT v. Dhadi Sahu,
1994 Supp (1) SCC 257] , SCC p. 262, para 21)
"21. ... no litigant has any vested right in the matter of procedural
law but where the question is of change of forum it ceases to be a
question of procedure only. The forum of appeal or proceedings
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is a vested right as opposed to pure procedure to be followed
before a particular forum. The right becomes vested when the
proceedings are initiated in the tribunal."
(emphasis supplied)
In taking this view, the two-Judge Bench did not consider binding
decisions. Dhadi Sahu [CIT v. Dhadi Sahu, 1994 Supp (1) SCC 257]
failed to consider that the saving of pending proceedings in Mohd.
Idris [Mohd. Idris v. Sat Narain, (1966) 3 SCR 15 : AIR 1966 SC
1499] and Manujendra Dutt [Manujendra Dutt v. Purnedu Prosad
Roy Chowdhury, (1967) 1 SCR 475 : AIR 1967 SC 1419] was a
saving of vested rights of the litigants that were being impacted
by the repealing Acts therein, and not because a right to forum is
accrued once proceedings have been initiated. Thereafter, a line of
decisions followed Dhadi Sahu [CIT v. Dhadi Sahu, 1994 Supp (1)
SCC 257] , to hold that a litigant has a crystallised right to a forum
once proceedings have been initiated.