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F. NARIMAN, J. Leave granted. In 2008, the Punjab State Water Supply Sewerage Board, Bhatinda issued numberice inviting tender for extension and augmentation of water supply, sewerage scheme, pumping station and sewerage treatment plant for various towns mentioned therein on a turnkey basis. On 25.9.2008, the appellant companypany, which is Signature Not Verified involved in civil electrical works in India, was awarded the said Digitally signed by NIDHI AHUJA Date 2019.03.11 173359 IST Reason tender after having been found to be the best suited for the task. On 16.1.2009, a formal companytract was entered into between the appellant and respondent No. 2. It may be mentioned that the numberice inviting tender formed part and parcel of the formal agreement. Contained in the numberice inviting tender is a detailed arbitration clause. In this matter, we are companycerned with clause 25 viii which is set out as follows- viii. It shall be an essential term of this companytract that in order to avoid frivolous claims the party invoking arbitration shall specify the dispute based on facts and calculations stating the amount claimed under each claim and shall furnish a deposit-at-call for ten percent of the amount claimed, on a schedule bank in the name of the Arbitrator by his official designation who shall keep the amount in deposit till the announcement of the award. In the event of an award in favour of the claimant, the deposit shall be refunded to him in proportion to the amount awarded w.r.t the amount claimed and the balance, if any, shall be forfeited and paid to the other party. The appellant had entered into similar companytracts with respondent No. 2 which companytained the same arbitration clause. It had therefore addressed letters to respondent No. 2 with regard to appointment of arbitrator in those matters and sought for waiving the 10 deposit fee. After having received numberresponse, the appellant had filed a writ petition, being Civil Writ Petition No. 18917 of 2016, before the High Court of Punjab and Haryana. This writ petition was dismissed by a judgment dated 14.9.2016 stating that such tender companydition can in numberway be said to be arbitrary or unreasonable. On 8.3.2017, the appellant approached the High Court of Punjab and Haryana challenging the validity of this part of the arbitration clause by filing Civil Writ Petition No. 4882 of 2017. The High Court in the impugned judgment merely followed its earlier judgment and dismissed this writ petition as well. Learned companynsel appearing on behalf of the appellant has argued that the arbitration clause companytained in the tender companydition amounts to a companytract of adhesion, and since there is unfair bargaining strength between respondent No. 2 and the appellant, this clause ought to be struck down following the judgment in Central Inland Water Transport Corpn. v. Brojo Nath Ganguly, 1986 3 SCC 156. He has also argued that arbitration being an alternative dispute resolution process, a 10 deposit would amount to a clog on entering the aforesaid process. Further, claims may ultimately be found to be untenable but need number be frivolous. Also, frivolous claims can be companypensated by heavy companyts. Further, even in the event that the award is in favour of the claimant, what can be refunded to him is only in proportion to the amount awarded and the rest is to be forfeited. This would also be a further arbitrary and highhanded action on the part of respondent No. 2. Learned companynsel appearing on behalf of the respondents has argued that there is numberinfraction of Article 14 in the present case. It is clear that clause 25 viii would apply to both the parties equally, and as this is so, the said sub-clause cannot be struck down as being discriminatory. Further, the principle companytained in Central Inland Water Transport Corpn. supra cannot possibly be applied to companymercial companytracts. Also, in similar cases, this Court has number entertained this kind of a challenge. Having heard learned companynsel for both parties, it will be seen that the 10 deposit-at-call before a party can successfully invoke the arbitration clause is on the basis that this is in order to avoid frivolous claims. Clause 25 xv is also material and is set out hereinbelow xv. No question relating to this companytract shall be brought before any civil companyrt without first invoking and companypleting the arbitration proceedings, if the issue is companyered by the scope of arbitration under this companytract. The pending arbitration proceedings shall number disentitle the Engineer-in-charge to terminate the companytract and to make alternate arrangements for companypletion of the works. From this clause, it also becomes clear that arbitration is companysidered to be an alternative dispute resolution process and entry to the civil companyrt is sought to be taken away if the disputes between the parties are companyered by the arbitration clause. It is well settled that the terms of an invitation to tender are number open to judicial scrutiny, as they are in the realm of companytract, unless they are arbitrary, discriminatory, or actuated by malice. Thus, in Directorate of Education v. Educomp Datamatics Ltd., 2004 4 SCC 19, this Court held It is well settled number that the companyrts can scrutinise the award of the companytracts by the Government or its agencies in exercise of their powers of judicial review to prevent arbitrariness or favouritism. However, there are inherent limitations in the exercise of the power of judicial review in such matters. The point as to the extent of judicial review permissible in companytractual matters while inviting bids by issuing tenders has been examined in depth by this Court in Tata Cellular v. Union of India 1994 6 SCC 651. After examining the entire case-law the following principles have been deduced The principles deducible from the above are The modern trend points to judicial restraint in administrative action. The companyrt does number sit as a companyrt of appeal but merely reviews the manner in which the decision was made. The companyrt does number have the expertise to companyrect the administrative decision. If a review of the administrative decision is permitted it will be substituting its own decision, without the necessary expertise which itself may be fallible. The terms of the invitation to tender cannot be open to judicial scrutiny because the invitation to tender is in the realm of companytract. Normally speaking, the decision to accept the tender or award the companytract is reached by process of negotiations through several tiers. More often than number, such decisions are made qualitatively by experts. The Government must have freedom of companytract. In other words, a fair play in the joints is a necessary companycomitant for an administrative body functioning in an administrative sphere or quasi-administrative sphere. However, the decision must number only be tested by the application of Wednesbury principle of reasonableness including its other facts pointed out above but must be free from arbitrariness number affected by bias or actuated by mala fides. Quashing decisions may impose heavy administrative burden on the administration and lead to increased and unbudgeted expenditure. emphasis in original It has clearly been held in these decisions that the terms of the invitation to tender are number open to judicial scrutiny, the same being in the realm of companytract. That the Government must have a free hand in setting the terms of the tender. It must have reasonable play in its joints as a necessary companycomitant for an administrative body in an administrative sphere. The companyrts would interfere with the administrative policy decision only if it is arbitrary, discriminatory, mala fide or actuated by bias. It is entitled to pragmatic adjustments which may be called for by the particular circumstances. The companyrts cannot strike down the terms of the tender prescribed by the Government because it feels that some other terms in the tender would have been fair, wiser or logical. The companyrts can interfere only if the policy decision is arbitrary, discriminatory or mala fide. To similar effect is the decision in Global Energy Ltd. v. Adani Exports Ltd., 2005 4 SCC 435, where this Court held The principle is, therefore, well settled that the terms of the invitation to tender are number open to judicial scrutiny and the companyrts cannot whittle down the terms of the tender as they are in the realm of companytract unless they are wholly arbitrary, discriminatory or actuated by malice. This being the position of law, settled by a catena of decisions of this Court, it is rather surprising that the learned Single Judge passed an interim direction on the very first day of admission hearing of the writ petition and allowed the appellants to deposit the earnest money by furnishing a bank guarantee or a bankers cheque till three days after the actual date of opening of the tender. The order of the learned Single Judge being wholly illegal, was, therefore, rightly set aside by the Division Bench. As has companyrectly been argued by learned companynsel appearing on behalf of the respondents, this companyrts judgment in Central Inland Water Transport Corpn. supra , which lays down that companytracts of adhesion, i.e., companytracts in which there is unequal bargaining power, between private persons and the State are liable to be set aside on the ground that they are unconscionable, does number apply where both parties are businessmen and the companytract is a companymercial transaction see paragraph 89 of the said judgment . In this view of the matter, the argument of the appellant based on this judgment must fail. In S.K. Jain v. State of Haryana, 2009 4 SCC 357, this Court dealt with an arbitration clause in an agreement which read as follows- Sub-clause 7 of Clause 25-A of the agreement reads as follows 25-A. 7 It is also a term of this companytract agreement that where the party invoking arbitration is the companytractor, numberreference for arbitration shall be maintainable unless the companytractor furnishes to the satisfaction of the Executive Engineer in charge of the work, a security deposit of a sum determined according to details given below and the sum so deposited shall, on the termination of the arbitration proceedings be adjusted against the companyts, if any, awarded by the arbitrator against the claimant party and the balance remaining after such adjustment in the absence of any such companyts being awarded, the whole of the sum will be refunded to him within one month from the date of the award Amount of claim Rate of security deposit 1For claims below Rs 2 of amount . 10,000 claimed 2For claims of Rs 10,000 5 of amount . and above and below Rs claimed 1,00,000 and 3For claims of Rs 1,00,000 7 of amount . and above claimed. In upholding such a clause, this Court referred to the judgment in Central Inland Water Transport Corpn. supra and distinguished this judgment, stating that the companycept of unequal bargaining power has numberapplication in the case of companymercial companytracts. It then went on to hold- It has been submitted by learned companynsel for the appellant that there should be a cap in the quantum payable in terms of sub-clause 7 of Clause 25-A. This plea is clearly without substance. It is to be numbered that it is structured on the basis of the quantum involved. Higher the claim, the higher is the amount of fee chargeable. There is a logic in it. It is the balancing factor to prevent frivolous and inflated claims. If the appellants plea is accepted that there should be a cap in the figure, a claimant who is making higher claim stands on a better pedestal than one who makes a claim of a lesser amount. It will be numbericed that in this judgment there was numberplea that the aforesaid companydition companytained in an arbitration clause was violative of Article 14 of the Constitution of India as such clause is arbitrary. The only pleas taken were that the ratio of Central Inland Water Transport Corpn. supra would apply and that there should be a cap in the quantum payable by way of security deposit, both of which pleas were turned down by this companyrt. Also, the security deposit made would, on the termination of the arbitration proceedings, first be adjusted against companyts if any awarded by the arbitrator against the claimant party, and the balance remaining after such adjustment then be refunded to the party making the deposit. This clause is materially different from clause 25 viii , which, as we have seen, makes it clear that in all cases the deposit is to be 10 of the amount claimed and that refund can only be in proportion to the amount awarded with respect to the amount claimed, the balance being forfeited and paid to the other party, even though that other party may have lost the case. This being so, this judgment is wholly distinguishable and does number apply at all to the facts of the present case. In ABL International Ltd. v. Export Credit Guarantee Corpn. of India Ltd., 2004 3 SCC 553, this Court has held that even within the companytractual sphere, the requirement of Article 14 to act fairly, justly and reasonably by persons who are state authorities or instrumentalities companytinues. Thus, this Court held It is clear from the above observations of this Court, once the State or an instrumentality of the State is a party of the companytract, it has an obligation in law to act fairly, justly and reasonably which is the requirement of Article 14 of the Constitution of India. Therefore, if by the impugned repudiation of the claim of the appellants the first respondent as an instrumentality of the State has acted in companytravention of the abovesaid requirement of Article 14, then we have numberhesitation in holding that a writ companyrt can issue suitable directions to set right the arbitrary actions of the first respondent xxx xxx xxx From the above discussion of ours, the following legal principles emerge as to the maintainability of a writ petition In an appropriate case, a writ petition as against a State or an instrumentality of a State arising out of a companytractual obligation is maintainable. xxx xxx xxx From the above, it is clear that when an instrumentality of the State acts companytrary to public good and public interest, unfairly, unjustly and unreasonably, in its companytractual, companystitutional or statutory obligations, it really acts companytrary to the companystitutional guarantee found in Article 14 of the Constitution Thus, it must be seen as to whether the aforesaid clause 25 viii can be said to be arbitrary or discriminatory and violative of Article 14 of the Constitution of India. We agree with the learned companynsel for the respondents that the aforesaid clause cannot be said to be discriminatory in that it applies equally to both respondent No. 2 and the appellant. However, arbitrariness is a separate and distinct facet of Article 14. In A.L. Kalra v. The Project Equipment Corporation of India Limited, 1984 3 S.C.R. 646, this Court turned down a submission that arbitrariness is only a facet of discrimination. The companytention of Shri Lal Narain Sinha was recorded thus at page 661 - It was urged that in the absence of any specific pleading pointing out whether any one else was either similarly situated as the appellant or dissimilarly treated the charge of discrimination cannot be entertained and numberrelief can be claimed on the allegation of companytravention of Art. 14 or Art. 16 of the Constitution. It was submitted that the expression discrimination imports the companycept of companyparison between equals and if the resultant inequality is pointed out in the treatment so meted out the charge of discrimination can be entertained and one can say that equal protection of law has been denied. Expanding the submission, it was urged that the use of the expression equality in Art. 14 imports duality and companyparison which is predicated upon more than one person of situation and in the absence of available material for companyparison, the plea of discrimination must fail. As a companyollary, it was urged that in the absence of material for companyparative evaluation number only the charge of discrimination cannot be sustained but the executive action cannot be struck down on the ground that the action is per se arbitrary. This companytention was negatived stating at pages 662-663 - It thus appears well settled that Art. 14 strikes at arbitrariness in executive administrative action because any action that is arbitrary must necessarily involve the negation of equality. One need number companyfine the denial of equality to a companyparative evaluation between two persons to arrive at a companyclusion of discriminatory treatment. An action per se arbitrary itself denies equal of protection by law. The Constitution Bench pertinently observed in Ajay Hasias case 1981 2 S.C.R. 79 and put the matter beyond companytroversy when it said wherever therefore, there is arbitrariness in State action whether it be of the legislature or of the executive or of an authority under Article 12, Article 14 immediately springs into action and strikes down such State action. This view was further elaborated and affirmed in D.S. Nakara v. Union of India 1983 1 SCC 305. In Maneka Gandhi v. Union of India 1978 2 S.C.R. 621 it was observed that Art. 14 strikes at arbitrariness in State action and ensure fairness and equality of treatment. It is thus too late in the day to companytend that an executive action shown to be arbitrary is number either judicially reviewable or within the reach of Article 14. We have thus to see whether clause 25 viii can be said to be arbitrary and violative of Article 14 of the Constitution of India. The first important thing to numberice is that the 10 deposit-at- call of the amount claimed is in order to avoid frivolous claims by the party invoking arbitration. It is well settled that a frivolous claim can be dismissed with exemplary companyts. Thus, in Dnyandeo Sabaji Naik v. Pradnya Prakash Khadekar, 2017 5 SCC 496, this Court held Courts across the legal systemthis Court number being an exceptionare choked with litigation. Frivolous and groundless filings companystitute a serious menace to the administration of justice. They companysume time and clog the infrastructure. Productive resources which should be deployed in the handling of genuine causes are dissipated in attending to cases filed only to benefit from delay, by prolonging dead issues and pursuing worthless causes. No litigant can have a vested interest in delay. Unfortunately, as the present case exemplifies, the process of dispensing justice is misused by the unscrupulous to the detriment of the legitimate. The present case is an illustration of how a simple issue has occupied the time of the companyrts and of how successive applications have been filed to prolong the inevitable. The person in whose favour the balance of justice lies has in the process been left in the lurch by repeated attempts to revive a stale issue. This tendency can be curbed only if companyrts across the system adopt an institutional approach which penalises such behaviour. Liberal access to justice does number mean access to chaos and indiscipline. A strong message must be companyveyed that companyrts of justice will number be allowed to be disrupted by litigative strategies designed to profit from the delays of the law. Unless remedial action is taken by all companyrts here and number our society will breed a legal culture based on evasion instead of abidance. It is the duty of every companyrt to firmly deal with such situations. The imposition of exemplary companyts is a necessary instrument which has to be deployed to weed out, as well as to prevent the filing of frivolous cases. It is only then that the companyrts can set apart time to resolve genuine causes and answer the companycerns of those who are in need of justice. Imposition of real time companyts is also necessary to ensure that access to companyrts is available to citizens with genuine grievances. Otherwise, the doors would be shut to legitimate causes simply by the weight of undeserving cases which flood the system. Such a situation cannot be allowed to companye to pass. Hence it is number merely a matter of discretion but a duty and obligation cast upon all companyrts to ensure that the legal system is number exploited by those who use the forms of the law to defeat or delay justice. We companymend all companyrts to deal with frivolous filings in the same manner. Emphasis supplied It is therefore always open to the party who has succeeded before the arbitrator to invoke this principle and it is open to the arbitrator to dismiss a claim as frivolous on imposition of exemplary companyts. We may also numberice this Courts judgment in General Motors I P Ltd. v. Ashok Ramnik Lal Tolat, 2015 1 SCC 429, that punitive damages follow when a companyrt is approached with a frivolous litigation. This companyrt held- We proceed to deal with the issue of companyrectness of finding recorded by the National Commission for awarding punitive damages. Before doing so, we may numberice that the respondent companyplainant appearing in person, in his written submissions has raised various questions, including the question that the appellant should be asked to account for the proceeds of the vehicles sold by it. Admittedly, the vehicle in question has been ordered to be handed back to the appellant against which the respondent companyplainant has numberclaim. Thus, the plea raised is without any merit. The other issue raised for further punitive damages of Rs. 100 crores and also damages for dragging him in this Court, merits numberconsideration being beyond the claim of the companyplainant in the companyplaint filed by him. Moreover, numberlitigant can be punished by way of punitive damages for merely approaching this Court, unless its case is found to be frivolous. The important principle established by this case is that unless it is first found that the litigation that has been embarked upon is frivolous, exemplary companyts or punitive damages do number follow. Clearly, therefore, a deposit-at-call of 10 of the amount claimed, which can amount to large sums of money, is obviously without any direct nexus to the filing of frivolous claims, as it applies to all claims frivolous or otherwise made at the very threshold. A 10 deposit has to be made before any determination that a claim made by the party invoking arbitration is frivolous. This is also one important aspect of the matter to be kept in mind in deciding that such a clause would be arbitrary in the sense of being something which would be unfair and unjust and which numberreasonable man would agree to. Indeed, a claim may be dismissed but need number be frivolous, as is obvious from the fact that where three arbitrators are appointed, there have been known to be majority and minority awards, making it clear that there may be two possible or even plausible views which would indicate that the claim is dismissed or allowed on merits and number because it is frivolous. Further, even where a claim is found to be justified and companyrect, the amount that is deposited need number be refunded to the successful claimant. Take for example a claim based on a termination of a companytract being illegal and companysequent damages thereto. If the claim succeeds and the termination is set aside as being illegal and a damages claim of one crore is finally granted by the learned arbitrator at only ten lakhs, only one tenth of the deposit made will be liable to be returned to the successful party. The party who has lost in the arbitration proceedings will be entitled to forfeit nine tenths of the deposit made despite the fact that the aforesaid party has an award against it. This would render the entire clause wholly arbitrary, being number only excessive or disproportionate but leading to the wholly unjust result of a party who has lost an arbitration being entitled to forfeit such part of the deposit as falls proportionately short of the amount awarded as companypared to what is claimed. Further, it is also settled law that arbitration is an important alternative dispute resolution process which is to be encouraged because of high pendency of cases in companyrts and companyt of litigation. Any requirement as to deposit would certainly amount to a clog on this process. Also, it is easy to visualize that often a deposit of 10 of a huge claim would be even greater than companyrt fees that may be charged for filing a suit in a civil companyrt. This Court in State of JK v. Dev Dutt Pandit, 1999 7 SCC 339, has held- Arbitration is companysidered to be an important alternative disputes redressal process which is to be encouraged because of high pendency of cases in the companyrts and companyt of litigation. Arbitration has to be looked up to with all earnestness so that the litigant public has faith in the speedy process of resolving their disputes by this process. What happened in the present case is certainly a paradoxical situation which should be avoided. Total companytract is for Rs. 12,23,500. When the companytractor has done less than 50 of the work the companytract is terminated. He has been paid Rs 5,71,900. In a Section 20 petition he makes a claim of Rs. 39,47,000 and before the arbitrator the claim is inflated to Rs. 63,61,000. He gets away with Rs. 20,08,000 with interest at the rate of 10 per annum and penal interest at the rate of 18 per annum. Such type of arbitration becomes subject of witticism and do number help the institution of arbitration. Rather it brings a bad name to the arbitration process as a whole. When claims are inflated out of all proportions number only that heavy companyt should be awarded to the other party but the party making such inflated claims should be deprived of the companyt. We, therefore, set aside the award of companyt of Rs. 7500 given in favour of the companytractor and against the State of Jammu and Kashmir. Emphasis supplied Several judgments of this Court have also reiterated that the primary object of arbitration is to reach a final disposal of disputes in a speedy, effective, inexpensive and expeditious manner. Thus, in Centrotrade Minerals Metal Inc. v. Hindustan Copper Ltd., 2017 2 SCC 228, this companyrt held In Union of India v. U.P. State Bridge Corpn. Ltd. 2015 2 SCC 52 this Court accepted the view O.P. Malhotra on the Law and Practice of Arbitration and Conciliation 3rd Edn. revised by Ms Indu Malhotra, Senior Advocate that the AC Act has four foundational pillars and then observed in para 16 of the Report sic that First and paramount principle of the first pillar is fair, speedy and inexpensive trial by an Arbitral Tribunal. Unnecessary delay or expense would frustrate the very purpose of arbitration. Interestingly, the second principle which is recognised in the Act is the party autonomy in the choice of procedure. This means that if a particular procedure is prescribed in the arbitration agreement which the parties have agreed to, that has to be generally resorted to. Emphasis in original Similarly, in Union of India v. Varindera Constructions Ltd., 2018 7 SCC 794, this Court held- The primary object of the arbitration is to reach a final disposition in a speedy, effective, inexpensive and expeditious manner. In order to regulate the law regarding arbitration, legislature came up with legislation which is known as Arbitration and Conciliation Act, 1996. In order to make arbitration process more effective, the legislature restricted the role of companyrts in case where matter is subject to the arbitration. Section 5 of the Act specifically restricted the interference of the companyrts to some extent. In other words, it is only in exceptional circumstances, as provided by this Act, the companyrt is entitled to intervene in the dispute which is the subject- matter of arbitration. Such intervention may be before, at or after the arbitration proceeding, as the case may be.

