MUMTAZ YARUD DOWLA WAKF versus M/S BADAM BALAKRISHNA HOTEL PVT. LTD. & ORS.
[2023] 15 S.C.R. 984, Supreme Court of India, 2023
Outcome: Appeal(s) allowed (Granted)
Segment: Issues
[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 reply-
notice 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 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 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 
MUMTAZ YARUD DOWLA WAKF v. M/S BADAM 
BALAKRISHNA HOTEL PVT. LTD. & ORS. [M. M. SUNDRESH, J.]
996 
SUPREME COURT REPORTS 
[2023] 15 S.C.R.
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 
MUMTAZ YARUD DOWLA WAKF v. M/S BADAM 
BALAKRISHNA HOTEL PVT. LTD. & ORS. [M. M. SUNDRESH, J.]
998 
SUPREME COURT REPORTS 
[2023] 15 S.C.R.
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, 
MUMTAZ YARUD DOWLA WAKF v. M/S BADAM 
BALAKRISHNA HOTEL PVT. LTD. & ORS. [M. M. SUNDRESH, J.]
1000 
SUPREME COURT REPORTS 
[2023] 15 S.C.R.
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 two-
Judge 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 
MUMTAZ YARUD DOWLA WAKF v. M/S BADAM 
BALAKRISHNA HOTEL PVT. LTD. & ORS. [M. M. SUNDRESH, J.]
1002 
SUPREME COURT REPORTS 
[2023] 15 S.C.R.
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. A litigant’s vested rights 
(including the right to an appeal) prior to the amendment or repeal 
are undoubtedly saved, in addition to substantive rights envisaged 
under Section 6 of the General Clauses Act. This protection does not 
extend to pure matters of procedure. Repeals or amendments that 
eﬀ ect changes in forum would ordinarily aﬀ ect pending proceedings, 
unless a contrary intention appears from the repealing or amending 
statute.”
COURT MUST SATISFY ITSELF AS TO THE EXISTENCE 
OF
JURISDICTION
Section 9 of the Code
“9. Courts to try all civil suits unless barred.—The Courts shall 
(subject to the provisions herein contained) have jurisdiction to try 
all suits of a civil nature excepting suits of which their cognisance 
is either expressly or impliedly barred.
Explanation I.—A suit in which the right to property or to an oﬃ  ce 
is contested is a suit of a civil nature, notwithstanding that such right 
may depend entirely on the decision of questions as to religious rites 
or ceremonies.
1003
Explanation II.—For the purposes of this section, it is immaterial 
whether or not any fees are attached to the oﬃ  ce referred to in 
Explanation I or whether or not such oﬃ  ce is attached to a particular 
place.”
20. On a proper construction of Section 9 of the Code, it is clear 
that the court has to prima facie satisfy itself as to the existence of the 
jurisdiction. Such an exercise will avoid putting the parties to unnecessary 
risk and diﬃ  culty. Vankamamidi Venkata Subba Rao v. Chatlapalli 
Seetharamaratna Ranganayakamma, (1997) 5 SCC 460,
“15. This Court in Vatticherukuru Village Panchayat v. Nori 
Venkatarama Deekshithulu [1991 Supp (2) SCC 288] after considering 
the entire case-law, had held that the civil court has no jurisdiction to go 
into the correctness of the patta granted by the Settlement Authorities. 
Under Section 9 CPC, the courts shall, subject to the provisions 
contained therein, have jurisdiction to try all suits of civil nature 
excepting suits cognizance of which is either expressly or impliedly 
barred. When a legal right is infringed, a suit would lie unless there 
is a bar against entertainment of such civil suit and the civil courts 
would take cognizance of it. Therefore, the normal rule of law is that 
civil courts have jurisdiction to try all suits of civil nature except those 
of which cognizance is either expressly or by necessary implication 
excluded. The rule of construction being that every presumption would 
be made in
favour of the existence of a right and remedy in a democratic 
set-up governed by rule of law and jurisdiction of the civil courts is 
assumed. The exclusion would, therefore, normally be an exception. 
Courts generally construe the provisions strictly when jurisdiction of the 
civil courts is claimed to be excluded. However, in the development of 
civil adjudication of civil disputes, due to pendency of adjudication 
and abnormal delay at hierarchical stages, statutes intervene 
and provide alternative mode of resolution of disputes with less 
expensive but expeditious disposal. It is settled legal position that 
if a tribunal with limited jurisdiction cannot assume jurisdiction 
and decide for itself the dispute conclusively, in such a situation, 
it is the court that is required to decide whether the tribunal 
with limited jurisdiction has correctly assumed jurisdiction and 
MUMTAZ YARUD DOWLA WAKF v. M/S BADAM 
BALAKRISHNA HOTEL PVT. LTD. & ORS. [M. M. SUNDRESH, J.]
