Gujarat High Court
Pragneshkumar Maheshbhai Patel vs Lh Of Lt.Chhaganbhai Trikambhai Valand on 17 September, 2025
NEUTRAL CITATION
C/SCA/18220/2013 JUDGMENT DATED: 17/09/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 18220 of 2013
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE MAULIK J.SHELAT
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Approved for Reporting Yes No
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PRAGNESHKUMAR MAHESHBHAI PATEL & ORS.
Versus
LH OF LT.CHHAGANBHAI TRIKAMBHAI VALAND & ORS.
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Appearance:
MR SK PATEL(654) for the Petitioner(s) No. 1,2,3,4,5,6,7
DECEASED LITIGANT THROUGH LEGAL HEIRS/ REPRESTENTATIVES
for the Respondent(s) No. 1,1.10,1.4
MR. KISHAN H DAIYA(6929) for the Respondent(s) No.
1.2,1.3,1.4.1,1.4.2,1.4.3
RULE SERVED for the Respondent(s) No.
1.1,1.10.1,1.10.2,1.11,1.13,1.14,1.15,1.16,1.5,1.6,1.7,1.8,1.9
UNSERVED EXPIRED (R) for the Respondent(s) No. 1.12
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CORAM:HONOURABLE MR. JUSTICE MAULIK J.SHELAT
Date : 17/09/2025
ORAL JUDGMENT
1. Heard learned advocate Mr. Aaditya Patel for learned advocate Mr. S.K. Patel for the petitioners and learned advocate Mr. M.A. Saiyed for learned advocate Mr. Kishan H. Daiya for their respective respondents.
2. Though served, none appeared on behalf of rest of the Page 1 of 10 Uploaded by SALIM(HC01108) on Sat Sep 20 2025 Downloaded on : Mon Sep 22 22:05:14 IST 2025 NEUTRAL CITATION C/SCA/18220/2013 JUDGMENT DATED: 17/09/2025 undefined respondents. Respondent No.1 & 12 reported died.
3. The present writ application is filed under Article 227 of the Constitution of India seeking following relief :
"(A) Be pleased to admit this petition;
(B) Be pleased to quash and set-aside an common order dated
14/10/13 passed by the Ld. Principal Civil Jude, Dabhoi, in Regular Civil Suit No. 44/13 at Exh-11, 12 and 14;
(C) Pending hearing and final disposal of the present petition be pleased to stay the operation and implementation of an common order dated order dated 14/10/13 passed by the Ld. Principal Civil Jude, Dabhoi, in Regular Civil Suit No. 44/13 at Exh-11, 12 and 14 in the interest of justice;
(D) Grant such other and further relief(s) in the fact and circumstances of the present petition as deemed fit in the interest of justice."
4. At the outset, learned advocate Mr. Patel would submit that the issue germane in the present writ application is squarely covered by the decision of the Full Bench of this Court in the case of Sakina Sultanali Sunesara (Momin) Vs. Shia Imami Ismaili Momin Jamat Samaj reported in 2020 (1) GLR 586.
4.1 Learned advocate Mr. Patel would further state that Regular Civil Suit No. 44 of 2013 filed by the respondents No.1 to 4 herein happens to be daughters of deceased Page 2 of 10 Uploaded by SALIM(HC01108) on Sat Sep 20 2025 Downloaded on : Mon Sep 22 22:05:14 IST 2025 NEUTRAL CITATION C/SCA/18220/2013 JUDGMENT DATED: 17/09/2025 undefined Chhaganbhai claiming their right in the suit land as ancestral property filed against rest of the respondents herein, who also happens to be legal heirs of deceased Chhaganbhai but a male members of deceased Chhaganbhai. It is submitted that the suit in question came to be filed on 03.08.2013 but prior thereto, there was a registered agreement to sell executed between respondents No. 5 to 13 i.e. original defendants in favour of petitioners herein on 27.05.2013 for the suit land in question.
4.2 It is further submitted that there was registered sale- deed executed by the original defendants in favour of the petitioners on 22.08.2013, whereas, there was a consent terms drawn between the plaintiffs and defendants of the suit on 13.08.2013 but it was accepted and accordingly, the suit got disposed of by the trial Court on 31.08.2023.
4.3 Learned advocate Mr. Patel would further state that when such fact came to the notice of the petitioners being purchaser of the suit land, at the earliest, the impugned application came to be filed on 11.09.2013 in the suit proceeding, al-beit, filed under Order 23 rule 3 read with Section 151 of CPC. It is submitted that by way of impugned application, the trial Court was requested to recall its order dated 31.08.2013 passed on the basis of consent terms Page 3 of 10 Uploaded by SALIM(HC01108) on Sat Sep 20 2025 Downloaded on : Mon Sep 22 22:05:14 IST 2025 NEUTRAL CITATION C/SCA/18220/2013 JUDGMENT DATED: 17/09/2025 undefined executed between the plaintiffs and defendants dated 13.08.2013, which was nothing but a fraudulent act of the parties to the suit. Nonetheless, he would state that same is not accepted by the trial Court, is nothing but perversity on the part of the trial Court, requires to be corrected by this Court.