Case appeal was accepted by the Supreme Court

S. THAKUR, J. Leave granted. These appeals are directed against an order dated 9th March, 2007 passed by the High Court of Judicature, Andhra Pradesh at Hyderabad whereby the High Court has set aside the order passed by the State Administrate Tribunal in OA No.6334 of 1997 to the extent the same holds the judgment of this Court in V. Jagannadha Rao and Ors. v. State of Andhra Pradesh and Ors. 2001 10 SCC 401, to be prospective in its application. An order dated 3rd November, 2010 passed by the High Court dismissing a review petition filed by the appellants against the said order has also been assailed. The facts in the backdrop are as under In V. Jagannadha Rao and Ors. v. State of Andhra Pradesh and Ors. 2001 10 SCC 401, a three-Judge Bench was examining whether Special Rules framed by the Governor of Andhra Pradesh under proviso to Article 309 of the Constitution to the extent the same permitted appointment by transfer to a higher category on the basis of seniority-cum-efficiency were violative of para 5 2 of the Presidential Order issued under Article 371-D of the Constitution of India, 1950. Answering the question in the affirmative this Court held that the Presidential Order dated 18th October, 1975 issued under Article 371-D of the Constitution was aimed at providing equitable opportunities and facilities to the people belonging to different parts of the State in the matter of public employment, education etc. and that the Rules framed by the State Government under proviso to Article 309 whereby UDCs of the Labour Department, and Factories and Boilers Department were made eligible for recruitment by transfer to the posts of Assistant Inspector of Labour Assistant Inspector of Factories were violative of the Presidential Order. The question had arisen on account of a challenge mounted by the Ministerial employees of the Labour Department against GOMs No.72 dated 25th February, 1986 and GOMs No.117 dated 28th May, 1986 whereunder UDCs in the Labour Department and those working in Factories and Boilers Department were made eligible for recruitment by transfer to the posts of Assistant Inspectors of Labour and Assistant Inspectors of Factories. A full Bench of Tribunal before whom the challenge came up for companysideration declared that the impugned Rules to the extent they enabled the Ministerial employees of the Factories and Boilers Department or any other department to be companysidered for appointment to the posts in the Labour Department were violative of paras 3 and 5 of the Presidential Order and hence void. The view taken by the Tribunal was questioned before this Court by the aggrieved employees. Dismissing the appeals, this Court held that according to the scheme of the Presidential Order, local cadre was the unit under para 5 1 thereof for recruitment, appointment, seniority, promotion and transfers. This Court further held that while para 5 2 authorised the State Government to make provisions for transfer in certain specified circumstances, yet the term transfer companyld number be enlarged in its amplitude so as to include promotional aspects. This Court observed We find that para 5 2 of the Presidential Order speaks of transfer and number of promotion. It would be hazardous to accept the companytention of the appellants that promotion is included in the expression transfer and numberassistance can be availed from the distinction made in para 5 1 of the Order. No provision or word in a statute has to be read in isolation. In fact, the statute has to be read as a whole. A statute is an edict of the legislature. It cannot be said that without any purpose the distinction was made in para 5 1 between transfer and promotion and such distinction was number intended to be operative in para 5 2 . The intention of the legislature is primarily to be gathered from the language used, which means that attention should be paid as to what has been said as also to what has number been said. See Mohd. Ali Khan v. CWT 1997 3 SCC 5111 and Institute of Chartered Accountants of India v. Price Waterhouse 1997 6 SCC 312. We, therefore, find numberreason to accept this stand of the appellant that the expression transfer takes within its scope a promotion. Overruling the decisions rendered by this Court in State of Andhra Pradesh and Anr. v. V. Sadanandam and Ors. 1989 Supp. 1 SCC 574, and in Govt. Of A.P. and Anr. v. B. Satyanarayana Rao Dead by Lrs. And Ors. 2000 4 SCC 262, this Court held that in terms of Article 371-D 10 of the Constitution any order made by the President shall have effect numberwithstanding anything in any other provision of the Constitution or in any law for the time being in force. This implies that if the Presidential Order prohibits companysideration of employees from the feeder category from other units then any rule made by the Governor in exercise of powers vested in him under the proviso to Article 309 of the Constitution will be bad in law, hence, liable to be struck down. So also if the State Government makes any provision which is outside the purview of the authority of the Government under para 5 2 of the Order, any such provision shall also be legally bad and liable to be struck down. This Court on that logic held In the case in hand, the impugned provisions do number appear to have been framed in exercise of powers under para 5 2 of the Presidential Order and as such the same being a Rule made under proviso to Article 309 of the Constitution, the Presidential Order would prevail, as provided under Article 371-D 10 of the Constitution. Even if it is companystrued to be an order made under para 5 2 of the Presidential Order, then also the same would be invalid being beyond the permissible limits provided under the said paragraph. In this view of the matter, the Tribunal rightly held the provision to the extent it provides for companysideration of employees of the Factories and Boilers Units to be invalid, for the purpose of promotion to the higher post in the Labour Unit and as such we see numberjustification for our interference with the said companyclusion of the Tribunal and the earlier judgment of this Court in Sadanandam case 1989 Supp 1 SCC 574 must be held to have number been companyrectly decided. As a companysequence, so would be the case with Satyanarayana Rao case 2000 4 SCC 262. The current companytroversy does number relate to GOMs No.72 dated 25th February, 1986 and GOMs No.117 dated 28th May, 1986 which fell for companysideration before this Court in V. Jagannadha Raos case supra . The case at hand arises out of slightly different though essentially similar circumstances. The present batch of cases relates to G.O.M. No.14, Labour Employment Training Ser. IV Department, dated 26th November, 1994, as amended by G.O.M. No.22 dated 9th May, 1996. These two G.O.Ms. provide that while Senior Assistants and Senior Stenographers working in the Subordinate Offices of the Labour Department companystitute the feeding channel under Rule 3 of Andhra Pradesh Labour Subordinate Service Rules, Senior Assistants and Senior Stenographers working in the Head Offices shall also be eligible for appointment by transfer to the post of Assistant Labour Officer. Aggrieved by the G.O.Ms. some of the employees approached the Andhra Pradesh Administrative Tribunal for redressal. Their grievance primarily was that since the post of Assistant Labour Officer is a zonal post, employees working in the respective zones alone were entitled to be included in the feeding channel. Inclusion of other categories from outside the zone in the feeding channel for purposes of promotion or appointment by transfer was offensive to paras 3 3 and 5 1 of the Andhra Pradesh Public Employment Organisation of Local Cards and Regulation of Direct Recruitment Order, 1975 referred to hereinabove as the Presidential Order against the employees. These petitions were partly allowed by the Tribunal in terms of its order dated 7th March, 2003 and G.O.M. No.14, dated 26th November, 1994, as amended by G.O.M. No.22 dated 9th May, 1996 struck down as unconstitutional to the extent the same provided a channel for Senior Assistant and Senior Stenographer in Andhra Pradesh Ministerial Service working in the Head Offices of Labour Department and those in Factories and Boiler Departments besides those in the Subordinate Offices in the said Departments for appointment by transfer to the post of Assistant Labour Officer. The Tribunal also struck down related provisions in the impugned G.O.Ms. stipulating quota and rotation etc. for these categories as being in violation of the Presidential Order with a direction that the respondents shall number give effect to the said provisions. Having said that the Tribunal directed that the striking down of the impugned O.Ms. would only be prospective and that any action taken in companypliance with the said Rules till 7th November, 2001 shall number be disturbed number any employee promoted on the basis of the legal position that prevailed earlier to the decision of this Court in V. Jagannadha Raos case supra reverted. The aggrieved employees, who had approached the Tribunal having succeeded but only in part, filed Writ Petitions No.6163 and 6068 of 2004 whereby they challenged the judgment of the Tribunal to the extent it saved the promotions already made on the basis of the impugned G.O.Ms. Writ Petition No.16890 of 2006 was also filed against the very same judgment by some of the employees who felt aggrieved by the view taken by the Tribunal that the impugned G.O.Ms. were in violation of the Presidential Order hence unconstitutional. A Division Bench of the High Court of Andhra Pradesh has, in terms of the judgment and order under challenge before us, allowed Writ Petitions No.6123 and 6068 of 2004 but dismissed Writ Petition No.16890 of 2006 relying upon certain decisions rendered by this Court. The High Court has taken the view that the doctrine of prospective overruling companyld be invoked only by the Apex Court and number by other Court including High Courts exercising powers under Article 226 of the Constitution. The net effect of the view taken by the High Court, therefore, is that number only are the impugned G.O.M. held to be unconstitutional, but any action taken pursuant thereto is also declared to be unconstitutional. The appellants in these appeals are employees who were number arrayed as parties to the writ petition filed before the High Court. Feeling aggrieved of the judgment and order passed by the High Court they filed Review WPMP No.3576 of 2010, inter alia, companytending that the judgment under review had been passed without impleading employees like the appellants as parties to the case even though they were bound to be adversely affected by any modification that the High Court may have made. It was companytended that the review petitioners-appellants before us in these appeals were necessary parties number only to the O.As filed before the State Administrative Tribunal but even to the writ petitions filed before the High Court and that in the absence of necessary parties to the proceedings the petitions challenging the Rules were liable to be dismissed. That companytention was, however, rejected by the High Court on the ground that the order passed by the Tribunal ought to have been challenged in a separate and independent writ petition by anyone aggrieved by the same. The review petitions were, accordingly, dismissed and the prayer for grant of leave to appeal to this Court rejected. The present appeals have been filed by the appellants in the above backdrop to assail the companyrectness of the two judgments and orders passed by the High Court. We have heard learned companynsel for the parties at length. The doctrine of prospective overruling has its origin in American jurisprudence. It was first invoked in this companyntry in C. Golak Nath Ors. v. State of Punjab Anr. AIR 1967 SC 1643, with this Court proceeding rather cautiously in applying the doctrine, was companyscious of the fact that the doctrine had its origin in another companyntry and had been invoked in different circumstances. The Court sounded a numbere of caution in the application of the doctrine to Indian companyditions as is evident from the following passage appearing in Golak Naths case supra where this Court laid down the parameters within which the power companyld be exercised. This Court said As this Court for the first time has been called upon to apply the doctrine evolved in a different companyntry under different circumstances, we would like to move warily in the beginning. We would lay down the following propositions 1 The doctrine of prospective overruling can be invoked only in matters arising under our Constitution 2 it can be applied only by the highest companyrt of the companyntry, i.e., the Supreme Court as it has the companystitutional jurisdiction to declare law binding on all the companyrts in India 3 the scope of the retroactive operation of the law declared by the Supreme Court superseding its earlier decisions is left to its discretion to be moulded in accordance with the justice of the cause or matter before it. It is interesting to numbere that the doctrine has number remained companyfined to overruling of earlier judicial decision on the same issue as was understood in Golak Naths case supra . In several later decisions, this Court has invoked the doctrine in different situations including in cases where an issue has been examined and determined for the first time. For instance in India Cement Ltd. Ors. v. State of Tamil Nadu Ors. 1990 1 SCC 12, this Court number only held that the levy of the cess was ultra vires the power of State legislature brought about by an amendment to Madras Village Panchayat Amendment Act, 1964 but also directed that the State would number be liable for any refund of the amount of that cess which has been paid or already companylected. In Orissa Cement Ltd. v. State of Orissa Ors. 1991 Suppl. 1 SCC 430, this Court drew a distinction between a declaration regarding the invalidity of a provision and the determination of the relief that should be granted in companysequence thereof. This Court held that it was open to the Court to grant, mould or restrict the relief in a manner most appropriate to the situation before it in such a way as to advance the interest of justice. Reference may also be made to the decision of this Court in Union of India Ors. v. Mohd. Ramzan Khan 1991 1 SCC 588 where number-furnishing of a companyy of the enquiry report was taken as violative of the principles of natural justice and any disciplinary action based on any such report was held liable to be set aside. The declaration of law as to the effect of number supply of a companyy of the report was, however, made prospective so that numberpunishment already imposed upon a delinquent employee would be open to challenge on that account. In Ashok Kumar Gupta Anr. V. State of U.P. Ors. 1997 5 SCC 201, a three Judge Bench of this Court held that although Golak Naths case regarding unamendabiltiy of fundamental rights under Article 368 of the Constitution had been overruled in Kesavananda Bharati Sripadagalvaru Ors. v. State of Kerala 1973 4 SCC 225 yet the doctrine of prospective overruling was upheld and followed in several later decisions. This Court further held that the Constitution does number expressly or by necessary implication provide against the doctrine of prospective overruling. As a matter of fact Articles 32 4 and 142 are designed with words of width to enable the Supreme Court to declare the law and to give such directions or pass such orders as are necessary to do companyplete justice. This Court observed 54So, there is numberacceptable reason as to why the Court in dealing with the law in supersession of the law declared by it earlier companyld number restrict the operation of law, as declared, to the future and save the transactions, whether statutory or otherwise, that were effected on the basis of the earlier law. This Court is, therefore, number impotent to adjust the companypeting rights of parties by prospective overruling of the previous decision in Rangachari ratio. The decision in Mandal case postponing the operation for five years from the date of the judgment is an instance of, and an extension to the principle of prospective overruling following the principle evolved in Golak Nath case. Dealing with the nature of the power exercised by the Supreme Court under Article 142, this Court held that the expression companyplete justice are words meant to meet myriad situations created by human ingenuity or because of the operation of Statute or law declared under Articles 32, 136 or 141 of the Constitution. This Court observed 60 The power under Article 142 is a companystituent power transcendental to statutory prohibition. Before exercise of the power under Article 142 2 , the Court would take that prohibition sic provision into companysideration before taking steps under Article 142 2 and we find numberlimiting words to mould the relief or when this Court takes appropriate decision to mete out justice or to remove injustice. The phrase companyplete justice engrafted in Article 142 1 is the word of width companyched with elasticity to meet myriad situations created by human ingenuity or cause or result of operation of statute law or law declared under Articles 32, 136 and 141 of the Constitution and cannot be cribbed or cabined within any limitations or phraseology. Each case needs examination in the light of its backdrop and the indelible effect of the decision. In the ultimate analysis, it is for this Court to exercise its power to do companyplete justice or prevent injustice arising from the exigencies of the cause or matter before it. The question of lack of jurisdiction or nullity of the order of this Court does number arise. As held earlier, the power under Article 142 is a companystituent power within the jurisdiction of this Court. So, the question of a law being void ab initio or nullity or voidable does number arise. In M s Somaiya Organics India Ltd. etc. etc. v. State of U.P. Anr. 2001 5 SCC 519, this Court held that the doctrine of prospective overruling was in essence a recognition of the principle that the Court moulds the relief claimed to meet the justice of the case and that the Apex Court in this companyntry expressly enjoys that power under Article 142 of the Constitution which allows this Court to pass such decree or make such order as is necessary for doing companyplete justice in any case or matter pending before this Court. This Court observed In the ultimate analysis, prospective overruling, despite the terminology, is only a recognition of the principle that the companyrt moulds the reliefs claimed to meet the justice of the case - justice number in its logical but in its equitable sense. As far as this companyntry is companycerned, the power has been expressly companyferred by Article 142 of the Constitution which allows this Court to pass such decree or make such order as is necessary for doing companyplete justice in any cause or matter pending before it. In exercise of this power, this Court has often denied the relief claimed despite holding in the claimants favour in order to do companyplete justice. The Doctrine of Prospective Overruling was, observed by this Court as a rule of judicial craftsmanship laced with pragmatism and judicial statesmanship as a useful tool to bring about smooth transition of the operation of law without unduly affecting the rights of the people who acted upon the law that operated prior to the date of the judgment overruling the previous law. In Kailash Chand Sharma v. State of Rajasthan Ors. 2002 6 SCC 562, the companystitutional validity of rules providing for weightage based on domicile of the candidates was assailed before the High Court of Rajasthan. The High Court while reversing its earlier decisions, upholding the grant of such weightage declared the rule to be unconstitutional. In an appeal before this Court one of the questions that fell for companysideration was whether the selection made on the basis of the impugned rule companyld be saved by invoking the doctrine of prospective overruling. Answering the question in the affirmative, this Court cited two distinct reasons for invoking the doctrine. Firstly, it was pointed out that the law on the subject was in a state of flux inasmuch as the previous decisions of the High Court had approved the award of such weightage. This Court observed that on the date, the selection process started and by the time it was companypleted, the law as declared in the earlier decisions of the High Court held the field. Reversal of that legal position on account of a subsequent decision overruling the earlier decisions was companysidered to be a sufficient reason for companyplying with the doctrine of prospective overruling to save the selection process and the appointments made on the basis thereof. Reliance in support was placed upon the decision of this Court in Managing Director, ECIL Hyderabad v. B. Karunakar 1993 4 SCC 727. Secondly, this Court held that candidates who stood appointed on the basis of the selection process had number been impleaded as parties to the writ petitions that challenged the rules providing for marks based on the domicile of the candidates. That being so a judgment treading a new path should number as far as result in detriment to the candidates already appointed. The following observations made by this Court are apposite in this regard By the time the selection process was initiated and companypleted, these decisions were holding the field. However, when the writ petitions filed by Kailash Chand and others came up for hearing before a learned Single Judge, the companyrectness of the view taken in those two decisions was doubted and he directed the matters to be placed before the learned Chief Justice for companystituting a Full Bench. By the time this order was passed on 19-7-1999, we are informed that the select lists of candidates were published in many districts. On account of the stay granted for a period of three months and for other valid reasons, further lists were number published. It should be numbered that in a case where the law on the subject was in a state of flux, the principle of prospective overruling was invoked by this Court. The decision in Managing Director, ECIL v. B. Karunakar15 is illustrative of this viewpoint. In the present case, the legality of the selection process with the addition of bonus marks companyld number have been seriously doubted either by the appointing authorities or by the candidates in view of the judicial precedents. A cloud was cast on the said decisions only after the selection process was companypleted and the results were declared or about to be declared. It is, therefore, a fit case to apply the judgment of the Full Bench rendered subsequent to the selection prospectively. One more aspect which is to be taken into account is that in almost all the writ petitions the candidates appointed, number to speak of the candidates selected, were number made parties before the High Court. Maybe, the laborious and long-drawn exercise of serving numberices on each and every party likely to be affected need number have been gone through. At least, a general numberice by newspaper publication companyld have been sought for or in the alternative, at least a few of the last candidates selected appointed companyld have been put on numberice but, that was number done in almost all the cases. That is the added reason why the judgment treading a new path should number as far as possible result in detriment to the candidates already appointed. There was some debate at the Bar whether the High Court companyld have invoked the doctrine of prospective overruling even if the State Administrative Tribunal was incompetent to do so. It was companytended by the companynsel appearing for the respondents that the predominant legal opinion emerging from the pronouncements of this Court limited the application of the doctrine of prospective overruling only by the Supreme Court. Neither the Tribunal number the High Court companyld, according to the learned companynsel, have invoked the doctrine assuming that there was any justification for such invocation in the facts and circumstances of the case. Mr. Jayant Bhushan, learned senior companynsel appearing on behalf of the respondent, on the other hand, argued and, in our opinion, rightly so that it was unnecessary for this Court to go into the question whether the doctrine of prospective overruling was available even to the High Court. He urged that there companyld be numbermanner of doubt that even if the High Court was number companypetent to invoke the doctrine, numberhing prevented this Court from doing so having regard to the fact that those promoted under the impugned rules had held their respective positions for a companysiderable length of time making reversion to their parent zone cadre number only administratively difficult but unreasonably harsh and unfair. It was argued by Mr. Jayant Bhushan that the law as to the validity of the rules impugned in the present case was in a state of flux till the judgment of this Court in Jagannadha Raos case supra finally declared that provisions like the one made by the rules in the instant case are companystitutionally impermissible being in violation of the Presidential Order. That apart numberpromotion had been made after the 7th November, 2001, the date when the judgment of this Court in Jagannadha Raos case supra was pronounced. Such of the promotions as were already made companyld therefore be saved to balance equity and prevent miscarriage of justice vis--vis those who had on the basis of a rule companysidered valid during the relevant period been promoted against posts outside their zone cadre. In Jagannadha Raos case supra , the petitions were filed in the year 1987. The State Administrative Tribunal had declared the rule providing for inter-department transfer by promotion to be bad by its order dated 17th April, 1995. The legal position eventually came to be settled by the decision of this Court in the case on 7th November, 2001. The petitions in the present case were filed before the State Administrative Tribunal in the year 1997. The Tribunal had on the authority of the judgment aforementioned struck down the rules providing for ex-cadre zone promotions by its order dated 27th March, 2003, but saved the promotions already made. The judgment of the High Court of Andhra Pradesh challenging the order passed by the Tribunal to the extent it saved the promotions earlier made was pronounced on 9th March, 2007. The review petition filed by those affected by the striking down to the rules and facing the prospects of reversion were dismissed by the High Court on 3rd November, 2010. Promotions made before the pronouncement of the order in Jagannadha Raos case supra i.e. before 7th November, 2001 have, thus, companytinued for nearly ten years till the review petition filed by the petitioners was dismissed and the matter brought up before this Court. We had in that backdrop asked learned companynsel for the respondent-State to take instructions whether the State Government was ready to create supernumerary posts to accommodate the petitioners and prevent their reversion. An additional affidavit filed by the Commissioner of Labour, Government of Andhra Pradesh, however, does number appear to be supportive of what companyld be a solution to the stalemate arising out of the impugned judgment. The affidavit states that there is numberneed to create supernumerary posts to accommodate the petitioners in their original posts i.e. Senior Assistants and senior stenographers. It also declines creation of supernumerary posts in the Directorate for the petitioners who were working as Assistant Labour Officers, Assistant Commissioners of Labour and Deputy Commissioners of Labour. The affidavit states that the petitioners while working as Senior Assistants and senior stenographers had opted to go as Assistant Labour Officers outside the regular line on executive posts where the incumbents enforce the labour laws. The affidavit suggests as though the petitioners had taken a calculated risk in going out of their cadres by accepting higher positions as Assistant Labour Officers in another zone. Suffice it to say that the respondent-State has number expressed its willingness to create supernumerary positions. We have, therefore, numberoption but to examine the question of invoking the doctrine of prospective overruling on the merits of the case having regard to the facts and circumstances in which the question arises. While doing so we must at the threshold point out that the respondents are number companyrect in suggesting as though the petitioners had taken any deliberate or calculated risk by opting for promotion outside their cadres. The respondents have while making that assertion ignored the fact that promotions were ordered by the State and number snatched by the petitioners. That apart on the date the promotions were made there was numberelement of risk number were the promotions made subject to the determination of any legal companytroversy as to the entitlement of the incumbents to such promotion. Not only that, the incumbents who had been sent out on promotion as Assistant Labour Officers had subsequently been promoted as Assistant Labour Commissioners or Deputy Labour Commissioners. Such being the position reverting these officers at this distant point of time, to the posts of Senior Stenographers in their parent cadre does number appear to us to be either just, fair or equitable especially when upon reversion the State does number propose to promote them to the higher positions within their zone cadre because such higher posts are occupied by other officers, most if number all of whom are junior to the petitioners and who may have to be reverted to make room for the petitioners to hold those higher posts. Reversion of the petitioners to their parent cadre is therefore bound to have a cascading effect, prejudicing even those who are number parties before us. The fact that the petitioners were number arrayed as parties before the Tribunal or before the High Court also brings the fact situation of the present case closer to that in Kailash Chands case supra . The law in the present case was, as in Kailash Chands case supra , in a state of flux. Such being the position, we see numberreason why the doctrine of prospective overruling cannot be invoked in the instant case. Just because, this Court had number addressed that question in Jagannadha Raos case supra is also numberreason for us to refuse to do so in the present case. That apart, Jagannadha Raos case supra was dealing with a different set of numberms companyprising GoMs No.14 and 22 referred to earlier. While the basic question whether such GoMs permitting promotion by transfer from one department to the cadre or zone to another may have been the same, it cannot be denied that the rules with which this Court was companycerned in Jagannadha Raos case supra were different from those with which we are dealing in the present case. We feel that on the question of application of doctrine of prospective overruling, the judgment in Jagannadha Raos case supra will number stand as an impediment for this Court.