1004 
SUPREME COURT REPORTS 
[2023] 15 S.C.R.
decided the dispute within its limits. It is also equally settled that 
when jurisdiction is conferred on a tribunal, the courts examine 
whether the essential principles of jurisdiction have been followed 
and decided by the tribunals leaving the decision on merits to 
the tribunal. It is also an equally settled legal position that where 
a statute gives ﬁ nality to the orders of the special tribunal, the 
civil court’s jurisdiction must be held to be excluded, if there is 
adequate remedy to do what the civil court would normally do 
in a suit. Such a provision, however, does not exclude those cases 
where the provisions of the particular Act have not been complied 
with or the statutory tribunal has not acted in conformity with 
the fundamental principles of judicial procedure. Where there is 
an express bar of jurisdiction of the court, an examination of the 
scheme of the particular Act to ﬁ nd the adequacy or the suﬃ  ciency 
of the remedies provided may be relevant but is not decisive to 
sustain the jurisdiction of the civil court. Where there is no express 
exclusion, the examination of the remedies and the scheme of the 
particular Act to ﬁ nd out the intendment becomes necessary and 
the result of the enquiry may be decisive. In the latter case, it is 
necessary that the statute creates a special right or liability and 
provides procedure for the determination of the right or liability 
and further lays down that all
questions about the said right or 
liability shall be determined by the tribunal so constituted and 
whether remedies are normally associated with the action in civil 
courts or prescribed by the statutes or not. Therefore, each case 
requires examination whether the statute provides right and 
remedies and whether the scheme of the Act is that the procedure 
provided will be conclusive and thereby excludes the jurisdiction of 
the civil court in respect thereof. After the advent of independence, 
land reforms was one of the policies of the Government abolishing 
feudal system of land tenures and conferment of the ryotwari patta 
on the tiller of the soil. Thereby, the land reform laws extinguish pre-
existing rights and create new rights under the Act. The Act confers 
jurisdiction on the tribunals in matters relating thereto and hierarchy of 
appeals/revisions are provided thereunder giving ﬁ nality to the orders 
passed thereunder. Thereby, by necessary implication, the jurisdiction
1005
of the civil court to take cognizance of the suits of civil nature covered 
under the land reform laws stands excluded giving not only ﬁ nality to 
the decisions of the tribunal but also ensuring expeditious, inexpensive 
and simple procedure for disposal of the matters by the tribunal and 
make the ryotwari patta granted to the tiller of the soil conclusive. 
Under the normal course of civil procedure, the jurisdiction of the trial 
of the civil suits in relation to the matters covered under the Acts being 
time-consuming and tardy the lack of ﬁ nancial support or otherwise 
incapacity in defending or working the rights in the civil courts and 
by hierarchy of appeals defeat justice. Obviously, therefore, the civil 
suits by necessary implication stand excluded unless the fundamental 
principles of procedure are not followed by the tribunals constituted 
under the land reform laws. In this case, the Act concerned extinguishes 
the pre-existing right, creates new rights under the Act and requires 
tribunals to enquire into the rival claims and a form of appeal has been 
provided against the order of the primary authority. Thereby the right 
and remedy made conclusive under the Act are given ﬁ nality by the 
orders passed under the Act. Thereby, by necessary implication, the 
jurisdiction of the civil court stands excluded.”
(emphasis supplied)
21. Every case is a journey towards truth. A procedural law, as 
repeatedly settled by this Court, is a handmaid of justice.
There is an inherent 
sense of equity and fair play in the proceedings of the Court. When a lis 
is entertained it is the paramount duty of the Court to check on itself and 
satisfy the existence of jurisdiction, despite being not raised by the parties. 
Such an exercise would not only prevent injustice but will also take care of 
a party taking advantage of its own wrong. It has to apply the principle of 
nullus commodum capere potest de injuria sua propria (no man can take 
advantage of his own wrong) in order to prevent any miscarriage of justice. 
When the court is satisﬁ ed that one party to the dispute is manipulating the 
process to perpetuate illegality and to the detriment of the other, it should 
go beyond the procedural entrapment by rendering correct justice. Ashok 
Kapil v. Sana Ullah, (1996) 6 SCC 342,
“7. If the crucial date is the date of allotment order, the structure 
was not a building as deﬁ ned in the Act. But can the respondent 
MUMTAZ YARUD DOWLA WAKF v. M/S BADAM 
BALAKRISHNA HOTEL PVT. LTD. & ORS. [M. M. SUNDRESH, J.]
1006 
SUPREME COURT REPORTS 
[2023] 15 S.C.R.
be assisted by a court of law to take advantage of the mischief 
committed by him? The maxim “Nullus commodum capere potest 
de injuria sua propria” (No man can take advantage of his own 
wrong) is one of the salient tenets of equity. Hence, in the normal 
course, the respondent cannot secure the assistance of a court of 
law for enjoying the fruit of his own wrong.”
(emphasis supplied)
22. Eureka Forbes Ltd. v. Allahabad Bank, (2010) 6 SCC 193,
“66. The maxim nullus commodum capere potest de injuria 
sua propria has a clear mandate of law that, a person who by 
manipulation of a process frustrates the legal rights of others, 
should not be permitted to take advantage of his wrong or 
manipulations. In the present case Respondents 2 and 3 and the 
appellant have acted together while disposing off the hypothecated 
goods, and now, they cannot be permitted to turn back to argue, 
that since the goods have been sold, liability cannot be fastened 
upon Respondents 2 and 3 and in any case on the appellant. The 
Bench of this Court in Ashok Kapil v. Sana Ullah [(1996) 6 SCC 
342] referred to rule of mischief and while explaining the word 
“building”, held as under: (SCC p. 346, para 11)
“11. Stroud’s Judicial Dictionary (Vol. I of the 5th Edn.) 
