Ramkrishna Shridhar Choube vs The Court Receiver & Ors
2010 Latest Caselaw 236 Bom

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            IN THE HIGH COURT OF JUDICATURE AT BOMBAY
               ORDINARY ORIGINAL CIVIL JURISDICTION




                                                                         
                         Notice of Motion No. 2413 of 2008




                                                 
                                         in
                              Suit No.1188 of 1984




                                                
      Ramkrishna Shridhar Choube
      & Others                                                         .. Plaintiffs

                  v/s.




                                      
      The Court Receiver & Ors.                                      ..Defendants

                  And
                         
                        
      Smt.Kamtidevi Premnath Choube & Ors.                           ..Applicants


      Mr.Tanvir Shaikh for the Plaintiffs.
      Mr.T.N.Subramanium, Sr. Counsel Mr. A.T. Suryanwanshi, Rahul Yagnik
        


      i/b. Markand Gandhi for the Defendant No.13 and 14
      Mr.Maheshwari with Ms. Reshma Mishra for the applicant.
     



                                  CORAM : R.Y.GANOO, J.

DATED : 2nd December , 2010

ORAL JUDGMENT. :

1. By this notice of motion, the applicants have sought following

reliefs:

i) By prayer clause (a) Order dated 12.5.2008 passed by this

Court in this Suit, along with consent terms dated 12.5.2008 be set

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aside and suit be restored to the file of the court.

ii) By prayer clause (b) applicants want that the plaintiffs should

bring applicants on record as party defendants.

Iii) Other prayers are in the nature of interim reliefs.

2. The contesting parties before the court are plaintiffs as well as

defendant nos.13 and 14. Defendant nos.13 and 14 have filed

affidavit in reply opposing the notice of motion.

3. In order to appreciate the point involved in this motion, it would be

necessary to state relevant facts. Original Plaintiff No.1 and original

defendant No.12 Premnath were brothers. This Premnath had

instituted two suits in the court at Thane, being Suit No.446 of 1987

and Suit No.526 of 1987 against the original plaintiff No.1 and

others. These two cases related to the rights of Premnath in certain

properties, more particularly set out in the said suits, out of which

one property is the subject matter of the present suit, which property

is described in the plaint. Certain interim orders were passed in Suit

No.446 of 1987 and Appeal from Order came to be filed by Premnath

in this Court being Appeal from Order No.676 of 1992, as Premnath

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was aggrieved by the said interim orders. In the said Appeal from

Order No.676 of 1992 the consent terms were arrived at. Clause 7 of

the said consent terms dealt with the suit property concerned in this

suit i.e. Suit No.1188 of 1984. The reading of the said clause would

go to show that Premnath and original plaintiff no.1 and others

agreed that subject to decision in this Suit No.1188 of 1984,

properties at serial nos.9 and 10 mentioned in Exhibit A to the

consent terms will be joint properties of Premnath and original

plaintiff no.1 and others who were styled as respondents in the said

Appeal from Order No.676 of 1992.

4. It is seen that the plaintiffs in this suit, instituted the suit for reliefs

which were in the nature of injunction restraining original defendants

from dispossessing the plaintiffs from the suit land i.e. Survey No.

111A, B and C of village Amboli, Andheri, without due process of

law. A declaration was also sought that the farmhouse admeasuring

30 ft X 20 ft and kaccha hut stands on Survey No.111D and over

land admeasuring 1254 sq. mts. out of Sr. No. 111D on which the

defendants will have no title and interest. It was also prayed that

defendants be restrained from dispossessing the plaintiffs from the

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land admeasuring about 1254 sq. meters falling in Survey No.111D

over which the farmhouse and 11 kaccha huts were situated.

5. On coming to know about this suit being filed against certain

person, Premnath filed Chamber Summons No.45 of 1997 praying

that he be joined as party defendant, claiming that he is required to

be joined as party defendant as he has right in respect of the property

covered by the present suit.

6. Said Chamber Summons was granted by order dated 10.9.1997.

Plaintiffs did not carry out amendment in terms of the chamber

summons. Therefore, Premnath who was ordered to be joined as

party defendant took out notice of motion. Said notice of motion

was granted. The plaintiffs carried out amendment and joined

Premnath as defendant no.12. Premnath filed written statement and

contested the suit.

7. Premnath expired on 13.8.2007. This fact was communicated by the

heirs of Premnath through Advocate Mr.A.R.Pandey to Advocate for

plaintiffs by letter dated 26.10.2007. The names of heirs of

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Premnath were communicated and plaintiffs were requested to take

steps to bring on record present applicants as heirs of Premnath who

was already impleaded as defendant no.12. Plaintiffs did not file any

application to join applicants as defendants.

8. It is the case of the applicants who have taken out this notice of

motion that the plaintiffs colluded with the present defendant nos.13

and 14 and defendant no.4 and it was decided that all the defendants

except defendant no.4 will be deleted and the present defendant nos.