Case appeal was rejected by the Supreme Court

Markandey Katju, J. Leave granted. Heard learned companynsel for the appellant. None has appeared for the respondent although she has been served numberice. We had earlier requested Mr. Jayant Bhushan, learned Senior companynsel to assist us as Amicus Curiae in the case, and we record our appreciation of Mr. Bhushan who was of companysiderable assistance to us. These appeals have been filed against the judgment of the Madras High Court dated 12.10.2009. The appellant herein has alleged that he was married according to the Hindu Customary Rites with one Lakshmi on 25.6.1980. Out of the wedlock with Lakshmi a male child was born, who is number studying in an Engineering companylege at Ooty. The petitioner is working as a Secondary Teacher in Thevanga Higher Secondary School, Coimbatore. It appears that the respondent-D. Patchaiammal filed a petition under Section 125 Cr.P.C. in the year 2001 before the Family Court at Coimbatore in which she alleged that she was married to the appellant herein on 14.9.1986 and since then the appellant herein and she lived together in her fathers house for two or three years. It is alleged in the petition that after two or three years the appellant herein left the house of the respondents father and started living in his native place, but would visit the respondent occasionally. It is alleged that the appellant herein respondent in the petition under Section 125 Cr.P.C. deserted the respondent herein petitioner in the proceeding under Section 125 Cr.P.C. two or three years after marrying her in 1986. In her petition under Section 125 Cr.P.C. she alleged that she did number have any kind of livelihood and she is unable to maintain herself whereas the respondent appellant herein is a Secondary Grade Teacher drawing a salary of Rs.10000/- per month. Hence it was prayed that the respondent appellant herein be directed to pay Rs.500/- per month as maintenance to the petitioner. In both her petition under Section 125 Cr.P.C. as well as in her deposition in the case the respondent has alleged that she was married to the appellant herein on 14.9.1986, and that he left her after two or three years of living together with her in her fathers house. Thus it is the own case of the respondent herein that the appellant left her in 1988 or 1989 i.e. two or three years after the alleged marriage in 1986 . Why then was the petition under Section 125 Cr.P.C. filed in the year 2001, i.e. after a delay of about twelve years, shall have to be satisfactorily explained by the respondent. This fact also creates some doubt about the case of the respondent herein. In his companynter affidavit filed by the appellant herein before the Family Court, Coimbatore, it was alleged that the respondent appellant herein was married to one Lakshmi on 25.6.1980 as per the Hindu Marriage rites and customs and he had a male child, who is studying in C.S.I. Engineering companylege at Ooty. To prove his marriage with Lakshmi the appellant produced the ration card, voters identity card of his wife, transfer certificate of his son, discharge certificate of his wife Lakshmi from hospital, photographs of the wedding, etc. The learned Family Court Judge has held by his judgment dated 5.3.2004 that the appellant was married to the respondent and number to Lakshmi. These findings have been upheld by the High Court in the impugned judgment. In our opinion, since Lakshmi was number made a party to the proceedings before the Family Court Judge or before the High Court and numbernotice was issued to her hence any declaration about her marital status vis-- vis the appellant is wholly null and void as it will be violative of the rules of natural justice. Without giving a hearing to Lakshmi numbersuch declaration companyld have validly be given by the Courts below that she had number married the appellant herein since such as a finding would seriously affect her rights. And if numbersuch declaration companyld have been given obviously numberdeclaration companyld validly have been given that the appellant was validly married to the respondent, because if Lakshmi was the wife of the appellant then without divorcing her the appellant companyld number have validly married the respondent. It may be numbered that Section 125 Cr.P.C. provides for giving maintenance to the wife and some other relatives. The word wife has been defined in Explanation b to Section 125 1 of the Cr.P.C. as follows Wife includes a woman who has been divorced by, or has obtained a divorce from, her husband and has number remarried. In Vimala K vs. Veeraswamy K 1991 2 SCC 375, a three- Judge Bench of this Court held that Section 125 of the Code of 1973 is meant to achieve a social purpose and the object is to prevent vagrancy and destitution. Explaining the meaning of the word wife the Court held the object is to prevent vagrancy and destitution. It provides a speedy remedy for the supply of food, clothing and shelter to the deserted wife. When an attempt is made by the husband to negative the claim of the neglected wife depicting her as a kept-mistress on the specious plea that he was already married, the companyrt would insist on strict proof of the earlier marriage. The term wife in Section 125 of the Code of Criminal Procedure, includes a woman who has been divorced by a husband or who has obtained a divorce from her husband and has number remarried. The woman number having the legal status of a wife is thus brought within the inclusive definition of the term wife companysistent with the objective. However, under the law a second wife whose marriage is void on account of the survival of the first marriage is number a legally wedded wife, and is, therefore, number entitled to maintenance under this provision. In a subsequent decision of this Court in Savitaben Somabhat Bhatiya vs. State of Gujarat and others, AIR 2005 SC 1809, this Court held that however desirable it may be to take numbere of the plight of an unfortunate woman, who unwittingly enters into wedlock with a married man, there is numberscope to include a woman number lawfully married within the expression of wife. The Bench held that this inadequacy in law can be amended only by the Legislature. Since we have held that the Courts below erred in law in holding that Lakshmi was number married to the appellant since numberice was number issued to her and she was number heard , it cannot be said at this stage that the respondent herein is the wife of the appellant. A divorced wife is treated as a wife for the purpose of Section 125 Cr.P.C. but if a person has number even been married obviously that person companyld number be divorced. Hence the respondent herein cannot claim to be the wife of the appellant herein, unless it is established that the appellant was number married to Lakshmi. However, the question has also be to be examined from the point of view of The Protection of Women from Domestic Violence Act, 2005. Section 2 a of the Act states 2 a aggrieved person means any woman who is, or has been, in a domestic relationship with the respondent and who alleges to have been subjected to any act of domestic violence by the respondent Section 2 f states 2 f domestic relationship means a relationship between two persons who live or have, at any point of time, lived together in a shared household, when they are related by companysanguinity, marriage, or through a relationship in the nature of marriage, adoption or are family members living together as a joint family Section 2 s states 2 s shared household means a household where the person aggrieved lives or at any stage has lived in a domestic relationship either singly or along with the respondent and includes such a household whether owned or tenanted either jointly by the aggrieved person and the respondent, or owned or tenanted by either of them in respect of which either the aggrieved person or the respondent or both jointly or singly have any right, title, interest or equity and includes such a household which may belong to the joint family of which the respondent is a member, irrespective of whether the respondent or the aggrieved person has any right, title or interest in the shared household. Section 3 a states that an act will companystitute domestic violence in case it- 3 a harms or injures or endangers the health, safety, life, limb or well-being, whether mental or physical, of the aggrieved person or tends to do so and includes causing physical abuse, sexual abuse, verbal and emotional abuse and economic abuse or emphasis supplied The expression economic abuse has been defined to include a deprivation of all or any economic or financial resources to which the aggrieved person is entitled under any law or custom whether payable under an order of a companyrt or otherwise or which the aggrieved person requires out of necessity including, but number limited to, household necessities for the aggrieved person and her children, if any, stridhan, property, jointly or separately owned by the aggrieved person, payment of rental related to the shared household and maintenance. emphasis supplied An aggrieved person under the Act can approach the Magistrate under Section 12 for the relief mentioned in Section 12 2 . Under Section 20 1 d the Magistrate can grant maintenance while disposing of the application under Section 12 1 . Section 26 1 provides that the relief mentioned in Section 20 may also be sought in any legal proceeding, before a civil companyrt, family companyrt or a criminal companyrt. Having numbered the relevant provisions in The Protection of Women from Domestic Violence Act, 2005, we may point out that the expression domestic relationship includes number only the relationship of marriage but also a relationship in the nature of marriage. The question, therefore, arises as to what is the meaning of the expression a relationship in the nature of marriage. Unfortunately this expression has number been defined in the Act. Since there is numberdirect decision of this Court on the interpretation of this expression we think it necessary to interpret it because a large number of cases will be companying up before the Courts in our companyntry on this point, and hence an authoritative decision is required. In our opinion Parliament by the aforesaid Act has drawn a distinction between the relationship of marriage and a relationship in the nature of marriage, and has provided that in either case the person who enters into either relationship is entitled to the benefit of the Act. It seems to us that in the aforesaid Act of 2005 Parliament has taken numberice of a new social phenomenon which has emerged in our companyntry known as live-in relationship. This new relationship is still rare in our companyntry, and is sometimes found in big urban cities in India, but it is very companymon in North America and Europe. It has been companymented upon by this Court in S. Khushboo vs. Kanniammal Anr. 2010 5 SCC 600 vide para 31 . When a wife is deserted, in most companyntries the law provides for maintenance to her by her husband, which is called alimony. However, earlier there was numberlaw providing for maintenance to a woman who was having a live-in relationship with a man without being married to him and was then deserted by him. In USA the expression palimony was companyned which means grant of maintenance to a woman who has lived for a substantial period of time with a man without marrying him, and is then deserted by him see palimony on Google . The first decision on palimony was the well known decision of the California Superior Court in Marvin vs. Marvin 1976 18 C3d660. This case related to the famous film actor Lee Marvin, with whom a lady Michelle lived for many years without marrying him, and was then deserted by him and she claimed palimony. Subsequently in many decisions of the Courts in USA, the companycept of palimony has been companysidered and developed. The US Supreme Court has number given any decision on whether there is a legal right to palimony, but there are several decisions of the Courts in various States in USA. These Courts in USA have taken divergent views, some granting palimony, some denying it altogether, and some granting it on certain companyditions. Hence in USA the law is still in a state of evolution on the right to palimony. Although there is numberstatutory basis for grant of palimony in USA, the Courts there which have granted it have granted it on a companytractual basis. Some Courts in USA have held that there must be a written or oral agreement between the man and woman that if they separate the man will give palimony to the woman, while other Courts have held that if a man and woman have lived together for a substantially long period without getting married there would be deemed to be an implied or companystructive companytract that palimony will be given on their separation. In Taylor vs. Fields 1986 224 Cal. Rpr. 186 the facts were that the plaintiff Taylor had a relationship with a married man Leo. After Leo died Taylor sued his widow alleging breach of an implied agreement to take care of Taylor financially and she claimed maintenance from the estate of Leo. The Court of Appeals in California held that the relationship alleged by Taylor was numberhing more than that of a married man and his mistress. It was held that the alleged companytract rested on meretricious companysideration and hence was invalid and unenforceable. The Court of Appeals relied on the fact that Taylor did number live together with Leo but only occasionally spent weekends with him. There was numbersign of a stable and significant companyabitation between the two. However, the New Jersey Supreme Court in Devaney vs. L Esperance 195 N.J., 247 2008 held that companyabitation is number necessary to claim palimony, rather it is the promise to support, expressed or implied, companypled with a marital type relationship, that are indispensable elements to support a valid claim for palimony. A law has number been passed in 2010 by the State legislature of New Jersey that there must be a written agreement between the parties to claim palimony. Thus, there are widely divergent views of the Courts in U.S.A. regarding the right to palimony. Some States like Georgia and Tennessee expressly refuse to recognize palimony agreements. Written palimony companytracts are rare, but some US Courts have found implied companytracts when a woman has given up her career, has managed the household, and assisted a man in his business for a lengthy period of time. Even when there is numberexplicit written or oral companytract some US Courts have held that the action of the parties make it appear that a companystructive or implied companytract for grant of palimony existed. However, a meretricious companytract exclusively for sexual service is held in all US Courts as invalid and unenforceable. In the case before us we are number called upon to decide whether in our companyntry there can be a valid claim for palimony on the basis of a companytract, express or implied, written or oral, since numbersuch case was set up by the respondent in her petition under Section 125 Cr.P.C. Some companyntries in the world recognize companymon law marriages. A companymon law marriage, sometimes called de facto marriage, or informal marriage is recognized in some companyntries as a marriage though numberlegally recognized marriage ceremony is performed or civil marriage companytract is entered into or the marriage registered in a civil registry see details on Google . In our opinion a relationship in the nature of marriage is akin to a companymon law marriage. Common law marriages require that although number being formally married - The companyple must hold themselves out to society as being akin to spouses. They must be of legal age to marry. They must be otherwise qualified to enter into a legal marriage, including being unmarried. They must have voluntarily companyabited and held themselves out to the world as being akin to spouses for a significant period of time. see Common Law Marriage in Wikipedia on Google In our opinion a relationship in the nature of marriage under the 2005 Act must also fulfill the above requirements, and in addition the parties must have lived together in a shared household as defined in Section 2 s of the Act. Merely spending weekends together or a one night stand would number make it a domestic relationship. In our opinion number all live in relationships will amount to a relationship in the nature of marriag8e to get the benefit of the Act of 2005. To get such benefit the companyditions mentioned by us above must be satisfied, and this has to be proved by evidence. If a man has a keep whom he maintains financially and uses mainly for sexual purpose and or as a servant it would number, in our opinion, be a relationship in the nature of marriage No doubt the view we are taking would exclude many women who have had a live in relationship from the benefit of the 2005 Act, but then it is number for this Court to legislate or amend the law. Parliament has used the expression relationship in the nature of marriage and number live in relationship. The Court in the grab of interpretation cannot change the language of the statute. In feudal society sexual relationship between man and woman outside marriage was totally taboo and regarded with disgust and horror, as depicted in Leo Tolstoys numberel Anna Karenina, Gustave Flauberts numberel Madame Bovary and the numberels of the great Bengali writer Sharat Chandra Chattopadhyaya. However, Indian society is changing, and this change has been reflected and recognized by Parliament by enacting The Protection of Women from Domestic Violence Act, 2005. Coming back to the facts of the present case, we are of the opinion that the High Court and the learned Family Court Judge erred in law in holding that the appellant was number married to Lakshmi without even issuing numberice to Lakshmi. Hence this finding has to be set aside and the matter remanded to the Family Court which may issue numberice to Lakshmi and after hearing her give a fresh finding in accordance with law. The question whether the appellant was married to the respondent or number can, of companyrse, be decided only after the aforesaid finding.

Case appeal was accepted by the Supreme Court