states that ‘what is a building must always be a question 
of degree and circumstances’. Quoting from Victoria City 
Corpn. v. Bishop of Vancouver Island [(1921) 2 AC 384 (PC)] 
(AC at p. 390),
the celebrated lexicographer commented that 
‘the ordinary and natural meaning of the word “building” 
includes the fabric and the ground on which it stands’. In 
Black’s Law Dictionary (5th Edn.) the meaning of ‘building’ 
is given as ‘A structure or edifice enclosing a space within 
its walls, and usually, but not necessarily, covered with 
a roof’. (emphasis in original). The said description is 
a recognition of the fact that roof is not a necessary and 
indispensable adjunct for a building because there can be 
roofless buildings. So a building, even after losing the roof, 
can continue to be a building in its general meaning. Taking
1007
recourse to such general meaning in the present context 
would help to prevent a mischief.”
(emphasis supplied)
23. The mandatory duty of the Court in conﬁ rming its own jurisdiction 
has been taken note of and dealt with succinctly by Griﬃ  th, C.J. in Federated 
Engine Drivers and Firemen’s Association of Australasia v Broken Hill 
Proprietary Co. Ltd., (1911) 12 CLR 398,
“If they exist, it is quite immaterial to inquire by what route the 
President arrived at a right conclusion. If they do not, it is equally 
unimportant to inquire how he fell into error. In such a matter this 
Court is not a Court of Appeal from him. 
But the ﬁ rst duty of every judicial oﬃ  cer is to satisfy himself that he 
has jurisdiction, if only to avoid putting the parties to unnecessary 
risk and expense. In this respect a grave responsibility rests upon the 
President, whose jurisdiction is limited both by the Constitution and 
the Act. This responsibility is not diminished by tbe possibility that 
he may be misled by imperfect or erroneous information. The mode 
of satisfying himself may vary in diﬀ erent cases. In most cases that 
come before an ordinary Court of law it is not necessary to make any 
inquiry.”
(emphasis supplied)
24. The aforesaid principle of law has been quoted with approval 
by the New South Wales Court of Appeal (Australia) in Zhang v. Zemin 
(2010) 79 NSWLR 513,
“37. A further, alternative, reason for rejecting the appellant’s 
contentions is that there is a long line
of authority that a court must 
satisfy itself that it has jurisdiction, whether or not a jurisdictional 
issue is raised by a party.
38. As Mr H Burmester QC, who appeared for the Attorney, 
submitted, the Court would have had to address this issue even if 
the Attorney had not intervened and even without the application 
for default judgment.
MUMTAZ YARUD DOWLA WAKF v. M/S BADAM 
BALAKRISHNA HOTEL PVT. LTD. & ORS. [M. M. SUNDRESH, J.]
1008 
SUPREME COURT REPORTS 
[2023] 15 S.C.R.
39. The determination of whether or not it has jurisdiction has 
been described as the “ﬁ rst duty” of a court. (See Federated Engine 
Drivers and Firemen’s Association of Australasia v Broken Hill 
Pty Co Ltd (1911) 12 CLR 398 at 415 per Griﬃ  th CJ.) That case 
involved a legislative scheme providing for a jurisdictional fact. 
As Isaacs J said in that context at 454:
“What [the court] has to do at the outset is to satisfy its mind 
that it is not overstepping the bounds which Parliament has 
laid down for it.”
40. To similar eﬀ ect are the observations of Barton J when he said 
at 428:
“Where the jurisdiction is disputed, adequate and careful 
inquiry is still the duty of the superior Court. On the other 
hand, where the jurisdiction is not contested by the party 
defending, very slight inquiry may be adequate, and many 
cases will to the mind of the tribunal be so plainly within 
its competence that it will rightly forego inquiry unless the 
objection is taken, and the objector tenders proof of facts in 
its support.”
41. The observations of Griﬃ  th CJ and Barton J in Federated 
Engine Drivers supra, were applied by Fullagar J in The King 
v Blakeley; Ex parte The Association of Architects, Engineers, 
Surveyors and Draughtsmen of Australia (1950) 82 CLR 54 at 90-
91, where his Honour accepted of the language of “duty”.\
42. In Cockle v Isaksen (1957) 99 CLR 155, neither party wished 
to challenge the jurisdiction of the
High Court to hear a particular 
appeal. However, the Court permitted the Commonwealth to 
intervene to argue the issue of validity, without, in that case, 
becoming a party…”
×××××
44. The observations of Barton J in Federated Engine Drivers, 
quoted at [40] above, indicate that it is not essential for an issue 
of jurisdiction to be raised by a party to proceedings. That matter
1009
had earlier been determined by the High Court in the course of a 
preliminary application in Federated Amalgamated Government 
Railway and Tramway Service Association v The NSW Railway 
Traﬃ  c Employees’ Association (1906) 4 CLR 488. Objection had 
been taken to a point being raised by an intervenor concerning the 
validity of the statute, on the basis that such a point should not be 
raised except in litigation between parties, where it is necessary 
to determine the issue of validity. Griﬃ  th CJ, with whom Barton 
and O’Connor JJ agreed, said at 495: 
“A point of jurisdiction, when it is seriously raised or, if it 
suggests itself to the Court without being taken by a party, 
cannot properly be disregarded.”