13 and 14 be brought on record. According to plaintiffs, it was

further decided to obtain orders on the basis of consent terms to be

signed by the plaintiffs, defendant no.4, defendant no.13 and

defendant no.14 to the prejudice of present applicants who had right

in the suit properties on account of death of Premnath. According to

the applicants, on 12.5.2008 the consent terms were tendered as per

above plaint. Similarly, Consent Minutes of Order were tendered

and decree dated 12.5.2008 came to be secured by plaintiffs,

defendant no.4, defendant nos.13 and defendant no.14 by collusive

action.

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9. The applicants have pleaded that on account of collusive actions on

part of plaintiffs, defendant nos.4, 13 and 14, fraud is practised upon

the applicants as well as on the court and rights of the present

applicants as heirs of defendant no.12 have been deprived of. In

substance, applicants have pleaded that fraud is practised on

applicants as well as on court and that is how they have approached

this Court for setting aside the decree dated 12.5.2008 as also consent

terms dated 12.5.2008.

10.Learned Counsel appearing on behalf of applicants had taken me

through the aforesaid facts and had submitted that the plaintiffs fully

knew that they had accepted the right of Premnath in the suit property

covered by this suit and therefore it was not proper for plaintiffs as to

not bring heirs of Premnath on record, though plaintiffs were asked to

do so in terms of Advocate's letter dated 26.10.2007. Learned

Counsel for the applicants submits that the seeds of fraud were sown

at this time and the applicants were in dark as they were thinking

that after they are joined, they would contest the suit. Learned

Counsel for the applicants had taken me through the affidavit in

support and particular paragraph 10 of the affidavit where the

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applicants have stated the grounds on which they claim that fraud

was perpetrated on them.

11.Learned Counsel for the applicants submitted that the circumstances

in which the applicants were placed, they had no alternative but to

take out this notice of motion for getting the decree dated 12.5.2008

set aside as according to them the decree is sought by playing fraud.

12.Learned Counsel for the applicants had taken me through Order 23A

of the Code of Civil Procedure and the title of the said Order 23 is

"Withdrawal and Adjustment of Suits.". He had also taken me

through Rule 3A of Order 23 of C.P.C. and had submitted that on

account of Order 23 Rule 3A, a suit cannot be filed for setting aside

the decree on the ground that compromise on which the decree is

passed was not lawful. Learned Counsel Mr. Maheshwari therefore

submitted that on account of provisions of Order 23 Rule 3A the only

course which the applicants could adopt was institution of this notice

of motion. Learned Counsel Mr. Maheshwari had ultimately

submitted that the conduct on the part of plaintiffs, defendant no.4

and defendant nos.13 and 14 manifestly indicates intention of these

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parties to played fraud upon the court as well as upon the applicants

and therefore the court should allow this notice of motion and permit

the present applicants to contest the suit after it is restored, as their

rights are affected on account of decree dated 12.5.2008.

13.Learned Sr. Counsel Mr. Subramaniam, appearing on behalf of

defendant nos.13 and 14 had opposed the present notice of motion by

contending that no fraud was practiced as alleged. According to

him, plaintiffs were entitled to take the decision of dropping certain

defendants, including the defendant no.12, whose heirs were not

brought on record. He submitted that deleting all the defendants

except defendant no.4 did not amount to fraud. According to him the

rights of the present applicants are not affected in as much as

Premnath would have rights in the suit properties subject to the

decision of this Suit i.e. Suit No.1188 of 1984.

14.Learned Senior Counsel appearing on behalf of defendant nos.13 and

14 had submitted that in any case, if it is the stand of the applicants

that decree dated 12.5.2008 should be set aside, they will have to

institute substantive suit and have appropriate decree in the said suit.

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Counsel for the plaintiffs and defendant no.4 respectively had

supported the arguments advanced by Counsel for defendant nos.13

and 14.

15.After having considered the rival submission, I am of the view that it

would be necessary for this Court, first to decide whether in the facts

and circumstances of the case, institution of this notice of motion

seeking to set aside decree dated 12/5/2008 could be the appropriate

proceeding. Once the answer to this question is furnished, then one

may go into the claims made by the applicants for the purpose of

deciding merits of the notice of motion.

16.Applicants pleaded that the decree dated 12.5.2008 is brought about

by playing fraud upon the court as well as on the applicants. One

may proceed to accept this proposition for the purpose of deciding

the question of maintainability. Learned Counsel for the applicants

had submitted that on account of bar created by Order 23 Rule 3A, of

C.P.C., the present applicants are unable to file substantive suit and

proper procedure would be to press this notice of motion.

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17.After having considered Order 23 of C.P.C. in its entirety, I am

inclined to observe that Order 23 speaks of what happens between

the persons who are parties to the suit. Order 23 , 3A of C.P.C. will

therefore have to be treated as an extension of provisions of Order

23 Rule 1, 2, 3 of C.P.C. This would mean that the restrictions as

regards institution of suit to have the decree set aside would in

principle apply to the parties to the suit. At this juncture itself, it

would be proper to refer to the judgment of this Court in the case of

Jethalal C. Thakkar vs. Lalbhai Hiralal reported in (1984) 86 BLR 10

where the court had an occasion to deal with Order 23 Rule 3A of

C.P.C. This was the case where the application was made by a party

to the suit, for setting aside the decree was brought about by fraud.