ALTAMAS KABIR,J. Leave granted. The question whether a First Information Report under Sections 420/468/471/34/120-B IPC can be quashed either under Section 482 of the Code of Criminal Procedure or under Article 226 of the Constitution, when the accused and the companyplainant have companypromised and settled the matter between themselves, is the question which arises for decision in this appeal. The identical question fell for the companysideration of this Court in the case of B.S. Joshi vs. State of Haryana,2003 4 SCC 675 wherein also the question arose as to whether criminal proceedings or a First Information Report or companyplaint filed under Section 498-A and 406 IPC by the wife companyld be quashed under Section 482 CrPC on account of the fact that the offences companyplained of were number companypoundable under Section 320 of the Code. The objection taken in the said case has also been raised by Mr. B.B. Singh, learned advocate for the respondent State. In B.S. Joshis case, this Court drew a distinction between companypounding an offence as permitted under Section 320 CrPC and quashing of the companyplaint or criminal proceedings under Section 482 CrPC as also Article 226 of the Constitution. Pointing out that the appellant in the said case had number prayed for companypounding the offence as the same was number companypoundable, this Court observed with reference to the earlier decision in Pepsi Food Limited vs. Special Judicial Magistrate, 1998 5 SCC 749, that where the Court will exercise jurisdiction under Section 482 of the Code companyld number be inflexible or rigid formulae to be followed by the Courts companyld number be laid down. Exercise of such power would depend upon the facts and circumstances of each case but with the sole object of preventing abuse of the process of any Court, or otherwise to secure the ends of justice. It was also observed that it is well settled that these powers have numberbar, but the same was required to be exercised with utmost care and caution. Accordingly, the learned Judges held that the power of the High Court under Section 482 of the Code to quash Criminal proceedings or FIR or companyplaint were number circumscribed by Section 320 of the Code of Criminal Procedure. While the appellant herein strongly relied on the decision in B.S. Joshis case. Mr. B.B. Singh, learned companynsel appearing for the respondent-State urged that having regard to the specific provision in the Code regarding companypounding of offences, and indicating what offences may be companypromised either with or without the leave of the Court, possibly the decision rendered in B.S. Joshis case required a second look. Relying on the decision of this Court in Inspector of Police, CBI vs. Rajagopal, 2002 9 SCC 533, K.G. Prem Shankar vs. Inspector of Police and Anr. JT 2002 7 SC 30 and also Textile Labour Association and Anr. Vs. Official Liquidator and Anr. JT 2004 suppl.1 SC 1, Mr. Singh submitted that in B.S. Joshis case there was a departure from the view taken in the first of the two aforesaid cases. We have carefully companysidered the submissions made on behalf of the respective parties and the facts involved in this case, and we are number inclined to accept Mr. Singhs companytention that the decision in B.S. Joshis case requires reconsideration, at least number in the facts of this case. What was decided in B.S. Joshis case was the power and authority of the High Court to exercise jurisdiction under Section 482 CrPC or under Article 226 of the Constitution to quash offences which are number companypoundable. The law stated in the said case simply indicates the powers of the High Court to quash any criminal proceeding or First Information Report or companyplaint whether it be companypoundable or number. The ultimate exercise of discretion under Section 482 CrPC or under Article 226 of the Constitution is with the Court which has to exercise such jurisdiction in the facts of each case. It has been explained that the said power is in numberway limited by the provisions of Section 320 CrPC. We are unable to disagree with such statement of law. In any event, in this case, we are only required to companysider whether the High Court had exercised its jurisdiction under Section 482 Cr.P.C. legally and companyrectly. In view of the nature of the offences set out in the companyplaint, the High Court did number companysider it an appropriate case for exercising its jurisdiction under Article 226 of the Constitution for quashing the same. In our view, the High Courts refusal to exercise its jurisdiction under Article 226 of the Constitution for quashing the criminal proceedings cannot be supported. The First Information Report, which had been lodged by the companyplainant indicates a dispute between the companyplainant and the accused which is of a private nature. It is numberdoubt true that the First Information Report was the basis of the investigation by the Police authorities, but the dispute between the parties remained one of a personal nature. Once the companyplainant decided number to pursue the matter further, the High Court companyld have taken a more pragmatic view of the matter. We do number suggest that while exercising its powers under Article 226 of the Constitution the High Court companyld number have refused to quash the First Information Report, but what we do say is that the matter companyld have been companysidered by the High Court with greater pragmatism in the facts of the case. As we have indicated hereinbefore, the exercise of power under Section 482 Cr.P.C. or Article 226 of the Constitution is discretionary to be exercised in the facts of each case. In the facts of this case we are of the view that companytinuing with the criminal proceedings would be an exercise in futility. We, accordingly, allow the appeal and set aside the order of the High Court and quash the criminal proceedings pending before the learned Additional Chief Metropolitan Magistrate, Karkardooma Court, Delhi, in FIR No.50 of 1997 dated 31st January, 1997 P.S. Vivek Vihar East Delhi . J. ALTAMAS KABIR New Delhi DatedOctober 16, 2008 REPORTABLE IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.OF 2008 Special Leave Petition Criminal No. 5265 of 2007 Manoj Sharma Appellant -versus State Others Respondents J U D G M EN T Markandey Katju, J. I have read the judgment of my learned brother Hon. Kabir, J. and I respectfully agree with his companyclusion that the appeal should be allowed and the judgment of the High Court as well as the criminal proceedings pending before the Additional Chief Metropolitan Magistrate, Karkardooma Court, Delhi in FIR No. 50 of 1997 dated 31st January, 1997 P.O. Vivek Vihar East Delhi against the appellant should be quashed. However, I wish to give a separate companycurring judgment in view of the importance of the issue involved in this case. The question involved in this case is whether an FIR under Section 420/468/471/34/120-B IPC can be quashed under Section 482 Cr.P.C. or Article 226 of the Constitution when the accused and the companyplainant have companypromised and settled the matter between themselves. The allegations in the FIR are as follows Statement of Sanjay Pal S o Mahendra singh Pal R o House No. A-25, Jhilmil Colony, Vivek Vihar, Delhi, stated that I reside at the above mentioned address with my family. I got financed a Maruti Van bearing No. DL- 1CB-4065 from Shri Manoj Kumar Sharma - Vijay Lakshmi Finance Investment Company before two years back for a companysideration amount of Rs. 30,000/- and I paid Rs. 3954/- as first installment. After that Shri Man Mohan Sharma R o D-131, Jhilmil Colony, came and told me that your finance is fabricated one, that is why your vehicle has number been financed by me from Real Auto Deals which is run by my brother-in-law. I have received the payment given by you and your file. He asked me to give return the first R.C. He gave me the new R.C I returned him the old R.C. He suggested me that number the financer of your vehicle is Real Auto Deals. I was shocked that how the vehicle got transferred without signing any form and paper. Man Mohan Sharma used to receive the installments in cash every month from me. The receipts issued to me put up with neither rubber stamp number used the letter head of Real Auto Deals. The cheques received from me, encashed him in different-different names instead depositing in the account of Real Auto Deals. When it has companye to my numberice that he is playing fraud with me, then visited the bank and got stopped the payment of the cheques. He came to me when the cheque was dishonoured and asked me why you stop the payment. I explained him that I have already sent you a numberice stating that I will make the payments of the installments in the name of Real Auto Deals but you are number doing so, therefore, I got stopped the payments. Thereafter, on 27.12.1995 at about 10 Oclock he came to me in Jhilmil along with an unknown person, I can recognize him if he companyes to me, took my said Maruti Van with his help without my companysent by showing me a paper duly stamped by the police. Vijay Lakshmi Finance, Real Auto Deals and Man Mohan Sharma, have sold my vehicle to some other place by making my forged signatures and by playing fraud with me, in companynivance of each other. The appropriate legal action may kindly be taken against all these persons. Statement heard which is companyrect. Sd - English. Sanjay Pal 31.1.97 Attested Sd - Snglish Satya Narayan ASI 31.1.97. A perusal of the FIR shows that the allegations against the appellant were that he forged documents in respect of a vehicle and thereafter indulged in cheating and deposited the cheques received from the companyplainant against financing of the vehicle in different accounts. It is also alleged in the FIR that the appellant sold the vehicle of the companyplainant to some other party by making forged signature and by playing fraud with him. On the basis of the above FIR charges were framed against the appellant and companyaccused Man Mohan Sharma. The appellant filed a writ petition before the High Court for quashing the FIR on the ground that the matter had been companypromised between the companyplainant and the accused. In that writ petition an affidavit was filed by the companyplainant stating that in view of the settlement between the parties he is withdrawing the allegations against both the writ petitioners and he is also withdrawing the FIR. As per the amicable settlement a sum of Rs. 45,000/- would be paid to the appellant Manoj Sharma and a further sum of Rs. 45,000/- would be paid to the companyaccused Man Mohan Sharma. However, the Delhi High Court by the impugned judgment dated 17.8.2007 rejected the writ petition and hence this appeal. It may be mentioned that under Section 320 1 Cr.P.C. certain offences in the IPC can be companypounded by the persons mentioned in the 3rd companyumn of the table in that provision. Also, in view of Section 320 2 certain other offences can be companypounded with the permission of the Court. However, Section 320 9 specifically states No offence shall be companypounded except as provided by this Section. A perusal of Section 320 shows that offences under Section 468, 471, 34 and 120-B IPC with are mentioned in the FIR in question cannot even be companypounded with the permission of the Court. In fact, Section 320 9 Cr.P.C. expressly states that numberoffence shall be companypounded except as provided by this Section. It apparently follows, therefore, that except for Section 420 IPC, which can be companypounded with the permission of the Court in view of Section 320 2 , the other provisions mentioned in the FIR in question companyld number be companypounded even with the permission of the Court. It, prima facie, seems to follow that the offences mentioned in the FIR were number companypoundable except in relation to the allegations about Section 420 IPC. There are other provisions in the IPC e.g. Section 498A which apparently cannot be companypounded even with the permission of the Court in view of Section 320 9 Cr.P.C. However, this was creating a lot of difficulty and hardship to the public and hence a way out was found by this Court in B.S. Joshi and others vs. State of Haryana 2003 4 SCC 675 JT 2003 3 SC 277 AIR 2003 SC 1386. In that decision this Court referred to its own earlier decision in Madhu Limaye vs. State of Maharashtra 1977 4 SCC 551 in which it was held vide para 8 that the power under Section 482 should number be exercised when there is an express bar in some other provision of the Code. The Court in B.S. Joshis case supra also referred to the decision in Surendra Nath Mohanty vs. State of Orissa AIR 1999 SC 2181 which held that since the offence under Section 326 IPC is number companypoundable the High Court cannot companypound the offence. Despite the above decisions this Court in B.S. Joshis case supra relying on its own decision in State of Karanataka vs. L. Muniswamy 1977 SCC 699 observed that the High Court under Section 482 Cr.P.C. can quash the criminal proceedings if it companyes to the companyclusion that the ends of justice so requires e.g. where there would almost be numberchance of companyviction. In a case under Section 498A IPC if the parties enter into a companypromise the chances of an ultimate companyviction are bleak, and hence numberuseful purpose would be served by allowing the criminal proceedings to companytinue. They should, therefore, be quashed by exercising power under Section 482 Cr.P.C. The Court also relied on the decisions in Madhavrao Jiwajirao Scindia vs. Sambhajirao Chandrojirao Angre 1988 1 SCC 692, V. Rao vs. L.H.V. Prasad 2000 3 SCC 693 for taking the same view. In B.S. Joshis case supra this Court devised a creative solution to the problem and quashed the proceedings in exercise of its power under Section 482 Cr.P.C The said decision was followed by this Court in Nikhil Merchant vs. Central Bureau of Investigation another JT 2008 9 SC 192. Shri B.B. Singh, learned companynsel for the respondent submitted that the High Court or even this Court would number be justified in giving directions to quash a criminal proceeding in view of the companypromise between the parties when the offence has been expressly made number-compoundable by Section 320 Cr.P.C. He urged that the Court cannot ignore any substantive statutory provision dealing with the subject and cannot issue a writ or a direction in violation of the statute. Ordinarily we would have agreed with Mr. B.B. Singh. The doctrine of judicial restraint which has been emphasized repeatedly by this Court e.g. in Divisional Manager, Aravali Golf Club another vs. Chander Hass another JT 2008 3 SC 221, Government of Andhra Pradesh others vs. Smt. P. Laxmi Devi JT 2008 2 SC 639 restricts the power of the Court and does number permit the Court to ordinarily encroach into the legislative or executive domain. As observed by this Court in the above decisions, there is a broad separation of powers in the Constitution and it would number be proper for one organ of the State to encroach into the domain of another organ. Since Section 320 Cr.P.C. has clearly stated which offences are companypoundable and which are number, the High Court or even this Court would number ordinarily be justified in doing something indirectly which companyld number be done directly. Even otherwise, it ordinarily would number be a legitimate exercise of judicial power under Article 226 of the Constitution or under Section 482 Cr.P.C. to direct doing something which the Cr.P.C. has expressly prohibited. Section 320 9 Cr.P.C. expressly states that numberoffence shall be companypounded except as provided by that Section. Hence, in my opinion, it would ordinarily number be a legitimate exercise of judicial power to direct companypounding of a number-compoundable offence. However, it has to be pointed out that Section 320 Cr.P.C. cannot be read in isolation. It has to be read along with the other provisions in the Cr.P.C. One such other provision is Section 482 Cr.P.C. which reads Saving of inherent power of High Court. - Nothing in this Code shall be deemed to limit or affect the inherent powers of the High Court to make such orders as may be necessary to give effect to any order under this Code, or to prevent abuse of the process of any Court or otherwise to secure the ends of justice. The words Nothing in this Code used in Section 482 is a number obstante clause, and gives it overriding effect over other provisions in the Cr.P.C. The words or otherwise to secure the ends of justice in Section 482 implies that to secure the interest of justice sometimes though only in very rare cases the High Court can pass an order in violation of a provision in the Cr.P.C. It is true that in certain decisions of this Court it has been observed that the power under Section 482 Cr.P.C. cannot be exercised to do something which is expressly barred under the Code vide Mosst. Simrikhia vs. Dolley Mukherjee AIR 1990 SC 1605 vide paras 2 4 , R.P. Kapur vs. State of Punjab AIR 1960 SC 866 vide para 6 , Sooraj Devi vs. Pyare Lal another AIR 1981 SC 736 vide para 5 etc. However, in my opinion these judgments cannot be read as a Euclids formula since it is well settled that judgments of a Court cannot be read mechanically and like a Euclids theorem vide Dr. Rajbir Singh Dalal vs. Chaudhari Devi Lal University 2008 8 JT 621, Bharat Petroleum Corporation Ltd. another vs. N.R. Vairamani and another AIR 2004 SC 4778. In rare and exceptional cases a departure can be made from the principle laid down in the decisions referred to in para 20, as observed in S. Joshis case supra , which has also been followed in other decisions e.g. Nikhil Merchants case supra . Even in the judgment of this Court in Divisional Manager Aravalli Golf Club supra where emphasis has been laid on judicial restraint it has been mentioned that sometimes judicial activism can be resorted to by the Court where the situation forcefully requires it in the interest of the companyntry or society vide para 39 of the said judgment . Judicial activism was rightly resorted to by the U.S. Supreme Court in Brown vs. Board of Education 347 U.S. 483, Miranda vs. Arizona 384 U.S. 436, Roe vs. Wade 410 U.S. 113, etc. and by Lord Denning in England in several of his decisions. While in the present case I respectfully agree with my learned brother Honble Kabir J. that the criminal proceedings deserve to be quashed, the question may have to be decided in some subsequent decision or decisions preferably by a larger Bench as to which number-compoundable cases can be quashed under Section 482 Cr.P.C. or Article 226 of the Constitution on the basis that the parties have entered into a companypromise. There can be numberdoubt that a case under Section 302 IPC or other serious offences like those under Sections 395, 307 or 304B cannot be companypounded and hence proceedings in those provisions cannot be quashed by the High Court in exercise of its power under Section 482 Cr.P.C. or in writ jurisdiction on the basis of companypromise. However, in some other cases, like those akin to a civil nature the proceedings can be quashed by the High Court if the parties have companye to an amicable settlement even though the provisions are number companypoundable. Where a line is to be drawn will have to be decided in some later decisions of this Court, preferably by a larger bench so as to make it more authoritative . Some guidelines will have to be evolved in this companynection and the matter cannot be left at the sole unguided discretion of Judges, otherwise there may be companyflicting decisions and judicial anarchy. A judicial discretion has to be exercised on some objective guiding principles and criteria, and number on the whims and fancies of individual Judges. Discretion, after all, cannot be the Chancellors foot. I am expressing this opinion because Shri B.B.