(emphasis supplied)
25. Having dealt with the aforesaid principle and making it applicable 
to the Courts in India, we are inclined to hold that any failure on the part 
of the Court to do so would draw the legal maxim “actus curiae neminem 
gravabit’ (no one shall be prejudiced by an act of Court). As a consequence, 
in a case where a Court has failed to check its jurisdiction and a plea has 
been raised subsequently and that too after receiving an adverse verdict, the 
forum shall not be declared as the one having lack of jurisdiction, especially 
when there is no apparent injury otherwise to the rights conferred under 
a particular statute. Indore Development Authority v. Manoharlal and 
Others, (2020) 8 SCC 129,
“320. The maxim actus curiae neminem gravabit
is founded upon the 
principle due to court proceedings or acts of court, no party should 
suﬀ er. If any interim orders are made during the pendency of the 
litigation, they are subject to the ﬁ nal decision in the matter. In case the 
matter is dismissed as without merit, the interim order is automatically 
dissolved. In case the matter has been ﬁ led without any merit, the 
maxim is attracted commodum ex injuria sua nemo habere debet, 
that is, convenience cannot accrue to a party from his own wrong. 
No person ought to have the advantage of his own wrong. In case 
litigation has been ﬁ led frivolously or without any basis, iniquitously 
in order to delay and by that it is delayed, there is no equity in favour 
of such a person. Such cases are required to be decided on merits. In 
MUMTAZ YARUD DOWLA WAKF v. M/S BADAM 
BALAKRISHNA HOTEL PVT. LTD. & ORS. [M. M. SUNDRESH, J.]
1010 
SUPREME COURT REPORTS 
[2023] 15 S.C.R.
Mrutunjay Pani v. Narmada Bala Sasmal [AIR 1961 SC 1353] , this 
Court observed that : (AIR p. 1355, para 5)
“5. … The same principle is comprised in the Latin maxim 
commodum ex injuria sua nemo habere debet, that is, 
convenience cannot accrue to a party from his own wrong. To 
put it in other words, no one can be allowed to beneﬁ t from his 
own wrongful act.”
×××××
324. In Mahadeo Savlaram Shelke v. Pune Municipal Corpn. [(1995) 
3 SCC 33], it has been observed that the Court can under its inherent 
jurisdiction ex debito justitiae has a duty to mitigate the damage suﬀ ered 
by the defendants by the act of the court. Such action is necessary to 
put a check on abuse of process of the court. In Amarjeet Singh v. Devi 
Ratan [(2010) 1 SCC 417 : (2010) 1 SCC (L&S) 1108], and Ram Krishna 
Verma [Ram Krishna Verma v. State of U.P., (1992) 2 SCC 620], it was 
observed that no person can suﬀ er from the act of court and unfair 
advantage of the interim order must be neutralised. In Amarjeet Singh 
[Amarjeet Singh v. Devi Ratan, (2010) 1 SCC 417 : (2010) 1 SCC (L&S) 
1108], this Court observed : (SCC pp. 422-23, paras 17-18)
“17. No litigant can derive any beneﬁ t from mere pendency of the 
case in a court of law, as the interim order always merges in the ﬁ nal 
order to be passed in the case, and if the writ petition is ultimately 
dismissed, the interim order stands nulliﬁ ed automatically. A party 
cannot be allowed to take any
beneﬁ t of its own wrongs by getting 
an interim order and thereafter blame the court. The fact that the 
writ is found, ultimately, devoid of any merit, shows that a frivolous 
writ petition had been ﬁ led. The maxim actus curiae neminem 
gravabit, which means that the act of the court shall prejudice no 
one, becomes applicable in such a case. In such a fact situation, 
the court is under an obligation to undo the wrong done to a party 
by the act of the court. Thus, any undeserved or unfair advantage 
gained by a party invoking the jurisdiction of the court must be 
neutralised, as the institution of litigation cannot be permitted to 
confer any advantage on a suitor from delayed action by the act of 
the court. (Vide Shiv Shankar v. U.P. SRTC [1995 Supp (2) SCC
1011
726 : 1995 SCC (L&S) 1018], GTC Industries Ltd. v. Union of 
India [(1998) 3 SCC 376] and Jaipur Municipal Corpn. v. C.L. 
Mishra [(2005) 8 SCC 423]).
18. In Ram Krishna Verma v. State of U.P. [(1992) 2 SCC 620], 
this Court examined a similar issue while placing reliance upon 
its earlier judgment in Grindlays Bank Ltd. v. CIT [(1980) 2 
SCC 191 : 1980 SCC (Tax) 230] and held that no person can 
suﬀ er from the act of the court and in case an interim order has 
been passed, and the petitioner takes advantage thereof, and 
ultimately the petition is found to be without any merit and is 
dismissed, the interest of justice requires that any undeserved 
or unfair advantage gained by a party invoking the jurisdiction 
of the court must be neutralised.”