On behalf of the said party a submission was advanced that on

account of Rule 3A of Order 23 of C.P.C. the suit cannot be filed and

therefore institution of application was the correct procedure. On this

submission, the court gave its view in paragraph 4. The relevant

portion of paragraph 4 is as under:

" I am not inclined to give to the words "not lawful", the unrestricted connotation which Mr. Modi invites me to do. To my mind, Rule 3A bars a substantive suit not in all imaginable cases but in cases where the compromise was "not lawful",

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where for instance in passing the consent decree the Court has on the face of it no jurisdiction to do so or where fraud or

misrepresentation was perpetrated on the court (as distinct as in the present case, from fraud, coercion or misrepresentation

perpetrated by one party on the other) or where on the face of it the consent decree suffers from some palpable defect or

error which the Court must correct, where for instance it contains a term or clause opposed to law, morality or public policy, or where the court was mislead into passing the

consent decree, say by reason of lack of authority or limited authority of the consenting advocate or advocates not brought

to the court's notice at the time and so forth. It is in such

context thus illustrated that words "not lawful" must be construed in reference to a compromise envisaged by Rule 3A and no in each and every case where a party seeks to set aside

a compromise on the ground of fraud, coercion or misrepresentation practised upon him by the other party as

alleged in the present case. In such a case resort to Rule 3A would be impermissible. I do not see anything in Rule 3A as

stultifying the ratio of the decisions relied on have been simpler than to have enacted that no suit shall be filed to set aside by Mr. Chagla. If such has been the intention of the

Legislature, nothing could a compromise decree, rather than enacting Rule 3A in the phraseology as it has been done."

18. Reading of above para would go to show that the provisions of

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Order 23 Rule 3A of C.P.C. is not applicable to the all kinds of

decrees on the ground that the compromise on which the decree is

based was not lawful. This would mean some decrees can be

challenged by filing a suit by a party to the suit on the ground that the

compromise on which the decree is based was not lawful. However,

this could be done by a person who was party to the suit. The bar of

Order 23 Rule 3A of C.P.C. in my view would not be applicable to a

person who was not a party to the suit. If it was the intention of the

legislature that the bar created by Order 23 Rule 3A of C.P.C. was

applicable to person who was not a party to the suit, the legislature

would have specifically provided so. In the absence of such bar, if a

person who is not a party to the suit wants to have a decree set aside

by contending that the compromise on which the decree is based was

not lawful has to file suit to seek appropriate reliefs. For the reasons

mentioned above, I hold that the applicants will have to file a suit to

seek necessary declarations. The notice of motion is not

maintainable.

19.In support of the contention that the present notice of motion is

maintainable, learned Counsel for the applicants had relied upon the

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judgment Dwarika Prasad vs. Nirmala And Others reported in (2010)

2 SCC 107. Having gone through the said judgment, I am inclined to

observe that the point covered by the said judgment is totally

different from the point involved in this case. This judgment is not

applicable to the facts of this case.

20.There is one more reason as to why institution of suit is proper

remedy. As the present applicants were not parties to the suit, what

exactly transpired before the Court at the time of arriving the consent

terms, would not be known to them. One will have to read the text

of decree, minutes of the order, consent terms etc. If it has been the

stand of the applicants that the fraud has been played on the court and

on them, they will have to provide full particulars of fraud.

Undoubtedly all concerned, who are interested in opposing such a

plea will have to be given a chance to defend such allegations. Once

the allegations are defended by the parties, it will result in disputed

questions of fact and evidence will have to be led in support of rival

contentions. Surely, this cannot be effectively done in a Notice of

Motion which is taken out by the present applicants. It is for this

reason also, I am inclined to observe that the institution of the suit so

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as to challenge the decree dated 12.5.2008 is the proper remedy.

21.It is pertinent to note that in the Code of Civil Procedure no specific

procedure is set down for the purpose of filing proceeding to have the

decree set aside by a person who was not party to suit by alleging

that the said decree is not lawful, in the absence of such procedure in

the Code of Civil Procedure, the normal rule of institution of suit

should be accepted as a proper procedure. Such a procedure would

meet the ends of justice.

22.For the reasons mentioned aforesaid, I hold that the present notice of

motion is not maintainable for the purpose of seeking reliefs which

are set out in the prayer clauses and as such the motion will have to

be dismissed on the question of maintainability.

23.Having observed that the notice of motion is not maintainable, I do

not wish to say anything about the allegations levelled by the

applicants against the plaintiffs, defendant no.4 and defendant nos.13

and 14 and to that extent this Court has expressed no views about the

stand taken by the applicants in this notice of motion.

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24.For the reasons mentioned aforesaid, the motion is disposed of by

passing following order:

ORDER

i. Notice of Motion is dismissed. There shall be no order as to

costs.

ii. The suit is already disposed of, therefore, there is no need to

show it on board. Removed from board.

[R.Y.GANOO, J.]