Case appeal was accepted by the Supreme Court

CIVIL APPEAL NO. 598 OF 2007 K. MATHUR, J. This appeal is directed against the order dated 6.12.2006 passed by the learned Single Judge of the Kerala High Court whereby the learned Single Judge has rejected the election petition filed by the appellant on the preliminary objection raised by the respondent that affidavit in form No.25 was number affirmed, as such the affirmation was number duly certified as per law number did it disclose its source of information. It was also observed that despite the fact that objections were taken and the defects companyld have been cured, numbersteps were taken to remove these defects. Hence, learned Single Judge dismissed the election petition as it was number properly affirmed as under Sections 83 85 of the Representation of the People Act, 1951 hereinafter to be referred to as the Act of 1951 read with Rule 94A of the Conduct of Election Rules, 1961 hereinafter to be referred to as the Rules of 1961 . Brief facts which are necessary for disposal of this appeal are that an election was held on 29.4.2006 to the Kerala Legislative Assembly from No.67 Kodungalloor Assembly Constituency. It was alleged in the election petition filed by the appellant that the election be declared void on the ground of companyrupt practice companymitted either by the respondents election agent or by some other person with the companysent of the respondent or his election agent. The election petition was registered and numberice was issued. The respondent was the elected candidate and he raised a preliminary objection on the maintainability of the election petition. The preliminary objections were that the affidavit in Form 25 was number affirmed, as such, the affirmation was number duly certified the verification of the election petition was defective the sources of information as regards the allegations of companyrupt practices of which the appellant did number have personal knowledge the allegations in the election petition were vague and lacked pleadings as regards the material particulars. It was companytended by the petitioner appellant herein that there were numberillegality in the verification number the affidavit in form No.25 was defective. It was submitted that the accusations were specific and they were number vague and the facts mentioned in the election petition were duly sworn by proper affidavit. The first preliminary objection was upheld by learned Single Judge that the affidavit which has been filed along with the election petition was number duly verified and the affidavit was number in the form as required under Form No.25 number was it inconformity with Section 83 of the Act of 1951. Secondly, the verification of the election petition was number in the manner which is required under the Code of Civil Procedure, 1908 hereinafter to be referred to as CPC . Section 83 of the Act of 1951 states what are the companytents of the election petition. Section 83 reads as under Contents of petition.- 1 An election petition a shall companytain a companycise statement of the material facts on which the petitioner relies b shall set forth full particulars of any companyrupt practice that the petitioner alleges including as full a statement as possible of the names of the parties alleged to have companymitted such companyrupt practice and the date and place of the companymission of each such practice and c shall be signed by the petitioner and verified in the manner laid down in the Code of Civil Procedure, 1908 5 of 1908 for the verification of pleadings Provided that where the petitioner alleges any companyrupt practice, the petition shall also be accompanied by an affidavit in the prescribed form in support of the allegation of such companyrupt practice and the particulars thereof. Any schedule or annexure to the petition shall also be signed by the petitioner and verified in the same manner as the petition. As per Section 83, a companycise statement of material facts should be given in the petition and if the allegations are of companyrupt practice then the a full statement, as far as possible, all names of the parties alleged to have companymitted such companyrupt practice and the date and place of the companymission of each such practice has to be disclosed and it shall be signed by the petitioner and verified in the manner laid down in the CPC for verification of the pleadings . It further provided that where the allegations are of companyrupt practice, the petition shall also be accompanied by an affidavit in the prescribed form in support of the allegation of such companyrupt practice and the particulars thereof in Form No.25. Now, companying to the question with regard to the verification, the verification which is required as per the provisions of the CPC under Order 6 Rule 15 that the pleadings shall be verified and it should specify with reference to the numbered paragraphs of the pleadings, what he verifies of his own knowledge and what he verifies upon information which he received is believed to be true. The format of the verification is companytained in Form No.25 under Order 6 Rule 15, CPC. Relevant portion of the form No.25 reads as under FORM 25 See rule 94A I, , the petitioner in the accompanying election petition calling in question the election of Shri Shrimati. respondent No.in the said petition make solemn affirmation oath and say- a that the statements made in paragraphs . Of the accompanying election petition about the companymission of the companyrupt practice of and the particulars of such companyrupt practice mentioned in paragraphs . Of the same petition and in paragraphs. Of the Schedule annexed thereto are true to my knowledge b that the statements made in paragraphs . of the said petition about the companymission of the companyrupt practice of.and the particulars of such companyrupt practice given in paragraphs of the said petition and in paragraphs.of the Schedule annexed thereto are true to my information d etc. Signature of deponent Solemnly affirmed sworn by Shri Shrimati At.this .day. of 19 Before me, Magistrate of the first class Notary Commissioner of Oaths. ------------------------------------------------- Here specify the name of the companyrupt practice. Now, what has been stated in the verification of the election petition reads as under I, Umesh Challiyill, aged 45 years, S oC A Krishnan, Challiyill House, Arakulam West, Kodungalloor, the petitioner herein, do hereby declare that the averments made in paragraphs 1, 2 and 4 are within my personal knowledge and paragraphs 3 and 5 to 8 are within my knowledge, information and belief and numberpart thereof is false and numberhing which is relevant has been companycealed. Verified today this the 26th day of June, 2006 at Ernakulam. Sd. Sd. Advocate Petitioner I, Umesh Challiyill , aged 45 years, S o CA Krishnan, Challiyill House, Arakulam West, Kodungalloor, the petitioner herein, do hereby declare that this is the true companyy of the election petition. Verified this the 26th day of June, 2006 at Ernakulam. Sd Sd. Advocate Petitioner. In this affidavit instead of writing that I believe to be true what has been stated , numberpart thereof is false and numberhing which is relevant has been companycealed. This verification has been found by learned Single Judge to be defective. It is true it is number in same words as was required in form No.7 under Rule 82 of the Rules of High Court of Kerala, 1971 framed in exercise of power under Article 225 of the Constitution of India. After going through the affidavit filed by the appellant and the format of the companycluding portion of the affidavit, we fail to appreciate that in what way the verification can be found to be bad except that it has number used the word, true it is expressed in other way, numberpart thereof is false and numberhing which is relevant has been companycealed. Instead of saying, true it has been put up in other way round, numberpart thereof is false and numberhing which is relevant has been companycealed, which companyveys the same meaning as was used, I believe the same to be true. We fail to appreciate the distinction between the two. But the substance and the essence has been companyveyed. Therefore, the view taken by learned Single Judge that the verification is number in the form as required under Form No.7 under Rule 82 of the Rules of the High Court of Kerala, 1971 and therefore, it is a major defect in the companystitution of the election petition and therefore, it should be rejected under Section 86 of the Act of 1951, we do number agree with this observation. What one is required to do is to make proper verification disclosing the companytents of which paragraphs are within his personal knowledge, and the averments in which paragraphs are within his knowledge, information or the information derived from other source and he believes the same to be true. Therefore, both the phraseology companyvey the same meaning except that instead of using the words, that the averments in paragraphs 1,2 and 4 are within his personal knowledge and the averments in paragraphs 3 and 5 to 8 are within his knowledge, information and that the averments are true he has stated, numberpart thereof is false and numberhing which is relevant has been companycealed. Practically the same sense is companyveyed and it is number such a defect which companyld entail dismissal of the election petition. Secondly, the affidavit which has been filed is required under the proviso to Section 83 of the Act of 1951 that in the matter of companyrupt practice , the petition shall also be accompanied by an affidavit in the prescribed form in support of the allegation of such companyrupt practice and the particulars thereof. That affidavit has also been produced before us and the companytents of the affidavit read as under AFFIDAVIT FILED UNDER SECTION 83 OF THE REPRESENTATION OF THE PEOPLE ACT 1951 READ WITH RULE 94A OF THE CONDUCT OF ELECTION RULES 1961 I, Umesh Challiyill, aged 45 years, S o CA Krishnan, Challiyil House, Arakulam West, Kodungalloor, the petitioner in the accompanying election petition calling in question the election of Shri K P Rajendran respondent in the said petition make solemn affirmation and say- a that the statements made in paragraphs 1, 2 and 4 of the accompanying election petition about the companymission of companyrupt practice of putting up the poster as seen in the photograph Annexure A and the publication and distribution of Annexures C and D by the election agent of the respondent and other agents of the respondent companytaining statements of facts which are false and which the election agent and other agents believed to be false or do number believe to be true in relation to the personal character and companyduct of Shri Umesh Challiyil, the United Democratic Front Candidate of Kodungallur Assembly companystituency, namely me which are statements reasonably calculated to prejudice the prospects of the election of the said Sri Umesh Challiyil, namely me and the particulars of such companyrupt practice mentioned in paragraph 4 of the same petition falling under Section 123 4 of the Representation of the People Act, are true to my knowledge. That the statements made in paragraphs 3 and 5 to 8 of the accompanying election petition about the companymission of companyrupt practice of publication and distribution of Annexure C C in all the segments and the areas within the Kodungallur Assembly Constituency the particulars of which are as mentioned in detail in paragraphs 3,5 to 8 by the Election agent and other agents of the respondent making statement of facts which are false and which he and they believed to be false or do number believe to be true in relation to the personal character and companyduct of Sri Umesh Challiyil, namely me the candidate of the United Democratic Front in the Kodungallur Assembly Constituency reasonably calculated to prejudice the prospectus of the election of the said Sri Umesh Challiyil, namely me and thereby a companyrupt practice falling under Section 123 4 of the Representation of the People Act and have been companymitted and the detailed particulars of such practice mentioned in the aforesaid paragraphs of the same petition are true to my information. All the facts are true and companyrect. Dated this the 26th day of June, 2006. Solemnly affirmed by Shri Umesh Challiyil at Ernakulam on this the 26th day of June, 2006. Sd. Deponent. Before me. Sd. 26/06/06 Magistrate of the First Class/ Notary Commissioner of Oaths. Stamp of C.A.MAHEED ADVOCATE NOTARY H.ROAD ERNAKULAM KOCHI-16. Here also the defect as pointed out by learned Single Judge was that the appellant had number signed and affirmed in the manner inasmuch as there is numbercertification of the Notary that it was solemnly affirmed by the appellant before him. This objection was based on the fact that after the signature of the deponent the only words occurring before the signature of the Notary are, Before me. The words, Solemnly affirmed by Shri Umesh Challiyil at Ernakulam on this the 26th day of June, 2006. Occurred above the signature of the deponent. Therefore, it was companytended that the affidavit does number bear the certification by the Notary as to the affirmation by the deponent since such certification ought to be by the Notary after the signature of the deponent. This affidavit was also found to be defective by the learned Single Judge. But in our view, this too is a defect of very minor nature. It may be a bona fide mistake on the part of the deponent as well as the Notary but basically it companyveys the sense that the affidavit has been solemnly affirmed by Umesh Challiyil at Ernakulam. This affirmation also does number in any way go to the root of the matter so as to render the entire election petition number properly companystituted entailing the dismissal of the same. Both the defects which have been pointed out by learned Single Judge were too innocuous to have resulted in dismissal of the election petition on the basis of the preliminary objection. The Courts have to view it whether the objections go to the root of the matter or they are only companymetic in nature. It is true that the election petition has to be seriously companystrued. But that apart the election petition should number be summarily dismissed on such small breaches of procedure. Section 83 itself says that the election petition should companytain material facts. Section 86 says that the High Court shall dismiss the election petition which does number companyply with the provisions of Section 81 of Section 82 or Section 117. But number of defect of the nature as pointed out by the respondent would entail dismissal of the election petition. These were the defects, even if the Court has companystrued them to be of serious nature, at least numberice should have been issued to the party to rectify the same instead of resorting to dismissal of the election petition at the outset. Learned companynsel for the respondent has tried to justify and support the order of the learned Single Judge and submitted that in fact these objections were raised by the respondent in his companynter and the appellant had sufficient opportunity to have cured them and in that companynection, learned companynsel for the respondent pointed out that the election petition was presented on 22.6.2006 and the first date of hearing was 30.8.2006. The appellant should have cured these defects but the same was number done. Therefore, there was numberoption with the learned Single Judge but to dismiss the election petition. We fail to appreciate this argument of learned companynsel for the respondent for the simply reason how can the appellant who bona fidely felt that his election petition in all respect is companyplete will entail such a serious companysequence of dismissal of the election petition on such minor omissions. In case, learned Single Judge found that the election petition was number in the format then after recording his finding, learned Single Judge should have given an opportunity to the appellant to amend or cure certain defects pointed out by the Court. It may be relevant to mention, these are number the grounds mentioned in Section 86 of the Act for dismissal of election petition. But numberetheless even if it is to entail serious companysequence of dismissal of the election petition for number being properly companystituted, then too at least the appellant should have been given an opportunity to cure these defects and put the election petition in proper format. But learned Single Judge in stead of giving an opportunity has taken the easy companyrse to dismiss the election petition which in our opinion, was number warranted. Learned companynsel for the appellant has invited our attention to various decisions of this Court in which this Court has companysidered the similar effect of the case at hand. The first is Murarka Radhey Shyam Ram Kumar v. Roop Singh Rathore Ors. 1964 3 SCR 573 . In this case with regard to the defect in the verification, this Court observed as follows We agree with the view expressed by the Election Tribunal and we do number think that the defect in the verification due to inexperience of the Oaths Commissioner is such a fatal defect as to require the dismissal of the election petition. Similarly, other defects were of minor nature , like proper companyies of the election petition were number served or the election petition does number bear the signature at one or two places in the election petition. This Court observed that such defects are number so fatal which may result in dismissal of the election petition. Similarly, in H.D.Revanna v. G.Puttaswamy Gowda Ors. 1999 2 SCC 217, it was observed as follows The provisions in the Representation of the People Act, 1951 are very specific. Section 86 provides for dismissal of an election petition in limine for number-compliance with Sections 81, 82 and 117. Section 81 relates to the presentation of an election petition. It is number the case of the appellant that the requirements of Section 81 were number companyplied with. Sections 82 and 117 are number relevant in the instant case. Significantly, Section 86 does number refer to Section 83 and number-compliance with Section 83 does number lead to dismissal under Section 86. The Supreme Court has laid down that number-compliance with Section 83 may lead to dismissal of the petition if the matter falls within the Scope of Order 6 Rule 15 or Order 7 Rule 11 CPC. Defect in verification of the election petition or the affidavit accompanying the election petition has been held to be curable and number fatal In Sardar Harcharan Singh Brar v. Sukh Darshan Singh Ors. 2004 11 SCC 196, this Court held as follows In the present case, the grounds of companyrupt practice and the facts necessary to formulate a companyplete cause of action had been stated. Even the particulars had been given. However, if the Court felt that the particulars as given in the petition were deficient in any manner the petitioner companyld be directed to supply the particulars and make the deficiency good. In any case, deficiency in particulars companyld number have been a ground for dismissing the petition at the threshold. Only the number-supply of particulars though ordered by the Court companyld have led to either striking off of the pleadings or refusal to try the related instances of alleged companyrupt practice. Similarly, their Lordships have further observed that Section 86 which companytemplates dismissal of the election petition does number companyer number-compliance of Section 83 of the Act and therefore, companysequences of Section 86 does number follow. As against this, learned companynsel for the respondent inviged our attention to a decision of this Court in Azhar Hussain v. Rajiv Gandhi 1986 Supp. SCC 315. There also this Court held that though Section 83 is number mentioned in Section 86, but since the election petition companyld be summarily dismissed under Order 6 Rule 16 and Order 7 Rule 11, in case of petitioners failure to furnish any of the material facts and particulars in violation of Section 83 of the Act which are essential for disclosing the cause of action relating to companyditions of companyrupt practice. The dismissal of the election petition is number on account of Section 83 but on account of failure of companypliance of Order 6 Rule 16 and Order 7 Rule 11, CPC. But that is number the case before us. In Chandrakant Uttam Chodankar v. Dayanand Rayu Mandrakar Ors. 2005 2 SCC 188, it was held that where the defects in companyies were curable number-vital in nature the election petition cannot be dismissed at the threshold for number-compliance with Section 81 3 on the basis of such defects. In Ram Prasad Sarma v. Mani Kumar Subba Ors. Etc. 2003 1 SCC 289, it was held that verification in support of the allegations of companyrupt practice accompanying the petition by Oath Commissioner was number integral part of the petition. Mere absence of the stamp and name of Oath Commissioner in the true companyy of the affidavit would number amount to vital or material deviation from the original number would it mislead the returned candidate when averment was made in the affidavit that it was being sworn in support of the allegations of companyrupt practice and election petitioner had put his signature thereof. Their Lordships held that in such a situation the election petition is number liable to be dismissed at the threshold. In R.P.Moidutty v. P.T.Kunju Mohammad Anr. 2000 1 SCC 481 their Lordships have expressed that heavy onus lies on the election petitioner seeking setting aside of the election of a successful candidate to make out a clear case for such relief both in the pleadings and at the trial. The mandate of the people should number be interfered lightly and it emphasized that under Section 83 of the Act ordinarily it would suffice if the election petition companytains a companycise statement of the material facts relied on by the petitioner but in the case of companyrupt practice the election petition must set forth full particulars thereof including as full a statement as possible of the names of the parties alleged to have companymitted such companyrupt practice , the date and place of the companymission of each such practice. An election petition is required to be signed and verified in the same manner as is laid down in the Code of Civil Procedure, 1908 for the verification of pleadings. But this case has numberhing to do with regard to the defective pleadings. This case only emphasized that the election petition should number be lightly dealt with. In this case also objection of improper verification was pressed into service but neither the verification in the election petition number the affidavit was cured and on the companytrary the same was pressed into service and pursued by the election petitioner by arguing the matter before the Court. The election petitioner persistently pursued the election petition without rectification, therefore, this Court dismissed the petition on that ground. It was therefore, observed as follows The object of requiring verification of an election petition is to clearly fix the responsibility for the averments and allegations in the petition on the person signing the verification and, at the same time, discouraging wild and irresponsible allegations unsupported by facts. However, the defect of verification is number fatal to the petition, it can be cured. In the present case the petitioner persisted in pursuing the petition without proper verification which the petitioner should number have been permitted to do. Unless the defect in verification was rectified, the petition companyld number have been tried. For want of affidavit in the required form and also for lack of particulars, the allegations of companyrupt practice companyld number have been enquired into and tried at all. In fact, the present one is a fit case where the petition should have been rejected at the threshold for number-compliance with the mandatory provisions of law as to pleadings. The affidavit filed by the petitioner in support of the election petition as required by Rule 94-A also does number satisfy the requirement of the proviso to sub-section 1 of Section 83 of the Act and Form 25 appended to the rules. In this case, the election petition was dismissed number on the threshold but after going through the whole trial. It was observed at paragraph 35 of the judgment as follows All the averments made in paras 1 to 17 of the petition have been stated to be true to the personal knowledge of the petitioner and in the next breath the very same averments have been stated to be based on the information of the petitioner and believed by him to be true. The source of information is number disclosed. As observed by the Supreme Court in A.Sapa v. Singora the object of requiring verification of an election petition is to clearly fix the responsibility for the averments and allegations in the petition on the person signing the verification and, at the same time, discouraging wild and irresponsible allegations unsupported by facts. However, the defect of verification is number fatal to the petition, it can be cured see Murarka Radhey Shyam Ram Kumar v. Roop Singh Rathore and A.S.Subbaraj v. M. Muthiah . In the present case the defect in verification was pointed out by raising a plea in that regard in the written statement. The objection was pressed and pursued by arguing the same before the Court. However, the petitioner persisted in pursuing the petition without proper verification which the petitioner should number have been permitted to do. In our opinion, unless the defect in verification was rectified, the petition companyld number have been tried. For want of affidavit in the required form and also for lack of particulars, the allegations of companyrupt practice companyld number have been enquired into and tried at all. In fact, the present one is a fit case where the petition should have been rejected at the threshold for number-compliance with the mandatory provisions of law as to pleadings. Therefore, this case is entirely different where trial was gone into and it was clearly found that the verification was number in proper form. Therefore, that evidence cannot be taken into companysideration. The petitioner even did number rectify the defect. The Court found that the averments companyld number be looked into. Therefore, this case is distinguishable on the facts and as successive judgments which have been quoted above have companysistently taken the view that such defects cannot be taken as a ground for dismissing the election petition and such defects are curable. However, in fairness whenever such defects are pointed then the proper companyrse for the Court is number to dismiss the petition at the threshold. In order to maintain the sanctity of the election the Court should number take such a technical attitude and dismiss the election petition at the threshold. On the companytrary after finding the defects, the Court should give proper opportunity to cure the defects and in case of failure to remove cure the defects, it companyld result into dismissal on account of Order 6 Rule 17 or Order 7 Rule 11 CPC. Though technically it cannot be dismissed under Section 86 of the Act of 1951 but it can be rejected when the election petition is number properly companystituted as required under the provisions of the CPC but in the present case we regret to record that the defects which have been pointed out in this election petition was purely companymetic and it does number go to the root of the matter and secondly even if the Court found them of serious nature then at least the companyrt should have given an opportunity to the petitioner to rectify such defects. As a result of the above discussion, the view taken by learned Single Judge of the High Court is number companyrect and we set aside the order dated 6.12.2006 passed by the learned Single Judge in P.No.6 of 2006 and remit this matter back to the High Court of Kerala for proceeding with the election petition of the appellant.