325. In Karnataka Rare Earth v. Deptt. of Mines & Geology [(2004) 
2 SCC 783], this Court observed that maxim actus curiae neminem 
gravabit requires that the party should be placed in the same 
position but for the court›s order which is ultimately found to be not 
sustainable which has resulted in one party gaining advantage which 
otherwise would not have earned and the other party has suﬀ ered 
but for the orders of the court. The successful party can demand the 
delivery of beneﬁ t earned by the other party, or make restitution for 
what it has lost. This Court observed : (SCC pp. 790-91, paras 10-11)
“10. In … the doctrine of actus curiae neminem gravabit and 
held that the doctrine was not conﬁ ned in its application
only 
to such acts of the court which were erroneous; the doctrine is 
applicable to all such acts as to which it can be held that the 
court would not have so acted had it been correctly apprised 
of the facts and the law. It is the principle of restitution that is 
attracted. When on account of an act of the party, persuading 
the court to pass an order, which at the end is held as not 
sustainable, has resulted in one party gaining advantage which 
it would not have otherwise earned, or the other party has 
suﬀ ered an impoverishment which it would not have suﬀ ered, 
but for the order of the court and the act of such party, then 
the successful party ﬁ nally held entitled to a relief, assessable 
MUMTAZ YARUD DOWLA WAKF v. M/S BADAM 
BALAKRISHNA HOTEL PVT. LTD. & ORS. [M. M. SUNDRESH, J.]
1012 
SUPREME COURT REPORTS 
[2023] 15 S.C.R.
in terms of money at the end of the litigation, is entitled to be 
compensated in the same manner in which the parties would 
have been if the interim order of the court would not have been 
passed. The successful party can demand : (a) the delivery of 
beneﬁ t earned by the opposite party under the interim order of 
the court, or (b) to make restitution for what it has lost.
11. In the facts of this case, in spite of the judgment [Karnataka 
Rare Earth v. Department of Mines & Geology, WPs No.. 4030-
4031 of 1997, order dated 1-12-1998 (KAR)] of the High Court, 
if the appellants would not have persuaded this Court to pass the 
interim orders, they would not have been entitled to operate the 
mining leases and to raise and remove and dispose of the minerals 
extracted. But for the interim orders passed by this Court, there 
is no diﬀ erence between the appellants and any person raising, 
without any lawful authority, any mineral from any land, 
attracting applicability of sub-section (5) of Section 21. As the 
appellants have lost from the Court, they cannot be allowed to 
retain the beneﬁ t earned by them under the interim orders of the 
Court. The High Court has rightly held the appellants liable to be 
placed in the same position in which they would have been if this 
Court would not have protected them by issuing interim orders. 
All that the State Government is demanding from the appellants 
is the price of the minor
minerals. Rent, royalty or tax has already 
been recovered by the State Government and, therefore, there is 
no demand under that head. No penal proceedings, much less any 
criminal proceedings, have been initiated against the appellants. 
It is absolutely incorrect to contend that the appellants are being 
asked to pay any penalty or are being subjected to any penal 
action. It is not the case of the appellants that they are being 
asked to pay the price more than what they have realised from 
the exports or that the price appointed by the respondent State 
is in any manner arbitrary or unreasonable.”
(emphasis in the original)
326. In A.R. Antulay [A.R. Antulay v. R.S. Nayak, (1988) 2 SCC 602 : 
1988 SCC (Cri) 372], this Court observed that it is a settled principle
1013
that an act of the court shall prejudice no man. This maxim actus curiae 
neminem gravabit is founded upon justice and good sense and aﬀ ords a 
safe and certain guide for the administration of the law. No man can be 
denied his rights. In India, a delay occurs due to procedural wrangles. 
In A.R. Antulay [A.R. Antulay v. R.S. Nayak, (1988) 2 SCC 602 : 1988 
SCC (Cri) 372], this Court observed : (SCC p. 687, para 102)
“102. This being the apex court, no litigant has any opportunity 
of approaching any higher forum to question its decisions. Lord 
Buckmaster in Montreal Street Railway Co. v. Normandin [1917 
AC 170 (PC)] (sic) stated:
‘All rules of court are nothing but provisions intended to secure 
the proper administration of justice. It is, therefore, essential that 
they should be made to serve and be subordinate to that purpose.’
This Court in State of Gujarat v. Ramprakash P. Puri [(1969) 3 SCC 
156 : 1970 SCC (Cri) 29] , reiterated the position by saying : (SCC 
p. 159, para 5)
‘5. … Procedure has been described to be a handmaid and 
not a mistress of law, intended to subserve and facilitate the 
cause of justice and not to govern or obstruct it. Like all rules 
of procedure, this rule demands a construction which would 
promote this cause.’
Once judicial satisfaction is reached that the direction was not open 
to be made and it is accepted as a mistake of the court, it is not only 
appropriate but also the duty of the court to rectify the mistake by 
exercising
inherent powers. Judicial opinion heavily leans in favour 
of this view that a mistake of the court can be corrected by the court 
itself without any fetters. This is on principle, as indicated in Alexander 
Rodger case [Alexander Rodger v. Comptoir D’Escompte De Paris, 
(1969-71) LR 3 PC 465 : 17 ER 120] . I am of the view that in the 
present situation, the court’s inherent powers can be exercised to 
remedy the mistake. Mahajan, J. speaking for a four-Judge Bench in 
Keshardeo Chamria v. Radha Kissen Chamria [(1952) 2 SCC 329 : 
1953 SCR 136 : AIR 1953 SC 23] , SCR p. 153 stated : (AIR p. 28, 
para 21)
MUMTAZ YARUD DOWLA WAKF v. M/S BADAM 
BALAKRISHNA HOTEL PVT. LTD. & ORS. [M. M. SUNDRESH, J.]