4.4 Learned advocate Mr. Patel would further submit that when there is fraud committed by the parties to the suit upon the petitioners, as such there could not have been compromise allowed to enter into between the plaintiffs and defendants, thereby suit got disposed of and consent decree passed by the Court, the same is required to be questioned by way of an impugned application, which is maintainable in law. It is submitted that even if assuming for the time being that remedy under Order 23 rule 3 of CPC is not available to the petitioners being third party to the suit, but the trial Court could have treated such application as a review application and requires to have been considered such application on its merit, rather than rejecting it on the ground of its maintainability.
4.5 So, learned advocate Mr. Patel would submit that there is ex-facie erroneous, perverse and contrary to settle law, impugned order passed by the trial Court while rejecting the Page 4 of 10 Uploaded by SALIM(HC01108) on Sat Sep 20 2025 Downloaded on : Mon Sep 22 22:05:14 IST 2025 NEUTRAL CITATION C/SCA/18220/2013 JUDGMENT DATED: 17/09/2025 undefined impugned application filed by the petitioners.
4.6 Making the above submission, learned advocate Mr. Patel would request this Court to allow the present writ application.
5. Per contra, learned advocate Mr. M.A. Saiyed for learned advocate Mr. Kishan Daiya for the respondents is not able to assist this Court, inasmuch as according to his instruction, learned advocate Mr. Shital R. Patel would appear in the matter but today he is on sick note.
6. This Court could have accommodated the learned advocate for the respondents but considering the fact that the matter is of the year 2013, listed for final hearing in very critically old matters and pending since long, and as such after examining the aforesaid facts and submissions made by the learned advocate Mr. Patel for the petitioners, I am of the view that the matter is squarely covered by the decision of the Full Bench of this Court in the case of Sakina Sultanali Sunesara (Momin) (supra). So, this Court would not like to accept the request made by learned advocate for the Respondents.
7. The facts remain as indicated hereinabove that despite Page 5 of 10 Uploaded by SALIM(HC01108) on Sat Sep 20 2025 Downloaded on : Mon Sep 22 22:05:14 IST 2025 NEUTRAL CITATION C/SCA/18220/2013 JUDGMENT DATED: 17/09/2025 undefined there is registered agreement to sell executed on 27.05.2013 and then after, there was registered sale deed executed by the defendants in favour of the petitioners, at no point of time, defendants have ever informed the petitioners about any pendency of the suit and nor any consent terms executed between the plaintiffs being siblings of defendants disclosing such registered agreement to sale or otherwise. Prima-facie, act of defendants, being vendor while selling the suit properties to the petitioners requires to be disclosed the pendency of any suit or any consent terms agreed between the plaintiffs and defendants. Having not done so, the petitioners being purchaser, all rights to complain to the Court about execution of such consent terms resulted into passing of the consent decree behind their back and would cause serious prejudice to right to hold suit land.
8. When, in light of the aforesaid factual scenario, the petitioners being aggrieved party approached the trial Court with request to recall its consent decree/order, in view of the decision of the Full Bench of this Court in the case of Sakina Sultanali Sunesara (Momin) (supra), which is now confirmed by the Hon'ble Apex Court in the case of Sakina Sultanali Sunesara (Momin) Vs. Shia Imami Ismaili Momin Jamat Samaj in Civil Appeal No. 6681-6682 of 2023, wherein the Full Bench of this Court held thus:-
Page 6 of 10 Uploaded by SALIM(HC01108) on Sat Sep 20 2025 Downloaded on : Mon Sep 22 22:05:14 IST 2025NEUTRAL CITATION C/SCA/18220/2013 JUDGMENT DATED: 17/09/2025 undefined "40. The upshot of the above may be summed up as under:-
(i) After the deletion of Clause (m) of Rule 1 of Order XLIII, by the amendment Act 104 of 1976, no Appeal from Order against the order passed under Rule 3 of Order XXIII recording or refusing to record an agreement, compromise or satisfaction would lie under Rule 1 of Order XLIII of CPC. Rule 1A of Order XLIII does not provide for any remedy to file an appeal either against any order or against any decree.
(ii) It is only in an appeal filed under Section 96(1) read with Order XLI of CPC, against the decree passed in the suit after recording of compromise or refusing to record compromise, the appellant can contest such decree on the ground that the compromise should or should not have been recorded, in view of Rule 1A(2) of Order XLIII.
(iii) No appeal would be maintainable from a decree passed by the Court with the consent of the parties i.e. on the basis of the compromise arrived at between the parties in the suit under Rule 3 of Order XXIII, in view of the bar contained in Section 96(3) of CPC.