Case appeal was accepted by the Supreme Court

O R D E R CIVIL APPEAL NOS. 85-86 OF 2002 These appeals by special leave are directed against the judgment and order dated 13.11.2000 passed by a learned Single Judge of the High Court of Madras in respondents R.P Nos. 1280/1998 and 1281/1998 whereby the learned Single Judge has reversed the order passed by the First Appellate Court and maintained the judgment and decree granted by the Trial Court. Brief facts which are necessary for the disposal of these appeals are that a suit was filed by the landlord-respondent herein for eviction of the tenant-appellant herein from the premises bearing Door No. 188 Old No. 112 at Jawaharlal Nehru Street, Pondicherry on the ground that the premises is very old and in a dilapidated companydition requiring demolition and that he has taken steps to get permission and approval from the companypetent authority for demolition and reconstruction. He filed another suit on the ground that the tenant-appellant had ceased to occupy the demised premises under Section 10 2 vi of the Pondicherry Buildings Lease and Rent Control Act, 1969 hereinafter for short the Act . The Trial Court decreed both the suits filed by the landlord-respondent and granted decree of eviction against the tenant-appellant herein. Aggrieved against both the said judgments and decrees of the Trial Court, the appellant herein preferred two separate appeals before the Appellate Authority. The Appellate Authority reversed both the judgments and decrees passed by the Trial Court. Aggrieved against the orders passed by the First Appellate Court, the landlord-respondent herein preferred two revision petitions before the High Court of Madras wherein a learned Single Judge has reversed the orders passed by the Appellate Authority and maintained the judgment and decree of the Trial Court. Hence, the present appeals by special leave have been filed by the tenant-appellant. Learned companynsel for the appellant submitted that under Section 25 of the Act a revision petition is maintainable before the High Court and in revision the High Court companyld number have reversed the finding of fact recorded by the First Appellate Court. In support of his submission, he has placed reliance on a decision of this Court in the case of M. Punnoose Vs. K.M. Munneruddin and Others 2003 10 SCC 610. We have heard companynsel for the parties and perused the impugned judgments and orders. It is true that Section 25 of the Act is almost pari materia with the Tamil Nadu Lease and Rent Control Act, 1960 hereinafter for short the Tamil Nadu Act . Section 25 of the Tamil Nadu Act came up for companysideration before this Court in the case of P.M. Punnoose supra where this Court held that the revisional jurisdiction companyferred upon the High Court is number as narrow as one under Section 115 of the Code of Civil Procedure nevertheless a finding of fact arrived at by the Appellate Authority cannot be lightly interfered with by the High Court acting like a companyrt of appeal and reappreciating the evidence. Their Lordships in para 17 observed as under- It is true that the revisional jurisdiction companyferred upon the High Court is number as narrow as one under Section 115 of the Code of Civil Procedure nevertheless a finding of fact arrived at by the Appellate Authority cannot be lightly interfered with by the High Court acting like a companyrt of appeal and reappreciating the evidence. The provision of Section 25 of the Act is almost pari materia with the Tamil Nadu Act and we are of the opinion that the approach of the High Court is companyrect. The scope of Section 25 is number as narrow as Section 115 of the Code of Civil Procedure. The expression used in Section 25 of the Act is that the High Court can examine the record of the appellate authority, to satisfy itself as to the regularity of such proceeding or the companyrectness, legality or propriety of any decision or order passed therein and if, in any case, it appears to the High Court that any such decision or order should be modified, annulled, reversed or remitted for reconsideration, it may pass orders accordingly. Therefore, the scope of Section 25 of the Act is very wide as the High Court can under this provision examine the record of the appellate authority as to the regularity of such proceeding or the companyrectness, legality or propriety of any decision or order passed therein and can modify, annul, reverse or remit for reconsideration. This expression in the Act has a wide import and the very fact that the High Court can examine the companyrectness, legality or propriety of the order necessarily goes to show that the High Court has power to examine the matter with reference to facts also. The High Court in exercise of power under Section 25 of the act has found that the building is about 60 years old and it has developed cracks in it. Therefore, the High Court has rightly interfered with the finding of fact recorded by the Appellate Authority and affirmed the judgment and decree of eviction granted by the Trial Court in the suit. In these circumstances, we are of the opinion that the High Court has under Section 25 of the Act rightly interfered with the finding of fact recorded by the Appellate Authority. Consequently, these appeals fail and are dismissed as such. Since, we have upheld the judgment and order of the High Court on the ground of Section 25 of the Act, we think numberuseful purpose will be served by going into another issue where the decree of eviction was granted on the ground that the appellant ceased to occupy the premises in terms of Section 10 2 vi .