1014 
SUPREME COURT REPORTS 
[2023] 15 S.C.R.
‘21. … The Judge had jurisdiction to correct his own error without 
entering into a discussion of the grounds taken by the decree-
holder or the objections raised by the judgment-debtors.’ ”
×××××
328. Reliance was placed on Neeraj Kumar Sainy v. State of U.P. [(2017) 
14 SCC 136 : 8 SCEC 454] There, this Court observed that no one should 
suﬀ er any prejudice because of the act of the court; the legal maxim cannot 
operate in a vacuum. It has to get the sustenance from the facts. As the 
appellants resigned to their fate and woke up to have control over the events 
forgetting that the law does not assist the non-vigilant. One cannot indulge 
in the luxury of lethargy, possibly nurturing the feeling that forgetting is 
a virtue. If such is the conduct, it is not permissible to take shelter under 
the maxim actus curiae neminem gravabit. There is no dispute with the 
aforesaid principle. Party has to be vigilant about the right, but the ratio 
cannot be applied. In the opinion, the ratio in the decision cannot be applied 
for the purpose of interpretation of Section 24(2).”
26. 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 reason being that the
provisions of the enactment ought to be 
given eﬀ ect to through such forums and therefore to the exclusion of a civil 
court whose jurisdiction is otherwise to be inferred. J. Willes in Wolverhampton 
New Waterworks Co. v. Hawkesford [1859] 6 C.B. (NS) 336,
“One is where there was a liability existing at common law, and that 
liability is aﬃ  rmed by a Statute which gives a special and peculiar form 
of remedy diﬀ erent from the remedy which existed at common law: 
there, unless the Statute contains words which expressly or by necessary 
implication exclude the common law remedy the party suing has his 
election to pursue either that or the statutory remedy. The second class 
of cases is, where the Statute gives the right to sue merely, but provides, 
no particular form of remedy: there, the party can only proceed by action 
at common law. But there is a third class, viz., where a liability not 
existing at common law is created by a Statute which at the same time 
gives a special and particular remedy for enforcing it ........ The remedy
1015
provided by the Statute must be followed and it is not competent to 
the party to pursue the course applicable to cases of the second class.”
(emphasis supplied)
27. 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. Of course, there may be certain exceptions 
when fundamental principles governing common law, including the one 
pertaining to the principle of natural justice, stand violated. To deal with 
the said issue one has to take into consideration the objective behind the 
enactment, along with the provisions contained thereunder. Dhulabhai 
etc. v. State of Madhya Pradesh and Another, (1968) 3 SCR 662 : AIR 
1969 SC 78,
“32. Neither of the two cases of Firm of Illuri Subayya, 1964-1 SCR 
752 = (AIR 1964 SC 322) or Kamla Mills, 1966 1 SCR 64 = (AIR 
1965 SC 1942) can be said to run counter to the series of cases earlier 
noticed. The result of this inquiry into the diverse views expressed 
in this Court may be stated as follows:
(1) Where the statute gives a ﬁ nality to the orders of the special 
tribunals the civil courts’ jurisdiction must be held to be excluded 
if there is adequate remedy to do what the civil courts would 
normally do in a suit. Such provision, however, does not exclude
those cases where the provisions of the particular Act have not 
been complied with or the statutory tribunal has not acted in 
conformity with the fundamental principles of judicial procedure.
(2) Where there is an express bar of the jurisdiction of the court, 
an examination of the scheme of the particular Act to ﬁ nd the 
adequacy or the suﬃ  ciency of the remedies provided may be 
relevant but is not decisive to sustain the jurisdiction of the civil 
court.
Where there is no express exclusion the examination of the 
remedies and the scheme of the particular Act to ﬁ nd out the 
intendment becomes necessary and the result of the inquiry 
MUMTAZ YARUD DOWLA WAKF v. M/S BADAM 
BALAKRISHNA HOTEL PVT. LTD. & ORS. [M. M. SUNDRESH, J.]
1016 
SUPREME COURT REPORTS 
[2023] 15 S.C.R.
may be decisive. In the latter case it is necessary to see if the 
statute creates a special right or a liability and provides for the 
determination of the right or liability and further lays down that 
all questions about the said right and liability shall be determined 
by the tribunals so constituted, and whether remedies normally 
associated with actions in civil courts are prescribed by the said 
statute or not.
×××××
(7) An exclusion of the jurisdiction of the civil court is not readily 
to be inferred unless the conditions above set down apply.”
(emphasis supplied)
The aforesaid decision of the Constitution Bench of this Court is also 
followed in a catena of judgments including the one in M. Hariharasudhan 
v. R. Karmegam, (2019) 10 SCC 94.
EFFECT OF REMOVING THE BASIS OF JUDGMENT
28. On the question of the eﬀ ect of removal of the basis of the judgment, 
once again, the distinction between a procedural and substantial law has 
to be kept in mind. 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. Madras Bar Association v. Union of India and 
Another, (2022) 12 SCC 455,
“50. The permissibility of a legislative override in this country 
should be in accordance with the principles laid down by this 
Court in the aforementioned as well as other
judgments, which 
have been culled out as under:
50.1. The eﬀ ect of the judgments of the Court can be nulliﬁ ed by 
a legislative act removing the basis of the judgment. Such law can 
be retrospective. Retrospective amendment should be reasonable 
and not arbitrary and must not be violative of the fundamental 
rights guaranteed under the Constitution. (Lohia Machines Ltd. 
v. Union of India [Lohia Machines Ltd. v. Union of India, (1985) 2 
SCC 197 : 1985 SCC (Tax) 245] ).