(iv) No suit shall lie to set aside a decree passed under Rule 3 of Order XXIII on the ground that the compromise on which the decree is based was not lawful in view of the bar contained in Rule 3A of Order XXIII.
(v) If the aggrieved party was the party to the suit, the only remedy available to him against the decree passed by the Court on the basis of compromise between the parties (consent decree), would be to file an application under the proviso to Rule 3 of Order XXIII, disputing such compromise. The Court which passed the compromise decree has to decide the said dispute or question raised by the party.
(v) If the aggrieved party was the party to the suit, the only remedy available to him against the decree passed by the Court on the basis of compromise between the parties (consent decree), would be to file an application under the proviso to Rule 3 of Order XXIII, disputing such compromise. The Court which passed the compromise decree has to decide the said dispute or question raised by the party.Page 7 of 10 Uploaded by SALIM(HC01108) on Sat Sep 20 2025 Downloaded on : Mon Sep 22 22:05:14 IST 2025
NEUTRAL CITATION C/SCA/18220/2013 JUDGMENT DATED: 17/09/2025 undefined
(vi) When there is a dispute raised by either of the parties to the suit on the question as to whether there was a compromise or not, a decree accepting the compromise on resolution of that controversy, cannot be said to be a decree passed with the consent of the parties. Therefore, the bar under Section 96(3) of the Code would not have any application. Section 96(3) is applicable to cases where the factum of compromise or agreement is not in dispute.
(vii) If the aggrieved party was not the party to the suit, the remedy available to him to challenge the decree passed by the Court the basis of compromise between the parties to the suit (consent decree), would be to file an appeal under Section 96(1) of CPC, with the leave of the appellate Court, or to file a review application before the Court, which passed the decree, as may be permissible under Section 114 read with Order XLVII of CPC.
(viii) The words "signed by the parties" contained in Rule 3 of Order XXIII would include the compromise signed by the duly authorized pleaders or the power-of-attorney holders or the recognized agents of the parties concerned."
(emphasis supplied)
9. Thus, in view of the aforesaid facts and applying ratio of the Full Bench of this Court in the case of Sakina Sultanali Sunesara (Momin) (supra) to the facts of the present case, the impugned application could not have been rejected by the trial Court on the ground that the petitioners have no locus-standi to file such application.
10. It is true that the application was title having filed under Order 23 rule 3 of CPC read with Section 115 of CPC Page 8 of 10 Uploaded by SALIM(HC01108) on Sat Sep 20 2025 Downloaded on : Mon Sep 22 22:05:14 IST 2025 NEUTRAL CITATION C/SCA/18220/2013 JUDGMENT DATED: 17/09/2025 undefined but as per settle legal position of law, rule of procedure is handmaid of justice and once the Court having power to pass an appropriate order, albeit, in different provisions of law under CPC then, the Court should not take a hyper technical approach while advancing justice to the parties.
11. In light of the aforesaid, the impugned application requires to be treated having filed as a review application under Section 114 read with Order 47 of CPC.
12. In view of the aforesaid discussions and reasons, the impugned order dated 14.10.2013 passed by Additional Civil Judge, Daboi below Exh.11 in Regular Civil Suit No. 44 of 2013 is hereby quashed and set aside. Consequently, the impugned application below Exh. 11 filed in the aforesaid suit is hereby restored back on its original file. Accordingly, the matter is remanded back to the trial Court to decide afresh impugned application filed below Exh. 11 in the aforesaid suit.
13. It goes without saying that the trial Court requires to decide the impugned application on its own merit without being influenced by any of the observations so made hereinabove by this Court and so also made by Appellate Court. The reasonable opportunity of hearing must be given Page 9 of 10 Uploaded by SALIM(HC01108) on Sat Sep 20 2025 Downloaded on : Mon Sep 22 22:05:14 IST 2025 NEUTRAL CITATION C/SCA/18220/2013 JUDGMENT DATED: 17/09/2025 undefined to all parties concerned by the trial Court. Nonetheless, the impugned application having filed in the year 2013 requires to be heard and decided by the trial Court as early as possible preferably on 31st March, 2026.
14. This Court while issuing notice, directed the parties to maintain status quo vide its order dated 09.12.2013 which is so far operating till date.
15. Considering the peculiar facts and circumstances of the present case, the order of status quo granted by this Court vide its order dated 09.12.2013 shall remain in operation and to be continued till final adjudication of the impugned application filed below Exh. 11 by the petitioners in Regular Civil Suit No. 44 of 2013.
16. In view of forgoing conclusion, present writ application is allowed to the aforesaid extent. Rule made absolute accordingly. No order as to cost.
Direct service is permitted.
Sd/-
(MAULIK J.SHELAT,J) SALIM/ Page 10 of 10 Uploaded by SALIM(HC01108) on Sat Sep 20 2025 Downloaded on : Mon Sep 22 22:05:14 IST 2025