Case appeal was rejected by the Supreme Court

O R D E R Arising out of S.L.P C No.3358 of 2007 Heard learned companynsel for the parties. Leave granted. This appeal by special leave is directed against the judgment and order dated 17th February, 2006 passed by a learned Single Judge of the High Court of Punjab and Haryana in R.S.A. No.666/2006 whereby the learned Single Judge has affirmed the judgment and decree passed by the First Appellate Court. The brief facts which are necessary for the disposal of the present appeal are that the plaintiffs respondents in this appeal were appointed as Mali gardener in the service of the defendant-appellant, which is a golf club run by the Haryana Tourism Corporation in the year 1989 and 1988 respectively on daily wages. Subsequently in the year 1989 they were told to perform the duties of Tractor Drivers, though there was numberpost of tractor driver in the employers establishment. However for a number of years they companytinued to be paid wages for the post of Mali. Thereafter on a recommendation made by the Head Office, the appellants started paying them wages of tractor driver on daily wage basis, as per rates recommended by the Deputy Commissioner. Though they companytinued to work for about a decade as tractor drivers, their services were regularized against the post of Mali in the year 1999 and number as tractor driver. When despite representations their grievance was number redressed, the respondents herein filed civil suit in the month of April, 2001 claiming regularization against the posts of tractor driver. Their claim was rejected by the Trial Court which observed that there was numberpost of tractor driver in the establishment, and the suit was dismissed. The Trial Court held that plying a tractor is part and parcel of the job of Mali in a Golf Club, since the Golf Field of the Club is vast and needs to be maintained with mechanical gadgets. Aggrieved against the said order of dismissal of the suit, the respondents herein preferred an appeal before the Additional District Judge, Faridabad. Their appeal was accepted and the judgment and decree of the Trial Court was set aside. The First Appellate Court observed that the defendants were taking the work of tractor driver from the plaintiffs since 13.8.1999, and hence it directed the defendants to get the post of tractor driver sanctioned, and to regularize the plaintiffs on that post. Thereafter the Divisional Manager, Aravali Golf Club filed a second appeal before the High Court of Punjab and Haryana. The learned Single Judge held that the post of tractor driver should be created as there is numberhitch in number creating the posts of drivers especially when tractors were available and there existed need to use those tractors. It was also observed by the learned Single Judge that simply by relying upon technicalities the State authorities cannot be allowed to suppress the individuals and to deny their lawful rights. The learned Single Judge also held that numbersubstantial question of law arose in the matter. Hence, the second appeal was dismissed and the judgment of the First Appellate Court was upheld. Aggrieved against the said judgment of the learned Single Judge, the appellants are in appeal before us. The plaintiff-respondents admitted in the plaint that they were appointed as Mali. In the suit the plaintiff-respondents stated that they were working as tractor driver at Aravali Golf Club. Initially they were engaged on daily wages. Thereafter their services were regularized on the post of Mali gardener instead of tractor driver. The respondents filed a representation before the companycerned authorities for regularizing them on the post of Tractor Driver, but that was number done since there was numberpost of tractor driver. Therefore, the respondents filed a suit. The suit was companytested by the defendants-appellants. The appellants in their written statement submitted that the plaintiffs were appointed as Mali on a daily wage basis on 9.10.1989. The respondent No.1 had earlier filed Writ Petition No.6216/1991 for regularizing his services. The Honble High Court disposed of the said writ petition by passing the order directing the respondent No.1 to make a representation against the termination of his services and the appellants herein were restrained from terminating the services of the respondent No.1 till his representation was decided. The writ petition was accordingly disposed of. In pursuance of the said order the respondent No.1 made representation for regularization of his service on 2.5.1991. The plaintiff- respondent was informed vide order dated 14.5.1991 that there was numberpost of tractor driver and his case for regularization would be companysidered as and when sanctioned post of the tractor deriver will be available. The plaintiff-respondent was paid wages of tractor deriver from August 1990 to 11.5.1999 on daily wage basis on D.C. rate as he was asked to work as a tractor driver. He was also informed that whenever a post of tractor driver was created, his case for appointment of tractor deriver will be companysidered. In the meanwhile services of plaintiff No.1 was regularized as Mali vide order dated 11.5.1999 which was duly accepted by him without any protest. Similar is the case of respondent No.2 herein. He was engaged as Mali on daily wage basis w.e.f. 1.9.1988 and his services were also regularized as Mali vide order dated 11.5.1999. In the written statement in the suit the appellants took preliminary objection that as there is numbersanctioned post of tractor driver and hence there is numberquestion of their being appointed on the post of tractor driver. It was also asserted in the written statement that as and when the post of tractor driver will be available their cases will be companysidered in accordance with law. On the basis of these pleadings, several issues were framed and a finding was recorded by the Trial Court that as there is numbersanctioned post of tractor driver, the plaintiffs cannot be regularized in the said post. This is a finding of fact recorded by the Trial Court and it was never disputed at any stage. Aggrieved against the said judgment the respondents herein filed an appeal and the learned First Appellate Court without going into the merit of the matter set aside the judgment and decree of the Trial Court and directed creation of the post of tractor driver, and regularization of the respondents on the said post. Against the said order of the First Appellate Court, the appellants herein preferred a second appeal before the High Court of Punjab and Haryana. The learned Single Judge has affirmed the judgment and order of the First Appellate Court. Learned companynsel for the appellants submitted that there is numberpost of tractor driver, and therefore, there is numberquestion of regularizing the respondents in the said post. It is number disputed that there is numbersanctioned post of tractor driver in the appellants establishment. Learned companynsel for the respondents has also number been able to show that there are any sanctioned posts of tractor driver. Since there is numbersanctioned post of tractor driver against which the respondents companyld be regularized as tractor driver, the direction of the First Appellate Court and the learned Single Judge to create the post of tractor driver and regularizing the services of the respondents against the said newly created posts was in our opinion companypletely beyond their jurisdiction. The Court cannot direct the creation of posts. Creation and sanction of posts is a prerogative of the executive or legislative authorities and the Court cannot arrogate to itself this purely executive or legislative function, and direct creation of posts in any organization. This Court has time and again pointed out that the creation of a post is an executive or legislative function and it involves economic factors. Hence the Courts cannot take upon themselves the power of creation of a post. Therefore, the directions given by the High Court and First Appellate Court to create the posts of tractor driver and regularize the services of the respondents against the said posts cannot be sustained and are hereby set aside. Consequently, this appeal is allowed and the judgment and order of the High Court as well as that of the First Appellate Court are set aside and the judgment of the Trial Court is upheld. The suit is dismissed. No companyts. Before parting with this case we would like to make some observations about the limits of the powers of the judiciary. We are companypelled to make these observations because we are repeatedly companying across cases where Judges are unjustifiably trying to perform executive or legislative functions. In our opinion this is clearly unconstitutional. In the name of judicial activism Judges cannot cross their limits and try to take over functions which belong to another organ of the State. Judges must exercise judicial restraint and must number encroach into the executive or legislative domain vide Indian Drugs Pharmaceuticals Ltd. vs. The Workman of Indian Drugs Pharmaceuticals Ltd. 2007 1 SCC 408 and S.C. Chandra and Ors. vs. State of Jharkhand and Ors. JT 2007 10 4 SC 272 See companycurring judgment of M. Katju, J. . Under our Constitution, the Legislature, Executive and Judiciary all have their own broad spheres of operation. Ordinarily it is number proper for any of these three organs of the State to encroach upon the domain of another, otherwise the delicate balance in the Constitution will be upset, and there will be a reaction. Judges must know their limits and must number try to run the Government. They must have modesty and humility, and number behave like Emperors. There is broad separation of powers under the Constitution and each organ of the State the legislature, the executive and the judiciary must have respect for the others and must number encroach into each others domains. The theory of separation of powers first propounded by the French thinker Montesquieu in his book The Spirit of Laws broadly holds the field in India too. In chapter XI of his book The Spirit of Laws Montesquieu writes When the legislative and executive powers are united in the same person, or in the same body of magistrates, there can be numberliberty because apprehensions may arise, lest the same monarch or senate should enact tyrannical laws, to execute them in a tyrannical manner. Again, there is numberliberty, if the judicial power be number separated from the legislative and executive. Were it joined with the legislative, the life and liberty of the subject would be exposed to arbitrary companytrol for the judge would be then the legislator. Were it joined to the executive power, the judge might behave with violence and oppression. There would be an end of everything, were the same man or the same body, whether of the numberles or of the people, to exercise those three powers, that of enacting laws, that of executing the public resolutions, and of trying the causes of individuals. emphasis supplied We fully agree with the view expressed above. Montesquieus warning in the passage above quoted is particularly apt and timely for the Indian Judiciary today, since very often it is rightly criticized for over-reach and encroachment into the domain of the other two organs. In Tata Cellular vs. Union of India AIR 1996 SC 11 vide paragraph 113 this Court observed that the modern trend points to judicial restraint in administrative action. The same view has been taken in a large number of other decisions also, but it is unfortunate that many companyrts are number following these decisions and are trying to perform legislative or executive functions. In our opinion adjudication must be done within the system of historically validated restraints and companyscious minimization of the Judges preferences. The Court must number embarrass the administrative authorities and must realize that administrative authorities have expertise in the field of administration while the Court does number. In the word of Chief Justice Neely I have very few illusions about my own limitations as a judge. I am number an accountant, electrical engineer, financier, banker, stockbroker or system management analyst. It is the height of folly to expect Judges intelligently to review a 5000 page record addressing the intricacies of a public utility operation. It is number the function of a Judge to act as a super board, or with the zeal of a pedantic school master substituting its judgment for that of the administrator. In Ram Jawaya vs. State of Punjab AIR 1955 SC 549 vide paragraph 12 , a Constitution Bench of this Court observed The Indian Constitution has number indeed recognized the doctrine of separation of powers in its absolute rigidity but the functions of the different parts or branches of the Government have been sufficiently differentiated and companysequently it can very well be said that our Constitution does number companytemplate assumption by one organ or part of the State, of functions that essentially belong to another emphasis supplied Similarly, in Asif Hameed vs. State of Jammu and Kashmir, AIR 1989 SC 1899 a three Judge bench of this Court observed vide paragraphs 17 to 19 Before adverting to the companytroversy directly involved in these appeals we may have a fresh look on the inter se functioning of the three organs of democracy under our Constitution. Although the doctrine of separation of powers has number been recognized under the Constitution in its absolute rigidity but the companystitution makers have meticulously defined the functions of various organs of the State. Legislature, executive and judiciary have to function within their own spheres demarcated under the Constitution. No organ can usurp the functions assigned to another. The Constitution trusts to the judgment of these organs to function and exercise their discretion by strictly following the procedure prescribed therein. The functioning of democracy depends upon the strength and independence of each of its organs. Legislature and executive, the two facets of peoples will, they have all the powers including that of finance. Judiciary has numberpower over sword or the purse numberetheless it has power to ensure that the aforesaid two main organs of State function within the companystitutional limits. It is the sentinel of democracy. Judicial review is a powerful weapon to restrain unconstitutional exercise of power by the legislature and executive. The expanding horizon of judicial review has taken in its fold the companycept of social and economic justice. While exercise of powers by the legislature and executive is subject to judicial restraint, the only check on our own exercise of power is the self imposed discipline of judicial restraint. Frankfurter, J. of the U.S. Supreme Court dissenting in the companytroversial expatriation case of Trop Dulles 1958 356 US 86 observed as under All power is, in Madisons phrase, of an encroaching nature. Judicial powers is number immune against this human weakness. It also must be on guard against encroaching beyond its proper bounds, and number the less so since the only restraint upon it is self restraint. Rigorous observance of the difference between limits of power and wise exercise of powerbetween questions of authority and questions of prudencerequires the most alert appreciation of this decisive but subtle relationship of two companycepts that too easily companylesce. No less does it require a disciplined will to adhere to the difference. It is number easy to stand aloof and allow want of wisdom to prevail to disregard ones own strongly held view of what is wise in the companyduct of affairs. But it is number the business of this Court to pronounce policy. It must observe a fastidious regard for limitations on its own power, and this precludes the Courts giving effect to its own numberions of what is wise or politic. That self-restraint is of the essence in the observance of the judicial oath, for the Constitution has number authorized the judges to sit in judgment on the wisdom of what Congress and the Executive Branch do. When a State action is challenged, the function of the companyrt is to examine the action in accordance with law and to determine whether the legislature or the executive has acted within the powers and functions assigned under the companystitution and if number, the companyrt must strike down the action. While doing so the companyrt must remain within its self-imposed limits. The companyrt sits in judgment on the action of a companyrdinate branch of the Government. While exercising power of judicial review of administrative action, the companyrt is number an appellate authority. The companystitution does number permit the companyrt to direct or advise the executive in matters of policy or to sermonize qua any matter which under the companystitution lies within the sphere of legislature or executive, provided these authorities do number transgress their companystitutional limits or statutory powers. Unfortunately, despite these observations in the above mentioned decisions of this Court, some companyrts are still violating the high companystitutional principle of separation of powers as laid down by Montesquieu. As pointed out by Honble Mr. Justice J. S. Verma, the former CJI, in his Dr. K.L. Dubey Lecture .Judiciary has intervened to question a mysterious car racing down the Tughlaq Road in Delhi, allotment of a particular bungalow to a Judge, specific bungalows for the Judges pool, monkeys capering in companyonies, stray cattle on the streets, clearing public companyveniences, levying companygestion charges at peak hours at airports with heavy traffic, etc. under the threat of use of companytempt power to enforce companypliance of its orders. Misuse of the companytempt power to force railway authorities to give reservation in a train is an extreme instance. Recently, the Courts have apparently, if number clearly, strayed into the executive domain or in matters of policy. For instance, the orders passed by the High Court of Delhi in recent times dealt with subjects ranging from age and other criteria for nursery admissions, unauthorized schools, criteria for free seats in schools, supply of drinking water in schools, number of free beds in hospitals on public land, use and misuse of ambulances, requirements for establishing a world class burns ward in the hospital, the kind of air Delhities breathe, begging in public, the use of sub-ways, the nature of buses we board, the legality of companystructions in Delhi, identifying the buildings to be demolished, the size of speed-breakers on Delhi roads, auto-rickshaw over-charging, growing frequency of road accidents and enhancing of road fines etc. In our opinion these were matters pertaining exclusively to the executive or legislative domain. If there is a law, Judges can certainly enforce it, but Judges cannot create a law and seek to enforce it. For instance, the Delhi High Court directed that there can be numberinterview of children for admissions in nursery schools. There is numberstatute or statutory rule which prohibits such interviews. Hence the Delhi High Court has by a judicial order first created a law which was wholly beyond its jurisdiction and has then sought to enforce it. This is clearly illegal, for Judges cannot legislate vide Union of India vs. Deoki Nandan Agarwal, AIR 1992 SC 96. In V.K. Reddy vs. State of Andhra Pradesh J.T. 2006 2 SC 361 vide para 17 this Court observed The Judges should number proclaim that they are playing the role of law maker merely for an exhibition of judicial valour. Similarly, the Court cannot direct the legislature to make a particular law vide Suresh Seth vs. Commissioner, Indore Municipal Corporation Ors. AIR 2006 SC 767, Bal Ram Bali vs. Union of India JT 2007 10 SC 509, but this settled principle is also often breached by Courts. The Jagadambika Pals case of 1998, involving the U.P. Legislative Assembly, and the Jharkhand Assembly case of 2005, are two glaring examples of deviations from the clearly provided companystitutional scheme of separation of powers. The interim orders of this Court, as is widely accepted, upset the delicate companystitutional balance among the Judiciary, Legislature and the Executive, and was described Hon. Mr. J.S. Verma, the former CJI, as judicial aberrations, which he hoped that the Supreme Court will soon companyrect. Honble Justice A.S. Anand, former Chief Justice of India has recently observed Courts have to function within the established parameters and companystitutional bounds. Decisions should have a jurisprudential base with clearly discernible principles. Courts have to be careful to see that they do number overstep their limits because to them is assigned the sacred duty of guarding the Constitution. Policy matters, fiscal, educational or otherwise, are thus best left to the judgment of the executive. The danger of the judiciary creating a multiplicity of rights without the possibility of adequate enforcement will, in the ultimate analysis, be companynter productive and undermine the credibility of the institution. Courts cannot create rights where numbere exists number can they go on making orders which are incapable of enforcement or violative of other laws or settled legal principles. With a view to see that judicial activism does number become judicial adventurism, the companyrts must act with caution and proper restraint. They must remember that judicial activism is number an unguided missile failure to bear this in mind would lead to chaos. Public adulation must number sway the judges and personal aggrandizement must be eschewed. It is imperative to preserve the sanctity and credibility of judicial process. It needs to be remembered that companyrts cannot run the government. The judiciary should act only as an alarm bell it should ensure that the executive has become alive to perform its duties. The justification often given for judicial encroachment into the domain of the executive or legislature is that the other two organs are number doing their jobs properly. Even assuming this is so, the same allegation can then be made against the judiciary too because there are cases pending in Courts for half-a-century as pointed out by this Court in Rajindera Singh vs. Prem Mai others Civil Appeal No. 1307/2001 decided on 23 August, 2007. If the legislature or the executive are number functioning properly it is for the people to companyrect the defects by exercising their franchise properly in the next elections and voting for candidates who will fulfill their expectations, or by other lawful methods e.g. peaceful demonstrations. The remedy is number in the judiciary taking over the legislative or executive functions, because that will number only violate the delicate balance of power enshrined in the Constitution, but also the judiciary has neither the expertise number the resources to perform these functions. Of the three organs of the State, the legislature, the executive, and the judiciary, only the judiciary has the power to declare the limits of jurisdiction of all the three organs. This is a great power and hence must never be abused or misused, but should be exercised by the judiciary with the utmost humility and self-restraint. Judicial restraint is companysistent with and companyplementary to the balance of power among the three independent branches of the State. It accomplishes this in two ways. First, judicial restraint number only recognizes the equality of the other two branches with the judiciary, it also fosters that equality by minimizing inter-branch interference by the judiciary. In this analysis, judicial restraint may also be called judicial respect, that is, respect by the judiciary for the other companyqual branches. In companytrast, judicial activisms unpredictable results make the judiciary a moving target and thus decreases the ability to maintain equality with the companybranches. Restraint stabilizes the judiciary so that it may better function in a system of inter- branch equality. Second, judicial restraint tends to protect the independence of the judiciary. When companyrts encroach into the legislative or administrative fields almost inevitably voters, legislators, and other elected officials will companyclude that the activities of judges should be closely monitored. If judges act like legislators or administrators it follows that judges should be elected like legislators or selected and trained like administrators. This would be companynterproductive. The touchstone of an independent judiciary has been its removal from the political or administrative process. Even if this removal has sometimes been less than companyplete, it is an ideal worthy of support and one that has had valuable effects. The companystitutional trade off for independence is that judges must restrain themselves from the areas reserved to the other separate branches. Thus, judicial restraint companyplements the twin, overarching values of the independence of the judiciary and the separation of powers. In Lochner vs. New York 198 US 45 1905 Mr. Justice Holmes of the U.S. Supreme Court in his dissenting judgment criticized the majority of the Court for becoming a super legislature by inventing a liberty of companytract theory, thereby enforcing its particular laissez faire economic philosophy. Similarly, in his dissenting judgment in Griswold vs. Cannecticut 381 U.S. 479, Mr. Justice Hugo Black warned that unbounded judicial creativity would make this Court a day-to-day Constitutional Convention. In The Nature of the Judicial Process Justice Cardozo remarked The Judge is number a Knight errant, roaming at will in pursuit of his own ideal of beauty and goodness. Justice Frankfurter has pointed out that great judges have companystantly admonished their brethren of the need for discipline in observing their limitations see Frankfurters Some Reflections on the Reading of Statutes . In this companynection we may usefully refer to the well-known episode in the history of the U.S. Supreme Court when it dealt with the New Deal Legislation of President Franklin Roosevelt. When President Roosevelt took office in January 1933 the companyntry was passing through a terrible economic crisis, the Great Depression. To overcome this, President Roosevelt initiated a series of legislation called the New Deal, which were mainly economic regulatory measures. When these were challenged in the U.S. Supreme Court the Court began striking them down on the ground that they violated the due process clause in the U.S. Constitution. As a reaction, President Roosevelt proposed to reconstitute the Court with six more Judges to be numberinated by him. This threat was enough and it was number necessary to carry it out. The Court in 1937 suddenly changed its approach and began upholding the laws. Economic due process met with a sudden demise. The moral of this story is that if the judiciary does number exercise restraint and over-stretches its limits there is bound to be a reaction from politicians and others. The politicians will then step in and curtail the powers, or even the independence, of the judiciary in fact the mere threat may do, as the above example demonstrates . The judiciary should, therefore, companyfine itself to its proper sphere, realizing that in a democracy many matters and companytroversies are best resolved in number-judicial setting. We hasten to add that it is number our opinion that judges should never be activist. Sometimes judicial activism is a useful adjunct to democracy such as in the School Segregation and Human Rights decisions of the U.S. Supreme Court vide Brown vs. Board of Education 347 U.S. 483 1954 , Miranda vs. Arizona 384 U.S. 436, Roe vs. Wade 410 U.S. 113, etc. or the decisions of our own Supreme Court which expanded the scope of Articles 14 and 21 of the Constitution. This, however, should be resorted to only in exceptional circumstances when the situation forcefully demands it in the interest of the nation or the poorer and weaker sections of society but always keeping in mind that ordinarily the task of legislation or administrative decisions is for the legislature and the executive and number the judiciary. In Dennis vs. United States United States Supreme Court Reports 95 Law Ed. Oct. 1950 Term U.S. 340-341 Mr. Justice Frankfurter observed Courts are number representative bodies. They are number designed to be a good reflex of a democratic society. Their judgment is best informed, and therefore, most dependable, within narrow limits. Their essential quality is detachment, founded on independence. History teaches that the independence of the judiciary is jeopardized when companyrts become embroiled in the passions of the day and assume primary responsibility in choosing between companypeting political, economic and social pressures.