1017
50.2. The test for determining the validity of a validating legislation 
is that the judgment pointing out the defect would not have been 
passed, if the altered position as sought to be brought in by the 
validating statute existed before the Court at the time of rendering 
its judgment. In other words, the defect pointed out should have 
been cured such that the basis of the judgment pointing out the 
defect is removed.
50.3. Nullification of mandamus by an enactment would be 
impermissible legislative exercise (see S.R. Bhagwat v. State of Mysore 
[(1995) 6 SCC 16 : 1995 SCC (L&S) 1334] ). Even interim directions 
cannot be reversed by a legislative veto (see Cauvery Water Disputes 
Tribunal [Cauvery Water Disputes Tribunal, In re, 1993 Supp (1) SCC 
96 (2)] ) and Medical Council of India v. State of Kerala [(2019) 13 
SCC 185] .
50.4. Transgression of constitutional limitations and intrusion into 
the judicial power by the legislature is violative of the principle 
of separation of powers, the rule of law and of Article 14 of the 
Constitution of India.”
(emphasis supplied)
RASHID WALI BEG (SUPRA)
29. This Court has taken note of the earlier decision rendered in 
Ramesh Gobindram (Supra) and held that after the amendment made by 
the Act 27 of 2013, the basis of the said decision is correctly removed. It was 
further held that there are suﬃ  cient provisions even otherwise to maintain a 
suit for eviction over a Wakf property. While giving our imprimatur to the
decision in Rashid Wali Beg (Supra), which in fact took into consideration 
the decisions subsequent to Ramesh Gobindram (Supra), we do not wish 
to elaborate much except quoting the following paragraphs, 
“45. Interestingly, the basis of the decision in Ramesh Gobindram 
[Ramesh Gobindram v. Sugra Humayun Mirza Wakf, (2010) 8 SCC 
726 : (2010) 3 SCC (Civ) 553] was removed through an amendment 
under Act 27 of 2013. As we have stated elsewhere, Ramesh 
Gobindram (Supra) sought to address the question whether a 
MUMTAZ YARUD DOWLA WAKF v. M/S BADAM 
BALAKRISHNA HOTEL PVT. LTD. & ORS. [M. M. SUNDRESH, J.]
1018 
SUPREME COURT REPORTS 
[2023] 15 S.C.R.
Waqf Tribunal was competent to entertain and adjudicate upon 
disputes regarding eviction of persons in occupation of what are 
admittedly waqf properties. Since this Court answered the question 
in the negative, Section 83(1) was amended by Act 27 of 2013 to 
include the words, “eviction of tenant or determination of rights and 
obligations of the lessor and lessee of such property”.
×××××
47. The upshot of the above discussion is that the basis of Ramesh 
Gobindram [Ramesh Gobindram v. Sugra Humayun Mirza Wakf, 
(2010) 8 SCC 726 : (2010) 3 SCC (Civ) 553] now stands removed 
through Amendment Act 27 of 2013. In fact, when Ramesh 
Gobindram [Ramesh Gobindram v. Sugra Humayun Mirza Wakf, 
(2010) 8 SCC 726 : (2010) 3 SCC (Civ) 553] was decided, Sections 6(1) 
and 7(1) enabled only three categories of persons to approach the Waqf 
Tribunal for relief. They are, (i) the Board; (ii) the mutawalli of the 
waqf; or (iii) any person interested therein. However, the Explanation 
under Section 6(1) clariﬁ ed that the expression “any person interested 
therein” shall include every person, who, though not interested in the 
waqf, is interested in the property. But by Act 27 of 2013 the words, 
“any person interested” were substituted by the words, “any person 
aggrieved”, meaning thereby that even a non-Muslim is entitled to 
invoke the jurisdiction of the Tribunal. Due to the substitution of 
the words “any person aggrieved”, Act 27 of 2013
has deleted the 
Explanation under 6(1). This amendment has also addressed the 
concern expressed in Ramesh Gobindram [Ramesh Gobindram v. 
Sugra Humayun Mirza Wakf, (2010) 8 SCC 726 : (2010) 3 SCC (Civ) 
553] (in para 21 of the SCC report) whether a non-Muslim could be 
put to jeopardy by the bar of jurisdiction, merely because the property 
is included in the list of waqfs. We must point out at this stage that the 
Explanation under sub-section (1) of Section 6, as it stood at the time 
when Ramesh Gobindram [Ramesh Gobindram v. Sugra Humayun 
Mirza Wakf, (2010) 8 SCC 726 : (2010) 3 SCC (Civ) 553] was decided, 
already took care of this contingency, but was omitted to be brought 
to the notice of this Court.
×××××
1019
64. We have already seen that it is not as though there was no 
provision in the Waqf Act conferring jurisdiction upon the 
Tribunal in respect of the waqf property. We can break the 
ﬁ rst part of Section 83 into two limbs, the ﬁ rst concerning the 
determination of any dispute, question or other matter relating 
to a waqf and the second, concerning the determination of any 
dispute, question or other matter relating to a waqf property. 