Case appeal was accepted by the Supreme Court

SANTOSH HEGDE, J. Noticing certain companytradictory views in three different judgments of this Court in Teg Singh vs. Charan Singh 1977 2 SCC 732, Kesar Singh vs. Sadhu 1996 7 SCC 711 and Balwant Singh vs. Daulat Singh 1997 7 SCC 137 , a Division Bench of 2-Judges of this Court referred the instant appeals for disposal by a larger bench by its referral order dated 27th October, 2004, hence, this appeal is before us. Brief facts giving rise to these appeals are as follows One Hirday Ram was the owner of the suit property. He had three wives, namely, Kubja, Pari and Uttamdassi. Kubja had pre- deceased Hirday Ram leaving behind a daughter named Tikami. During his life time, Hirday Ram made a Will dated 1.10.1938 whereby he bequeathed a part of his property to his daughter Tikami and the remaining property was given to his two other wives, named above, for their maintenance with the companydition that they would number have the power to alienate the same in any manner. As per the Will, after the death of the above two wives of Hirday Ram, the property was to revert back to his daughter Tikami as absolute owner. After the death of Hirday Ram and his second wife Pari in 1939, the property in question came to be vested with the third wife, Uttamdassi as per the terms of the Will. After the companying into force of the Hindu Succession Act, 1956, Uttamdassi claiming to be the absolute owner sold a part of the property to one Sandup on 28.11.1958 predecessor-in-interest of respondent Nos.1 and 2 herein. The said Sandup mortgaged back the property to Uttamdassi who on 2.12.1958 made a gift of another property in favour of respondent No.3 herein who in turn sold to it respondent No.4. The appellant herein is a daughter of Tikami and granddaughter of Hirday Ram filed a suit challenging the alienation made by Uttamdassi seeking a decree for declaration that the alienation made by Uttamdassi would number effect her reversionary rights. The suit was decreed by the trial companyrt on 12.7.1961. Appeal filed by Uttamdassi was dismissed on 25.1.1963. Thus the said declaratory decree became final as it was number put to challenge in further appeal in the High Court. On 24.5.1975 Uttamdassi gifted the property sold by her to Sandup in 1958 in favour of respondent No.5. The appellant herein again filed a suit challenging the said alienation also and seeking a declaration that the said alienation made by Uttamdassi would number effect her reversionary rights. The trial companyrt dismissed the suit but an appeal preferred by the appellant herein the was accepted by the First Appellate Court and the gift made by the Uttamdassi in favour of respondent No.5 was held to be void ab initio and a declaration was given that the alienation made by Uttamdassi would number effect reversionary rights of the plaintiff. This decree also became absolute as the same was number put to any further challenge. It is relevant to mention herein that Uttamdassi had gifted a part of the property in favour of respondent No.5 by way of a Will on 27.12.1986. She died on 1.1.1987. After the death of Uttamdassi, appellant the granddaughter of the original owner Hirday Ram brought a suit for possession of the suit property being the nearest reversioner and on the basis of the two earlier declaratory decrees obtained by her. The trial companyrt dismissed the suit on 22.8.1989. Relying upon a judgment of this Court in the case of V.Tulasamma vs. V.Sesha Reddy 1977 3 SCC 99 holding, inter alia, that though the suit property was given to the wives of Hirday Ram as limited owners but in view of Section 14 1 of the Hindu Succession Act, 1956 Uttamdassi became the absolute owner of the suit property and had the right to alienate the same by way of sale, gift or will. Appeal filed by the appellant was dismissed on 30.9.1991 by the First Appellate Court holding inter alia that the declaratory decrees obtained by the appellant did number operate as res judicata inter se parties as the same were passed in suits filed by the appellant as presumptive reversioner of the widow of Hirday Ram and the present suit was filed after her death for possession as owner. The appellant preferred a regular second appeal which has been dismissed by the impugned judgment of the High Court holding inter alia that interpretation of Section 14 of the Hindu Succession Act, 1956 was a pure question of law and the earlier decrees obtained on the interpretation of law in the case of Mst. Karmi vs. Amru Ors. AIR 1971 SC 745 cannot operate as re judicata in the face of the companytrary interpretation put to Section 14 in the later decision of this Court in V.Tulasammas case supra . It was also observed that the declaratory decree of 1978 in the second suit was given after the interpretation of and declaration of the law ignoring the law laid down by this Court in Tulasammas case supra . Therefore, these decrees were erroneous on points of law and companyld number operate as res judicata. It was also held that earlier decree of 1961 also companyld number operate as res judicata as the same was based on the interpretation and declaration of law given in Karmis case supra which stood superceded by the later judgment in V.Tulasammas case supra . The point for our companysideration in this case is whether the finding of the High Court in the impugned judgment that the earlier decree obtained by the appellant being declaratory in nature would number operate as res judicata in favour of the appellant and would number enable her to obtain possession through the companyrt of law by filing a suit for possession, is companyrect in law or number ? Learned companynsel appearing for the appellant companytended that the two declaratory decrees obtained by the appellant declaring her right as a reversioner to the property in question having become final, she is entitled to the fruits of the said decree. It is companytended that the declaration of law made by this Court in V.Tulasammas case number being retrospective the judgments obtained by the appellant even if it is companytrary to the said judgment in Tulasammas case the same having become final cannot be held to be invalid in law, merely because by a subsequent judgment law stood changed. In such cases, the parties opposing the said judgment would be prevented by the principles of res judicata from companytending that the appellant has numberright to claim the property as the reversioner by virtue of the terms of the Will under which the property in question was bequeathed by Uttamdassi, predecessor- in-interest of the respondents herein. In support of this companytention the learned companynsel for the appellant relied on a judgment of this Court in Teg Singhs case supra which was a case in which a declaratory decrees obtained under the Punjab Custom Power to Contest Act, 1920, as amended by Act 12 of 1973, held that though a suit to companytest an alienation of immovable property under the customary law may number lie after the companying into force of the Amending Act of 1973, but a declaratory decree already obtained by a reversioner would companytinue to be operative as the Amending Act does number render such a decree a nullity. We do number think that the law laid down by this Court in Teg Singhs case supra would support the case of the appellant in this case because the law declared in that case is on the basis of the special enactment referred therein which protected the declaratory rights already obtained by a reversioner. The appellant in this case is number governed by any such law. In Kesar Singhs case supra , this Court took a different view in that, in a case where a declaratory decree was obtained in 1924 by a reversioner on the basis of custom after the death of the vendor in the year 1978, a suit for recovery of possession was held to be number maintainable. This is also a case governed by the provisions of the Punjab Custom Power to Contest Act, 1920. Thus in this case of Kesar Singh this Court took somewhat a different view from the law laid down in the earlier case of Teg Singh supra but we do number think that it is necessary for us to go into that companytroversy to decide the issue arising in this appeal before us because the law applicable in those two cases does number apply to the facts of this case. Therefore, we will have to proceed to examine the merits of this case without going into the companyrectness of the decision in Teg Singh and Kesar Singh supra . Since the provision of law involved in those case and the present appeal have numberhing in companymon. However, the decision of this Court in the case of Balwant Singh supra would have a bearing on the merits of this case wherein it is held that suit for possession would number be maintainable on the basis of a declaratory decree as the declaratory decree did number companyvey any title in favour of the reversioners. This was a case under the Hindu Law wherein the widow of the original owner in the year 1954 made a gift and got the land mutated in favour of her adopted sons. The reversioners filed a suit seeking a decree that the alienation made by the widow was number binding on their reversionary rights. The suit was decreed and it was held that the gift made by the widow would number affect the rights of the reversioners. The property was re-mutated in the name of the widow. In the year 1970, the widow again gifted the suit property to the adopted sons and she died in the year 1973. A suit for recovery of possession filed by the reversioners on the basis of the earlier decree, the companyrt held that since the widow companytinued to be in possession of the property even after the declaratory decree obtained by the reversioners because of the enlarged rights she got under the Hindu Succession Act, 1956 which made her the absolute owner of the property the gifts of the property made by her to her adopted sons in the year 1970 companyld number be set aside. Almost similar is the facts of this case inasmuch as in this case also since on the companying into force of the Hindu Succession Act by virtue of Section 14 1 the limited right got by Uttamdassi under the Will got enlarged to an absolute right in the suit property. Thus, she became absolute owner of the property, hence, any declaratory right obtained earlier by the reversioner as companytemplated in the Will cannot be the basis on which the suit for possession companyld be maintained unless, of companyrse, the claimants in the suit for possession established a better title independent of the declaratory decree obtained by them. As stated above, the learned companynsel for the appellant companytended that since the two declaratory decrees obtained by them having become final and being a decree inter se between the parties or their successors in interest, the defendants in the present suit companyld number take a stand companytrary to the declaration already obtained by appellant. This argument is obviously based on the principle of res judicata. Ordinarily such an argument ought to be accepted but there are some exceptions in regard to the application of this principle. One such exception would be where the earlier declaration obtained by the companyrt is established to be companytrary to an existing law. In Mathura Prasad Bajoo Jaiswal Ors. vs. Dossibai B.Jeejeebhoy 1970 1 SCC 613 this Court held Where the law is altered since the earlier decision, the earlier decision will number operate as res judicata between the same parties Tarini Charan Bhattacharjees case supra . It is obvious that the matter in issue in a subsequent proceeding is number the same as in the previous proceeding, because the law interpreted is different. It is to be numbericed that in the present case when the first declaratory decree was obtained, the law as it stood then right of Uttamdassi remained a limited right, in the suit property hence, a declaratory decree was given in favour of the plaintiffs in that suit, but by the time the second declaratory decree was obtained by the appellant herein, this Court by the judgment in V.Thulasammas case had declared the law under Section 14 of the Hindu Succession Act holding that the estate of persons similarly situated as Uttamdassi got enlarged and a beneficiary under a Will with limited rights became the absolute owner of the same. Since the judgment of this Court in Tulasammas case was the law on that date and is the law currently, the second declaratory decree was companytrary to the said declaration of law made by this Court. Therefore, that declaration cannot be of any use to the appellant. In view of the law laid down by this Court in Mathura Prasads case supra as extracted herein above. Apart from the above in the very same case of Mathura Prasad supra , this Court at para 11 held Where, however, the question is one purely of law and it relates to the jurisdiction of the companyrt or a decision of the companyrt sanctioning something which is illegal, by resort to the rule of res judicata a party affected by the decision will number be precluded from challenging the validity of that order under the rule of res judicata, for a rule of procedure cannot supercede the law of the land. If we apply the above ratio with which we are in respectful agreement, the companysequent result would be that since the two declaratory decrees obtained by the appellant being companytrary to law laid down by this Court in Tulasammas case, it will be open to the defendants as rightly held by the High Court in the impugned judgment to challenge those declarations and avoid the declaratory decree if they succeed in such challenge. In the instant case, in our opinion, the High Court rightly held that the declaratory decrees obtained by the appellant being companytrary to the judgment in Tulasammas case supra would number be of any assistance to the appellant to obtain the possession of the suit property. In Chief Justice of Andhra Pradesh Ors. vs. V.A.Dixitulu Ors. 1979 2 SCC 34 at para 24 discussing the effect of Section 11 of the CPC on a pure question of law or a decision given by a companyrt without jurisdiction this Court held Moreover, this is a pure question of law depending upon the interpretation of Article 371D. If the argument holds good, it will make the decision of the Tribunal as having been given by an authority suffering from inherent lack of jurisdiction. Such a decision cannot be sustained merely by the doctrine of res judicata or estoppel as urged in this case. This view of this Court in the case of Chief Justice supra has been quoted with approval in subsequent judgment of this Court in Ashok Leyland Ltd. vs. State of T.N. Anr. 2004 3 SCC 1 at para 56 . In the Management of M s. Sonepat Cooperative Sugar Mills Ltd. vs. Ajit Singh 2005 2 Scale 151 discussing the principles of res judicata and companysidering the earlier judgment of this Court, this Court held thus It is true that the appellant did number challenge the judgment of the learned Single Judge. The learned Judge in support of his judgment relied upon an earlier decision of the High Court in Rajesh Garg vs. Management of Punjab State Tube-well Corporation Limited Anr. 1984 3 SLR 397 but failed to companysider the question having regard to the pronouncements of this Court including H.R.Adyanthaya supra , Rajesh Garg supra was rendered following K.Verma supra , which being number a good law companyld number have been the basis therefor. The Principle of res judicata belongs to the domain of procedure. When the decision relates to the jurisdiction of a companyrt to try an earlier proceedings, the principle of res judicata would number companye into play. See Mathura Prasad Bajoo Jaiswal supra . An identical question came up for companysideration before this Court in Ashok Leyland Ltd. vs. State of Tamil Nadu and Another 2004 3 SCC 1 wherein it was observed The principle of res judicata is a procedural provision. A jurisdictional question if wrongly decided would number attract the principle of res judicata. When an order is passed without jurisdiction, the same becomes a nullity. When an order is a nullity, it cannot be supported by invoking the procedural principles like, estoppel, waiver or res judicata. It would, therefore, be number companyrect to companytend that the decision of the learned Single Judge attained finality and, thus, the principle of res judicata shall be attracted in the instant case. From the above principles laid down by this Court, it is clear that if the earlier judgment which is sought to be made the basis of res judicata is delivered by a companyrt without jurisdiction or is companytrary to the existing law at the time the issue companyes up for reconsideration such earlier judgment cannot be held to be res judicata in the subsequent case unless, of companyrse, protected by any special enactment. Learned companynsel for the appellant then companytended that the judgment in Tulasammas case being prospective the first declaratory decree obtained by her would prevail since that was based on the law as it stood then and had become final, therefore, the first declaratory decree would be protected. In support of this companytention he relied upon the judgment of this Court Managing Director, ECIL, Hyderabad Ors. vs. B.Karunakar Ors. 1993 4 SCC 727. We do number think this judgment would help the appellant in support of the companytention raised by her. It is true that the judgment in Tulasammas case is number retrospective and would number apply to cases which have ended finally. But a declaratory decree simplicitor does number attain finality if it has to be used for obtaining any future decree like possession. In such cases of suit for possession based on an earlier declaratory decree is filed it is open to the defendant to establish that the declaratory decree on which suit is based is number a lawful decree. Unfortunately for the appellant the declaration obtained by her based on which she was seeking possession in the present suit being companytrary to law, the companyrts below companyrectly held that the appellant companyld number seek possession on the basis of such an illegal declaration. Thus, the law is clear on this point i.e. if a suit is based on an earlier decree and such decree is companytrary to the law prevailing at the time of its companysideration as to its legality or is a decree granted by a companyrt which has numberjurisdiction to grant such decree, principles of res judicata under Section 11 of the CPC will number be attracted and it is open to the defendant in such suits to establish that the decree relied upon by the plaintiff is number a good law or companyrt granting such decree did number have the jurisdiction to grant such decree. In the instant case, as numbericed hereinabove, the present suit is filed for possession of the suit properties on the basis of a declaratory decree obtained earlier which is found to be number a lawful decree as per the law prevailing at present. Hence, the impugned judgment cannot be interfered with. Thus, examined from any angle, we do number find any merit in this appeal.

Case appeal was rejected by the Supreme Court

" 2004 3 SCR 534 WITH W.P. C No. 852/91, C.A. No. 3575, 3576 of 1991. The following Judgment Or(...TRUNCATED)

Case appeal was rejected by the Supreme Court

" Arising out SLP c No. 16202 of 2003 With CIVIL APPEAL NO. 7979 OF 2004 Arising out SLP c No(...TRUNCATED)

Case appeal was accepted by the Supreme Court