After Amendment Act 27 of 2013, even the eviction of a tenant 
or determination of the rights and obligation of the lessor 
and lessee of such property, come within the purview of the 
Tribunal. Though the proceedings out of which the present 
appeal arises, were instituted before the Amendment Act, the 
words “any dispute, question or other matter relating to a waqf 
or waqf property” are suﬃ  cient to cover any dispute, question 
or other matter relating to a waqf property. This is why Ramesh 
Gobindram [Ramesh Gobindram v. Sugra Humayun Mirza Wakf, 
(2010) 8 SCC 726 : (2010) 3 SCC (Civ) 553] was sought to be 
distinguished both in Anis Fatma Begum [W.B. Wakf Board v. 
Anis Fatma Begum, (2010) 14 SCC 588 : (2012) 1 SCC (Civ) 
773] and Pritpal Singh [Punjab Wakf Board v. Pritpal Singh, 2013 
SCC OnLine SC 1345] and such distinction was taken note of in 
Akkode Jumayath Palli Paripalana Committee [Akkode Jumayath 
Palli Paripalana Committee v. P.V. Ibrahim Haji, (2014) 16 SCC 
65 : (2015) 3 SCC (Civ) 446]. Additionally, this Court in
Kiran 
Devi [Kiran Devi v. Bihar State Sunni Wakf Board, (2021) 15 
SCC 15 : 2021 SCC OnLine SC 280], refused to apply the ratio 
of Ramesh Gobindram [Ramesh Gobindram v. Sugra Humayun 
Mirza Wakf, (2010) 8 SCC 726 : (2010) 3 SCC (Civ) 553], on the 
ground that the suit was originally instituted before the civil 
court, but was later transferred to the Waqf Tribunal and that 
after allowing the order of transfer to attain ﬁ nality, it was not 
open to them to resurrect the issue through Ramesh Gobindram 
[Ramesh Gobindram v. Sugra Humayun Mirza Wakf, (2010) 8 
SCC 726 : (2010) 3 SCC (Civ) 553].
65. It is well settled that the court cannot do violence to the 
express language of the statute. Section 83(1) even as it stood 
MUMTAZ YARUD DOWLA WAKF v. M/S BADAM 
BALAKRISHNA HOTEL PVT. LTD. & ORS. [M. M. SUNDRESH, J.]
1020 
SUPREME COURT REPORTS 
[2023] 15 S.C.R.
before the amendment, provided for the determination by the 
Tribunal, of any dispute, question or other matter (i) relating to 
a waqf; and (ii) relating to a waqf property. Therefore to say that 
the Tribunal will have jurisdiction only if the subject property 
is disputed to be a waqf property and not if it is admitted to be 
a waqf property, is indigestible in the teeth of Section 83(1).”
(emphasis supplied)
30. On a proper analysis of the said decision, we have no hesitation in 
holding that the Wakf Tribunal has got suﬃ  cient jurisdiction to try every suit 
pertaining to either a Wakf or a Wakf property, notwithstanding the nature 
of relief concerned, except as mandated under the statute.
31. We would like to consider one more issue by drawing a distinction 
between institution and adjudication. Institution of a suit before a forum 
where an adjudication process is the same as the other, insofar as the rights 
and liabilities are concerned, has got no relevancy when subsequently either 
an act or amendment has been brought forth conferring the jurisdiction to 
some other forum. In other words, the issue for consideration is the forum 
to adjudicate. This principle is subject to the rider that it may not have an 
application when there is already a decree where a party has not raised the 
issue of jurisdiction at any point before.
ON FACTS 
32. The High Court while passing the impugned order, unfortunately 
did not have
the beneﬁ t of the decision rendered in Rashid Wali Beg 
(Supra). Even otherwise, as per the amendment by way of the Act 27 of 
2013, the jurisdiction now lies with the Wakf Tribunal. Respondent no(s). 
1 and 2 have continuously put spokes on the wheels of justice as protracted 
proceedings have helped them to be in possession for over two decades, 
notwithstanding the expiry of the lease way back in the year 1999. We 
do not wish to say much on the conduct of respondents no(s). 1 and 2 as 
the facts narrated speak for themselves. The Act 27 of 2013 is certainly a 
procedural amendment and therefore, has to be applied retrospectively in 
the context of change of forum and jurisdictional provisions. As stated, we 
are in respectful agreement with the decision rendered in Rashid Wali Beg 
(Supra). The amendment has been brought forth in order to get over the

1021
interpretation given in Ramesh Gobindram (Supra). Therefore, we have 
no hesitation in setting aside the order impugned passed by the High Court 
in C.R.P. No. 1264 of 2021 dated 23.11.2021, by restoring the one passed 
by the Executing Court, i.e. the Court of the III-Additional Chief Judge, 
City Civil Court at Hyderabad in E.P. No. 29 of 2014 dated 10.08.2021. 
The appeal stands allowed. No costs.
Headnotes prepared by: 
Appeal allowed.
Divya Pandey
MUMTAZ YARUD DOWLA WAKF v. M/S BADAM 
BALAKRISHNA HOTEL PVT. LTD. & ORS. [M. M. SUNDRESH, J.]